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pter 15Strikes and lockouts

Prohibition of strikes and lockouts Prohibition of lockout General prohibition of strikes and lockout Prohibition of S&L by order of government Illegal strike and lockouts Punishment for illegal strike Offences & Penalties

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Prohibition of strikes and lockouts

Section 22(1) puts straight restrictions on S&L in public utility services unless mandatory provisions of law are observed.

Conditions:

a)Notice of S/L must be given to the employer or the wokmen within six weeks before S/L

b)There must be no S/L within 14 days of giving such notice

c)No S/L can be declared before the expiry of that specified date

d)Any Conciliation are pending before Conciliation officer,no strike can be called or Lockout declared during the pendency of conciliation proceedings and 7 days after the conclusions of such proceedings.

Section 22(1),Section 22(2)

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It lays down that no employer carrying on any public utility service shall Lockout his workplace.

a)Without giving lockout notice

b)Within 14 days of giving such a notice

c)Before the expiry of the stipulated period

d)During pendency of any conciliation proceedings before C.O & a week after such proceedings.

Section 22(4) lays down that notice of strike shall be given by such number of person to those in prescribed manner of section22(5)

Section 22(2)

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The prohibition as laid down in Section 22(2) against the employer is similar to that against strike by workmen.

For lockout a notice under Section22(2) is required to be given.

A lockout without proper notice is Illegal under Section 24 of the Act.

Prohibition of Lockout

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General Prohibitions of Strikes and Lockout:Section23

According to Section23,no workman who is employed in any industrial establishment shall go on strike in breach of contract & no employer of any such workman declare a Lockout:

a) During the pendency of conciliation proceedings before a board & 7days after the conclusion of such proceedings.

b) During the pendency of proceedings before a labour court,Industrial or national tribunal & 2 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 the period in which a settlement or award is in operation,in respect of any of the matters covered by the settlement or award.But there is no bar to call strike or declare lockout in respect to other matters.

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Prohibition of S&L by order of the Government

If an industrial dispute is refered to a board,labour court,Industrial or national tribunal,the appropriate government may by order prohibit the continuance of a S/L in connection with such dispute which may be in existence on the date of the reference;or which has been refered to arbitration and a notification has been issued under the section.

Sub-Section (Sec 10A(4A)

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Illegal strikes & lockouts

S/L is Illegal: i) When it is commenced or declared in contravention of section 22 or 23 of the Act

ii) When it is commenced in contravention of an order under Section 10(3) or sub-section4-a of the Section 10-A.

Strike is justified or Illegal depends upon the circumstances and statutory provisions.

Section 22,23 & Section 10(3),sub-Section4-A of the Section 10-A

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A strike will not be treated as Illegal:

a) A strike in breach of the certified standing orders is not by itself legal.

b) A strike is called strictly in compliance with the provisions of the Act, eg:when workman is imposed additional task.

c) If a lockout has been declared in consequence of an Illegal strike or a strike declared in consequence of an Illegal lockout.

d) If a S/L was commenced before and continued during pendency of arbitration proceedings and also if it continued after a reference has been made to a board,labour court or any tribunal.

Continued….

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Prohibition of Financial Aid to Illegal S&L

No person shall knowingly expand or apply any money in direct furtherance or support of any illegal strike or lockouts.

Section 25

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Punishment for Illegal strikes

If a strike is illegal then the guilty party is punishable under section 26 of the Act.

Even under Illegal strike a distinction has to be made between i) Illegal but unjustified strike

ii) Illegal but justified strike. A strike may be unjustified-when raised in contravention

of the provisions of Act and both the demand & behavior of strikes are unjust.

A strike is justified if it has been raised for a good cause & carried in peaceful manner.

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Offences and Penalties

Section 26,27,28,32….

i) Any workmen who commences,continues in furtherance of illegal strike ,shall be punishable with imprisonment up to one month,or fine upto Rs50/ or with both.(Section 26)

ii) Any person who instigates or incites others to take part in an illegal S/L, is punishable with imprisonment of six months or fine upto Rs1000/ or with both.(Section 27)

iii) Any person who knowingly extends money in support of any illegal strike shall be imprisoned for a term upto six months or fine upto Rs1000/ or with both.(Section 28)

iv) If a person committing an offence under this act is a company, or corporate body, an association, every manager, director, secretary, agent, officer is deemed to guilty of such offence. (Section 32)

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Lay Off

According to the Industrial disputes Act,1947 Lay Off means the failure,refusal or inability of an employer on account of shortage of resources (raw material, breakdown of machinery).

