0d4d4irmodule ii, factory,disputes (1)
DESCRIPTION
..TRANSCRIPT
Slide 1( Module II )
INTRODUCTION
In India the first Factories Act was passed in 1881. This Act was basically designed to protect children and to provide few measures for health and safety of the workers. This law was applicable to only those factories, which employed 100 or more workers. In 1891 another factories Act was passed which extended to the factories employing 50 or more workers.
THE FACTORIES ACT, 1948.
Amity School of Business
Objective
Notice of Change of Manager/Occupier
General duties as to health/Safety/Welfare
Articles and substances for the use in Factories
To provide Health Measures
To provide Safety Measures
To provide Welfare Measures
Leave with wages
Notice of Accident ,Dangerous Occurrences
Obligation regarding hazardous process
FACTORIES ACT, 1948
The Factories Act, is a social legislation which has been enacted for occupational safety, health and welfare of workers at work places.
This legislation is being enforced by technical officers i.e. Inspectors of Factories, Dy. Chief Inspectors of Factories who work under the control of the Chief Inspector of Factories and overall control of the Labour Commissioner
APPLICABILITY
It applies to factories covered under the Factories Act, 1948. The industries in which ten (10) or more than ten workers are employed and are engaged in manufacturing process being carried out with the aid of power or twenty or more than twenty workers are employed in manufacturing process being carried out without the aid of power, are covered under the provisions of this Act.
Amity School of Business
Approval of Factory Building Plans before construction/extension, under the Delhi Factories Rules, 1950 .
Grant of Licences under the Delhi Factories Rules, 1950, and to take action against factories running without obtaining Licence.
Renewal of Licences granted under the Delhi Factories Rules, 1950, by the Dy. Chief Inspectors of Factories .
Inspections of factories by District Inspectors of Factories, for investigation of complaints, serious/fatal accidents as well as suo moto inspections to check compliance of provisions of this Act relating to :-
I. Health
II. Safety
VI. Annual Leave with wages etc.
Amity School of Business
FACTORY: means any premises:
- in which 10 or more than 10 workers are employed on any day of the preceding 12 months and are engaged in manufacturing process being carried out with the aid of power
- 20 or more than 20 workers are employed on any day of the preceding 12 months in manufacturing process being carried out without the aid of power, are covered under the provisions of this Act.
OCCUPIER : who has the ultimate control over the affairs of the factory. An occupier may be an owner, a lessee, or a mere licensee.
Amity School of Business
Contd-
Worker: A worker means a person employed in a manufacturing process, directly or by or through any agency with or without the knowledge of the principal employer.
Manufacturing process: means any process for-
Making, altering, repairing, delivery or
Pumping oil, water or
Generating, transforming power or
Amity Business School
Amity Business School
Approval, Licensing and Registration of Factories.
Sec. 6 of the Act empowers the State Government to make rules for the submission of plans, approval, licensing and registration of factories . The application in writing along with the plans and specifications of the factory, for permission, is submitted to the Chief Inspector or the State Government.
In case nothing is heard within 3 months from the appropriate authority, the permission is deemed to be granted.
If the State Government or the Chief Inspector refuses to give permission, the applicant may appeal to the Central Government or the State Government respectively with in 30 days of the date of refusal.
Amity Business School
Amity Business School
Notice by Occupier( sec.7)
Sec 7 of the Act requires the occupier to give notice to the Chief Inspector 15 days before he occupies any premises as a factory. The notice contains:
Name & situation of the factory.
Name & address of the occupier.
Name & address of the owner of the premises.
Address to which communication relating to the factory may be sent.
Nature of the manufacturing process to be carried on in next 12 months.
Total rated horsepower installed or to be installed in the factory.
Name of the manager of the factory.
Name of the workers likely to be employed.
Amity Business School
Amity Business School
Health & Welfare Provisions
The occupier is obligatory to provide for the health, safety and welfare of the workers in the factory and also to maintain inspection staff.
HEALTH
Sec. 11-20 carries provisions relating to health of the workers.
Cleanliness: effective drainage & use of disinfectants.
Disposal of wastes & effluents after treatment.
Adequate ventilation & temperature-
Adoption of prescribed standards by the State Government.
Notice by the Chief Inspector to the occupier to adopt measures for reduction of temperature.
Dust & Fume.
Amity School of Business
Contd-
Overcrowding: 9.9/ 14.2 cubic meter of space per worker. Notice of maximum workers to be employed in a workroom shall be posted in each workroom as per the written order of the Chief Inspector.
Sufficient & suitable lighting as per State Government standards.
Drinking water: suitable drinking points to be legibly marked & to be 6 meters away from washing area , urinals etc, unless shorter distance is approved in writing by the Chief Inspector. Cold water in factories where more than 250 workers are employed.
Urinals
Spittoons: Contravention of notice regarding the use of spittoons shall be punishable with fine not exceeding Rs. 5.
Amity School of Business
SAFETY (Secs.21-41)
Safety provisions are absolute and obligatory on the occupier to follow.
Fencing of machinery.
Work on near machinery in motion
Restriction on young persons to work on dangerous machines as specified by the State Government.
Hoists and lifts to be of good mechanical construction and examined once in every 6 months.
Protection of eyes
Amity School of Business
Precautions against dangerous fumes.
Safety officers.
The State Government may make rules requiring the provisions in any factory of such further devices and measures for securing the safety of persons employed as it may deem necessary.
Amity School of Business
Site appraisal committee.
Specific responsibility of the occupier in relation to hazardous processes.
Workers’ participation in safety management.
Right of workers to warn about imminent danger.
Penalty.
WELFARE( Secs.42-51)
The various provisions in regard to welfare of the workers are:
Washing facilities: separate for male and female should be conveniently accessible and clean
Facilities for storing and drying clothing.
Facilities for sitting for those workers who are obliged to work in a standing position.
First- aid box with prescribed contents for every 150 workers & ambulance room in a factory employing more than 500 workers.
Canteens in factory employing more than 250 workers.
Amity School of Business
Contd-
Sufficiently lighted , ventilated, and clean shelters, rest rooms and lunch rooms in factory employing more than 150 workers.
Creches for children under the age of 6 years in factories employing more than 30 women workers.
Welfare officers in factories employing 500 or more workers.
Amity School of Business
Working Hours for Adults
Weekly hours: an adult worker shall be allowed to work only for 48 hours in any week.
Weekly holidays: there shall be holiday for the whole day in a week and it shall be on the first day of the week.
Compensatory holiday: when a worker is deprived of any of the weekly holiday, he is entitled to compensatory holidays of equal number of holidays so lost either in the same month or within next two months following that month.
Intervals for rest: no adult worker shall work continuously for more than five hours unless a rest of half an hour is given.
Extra wages for overtime: where a worker works in a factory for more than 9 hours in any day or more than 48 hours in any week, be entitled to wages at the rate of twice his ordinary rate of wages.
Amity School of Business
Prohibition on employment of children below 14 years
A child above 14 or an adolescent may be allowed to work in a factory if
A certificate of fitness is in custody of the manager of the factory and
Such child or adolescent carries, while he is at work, a token giving reference to such certificate.
Certificate of fitness: granted by a certifying surgeon after examining him and ascertaining his fitness for work in a factory. An application by the young person shall be accompanied by a document signed by manager. It is valid for 12 months and can be renewed. It can also be revoked any time if the holder is no longer fit to work.
Amity School of Business
That he has attained the prescribed physical standards
That he is fit for such work.
Effect of certificate: An adolescent granted a certificate of fitness to work in a factory as an adult shall be deemed to be an adult for all the purposes of Factories Act. All the provisions relating to adults apply to the child.
