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INDUSTRIAL RELATIONS and cide of dispute and discipline CODE.pptx

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Industrial Dispute means any dispute or differences between employers and employers or between. employers and workmen or between workmen and workmen which is connected with the employment. or non-employment or the terms of employment or with the conditions of labour of any person.

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Industrial Relations Code, 2020
Presentation Schema Labour Codes Framework of Industrial Relations Code, 2020 Bi-partite Forums Trade Unions 2
Labour Codes To consolidate and amend various laws into one single code - Labour Code To minimise the burden of employer from complying with various Acts and thus to reduce the due diligence work of the authorities To facilitate ease of doing business To amend the erstwhile laws to meet the requirements of today’s world To replace multiple registrations, licenses into one 3
• Industrial Dispute Act 1947 • Trade Unions Act 1926 • Standing Orders Act 1946
Framework of Industrial Relation Code, 2020 5
Industrial Relation Code, 2020 is an Act to consolidate and amend all laws relating to trade union, conditions of employment in industrial establishment or undertaking, investigation and settlement of industrial disputes and for matters connected therewith / incidental thereto Lok Sabha passed the bill on 22nd September, 2020 Rajya Sabha passed the bill on 23rd September, 2020 Received President’s assent on 28th September, 2020 6 Applicability of the code - To whole of India
9 Chapters of the Act I- Preliminary II- Bi-partite Forums III- Trade Unions IV- Standing Orders V- Notice of change in conditions of service VI- Voluntary reference of disputes to arbitration VII- Mechanism for resolution of Industrial dispute s VIII- Strikes & lock- outs IX- Lay-off / Retrenchment / closure X- Special provisions relating to the above in certain establishments XI- Worker re-skilling fund XII- Unfair labour practices XIII- Offences & penalties XIV- Miscellaneous
• Jamnagar: Fueled by rumours of accidental death of one of the labourers, two worker groups clashed within the labour colony near Reliance Industries Limited (RIL)'s Jamnagar refinery site. According to Jamnagar police officials of rural division, mistaking a labourer's death due to heart attack as being caused due to an accident, two group of workers clashed with each other, resulting in damage to private property within the labour colony of RIL's Jamnagar refinery site near Kanalus village. Later, the situation came under control. However, the police had to resort to tear gas shelling to disperse the mob.On 11th You have received a strike notice what is going to be your action plan?
Appropriate Government Sec 2b • in relation to any industrial establishment or undertaking carried on by or under the authority of the Central Government or concerning any such controlled industry as may be specified in this behalf by the Central Government or the establishment of railways including metro railways, mines, oil fields, major ports, air transport service, telecommunication, banking and insurance company or a corporation or other authority established by a Central Act • Industries (Development and Regulation) Act, 1951
or a central public sector undertaking, subsidiary companies set up by the principal undertakings or autonomous bodies owned or controlled by the Central Government including establishments of the contractors for the purposes of such establishment, corporation, other authority, public sector undertakings or any company in which not less than fifty- one per cent. of the paid-up share capital is held by the Central Government, as the case may be, the Central Government
• Explanation.—For the purposes of this clause, the Central Government shall continue to be the appropriate Government for central public sector undertakings even if the holding of the Central Government reduces to less than fifty per cent. equity in that public sector undertaking after the commencement of this Code; • (ii) in relation to any other industrial establishment, including State public sector undertakings, subsidiary companies set up by the principal undertaking and autonomous bodies owned or controlled by the State Government, the State Government: • Provided that in case of a dispute between a contractor and the contract labour employed through the contractor in any industrial establishment where such dispute first arose, the appropriate Government shall be the Central Government or the State Government, as the case may be, which has control over such industrial establishment;
• Find if Steel, Plastic, Radio making, cycle making companies are controlled industry.
• Ankit has been recruited by Patanjali Ayurved Limited as HR executive, He was terminated without due notice or compensation can he raise an ID.
Industry Sec 2 (j) – Old Act I Industry means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen. New code 2020, Sec 2 (p) “ industry" means any systematic activity carried on by co-operation between an employer and worker (whether such worker is employed by such employer directly or by or through any agency, including a contractor) for the production, supply or distribution of goods or services with a view to satisfy human wants or wishes (not being wants or wishes which are merely spiritual or religious in nature), whether or not,— (i) any capital has been invested for the purpose of carrying on such activity; or (ii) such activity is carried on with a motive to make any gain or profit
Exclusion (i) institutions owned or managed by organisations wholly or substantially engaged in any charitable, social or philanthropic service; or (ii) any activity of the appropriate Government relatable to the sovereign functions of the appropriate Government including all the activities carried on by the departments of the Central Government dealing with defence research, atomic energy and space; or
iii) any domestic service; or (iv) any other activity as may be notified by the Central
Industry D. N. Banerji vs P. R. Mukherjee And Others Can be done by Private party? State of Bombay v. Hospital Mazdoor Sabha Profit- Irrelevant Madras Gymkhana Club Employees Union v Gymkhana Club Should not be casual but distinctly systematic. University of Delhi v Ramnath Dominant Nature Test
Bangalore Water Supply & Sewage Board Vs. A. Rajappa (1982) 1 2 3 Systematic activity Organized by cooperation between employer and employee For the production and/or distribution of goods and services calculated to satisfy human wants and wishes T R I P L E T E S T
Temple with Prasad manufacturing Women Development Corporation Tourism Dept Irrigation Dept Educational Institutions Public Health Dept Hospital University Tata Sports Club Postal Dept Telecom Dept Forest Dept Charitable Trust Zoological Park Workshop for handicap Sports Authority of India Municipality Ayurvedha Research Centre Institution for religious education Red Cross Society PWD National Highway division Dandakaranya Project Engineering Services Agriculture Produce Market Commiee
Photostat shop with one operator Gurudwara only for prayer Temple only for prayer Diocese of church Army Police Rajghat Samadhi
The question was whether `social forestry' department of State, which is a welfare scheme undertaken for improvement of the environment, would be covered by the definition of ``Industry'' under S. 2(j) of the Industrial Disputes Act, 1947 The Supreme Court later referred to a bench of nine-judges on the contentious issue pertaining to the interpretation of definition of word 'industry' considering its "wide- ranging implications". A seven-judge constitution bench headed by Chief Justice T S Thakur said it was of the opinion that the appeals before it be placed before a bench comprising nine judges keeping in view the "serious and wide-ranging implications" of the issue. Bench, comprising of Justices M B Lokur, S A Bobde, A K Goel, U U Lalit, D Y Chandrachud and L Nageswara Rao, referred the matter to a larger bench on the interpretation of definition of word 'industry' in section 2(j) of Industrial Disputes Act, 1947. It had said the larger bench would have to necessarily go into all legal questions in all dimensions and depth. Originally considered by a 7 membered Bench State Of U.P vs Jai Bir Singh 2005 Reinterpretation
The dominant nature test (a) Where a complex of activities, some of which qualify for exemption, others not, the predominant nature of the services will be true test. The whole undertaking will be an industry (b) sovereign functions, qualify for exemption, not the economic activities undertaken by government (c) Even in departments discharging sovereign functions, if there are units which are industries and they are substantially severable, then they can be considered to come within Section 2(j).
Sovereign functions of the state – State of Punjab v. Kuldip Singh State functions can be categorised into 4 (1) The sovereign or the regal functions of the State which are the primary and inalienable rights of a constitutional Government. (2) Economic adventures clearly partaking of the nature of trade and business undertaken by it as part of its welfare activities. (3) Organized activity not stamped with the total indicia of business yet bearing a resemblance to or being analogous to trade and business. (4) The residuary organized governmental activity which may not come within the ambit of the aforesaid three categories. The 1st and the 4th category do not come within the definition of ‘industry’.
WORKER
Case • Rahul is a B-tech graduate in the field of IT • Working for a start-up firm company providing IT solutions • He has been working for the past 18 months • Salary is 1 lakh rupees. • He works in team of 4 people with one lead. • He handles customers directly He has been terminated as part of cost cutting. He claims that it is for recruiting a partners friend. He raises an industrial dispute. Can he do it. Is he a worker?
Workmen – Section 2 (s) Workmen – Section 2 (s) Any person (including an apprentice) employed in any industry to do any; Manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be expressed or implied, and for the purpose of any proceeding under this Act in relation to an industrial dispute, includes any such Sec 2 (zr) – Worker "worker" means any person (except an apprentice as defined under clause (aa) of section 2 of the Apprentices Act, 1961) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and includes working journalists as defined in clause (f) of section 2 of the Working Journalists and other Newspaper Employees…
Exceptions OLD ACT (i) who is subject to the Air Force Act, or the Army Act, or the Navy Act, or (ii) who is employed in the police service or as an officer or other employee of a prison; or (iii) who is employed mainly in a managerial or administrative capacity; or (iv) who, being employed in a supervisory capacity, draws wages exceeding ten thousand rupees per mensem or exercises, either by nature of duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature NEW CODE, 2020 (i) who is subject to the Air Force Act, the Army Act, or the Navy Act, 1957, (ii) who is employed in the police service or as an officer or other employee of a prison; or (iii) who is employed mainly in a managerial or administrative capacity; or (iv) who is employed in a supervisory capacity drawing wages exceeding eighteen thousand rupees per month or an amount as may be notified by the Central Government from time to time:
• Manual- work comprising labour • Unskilled – work such as that of peons, sweepers etc. • Technical – work pertaining to some mechanical arts or applied sciences. • Operational – • Clerical – is synonymous to routine stereotype work. Eg: maintenance of store ledgers, godown keeper.
• Manager -HR manager, who watches over group of personnel • Administrator - Payroll administrator, who administer payroll of the company • Supervisor - Supervisor is typically a overseer.
Predominant nature of duties • When a persons work is predominantly that of manager and administrative • A supervisor is typically a overseer. • For a supervisor to fall out side the definition of workman he should have specific powers relating to direction and control • In case where the supervisor has the power to appoint, dismiss, take disciplinary action then he is not a workman • Exercise of supervisory control is important
Eg: Maintenance supervisor • Many benefits given to people of his cadre. • Has delegated duties such as • Recommendation of leave • Evaluating work of other employees
Maintenance supervisory Senior Service Engineer •Has delegated duties such as 1. Recommendation of leave 2. Evaluating work of other employees •His job includes installation services , repair of machinery.
Maintenance supervisory • In such cases the employer has to specifically plead and lead evidence and prove that he is a supervisor/manager and not workmen.
• Is a trainee a workman-conflicting decisions Madras HC Bombay HC yes- Delhi HC No • Apprentice under the Apprentice act 1961 – labour laws including ID Act not applicable
Workmen • Widely Misused . • Non Registration under the Apprentice Act will not make the Apprentice a workman • But many factors like the ratio of deployment of persons in the guise of trainees to permanent employment, • the kind of work extracted from such persons, record of training maintained by the employer, factor of training, • payment of overtime, etc. is to be considered by the Court.
Workmen – Section 2 (s) • The relation of master servant is proved by the existence of 1.direction 2.supervision 3. control
Contract of Employment • The relation of employer-employee can easily be proved by a contract of employment. • So it can be temporary, permanent or probationer. • contract of employment - contract for employment
contract of employment versus contract for employment contract of service contract for employment • A determining factor in a contract of service can be • Control – here the employer has absolute control over the employee. He can tell them what work to do and how exactly it should be done. • Another test that is used is whether the employee has the freedom to work in different organisations at the same time. • Here the contractor has the power to appoint the person and fire him •No employer employee relation is created •Control – here the employer has very little control over the employee.
Burden of proof • Burden of proof is on the employee to prove that he is a workman . • In discharging the burden the workman may call for books of account, or any other record or document in possession of the employer. • Question of law and question of fact. • the question whether the relation between the parties is a relation of employer –employee is a pure question of fact. • But the question that a person is a workman or not is a question of law.
Fixed Term Employment • "fixed term employment" means the engagement of a worker on the basis of a written contract of employment for a fixed period: Provided that— • (a) his hours of work, wages, allowances and other benefits shall not be less than that of a permanent worker doing the same work or work of similar nature; • (b) he shall be eligible for all statutory benefits available to a permanent worker proportionately according to the period of service rendered by him even if his period of employment does not extend to the qualifying period of employment required in the statute; and • (c) he shall be eligible for gratuity if he renders service under the contract for a period of one year
Definitions • (i) in relation to an establishment which is a factory, the occupier of the factory and where a person has been named as a manager of the factory • in relation to any other establishment, the person who / the authority which has ultimate control over the affairs of the establishment and where the said affairs are entrusted to a manager / MD, such manager / MD • contractor and • legal representative of a deceased employer 10 Employer means a person who employs any person, on his behalf / on behalf of any person, in his establishment and where the establishment is carried on by any department of CG / SG, the authority specified by the head of the department in this behalf / where no authority is so specified, the head of the department, and in relation to an establishment carried on by a local authority, the chief executive of that authority, and includes,— (ii) (iii) (iv )
Industry dispute means any dispute / difference between employers and employers / between employers and workers / between workers and workers which is connected with the employment / non-employment / the terms of employment / with the conditions of labour, of any person and includes any dispute / difference between an individual worker and an employer connected with / arising out of discharge, dismissal, retrenchment / termination of such worker
Industrial Dispute V. Individual Dispute • Sec 2 (q) "industrial dispute" means any dispute or difference between employers and employers or between employers and workers or between workers and workers which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person and includes any dispute or difference between an individual worker and an employer connected with, or arising out of discharge, dismissal, retrenchment or termination of such worker;
• Industrial dispute as defined under Sec. 2q exists between- • Parties to the dispute who may be • Employers and workmen • Employers and Employers • Workmen and workmen • a) There should be a factum of dispute not merely a difference of opinion. • b) It has to be espoused by the union in writing at the commencement of the dispute. Subsequent espousal will render the reference invalid. Therefore date when the dispute was espoused is very important. • c) It affects the interests of not merely an individual workman but several workmen as a class who are working in an industrial establishment. • d) The dispute may be in relation to any workman or workmen or any other person in whom they are interested as a body
• Jadhav J. H. vs. Forbes Gobak Ltd • In this case, it was held that, a dispute relating to a single workman may be an industrial dispute if either it is espoused by the union or by a number of workmen irrespective of the reason the union espousing the cause of workman was not the majority of the union.
• For an individual dispute to be declared as an Industrial Dispute, the following conditions are to be satisfied: 1.A body of workmen (trade Union ) or a considerable number of workmen, are found to have made common cause with the individual workman; 2.That the dispute (individual dispute) was taken up or sponsored by the workmen as a body (trade union) or by a considerable Section of them before the date of reference.
• Bombay Union of Journalists vs. The Hindu • A person working in ‘The Hindu, Madras’ had a dispute . The Bombay Union of Journalist raised the dispute. It was found that, there were ten employees of which seven in administrative side and only three in journalism side. Of these three, only two were the members of the union. Therefore, the Supreme Court held that the Bombay Union of Journalists is not competent to raise this dispute. Even if it had raised, it could not have become an industrial dispute.
• Workmen of Indian Express Newspapers Ltd. vs. Management Indian Express Newspapers: A dispute relating to two workmen of Indian Express Newspapers Ltd, was espoused by the Delhi Union of Journalists which was an outside union. About 25 percent of the working journalists of the Indian Express were members of that union. But there was no union of the journalists of the Indian Express. It was held that the Delhi Union of Journalists could be said to have a representative character Qua the working journalists employed Indian Express and the dispute was thus transformed into an industrial dispute.
