6. rd legal framework of ir

8/10/2019 6. Rd Legal Framework of IR

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6. Legal Framework

Of

Industrial Relations

Professor Debi S. Saini

([email protected])

Management Development Institute, Gurgaon

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Legal Framework of IR

Issues discussed in the presentation are:

Main laws affecting IR: IDAIESOATUA

IDA: Objectives, features, definitions

IR machinery: Conciliation, adjudication, Arbitration

IInd andIIIrd Schedules under the IDA

Standing Orders Act: Applicability & Features

TUA: Features, Rights & Obligations of union


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Background

&

Salient Features of IDA

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Principal Laws Affecting IRBasically 3 laws affect IR:

1. The ID Act 1947Lays down framework for ID resolution

2. The Industrial Employment (Standing Orders) Act, 1946Promotes uniformity in employment. conditions

3. Trade Unions Act 1926Registration of TUs & protection for CB


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The IDA: Structure & Background

Principal IR law: Applies to whole of India

IDA contains: 40 sections + 5 Schedules

Creates bodies: conciliatory/adjudicatory/administrative

Rules: ID (Central) Rules, 194780 Rules + Various formats provided

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Main Features of the ID Act 1947

1. Provides framework of CB for non-mgrl. WM

Defines ID (S. 2k); workman as non-mgrl. (S. 2s)

Prohibitsparties to indulge in ULPs (Sch. V)

2. Provides a consultative/arb./adj. IR model

Consult: WC; CO; BOC; Court of Inquiry (Ss. 36)

Voluntary arbitration of indl. disputes (S. 10-A)

Adj. machinery: LCITNT (one-member bodies)

Though both conciliators/adjudicators need training


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Main Features of the ID Act 1947 contd

3. Provides re-instatementby LC/IT (S. 11-A/17-B)

4. Provides two sets of lab. adm: Cent./State (S. 2a)

5. Ensures Govt.s major control in IR/indl. peace

6. Notice forchanging the service conditions (Ss. 9-A/33)

7. Regulates strikes/lockouts (for indl. Peace)

8 Restricts lawyers in concil. & adjudi. (S. 36)

Main Definitions

in the IDA:Workman, and

Industrial Dispute


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Who is a Workman under IDA [Sec. 2 (s)]

Any person (including apprentice)

employed in industry

to do any of the following work:

Manual/unskilled/skilled/tech./operational/clerical/supervisory

for hire or reward (with express or implied terms)

But does not include:

One who is subject to Army Act/Air Force Act/Navy Act

Employed in police/prison service Employed mainly in managerial/administrative capacity

Employed as supervisor but draws salary of Rs. 10000+

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Who is a Workman under IDA [Sec. 2 (s)] contd

Person employed:

Contract of & for employment (Case: Dharagdhra Chemical Works)

Supervision & control

Former is an employee/WM; but latter is an independent contractor

Employer can require what/how; contractor only what is to be done

Designation not of great importance

Nature of duty is the essenceMainly clerical & incidentally supervisory is clerical work & vice versa

Piece-rate can also involve masterservant relationship


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Workman contd.

Employed mainly in mgrl./administrative capacity(Standard Vacuum Oil Co. v. Commissioner of Labour)

Held:

If an individual has officers subordinate to him

whose work he is required to oversee,

if he has to take decisions

and also is responsible for ensuring that

matters entrusted to him are efficiently conducted,& an ascertainable section of work is assigned to him,

an inference of a position ofmgt. would bejustifiable

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What is an Industrial dispute? (S. 2 k.)

Any dispute ordifference

between : employers & employers

employers & WM

WM & WM

which is connected withemployment, non-employment,

terms of employment, orconditions of labour


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Industrial dispute contd

Existence of dispute is central: demand+ rejection

Who can espouse the dispute:

Substantial no. of WM themselves or a union (even minority)

About 20% WM held as substantial

Community of interest is important (Rationale: CB promotion)

Individual dispute per se is not ID unless espoused as collectiveExcept termination disputes (Sec 2A)

Who can be Any person

--can even be a non-workman, if community of interest

Authorities Under

the IDA


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Authorities under the IDA

I. Preventive/Conciliatory Mechanism

1. Works Committee (Section 3)

To be constituted in industries with 100 or + WM

to promote measures for amity and good relations

& to that end comment on matters of common interest

Role as agreed by ILC:

Conditions of workSafetyWelfare fundRecreation

Adjusting of festival holidaysThrift & savings--Education

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Authorities under the IDA contd

2. Conciliation Officer (S. 4)

Can be appointed foran area or industry

Duty: Promoting the settlement of indl. disputes

3. Board of Conciliation: Constitution & Duty (S. 5)

Chairman + 2 or 4 members

Members represent both parties equally

Appointed by govt. on recommendation of parties

Duty: Promoting settlement


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4. Court of Inquiry (S. 6)To enquire into any matter connected or relevant to an ID

When appointed: App. Govt. appoints it as occasion arises

May consist of one independent person or more as specified

where 2 or more persons mentioned one to act as chairperson

Rationale: legitimacy to genuineness of claim

Also: in U.K.: Court of inquiry USA: Fact finding boards

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Authorities under the IDA contdII. Adjudicatory Mechanism

5. Labour Court (LC) (Section 7)

App. Govt. may constitute one or more labour court/s

Done for adjudicating ID of any matter in 2nd Schedule

Or for performing such other functions, as specified

Constitution: Shall consist of One person only

Qualifications:

HC Judge/ADJ 3 yrs./Jud. Off. 7 yrs.

