Industria Disputes act

AMITY GLOBALBUSINESS SCHOOL Bangalore

Industrial Disputes act

Noopur sarin

AMITY GLOBALBUSINESS SCHOOL BangaloreBrief

• Industrial dispute, Parties to ID

• Effects of ID ( production, income loss, psychological, alienation of workforce)

• Applicability Extends to whole of India

• The ACT came into force on the first day of April, 1947

• 81 Sections and 5 Schedules.


• Definitions

• Disputes

AMITY GLOBALBUSINESS SCHOOL BangaloreImportant Definitions

Appropriate Government [sec 2(a)] Industries fall under central or state labour machinery. Sec. 2(a) helps us to determine under whose jurisdiction a particular industry falls and whether the state/central rules will apply. As per S.O.556(E) dated 3rd July 1998 the Govt. of India has delegated the functions of the central govt. to state govts.

AMITY GLOBALBUSINESS SCHOOL BangaloreDef:

• Industry [2(j)]--- “Industry” means any business, trade, undertaking, manufacture or calling, service, employment, handicraft, or industrial occupation or avocation of workmen.

•

AMITY GLOBALBUSINESS SCHOOL BangaloreEg. of industries

• Activities carried on by Govt. or charitable organizations are industry.

• The SC in this case laid down a working principle: “ an activity systematically or habitually undertaken for

the production and or distribution of goods or for rendering of material services to the community with the help of employees is an undertaking”

• An undertaking to be an Industry must be analogous to trade or business.

• Sovereign or Regal activities are out side the scope of Industry

AMITY GLOBALBUSINESS SCHOOL BangaloreEg. Of industry

• University of Delhi-v-Ramanath AIR1963 SC 1873 the SC held that University is not an industry-because:

• Main scheme of an educational institution is imparting education

• Teaching is not with in the purview of industry as there is no commercial motive

• The subordinate staff play a minor /insignificant role in the process of imparting education

AMITY GLOBALBUSINESS SCHOOL BangaloreBWSSB Case

• The BWSSB case developed a working principle to determine whether an activity is an industry or not:

3 Way Test Cooperation between employer & employee. Systematic activity. Satisfy the human wants or needs by

production and or distribution of goods or services;• Such an activity is an industry• Absence of profit motive is irrelevant.• If the organization is trade or business it does not cease to

be one because of philanthropy animating the undertaking

AMITY GLOBALBUSINESS SCHOOL BangaloreWorkman

• 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 express or implied

• It includes industrial disputes arising out of dismissal, discharge or retrenchment

• It excludes persons subject to defence forces, police force and prison service

• It excludes persons who are mainly employed in managerial or Administrative capacity


Distinction between workman and independent contractor

• Workman does the work by himself where as an independent contractor gets the work done by others

• Workman is subject to supervision and control of the employer where as independent contractor is not

• Workman is hired by the employer and can be terminated. In case of contractor there is a contract.

AMITY GLOBALBUSINESS SCHOOL BangaloreWages [Sec 2(rr)] :

• Wages [Sec 2(rr)] Basic, D A, Value of house accommodation, traveling concession, commission and or other remuneration

AMITY GLOBALBUSINESS SCHOOL BangalorePendency of Proceedings

• The period from which the conciliation /adjudication/arbitration proceedings commences and concludes under Sec 20 is called period of pendency.

•

AMITY GLOBALBUSINESS SCHOOL BangalorePublic Utility Service

• Means any transport used for passenegres and goods, telegraph, telephone, supply of power light, air transport, major port, post, docks, safety department any system of public conservancy or sanitation


Industrial Dispute

• E vs E ;E vs W: W vs W

• The subject matter should be connected with

a) employment or non employment;

b) terms of employment, c) conditions of labour. • Raised by workmen ( union or group of

workmen) , plurality of workman and employer• Cases of Dismissal, Discharge, Retrenchment,

or Termination. For no other issues an individual workman is not permitted to raise a dispute

under the ID Act,1947.