• If the dispute or difference is connected with some other matter e.g. payment of bonus/ gratuity etc. then it would have to satisfy the test laid down in judicial decisions. Thus only a collective dispute could constitute an industrial dispute but collective dispute does not mean that the dispute should either be sponsored by a recognized union or that all or majority of the workmen of an industrial establishment should be parties to it. (State of Bihar vs. kripa Shankar Jaiswa
• A dispute is an industrial dispute even where it is sponsored by a union which is not registered but the Trade Union must not be on unconnected with the employer or the industry concerned. (Express Newspapers (Private) Ltd. Vs. First Labour Court, West Bengal & Others • Where an individual dispute is espoused by union the question of the employee being a member of the union when the cause arose is immaterial. Those taking up the cause of the aggrieved workman must be in the same employment i.e., there must be community of interest when the act complained against happened and not when the dispute was referred to. •
Chapter II- Bi-partite Forums 52
Contd. 53 Industrial establishment / undertaking – in which any industry is carriedon. Where several activities are carried on in an establishment and only one / some of such activities is / are an industry/ies, then – if unit carrying on such activity is severable from other units, such unit and if it is not severable, the entire establishment will be deemed to be industrial establishment / undertaking Trade Union means any combination, whether temporary or permanent, formed primarily for the purpose of regulating the relations between workers and employers or between workers and workers, or between employers and employers, or for imposing restrictive conditions on the conduct of any trade or business, and includes any federation of two or more Trade Unions
13 Applicability: If > 100 workers are employed / have been employed in any day of preceding 12 months Authority to make general / special order: Appropriate Government may require the employer to constitute the Committee Composition: Representative of employers and workers engaged in the establishment *Condition: Representatives of workers should not be < Representatives of Works Committee Grievance Redressal Committee Works Committee
14 Applicability: > 20 workers are employed Rationale for GRC: For resolving disputes arising out of individual grievances Composition: Maximum: 10 - Representative of employer = Representative of workers - Must involve adequate representatives of women workers Grievance Redressal Committee (GRC) Selection of Representative of Workers: If the establishment has any Trade Union (TU), it has to be consulted Rationale for Works Committee: To promote measures for securing and preserving amity and good relations between the employer and workers and to comment on matters of their common interest / concern and endeavour to compose any material difference of opinion
Illustration 15 No. of Worker s Female Workers 200 Male Workers 300 Ratio: 2:3 Assume the GRC has 10 members 5 members – representing employer 5 members – representing workers Out of 5 representatives, at least 2 shall be women workers
Contd. 16 Selection of Chairperson: Representative of employer and workers alternatively on rotational basis every year. • Procedure for filing any dispute: • Aggrieved worker shall file an application within 1 year from the date on which cause of action of such dispute arises • Within 30 days of application, GRC has to complete the proceedings • Decision will be based on the majority view of the Committee • Application to Tribunal: Within 1 years from the date on which cause of action to the dispute arises and after the expiry of 45 days from the date of making an application to the Conciliation officer of the Appropriate Government • Conciliation: Aggrieved by the decision of GRC or where it is not resolved, worker can file an application for conciliation through TU within 60 / 30 days respectively
Illustration 58 Assume the GRC has 10 members 5 members – representing employer 5 members – representing workers Condition 1: Decision has to be based on the view of majority Condition 2: More than ½ of the members representing workers must agree to the decision Scenario 1: No. of persons having the same view = 7 No. of members representing workers= 3 Decision will be agreed Scenario 2: No. of persons having the same view: 6 No. of members representing workers =1 No decision arrived by GRC
Comparison 59 Particulars Works Committee Grievance Redressal Committee No. of workers > 100 workers > 20 workers Committee 1 committee to be constituted 1 or more GRC can be constituted Provision for chairperson No such provision Chairperson will be the representative of worker / employer – rotational basis Applications for Conciliation and Tribunal - Worker can make applications Composition of Committee Members representing workers can be more than the members Composition of representatives shall be
Chapter III - Trade Unions 60
Trigger for TU LAW • BUCKINGHAM CASE(1920) Buckingham and Carnatic Mills were owned by the Englishmen. Labour was exploted and abused. The workers resisted leading to dismissal of 50 workers. The Management filed suit against trade union leaders for a loss of Rs. 75000/- for period of nonworking and incitement for breach of contract of service. They also sued the leaders for criminal conspiracy
Section 2 ZL "Trade Union" means any combination, whether temporary or permanent, formed primarily for the purpose of regulating the relations between workers and employers or between workers and workers, or between employers and employers, or for imposing restrictive conditions on the conduct of any trade or business, and includes any federation of two or more Trade Unions: Provided that the provisions of Chapter III of this Code shall not affect — (i) any agreement between partners as to their own business; or (ii) any agreement between an employer and those employed by him as to such employment; or (iii) any agreement in consideration of the sale of the goodwill of a business or of instruction in any profession, trade or handicraft;
REGISTERATION OF TRADE UNION • Registration is not compulsory for a trade unionv under the TU Act but there are some specific advantages for registeration • 1. Body Corporate • 2. Perpetual Succession • 3. Affiliation • 4. Juristic person • 5. General Fund Civic and Political Fund • 6. Immunity fro civil and criminal liabilities. • 7. Protected workman
20 Respective SG has power to appoint and prescribe duties for Registrar of TU and other persons as additional, joint and deputy registrar of TU who shall be deemed to be the Registrar for the purpose of the code Requirements for registration of TU Composition: Any 7 / more members* may by subscribing their names to the rules of TU and by otherwise complying with the provisions of the Code can apply for registration *Trade union of workers shall not be registered unless at least 10% / 100 workers (whichever is less) is employed / engaged in the industrial establishment as members of TU on the date of application This composition shall be maintained at all time Application shall not be invalid: After making application and before registration, if not more than ½ of the total number of persons applied have ceased to be members of TU / given notice to Registrar for dissociating themselves from the application
21 Name, objects, utilisation of general fund, members list, inspection of members list, admission of ordinary members, subscription amount, benefits, fines, meetings, election of officers, safe custody of funds, annual audit etc. has to be provided in the constitution / rules of TU Applications to Registrar Every application shall be accompanied by a declaration, rules and resolutions. If the TU is a Federation / Central Organisation, resolutions adopted by members of each members has to be submitted If TU is in existence > 1 year before making application for registration - a statement of assets and liabilities also be annexed Registrar may call for additional information and require alteration of the name of TU if it is identical / nearly resembles an existing name of TU and he shall refuse registration until such alteration is made
Registration of TU 66 On satisfying the requirements, Registrar will register the TU by entering in a register and issue a certificate of registration (conclusive evidence) TU’s registered under TU Act, 1926 having valid registration will be deemed to be registered under this Code if, it submits a statement that it is constituted in accordance with the Code TU shall be a body corporate with perpetual succession & common seal to acquire and hold properties and to sue and be sued in its name
Cancellation of registration of TU 67 On voluntary application by TU* / Any contravention by the TU / If composition of TU is not in accordance with the Code – the Registrar shall withdraw / cancel registration (60 days previous notice stating the grounds of such action shall be given by Registrar to TU) *No notice will be sent Registration shall also be cancelled by the order of Tribunal
Appeal to Tribunal 68 When a TU can go for appeal? Refusal for registration / Cancellation of registration Appeal after the limitation period Tribunal may entertain such appeal on showing sufficient reasons for delay Parties concerned will be given opportunity of being heard before passing any order and Tribunal will forward a copy of order to the Registrar
Communicati on 69 Communications and notices shall be sent to the Head office address as entered in the register maintained by the Registrar Where composition of TU falls below the statutory threshold or for any change in the particulars since the time of registration shall be informed to the Registrar From Registr ar to TU From TU to Registr ar
Immunity from Civil suit in certain cases: • No suit shall be maintainable against any registered TU / office-bearer / member for act done in contemplation / furtherance of an industrial dispute - to which a member of the TU is a party on the ground only that such act induces some other person to break a contract of employment / that it is an interference with trade, business / employment / right of some other person to dispose of his capital / labour as he wills • No civil suit / legal proceeding shall be maintainable against TU for any tortuous act done by an agent of the TU, if it is proved that such person acted without the knowledge of, or contrary to express instructions given by, the executive of the Trade Union
Immunity from Criminal Conspiracy • 17. No office-bearer or member of a registered Trade Union shall be liable to punishment under sub-section (2) of section 120B of the Indian Penal Code in respect of any agreement made between the members for the purpose of furthering any such object of the Trade Union as is specified in section 15, unless such agreement is an agreement to commit an offence.
Immunity From Criminal Conspiracy • Section 17 of the Trade Unions Act, 1926 seeks to insulate trade unions activity from liability for criminal conspiracy: No office-bearer or member of a registered Trade Union shall be liable to punishment under sub-section(2) of Section 120B of the Indian Penal Code in respect of any agreement made between the members for the purpose of furthering any such object of the Trade Union as is specified in Section 15, unless the agreement is an agreement to commit an offence. • The immunity is, however, available only: • (i) to office-bearers and members of registered trade unions; • (if) for agreement; (iii) which further any such trade union object as is specified in section 15 of the Act; and • (iv) which are not agreements to commit offences.
Definition of criminal conspiracy • 120A. Definition of criminal conspiracy • When two or more persons agree to do, or cause to be done,- • (1) an illegal act, or • (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy
• Section 43 in The Indian Penal Code. 43. “Illegal”, “Legally bound to do”.—The word “illegal” is applicable to everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action; and a person is said to be “legally bound to do” whatever it is illegal in him to omit. • an agreement to commit breach of contract through withdrawal of labour as an instrument of economic coercion in an industrial dispute, is a criminal conspiracy.
Jay Engineering Works Ltd. v. State • while interpreting the provisions ofsection 17 of the Trade Unions Act, 1926 observed: [N]o protection is available to the members of a trade union for any agreement to commit an offence.... When a group of workers, large or small, combined to do an act for the purpose of one common aim or object it must be held that there is an agreement among the workers to do the act and if the act committed is an offence, it must similarly be held that there is an agreement to commit an offence.
Registrar of Trade Union Mysore V. Mariswamy • Even if its just an employer, it can be considered as members
Protected Worker • No employer shall, during the pendency of any proceeding in respect of an industrial dispute, take any action against any protected worker concerned in such dispute— • (a) by altering, to the prejudice of such protected worker, the conditions of service applicable to him immediately before the commencement of such proceeding; or • (b) by discharging or punishing, whether by dismissal or otherwise, such protected worker, save with the express permission in writing of the authority before which the proceeding is pending
Scope for Misuse of the Provision • Many Trade Union leaders, who also have legal experience, often tend to leverage law to make sure that protection is extended to some of their members: • 1. Get the status of 'Protected Workmen' for their office-bearers; • 2. Insist on getting or continuing the status of 'Protected Workmen' to those who are facing serious allegations of misconduct and whose services would otherwise be terminated. • 3. Launch an Industrial Dispute on some pretext or other and keep the dispute endlessly dragged on, or create another back-to-back dispute, so that it would become 'difficult' for the management to deal even with extreme acts of misconduct committed by such 'Protected Workmen'.
LEVEL OF PROTECTION • The protection under this section is limited to restraining the employer from changing the service conditions of such workmen or dismissing them from service, etc., during the pendency of a conciliation or arbitration proceedings. • No such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.
REASON • Supreme Court in the case of Air India Corporation vs. V A. Rebellow, (1972). Court observed that, broadly speaking, Sections 33 and 33A were meant to protect the workmen concerned in an industrial dispute against victimisation by the employer on account of raising or continuing such pending dispute and to ensure that those pending proceedings are /nought to expeditious termination in a peace-ful atmosphere undisturbed by subsequent cause tending to exacerbate the already strained relationship between the workman and the employer.
• In the context of protected workmen, it is to be noted that if a misconduct has been alleged against the 'protected workmen', management is free to initiate disciplinary proceedings. There is no bar in continuing enquiry proceedings against the 'protected workmen' even dur-ing the period of pendency of an Industrial Dispute.
RECOGNITION AS PROTECTED WORKER • Ramachandran Nair and K. Surendra Mohan, delivering their judgment on an appeal filed by FILL Lifecare Ltd., held in W.A 1171 of 2010, 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 work-men 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'.
Draft Rules Selection of Protected Worker • 37. Protected workers under sub-section (3) and (4) of section 90.— (1) Every registered Trade Union connected with an industrial establishment, to which the Code applies, shall communicate to the employer before the 30th April of every year, the names and addresses of such of the officers of the Union who are employed in that establishment and who, in the opinion of the Union should be recognised as ―protected workers. Any change in the incumbency of any such officer shall be communicated to the employer by the union within fifteen days of such change.
• (2) The employer shall, subject to sub-section (3) and sub-section (4) of section 90, recognise such workers to be ―protected workers‖ for the purposes of section 90 and communicate to the Union, in writing, within fifteen days of the receipt of the names and addresses under sub-rule (1), the list of workers recognised as protected workers for the period of twelve months from the date of such communication. • (3) Where the total number of names received by the employer under sub-rule (1) exceeds the maximum number of protected workers, admissible for the industrial establishment, under sub-section (4) of section (90), the employer shall recognise as protected workers only such maximum number of workers: Provided that where there is more than one registered Trade Union in the industrial establishment, the maximum number shall be so distributed by the employer among the Unions that the numbers of recognised protected workers in individual Unions bear practicably by the same proportion to one another as the membership figures of the Unions.
Section 18 Agreement in restraint of trade. • Notwithstanding anything contained in any other law for the time being in force, an agreement between the members of a registered Trade Union shall not be void or voidable merely by reason of the fact that any of the objects of the agreement are in restraint of trade: • Provided that nothing in this section shall enable any civil court to entertain any legal proceedings instituted for the purpose of enforcing or recovering damages for the breach of any agreement concerning the conditions on which any members of a Trade Union shall or shall not sell their goods, transact business, work, employ or be employed
Non-applicability of Acts 86 Societies Registration Act, 1860 Co-operative Societies Act, 1912 Multi State Co-operative Societies Act, 2002 Companies Act, 2013 Any other corresponding law relating to co-operative societies for the time being in force in any State Following Acts shall not be applicable to a registered TU Registration of TU under the Acts shall be void
• Toyota Kirloskar Motors (TKM) in its Bidadi plant had 3 Unions, TMW Union which had 35% of the workers of the establishment, TKS which has 25%, TWU which has 30%. Whom to invite for Wage Settlement • Single Militant TU with 70% membership, should it be invited. • Multiple TU with less than 20% should it be invited
Recognition History • Only in Maharashtra, Kerala and WB • Was not there in TU Act • Code of Discipline-3 –Secret Ballot Verification by CLC • There used to be councils, management voluntarily did that
Negotiating Union / Council 89 Term: 3-5 years from the date of recognition / constitution (1) There shall be a negotiating union or a negotiating council, as the case may be, in an industrial establishment having registered Trade Union for negotiating with the employer of the industrial establishment, on such matters as may be prescribed. • > 1 TU registered under this Code: TU having 50% / more workers on the muster roll shall be recognized as the sole negotiating union of workers • > 1 TU- If no TU has 50% / more workers, employer shall constitute a negotiating council consisting of representatives of TUs which have the support of not less than 20% of total workers on the muster roll of the industrial establishment and such representation shall be 1 representative for each 20% and for the remainder after calculating the membership on each 20% • Industrial establishment having 1 TU: Employer must recognise such TU as the sole negotiating union of workers Facilities shall be provided to the negotiating union / council
• (5) Where any negotiation on the matters referred to in sub-section (1) is held between an employer and a negotiating council constituted under sub-section (4), consequent upon such negotiation, any agreement is said to be reached, if it is agreed by the majority of the representatives of the Trade Unions in such negotiating council.
• 4. Criteria for recognizing a single registered Trade Union of workers as sole negotiating Union of workers under sub-section (2) of section 14.- Where there is only one registered Trade Union operating in an industrial establishment having its members not less than thirty percent of the total workers employed in the industrial establishment, then, the employer of such industrial establishment shall recognize such Trade Union as sole negotiating union of the workers. Industrial Relations (Central) Recognition of Negotiating Union or Negotiating Council and Adjudication of Disputes of Trade Unions Rules, 2021.
What Should be Provided. –Sec 9 Draft Rule • (i)notice board for the purpose of displaying the information relating to activities of negotiating union or negotiating council, as the case may be; • (ii) venue and necessary facilities for holding discussions by the negotiating union or negotiating council, as the case may be, as per schedule and agenda to be settled between employer of the industrial establishment and the negotiating union or constituents of negotiating council, as the case may be; (iii) venue and necessary facilities for holding discussions amongst the members of the negotiating union or constituents of negotiating council, as the case may be; iv) facility for entrance of the office bearers of the negotiating union or constituents of negotiating council, as the case may be, in the industrial establishment for the purposes of ascertaining the matters which are relating to working conditions of the workers; (
• v) employer to deduct subscription of the members of the Trade Unions on the basis of the written consent of the worker; • (vi) treating on duty of the employed office bearers of the negotiating union or constituents of negotiating council, as the case may be, when the office bearers are holding meetings or discussing with the employer as per agreed schedule between employer and such office bearers; and • (vii) employer of an industrial establishment, having three hundred or more workers, shall provide suitable office accommodation with necessary facilities to the negotiating union or negotiating council, as the case may be.
Matters of Negotiation • 1) The matters pertaining to workers which the negotiating union or negotiating council shall negotiate with the employer of the industrial establishment under sub-section (1) of section 14 are specified, as below, namely :- • (i) classification of grades and categories of workers; • (ii) order passed by an employer under the standing orders applicable in the industrial establishment; • (iii) wages of the workers including their wage period, dearness allowance, bonus, increment, customary concession or privileges, compensatory and other allowances; • (iv) hours of work of the workers their rest days, number of working days in a week, rest intervals, working of shifts; • (v) leave with wages and holidays; • (vi) promotion and transfer policy and disciplinary procedures; • (vii) quarter allotment policy for workers; • (viii) safety, health and working conditions related standards; • (ix) such other matter pertaining to conditions of service, terms of employment which are not covered in the foregoing clauses; and • (x) any other matter which is agreed between employer of the industrial establishment and negotiating union or council.
8 Funds of TU: General funds of TU shall not be spent on any objects other than the ones as may be prescribed • Separate Fund(Political Fund): A registered TU may constitute a separate fund to promote civil and political interests of members •  No compulsion forcontribution •  Non-contributed members shall not be excluded from any benefits of TU / placed in any respect under any disability or disadvantage as compared with other members of TU (except in relation to control / management of the fund) •  Contribution – shall not be made as a condition for admission
9 Books of accounts and list of members: Is open for inspection to an office- bearer / member of TU at such times as provided in their rules Right of minor to be a member of TU: On attaining 14 years of age and employed in a non-hazardous industry subject to any rules of the TU, enjoy all rights of a member Cont d.
Contd. 11 Right to change name / amalgamate: Change of name- With the consent of not less than 2/3 of total members Amalgamation- With any 2 or more registered TUs as prescribed and it shall not prejudice any right of TU / their creditors Notice in writing signed by the secretary and 7 members for change of name and for amalgamation secretary and 7 members of each and every TU, shall be sent to the Registrar and if the head office of the amalgamated TU is situated in a different State, to that Registrar in such manner as may be prescribed Proposed name identical / nearly resembles an existing TU – Registrar can refuse to register the change of name Amalgamated TU head office in different state: Registrar can register the same on being satisfied and amalgamation shall have effect from that date Change in the name shall not affect TU’s rights / obligations / render defective any legal proceeding by / against it and any legal proceeding continued / commenced it in its former name can be continued / commenced in its new name
Cont d. 10 Disqualification of office bearer:  < 18 years of age  Convicted an offence involving moral turpitude and sentenced to imprisonment – 5 years not elapsed  Disqualified by Tribunal  Member of the Council of Ministers / person holding an office of profit in the Union / State Dispute between TU / Member / workers / TU which is a Federation of TU and office bearer authorised by TU: Application to Tribunal (having jurisdiction) and no civil court can entertain the same Office-bearers in Unorganised sector (as specified by the Government): Not less than ½ of total number of officer bearers shall be persons actually engaged / employed in an establishment / industry with which TU is connected For other sectors: All office-bearers of a registered TU, except not more than 1/3 of total number of officer bearers or 5% whichever is less
Outside Membership • 1) Not less than one-half of the total number of the office-bearers of every registered Trade Union in an unorganised sector shall be persons actually engaged or employed in an establishment or industry with which the Trade Union is connected: Provided that the appropriate Government may, by special or general order, declare that the provisions of this section shall not apply to any Trade Union or class of Trade Unions specified in the order. • Explanation.—For the purposes of this sub-section, "unorganised sector" means any sector which the appropriate Government may, by notification, specify. • (2) Save as otherwise provided in sub-section (1), all office-bearers of a registered Trade Union, except not more than one-third of the total number of the office-bearers or five, whichever is less, shall be persons actually engaged or employed in the establishment or industry with which the Trade Union is connected. • Explanation.—For the purposes of this sub-section, an employee who has retired or has been retrenched shall not be construed as outsider for the purpose of holding an office in a Trade Union.