Working hours: No child shall be employed to work in a factory:
for more than 4-1/2 hours in a day
during the night.
The period of work shall be limited to two shifts only.
These shifts shall not overlap.
No child shall be allowed to work in a factory on any day on which he has been working in another factory.
Amity School of Business
Contd-
Register of child workers: The manager of every factory where children are employed shall maintain a register of child workers showing:
Name of each child worker in the factory,
Nature of his work,
Where his group work on shifts,
The number of his certificate of fitness.
Power of the inspector to require medical examination of a person or young person , when he is of the opinion:
That a person working without the certificate is a young person,
That the young person working in a factory with a certificate is no longer fit to work.
Amity School of Business
Employment of Women
All provisions regarding the employment of adults apply to adult female workers except the following provisions:
Work on or near the machinery in motion.
Creches.
A woman shall not be allowed to work in a factory for more than 48 hours in any week or 9 hours in a day.
No exemption shall be granted from the provisions relating to daily working hours.
A woman shall be required to work in a factory only between 6 am. to 7 pm. The State Government by notification may vary these limits in respect of any factory etc.
Prohibition of employment in dangerous operations.
Amity School of Business
ANNUAL LEAVE WITH WAGES
Every worker who has worked for a period of 240 days or more during a calendar year shall be allowed during the subsequent calendar year leave with wages for a certain number of days. The leave shall be calculated at a rate of:
If an adult, one day for every 20 days of work performed by him during the previous calendar year,
If a child, one day for every 15 days of work performed by him during the previous calendar year.
240 days include the lay-off days, maternity leave to a female worker, & the leave earned in the previous year.
Where a worker is discharged or dismissed or quits employment or dies, he or his heir or nominee shall be given the wages in lieu of the quantum of leave to which he is entitled. before the expiry if the second working day from the date of such dismissal, discharge etc.
Amity Business School
Amity Business School
Contd-
The unavailed leave by any worker in any one calendar year shall be allowed to him in the succeeding year- not exceeding 30(adults) & 40(child).
Application for leave shall be made in writing 15 days before the date of leave but application for leave due to illness may not be made within a specified time.
The scheme for grant of leave shall be displayed for 12 months at some convenient and conspicuous places.
Wages during leave period: worker shall be entitled to wages at a rate equal to the daily average of his total full time earnings for the days on which he actually worked during the month immediately preceding his leave period.
Amity School of Business
GENERAL PENALTY FOR OFFENCES: ( sec. 92)
If in any factory there is any contravention of any of the provisions of this Act or of any rules or of any order in writing , the occupier and manager of the factory shall each be guilty of an offence and punishable with imprisonment for a term which may extend to two years or with fine which may extend to one lakh rupees or with both, and if the contravention is continued after conviction, with a further fine which may extend to one thousand rupees for each day on which the contravention is so continued .
Where contravention of any of the provisions under section 87 (dealing with dangerous operations) has resulted in an accident causing death or serious bodily injury, the fine shall not be less than twenty-five thousand rupees in the case of an accident causing death, and five thousand rupees in the case of an accident causing serious bodily injury.
Amity School of Business
ENHANCED PENALTY: ( sec. 94)
If any person who has been convicted of any offence punishable under section 92 is again guilty of an offence involving a contravention of the same provision, he shall be punishable on a subsequent conviction with imprisonment for a term which may extend to three years or with fine which shall not be less than ten thousand rupees but which may extend to two lakh rupees or with both.
Provided further that where contravention of any of the provisions under section 87 has resulted in an accident causing death or serious bodily injury, the fine shall not be less than thirty five thousand rupees in the case of an accident causing death and ten thousand rupees in the case of an accident causing serious bodily injury.
Amity School of Business
LIMITATION OF PROSECUTIONS
No Court shall take cognizance of any offence punishable under this Act unless complaint thereof is made within three months of the date on which the alleged commission of the offence came to the knowledge of an Inspector :
Provided that where the offence consists of disobeying a written order made by an Inspector, complaint thereof may be made within six months of the date on which the offence is alleged to have been committed.
APPEALS : The manager or the occupier of a factory on whom an order in writing by an Inspector has been served under the provisions of this Act, within thirty days of the service of the order, appeal against it to the prescribed authority, and such authority may, subject to rules made in this behalf by the State Government, confirm, modify or reverse the order.
Amity School of Business
The Industrial Disputes Act, 1947
Definition - Persuasive, conciliation and voluntary process for the settlement of industrial disputes - power of the Govt. under ID Act, Instrument of economic coercion - Strike & lock out, Lay off Retrenchment, Transfer and closures - Discharge and Dismissal - Managements prerogative during pendency of proceeding
Amity School of Business
The Industrial Disputes Act, 1947
The Industrial Disputes Act, 1947 came into force on the first day of April, 1947. It is an Act to make provisions for the investigation and settlement of industrial disputes and for certain other purposes hereinafter appearing. This Act extends to whole of India and applies to all industries whether private or Government owned. The latest amendment in the Act was made in 1996.
Amity School of Business
OBJECTIVES
Promotion of measures of securing and preserving good relations between the employer and the workmen.
Investigation and settlement of industrial disputes between employers and employers, employers and workmen or workmen and workmen through trade unions or association of employers.
Prevention of illegal strikes and lock-out.
Relief to workman in matter of lay-off and retrenchment.
Promotion of collective bargaining.
Amity School of Business
DEFINITIONS
Industry: means any systematic activity carried on by co-operation between an employer and his workmen (whether such workmen are 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),
but does not include--
(1) any agricultural operation.
(2) hospitals or dispensaries.
(4) institutions owned or managed by organisations wholly or substantially engaged in any charitable, social or philanthropic service;
(5) khadi or village industries;
(6) any activity of the Government relatable to the sovereign functions of the Government including all the activities carried on by the departments of the Central Government dealing with defence research, atomic energy and space;
(7) any domestic service;
(8) any activity, being a profession practised by an individual or body or individuals, if the number of persons employed by the individual or body of individuals in relation to such profession is less than ten;
Amity School of Business
DEFINITIONS
Award- means an interim or a final determination of any industrial dispute or of any question relating thereto by any Labour Court, Industrial Tribunal or National Industrial Tribunal and includes an arbitration award ( voluntary reference of disputes to arbitration) .
Wages : means all remuneration capable of being expressed in terms of money, which would, if the terms of employment, express or implied, were fulfilled, be payable to a workman in respect of his employment or of work done in such employment.
Industrial dispute: means any dispute or difference 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 persons.
Amity School of Business
Contd-
Appropriate Government: in relation to any industrial dispute concerning any industry carried on by or under the authority of the Central Government, or by a railway company or concerning any such controlled industry as may be specified in this behalf by the Central Government or in relation to an industrial dispute the Industrial Finance Corporation of India or the Life Insurance Corporation of India , or the Oil and Natural Gas Corporation Limited or an air transport service, or a banking or an insurance company, a mine, an oil field etc, the Central Government, and
in relation to any other industrial dispute, the State Government;
Amity School of Business
Authorities under the Act
The Act provides an elaborate and effective machinery for bringing about industrial peace by setting up various authorities for the investigation and settlement of industrial disputes. The authorities specified under the Act are:
Works Committees.
Conciliation Officers.
Voluntary Settlement and Conciliation.
Authorities that use conciliation process for settlement of dispute are:
Works Committees.
Conciliation Officers.
Works Committees.
In the case of any industrial establishment in which 100 or more workmen are employed or have been employed on any day in the preceding twelve months, the appropriate Government may by order require the employer to constitute a Works Committee consisting of representatives of employers and workmen in the establishment. There shall be equivalent number of representatives of workmen and the employer. Duties:
To promote measures for securing and preserving amity and good relations between the employer and workmen.