INDUSTRIALDISPUTES

Compulsory Adjudication LC, IT, NT

Award Sec. 18(3) of ID Act

Publication of award

Judicial review - Art. 226 orArt. 136

Voluntary Arbitration – 10-A

Award – 18(2) & 18(3)

Judicial review - Art. 226 orArt. 136

Conciliation (if successfulSettlement)

Sec. 18(3) of The I D act

Collective Bargaining –If successful – settlement

Sec. 18(1) of ID Act

Reference by theAppropriate Government

Sec. 10(1)

S. 2-A, 33-A


• Preventive machinery (proactive)

• Settlement Machinery ( reactive)

Refer page 197 monappa

AMITY GLOBALBUSINESS SCHOOL Bangalorepreventive

• WPM as works committee, JMC, shop councils

• CB

• Tripartite bodies (ILC, SLC)

• Code of discipline pg 212

• Standing orders

AMITY GLOBALBUSINESS SCHOOL BangaloreTripatriate

1.Indian Labour conference• Promote uniformity in labour legislation

• Procedure for settlement• Discuss matters of all india Imp. b/w

employers and employee2. Standing labour committee


Collective bargaining

• Resolution by negotiation b/w Wand E• I.D.Act recognises settlements other than Conciliation

settlements• bilateral settlements to be binding on the parties to the

settlements• Tata Chemicals-v-Workmen(AIR1978SC828)• Unfair labour practices recognises that it is illegal to

refuse with a recognised trade union.• In the process of Bilateral negitiations the parties can

use the Weapons of strikes and Lock outs in order to make the opposite party behave reasonably

AMITY GLOBALBUSINESS SCHOOL BangaloreAUTHORITIES UNDER THIS ACT

• Works Committee Conciliation officers Boards of Conciliation Courts of Inquiry Labour Courts Tribunals National Tribunals

AMITY GLOBALBUSINESS SCHOOL BangaloreWorks Committee

• Establishments with 100 or more workers Members: Equal number of representatives of the Employer and Employees

• promotion of good relationship between employer and employee(s)

• The committee once set up will have 2 years term. The Govt. have delegated the power to issue orders to various officers of the Labour dept.]


Conciliation

• It is facilitated negotiation• Conciliation and Board of conciliation• It is compulsory in public utility services• In public utility services notice has to be given

before going on strike.

AMITY GLOBALBUSINESS SCHOOL BangaloreBinding nature of conciliation

settlement• Binding on parties to the dispute• Where a party is an employer includes heirs

successors or assigns in respect of the establishment to which the dispute relates

• Incase party is workmen, all persons who were employed in the establishment or part of the est. to which the dispute relates on the date of the dispute and all subsequent workmen

AMITY GLOBALBUSINESS SCHOOL BangaloreConciliation officers

• Appointed by the appropriate Government

• Duty: Settlement of industrial disputes.

• Nature : 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.

AMITY GLOBALBUSINESS SCHOOL BangaloreDuties of Conciliation Officer

• when a strike/lockout notice is issued in a public utility service the conciliation officer is bound to convene immediate conciliation meeting.

• If he succeeds in bringing out an understanding he gets the parties to sign a settlement in Form H


Duties of Conciliation officer

• copy to the Govt.• If he fails to bring about a settlement, he

has to bring the fact to the attention of the Government

• Conciliation process should be closed within 14 days

• When notice of change is issued under Sec 9A he is obliged to hold meetings to resolve the dispute


Powers of Conciliation Officer

• Enter and inspect [Sec 11(1)]

• Summon any person as witness or compel the production of document [Sec 11(4) and rule 17]

• Grant/Refuse approval/permission to petition filed by employer on disciplinary matters during pendency of conciliation before him

AMITY GLOBALBUSINESS SCHOOL BangalorePendency of Conciliation

Commencement. When notice of strike/lockout in PUS is received

by the CO. The date on which the dispute is referred to the

conciliation board. When the conciliation officer issues notice of

conciliation. Conclusion. When the settlement is signed by the parties.

When the failure report is received by the Government.

AMITY GLOBALBUSINESS SCHOOL BangaloreBoards of Conciliation

• Appointed by the appropriate Government as occasion arises for settlement of disputes.

• Board shall consist of an independent Chairman and two or four other members in equal numbers to represent the parties to the dispute

AMITY GLOBALBUSINESS SCHOOL BangaloreArbitration

• When conciliation fails, and if the parties wish to refer the issue for arbitration, both the sides shall sign an arbitration agreement in Form C under Rule 7 and send it to Government.

• The Government will then appoint an arbitrator. • Arbitration award is implemented like an

adjudication award.

AMITY GLOBALBUSINESS SCHOOL BangaloreVoluntary Arbitration Sec10A

• Agreement b/w the W &M• Send copy to the Govt and conciliation officer• Publication of the agreement• KarnalLeather Karmachari Sanghatan –v-Liberty

foot wear (1989)$SCC448-Publication of the arbitration agreement is a must before arbitration

• Notification by the Govt if majority workmen are parties to the dispute

• Binding nature of the award-18(2) or 18(3)

AMITY GLOBALBUSINESS SCHOOL BangaloreAdjudication :

• Adjudication Authorities.