It is merely a temporary suspension of his service contract.it arises only when there is a “ failure”, “inability”, or “refusal” on the part of employer to provide employment to his workers. IT DOES NOT TERMINATE THE EMPLOYEE-EMPLOYER RELATIONSHIP

Lay Off is a measure or a compromising device to cope with the temporary inability of an employer to offer employment.

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Conditions under Lay Off

Under the traditional law- According to this, the management has right to layoff its workers & adjust labor force to the requirements of work.

Under labor law- According to Industrial dispute Act,1947 the employers are empowered to layoff its employees for other than the reasons (R/m,Breakdown etc) specified under the Standing order Act.

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Prohibition on Lay Off

The amended Industrial Disputes Act,1982 has following prohibition on lay off:

No workmen (other than casual workers) whose name is on the muster roles of an industrial establishment shall be laid off by his employer except with the prior permission of such Authority . Unless such layoff is due to shortage of power, natural calamity.

If the refusal or the permission is not granted to the employer within a period of two months from date on which the application is made the permission applied shall be taken for granted on the expiry of two months.

If the application for permission has been made within period specified therein, or where the permission for the lay off or the continuance of lay off has been refused, such lay Off shall be treated as illegal from the date on which the workmen have been laid off and they are entitled with all the benefits.

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The provisions of section 25 C shall apply to cases of Lay off referred to in this section. These provisions are applicable to all industrial establishments wherein not less than three hundred workers are employed on an avg per working day for the proceeding twelve months.

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Procedure of Lay Off

The Industrial Disputes Act,1947 does not lay down any procedure for the lay off. The Industrial Disputes (central rules 1957),rules 75-A makes it obligatory on the part of employer to provide a notice of the period of lay off within seven days of commencement or termination of such lay off. CONDITIONS:

a) The lay Off should occur due to something beyond the control of the employer.

b) It should result in temporary non-employment of workman whose name must appear on the muster roles of the Industrial establishment.

c) Lay Off always occurs in a continuing concern ,when the concern is closed for all time to come, lay off has no relevance.

d) Lay Off cannot be declared merely for the reason that the employer suffered financial loss for reasons beyond his control, for such lay off should be unjustified and invalid too,the workman can claim full wages for the period of lay off.

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Lay Off compensation to workman

Under Section 25C the workmen who are laid off are entitled to compensation. even when the lay off is the result of settlement between the parties,the employer is bound to pay lay off compensation unless the settlement expressly provides otherwise.

If the lay off is due to orders of the government pertaining to the working hours in an industry and the situation is beyond the control of the employer, lay off compensation has to be paid.

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Provisions for compensation, the workman

Must not be a casual workman His name must be in muster roles of the establishment He/she must have completed not less than one year of

continuous for service. Two major conditions for lay off compensation.

a) The workman of Section must have been laid off for reasons contemplated by Section2(kkk)

b) Requirement of section 25 C must be fulfilled

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Continuous service

It is necessary on the part of employee for getting a lay off compensation.

The uninterrupted service shall include:

a) The authorized leave period, on full wages, earned in the previous year.

b) The period of absence due to temporary disablement caused by accident arising out of and in course of employment.

c) The period of absence due to a strike which is not illegal,or lockout.

d) In case of female,the period of maternity leave,which should not exceed twelve weeks.

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Workman not entitled to lay off compensation

i) If a workmen refuses to accept any suitable alternative employment offered to him by the employer

ii) Where a workman, who has been laid off does not present himself for work at least once a day at the appointed time during normal business hours.

iii) Where a laying off is due to strike or slowing down of production by the workman in another part of establishment.

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Retrenchment

The Act defines retrenchment as “the termination by employer, of the service of the workman, for any reason, whatsoever, otherwise than as a punishment inflicted by way of disciplinary action. But does not include voluntary retirement, compulsory retirement of the workman on reaching the age of termination of service on the grounds of continued ill health”

Certain classes of termination not included under retrenchment i) Voluntary retirement( workman agree to retire provided the benefits given)

ii) Retirement on reaching superannuation

iii) Termination of the workman in the grounds of continued ill health.

The termination of service as a result of transfer of ownership of an undertaking to another employer does not constitute “retrenchment”

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1.Conditions precedent to retrenchment of Workman

The conditions are valid in case of retrenchment of an employee who have been in service for not more than one year.

One month’s notice, in writing has been given to the workman indicating the reason for retrenchment

Notice in prescribed manner has been served on the appropriate government within three days of notice or payment to workman.