To comment upon matters of their common interest or concern
Endeavour to compose any material difference of opinion in respect of various matters.
Amity School of Business
Conciliation officers
The appropriate Government may, by notification in the Official Gazette, 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.
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.
Amity School of Business
POWERS:
DUTIES:
To hold conciliation proceedings.
To investigate the dispute.
To send a report and memorandum of settlement to appropriate Government.
To send full report to the appropriate Government setting forth the steps taken by him in case no settlement is arrived.
Amity School of Business
Boards of Conciliation
The appropriate Government may as occasion arises by notification in the Official Gazette constitute a Board of Conciliation for promoting the settlement of an industrial dispute.
A Board shall consist of a chairman and two or four other members, as the appropriate Government thinks fit.
The chairman shall be an independent person and the other members shall be persons appointed in equal numbers to represent to the dispute on their recommendation, provided that, if any party fails to make a recommendation within the prescribed time, the appropriate Government shall appoint such persons as it thinks fit to represent that party.
Provided that if the appropriate Government notifies the Board that the services of the chairman or of any other member have ceased to be available, the Board shall not act until a new chairman or member, as the case may be, has been appointed.
Amity School of Business
Reference of disputes to Boards
If the appropriate Government is of the opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing refer the dispute to a Board of Conciliation for promoting a settlement.
Where the dispute has been referred, the appropriate Government may prohibit strike or lockout which may be in existence on the date of reference.
Amity School of Business
To bring about a settlement of the dispute.
To send a report and memorandum of settlement to the appropriate Government.
To communicate reasons to the parties if no further reference made.
To submit report within 2 months
POWERS
Power to enter premises.
Powers of civil court.
enforcing the attendance of any person and examining him on oath;
compelling the production of documents and material objects;
issuing commissions for the examination of witnesses;
in respect of such other matters as may be prescribed, and every inquiry or investigation by a Board, Court shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code .
Amity School of Business
Courts of Inquiry
The appropriate Government may by notification in the Official Gazette constitute a Court of Inquiry for inquiring into any matter connected with or relevant to an industrial dispute.
A court may consist of one or more independent persons and where a court consists of two or more members, one of them shall be appointed as the chairman.
Provided that, if the appropriate Government notifies the court that the services of the chairman have ceased to be available, the court shall not act until a new chairman has been appointed.
REFERENCE OF DISPUTE
If the appropriate Government is of the opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing refer the dispute to a Court of Inquiry for promoting a settlement.
Amity School of Business
Power to enter premises.
Powers of civil court.
enforcing the attendance of any person and examining him on oath;
compelling the production of documents and material objects;
issuing commissions for the examination of witnesses;
in respect of such other matters as may be prescribed, and every inquiry or investigation by a Board, Court shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code .
DUTIES
A Court shall inquire into the matters referred to it and report thereon to the appropriate Government ordinarily within a period of six months from the commencement of its inquiry.
Amity School of Business
Publication of reports and awards -
Every report of a Board or Court shall be in writing and signed by all the members . Any member of the Board or the Court may record any minute of dissent from the report or from any recommendations. The report together with dissent recorded shall be published by the appropriate Government within a period of thirty days from the date of its receipt
Amity School of Business
Voluntary Reference of
Disputes to Arbitration
Arbitration is a voluntary method of resolving industrial disputes. It is resorted to before the dispute is referred to a Labour Court, Industrial Tribunal, National Tribunal.
Reference of disputes:
Where any industrial dispute exists or is apprehended and has not been referred for adjudication the employer and the workmen may refer the dispute, by a written agreement, to arbitration specifying the arbitrator or arbitrators
Where the agreement provides for the even number of arbitrators, the agreement shall provide for the appointment of umpire whose decision will prevail. The copy of the agreement shall be sent to the appropriate Government and conciliation officer, which shall be published in 30 days from the date of receipt.
Where an industrial dispute has been referred to arbitration and notifiaction has been issued, the appropriate government may by order prohibit the continuance of strike and lock-out.
Amity School of Business
Contd-
Procedure : The appropriate government within one month from the date of receipt of copy of arbitration agreement, issue a notice, according to which the employers and the workmen who are not parties to the agreement but are concerned with the dispute, shall represent their case before the arbitrator/ arbitrators.
AWARD : The arbitrator or arbitrators shall investigate the dispute and submit to the appropriate Government the award dully signed by them. The award shall become enforceable on the expiry of 30 days from the date of its publication.
Amity School of Business
ADJUDICATION
The ID Act; 1947 provides for three-tier system of adjudication of industrial dispute. The cases either may be referred by the government to court after the receipt of failure report from conciliation officer or directly by any party. Labour Courts and Industrial Tribunals may be constituted by the State government, while the National Tribunal is constituted by the Central government.
LABOUR COURT : Labour court deals with:
Withdrawal of any statutory concession.
Illegality or otherwise of a strike or lockout.
Discharge or dismissal, reinstatement of workers.
The Industrial Disputes Act, 1947 was amended in 1982, which provided that cases relating to individual workmen should be disposed of within a period not exceeding 3 months. In other cases the appropriate Government must specify the period within which an award must be submitted by the Court or Tribunal
Amity School of Business
Qualifications
The Presiding Officer of a Labour Court should at least have held a judicial office for not less than 7 years
Has been a Presiding Officer of a Labour Court under a State Act for not less than 5 years.
He is or has been a District Judge or an Additional District Judge for three years
A judge of a High Court .
Amity School of Business
INDUSTRIAL TRIBUNAL
It is a one-man adhoc body (Presiding Officer) appointed by the government. Has a wider jurisdiction than the Labour Court. The government may appoint two assessors to advice the Presiding Officer in the proceedings.
Industrial tribunal deals with-
Bonus, profit sharing, provident fund, gratuity.
Hours of work and rest periods.
Rules of discipline.
Qualifications: The Presiding Officer of an Industrial Tribunal
Has been at least a District Judge or an Additional District Judge for three years.
He is or has been a judge in a High Court.
Must not have attained the age of 65 years.
Amity School of Business
NATIONAL TRIBUNAL
This is the third one- man adjudicatory body to be appointed by the Central Government to deal with the disputes of national importance and matters relating to functioning of labour and industrial tribunals.
Qualification:
No person can be appointed as the presiding Officer of a National Tribunal unless he is or has been a Judge of High Court.
Presiding officer should be an independent person and must not have attained the age of 65 years.
The Central Government may appoint two assessors to advice the Presiding Officer in the proceedings.
Amity School of Business
DEFINITION: STRIKE means-
Cessation of work by a body of persons employed in an industry acting in combination; or
A concerned refusal of any number of persons who are or have been so employed to continue to work or to accept employment; or
Refusal under common understanding of any number of such persons to continue to work or to accept employment
LOCK-OUT: Means the temporary closing of a place or employment or the suspension of work, or the refusal by an employer to continue to employ any number of persons employed by him.
General prohibition of strikes and lock-outs-
No workman who is employed in any industrial establishment shall go on strike in breach of contract and no employer of any such workman shall declare a lock-out:
(a) during the pendency of conciliation proceedings before a Board and seven days after the conclusion of such proceedings;
(b) during the pendency of proceedings before a Labour Court, Tribunal or National Tribunal and two months after the conclusion of such proceedings;
(c) during the pendency of arbitration proceedings before an arbitrator and two months after the conclusion of such proceedings,
(d) 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.
Amity School of Business
Prohibition of strikes in public utility services :
No person employed in a public utility service shall go on strike, in breach of contract
(a) without giving to the employer, notice of strike, within six weeks 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 as
aforesaid; or
(d) during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings.