• Labour Courts [Sn 2(kkb),7,Sch II ] Tribunals [Sn.2(r) 7A, Sch.III ]

• National Tribunals [Sn.2(11), 7B, Sch.III ]

AMITY GLOBALBUSINESS SCHOOL BangaloreLabour Courts :

• are constituted by the appropriate Govt. for the adjudication of industrial disputes relating to any matter specified in the Second Schedule

AMITY GLOBALBUSINESS SCHOOL Bangalore(the II Schedule)

1.The propriety or legality of an order passed by an employer under the standing orders;

2.The application and interpretation of standing order; 3.Discharge or dismissal of workmen including re-instatement of, or grant of relief to, workmen wrongfully dismissed;

4.Withdrawal of any customary concession or privilege; 5.Illegality or otherwise of a strike or lock-out; and

6.All matters other than those specified in the Third Schedule.

AMITY GLOBALBUSINESS SCHOOL BangaloreTribunals

• constituted by the appropriate Govt. for the adjudication of industrial disputes relating to any matter specified in the Second Schedule or the Third Schedule

•


III schedule (industrial Tribunals)

1.Wages, including the period and mode of payment; 2.Compensatory and other allowances; 3.Hours of work and rest intervals; 4.Leave with wages and holidays;5.Bonus, profit sharing, provident fund and gratuity; 6.Shift working otherwise than in accordance with standing

orders; 7.Classification by grades; 8.Rules of discipline; 9.Rationalisation; 10.Retrenchment of workmen and closure of establishment;

and 11.Any other matter that may be prescribed.


Can employer or workman directly approach for adjudication?

• No. Unlike civil courts, parties cannot approach the adjudicating officer. The disputes have to be referred to the adjudicating officer by the Government.

AMITY GLOBALBUSINESS SCHOOL BangalorePendency of Adjudication

• Adjudication / arbitration proceedings are deemed to commence on the date when the Govt. refers the dispute to the authorities under Sec. 10 or 10(A). Adjudication / arbitration proceedings are deemed to have concluded on the date on which their awards become enforceable


Impact of Pendency

Any strike / lockout in any PUS During the pendency of conciliation and seven days thereafter would be illegal. [ Sn.22(d)].

Any strike / lockout in a non PUS during the pendency of conciliation before a board or thereafter would be illegal.[Sn.23(a)]

During the pendency of proceedings, the employer shall not make any alteration of any matter connected with the dispute without the written permission of the authority before whom the dispute is pending.

AMITY GLOBALBUSINESS SCHOOL BangaloreImpact of proceedings pendency

• During the pendency of proceedings any disciplinary punishment for misconduct connected with the dispute can be taken only with the written permission of the authority before whom the dispute is pending . For taking action for anything not connected with the pendency ratification has to be obtained. If not approved the workman will have to be reinstated with back wages.

• TU office bearers who qualify the status of ‘Protected workmen’ should not be punished or terminated without prior permission from the authority during this period. If the employer violates these provisions the aggrieved workman can file complaint before the authority in Form I. The authority shall pass orders after hearing the parties. Note:- Even if the approval is granted the worker is not barred from raising dispute under section 2(k) or 2A.

AMITY GLOBALBUSINESS SCHOOL BangaloreCourts of Inquiry :

• Constituted by the appropriate Government as occasion arises for inquiring into any matter appearing to be connected with or relevant to an industrial dispute

•National Tribunals :

constituted by the Central Government 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.

AMITY GLOBALBUSINESS SCHOOL BangaloreWeapons

• Weapons used by labour (strike , Boycott, gherao, picketing)

• By management:• Employers asso., lock

out,• Termination of service• Refer pg 181 of a Monappa

strike

PrimaryEconomic strike

General stay in

slow down

Secondary Sympathetic

AMITY GLOBALBUSINESS SCHOOL BangaloreWhy strikes?????:{

• Causes of Disputes• HRA, working hrs.,

dismissal, layoff, non recognition, communication

personnelMisc IndisciplinepoliticalEconomic

AMITY GLOBALBUSINESS SCHOOL BangaloreStrike Vs Lockout

• Strike Vs Lockout By workmen Refusal to work or accept employment. Under common understanding or acting in concert. [Section 2q] By employer Temporary closure Refusal to continue to employ the persons employed. [Section 2(l).