Or P.O. of LC under a State Act 5 yrs.


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6. Tribunal (Sec 7-A) (Also called Indl. tribunal or IT)

App. Govt. may constitute one or more IT

Done for adjudicating any matter in Schs. II/ III

Constitution: Shall consist of One person only

Qualification: HC Judge/ADJ for 3 years

App. Govt. can appoint 2 assessors to assist IT

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7. National Tribunal (Sec 7-B)

Cent. Govt. may constitute one or more NT

Done foradjudicating IDs, which involve

Qs. ofnational importance

or WM in more than one state are likely to be affected

Constitution: Shall consist of one person only

Qualification: High Court Judge

C. Govt. may appoint two assessors to assist


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After section 9B of the principal Act, for Chapter IIB, the

following Chapter shall be substituted, namely:

CHAPTER IIB

Grievance Redressal Machinery: Setting up of Grievance Redressal Machinery

9C. (1) Every indl. establishment with 20 or + workmen to have one or +

Grievance Redressal Committee for the resolving individual grievances.

(2) It shall consist of equal no. of members from the employer & workmen.

(3) Chairperson: From employer & WM alternatively on rotation every yr.

(4) Total no. of members of this Committee shall not exceed 6

Provided: one woman member if has 2 members; and if more than it will

increase proportionately.

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After sec. 9B of the principal Act, for Chapter IIB, the

following Chapter shall be substituted, namely: Contd

(5) Shall not affect WMs right to raise ID on same matter under IDA

(6) May complete proceedings: in 30 days on receipt of a written application.

(7) The workman may prefer an appeal to the employer

--Who will decide within within 1 month of receipt

--And send a copy of his decision to the workman

Amendment of section 11

(8) This sec. not to apply to wor kmen for whom there is an established Grievance Redressal Mechanism in the establishment concerned..

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Major Schedules

in the

IDA

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THE SECOND SCHEDULE

1. Propriety/legality of an order passed under SOs

2. Application & interpretation of standard orders (SOs)

3. Discharge/dismissal of WM including re-instatement

4. Withdrawal of any customary concession/privilege

5. Illegality of a strike or lockout

6. All matters other than those specified in 3rd Schedule


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THE THIRD SCHEDULE

1. Wages, including period & mode of payment

2. Compensatory & other allowances

3. Hours of work and rest intervals

4. Leave with wages & holidays

5. Bonus, profit sharing, PF & Gratuity

6. Shift working other than as per standing orders

7. Classification by grades

8. Rules of disciplines

9. Rationalisation10. Retrenchment of WM & closure of establishment

11. Any other matter that may be prescribed

Trade Unions Act 1926


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T U Act 1926: Components

The Act consists of 33 sections: Deals with these:Regis.Rights/liab.RegulationsPenalties/procedures

Extends to whole India: Provides registration/immunities

Act amended in 1948 to provide for recognitionBut never notified by Government

Act amended in 2001: Checks multiplicity

Administered by appropriate government

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Salient Features of TU Act 1926

1. Provides who can register a T.U.:

Any 7 or more WM employed in industry/ trade can

Later added: At least 10% or 100 whichever is less

2. Registrar of TUs: in each stateprocedure for regis. Appeal

3. Min. subscription: Rs. 1/ 3/ 12 p.a. (Rural/Unorganized/org. sectors)

4. Envisages general/political funds of a TU: Politicization

5. Outsiders permitted as TU members

6. Rights of TUs: Immunities to TU/members (Criminal/civil)

7. Obligation of TUs envisaged: Also to file returns28


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Trade Union under TUA: Definition2 (h) Trade Union means

any combination, whether temporary or permanent,

formed primarily for the purpose of

regulating the relations between

workmen and employers,

or between workmen and workmen,

or between employers and employers,

or for imposing restrictive conditions on

the conduct of any trade or business,and includes

any federation of 2 or more TUs:29

Industrial Employment

(Standing Orders)

Act, 1946


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IE (SO) Act: Preliminary & Objectives

The Act seeks to regulate:

Classification of WMDischarge/dismissalShiftsDisciplinary actionAttendanceHolidays provides terms & condns

Preamble:

to define with sufficient precision

the conditions of employment

and to make the said conditions known to WM

What are St. Orders: Rulesrelate to matters in the schedule

Major features:precision of working conditionsmake the condns. known

give WM a voice in themuniformity of conditions

regulation of: recruitment, leave, shift, discharge, dismissal 31

IE (SO) Act: Salient features

1. Application:Every est. with 100 or +WM; App. Govt. can extend: estab. 50 or +WM

Cent. Government has extended to estab. employing 50 or +

2. Clarify to WM: empl. conds. relating to matters in schedule

3. Meaning of certain major terms:Wages/WM, same as in IDA

App. Govt. same except controlled industry

4. Cert. Off. can modify/add to SOs & adjudicate

Fairness, reasonableness

5. App. Govt. empowered to frame: Rules, model SOs32


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IE (SO) Act: Salient features contd

6. Appellate Auth. provided for to hear/decide appeal

7. Provides for subsistance allowancesuspension

8. Provides for temporary application of SOs

9. Penalties providedFines only; no imprisonment

10. Model St. orders framed by Central Govt.

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6. rd legal framework of ir

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