Lock-out in public utility service:
No employer carrying on any public utility service shall lock-out any of his workman
(a) without giving them notice of lock-out, within six weeks before locking-out; or
(b) within 14 days of giving such notice; or
(c) before the expiry of the date of lock-out 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.
If on any day an employer receives from any persons employed by him any such notices or gives any such notices to persons employed by him, he shall with in five days report to the appropriate government .
Amity School of Business
TYPES OF STRIKES
Go- slow: does not amount to strike but is serious case of misconduct. This deliberate delaying of production by workmen. While delaying production and reducing the output the workmen claim to have remained employed and entitled to full wages.
Sympathetic Strike: Cessation of work in the support of the demands of workmen belonging to other employer . This does not amount to strike and management can take disciplinary action for absence of workmen.
Sit down, pen-down, tool down Strike :the workmen after taking their seats refuse to do work. They even refuse to leave the premises.
Hunger Strike: Some workers may resort to fast on or near the place or residence of the employer.
Amity Business School
Amity Business School
It is declared in contravention of the provisions or
A lock-out declared in consequence of an illegal strike or a strike declared in consequence of an illegal lockout is not illegal.
Amity School of Business
Penalty for illegal strikes and lock-outs -
(1) Any workman who commences, continues an illegal strike , shall be punishable with imprisonment for a term which may extend to one month, or with fine which may extend to fifty rupees, or with both.
(2) Any employer who commences, continues with illegal lock-out shall be punishable with imprisonment for a term which may extend to one month, or with fine which may extend to one thousand rupees, or with both.
Penalty for instigation-
Any person who instigates others to take part in, an illegal strike or lock-out, shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
Penalty for giving financial aid to illegal strikes and lock-outs -
Any person who knowingly expends any money in direct support of any illegal strike or lock-out shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
Amity School of Business
LAY-OFF & RETRENCHMENT
Lay-off: means the failure, refusal or inability of employer to give employment to a workman:
Whose name is borne on the rolls of his industrial establishment,
Who has not been retrenched.
The failure, refusal or inability to give employment may be due to;
Shortage of coal, power or raw materials, or
The accumulation of stocks, or
The breakdown of machinery, or
Natural calamity or for any other connected reasons.
Lay-off is not a right conferred upon the employer but an obligation on the employer, ie. In case of temporary stoppage of work, not to discharge the workman but to lay-off the workman till the situation improves. The contract of employment is not broken but suspended.
Amity School of Business
LAY-OFF
Provisions relating to lay-off shall not apply to the following Industrial Establishments :
(a) In which less than fifty workmen on an average per working day have been employed in the preceding calendar month; or
(b) Where the work is of a seasonal character or in which work is performed only intermittently.
Right of workmen laid-off for compensation -
Whenever a workman (other than a badli workman or a casual workman) whose name is borne on the rolls of an industrial establishment and who has completed not less than one year of continuous service is laid-off, whether continuously or intermittently, he shall be paid by the employer for all days during which he is so laid-off, except for such weekly holidays, compensation which shall be equal to fifty per cent, of the total of the basic wages and dearness allowance that would have been payable to him had he not been so laid-off:
Amity School of Business
Workmen not entitled to compensation in certain cases -
(i) if he refuses to accept any alternative employment in the same establishment from which he has been laid-off, or in any other establishment belonging to the same employer situated in the same town or village or situated within a radius of five miles from the establishment to which he belongs.
(ii) if he does not present himself for work at the establishment at the appointed time during normal working hours at least once a day;
(iii) if such laying-off is due to a strike or slowing-down of production on the part of workmen in another part of the establishment.
Amity School of Business
(1)Lay-off to be with permission from appropriate Government or specified authority.
(2)Application to be made by the employer in a prescribed manner and a copy of such application shall also be given to the workmen concerned .
(3)Application for permission to continue lay-off in a mine: Where the workmen of a mine, have been laid-off for reasons of fire, flood, explosion etc., the employer, shall, within a period of thirty days from the date of commencement of such lay-off, shall apply to the appropriate Government or the specified authority for permission to continue the lay-off.
(4)Oder granting or refusing permission for lay-off to be communicated to employer and workmen: the appropriate Government or the authority, after enquiry and after giving a reasonable opportunity of being heard to the employer, the workmen concerned and the persons interested in such lay-off, having regard to the genuineness and adequacy of the reasons, the interests of the workmen, by order in writing, grant or refuse to grant such permission and a copy of such order shall be communicated to the employer and the workmen
Amity School of Business
Contd-
(5)Presumption of permission: if no order is communicated within 60 days and the order shall be final and binding on all the parties concerned and shall remain in force for one year from the date of such order.
(6)Review of order: the appropriate Government or the authority may, either on its own motion or on the application made by the employer or any workman, review its order or refer it to a Tribunal for adjudication
(7)Illegal lay-off : Where no application for permission to lay-off is made or where the permission for any lay-off has been refused, such lay-off shall be deemed to be illegal from the date on which the workmen had been laid-off and the workmen shall be entitled to all the benefits under any law for the time being in force as if they had not been laid-off.
Amity School of Business
RETRENCHMENT
Means to end, conclude or cease. Under I D Act it means the termination of the service of a workman by the employer for any reason other than as punishment inflicted by way of disciplinary action.
It does not include:
Voluntary retirement of workman.
Superannuation.
Termination of employment as result of non-renewal of the contract of employment.
Termination of the service of a workman on the ground of continued ill-health.
Amity School of Business
Conditions precedent to retrenchment of workmen –
(1) 3 months’ notice and prior permission of the appropriate government or the specified authority required before retrenchment: No workman employed in any industrial establishment, who has been in continuous service for not less than one year under an employer shall be retrenched until,
(a) the workman has been given three months' notice in writing indicating the reasons for retrenchment; and
(b) the prior permission of the appropriate Government or authority has been obtained.
(2)Application to be made for permission: An application clearly stating the reasons for the intended retrenchment and a copy of such application shall also be served on the concerned workmen.
Amity School of Business
Contd-
(3)Order granting or refusing permission for retrenchment to be communicated to the employer and workmen.
(4) Presumption of permission if no order is communicated within 60 days .
(5) Review of order .
(6) Illegal retrenchment.
(7) Compensation : Where permission for retrenchment has been granted, every workman who is employed in that establishment immediately before the date of application for permission shall be entitled to, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service.
PROCEDURE FOR RETRENCHMENT: Principle of last come first go.
RE- EMPLOYMENT : The retrenched workmen (citizen of India) shall be given preference over other persons.
Amity School of Business
Transfer and closing down of undertaking
Sometimes the ownership or management of an undertaking is transferred, whether by agreement or by operation of law, from the employer to a new employer, every workman who has been in continuous service for not less than one year in that undertaking immediately before such transfer shall be entitled to notice and compensation accordingly, as if the workman had been retrenched :
Provided that nothing in this section shall apply to a workman in any case where there has been a change of employers by reason of the transfer, if
(a) the service of the workman has not been interrupted by such transfer;
(b) the terms and conditions of service applicable to the workman after such transfer are not in any way less favorable to the workman than those applicable to him immediately before the transfer.
Amity School of Business
Procedure for closing down an undertaking
Application for permission to close to be made at least 90 days before the intended date of closure to the appropriate Government, stating clearly the reasons and a copy of such application shall be served on the representatives of the workmen in the prescribed manner.
Order granting or refusing permission to be communicated to employer and workmen.
Presumption of permission if no order is communicated within 60 days.
Order granting or refusing permission final and binding on all parties for 1 year.
Review of order or reference to tribunal for adjudication by appropriate government either on its own or on the application made by the employer or the workmen.