•Illegal Strikes / Lockouts :

• Illegal Strikes / Lockouts In Public Utility Service [Sn.22(1)and(2),23,30,19] Without giving 14 days notice. Commenced after 42 days of notice. Prior to the date indicated in the notice. During the pendency of proceedings During the period when a settlement or award is in operation on same matters. In non PUSs

• a) in breach of contract ,b) during the pendency of proceedings, c) during the settlement or award is in operation.[Sn.23,20,19]

• In both the strike / lockout will be illegal if continued after Govt. banning. [Sec.10(4A),24]

AMITY GLOBALBUSINESS SCHOOL BangaloreLAY-OFF AND RETRENCHMENT

• No workman (other than a badli workman or a casual workman) whose name is borne on the muster-rolls of an industrial establishment wherein 50 or more workers are employed shall be laid-off by his employer except with the prior permission of the appropriate Government.

• are applicable only to category of industries like factories, mines and plantations

AMITY GLOBALBUSINESS SCHOOL BangaloreDifference layoff and retren.

• By retrenchment : termination of employment by which employee is discharged of the duties paying compensation . 15 days salary for every completed year of service It is permanent cessation of employment.

Lay Off, is temporary cessation of employment due to non availability of power, materials, breakdown of machinery, over stock, lack of order etc. compensation as , 50 % of salary. Once the work is regularised, the employees laid off will resume work as usual. The days for which they were laid off will be counted as continuous service.

For both retrenchment and lay off, prior intimation to the state government shall be given.

• In case of companies employing more than 100 employees, prior approval/ permission from the government to retrench or lay off employees is required.

AMITY GLOBALBUSINESS SCHOOL BangaloreLayoff :

• Layoff Compensation Fifty percent of Basic+ DA.[Sec.25( c)] In case permission is not obtained/refused full wages. [Sec 25 (M) (8).

• If the employee refuse to accept alternative employment under the same employer within a radius of 5 Miles the worker is not eligible for any compensation. [Sec.25(E)(1).

• If not reported for attendance no compensation. [Sec.25(E)(2). If lay off is due to strike or go slow by another section of the unit, No compensation [Sec.25(E)(3).]

AMITY GLOBALBUSINESS SCHOOL BangaloreRetrenchment :

• One month notice or one months pay in lieu of notice should be given in smaller (employing less than 100 employees) establishments [Sec. 25F(a)]

• Three months notice or three months pay should be given in larger (employing more than 100 employees) establishments. [Sec.25N (1)(a).]

•Retrenchment Compensation :

• Retrenchment Compensation Eligible for 15 days wages for every completed year or part in excess of six months. [Sec.25N(9),25F(b),25B(1) & (2)]

• If standing order or other laws permits anything higher it will prevail [Sec.25J(1)]

• In smaller (less than 100) estts., if the layoff exceeded 45 days during the immediate preceding 12 months, the lay off compensation can be offset from the retrenchment compensation payable to the workmen. [Proviso to Sec. 25C.]

•

AMITY GLOBALBUSINESS SCHOOL BangaloreRight of the Retrenched Workmen

• If at any later date the plant or process is restarted, the retrenched workmen should be given preference for reemployment and intimation given to the workmen and union and a notice should be exhibited at least 10 days before filling up the vacancy [Sec.25H,Rule 78] Any provision on retrenchment in any other law or standing orders( except those are more beneficial) shall be null and void [Sec. 25 J]

AMITY GLOBALBUSINESS SCHOOL BangaloreClosure :

• A permanent closure of (a) a place of employment, or (b) a part of establishment [Sec.2 (cc).]

• No permission required in smaller estts. [Sec.25K] Where Permission is required ,application should be submitted (in the case of factories, mines and plantations) to the Govt. with copy to the Union at least 90 days in advance. [Sec 25(O)(1)]

• If no reply is received within 60 days permission can be assumed [Sec.25(O)(3).]