Cont d. 12 Dissolution of TU: Notice of dissolution signed by 7 members and secretary be sent to Registrar within 14 days of dissolution for registration, and the same have effect only on such registration And the funds of TU be distributed by Registrar amongst the members in such manner as may be prescribed (if rules of TU do not provide for the same) Annual returns: Statement of receipts and expenditure audited (during the year ending on 31 /12), statement of assets and liabilities audited (as on 31/12), general statement showing changes of office-bearers and rules (latest) be sent to Registrar In case of any change in rules of TU, it shall be sent to Registrar within 15 days of alteration Registrar / any officer authorised by him by general or special order, may inspect the documents relating to TU at the registered office OR may require production of documents at such place within 15 km from the registered office of TU Recognition of TU / federation of TU: CG / SG may recognize it at Central level / State level respectively and if any dispute arises in relation to such recognition, it shall be decided by such authority as prescribed by the respective Governments
Chapter V-Notice of Change 1 0 1
1. Adarsh is an asst engg he has been transferred from Gurgaon to Noida, what are the conditions to be complied 2. Shift timings of the employees needs to be changed
Exemption: Appropriate Government may exempt by notification any class of industrial establishment / workers • Settlement / award • Emergency situations for change in shift • Order of Appropriate Government No requirement of notice Giving a notice of such change to the worker or Section 40 Any change in the conditions of service of a worker as specified in 3rd Schedule shall be made by employer only after- Within 21 days of giving such notice 1 0 3
III Schedule 8 Wages, its period and mode of payment Contribution by Employer to PF / pension / for benefit of workers Compensatory and other allowances Matters for which notice to be given Working hours and rest intervals Leave with wages and holidays Working shift except standing orders Grade classification Withdrawal of any customary concession / privilege / change in usage Introduction / alteration of rules except standing orders Rationalisation, standardizatio n / improvement of plant technique which is likely to lead to retrenchment of workers Increase / reduction (other than casual) in the no. of persons employed / to be employed, not occasioned by circumstances over which the employer has no control
• The Courts over the years have passed numerous decisions on the question of occasions on which a Notice of Change may be issued and when it need not be issued. • For E.g. – In T Rajamanickam V/s Binny Limited, Madras (2009) The Hon’ble Madras High Court held that reduction in the emoluments of a workman, which was not envisaged in the settlement between Management and the workers and was done without notice was against Section 9A. • Sudden withdrawal of overtime benefits without notice, • change in overtime allowance rates, • withdrawal or reduction in project allowance, • change in commencement of working hours, increasing hours of work, • change in weekly holiday, • withdrawal or reduction of medical benefits, • reducing retirement age of workers, • discontinuance of bus facility, • retrenchment of workers due to installation of new machinery, without notice etc have all been seen by the Hon’ble High Courts and Hon’ble Supreme Court to be violative of Section 9A of the Act.
• A notice under 40 should be sent individually to the worker ₓ Not to union or display on the notice board. • One of the pre-conditions under 40 is that the change should adversely affect the worker.
Normal case Geographical Transfer Sh. Mohd. Azim vs. Sarv Up Gramin Bank (2015) LLR 464 Transfer No provision in contract of service or appointment letter notice becomes imperative Chennai Port and Dock Workers Union v. Union of India Change of working Hours Customary Pooja
Question • Mrityunjay Sahay is the Executive (HR), Northern Region, for an FMCG company with its corporate office at Mumbai. The total employee strength of the company is 5,500, spread all over India. The Northern Region has 1,200 employees spread over 6 Depot Offices located in Patiala, Gurgaon, Jaipur, Gwalior, Delhi and Kanpur. Each Depot has around 150 employees. The Depots mostly comprise warehouse operations, i.e., receipt, storage and dispatch of products. The Depots operate in two overlapping shifts. The Regional Operations Manager wants to introduce three shifts working at the Depots without any addition of manpower. Each Depot has a recognized union. Mrityunjay finds it to be a daunting task. He has approached the unions, but has been warned by them not to press for change. Today, in his morning correspondence, he has received a letter from the Patiala union, announcing their intention to go on a strike if the management went ahead with the proposal to make changes in shift timings.
• Can the management introduce the proposed changes? • Will the management have to deal with each Depot separately? Or can it deal with it as a single problem? • what should be the role of the conciliation officer? Is he bound to intervene? • What role do you see for the “settlement machinery” in resolving the dispute?
Chapter VII- Mechanism for resolution of Industrial Dispute 1 1 0
Dispute Resolution
Essence of the Chapter 1 2 Conciliation officer & Tribunal • Appropriate Govt. can appoint conciliation officers and constitute Industrial tribunal / national IndustrialTribunal with Judicial and Administrative members Finality of constitutio n • Terms of appointment, salaries, allowances and such other matters will be decided by the appropriate Govt. and the appointment of members made by the appropriate Govt. shall be final Decision of Tribunal • Decision of Tribunal shall be by consensus of the members. If the members have difference opinion in the decision of Tribunal, they can make reference of the same to the appropriate Govt. for final decision Powers of civil court • Conciliation officer and Tribunals shall have the same powers of Civil Court as specified in CPC, 1908 and inquiry / investigations by the Tribunal shall deemed to be the judicial proceedings under IPC, 1860
Distingui sh 1 3 Arbitration arbitrator give s • Is a process in which the conflicting parties agree to refer their dispute to a neutral third party known as ‘Arbitrator’. • In arbitration the his judgment on a dispute Conciliatio n • Means reconciliation of differences between persons. It is a process by which representatives of workers and employers are brought together before a third party known as “Conciliator” to arrive an agreement by mutua l understanding • Conciliator makes the Adjudicatio n with party without consent of • Referring the dispute to an independent third or the the disputing parties
Conciliation • 43. • (1) The appropriate Government may, by notification, appoint such number of persons, as it thinks fit to be conciliation officers, charged with the duty of mediating in and promoting the settlement of industrial disputes. • (2) A conciliation officer may be appointed for a specified area or for specified industries in a specified area or for one or more specified industries and either permanently or for a limited period
Conciliation
Conciliation Process. Conciliation Officer Settlement Within 45 days , 14 days if strike notice is received Failure Report/Within 45 days , 14 days if strke notice is reciveved
• Where any industrial dispute exists or is apprehended or a notice under section 62 has been given, the conciliation officer shall, hold conciliation proceedings in such manner as may be prescribed • Provided that the conciliation officer shall not hold any such proceedings relating to the industrial dispute after two years from the date on which such industrial dispute arose.
• (2) The conciliation officer shall, for the purpose of bringing about a settlement of the dispute, without delay, investigate the dispute and all matters affecting the merits and right settlement thereof and may do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute. • (3) If a settlement of the dispute or of any of the matters in dispute is arrived at in the course of the conciliation proceedings, the conciliation officer shall send a report thereof to the appropriate Government or an officer authorised in this behalf by the appropriate Government together with a memorandum of the settlement signed by the parties to the dispute.
• (4) If no such settlement is arrived at, the conciliation officer shall, as soon as practicable, after the close of the investigation, send to the concerned parties and to the appropriate Government a full report, in the electronic or other form as may be prescribed, setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof, together with a full statement of such facts and circumstances, and the reasons on account of which, in his opinion, a settlement could not be arrived at.
• (5) Notwithstanding anything contained in sub-section (4), the conciliation officer shall send the report to the concerned parties and the appropriate Government within forty-five days of the commencement of the conciliation proceedings or within such shorter period as may be fixed by the appropriate Government: Provided that where a conciliation officer receives notice under section 62, he shall send the report to the concerned parties and to the appropriate Government within fourteen days of the commencement of the conciliation proceedings: Provided further that subject to the approval of the conciliation officer, the time may be extended by such period as may be agreed upon in writing by the concerned parties to the dispute.
• (6) Any concerned party may make application in the prescribed form to the Tribunal in the matters not settled by the conciliation officer under this section within ninety days from the date on which the report under sub-section (4) is received to the concerned party and the Tribunal shall decide such application in the prescribed manner.
Industrial Tribunal • 44. (1) The appropriate Government may, by notification, constitute one or more Industrial Tribunals for the adjudication of industrial disputes and for performing such other functions as may be assigned to them under this Code and the Tribunal so constituted by the Central Government shall also exercise the jurisdiction, powers and authority conferred on the Tribunal, as defined in clause (m) of section 2 of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 by or under that Act. • (2) Every Industrial Tribunal shall consist of two members to be appointed by the appropriate Government out of whom one shall be a Judicial Member and the other, an Administrative Member. • (3) A bench of the Tribunal shall consist of a Judicial Member and an Administrative Member or single Judicial Member or single Administrative Member.
• (7) The procedure of the Tribunal (including distribution of cases in the benches of the Tribunal) shall be such as may be prescribed, provided a bench consisting of a Judicial Member and an Administrative Member shall entertain and decide the cases only relating to— • (a) the application and interpretation of standing order; • (b) discharge or dismissal of workmen including reinstatement of, or grant of relief to, worker dismissed; • (c) illegality or otherwise of a strike or lockout; • (d) retrenchment of worker and closure of establishment; and • (e) Trade Union disputes, and the remaining cases shall be entertained and decided by the bench of the Tribunal consisting either a Judicial Member or an Administrative Member of the Tribunal.
• (8) The Judicial Member shall preside over the Tribunal where the bench of the Tribunal consists of one Judicial Member and one Administrative Member
National tribunal • 46. (1) The Central Government may, by notification, constitute one or more National Industrial Tribunals for the adjudication of industrial disputes which, in the opinion of the Central Government, involve questions of national importance or are of such a nature that industrial establishments situated in more than one State are likely to be interested in, or affected by, such disputes. • (2) A National Industrial Tribunal shall consist of two members to be appointed by the Central Government out of whom one shall be a Judicial Member and the other, an Administrative Member
WAGES During Proceeding • Sec 56 Where in any case, a Tribunal or a National Industrial Tribunal by its award directs reinstatement of any worker and the employer prefers any proceedings against such award in a High Court or the Supreme Court, the employer shall be liable to pay such worker, during the period of pendency of such proceedings in the High Court or the Supreme Court, full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule if the worker had not been employed in any establishment during such period and an affidavit by such worker had been filed to that effect in such Court: Provided that where it is proved to the satisfaction of the High Court or the Supreme Court that such worker had been employed and had been receiving adequate remuneration during any such period or part thereof, the Court shall order that no wages shall be payable under this section for such period or part, as the case may be.
Chapter VI - Voluntary reference of disputes to Arbitration 1 2 7
Employer & worker can refer the existing industrial dispute / dispute that is apprehended to arbitration by a written agreement If the appropriate Govt. is satisfied that the dispute involves representation of majority of each party, notification may be issued and persons who are not parties to the agreement may be given an opportunity of presenting their cases In case of reference of industrial dispute to arbitration, the appropriate Govt. may also order to prohibit the strike / lock-outs existing on the date of reference in connection with the dispute Representation before the Arbitrator by NU / NC / TU / representative of workers. If the dispute relates to termination of individual worker – concerned worker / his authorised representative Arbitration and Conciliation Act, 1996 shall not apply 1 2 8
Industrial Tribunal • The appropriate Government may, by notification, constitute one or more Industrial Tribunals for the adjudication of industrial disputes and for performing such other functions as may be assigned to them under this Code and the Tribunal so constituted by the Central Government shall also exercise the jurisdiction, powers and authority conferred on the Tribunal, as defined in clause (m) of section 2 of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 by or under that Act. • (2) Every Industrial Tribunal shall consist of two members to be appointed by the appropriate Government out of whom one shall be a Judicial Member and the other, an Administrative Member. • (3) A bench of the Tribunal shall consist of a Judicial Member and an Administrative Member or single Judicial Member or single Administrative Member.
• Provided that a person who has held a post below the rank of Joint Secretary to the Government of India or an equivalent rank in the Central Government or a State Government, shall not be eligible to be appointed as an Administrative Member of the Tribunal.
• The procedure of the Tribunal (including distribution of cases in the benches of the Tribunal) shall be such as may be prescribed, provided a bench consisting of a Judicial Member and an Administrative Member shall entertain and decide the cases only relating to— • (a) the application and interpretation of standing order; • (b) discharge or dismissal of workmen including reinstatement of, or grant of relief to, workmen dismissed; • (c) illegality or otherwise of a strike or lockout; • (d) retrenchment of workmen and closure of establishment; and • (e) Trade Union disputes, and the remaining cases shall be entertained and decided by the bench of the Tribunal consisting either a Judicial Member or an Administrative Member of the Tribunal
• The Judicial Member shall preside over the Tribunal where the bench of the Tribunal consists of one Judicial Member and one Administrative Member
settlement
Definition Section 2(zi) • "settlement" means a settlement arrived at in the course of conciliation proceeding and includes a written agreement between the employer and worker arrived at otherwise than in the course of conciliation proceeding where such agreement has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to an officer authorised in this behalf by the appropriate Government and to the conciliation officer;
WHO CAN ENTER Employer worker Employer Trade Union Employer Individual Worker Thermax Case: Negotiations Broke down with TU, directly settled with workers.
TYPES OF SETTLEMENT () • In the course of conciliation proceedings Voluntary Agreements Consent Awards
B i n d i n g n e s s Between Employer and Worker other than during conciliation Parties to the Settlement Consent Award Parties to the Settlement Between Employer and Worker during conciliation On all worker
R E G I S T R A T I O N The Conciliation Officer shall file all settlements effected under this Act in respect of disputes in the area within his jurisdiction in a register maintained for the purpose as in Form O. The Conciliation Officer can reject registration of a settlement made between the management and the workmen whereby the workmen have been shown to have signed for meagre sum as consideration( Not in conciliation)
In course of conciliation • Mere signing of the settlement before the conciliation officer will not make it one as settlement made in the course of conciliation proceeding • The conciliation officer would have to discharge duties according to sec 53 (3) of the Act.
Period of settlement • 6 Months-if time period not prescribed • continue to be binding on the parties after the expiry of the period aforesaid, until the expiry of sixty days from the date on which a notice in writing of an intention to terminate the settlement is given by one of the parties to the other party or parties to the settlemenThe settlements would still continue till new one is brought. • LIC V. D.J. Bahadur • Even if the settlement is terminated there cannot be a vacuum and the settlement will be in operation
As per Sec 54(2): The conciliation officer shall, for the purpose of bringing about a settlement of the dispute, without delay, investigate the dispute and all matters affecting the merits and the right settlement thereof and may do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute.. The Supreme Court held that an agreement arrived at between the management and the representative union otherwise than in conciliation proceeding would not supersede an earlier conciliation settlement between the same union and the management.
Strikes and Lockouts
Strike and Article 19 1(c) • Strike is not a fundamental right • It is a normal legal right guaranteed under the ID Act.
Standing Orders --Misconduct --Strike If there are specific activates in the course of strike provided under Standing Orders as misconduct only a summary enquiry establishing the perpetration is sufficient to impose the punishment for example inciting others to strike in contravention of any law, Gharaeo, Bandh etc.
Different kinds of strike • Sit down • Go slow • Hunger strike • Lighting Strike • Work-to -rule
India Radiators Ltd. Vs. Second Labour Court 1998(3) L.L.N. 411 • "Slowing down" implies the existence of a higher level before slowing down commenced, and falling to the lower level after the slowing down was practiced. The lower level of production was in this case, only by reason of the deliberate action of the workmen in not exerting themselves to the level which they were capable and maintained consistently for a long period of time."
STRIKE Sec 2(ZK) "strike" means a cessation of work by a body of persons employed in any industry acting in combination, or a concerted refusal, or a refusal, under a common understanding, of any number of persons who are or have been so employed to continue to work or to accept employment and includes the concerted casual leave on a given day by fifty per cent. or more workers employed in an industry;;
STRIKE “Espirit de corpse” Strong shared team spirit
Strike - Elements 1. Plurality of workmen 2. Cessation or work or refusal to do work 3. Combined or concerted action.
Proof of concerted effort • Proof of concerted effort is very important. Elements of mass cessation; • Whether there was a concerted refusal • Whether they were acting in combination • Whether there was a refusal under a common understanding
Strike • 62. (1) No person employed in an industrial establishment shall go on strike, in breach of contract— ( • a) without giving to the employer notice of strike, as hereinafter provided, within sixty days before striking; or • (b) within fourteen days of giving such notice; or • (c) before the expiry of the date of strike specified in any such notice; or • (d) during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings; or (
• e) during the pendency of proceedings before a Tribunal or a National Industrial Tribunal and sixty days, after the conclusion of such proceedings; or • (f) during the pendency of arbitration proceedings before an arbitrator and sixty days after the conclusion of such proceedings, where a notification has been issued under sub-section (5) of section 42; or • (g) during any period in which a settlement or award is in operation, in respect of any of the matters covered by the settlement or award.