Amity School of Business
Consequences of illegal closure.
INTRODUCTION
In India the first Factories Act was passed in 1881. This Act was basically designed to protect children and to provide few measures for health and safety of the workers. This law was applicable to only those factories, which employed 100 or more workers. In 1891 another factories Act was passed which extended to the factories employing 50 or more workers.
THE FACTORIES ACT, 1948.
Amity School of Business
Objective
Notice of Change of Manager/Occupier
General duties as to health/Safety/Welfare
Articles and substances for the use in Factories
To provide Health Measures
To provide Safety Measures
To provide Welfare Measures
Leave with wages
Notice of Accident ,Dangerous Occurrences
Obligation regarding hazardous process
FACTORIES ACT, 1948
The Factories Act, is a social legislation which has been enacted for occupational safety, health and welfare of workers at work places.
This legislation is being enforced by technical officers i.e. Inspectors of Factories, Dy. Chief Inspectors of Factories who work under the control of the Chief Inspector of Factories and overall control of the Labour Commissioner
APPLICABILITY
It applies to factories covered under the Factories Act, 1948. The industries in which ten (10) or more than ten workers are employed and are engaged in manufacturing process being carried out with the aid of power or twenty or more than twenty workers are employed in manufacturing process being carried out without the aid of power, are covered under the provisions of this Act.
Amity School of Business
Approval of Factory Building Plans before construction/extension, under the Delhi Factories Rules, 1950 .
Grant of Licences under the Delhi Factories Rules, 1950, and to take action against factories running without obtaining Licence.
Renewal of Licences granted under the Delhi Factories Rules, 1950, by the Dy. Chief Inspectors of Factories .
Inspections of factories by District Inspectors of Factories, for investigation of complaints, serious/fatal accidents as well as suo moto inspections to check compliance of provisions of this Act relating to :-
I. Health
II. Safety
VI. Annual Leave with wages etc.
Amity School of Business
FACTORY: means any premises:
- in which 10 or more than 10 workers are employed on any day of the preceding 12 months and are engaged in manufacturing process being carried out with the aid of power
- 20 or more than 20 workers are employed on any day of the preceding 12 months in manufacturing process being carried out without the aid of power, are covered under the provisions of this Act.
OCCUPIER : who has the ultimate control over the affairs of the factory. An occupier may be an owner, a lessee, or a mere licensee.
Amity School of Business
Contd-
Worker: A worker means a person employed in a manufacturing process, directly or by or through any agency with or without the knowledge of the principal employer.
Manufacturing process: means any process for-
Making, altering, repairing, delivery or
Pumping oil, water or
Generating, transforming power or
Amity Business School
Amity Business School
Approval, Licensing and Registration of Factories.
Sec. 6 of the Act empowers the State Government to make rules for the submission of plans, approval, licensing and registration of factories . The application in writing along with the plans and specifications of the factory, for permission, is submitted to the Chief Inspector or the State Government.
In case nothing is heard within 3 months from the appropriate authority, the permission is deemed to be granted.
If the State Government or the Chief Inspector refuses to give permission, the applicant may appeal to the Central Government or the State Government respectively with in 30 days of the date of refusal.
Amity Business School
Amity Business School
Notice by Occupier( sec.7)
Sec 7 of the Act requires the occupier to give notice to the Chief Inspector 15 days before he occupies any premises as a factory. The notice contains:
Name & situation of the factory.
Name & address of the occupier.
Name & address of the owner of the premises.
Address to which communication relating to the factory may be sent.
Nature of the manufacturing process to be carried on in next 12 months.
Total rated horsepower installed or to be installed in the factory.
Name of the manager of the factory.
Name of the workers likely to be employed.
Amity Business School
Amity Business School
Health & Welfare Provisions
The occupier is obligatory to provide for the health, safety and welfare of the workers in the factory and also to maintain inspection staff.
HEALTH
Sec. 11-20 carries provisions relating to health of the workers.
Cleanliness: effective drainage & use of disinfectants.
Disposal of wastes & effluents after treatment.
Adequate ventilation & temperature-
Adoption of prescribed standards by the State Government.
Notice by the Chief Inspector to the occupier to adopt measures for reduction of temperature.
Dust & Fume.
Amity School of Business
Contd-
Overcrowding: 9.9/ 14.2 cubic meter of space per worker. Notice of maximum workers to be employed in a workroom shall be posted in each workroom as per the written order of the Chief Inspector.
Sufficient & suitable lighting as per State Government standards.
Drinking water: suitable drinking points to be legibly marked & to be 6 meters away from washing area , urinals etc, unless shorter distance is approved in writing by the Chief Inspector. Cold water in factories where more than 250 workers are employed.
Urinals
Spittoons: Contravention of notice regarding the use of spittoons shall be punishable with fine not exceeding Rs. 5.
Amity School of Business
SAFETY (Secs.21-41)
Safety provisions are absolute and obligatory on the occupier to follow.
Fencing of machinery.
Work on near machinery in motion
Restriction on young persons to work on dangerous machines as specified by the State Government.
Hoists and lifts to be of good mechanical construction and examined once in every 6 months.
Protection of eyes
Amity School of Business
Precautions against dangerous fumes.
Safety officers.
The State Government may make rules requiring the provisions in any factory of such further devices and measures for securing the safety of persons employed as it may deem necessary.
Amity School of Business
Site appraisal committee.
Specific responsibility of the occupier in relation to hazardous processes.
Workers’ participation in safety management.
Right of workers to warn about imminent danger.
Penalty.
WELFARE( Secs.42-51)
The various provisions in regard to welfare of the workers are:
Washing facilities: separate for male and female should be conveniently accessible and clean
Facilities for storing and drying clothing.
Facilities for sitting for those workers who are obliged to work in a standing position.
First- aid box with prescribed contents for every 150 workers & ambulance room in a factory employing more than 500 workers.
Canteens in factory employing more than 250 workers.
Amity School of Business
Contd-
Sufficiently lighted , ventilated, and clean shelters, rest rooms and lunch rooms in factory employing more than 150 workers.
Creches for children under the age of 6 years in factories employing more than 30 women workers.
Welfare officers in factories employing 500 or more workers.
Amity School of Business
Working Hours for Adults
Weekly hours: an adult worker shall be allowed to work only for 48 hours in any week.
Weekly holidays: there shall be holiday for the whole day in a week and it shall be on the first day of the week.
Compensatory holiday: when a worker is deprived of any of the weekly holiday, he is entitled to compensatory holidays of equal number of holidays so lost either in the same month or within next two months following that month.
Intervals for rest: no adult worker shall work continuously for more than five hours unless a rest of half an hour is given.
Extra wages for overtime: where a worker works in a factory for more than 9 hours in any day or more than 48 hours in any week, be entitled to wages at the rate of twice his ordinary rate of wages.
Amity School of Business
Prohibition on employment of children below 14 years
A child above 14 or an adolescent may be allowed to work in a factory if
A certificate of fitness is in custody of the manager of the factory and
Such child or adolescent carries, while he is at work, a token giving reference to such certificate.
Certificate of fitness: granted by a certifying surgeon after examining him and ascertaining his fitness for work in a factory. An application by the young person shall be accompanied by a document signed by manager. It is valid for 12 months and can be renewed. It can also be revoked any time if the holder is no longer fit to work.
Amity School of Business
That he has attained the prescribed physical standards
That he is fit for such work.
Effect of certificate: An adolescent granted a certificate of fitness to work in a factory as an adult shall be deemed to be an adult for all the purposes of Factories Act. All the provisions relating to adults apply to the child.
Working hours: No child shall be employed to work in a factory:
for more than 4-1/2 hours in a day
during the night.