AMITY GLOBALBUSINESS SCHOOL BangaloreNotice of Change :

• Notice of Change Items given in schedule IV shall not be changed or altered without giving notice [Sec.9A]

• Notice should be given at least 21 days in advance. If the change is a result of an agreement no notice is required. [Sec.9A(b)] The notice must be given Form E [Rule 34] If the workmen / union doesn't object, the change ca be effected after 21 days. [Sn 9A(1)] If objected employer has to wait till conciliation / adjudication is over. [Sec. 33(1).] The Govt. can exempt any estt from this provision [

AMITY GLOBALBUSINESS SCHOOL BangaloreRepresentation of Parties

• Representation of Parties Advocates are prohibited from appearance. [ Sec.36(3)] However advocates can be permitted on mutual consent.[ Sec.36(4)]

• A co worker, any union official can represent a workman. [Sn.36(1),(a),(b),(c )] Officer of an association of Employers. [Sn. 36(2)(a)(b)(c )]

AMITY GLOBALBUSINESS SCHOOL BangaloreSettlements

• Settlements Bipartite settlements. Binding only on the parties who have signed. It is not enforceable on others. [Sec. 18.]

• Tripartite settlements under Sec. 12(3) are enforceable to………. 1..all parties to the dispute. 2..all parties summoned to the conciliation 3..in the case of employer on his successors etc. 4..in case of workmen on all workmen on the rolls on the date and all future employees.

AMITY GLOBALBUSINESS SCHOOL BangaloreOperation of Settlement

• Operation of Settlement From the date agreed or if the date is silent from the date of signing.[Sec.19(1)] For a period of 6 months if no date is specified, or for a longer period indicated in the settlement.[Sec.19(2)] Obligations continue beyond the agreed period and will continue till proper notice of termination is given under Sec. 19(2).As per judicial decisions the terms shall continue even after termination till another agreement is reached.

•Notice of Termination of Agreement. :

• Notice of Termination of Agreement. A party representing the majority of persons bound by the settlement can issue a valid notice of termination of agreement.[Sec.19(7)].


UNFAIR LABOUR PRACTICES On the part of employers

• The part of employers threatening workmen with discharge or dismissal, lock-out or closure, if they join a TU

• To establish employer-sponsored TUs of workmen discharging or punishing a workman, because he urged other workmen to join or organise a TU discharging or dismissing a workman for taking part in any strike (not being a strike which it deemed to be an illegal strike under this Act) changing seniority rating of workmen because of TU activities

• Refusing to promote workmen to higher posts on account of their TU activities giving unmerited promotions to certain workmen with a view to creating friction amongst other workmen, or to undermine the strength of their TU discharging office bearers or active members of the TU on account of their TU activities



• To discharge or dismiss workmen – by way of victimisation; by falsely implicating a workman in a criminal case on false or fabricated evidence; on untrue allegations of absence without leave; in utter disregard of the principles of natural justice in the conduct of domestic enquiry or with undue haste; for misconduct of a minor or technical character, without having any regard to the nature of the particular misconduct or the past record of service of the workman.



• To abolish the work of a regular nature being done by workmen, and to give such work to contractors as a measure of breaking a strike. To transfer a workman mala fide from one place to another, under the excuse of following management policy. To insist upon individual workmen, who are on a legal strike to sign a good conduct bond, as a precondition to allowing them to resume work.

• To show favoritism or partiality to one set of workers regardless of merit.



• To employ workmen as "badlis" casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen. To discharge or discriminate against any workman for filing charges or testifying against an employer in any enquiry or proceeding relating to any industrial dispute.

• To recruit workmen during a strike which is not an illegal strike. • Failure to implement award, settlement or agreement. • To indulge in acts of force or violence. • To refuse to bargain collectively, in good faith with the recognised

TUs. Proposing or continuing a lock-out deemed to be illegal under this Act


UNFAIR LABOUR PRACTICES On the part of workmen

• advise, support or instigate any strike deemed to be illegal under this Act. coerce workmen to join a TU or refrain from joining any TU, picket in such a manner that non-striking workmen are physically debarred from entering the work places indulge in acts of force or violence or intimidation in connection with a strike against non-striking workmen or against managerial staff

• For a recognised union to refuse to bargain collectively in good faith with the employer. To indulge in coercive activities against certification of bargaining representative.


UNFAIR LABOUR PRACTICES On the part of workmen

• To stage, encourage or instigate such forms of coercive actions as willful "go slow", squat on the work premises or "gherao" of any of the members of the managerial or other staff.

• To stage demonstrations at the residences of the employers or the managerial staff members.

• To motivate or indulge in willful damage to employer's property. To indulge in acts of force or violence or to hold out threats of intimidation against any workman with a view to preventing him from attending work. Wednesday, December 30, 2009 65

Industria Disputes act

Documents

public utility

industrial

strike lockout

amity global

good faith

business school

industrial

standing orders