Particulars Strike Lock-outs Period Temporary Temporary Rationale Workers Employer Situation • Cessation of work • Concerted refusal to continue to work / accept employment • Concerted casual leave by > 50% workers on a particular day • Temporary closing • Suspension of work • Refusal by employer to continue to employ any number of persons employed by him A comparsion 15 3
strike and Employer shall not lock-out any of his workers without giving a notice to the other party / during pendency of proceedings / settlement or award in operation, as specified in the Code Notices given / received by the Employer shall be reported to the appropriate Govt. / authority and to Conciliation officer within 5 days No requirement of notice: When there is a strike / lock-out already in existence, but intimation about the same has to be made to such authority as may be specified by appropriate Govt. on the day of declaration Strike / lock-out shall be illegal, if commenced or declared in contravention of Section 62 or continued in contravention of order made under Section 42 (7) and no person shall spend / apply any money in furtherance or support of illegal strike / lock-out 15 4
Industrial Disputes Act 1947 ID Act Divided into two- 1. Public Utility Services(Sec 22) 2. General (Section 23 Industrial Relations Code Section 62
NOTICE REQUIREMENT . (1) No person employed in an industrial establishment shall go on strike, in breach of contract— (a) without giving to the employer notice of strike, as hereinafter provided, within sixty days before striking; or (b) within fourteen days of giving such notice; or (c) before the expiry of the date of strike specified in any such notice; (d) during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings; or (e) (e) during the pendency of proceedings before a Tribunal or a National Industrial Tribunal and sixty days, after the conclusion of such proceedings; or (f) (f) during the pendency of arbitration proceedings before an arbitrator and sixty days after the conclusion of such proceedings, where a notification has been issued under sub-section (5) of section 42; or (g) during any period in which a settlement or award is in operation, in respect of any of the matters covered by the settlement or award.
Section 22 - Notice • The Strike Notice stated that the strike shall commence on 23/12/2017 at 3:00 p.m. sharp. • The Strike commenced at 9:00 a.m. on the given day. • Is the strike illegal ?
STRIKE • Rule 23. Number of persons by whom the notice of strike shall be given, the person or persons to whom such notice shall be given and the manner of giving such notice under sub-section (4) of section 62. - The notice of strike referred to in sub- section (1) of section 62 shall be given to the employer of an industrial establishment in Form-VII which shall be duly signed by the Secretary and five elected representatives of the registered Trade Union relating to such industrial establishment endorsing the copy thereof electronically or otherwise to the concerned conciliation officer, Chief Labour Commissioner (Central) and the Central Government.
STRIKE • Report to conciliation officer- immediate –Form VI • Good conduct bond-Unfair Labour Practise • No work No Pay but in case of legal and justified strike discretion of court to give wages.
• (3) The notice of strike or lock-out under this section shall not be necessary where there is already in existence a strike or, as the case may be, lock-out, but the employer shall send intimation of such lock-out or strike on the day on which it is declared, to such authority as may be specified by the appropriate Government either generally or for a particular area or for a particular class of services.
Strike – against the Standing Orders • . • STRIKE AGAINST STANDING ORDER When workers strike without notice, against the standing orders the result would be 1.Each workmen is guilty of misconduct 2. Can be summarily dismissed 3. It cannot be called a justified strike Thus in case of a lighting strike you can take action against the workers for misconduct
SO • In case where the SO does not make any provision for the misconduct related to strike, in such cases charge-sheet needs to be issued and inquiry needs to be conducted.
Standing Orders --Misconduct --Strike If there are specific activates in the course of strike provided under Standing Orders as misconduct only a summary enquiry establishing the perpetration is sufficient to impose the punishment for example inciting others to strike in contravention of any law, Gharaeo, Bandh etc.
Illegal strikes • The breach of statutory provisions make a strike illegal. • So it the strike is in violation of section 62 we can say that the strike is illegal. • No matter how orderly the strike may be it still will be illegal if it is in violation of the statutory. • An illegal strike can invite disciplinary proceedings, as it is an act of misconduct. ILLEGAL STRIKE
Sec. 85(13)- Penalty for illegal strike. • (13) Any worker who commences, continues or otherwise acts in furtherance of a strike which is illegal under this Code, shall be punishable with fine which shall not be less than one thousand rupees, but which may extend up to ten thousand rupees or with imprisonment for a term which may extend to one month, or with both. Sec. 85(13)- Penalty for illegal strike. Sec. 85(13)- Penalty for illegal strike. Sec. 85(13)- Penalty for illegal strike.
STRIKE • The law has explained what is an illegal strike but it has not explained what is an unjustified strike. • There may be cases where the demand is of such an urgent and serious nature that it would not be reasonable to expect the workmen to wait till until the reference has been made to the government. Here strike even before such a request is made is well justified. • Swadeshi Industries Ltd. v. Workmen • In this case the court held that even if the strike is illegal, it can still be justifiable. ILLEGAL STRIKE V. JUSTIFIABLE STRIKE
STRIKE Justifiability / unjustifiability Payment/non- payment of wages Legality /illegality Punishment/ Dismissal
Unjustified strikes • To see if a strike is justified or not, we have to look into; 1. service conditions of the workmen 2. The nature of their demands 3. The cause which led to the strike 4. The urgency of the cause or the demand 5. The reasons for not resorting on the dispute resolution mechanism. • This kind of enquiry should appropriately be made by the industrial adjudicator. • Unjustified strikes
Illegal vis-à-vis unjustified strike • Taking part in an illegal strike is a misconduct. • Every person who participates in an illegal strike should be made subject to departmental enquiry. • An illegal strike should not be characterised as justifiable. • Whether a strike was legal or not is a question of law but whether it is justifiable or not is a question of fact which needs to be proved through evidence.
Wages during strike • The usual wage rule for the period of strike is; “NO WORK NO PAY” Bank of India v. T S Kelawala, (1990) 2 LLJ 39 (SC) The court further explained that; “whoever voluntarily refrains from doing work when it is offered to him, is not entitled for a payment for work he has not done.”
Wage Def 2(y) " wages" means all remuneration capable of being expressed in terms of money, which would, if the terms of employment, expressed or implied, were fulfilled, be payable to a workman in respect of his employment or of work done in such employment. In Algemene Bank, Nederland v Central Govt. Labour Court the Calcutta High Court held that “… in express terms, mentions as remuneration, that which would have been payable, if the terms of the employment were fulfilled and one of the main terms of employment, undoubtedly, is that the employee would work for a specified period of work during the working hours’.
Exercise • Referred Not-Referred Referred Not-Referred • CAN STRIKE CONTINUE? Increase in wages Entertainment allowance Payment of Bonus Desserts in the canteen Menu STRIKE
• Consider two scenarios 1. Many frivolous demands could be made by the Workmen 2. Appropriate government could be biased and not refer genuine demands leading to industrial unrest.
• Workmen of Edward Keventars Pvt Ltd v. Delli Administration • Delhi HC –Strikes only regarding disputes referred can be prohibited • Keventars Karmachari Sangh v. Lieutenant Governor Delhi • Division Bench Delhi HC- Even if one of the demands have been referred the strike will be in connection with such dispute and can be prohibited • In Delli Administration v. Workmen of Edward Keventars Pvt Ltd- Supreme Court of India observed that Strikes only regarding disputes referred can be prohibited
Lockout 17 6
NOTICE 2) No employer of an industrial establishment shall lock-out any of his workers— (a) without giving them notice of lock-out as hereinafter provided, within sixty days before locking-out; or (b) within fourteen days of giving such notice; or (c) before the expiry of the date of lock-out specified in any such notice as aforesaid; or (d) during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings; or (e) (e) during the pendency of proceedings before a Tribunal or a National Industrial Tribunal and sixty days, after the conclusion of such proceedings; or (f) (f) during the pendency of arbitration proceedings before an arbitrator and sixty days after the conclusion of such proceedings, where a notification has been issued under sub-section (5) of section 42; or (g) during any period in which a settlement or award is in operation, in respect of
Lockout • Facts • TISCO which employs 80,000 employees has a scaffolding unit with 20 workers. It decides to lock out this unit as the workmen have raised an ID for higher wages. Is it possible for TISCO to do the same.
Ferozdeen vs. State of Bengal 1960 I LLJ 244 (249) SC • SC has emphasized that these words have to given restricted meaning. The word 'any' connotes unlimited but with the condition that it has to be in respect of temporary to other of business place or suspension of work on his premises. Remember that lock out exists only when it is in terms of complete suspension of business activity in a particular business premises.
Justified Lockout 1. It was not accentuated due to an unfair labour practice 2. It was necessitated due to the conduct of the workmen - As a result of persistent go slow 3. It was adopted due to security measures 4. It was due to unreasonable strike • Lock out should not be declared in haste, as reprisal or as a victimisation tool. • A lockout can be declared as a security measure to protect the personnel and property in case the strike goes violent and no willingness is shown on the part of the workmen to negotiate. JUSTIFIED LOCKOUT
Unjustified Lockout 1. For coercing the workmen to accept lower wages 2. Managements refusal to allow the workmen to enter the factory. 3. On account of unfair labour practice
Wages • In case where the lockout is illegal the full wages during the given period needs to be paid. • Even in cases where the lockout are legal the remedy of wages has been given where the reasons are unjustifiable . • Bharat Barrel and Drum Mfg. Co. V. their Workmen • (1952) 2 LLJ 717
Lockout • What happens when unjustified strikes are followed by unjustified lockouts. “apportionment of blame” North Dooars Tea Company v. Workmen of Dem Dima Tea (1964) 1 LLJ 436. “In matters relating to apportionment of blame between the management and the workers there can be no inflexible formula or rigid yardstick to determine the percentage of apportionment, and the extent of apportionment of blame would depend on the facts and circumstances of each case”.
On receipt of Strike Notice EXAMINE CAREFULLY Whether Strike is unjustified Whether Strike is illegal Whether it is a misconduct under the standing orders or service rules Whether Strike is violation of Section 62 of IR code.
Notice of such violation should be posted on the notice board of the company informing the workers of the illegality/ unjustifiability of the strike and its consequence and they be advised to desist from the strike. A copy to be send to the Union and the individual workers home address N O T I C E S A copy to be send to the Labour Authorities and request their good offices to avert strike
P a y & E S I Generally strike starts after the pay day, if however the pay day falls during strike period, wages need not be disbursed in the pretext of strike and labour authorities should be informed that due to strike payment of wages is not possible Some times workers approach the ESI authorities with ulterior motives and ESI authorities on account of superficial or negligent investigations issue ESI slips showing that they are ailing, they succeed in getting sick benefits ie. Half wages from the ESI authorities during the strike period without any difficulty and also succeed in avoiding any disciplinary action by the employer-So ESI corpn be requested to keep a close watch on such workers.
I n j u n c t i o n & L o c k o u t As far as possible, an injunction order may be obtained from a civil court in order to avoid gathering of the workers near the factory gate under Order 39 Rule 1 of the Civil Procedure Code- Pls be aware Sec 18 of the TU act. In case there is apprehension of the strike being continued for a considerable long time then the desirability of declaring a lockout and inform the workers, union and labour authorities through registered notices in order to avoid payment of wages
P O L I C E P R O T E C T I O N Interim order Section 144 CrPC for assembly in gate Interim order Section 144 CrPC for assembly in gate Writ of Mandamus under Article 226 of the Constitution
Lay-off, Retrenchment & Closure 19 0
Definition • Failure / refusal / inability of the employer to provide work due to shortage of raw materials / break down of machinery / natural calamity etc. • Except: Workers who are retrenched Lay- off • Termination by the employer of the service of worker for any reason • Except: Punishment inflicted by way of disciplinary action Retrenchme nt • Permanent closing down of place of employment / part thereof Closur e 19 1
Retrenchment
Retrenchment • After world war II new and improved machinery started to flow into the country which resulted in retrenchment of surplus labour.
Retrenchment • “Reduction of surplus labour with a view to cut down expenses and to effect economy of operations” • It can be referred to as • - technological unemployment • - transitional unemployment • The common feature has been the involuntary unemployment of surplus labour. •
Retrenchment • Se 2 (zh) "retrenchment means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include– (a) voluntary retirement of the workman; or • (b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or • (bb)termination of the service of the workman as a result of the non- renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or • (c) termination of the service of a workman on the ground of
Retrenchment includes 1. termination of the service of a workman 2. by the employer 3. for any reason whatsoever
Retrenchment excludes 1. voluntary retirement 2. Termination as a punishment inflicted by way of disciplinary action 3. retirement on reaching the age of superannuation 4. termination of the service due to non-renewal of the contract of employment 5. termination due to continued ill-health
Continued ill-health • Intermittent ill health cannot be termed as Continued ill-health.
• Abandonment can amount to retrenchment but voluntary resignation not. • Employed in Projects/ not included
Requirement of existing running factory • The entire scheme of the Act assumes that there is an existing and running industry.
Kusunda Area of M/s BCCL v. The Presiding Officer, Central Govt. • Termination of the services of a workman because he has abandoned the job will amount to retrenchment. • But in case he gives his resignation voluntarily, it will not be retrenchment.
probationer • 3 types 1. maximum period of probation mentioned in service rules or letter of appointment- after expiry of the period-if employed-deemed employee-retrenchment • 2. maximum period of probation not mentioned in service rules or letter of appointment- No retrenchment comp. • 3 . maximum period of probation mentioned in service rules or letter of appointment- but a confirmation to be provided for appointment then not deemed employer- No retrenchment comp
• Retrenchment cannot be applied in cases where there is complete closure of the establishment and where the services of all the workmen has been terminated.
State Bank of India v. N Sundaramoney • AIR 1976 SC 1111
70. ------- Conditions precedent to retrenchment • Fixed term contract avoided continued practice unfair labour practice • 70. Conditions precedent to retrenchment of workmen.- No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until— • (a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice: • (b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service] or any part thereof in excess of six months; • and (c) notice in the prescribed manner is served on the appropriate Government
Section 70 • One month notice or wages in lieu of notice • Even where there is refusal to accept the retrenchment compensation and wages in –lieu of notice , it will not invalidate the tender of payment.
• Notice should be personally provided • Any mode of payment can be resorted to including asking to collect dues from office • Retrenchment will be illegal when no seniority list has been prepared
Nar Singh Pal v. UOI 2000 (3) SCC 588. • Encashment of check by a workman containing amount of retrenchment compensation will not be a waiver to challenge the validity of retrenchment.
Section 71 • Rule of Last In First Out = LIFO • Where there is a departure from this rule, the reasons should be noted.
Section 72 • Re-employment of retrenched workmen • Re-employment of retrenched workmen.- Where any workmen are retrenched, and the employer proposes to take into his employment any persons, he shall, in such manner as may be prescribed, give an opportunity to the retrenched workmen to offer themselves for re-employment
Section 70 • One month notice or wages in lieu of notice • Even where there is refusal to accept the retrenchment compensation and wages in –lieu of notice , it will not invaildate the tender of payment.
• Notice should be personally provided • Any mode of payment can be resorted to including asking to collect dues from office • Retrenchment will be illegal when no seniority list has been prepared • Abandonment will amount to retrenchment but voluntary resignation not. • Employed in Projects/ not included
• Last come first go – not an absolute rule, reasons should be provided • Retrenchment justified when dept. is shut down • Closure of unit illegal if he can be transferred to other units
Burden of proof • The Burden of proof is on the workmen to show that he has worked for a continuous period of 240 days.
• Cannot pick and choose offer should be to all
Retrenchment of an employee without following the provisions of section70 would be void-ab-inition. Here the workmen can claim re-instatement.
• The Supreme Court of India used to grant reinstatement alone with back wages in case of non-compliance of the procedural requirements such as written notice giving reasons, or wages in lieu of such notice and retrenchment compensation, before retrenchment of services of workman under the Industrial Disputes Act 1947, prior 1991. • The same has also been reiterated and recapitulated by the SC in Judgments such as State of Bombay v. Hospital Mazdoor Sabha, Bombay Union of Journalists v. State of Bombay, State Bank of India v. N. Sundara Money, Santosh Gupta v. State Bank of Patiala, Mohan Lal v. Management of M/s. Bharat Electronics Ltd, L. Robert D’Souza v. Executive Engineer, Southern Railway, Surendra Kumar Verma v. Industrial Tribunal, Gammon India Ltd. v. Niranjan Das, Gurmail Singh v. State of Punjab, Delhi Cloth and General Mills CO Ltd vs Shambhu Nath Mukherjo
Contd. Adequate notices has to be given by the employer to the workers of establishment during lay-off / retrenchment / closure as prescribed in the Code Intimations / report shall be made to the appropriate Govt. / authority about such lay-off / retrenchment / closure as prescribed in the Code 21 9
Compensation to workers 11 Laid-off workers shall satisfy the following conditions for claiming compensation during the period of lay-off except weekly holidays an amount equal to 50% (basic wages + DA) His name must be borne on the muster rolls of the industrial establishment He must have completed > 1 year of continuous service He must not be a badli worker (one who is employed in the place of another worker) / casual worker Retrenched workers shall be compensated for a sum equal to- 15 days average pay / average pay of such days for every completed year of continuous service / part thereof > 6 months
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INDUSTRIAL RELATIONS and cide of dispute and discipline CODE.pptx

  • 2. Presentation Schema Labour Codes Framework of Industrial Relations Code, 2020 Bi-partite Forums Trade Unions 2
  • 3. Labour Codes To consolidate and amend various laws into one single code - Labour Code To minimise the burden of employer from complying with various Acts and thus to reduce the due diligence work of the authorities To facilitate ease of doing business To amend the erstwhile laws to meet the requirements of today’s world To replace multiple registrations, licenses into one 3
  • 4. • Industrial Dispute Act 1947 • Trade Unions Act 1926 • Standing Orders Act 1946
  • 6. Industrial Relation Code, 2020 is an Act to consolidate and amend all laws relating to trade union, conditions of employment in industrial establishment or undertaking, investigation and settlement of industrial disputes and for matters connected therewith / incidental thereto Lok Sabha passed the bill on 22nd September, 2020 Rajya Sabha passed the bill on 23rd September, 2020 Received President’s assent on 28th September, 2020 6 Applicability of the code - To whole of India
  • 7. 9 Chapters of the Act I- Preliminary II- Bi-partite Forums III- Trade Unions IV- Standing Orders V- Notice of change in conditions of service VI- Voluntary reference of disputes to arbitration VII- Mechanism for resolution of Industrial dispute s VIII- Strikes & lock- outs IX- Lay-off / Retrenchment / closure X- Special provisions relating to the above in certain establishments XI- Worker re-skilling fund XII- Unfair labour practices XIII- Offences & penalties XIV- Miscellaneous
  • 8. • Jamnagar: Fueled by rumours of accidental death of one of the labourers, two worker groups clashed within the labour colony near Reliance Industries Limited (RIL)'s Jamnagar refinery site. According to Jamnagar police officials of rural division, mistaking a labourer's death due to heart attack as being caused due to an accident, two group of workers clashed with each other, resulting in damage to private property within the labour colony of RIL's Jamnagar refinery site near Kanalus village. Later, the situation came under control. However, the police had to resort to tear gas shelling to disperse the mob.On 11th You have received a strike notice what is going to be your action plan?