The period of work shall be limited to two shifts only.
These shifts shall not overlap.
No child shall be allowed to work in a factory on any day on which he has been working in another factory.
Amity School of Business
Contd-
Register of child workers: The manager of every factory where children are employed shall maintain a register of child workers showing:
Name of each child worker in the factory,
Nature of his work,
Where his group work on shifts,
The number of his certificate of fitness.
Power of the inspector to require medical examination of a person or young person , when he is of the opinion:
That a person working without the certificate is a young person,
That the young person working in a factory with a certificate is no longer fit to work.
Amity School of Business
Employment of Women
All provisions regarding the employment of adults apply to adult female workers except the following provisions:
Work on or near the machinery in motion.
Creches.
A woman shall not be allowed to work in a factory for more than 48 hours in any week or 9 hours in a day.
No exemption shall be granted from the provisions relating to daily working hours.
A woman shall be required to work in a factory only between 6 am. to 7 pm. The State Government by notification may vary these limits in respect of any factory etc.
Prohibition of employment in dangerous operations.
Amity School of Business
ANNUAL LEAVE WITH WAGES
Every worker who has worked for a period of 240 days or more during a calendar year shall be allowed during the subsequent calendar year leave with wages for a certain number of days. The leave shall be calculated at a rate of:
If an adult, one day for every 20 days of work performed by him during the previous calendar year,
If a child, one day for every 15 days of work performed by him during the previous calendar year.
240 days include the lay-off days, maternity leave to a female worker, & the leave earned in the previous year.
Where a worker is discharged or dismissed or quits employment or dies, he or his heir or nominee shall be given the wages in lieu of the quantum of leave to which he is entitled. before the expiry if the second working day from the date of such dismissal, discharge etc.
Amity Business School
Amity Business School
Contd-
The unavailed leave by any worker in any one calendar year shall be allowed to him in the succeeding year- not exceeding 30(adults) & 40(child).
Application for leave shall be made in writing 15 days before the date of leave but application for leave due to illness may not be made within a specified time.
The scheme for grant of leave shall be displayed for 12 months at some convenient and conspicuous places.
Wages during leave period: worker shall be entitled to wages at a rate equal to the daily average of his total full time earnings for the days on which he actually worked during the month immediately preceding his leave period.
Amity School of Business
GENERAL PENALTY FOR OFFENCES: ( sec. 92)
If in any factory there is any contravention of any of the provisions of this Act or of any rules or of any order in writing , the occupier and manager of the factory shall each be guilty of an offence and punishable with imprisonment for a term which may extend to two years or with fine which may extend to one lakh rupees or with both, and if the contravention is continued after conviction, with a further fine which may extend to one thousand rupees for each day on which the contravention is so continued .
Where contravention of any of the provisions under section 87 (dealing with dangerous operations) has resulted in an accident causing death or serious bodily injury, the fine shall not be less than twenty-five thousand rupees in the case of an accident causing death, and five thousand rupees in the case of an accident causing serious bodily injury.
Amity School of Business
ENHANCED PENALTY: ( sec. 94)
If any person who has been convicted of any offence punishable under section 92 is again guilty of an offence involving a contravention of the same provision, he shall be punishable on a subsequent conviction with imprisonment for a term which may extend to three years or with fine which shall not be less than ten thousand rupees but which may extend to two lakh rupees or with both.
Provided further that where contravention of any of the provisions under section 87 has resulted in an accident causing death or serious bodily injury, the fine shall not be less than thirty five thousand rupees in the case of an accident causing death and ten thousand rupees in the case of an accident causing serious bodily injury.
Amity School of Business
LIMITATION OF PROSECUTIONS
No Court shall take cognizance of any offence punishable under this Act unless complaint thereof is made within three months of the date on which the alleged commission of the offence came to the knowledge of an Inspector :
Provided that where the offence consists of disobeying a written order made by an Inspector, complaint thereof may be made within six months of the date on which the offence is alleged to have been committed.
APPEALS : The manager or the occupier of a factory on whom an order in writing by an Inspector has been served under the provisions of this Act, within thirty days of the service of the order, appeal against it to the prescribed authority, and such authority may, subject to rules made in this behalf by the State Government, confirm, modify or reverse the order.
Amity School of Business
The Industrial Disputes Act, 1947
Definition - Persuasive, conciliation and voluntary process for the settlement of industrial disputes - power of the Govt. under ID Act, Instrument of economic coercion - Strike & lock out, Lay off Retrenchment, Transfer and closures - Discharge and Dismissal - Managements prerogative during pendency of proceeding
Amity School of Business
The Industrial Disputes Act, 1947
The Industrial Disputes Act, 1947 came into force on the first day of April, 1947. It is an Act to make provisions for the investigation and settlement of industrial disputes and for certain other purposes hereinafter appearing. This Act extends to whole of India and applies to all industries whether private or Government owned. The latest amendment in the Act was made in 1996.
Amity School of Business
OBJECTIVES
Promotion of measures of securing and preserving good relations between the employer and the workmen.
Investigation and settlement of industrial disputes between employers and employers, employers and workmen or workmen and workmen through trade unions or association of employers.
Prevention of illegal strikes and lock-out.
Relief to workman in matter of lay-off and retrenchment.
Promotion of collective bargaining.
Amity School of Business
DEFINITIONS
Industry: means any systematic activity carried on by co-operation between an employer and his workmen (whether such workmen are 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),
but does not include--
(1) any agricultural operation.
(2) hospitals or dispensaries.
(4) institutions owned or managed by organisations wholly or substantially engaged in any charitable, social or philanthropic service;
(5) khadi or village industries;
(6) any activity of the Government relatable to the sovereign functions of the Government including all the activities carried on by the departments of the Central Government dealing with defence research, atomic energy and space;
(7) any domestic service;
(8) any activity, being a profession practised by an individual or body or individuals, if the number of persons employed by the individual or body of individuals in relation to such profession is less than ten;
Amity School of Business
DEFINITIONS
Award- means an interim or a final determination of any industrial dispute or of any question relating thereto by any Labour Court, Industrial Tribunal or National Industrial Tribunal and includes an arbitration award ( voluntary reference of disputes to arbitration) .
Wages : means all remuneration capable of being expressed in terms of money, which would, if the terms of employment, express or implied, were fulfilled, be payable to a workman in respect of his employment or of work done in such employment.
Industrial dispute: means any dispute or difference 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 persons.
Amity School of Business
Contd-
Appropriate Government: in relation to any industrial dispute concerning any industry carried on by or under the authority of the Central Government, or by a railway company or concerning any such controlled industry as may be specified in this behalf by the Central Government or in relation to an industrial dispute the Industrial Finance Corporation of India or the Life Insurance Corporation of India , or the Oil and Natural Gas Corporation Limited or an air transport service, or a banking or an insurance company, a mine, an oil field etc, the Central Government, and
in relation to any other industrial dispute, the State Government;
Amity School of Business
Authorities under the Act
The Act provides an elaborate and effective machinery for bringing about industrial peace by setting up various authorities for the investigation and settlement of industrial disputes. The authorities specified under the Act are:
Works Committees.
Conciliation Officers.
Voluntary Settlement and Conciliation.
Authorities that use conciliation process for settlement of dispute are:
Works Committees.
Conciliation Officers.
Works Committees.
In the case of any industrial establishment in which 100 or more workmen are employed or have been employed on any day in the preceding twelve months, the appropriate Government may by order require the employer to constitute a Works Committee consisting of representatives of employers and workmen in the establishment. There shall be equivalent number of representatives of workmen and the employer. Duties:
To promote measures for securing and preserving amity and good relations between the employer and workmen.
