PPT on protected workmen

1. Protected Workman
Means a workman who, being a member of the executive or other
office bearer of a registered trade union connected with the
establishment, is recognised as such in accordance with rules
made in this behalf.
List to be forwarded by Union- Every registered trade union
connected with an industrial establishment shall communicate to
the employer before the 30th April every year, the names and
addresses of the officers of the union who are employed in that
establishment who should be recognised as protected workmen.
Employer has to recognise such workers as “Protected” for a
period of 12 months, within fifteen days of receipt of the proposal
from the union.

2. Limitations on no of PW- The number of workmen to be
recognised as protected workmen shall be one per cent of the
total number of workmen employed therein subject to a
minimum number of five protected workmen and a maximum
number of one hundred protected workmen.
Procedure where there are Multiple Unions - Where there are
more than one registered trade unions in the establishment,
the maximum number of protected workmen shall be
distributed among the unions in such a way that each union
shall have representation as protected workmen in proportion
to the membership of the unions.
If the union is informed that the number of protected workmen
allotted to the union is less than that proposed by the union;
after submission of the list, the union will have to select from
the proposed list the names of such persons who should be
recognised as protected workmen and intimate the names to
the employer within five days.

3. General Protection of workmen Sec 33(1) &
(2)
Matter connected with dispute – no alteration
of conditions of work, no disc action
Matter not connected with dispute – may
alter working conditions and take disc action
except – discharge/dismissal unless 1 month’s
wages are paid and application forwarded for
approval of the authority where proceedings
are pending is taken.

4. Rights of Protected Workmen : Section 33 (3)
During the pendency of any industrial dispute either under conciliation,
arbitration or adjudication, the employer should not initiate any action against
any protected workman concerned in such dispute-
(a) by altering to the prejudice of such protected workman, the conditions of
service applicable to him immediately before the commencement of such
proceedings; or
(b) by discharging or punishing, whether by dismissal or otherwise, such
protected workman, save with the express permission in writing of the authority
before which the proceeding is pending.
If any employer wants to take action against a protected workman during
the pendency of a conciliation proceeding, before the Conciliation Officer,
Board, Arbitrators, Labour Court, Tribunal or National Tribunal, he
should get express permission from the concerned authority after applying
in the required format.

5. H.C. case -
The Kerala High Court in an interesting dispute wherein a
Workman who was already facing Disciplinary Action and was facing
some proceedings for misconduct was nominated by the Union for
recognizing as a 'Protected Workman'. The management declined
their request, which lead to the Union approaching the Assistant
Labour Commissioner who passed an order in favour of the Union,
granting protection to the nominated workman. The management
challenged the said order by filing the Writ Petition.
The Single Judge of Kerala High Court [2010 III LLJ 811] held
that “the choice of the individual officers, who are to be recognized
as protected workmen has been left to the concerned Trade Union
… and once the communication of the Union’s choice is sent to the
employer, a mandatory obligation is cast on the employer that it shall
recognize the workmen as protected workmen …. even if a Union
Official is facing disciplinary action, that does not render him
ineligible for being recognised as protected workmen”.

6. Supreme Court decision:
The management preferred an intra-court appeal and the Division
Bench [Justices C. N. Ramachandran Nair & K. Surendra Mohan, HLL
Lifecare Ltd. v. Hindustan Latex Labour Union (AITUC), W.A 1171 of 2010,
decided on 3rd November, 2010], reversed the above said judgment of
single judge and held that “it is up to the management to consider whether
any of the office-bearers nominated by the union is undesirable or ineligible
for recognition and if they find so for valid reasons, they are free to reject the
nomination of such office-bearer. If the management declines to recognise
any office-bearer as protected workman, it is for the Union to either contest
the same by raising a dispute before the Labour Commissioner as provided
under sub-rule (4) of Rule 61 of the Rules whose decision shall be final or to
send the name of another office-bearer for recognition as protected
workman.. However, management is entitled to decline recognition as
protected workmen to a person nominated by the union, if any disciplinary
proceeding is pending against such workman. Union certainly cannot
exercise their power under Rule 61(1) to give immunity to an employee
against whom disciplinary proceedings initiated by the management are
pending, by nominating his name for recognition as protected workman.”

7. Therefore, according the new interpretation, an office bearer of the
Union facing disciplinary proceedings is not entitled to be nominated by the
Union for recognition as protected workman and the management is
absolutely within their powers to decline recognition to such an office-
bearer under sub-rule (2) of Rule 61.
In such cases the management should inform its intention to decline
the name of a particular worker in the list, within 15 days, failing which it
can be presumed that the management has no objection in the proposal
furnished by the union.