  • 9. Appropriate Government Sec 2b • in relation to any industrial establishment or undertaking carried on by or under the authority of the Central Government or concerning any such controlled industry as may be specified in this behalf by the Central Government or the establishment of railways including metro railways, mines, oil fields, major ports, air transport service, telecommunication, banking and insurance company or a corporation or other authority established by a Central Act • Industries (Development and Regulation) Act, 1951
  • 10. or a central public sector undertaking, subsidiary companies set up by the principal undertakings or autonomous bodies owned or controlled by the Central Government including establishments of the contractors for the purposes of such establishment, corporation, other authority, public sector undertakings or any company in which not less than fifty- one per cent. of the paid-up share capital is held by the Central Government, as the case may be, the Central Government
  • 11. • Explanation.—For the purposes of this clause, the Central Government shall continue to be the appropriate Government for central public sector undertakings even if the holding of the Central Government reduces to less than fifty per cent. equity in that public sector undertaking after the commencement of this Code; • (ii) in relation to any other industrial establishment, including State public sector undertakings, subsidiary companies set up by the principal undertaking and autonomous bodies owned or controlled by the State Government, the State Government: • Provided that in case of a dispute between a contractor and the contract labour employed through the contractor in any industrial establishment where such dispute first arose, the appropriate Government shall be the Central Government or the State Government, as the case may be, which has control over such industrial establishment;
  • 12. • Find if Steel, Plastic, Radio making, cycle making companies are controlled industry.
  • 13. • Ankit has been recruited by Patanjali Ayurved Limited as HR executive, He was terminated without due notice or compensation can he raise an ID.
  • 14. Industry Sec 2 (j) – Old Act I Industry means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen. New code 2020, Sec 2 (p) “ industry" means any systematic activity carried on by co-operation between an employer and worker (whether such worker is employed by such employer directly or by or through any agency, including a contractor) for the production, supply or distribution of goods or services with a view to satisfy human wants or wishes (not being wants or wishes which are merely spiritual or religious in nature), whether or not,— (i) any capital has been invested for the purpose of carrying on such activity; or (ii) such activity is carried on with a motive to make any gain or profit
  • 15. Exclusion (i) institutions owned or managed by organisations wholly or substantially engaged in any charitable, social or philanthropic service; or (ii) any activity of the appropriate Government relatable to the sovereign functions of the appropriate Government including all the activities carried on by the departments of the Central Government dealing with defence research, atomic energy and space; or
  • 16. iii) any domestic service; or (iv) any other activity as may be notified by the Central
  • 17. Industry D. N. Banerji vs P. R. Mukherjee And Others Can be done by Private party? State of Bombay v. Hospital Mazdoor Sabha Profit- Irrelevant Madras Gymkhana Club Employees Union v Gymkhana Club Should not be casual but distinctly systematic. University of Delhi v Ramnath Dominant Nature Test
  • 18.
  • 19. Bangalore Water Supply & Sewage Board Vs. A. Rajappa (1982) 1 2 3 Systematic activity Organized by cooperation between employer and employee For the production and/or distribution of goods and services calculated to satisfy human wants and wishes T R I P L E T E S T
  • 20. Temple with Prasad manufacturing Women Development Corporation Tourism Dept Irrigation Dept Educational Institutions Public Health Dept Hospital University Tata Sports Club Postal Dept Telecom Dept Forest Dept Charitable Trust Zoological Park Workshop for handicap Sports Authority of India Municipality Ayurvedha Research Centre Institution for religious education Red Cross Society PWD National Highway division Dandakaranya Project Engineering Services Agriculture Produce Market Commiee
  • 21. Photostat shop with one operator Gurudwara only for prayer Temple only for prayer Diocese of church Army Police Rajghat Samadhi
  • 22. The question was whether `social forestry' department of State, which is a welfare scheme undertaken for improvement of the environment, would be covered by the definition of ``Industry'' under S. 2(j) of the Industrial Disputes Act, 1947 The Supreme Court later referred to a bench of nine-judges on the contentious issue pertaining to the interpretation of definition of word 'industry' considering its "wide- ranging implications". A seven-judge constitution bench headed by Chief Justice T S Thakur said it was of the opinion that the appeals before it be placed before a bench comprising nine judges keeping in view the "serious and wide-ranging implications" of the issue. Bench, comprising of Justices M B Lokur, S A Bobde, A K Goel, U U Lalit, D Y Chandrachud and L Nageswara Rao, referred the matter to a larger bench on the interpretation of definition of word 'industry' in section 2(j) of Industrial Disputes Act, 1947. It had said the larger bench would have to necessarily go into all legal questions in all dimensions and depth. Originally considered by a 7 membered Bench State Of U.P vs Jai Bir Singh 2005 Reinterpretation
  • 23. The dominant nature test (a) Where a complex of activities, some of which qualify for exemption, others not, the predominant nature of the services will be true test. The whole undertaking will be an industry (b) sovereign functions, qualify for exemption, not the economic activities undertaken by government (c) Even in departments discharging sovereign functions, if there are units which are industries and they are substantially severable, then they can be considered to come within Section 2(j).
  • 24. Sovereign functions of the state – State of Punjab v. Kuldip Singh State functions can be categorised into 4 (1) The sovereign or the regal functions of the State which are the primary and inalienable rights of a constitutional Government. (2) Economic adventures clearly partaking of the nature of trade and business undertaken by it as part of its welfare activities. (3) Organized activity not stamped with the total indicia of business yet bearing a resemblance to or being analogous to trade and business. (4) The residuary organized governmental activity which may not come within the ambit of the aforesaid three categories. The 1st and the 4th category do not come within the definition of ‘industry’.
  • 26. Case • Rahul is a B-tech graduate in the field of IT • Working for a start-up firm company providing IT solutions • He has been working for the past 18 months • Salary is 1 lakh rupees. • He works in team of 4 people with one lead. • He handles customers directly He has been terminated as part of cost cutting. He claims that it is for recruiting a partners friend. He raises an industrial dispute. Can he do it. Is he a worker?
  • 27. Workmen – Section 2 (s) Workmen – Section 2 (s) Any person (including an apprentice) employed in any industry to do any; Manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be expressed or implied, and for the purpose of any proceeding under this Act in relation to an industrial dispute, includes any such Sec 2 (zr) – Worker "worker" means any person (except an apprentice as defined under clause (aa) of section 2 of the Apprentices Act, 1961) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and includes working journalists as defined in clause (f) of section 2 of the Working Journalists and other Newspaper Employees…
  • 28. Exceptions OLD ACT (i) who is subject to the Air Force Act, or the Army Act, or the Navy Act, or (ii) who is employed in the police service or as an officer or other employee of a prison; or (iii) who is employed mainly in a managerial or administrative capacity; or (iv) who, being employed in a supervisory capacity, draws wages exceeding ten thousand rupees per mensem or exercises, either by nature of duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature NEW CODE, 2020 (i) who is subject to the Air Force Act, the Army Act, or the Navy Act, 1957, (ii) who is employed in the police service or as an officer or other employee of a prison; or (iii) who is employed mainly in a managerial or administrative capacity; or (iv) who is employed in a supervisory capacity drawing wages exceeding eighteen thousand rupees per month or an amount as may be notified by the Central Government from time to time:
  • 29. • Manual- work comprising labour • Unskilled – work such as that of peons, sweepers etc. • Technical – work pertaining to some mechanical arts or applied sciences. • Operational – • Clerical – is synonymous to routine stereotype work. Eg: maintenance of store ledgers, godown keeper.
  • 30. • Manager -HR manager, who watches over group of personnel • Administrator - Payroll administrator, who administer payroll of the company • Supervisor - Supervisor is typically a overseer.
  • 31. Predominant nature of duties • When a persons work is predominantly that of manager and administrative • A supervisor is typically a overseer. • For a supervisor to fall out side the definition of workman he should have specific powers relating to direction and control • In case where the supervisor has the power to appoint, dismiss, take disciplinary action then he is not a workman • Exercise of supervisory control is important
  • 32. Eg: Maintenance supervisor • Many benefits given to people of his cadre. • Has delegated duties such as • Recommendation of leave • Evaluating work of other employees
  • 33. Maintenance supervisory Senior Service Engineer •Has delegated duties such as 1. Recommendation of leave 2. Evaluating work of other employees •His job includes installation services , repair of machinery.
  • 34. Maintenance supervisory • In such cases the employer has to specifically plead and lead evidence and prove that he is a supervisor/manager and not workmen.
  • 35. • Is a trainee a workman-conflicting decisions Madras HC Bombay HC yes- Delhi HC No • Apprentice under the Apprentice act 1961 – labour laws including ID Act not applicable
  • 36. Workmen • Widely Misused . • Non Registration under the Apprentice Act will not make the Apprentice a workman • But many factors like the ratio of deployment of persons in the guise of trainees to permanent employment, • the kind of work extracted from such persons, record of training maintained by the employer, factor of training, • payment of overtime, etc. is to be considered by the Court.
  • 37. Workmen – Section 2 (s) • The relation of master servant is proved by the existence of 1.direction 2.supervision 3. control
  • 38. Contract of Employment • The relation of employer-employee can easily be proved by a contract of employment. • So it can be temporary, permanent or probationer. • contract of employment - contract for employment
  • 39. contract of employment versus contract for employment contract of service contract for employment • A determining factor in a contract of service can be • Control – here the employer has absolute control over the employee. He can tell them what work to do and how exactly it should be done. • Another test that is used is whether the employee has the freedom to work in different organisations at the same time. • Here the contractor has the power to appoint the person and fire him •No employer employee relation is created •Control – here the employer has very little control over the employee.
  • 40. Burden of proof • Burden of proof is on the employee to prove that he is a workman . • In discharging the burden the workman may call for books of account, or any other record or document in possession of the employer. • Question of law and question of fact. • the question whether the relation between the parties is a relation of employer –employee is a pure question of fact. • But the question that a person is a workman or not is a question of law.
  • 41. Fixed Term Employment • "fixed term employment" means the engagement of a worker on the basis of a written contract of employment for a fixed period: Provided that— • (a) his hours of work, wages, allowances and other benefits shall not be less than that of a permanent worker doing the same work or work of similar nature; • (b) he shall be eligible for all statutory benefits available to a permanent worker proportionately according to the period of service rendered by him even if his period of employment does not extend to the qualifying period of employment required in the statute; and • (c) he shall be eligible for gratuity if he renders service under the contract for a period of one year
  • 42. Definitions • (i) in relation to an establishment which is a factory, the occupier of the factory and where a person has been named as a manager of the factory • in relation to any other establishment, the person who / the authority which has ultimate control over the affairs of the establishment and where the said affairs are entrusted to a manager / MD, such manager / MD • contractor and • legal representative of a deceased employer 10 Employer means a person who employs any person, on his behalf / on behalf of any person, in his establishment and where the establishment is carried on by any department of CG / SG, the authority specified by the head of the department in this behalf / where no authority is so specified, the head of the department, and in relation to an establishment carried on by a local authority, the chief executive of that authority, and includes,— (ii) (iii) (iv )
  • 43. Industry dispute means any dispute / difference between employers and employers / between employers and workers / between workers and workers which is connected with the employment / non-employment / the terms of employment / with the conditions of labour, of any person and includes any dispute / difference between an individual worker and an employer connected with / arising out of discharge, dismissal, retrenchment / termination of such worker
  • 44. Industrial Dispute V. Individual Dispute • Sec 2 (q) "industrial dispute" means any dispute or difference between employers and employers or between employers and workers or between workers and workers which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person and includes any dispute or difference between an individual worker and an employer connected with, or arising out of discharge, dismissal, retrenchment or termination of such worker;
  • 45. • Industrial dispute as defined under Sec. 2q exists between- • Parties to the dispute who may be • Employers and workmen • Employers and Employers • Workmen and workmen • a) There should be a factum of dispute not merely a difference of opinion. • b) It has to be espoused by the union in writing at the commencement of the dispute. Subsequent espousal will render the reference invalid. Therefore date when the dispute was espoused is very important. • c) It affects the interests of not merely an individual workman but several workmen as a class who are working in an industrial establishment. • d) The dispute may be in relation to any workman or workmen or any other person in whom they are interested as a body
  • 46. • Jadhav J. H. vs. Forbes Gobak Ltd • In this case, it was held that, a dispute relating to a single workman may be an industrial dispute if either it is espoused by the union or by a number of workmen irrespective of the reason the union espousing the cause of workman was not the majority of the union.
  • 47. • For an individual dispute to be declared as an Industrial Dispute, the following conditions are to be satisfied: 1.A body of workmen (trade Union ) or a considerable number of workmen, are found to have made common cause with the individual workman; 2.That the dispute (individual dispute) was taken up or sponsored by the workmen as a body (trade union) or by a considerable Section of them before the date of reference.
  • 48. • Bombay Union of Journalists vs. The Hindu • A person working in ‘The Hindu, Madras’ had a dispute . The Bombay Union of Journalist raised the dispute. It was found that, there were ten employees of which seven in administrative side and only three in journalism side. Of these three, only two were the members of the union. Therefore, the Supreme Court held that the Bombay Union of Journalists is not competent to raise this dispute. Even if it had raised, it could not have become an industrial dispute.
  • 49. • Workmen of Indian Express Newspapers Ltd. vs. Management Indian Express Newspapers: A dispute relating to two workmen of Indian Express Newspapers Ltd, was espoused by the Delhi Union of Journalists which was an outside union. About 25 percent of the working journalists of the Indian Express were members of that union. But there was no union of the journalists of the Indian Express. It was held that the Delhi Union of Journalists could be said to have a representative character Qua the working journalists employed Indian Express and the dispute was thus transformed into an industrial dispute.