To comment upon matters of their common interest or concern
Endeavour to compose any material difference of opinion in respect of various matters.
Amity School of Business
Conciliation officers
The appropriate Government may, by notification in the Official Gazette, 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.
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.
Amity School of Business
POWERS:
DUTIES:
To hold conciliation proceedings.
To investigate the dispute.
To send a report and memorandum of settlement to appropriate Government.
To send full report to the appropriate Government setting forth the steps taken by him in case no settlement is arrived.
Amity School of Business
Boards of Conciliation
The appropriate Government may as occasion arises by notification in the Official Gazette constitute a Board of Conciliation for promoting the settlement of an industrial dispute.
A Board shall consist of a chairman and two or four other members, as the appropriate Government thinks fit.
The chairman shall be an independent person and the other members shall be persons appointed in equal numbers to represent to the dispute on their recommendation, provided that, if any party fails to make a recommendation within the prescribed time, the appropriate Government shall appoint such persons as it thinks fit to represent that party.
Provided that if the appropriate Government notifies the Board that the services of the chairman or of any other member have ceased to be available, the Board shall not act until a new chairman or member, as the case may be, has been appointed.
Amity School of Business
Reference of disputes to Boards
If the appropriate Government is of the opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing refer the dispute to a Board of Conciliation for promoting a settlement.
Where the dispute has been referred, the appropriate Government may prohibit strike or lockout which may be in existence on the date of reference.
Amity School of Business
To bring about a settlement of the dispute.
To send a report and memorandum of settlement to the appropriate Government.
To communicate reasons to the parties if no further reference made.
To submit report within 2 months
POWERS
Power to enter premises.
Powers of civil court.
enforcing the attendance of any person and examining him on oath;
compelling the production of documents and material objects;
issuing commissions for the examination of witnesses;
in respect of such other matters as may be prescribed, and every inquiry or investigation by a Board, Court shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code .
Amity School of Business
Courts of Inquiry
The appropriate Government may by notification in the Official Gazette constitute a Court of Inquiry for inquiring into any matter connected with or relevant to an industrial dispute.
A court may consist of one or more independent persons and where a court consists of two or more members, one of them shall be appointed as the chairman.
Provided that, if the appropriate Government notifies the court that the services of the chairman have ceased to be available, the court shall not act until a new chairman has been appointed.
REFERENCE OF DISPUTE
If the appropriate Government is of the opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing refer the dispute to a Court of Inquiry for promoting a settlement.
Amity School of Business
Power to enter premises.
Powers of civil court.
enforcing the attendance of any person and examining him on oath;
compelling the production of documents and material objects;
issuing commissions for the examination of witnesses;
in respect of such other matters as may be prescribed, and every inquiry or investigation by a Board, Court shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code .
DUTIES
A Court shall inquire into the matters referred to it and report thereon to the appropriate Government ordinarily within a period of six months from the commencement of its inquiry.
Amity School of Business
Publication of reports and awards -
Every report of a Board or Court shall be in writing and signed by all the members . Any member of the Board or the Court may record any minute of dissent from the report or from any recommendations. The report together with dissent recorded shall be published by the appropriate Government within a period of thirty days from the date of its receipt
Amity School of Business
Voluntary Reference of
Disputes to Arbitration
Arbitration is a voluntary method of resolving industrial disputes. It is resorted to before the dispute is referred to a Labour Court, Industrial Tribunal, National Tribunal.
Reference of disputes:
Where any industrial dispute exists or is apprehended and has not been referred for adjudication the employer and the workmen may refer the dispute, by a written agreement, to arbitration specifying the arbitrator or arbitrators
Where the agreement provides for the even number of arbitrators, the agreement shall provide for the appointment of umpire whose decision will prevail. The copy of the agreement shall be sent to the appropriate Government and conciliation officer, which shall be published in 30 days from the date of receipt.
Where an industrial dispute has been referred to arbitration and notifiaction has been issued, the appropriate government may by order prohibit the continuance of strike and lock-out.
Amity School of Business
Contd-
Procedure : The appropriate government within one month from the date of receipt of copy of arbitration agreement, issue a notice, according to which the employers and the workmen who are not parties to the agreement but are concerned with the dispute, shall represent their case before the arbitrator/ arbitrators.
AWARD : The arbitrator or arbitrators shall investigate the dispute and submit to the appropriate Government the award dully signed by them. The award shall become enforceable on the expiry of 30 days from the date of its publication.
Amity School of Business
ADJUDICATION
The ID Act; 1947 provides for three-tier system of adjudication of industrial dispute. The cases either may be referred by the government to court after the receipt of failure report from conciliation officer or directly by any party. Labour Courts and Industrial Tribunals may be constituted by the State government, while the National Tribunal is constituted by the Central government.
LABOUR COURT : Labour court deals with:
Withdrawal of any statutory concession.
Illegality or otherwise of a strike or lockout.
Discharge or dismissal, reinstatement of workers.
The Industrial Disputes Act, 1947 was amended in 1982, which provided that cases relating to individual workmen should be disposed of within a period not exceeding 3 months. In other cases the appropriate Government must specify the period within which an award must be submitted by the Court or Tribunal
Amity School of Business
Qualifications
The Presiding Officer of a Labour Court should at least have held a judicial office for not less than 7 years
Has been a Presiding Officer of a Labour Court under a State Act for not less than 5 years.
He is or has been a District Judge or an Additional District Judge for three years
A judge of a High Court .
Amity School of Business
INDUSTRIAL TRIBUNAL
It is a one-man adhoc body (Presiding Officer) appointed by the government. Has a wider jurisdiction than the Labour Court. The government may appoint two assessors to advice the Presiding Officer in the proceedings.
Industrial tribunal deals with-
Bonus, profit sharing, provident fund, gratuity.
Hours of work and rest periods.
Rules of discipline.
Qualifications: The Presiding Officer of an Industrial Tribunal
Has been at least a District Judge or an Additional District Judge for three years.
He is or has been a judge in a High Court.
Must not have attained the age of 65 years.
Amity School of Business
NATIONAL TRIBUNAL
This is the third one- man adjudicatory body to be appointed by the Central Government to deal with the disputes of national importance and matters relating to functioning of labour and industrial tribunals.
Qualification:
No person can be appointed as the presiding Officer of a National Tribunal unless he is or has been a Judge of High Court.
Presiding officer should be an independent person and must not have attained the age of 65 years.
The Central Government may appoint two assessors to advice the Presiding Officer in the proceedings.
Amity School of Business
DEFINITION: STRIKE means-
Cessation of work by a body of persons employed in an industry acting in combination; or
A concerned refusal of any number of persons who are or have been so employed to continue to work or to accept employment; or
Refusal under common understanding of any number of such persons to continue to work or to accept employment
LOCK-OUT: Means the temporary closing of a place or employment or the suspension of work, or the refusal by an employer to continue to employ any number of persons employed by him.
General prohibition of strikes and lock-outs-
No workman who is employed in any industrial establishment shall go on strike in breach of contract and no employer of any such workman shall declare a lock-out:
(a) during the pendency of conciliation proceedings before a Board and seven days after the conclusion of such proceedings;
(b) during the pendency of proceedings before a Labour Court, Tribunal or National Tribunal and two months after the conclusion of such proceedings;
(c) during the pendency of arbitration proceedings before an arbitrator and two months after the conclusion of such proceedings,
(d) 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.
Amity School of Business
Prohibition of strikes in public utility services :
No person employed in a public utility service shall go on strike, in breach of contract
(a) without giving to the employer, notice of strike, within six weeks 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 as
aforesaid; or
(d) during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings.