  • 50. • If the dispute or difference is connected with some other matter e.g. payment of bonus/ gratuity etc. then it would have to satisfy the test laid down in judicial decisions. Thus only a collective dispute could constitute an industrial dispute but collective dispute does not mean that the dispute should either be sponsored by a recognized union or that all or majority of the workmen of an industrial establishment should be parties to it. (State of Bihar vs. kripa Shankar Jaiswa
  • 51. • A dispute is an industrial dispute even where it is sponsored by a union which is not registered but the Trade Union must not be on unconnected with the employer or the industry concerned. (Express Newspapers (Private) Ltd. Vs. First Labour Court, West Bengal & Others • Where an individual dispute is espoused by union the question of the employee being a member of the union when the cause arose is immaterial. Those taking up the cause of the aggrieved workman must be in the same employment i.e., there must be community of interest when the act complained against happened and not when the dispute was referred to. •
  • 53. Contd. 53 Industrial establishment / undertaking – in which any industry is carriedon. Where several activities are carried on in an establishment and only one / some of such activities is / are an industry/ies, then – if unit carrying on such activity is severable from other units, such unit and if it is not severable, the entire establishment will be deemed to be industrial establishment / undertaking Trade Union means any combination, whether temporary or permanent, formed primarily for the purpose of regulating the relations between workers and employers or between workers and workers, or between employers and employers, or for imposing restrictive conditions on the conduct of any trade or business, and includes any federation of two or more Trade Unions
  • 54. 13 Applicability: If > 100 workers are employed / have been employed in any day of preceding 12 months Authority to make general / special order: Appropriate Government may require the employer to constitute the Committee Composition: Representative of employers and workers engaged in the establishment *Condition: Representatives of workers should not be < Representatives of Works Committee Grievance Redressal Committee Works Committee
  • 55. 14 Applicability: > 20 workers are employed Rationale for GRC: For resolving disputes arising out of individual grievances Composition: Maximum: 10 - Representative of employer = Representative of workers - Must involve adequate representatives of women workers Grievance Redressal Committee (GRC) Selection of Representative of Workers: If the establishment has any Trade Union (TU), it has to be consulted Rationale for Works Committee: To promote measures for securing and preserving amity and good relations between the employer and workers and to comment on matters of their common interest / concern and endeavour to compose any material difference of opinion
  • 56. Illustration 15 No. of Worker s Female Workers 200 Male Workers 300 Ratio: 2:3 Assume the GRC has 10 members 5 members – representing employer 5 members – representing workers Out of 5 representatives, at least 2 shall be women workers
  • 57. Contd. 16 Selection of Chairperson: Representative of employer and workers alternatively on rotational basis every year. • Procedure for filing any dispute: • Aggrieved worker shall file an application within 1 year from the date on which cause of action of such dispute arises • Within 30 days of application, GRC has to complete the proceedings • Decision will be based on the majority view of the Committee • Application to Tribunal: Within 1 years from the date on which cause of action to the dispute arises and after the expiry of 45 days from the date of making an application to the Conciliation officer of the Appropriate Government • Conciliation: Aggrieved by the decision of GRC or where it is not resolved, worker can file an application for conciliation through TU within 60 / 30 days respectively
  • 58. Illustration 58 Assume the GRC has 10 members 5 members – representing employer 5 members – representing workers Condition 1: Decision has to be based on the view of majority Condition 2: More than ½ of the members representing workers must agree to the decision Scenario 1: No. of persons having the same view = 7 No. of members representing workers= 3 Decision will be agreed Scenario 2: No. of persons having the same view: 6 No. of members representing workers =1 No decision arrived by GRC
  • 59. Comparison 59 Particulars Works Committee Grievance Redressal Committee No. of workers > 100 workers > 20 workers Committee 1 committee to be constituted 1 or more GRC can be constituted Provision for chairperson No such provision Chairperson will be the representative of worker / employer – rotational basis Applications for Conciliation and Tribunal - Worker can make applications Composition of Committee Members representing workers can be more than the members Composition of representatives shall be
  • 60. Chapter III - Trade Unions 60
  • 61. Trigger for TU LAW • BUCKINGHAM CASE(1920) Buckingham and Carnatic Mills were owned by the Englishmen. Labour was exploted and abused. The workers resisted leading to dismissal of 50 workers. The Management filed suit against trade union leaders for a loss of Rs. 75000/- for period of nonworking and incitement for breach of contract of service. They also sued the leaders for criminal conspiracy
  • 62. Section 2 ZL "Trade Union" means any combination, whether temporary or permanent, formed primarily for the purpose of regulating the relations between workers and employers or between workers and workers, or between employers and employers, or for imposing restrictive conditions on the conduct of any trade or business, and includes any federation of two or more Trade Unions: Provided that the provisions of Chapter III of this Code shall not affect — (i) any agreement between partners as to their own business; or (ii) any agreement between an employer and those employed by him as to such employment; or (iii) any agreement in consideration of the sale of the goodwill of a business or of instruction in any profession, trade or handicraft;
  • 63. REGISTERATION OF TRADE UNION • Registration is not compulsory for a trade unionv under the TU Act but there are some specific advantages for registeration • 1. Body Corporate • 2. Perpetual Succession • 3. Affiliation • 4. Juristic person • 5. General Fund Civic and Political Fund • 6. Immunity fro civil and criminal liabilities. • 7. Protected workman
  • 64. 20 Respective SG has power to appoint and prescribe duties for Registrar of TU and other persons as additional, joint and deputy registrar of TU who shall be deemed to be the Registrar for the purpose of the code Requirements for registration of TU Composition: Any 7 / more members* may by subscribing their names to the rules of TU and by otherwise complying with the provisions of the Code can apply for registration *Trade union of workers shall not be registered unless at least 10% / 100 workers (whichever is less) is employed / engaged in the industrial establishment as members of TU on the date of application This composition shall be maintained at all time Application shall not be invalid: After making application and before registration, if not more than ½ of the total number of persons applied have ceased to be members of TU / given notice to Registrar for dissociating themselves from the application
  • 65. 21 Name, objects, utilisation of general fund, members list, inspection of members list, admission of ordinary members, subscription amount, benefits, fines, meetings, election of officers, safe custody of funds, annual audit etc. has to be provided in the constitution / rules of TU Applications to Registrar Every application shall be accompanied by a declaration, rules and resolutions. If the TU is a Federation / Central Organisation, resolutions adopted by members of each members has to be submitted If TU is in existence > 1 year before making application for registration - a statement of assets and liabilities also be annexed Registrar may call for additional information and require alteration of the name of TU if it is identical / nearly resembles an existing name of TU and he shall refuse registration until such alteration is made
  • 66. Registration of TU 66 On satisfying the requirements, Registrar will register the TU by entering in a register and issue a certificate of registration (conclusive evidence) TU’s registered under TU Act, 1926 having valid registration will be deemed to be registered under this Code if, it submits a statement that it is constituted in accordance with the Code TU shall be a body corporate with perpetual succession & common seal to acquire and hold properties and to sue and be sued in its name
  • 67. Cancellation of registration of TU 67 On voluntary application by TU* / Any contravention by the TU / If composition of TU is not in accordance with the Code – the Registrar shall withdraw / cancel registration (60 days previous notice stating the grounds of such action shall be given by Registrar to TU) *No notice will be sent Registration shall also be cancelled by the order of Tribunal
  • 68. Appeal to Tribunal 68 When a TU can go for appeal? Refusal for registration / Cancellation of registration Appeal after the limitation period Tribunal may entertain such appeal on showing sufficient reasons for delay Parties concerned will be given opportunity of being heard before passing any order and Tribunal will forward a copy of order to the Registrar
  • 69. Communicati on 69 Communications and notices shall be sent to the Head office address as entered in the register maintained by the Registrar Where composition of TU falls below the statutory threshold or for any change in the particulars since the time of registration shall be informed to the Registrar From Registr ar to TU From TU to Registr ar
  • 70. Immunity from Civil suit in certain cases: • No suit shall be maintainable against any registered TU / office-bearer / member for act done in contemplation / furtherance of an industrial dispute - to which a member of the TU is a party on the ground only that such act induces some other person to break a contract of employment / that it is an interference with trade, business / employment / right of some other person to dispose of his capital / labour as he wills • No civil suit / legal proceeding shall be maintainable against TU for any tortuous act done by an agent of the TU, if it is proved that such person acted without the knowledge of, or contrary to express instructions given by, the executive of the Trade Union
  • 71. Immunity from Criminal Conspiracy • 17. No office-bearer or member of a registered Trade Union shall be liable to punishment under sub-section (2) of section 120B of the Indian Penal Code in respect of any agreement made between the members for the purpose of furthering any such object of the Trade Union as is specified in section 15, unless such agreement is an agreement to commit an offence.
  • 72. Immunity From Criminal Conspiracy • Section 17 of the Trade Unions Act, 1926 seeks to insulate trade unions activity from liability for criminal conspiracy: No office-bearer or member of a registered Trade Union shall be liable to punishment under sub-section(2) of Section 120B of the Indian Penal Code in respect of any agreement made between the members for the purpose of furthering any such object of the Trade Union as is specified in Section 15, unless the agreement is an agreement to commit an offence. • The immunity is, however, available only: • (i) to office-bearers and members of registered trade unions; • (if) for agreement; (iii) which further any such trade union object as is specified in section 15 of the Act; and • (iv) which are not agreements to commit offences.
  • 73. Definition of criminal conspiracy • 120A. Definition of criminal conspiracy • When two or more persons agree to do, or cause to be done,- • (1) an illegal act, or • (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy
  • 74. • Section 43 in The Indian Penal Code. 43. “Illegal”, “Legally bound to do”.—The word “illegal” is applicable to everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action; and a person is said to be “legally bound to do” whatever it is illegal in him to omit. • an agreement to commit breach of contract through withdrawal of labour as an instrument of economic coercion in an industrial dispute, is a criminal conspiracy.
  • 75. Jay Engineering Works Ltd. v. State • while interpreting the provisions ofsection 17 of the Trade Unions Act, 1926 observed: [N]o protection is available to the members of a trade union for any agreement to commit an offence.... When a group of workers, large or small, combined to do an act for the purpose of one common aim or object it must be held that there is an agreement among the workers to do the act and if the act committed is an offence, it must similarly be held that there is an agreement to commit an offence.
  • 76. Registrar of Trade Union Mysore V. Mariswamy • Even if its just an employer, it can be considered as members
  • 77. Protected Worker • No employer shall, during the pendency of any proceeding in respect of an industrial dispute, take any action against any protected worker concerned in such dispute— • (a) by altering, to the prejudice of such protected worker, the conditions of service applicable to him immediately before the commencement of such proceeding; or • (b) by discharging or punishing, whether by dismissal or otherwise, such protected worker, save with the express permission in writing of the authority before which the proceeding is pending
  • 78. Scope for Misuse of the Provision • Many Trade Union leaders, who also have legal experience, often tend to leverage law to make sure that protection is extended to some of their members: • 1. Get the status of 'Protected Workmen' for their office-bearers; • 2. Insist on getting or continuing the status of 'Protected Workmen' to those who are facing serious allegations of misconduct and whose services would otherwise be terminated. • 3. Launch an Industrial Dispute on some pretext or other and keep the dispute endlessly dragged on, or create another back-to-back dispute, so that it would become 'difficult' for the management to deal even with extreme acts of misconduct committed by such 'Protected Workmen'.
  • 79. LEVEL OF PROTECTION • The protection under this section is limited to restraining the employer from changing the service conditions of such workmen or dismissing them from service, etc., during the pendency of a conciliation or arbitration proceedings. • No such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.
  • 80. REASON • Supreme Court in the case of Air India Corporation vs. V A. Rebellow, (1972). Court observed that, broadly speaking, Sections 33 and 33A were meant to protect the workmen concerned in an industrial dispute against victimisation by the employer on account of raising or continuing such pending dispute and to ensure that those pending proceedings are /nought to expeditious termination in a peace-ful atmosphere undisturbed by subsequent cause tending to exacerbate the already strained relationship between the workman and the employer.
  • 81. • In the context of protected workmen, it is to be noted that if a misconduct has been alleged against the 'protected workmen', management is free to initiate disciplinary proceedings. There is no bar in continuing enquiry proceedings against the 'protected workmen' even dur-ing the period of pendency of an Industrial Dispute.
  • 82. RECOGNITION AS PROTECTED WORKER • Ramachandran Nair and K. Surendra Mohan, delivering their judgment on an appeal filed by FILL Lifecare Ltd., held in W.A 1171 of 2010, 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 work-men 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'.
  • 83. Draft Rules Selection of Protected Worker • 37. Protected workers under sub-section (3) and (4) of section 90.— (1) Every registered Trade Union connected with an industrial establishment, to which the Code applies, shall communicate to the employer before the 30th April of every year, the names and addresses of such of the officers of the Union who are employed in that establishment and who, in the opinion of the Union should be recognised as ―protected workers. Any change in the incumbency of any such officer shall be communicated to the employer by the union within fifteen days of such change.
  • 84. • (2) The employer shall, subject to sub-section (3) and sub-section (4) of section 90, recognise such workers to be ―protected workers‖ for the purposes of section 90 and communicate to the Union, in writing, within fifteen days of the receipt of the names and addresses under sub-rule (1), the list of workers recognised as protected workers for the period of twelve months from the date of such communication. • (3) Where the total number of names received by the employer under sub-rule (1) exceeds the maximum number of protected workers, admissible for the industrial establishment, under sub-section (4) of section (90), the employer shall recognise as protected workers only such maximum number of workers: Provided that where there is more than one registered Trade Union in the industrial establishment, the maximum number shall be so distributed by the employer among the Unions that the numbers of recognised protected workers in individual Unions bear practicably by the same proportion to one another as the membership figures of the Unions.
  • 85. Section 18 Agreement in restraint of trade. • Notwithstanding anything contained in any other law for the time being in force, an agreement between the members of a registered Trade Union shall not be void or voidable merely by reason of the fact that any of the objects of the agreement are in restraint of trade: • Provided that nothing in this section shall enable any civil court to entertain any legal proceedings instituted for the purpose of enforcing or recovering damages for the breach of any agreement concerning the conditions on which any members of a Trade Union shall or shall not sell their goods, transact business, work, employ or be employed
  • 86. Non-applicability of Acts 86 Societies Registration Act, 1860 Co-operative Societies Act, 1912 Multi State Co-operative Societies Act, 2002 Companies Act, 2013 Any other corresponding law relating to co-operative societies for the time being in force in any State Following Acts shall not be applicable to a registered TU Registration of TU under the Acts shall be void
  • 87. • Toyota Kirloskar Motors (TKM) in its Bidadi plant had 3 Unions, TMW Union which had 35% of the workers of the establishment, TKS which has 25%, TWU which has 30%. Whom to invite for Wage Settlement • Single Militant TU with 70% membership, should it be invited. • Multiple TU with less than 20% should it be invited
  • 88. Recognition History • Only in Maharashtra, Kerala and WB • Was not there in TU Act • Code of Discipline-3 –Secret Ballot Verification by CLC • There used to be councils, management voluntarily did that
  • 89. Negotiating Union / Council 89 Term: 3-5 years from the date of recognition / constitution (1) There shall be a negotiating union or a negotiating council, as the case may be, in an industrial establishment having registered Trade Union for negotiating with the employer of the industrial establishment, on such matters as may be prescribed. • > 1 TU registered under this Code: TU having 50% / more workers on the muster roll shall be recognized as the sole negotiating union of workers • > 1 TU- If no TU has 50% / more workers, employer shall constitute a negotiating council consisting of representatives of TUs which have the support of not less than 20% of total workers on the muster roll of the industrial establishment and such representation shall be 1 representative for each 20% and for the remainder after calculating the membership on each 20% • Industrial establishment having 1 TU: Employer must recognise such TU as the sole negotiating union of workers Facilities shall be provided to the negotiating union / council
  • 90. • (5) Where any negotiation on the matters referred to in sub-section (1) is held between an employer and a negotiating council constituted under sub-section (4), consequent upon such negotiation, any agreement is said to be reached, if it is agreed by the majority of the representatives of the Trade Unions in such negotiating council.
  • 91. • 4. Criteria for recognizing a single registered Trade Union of workers as sole negotiating Union of workers under sub-section (2) of section 14.- Where there is only one registered Trade Union operating in an industrial establishment having its members not less than thirty percent of the total workers employed in the industrial establishment, then, the employer of such industrial establishment shall recognize such Trade Union as sole negotiating union of the workers. Industrial Relations (Central) Recognition of Negotiating Union or Negotiating Council and Adjudication of Disputes of Trade Unions Rules, 2021.
  • 92. What Should be Provided. –Sec 9 Draft Rule • (i)notice board for the purpose of displaying the information relating to activities of negotiating union or negotiating council, as the case may be; • (ii) venue and necessary facilities for holding discussions by the negotiating union or negotiating council, as the case may be, as per schedule and agenda to be settled between employer of the industrial establishment and the negotiating union or constituents of negotiating council, as the case may be; (iii) venue and necessary facilities for holding discussions amongst the members of the negotiating union or constituents of negotiating council, as the case may be; iv) facility for entrance of the office bearers of the negotiating union or constituents of negotiating council, as the case may be, in the industrial establishment for the purposes of ascertaining the matters which are relating to working conditions of the workers; (
  • 93. • v) employer to deduct subscription of the members of the Trade Unions on the basis of the written consent of the worker; • (vi) treating on duty of the employed office bearers of the negotiating union or constituents of negotiating council, as the case may be, when the office bearers are holding meetings or discussing with the employer as per agreed schedule between employer and such office bearers; and • (vii) employer of an industrial establishment, having three hundred or more workers, shall provide suitable office accommodation with necessary facilities to the negotiating union or negotiating council, as the case may be.
  • 94. Matters of Negotiation • 1) The matters pertaining to workers which the negotiating union or negotiating council shall negotiate with the employer of the industrial establishment under sub-section (1) of section 14 are specified, as below, namely :- • (i) classification of grades and categories of workers; • (ii) order passed by an employer under the standing orders applicable in the industrial establishment; • (iii) wages of the workers including their wage period, dearness allowance, bonus, increment, customary concession or privileges, compensatory and other allowances; • (iv) hours of work of the workers their rest days, number of working days in a week, rest intervals, working of shifts; • (v) leave with wages and holidays; • (vi) promotion and transfer policy and disciplinary procedures; • (vii) quarter allotment policy for workers; • (viii) safety, health and working conditions related standards; • (ix) such other matter pertaining to conditions of service, terms of employment which are not covered in the foregoing clauses; and • (x) any other matter which is agreed between employer of the industrial establishment and negotiating union or council.
  • 95. 8 Funds of TU: General funds of TU shall not be spent on any objects other than the ones as may be prescribed • Separate Fund(Political Fund): A registered TU may constitute a separate fund to promote civil and political interests of members •  No compulsion forcontribution •  Non-contributed members shall not be excluded from any benefits of TU / placed in any respect under any disability or disadvantage as compared with other members of TU (except in relation to control / management of the fund) •  Contribution – shall not be made as a condition for admission
  • 96. 9 Books of accounts and list of members: Is open for inspection to an office- bearer / member of TU at such times as provided in their rules Right of minor to be a member of TU: On attaining 14 years of age and employed in a non-hazardous industry subject to any rules of the TU, enjoy all rights of a member Cont d.
  • 97. Contd. 11 Right to change name / amalgamate: Change of name- With the consent of not less than 2/3 of total members Amalgamation- With any 2 or more registered TUs as prescribed and it shall not prejudice any right of TU / their creditors Notice in writing signed by the secretary and 7 members for change of name and for amalgamation secretary and 7 members of each and every TU, shall be sent to the Registrar and if the head office of the amalgamated TU is situated in a different State, to that Registrar in such manner as may be prescribed Proposed name identical / nearly resembles an existing TU – Registrar can refuse to register the change of name Amalgamated TU head office in different state: Registrar can register the same on being satisfied and amalgamation shall have effect from that date Change in the name shall not affect TU’s rights / obligations / render defective any legal proceeding by / against it and any legal proceeding continued / commenced it in its former name can be continued / commenced in its new name
  • 98. Cont d. 10 Disqualification of office bearer:  < 18 years of age  Convicted an offence involving moral turpitude and sentenced to imprisonment – 5 years not elapsed  Disqualified by Tribunal  Member of the Council of Ministers / person holding an office of profit in the Union / State Dispute between TU / Member / workers / TU which is a Federation of TU and office bearer authorised by TU: Application to Tribunal (having jurisdiction) and no civil court can entertain the same Office-bearers in Unorganised sector (as specified by the Government): Not less than ½ of total number of officer bearers shall be persons actually engaged / employed in an establishment / industry with which TU is connected For other sectors: All office-bearers of a registered TU, except not more than 1/3 of total number of officer bearers or 5% whichever is less
  • 99. Outside Membership • 1) Not less than one-half of the total number of the office-bearers of every registered Trade Union in an unorganised sector shall be persons actually engaged or employed in an establishment or industry with which the Trade Union is connected: Provided that the appropriate Government may, by special or general order, declare that the provisions of this section shall not apply to any Trade Union or class of Trade Unions specified in the order. • Explanation.—For the purposes of this sub-section, "unorganised sector" means any sector which the appropriate Government may, by notification, specify. • (2) Save as otherwise provided in sub-section (1), all office-bearers of a registered Trade Union, except not more than one-third of the total number of the office-bearers or five, whichever is less, shall be persons actually engaged or employed in the establishment or industry with which the Trade Union is connected. • Explanation.—For the purposes of this sub-section, an employee who has retired or has been retrenched shall not be construed as outsider for the purpose of holding an office in a Trade Union.
  • 100. Cont d. 12 Dissolution of TU: Notice of dissolution signed by 7 members and secretary be sent to Registrar within 14 days of dissolution for registration, and the same have effect only on such registration And the funds of TU be distributed by Registrar amongst the members in such manner as may be prescribed (if rules of TU do not provide for the same) Annual returns: Statement of receipts and expenditure audited (during the year ending on 31 /12), statement of assets and liabilities audited (as on 31/12), general statement showing changes of office-bearers and rules (latest) be sent to Registrar In case of any change in rules of TU, it shall be sent to Registrar within 15 days of alteration Registrar / any officer authorised by him by general or special order, may inspect the documents relating to TU at the registered office OR may require production of documents at such place within 15 km from the registered office of TU Recognition of TU / federation of TU: CG / SG may recognize it at Central level / State level respectively and if any dispute arises in relation to such recognition, it shall be decided by such authority as prescribed by the respective Governments
  • 102. 1. Adarsh is an asst engg he has been transferred from Gurgaon to Noida, what are the conditions to be complied 2. Shift timings of the employees needs to be changed
  • 103. Exemption: Appropriate Government may exempt by notification any class of industrial establishment / workers • Settlement / award • Emergency situations for change in shift • Order of Appropriate Government No requirement of notice Giving a notice of such change to the worker or Section 40 Any change in the conditions of service of a worker as specified in 3rd Schedule shall be made by employer only after- Within 21 days of giving such notice 1 0 3
  • 104. III Schedule 8 Wages, its period and mode of payment Contribution by Employer to PF / pension / for benefit of workers Compensatory and other allowances Matters for which notice to be given Working hours and rest intervals Leave with wages and holidays Working shift except standing orders Grade classification Withdrawal of any customary concession / privilege / change in usage Introduction / alteration of rules except standing orders Rationalisation, standardizatio n / improvement of plant technique which is likely to lead to retrenchment of workers Increase / reduction (other than casual) in the no. of persons employed / to be employed, not occasioned by circumstances over which the employer has no control
  • 105. • The Courts over the years have passed numerous decisions on the question of occasions on which a Notice of Change may be issued and when it need not be issued. • For E.g. – In T Rajamanickam V/s Binny Limited, Madras (2009) The Hon’ble Madras High Court held that reduction in the emoluments of a workman, which was not envisaged in the settlement between Management and the workers and was done without notice was against Section 9A. • Sudden withdrawal of overtime benefits without notice, • change in overtime allowance rates, • withdrawal or reduction in project allowance, • change in commencement of working hours, increasing hours of work, • change in weekly holiday, • withdrawal or reduction of medical benefits, • reducing retirement age of workers, • discontinuance of bus facility, • retrenchment of workers due to installation of new machinery, without notice etc have all been seen by the Hon’ble High Courts and Hon’ble Supreme Court to be violative of Section 9A of the Act.
  • 106. • A notice under 40 should be sent individually to the worker ₓ Not to union or display on the notice board. • One of the pre-conditions under 40 is that the change should adversely affect the worker.
  • 107. Normal case Geographical Transfer Sh. Mohd. Azim vs. Sarv Up Gramin Bank (2015) LLR 464 Transfer No provision in contract of service or appointment letter notice becomes imperative Chennai Port and Dock Workers Union v. Union of India Change of working Hours Customary Pooja
  • 108. Question • Mrityunjay Sahay is the Executive (HR), Northern Region, for an FMCG company with its corporate office at Mumbai. The total employee strength of the company is 5,500, spread all over India. The Northern Region has 1,200 employees spread over 6 Depot Offices located in Patiala, Gurgaon, Jaipur, Gwalior, Delhi and Kanpur. Each Depot has around 150 employees. The Depots mostly comprise warehouse operations, i.e., receipt, storage and dispatch of products. The Depots operate in two overlapping shifts. The Regional Operations Manager wants to introduce three shifts working at the Depots without any addition of manpower. Each Depot has a recognized union. Mrityunjay finds it to be a daunting task. He has approached the unions, but has been warned by them not to press for change. Today, in his morning correspondence, he has received a letter from the Patiala union, announcing their intention to go on a strike if the management went ahead with the proposal to make changes in shift timings.
  • 109. • Can the management introduce the proposed changes? • Will the management have to deal with each Depot separately? Or can it deal with it as a single problem? • what should be the role of the conciliation officer? Is he bound to intervene? • What role do you see for the “settlement machinery” in resolving the dispute?
  • 110. Chapter VII- Mechanism for resolution of Industrial Dispute 1 1 0
  • 112. Essence of the Chapter 1 2 Conciliation officer & Tribunal • Appropriate Govt. can appoint conciliation officers and constitute Industrial tribunal / national IndustrialTribunal with Judicial and Administrative members Finality of constitutio n • Terms of appointment, salaries, allowances and such other matters will be decided by the appropriate Govt. and the appointment of members made by the appropriate Govt. shall be final Decision of Tribunal • Decision of Tribunal shall be by consensus of the members. If the members have difference opinion in the decision of Tribunal, they can make reference of the same to the appropriate Govt. for final decision Powers of civil court • Conciliation officer and Tribunals shall have the same powers of Civil Court as specified in CPC, 1908 and inquiry / investigations by the Tribunal shall deemed to be the judicial proceedings under IPC, 1860
  • 113. Distingui sh 1 3 Arbitration arbitrator give s • Is a process in which the conflicting parties agree to refer their dispute to a neutral third party known as ‘Arbitrator’. • In arbitration the his judgment on a dispute Conciliatio n • Means reconciliation of differences between persons. It is a process by which representatives of workers and employers are brought together before a third party known as “Conciliator” to arrive an agreement by mutua l understanding • Conciliator makes the Adjudicatio n with party without consent of • Referring the dispute to an independent third or the the disputing parties
  • 114. Conciliation • 43. • (1) The appropriate Government may, by notification, appoint such number of persons, as it thinks fit to be conciliation officers, charged with the duty of mediating in and promoting the settlement of industrial disputes. • (2) A conciliation officer may be appointed for a specified area or for specified industries in a specified area or for one or more specified industries and either permanently or for a limited period
  • 116. Conciliation Process. Conciliation Officer Settlement Within 45 days , 14 days if strike notice is received Failure Report/Within 45 days , 14 days if strke notice is reciveved
  • 117. • Where any industrial dispute exists or is apprehended or a notice under section 62 has been given, the conciliation officer shall, hold conciliation proceedings in such manner as may be prescribed • Provided that the conciliation officer shall not hold any such proceedings relating to the industrial dispute after two years from the date on which such industrial dispute arose.
  • 118. • (2) The conciliation officer shall, for the purpose of bringing about a settlement of the dispute, without delay, investigate the dispute and all matters affecting the merits and right settlement thereof and may do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute. • (3) If a settlement of the dispute or of any of the matters in dispute is arrived at in the course of the conciliation proceedings, the conciliation officer shall send a report thereof to the appropriate Government or an officer authorised in this behalf by the appropriate Government together with a memorandum of the settlement signed by the parties to the dispute.
  • 119. • (4) If no such settlement is arrived at, the conciliation officer shall, as soon as practicable, after the close of the investigation, send to the concerned parties and to the appropriate Government a full report, in the electronic or other form as may be prescribed, setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof, together with a full statement of such facts and circumstances, and the reasons on account of which, in his opinion, a settlement could not be arrived at.
  • 120. • (5) Notwithstanding anything contained in sub-section (4), the conciliation officer shall send the report to the concerned parties and the appropriate Government within forty-five days of the commencement of the conciliation proceedings or within such shorter period as may be fixed by the appropriate Government: Provided that where a conciliation officer receives notice under section 62, he shall send the report to the concerned parties and to the appropriate Government within fourteen days of the commencement of the conciliation proceedings: Provided further that subject to the approval of the conciliation officer, the time may be extended by such period as may be agreed upon in writing by the concerned parties to the dispute.
  • 121. • (6) Any concerned party may make application in the prescribed form to the Tribunal in the matters not settled by the conciliation officer under this section within ninety days from the date on which the report under sub-section (4) is received to the concerned party and the Tribunal shall decide such application in the prescribed manner.
  • 122. Industrial Tribunal • 44. (1) The appropriate Government may, by notification, constitute one or more Industrial Tribunals for the adjudication of industrial disputes and for performing such other functions as may be assigned to them under this Code and the Tribunal so constituted by the Central Government shall also exercise the jurisdiction, powers and authority conferred on the Tribunal, as defined in clause (m) of section 2 of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 by or under that Act. • (2) Every Industrial Tribunal shall consist of two members to be appointed by the appropriate Government out of whom one shall be a Judicial Member and the other, an Administrative Member. • (3) A bench of the Tribunal shall consist of a Judicial Member and an Administrative Member or single Judicial Member or single Administrative Member.
  • 123. • (7) The procedure of the Tribunal (including distribution of cases in the benches of the Tribunal) shall be such as may be prescribed, provided a bench consisting of a Judicial Member and an Administrative Member shall entertain and decide the cases only relating to— • (a) the application and interpretation of standing order; • (b) discharge or dismissal of workmen including reinstatement of, or grant of relief to, worker dismissed; • (c) illegality or otherwise of a strike or lockout; • (d) retrenchment of worker and closure of establishment; and • (e) Trade Union disputes, and the remaining cases shall be entertained and decided by the bench of the Tribunal consisting either a Judicial Member or an Administrative Member of the Tribunal.
  • 124. • (8) The Judicial Member shall preside over the Tribunal where the bench of the Tribunal consists of one Judicial Member and one Administrative Member
  • 125. National tribunal • 46. (1) The Central Government may, by notification, constitute one or more National Industrial Tribunals for the adjudication of industrial disputes which, in the opinion of the Central Government, involve questions of national importance or are of such a nature that industrial establishments situated in more than one State are likely to be interested in, or affected by, such disputes. • (2) A National Industrial Tribunal shall consist of two members to be appointed by the Central Government out of whom one shall be a Judicial Member and the other, an Administrative Member
  • 126. WAGES During Proceeding • Sec 56 Where in any case, a Tribunal or a National Industrial Tribunal by its award directs reinstatement of any worker and the employer prefers any proceedings against such award in a High Court or the Supreme Court, the employer shall be liable to pay such worker, during the period of pendency of such proceedings in the High Court or the Supreme Court, full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule if the worker had not been employed in any establishment during such period and an affidavit by such worker had been filed to that effect in such Court: Provided that where it is proved to the satisfaction of the High Court or the Supreme Court that such worker had been employed and had been receiving adequate remuneration during any such period or part thereof, the Court shall order that no wages shall be payable under this section for such period or part, as the case may be.
  • 127. Chapter VI - Voluntary reference of disputes to Arbitration 1 2 7
  • 128. Employer & worker can refer the existing industrial dispute / dispute that is apprehended to arbitration by a written agreement If the appropriate Govt. is satisfied that the dispute involves representation of majority of each party, notification may be issued and persons who are not parties to the agreement may be given an opportunity of presenting their cases In case of reference of industrial dispute to arbitration, the appropriate Govt. may also order to prohibit the strike / lock-outs existing on the date of reference in connection with the dispute Representation before the Arbitrator by NU / NC / TU / representative of workers. If the dispute relates to termination of individual worker – concerned worker / his authorised representative Arbitration and Conciliation Act, 1996 shall not apply 1 2 8
  • 129. Industrial Tribunal • The appropriate Government may, by notification, constitute one or more Industrial Tribunals for the adjudication of industrial disputes and for performing such other functions as may be assigned to them under this Code and the Tribunal so constituted by the Central Government shall also exercise the jurisdiction, powers and authority conferred on the Tribunal, as defined in clause (m) of section 2 of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 by or under that Act. • (2) Every Industrial Tribunal shall consist of two members to be appointed by the appropriate Government out of whom one shall be a Judicial Member and the other, an Administrative Member. • (3) A bench of the Tribunal shall consist of a Judicial Member and an Administrative Member or single Judicial Member or single Administrative Member.
  • 130. • Provided that a person who has held a post below the rank of Joint Secretary to the Government of India or an equivalent rank in the Central Government or a State Government, shall not be eligible to be appointed as an Administrative Member of the Tribunal.
  • 131. • The procedure of the Tribunal (including distribution of cases in the benches of the Tribunal) shall be such as may be prescribed, provided a bench consisting of a Judicial Member and an Administrative Member shall entertain and decide the cases only relating to— • (a) the application and interpretation of standing order; • (b) discharge or dismissal of workmen including reinstatement of, or grant of relief to, workmen dismissed; • (c) illegality or otherwise of a strike or lockout; • (d) retrenchment of workmen and closure of establishment; and • (e) Trade Union disputes, and the remaining cases shall be entertained and decided by the bench of the Tribunal consisting either a Judicial Member or an Administrative Member of the Tribunal
  • 132. • The Judicial Member shall preside over the Tribunal where the bench of the Tribunal consists of one Judicial Member and one Administrative Member
  • 134. Definition Section 2(zi) • "settlement" means a settlement arrived at in the course of conciliation proceeding and includes a written agreement between the employer and worker arrived at otherwise than in the course of conciliation proceeding where such agreement has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to an officer authorised in this behalf by the appropriate Government and to the conciliation officer;
  • 135. WHO CAN ENTER Employer worker Employer Trade Union Employer Individual Worker Thermax Case: Negotiations Broke down with TU, directly settled with workers.
  • 136. TYPES OF SETTLEMENT () • In the course of conciliation proceedings Voluntary Agreements Consent Awards
  • 137. B i n d i n g n e s s Between Employer and Worker other than during conciliation Parties to the Settlement Consent Award Parties to the Settlement Between Employer and Worker during conciliation On all worker
  • 138. R E G I S T R A T I O N The Conciliation Officer shall file all settlements effected under this Act in respect of disputes in the area within his jurisdiction in a register maintained for the purpose as in Form O. The Conciliation Officer can reject registration of a settlement made between the management and the workmen whereby the workmen have been shown to have signed for meagre sum as consideration( Not in conciliation)
  • 139. In course of conciliation • Mere signing of the settlement before the conciliation officer will not make it one as settlement made in the course of conciliation proceeding • The conciliation officer would have to discharge duties according to sec 53 (3) of the Act.
  • 140. Period of settlement • 6 Months-if time period not prescribed • continue to be binding on the parties after the expiry of the period aforesaid, until the expiry of sixty days from the date on which a notice in writing of an intention to terminate the settlement is given by one of the parties to the other party or parties to the settlemenThe settlements would still continue till new one is brought. • LIC V. D.J. Bahadur • Even if the settlement is terminated there cannot be a vacuum and the settlement will be in operation
  • 141. As per Sec 54(2): The conciliation officer shall, for the purpose of bringing about a settlement of the dispute, without delay, investigate the dispute and all matters affecting the merits and the right settlement thereof and may do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute.. The Supreme Court held that an agreement arrived at between the management and the representative union otherwise than in conciliation proceeding would not supersede an earlier conciliation settlement between the same union and the management.
  • 143. Strike and Article 19 1(c) • Strike is not a fundamental right • It is a normal legal right guaranteed under the ID Act.
  • 144. Standing Orders --Misconduct --Strike If there are specific activates in the course of strike provided under Standing Orders as misconduct only a summary enquiry establishing the perpetration is sufficient to impose the punishment for example inciting others to strike in contravention of any law, Gharaeo, Bandh etc.
  • 145. Different kinds of strike • Sit down • Go slow • Hunger strike • Lighting Strike • Work-to -rule
  • 146. India Radiators Ltd. Vs. Second Labour Court 1998(3) L.L.N. 411 • "Slowing down" implies the existence of a higher level before slowing down commenced, and falling to the lower level after the slowing down was practiced. The lower level of production was in this case, only by reason of the deliberate action of the workmen in not exerting themselves to the level which they were capable and maintained consistently for a long period of time."
  • 147. STRIKE Sec 2(ZK) "strike" means a cessation of work by a body of persons employed in any industry acting in combination, or a concerted refusal, or a refusal, under a common understanding, of any number of persons who are or have been so employed to continue to work or to accept employment and includes the concerted casual leave on a given day by fifty per cent. or more workers employed in an industry;;
  • 149. Strike - Elements 1. Plurality of workmen 2. Cessation or work or refusal to do work 3. Combined or concerted action.
  • 150. Proof of concerted effort • Proof of concerted effort is very important. Elements of mass cessation; • Whether there was a concerted refusal • Whether they were acting in combination • Whether there was a refusal under a common understanding
  • 151. Strike • 62. (1) No person employed in an industrial establishment shall go on strike, in breach of contract— ( • a) without giving to the employer notice of strike, as hereinafter provided, within sixty days before striking; or • (b) within fourteen days of giving such notice; or • (c) before the expiry of the date of strike specified in any such notice; or • (d) during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings; or (
  • 152. • e) during the pendency of proceedings before a Tribunal or a National Industrial Tribunal and sixty days, after the conclusion of such proceedings; or • (f) during the pendency of arbitration proceedings before an arbitrator and sixty days after the conclusion of such proceedings, where a notification has been issued under sub-section (5) of section 42; or • (g) during any period in which a settlement or award is in operation, in respect of any of the matters covered by the settlement or award.