Lock-out in public utility service:
No employer carrying on any public utility service shall lock-out any of his workman
(a) without giving them notice of lock-out, within six weeks before locking-out; or
(b) within 14 days of giving such notice; or
(c) before the expiry of the date of lock-out 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.
If on any day an employer receives from any persons employed by him any such notices or gives any such notices to persons employed by him, he shall with in five days report to the appropriate government .
Amity School of Business
TYPES OF STRIKES
Go- slow: does not amount to strike but is serious case of misconduct. This deliberate delaying of production by workmen. While delaying production and reducing the output the workmen claim to have remained employed and entitled to full wages.
Sympathetic Strike: Cessation of work in the support of the demands of workmen belonging to other employer . This does not amount to strike and management can take disciplinary action for absence of workmen.
Sit down, pen-down, tool down Strike :the workmen after taking their seats refuse to do work. They even refuse to leave the premises.
Hunger Strike: Some workers may resort to fast on or near the place or residence of the employer.
Amity Business School
Amity Business School
It is declared in contravention of the provisions or
A lock-out declared in consequence of an illegal strike or a strike declared in consequence of an illegal lockout is not illegal.
Amity School of Business
Penalty for illegal strikes and lock-outs -
(1) Any workman who commences, continues an illegal strike , shall be punishable with imprisonment for a term which may extend to one month, or with fine which may extend to fifty rupees, or with both.
(2) Any employer who commences, continues with illegal lock-out shall be punishable with imprisonment for a term which may extend to one month, or with fine which may extend to one thousand rupees, or with both.
Penalty for instigation-
Any person who instigates others to take part in, an illegal strike or lock-out, shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
Penalty for giving financial aid to illegal strikes and lock-outs -
Any person who knowingly expends any money in direct support of any illegal strike or lock-out shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
Amity School of Business
LAY-OFF & RETRENCHMENT
Lay-off: means the failure, refusal or inability of employer to give employment to a workman:
Whose name is borne on the rolls of his industrial establishment,
Who has not been retrenched.
The failure, refusal or inability to give employment may be due to;
Shortage of coal, power or raw materials, or
The accumulation of stocks, or
The breakdown of machinery, or
Natural calamity or for any other connected reasons.
Lay-off is not a right conferred upon the employer but an obligation on the employer, ie. In case of temporary stoppage of work, not to discharge the workman but to lay-off the workman till the situation improves. The contract of employment is not broken but suspended.
Amity School of Business
LAY-OFF
Provisions relating to lay-off shall not apply to the following Industrial Establishments :
(a) In which less than fifty workmen on an average per working day have been employed in the preceding calendar month; or
(b) Where the work is of a seasonal character or in which work is performed only intermittently.
Right of workmen laid-off for compensation -
Whenever a workman (other than a badli workman or a casual workman) whose name is borne on the rolls of an industrial establishment and who has completed not less than one year of continuous service is laid-off, whether continuously or intermittently, he shall be paid by the employer for all days during which he is so laid-off, except for such weekly holidays, compensation which shall be equal to fifty per cent, of the total of the basic wages and dearness allowance that would have been payable to him had he not been so laid-off:
Amity School of Business
Workmen not entitled to compensation in certain cases -
(i) if he refuses to accept any alternative employment in the same establishment from which he has been laid-off, or in any other establishment belonging to the same employer situated in the same town or village or situated within a radius of five miles from the establishment to which he belongs.
(ii) if he does not present himself for work at the establishment at the appointed time during normal working hours at least once a day;
(iii) if such laying-off is due to a strike or slowing-down of production on the part of workmen in another part of the establishment.
Amity School of Business
(1)Lay-off to be with permission from appropriate Government or specified authority.
(2)Application to be made by the employer in a prescribed manner and a copy of such application shall also be given to the workmen concerned .
(3)Application for permission to continue lay-off in a mine: Where the workmen of a mine, have been laid-off for reasons of fire, flood, explosion etc., the employer, shall, within a period of thirty days from the date of commencement of such lay-off, shall apply to the appropriate Government or the specified authority for permission to continue the lay-off.
(4)Oder granting or refusing permission for lay-off to be communicated to employer and workmen: the appropriate Government or the authority, after enquiry and after giving a reasonable opportunity of being heard to the employer, the workmen concerned and the persons interested in such lay-off, having regard to the genuineness and adequacy of the reasons, the interests of the workmen, by order in writing, grant or refuse to grant such permission and a copy of such order shall be communicated to the employer and the workmen
Amity School of Business
Contd-
(5)Presumption of permission: if no order is communicated within 60 days and the order shall be final and binding on all the parties concerned and shall remain in force for one year from the date of such order.
(6)Review of order: the appropriate Government or the authority may, either on its own motion or on the application made by the employer or any workman, review its order or refer it to a Tribunal for adjudication
(7)Illegal lay-off : Where no application for permission to lay-off is made or where the permission for any lay-off has been refused, such lay-off shall be deemed to be illegal from the date on which the workmen had been laid-off and the workmen shall be entitled to all the benefits under any law for the time being in force as if they had not been laid-off.
Amity School of Business
RETRENCHMENT
Means to end, conclude or cease. Under I D Act it means the termination of the service of a workman by the employer for any reason other than as punishment inflicted by way of disciplinary action.
It does not include:
Voluntary retirement of workman.
Superannuation.
Termination of employment as result of non-renewal of the contract of employment.
Termination of the service of a workman on the ground of continued ill-health.
Amity School of Business
Conditions precedent to retrenchment of workmen –
(1) 3 months’ notice and prior permission of the appropriate government or the specified authority required before retrenchment: No workman employed in any industrial establishment, who has been in continuous service for not less than one year under an employer shall be retrenched until,
(a) the workman has been given three months' notice in writing indicating the reasons for retrenchment; and
(b) the prior permission of the appropriate Government or authority has been obtained.
(2)Application to be made for permission: An application clearly stating the reasons for the intended retrenchment and a copy of such application shall also be served on the concerned workmen.
Amity School of Business
Contd-
(3)Order granting or refusing permission for retrenchment to be communicated to the employer and workmen.
(4) Presumption of permission if no order is communicated within 60 days .
(5) Review of order .
(6) Illegal retrenchment.
(7) Compensation : Where permission for retrenchment has been granted, every workman who is employed in that establishment immediately before the date of application for permission shall be entitled to, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service.
PROCEDURE FOR RETRENCHMENT: Principle of last come first go.
RE- EMPLOYMENT : The retrenched workmen (citizen of India) shall be given preference over other persons.
Amity School of Business
Transfer and closing down of undertaking
Sometimes the ownership or management of an undertaking is transferred, whether by agreement or by operation of law, from the employer to a new employer, every workman who has been in continuous service for not less than one year in that undertaking immediately before such transfer shall be entitled to notice and compensation accordingly, as if the workman had been retrenched :
Provided that nothing in this section shall apply to a workman in any case where there has been a change of employers by reason of the transfer, if
(a) the service of the workman has not been interrupted by such transfer;
(b) the terms and conditions of service applicable to the workman after such transfer are not in any way less favorable to the workman than those applicable to him immediately before the transfer.
Amity School of Business
Procedure for closing down an undertaking
Application for permission to close to be made at least 90 days before the intended date of closure to the appropriate Government, stating clearly the reasons and a copy of such application shall be served on the representatives of the workmen in the prescribed manner.
Order granting or refusing permission to be communicated to employer and workmen.
Presumption of permission if no order is communicated within 60 days.
Order granting or refusing permission final and binding on all parties for 1 year.
Review of order or reference to tribunal for adjudication by appropriate government either on its own or on the application made by the employer or the workmen.
Amity School of Business
Consequences of illegal closure.