  • 153. Particulars Strike Lock-outs Period Temporary Temporary Rationale Workers Employer Situation • Cessation of work • Concerted refusal to continue to work / accept employment • Concerted casual leave by > 50% workers on a particular day • Temporary closing • Suspension of work • Refusal by employer to continue to employ any number of persons employed by him A comparsion 15 3
  • 154. strike and Employer shall not lock-out any of his workers without giving a notice to the other party / during pendency of proceedings / settlement or award in operation, as specified in the Code Notices given / received by the Employer shall be reported to the appropriate Govt. / authority and to Conciliation officer within 5 days No requirement of notice: When there is a strike / lock-out already in existence, but intimation about the same has to be made to such authority as may be specified by appropriate Govt. on the day of declaration Strike / lock-out shall be illegal, if commenced or declared in contravention of Section 62 or continued in contravention of order made under Section 42 (7) and no person shall spend / apply any money in furtherance or support of illegal strike / lock-out 15 4
  • 155. Industrial Disputes Act 1947 ID Act Divided into two- 1. Public Utility Services(Sec 22) 2. General (Section 23 Industrial Relations Code Section 62
  • 156. NOTICE REQUIREMENT . (1) No person employed in an industrial establishment shall go on strike, in breach of contract— (a) without giving to the employer notice of strike, as hereinafter provided, within sixty days before striking; or (b) within fourteen days of giving such notice; or (c) before the expiry of the date of strike specified in any such notice; (d) during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings; or (e) (e) during the pendency of proceedings before a Tribunal or a National Industrial Tribunal and sixty days, after the conclusion of such proceedings; or (f) (f) during the pendency of arbitration proceedings before an arbitrator and sixty days after the conclusion of such proceedings, where a notification has been issued under sub-section (5) of section 42; or (g) during any period in which a settlement or award is in operation, in respect of any of the matters covered by the settlement or award.
  • 157. Section 22 - Notice • The Strike Notice stated that the strike shall commence on 23/12/2017 at 3:00 p.m. sharp. • The Strike commenced at 9:00 a.m. on the given day. • Is the strike illegal ?
  • 158. STRIKE • Rule 23. Number of persons by whom the notice of strike shall be given, the person or persons to whom such notice shall be given and the manner of giving such notice under sub-section (4) of section 62. - The notice of strike referred to in sub- section (1) of section 62 shall be given to the employer of an industrial establishment in Form-VII which shall be duly signed by the Secretary and five elected representatives of the registered Trade Union relating to such industrial establishment endorsing the copy thereof electronically or otherwise to the concerned conciliation officer, Chief Labour Commissioner (Central) and the Central Government.
  • 159.
  • 160. STRIKE • Report to conciliation officer- immediate –Form VI • Good conduct bond-Unfair Labour Practise • No work No Pay but in case of legal and justified strike discretion of court to give wages.
  • 161. • (3) The notice of strike or lock-out under this section shall not be necessary where there is already in existence a strike or, as the case may be, lock-out, but the employer shall send intimation of such lock-out or strike on the day on which it is declared, to such authority as may be specified by the appropriate Government either generally or for a particular area or for a particular class of services.
  • 162. Strike – against the Standing Orders • . • STRIKE AGAINST STANDING ORDER When workers strike without notice, against the standing orders the result would be 1.Each workmen is guilty of misconduct 2. Can be summarily dismissed 3. It cannot be called a justified strike Thus in case of a lighting strike you can take action against the workers for misconduct
  • 163. SO • In case where the SO does not make any provision for the misconduct related to strike, in such cases charge-sheet needs to be issued and inquiry needs to be conducted.
  • 164. Standing Orders --Misconduct --Strike If there are specific activates in the course of strike provided under Standing Orders as misconduct only a summary enquiry establishing the perpetration is sufficient to impose the punishment for example inciting others to strike in contravention of any law, Gharaeo, Bandh etc.
  • 165. Illegal strikes • The breach of statutory provisions make a strike illegal. • So it the strike is in violation of section 62 we can say that the strike is illegal. • No matter how orderly the strike may be it still will be illegal if it is in violation of the statutory. • An illegal strike can invite disciplinary proceedings, as it is an act of misconduct. ILLEGAL STRIKE
  • 166. Sec. 85(13)- Penalty for illegal strike. • (13) Any worker who commences, continues or otherwise acts in furtherance of a strike which is illegal under this Code, shall be punishable with fine which shall not be less than one thousand rupees, but which may extend up to ten thousand rupees or with imprisonment for a term which may extend to one month, or with both. Sec. 85(13)- Penalty for illegal strike. Sec. 85(13)- Penalty for illegal strike. Sec. 85(13)- Penalty for illegal strike.
  • 167. STRIKE • The law has explained what is an illegal strike but it has not explained what is an unjustified strike. • There may be cases where the demand is of such an urgent and serious nature that it would not be reasonable to expect the workmen to wait till until the reference has been made to the government. Here strike even before such a request is made is well justified. • Swadeshi Industries Ltd. v. Workmen • In this case the court held that even if the strike is illegal, it can still be justifiable. ILLEGAL STRIKE V. JUSTIFIABLE STRIKE
  • 169. Unjustified strikes • To see if a strike is justified or not, we have to look into; 1. service conditions of the workmen 2. The nature of their demands 3. The cause which led to the strike 4. The urgency of the cause or the demand 5. The reasons for not resorting on the dispute resolution mechanism. • This kind of enquiry should appropriately be made by the industrial adjudicator. • Unjustified strikes
  • 170. Illegal vis-à-vis unjustified strike • Taking part in an illegal strike is a misconduct. • Every person who participates in an illegal strike should be made subject to departmental enquiry. • An illegal strike should not be characterised as justifiable. • Whether a strike was legal or not is a question of law but whether it is justifiable or not is a question of fact which needs to be proved through evidence.
  • 171. Wages during strike • The usual wage rule for the period of strike is; “NO WORK NO PAY” Bank of India v. T S Kelawala, (1990) 2 LLJ 39 (SC) The court further explained that; “whoever voluntarily refrains from doing work when it is offered to him, is not entitled for a payment for work he has not done.”
  • 172. Wage Def 2(y) " wages" means all remuneration capable of being expressed in terms of money, which would, if the terms of employment, expressed or implied, were fulfilled, be payable to a workman in respect of his employment or of work done in such employment. In Algemene Bank, Nederland v Central Govt. Labour Court the Calcutta High Court held that “… in express terms, mentions as remuneration, that which would have been payable, if the terms of the employment were fulfilled and one of the main terms of employment, undoubtedly, is that the employee would work for a specified period of work during the working hours’.
  • 173. Exercise • Referred Not-Referred Referred Not-Referred • CAN STRIKE CONTINUE? Increase in wages Entertainment allowance Payment of Bonus Desserts in the canteen Menu STRIKE
  • 174. • Consider two scenarios 1. Many frivolous demands could be made by the Workmen 2. Appropriate government could be biased and not refer genuine demands leading to industrial unrest.
  • 175. • Workmen of Edward Keventars Pvt Ltd v. Delli Administration • Delhi HC –Strikes only regarding disputes referred can be prohibited • Keventars Karmachari Sangh v. Lieutenant Governor Delhi • Division Bench Delhi HC- Even if one of the demands have been referred the strike will be in connection with such dispute and can be prohibited • In Delli Administration v. Workmen of Edward Keventars Pvt Ltd- Supreme Court of India observed that Strikes only regarding disputes referred can be prohibited
  • 177. NOTICE 2) No employer of an industrial establishment shall lock-out any of his workers— (a) without giving them notice of lock-out as hereinafter provided, within sixty days before locking-out; or (b) within fourteen days of giving such notice; or (c) before the expiry of the date of lock-out specified in any such notice as aforesaid; or (d) during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings; or (e) (e) during the pendency of proceedings before a Tribunal or a National Industrial Tribunal and sixty days, after the conclusion of such proceedings; or (f) (f) during the pendency of arbitration proceedings before an arbitrator and sixty days after the conclusion of such proceedings, where a notification has been issued under sub-section (5) of section 42; or (g) during any period in which a settlement or award is in operation, in respect of
  • 178. Lockout • Facts • TISCO which employs 80,000 employees has a scaffolding unit with 20 workers. It decides to lock out this unit as the workmen have raised an ID for higher wages. Is it possible for TISCO to do the same.
  • 179. Ferozdeen vs. State of Bengal 1960 I LLJ 244 (249) SC • SC has emphasized that these words have to given restricted meaning. The word 'any' connotes unlimited but with the condition that it has to be in respect of temporary to other of business place or suspension of work on his premises. Remember that lock out exists only when it is in terms of complete suspension of business activity in a particular business premises.
  • 180. Justified Lockout 1. It was not accentuated due to an unfair labour practice 2. It was necessitated due to the conduct of the workmen - As a result of persistent go slow 3. It was adopted due to security measures 4. It was due to unreasonable strike • Lock out should not be declared in haste, as reprisal or as a victimisation tool. • A lockout can be declared as a security measure to protect the personnel and property in case the strike goes violent and no willingness is shown on the part of the workmen to negotiate. JUSTIFIED LOCKOUT
  • 181. Unjustified Lockout 1. For coercing the workmen to accept lower wages 2. Managements refusal to allow the workmen to enter the factory. 3. On account of unfair labour practice
  • 182. Wages • In case where the lockout is illegal the full wages during the given period needs to be paid. • Even in cases where the lockout are legal the remedy of wages has been given where the reasons are unjustifiable . • Bharat Barrel and Drum Mfg. Co. V. their Workmen • (1952) 2 LLJ 717
  • 183. Lockout • What happens when unjustified strikes are followed by unjustified lockouts. “apportionment of blame” North Dooars Tea Company v. Workmen of Dem Dima Tea (1964) 1 LLJ 436. “In matters relating to apportionment of blame between the management and the workers there can be no inflexible formula or rigid yardstick to determine the percentage of apportionment, and the extent of apportionment of blame would depend on the facts and circumstances of each case”.
  • 184.
  • 185. On receipt of Strike Notice EXAMINE CAREFULLY Whether Strike is unjustified Whether Strike is illegal Whether it is a misconduct under the standing orders or service rules Whether Strike is violation of Section 62 of IR code.
  • 186. Notice of such violation should be posted on the notice board of the company informing the workers of the illegality/ unjustifiability of the strike and its consequence and they be advised to desist from the strike. A copy to be send to the Union and the individual workers home address N O T I C E S A copy to be send to the Labour Authorities and request their good offices to avert strike
  • 187. P a y & E S I Generally strike starts after the pay day, if however the pay day falls during strike period, wages need not be disbursed in the pretext of strike and labour authorities should be informed that due to strike payment of wages is not possible Some times workers approach the ESI authorities with ulterior motives and ESI authorities on account of superficial or negligent investigations issue ESI slips showing that they are ailing, they succeed in getting sick benefits ie. Half wages from the ESI authorities during the strike period without any difficulty and also succeed in avoiding any disciplinary action by the employer-So ESI corpn be requested to keep a close watch on such workers.
  • 188. I n j u n c t i o n & L o c k o u t As far as possible, an injunction order may be obtained from a civil court in order to avoid gathering of the workers near the factory gate under Order 39 Rule 1 of the Civil Procedure Code- Pls be aware Sec 18 of the TU act. In case there is apprehension of the strike being continued for a considerable long time then the desirability of declaring a lockout and inform the workers, union and labour authorities through registered notices in order to avoid payment of wages
  • 189. P O L I C E P R O T E C T I O N Interim order Section 144 CrPC for assembly in gate Interim order Section 144 CrPC for assembly in gate Writ of Mandamus under Article 226 of the Constitution
  • 191. Definition • Failure / refusal / inability of the employer to provide work due to shortage of raw materials / break down of machinery / natural calamity etc. • Except: Workers who are retrenched Lay- off • Termination by the employer of the service of worker for any reason • Except: Punishment inflicted by way of disciplinary action Retrenchme nt • Permanent closing down of place of employment / part thereof Closur e 19 1
  • 193.
  • 194. Retrenchment • After world war II new and improved machinery started to flow into the country which resulted in retrenchment of surplus labour.
  • 195. Retrenchment • “Reduction of surplus labour with a view to cut down expenses and to effect economy of operations” • It can be referred to as • - technological unemployment • - transitional unemployment • The common feature has been the involuntary unemployment of surplus labour. •
  • 196. Retrenchment • Se 2 (zh) "retrenchment means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include– (a) voluntary retirement of the workman; or • (b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or • (bb)termination of the service of the workman as a result of the non- renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or • (c) termination of the service of a workman on the ground of
  • 197. Retrenchment includes 1. termination of the service of a workman 2. by the employer 3. for any reason whatsoever
  • 198. Retrenchment excludes 1. voluntary retirement 2. Termination as a punishment inflicted by way of disciplinary action 3. retirement on reaching the age of superannuation 4. termination of the service due to non-renewal of the contract of employment 5. termination due to continued ill-health
  • 199. Continued ill-health • Intermittent ill health cannot be termed as Continued ill-health.
  • 200. • Abandonment can amount to retrenchment but voluntary resignation not. • Employed in Projects/ not included
  • 201. Requirement of existing running factory • The entire scheme of the Act assumes that there is an existing and running industry.
  • 202. Kusunda Area of M/s BCCL v. The Presiding Officer, Central Govt. • Termination of the services of a workman because he has abandoned the job will amount to retrenchment. • But in case he gives his resignation voluntarily, it will not be retrenchment.
  • 203. probationer • 3 types 1. maximum period of probation mentioned in service rules or letter of appointment- after expiry of the period-if employed-deemed employee-retrenchment • 2. maximum period of probation not mentioned in service rules or letter of appointment- No retrenchment comp. • 3 . maximum period of probation mentioned in service rules or letter of appointment- but a confirmation to be provided for appointment then not deemed employer- No retrenchment comp
  • 204. • Retrenchment cannot be applied in cases where there is complete closure of the establishment and where the services of all the workmen has been terminated.
  • 205. State Bank of India v. N Sundaramoney • AIR 1976 SC 1111
  • 206. 70. ------- Conditions precedent to retrenchment • Fixed term contract avoided continued practice unfair labour practice • 70. Conditions precedent to retrenchment of workmen.- No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until— • (a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice: • (b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service] or any part thereof in excess of six months; • and (c) notice in the prescribed manner is served on the appropriate Government
  • 207. Section 70 • One month notice or wages in lieu of notice • Even where there is refusal to accept the retrenchment compensation and wages in –lieu of notice , it will not invalidate the tender of payment.
  • 208. • Notice should be personally provided • Any mode of payment can be resorted to including asking to collect dues from office • Retrenchment will be illegal when no seniority list has been prepared
  • 209. Nar Singh Pal v. UOI 2000 (3) SCC 588. • Encashment of check by a workman containing amount of retrenchment compensation will not be a waiver to challenge the validity of retrenchment.
  • 210. Section 71 • Rule of Last In First Out = LIFO • Where there is a departure from this rule, the reasons should be noted.
  • 211. Section 72 • Re-employment of retrenched workmen • Re-employment of retrenched workmen.- Where any workmen are retrenched, and the employer proposes to take into his employment any persons, he shall, in such manner as may be prescribed, give an opportunity to the retrenched workmen to offer themselves for re-employment
  • 212. Section 70 • One month notice or wages in lieu of notice • Even where there is refusal to accept the retrenchment compensation and wages in –lieu of notice , it will not invaildate the tender of payment.
  • 213. • Notice should be personally provided • Any mode of payment can be resorted to including asking to collect dues from office • Retrenchment will be illegal when no seniority list has been prepared • Abandonment will amount to retrenchment but voluntary resignation not. • Employed in Projects/ not included
  • 214. • Last come first go – not an absolute rule, reasons should be provided • Retrenchment justified when dept. is shut down • Closure of unit illegal if he can be transferred to other units
  • 215. Burden of proof • The Burden of proof is on the workmen to show that he has worked for a continuous period of 240 days.
  • 216. • Cannot pick and choose offer should be to all
  • 217. Retrenchment of an employee without following the provisions of section70 would be void-ab-inition. Here the workmen can claim re-instatement.
  • 218. • The Supreme Court of India used to grant reinstatement alone with back wages in case of non-compliance of the procedural requirements such as written notice giving reasons, or wages in lieu of such notice and retrenchment compensation, before retrenchment of services of workman under the Industrial Disputes Act 1947, prior 1991. • The same has also been reiterated and recapitulated by the SC in Judgments such as State of Bombay v. Hospital Mazdoor Sabha, Bombay Union of Journalists v. State of Bombay, State Bank of India v. N. Sundara Money, Santosh Gupta v. State Bank of Patiala, Mohan Lal v. Management of M/s. Bharat Electronics Ltd, L. Robert D’Souza v. Executive Engineer, Southern Railway, Surendra Kumar Verma v. Industrial Tribunal, Gammon India Ltd. v. Niranjan Das, Gurmail Singh v. State of Punjab, Delhi Cloth and General Mills CO Ltd vs Shambhu Nath Mukherjo
  • 219. Contd. Adequate notices has to be given by the employer to the workers of establishment during lay-off / retrenchment / closure as prescribed in the Code Intimations / report shall be made to the appropriate Govt. / authority about such lay-off / retrenchment / closure as prescribed in the Code 21 9
  • 220. Compensation to workers 11 Laid-off workers shall satisfy the following conditions for claiming compensation during the period of lay-off except weekly holidays an amount equal to 50% (basic wages + DA) His name must be borne on the muster rolls of the industrial establishment He must have completed > 1 year of continuous service He must not be a badli worker (one who is employed in the place of another worker) / casual worker Retrenched workers shall be compensated for a sum equal to- 15 days average pay / average pay of such days for every completed year of continuous service / part thereof > 6 months