The workman has been paid, at the time of retrenchment compensation equivalent to 15 days.

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2.Procedure for retrenchment (Section 25G)

The employer is required to prepare a list of all workman in the particular category from which retrenchment is contemplated, arranged according the seniority of service in that category. A copy of list shall be displayed on the notice board, atleast seven days before the retrenchment.

The workman must be a workman within the meaning of Section2(S) of the Act.

The workman should be employed in an establishment which is an industry within the meaning of Section2(J) of the Act.

The workman should belong to a particular category of workman in the industrial establishment.

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3.Retrenchment compensation

According to clause B of Section 25 F workers are entitled for retrenchment compensation. It provides that no workman employed in any industry ,who has been in continuous service for less than a year under an employer, shall be retrenched until at the time of retrenchment ,be paid compensation, which shall be equivalent to 15 days avg pay for every completed year of service.

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4.Continuous service

For claiming retrenchment compensation, it is necessary that workman must be in continuous service ddefined under Section 25(B) sub Section(2).

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5.Reinstatement of a retrenchment workman

The Section 25H imposes a statutory obligation on the employer, to provide an opportunity to the retrenched workmen, to offer themselves for re-employment and they shall be given preference over new comers in the matter of re-employment.

Such vacancies shall be notified on the notice board at least ten days before they are to be filled.

Individual notice shall be given over post to all the retrenched employees eligible to be considered therefor.

If the number of vacancies are less, then senior members are given the priority.

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6.Penalty for Lay off & Retrenchment without Permission

Any employer who contravenes the provision of Section 25 M or of Section 25 N, shall be punishable with imprisonment for a term which may extend to one month, or with fine may extend to one thousand rupees or both.

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Laws relating to standing Orders

Standing Orders• The term ‘Standing Orders’ means rules relating to matters set

out in the Schedule of the Act.

Extends to the whole of India To every establishment wherein 100 or more workmen are employed On any day preceding twelve months Once applicable to the establishment then it continuous if the no. of

workmen employed gets reduced to less than 100 The appropriate Govt. can exempt any establishment from any of the

provisions of the Act

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Continued….

It applies to railways, factories, mines, quarries, oil-fields, tramways, motor services, docks, plantations, workshops, civil construction and maintenance works.

The Act has 15 sections and a schedule. It applies to all the skilled or unskilled, manual,

supervisory, technical, clerical work. The apprentices are also included. The persons employed mainly in a

managerial/administrative/supervisory capacity drawing wages exceeding Rs.1600 are not covered.

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Schedule

Matters to be contained in the Standing Orders Classification of the workmen : temporary, casual, apprentices Manner of intimating to workmen Shift working Attendance and late coming Conditions of, procedure in applying for, and the authority which may

grant leave and holidays Requirements to enter premises by certain gates and liability to search Closing and reopening of sections of the establishments, temporary

stoppages Suspension or dismissal for misconduct Acts and omissions which constitute misconduct

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Submission of Draft Standing Orders Obligatory on the part of an employer or a group of employers to

furnish 5 copies of the draft standing orders Within 6 months of the application of the Act the employer shall

submit the draft standing orders Copies to be given to the certifying officer Draft has to enclose the prescribed particulars of the workmen The status and name of the trade unions to be given. It has to take all matters set out in the Schedule.

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Procedure for Certification of Standing Orders

Copy of draft standing orders to be sent to trade union/workmen Opportunity of hearing to trade union/workmen to be provided Certification Certified standing orders have the force of law and the violation of

any provision shall be taken action Standing orders to be applicable to all present and future workmen Standing orders must confirm the model standing order

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Conditions for certification of Standing Orders

Must compile as per the Model Standing Orders Fairness of the provisions shall be verified by the Certifying Officer

AppealAny employer, workman, trade union aggrieved by the order of the

certifying officer may, with in 30 days from the date on which copies of the certified standing orders sent to them

Date of Operation of the ActOn the expiry of 30 days of the certification given by certifying officer

Or

After the expiry of 7 days of the decision given by appellate authority.

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Payment of Subsistence allowance Payment of subsistence allowance by an employer to a

workman who has been suspended by the employer and his investigation is pending

the allowance shall be at the rate of 50% of the wage for the first 90 days of suspension

The allowance shall be 75% of the wage after 90 days if the investigation is delayed due to employer

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Penalty

Any employer fails to submit draft standing orders or modifies it, shall be punishable with fine which may extend to Rs. 5000.

In case of continuance of the above offence, fine up to Rs.200 per every day.

Any contravention of Standing Orders is punishable by Rs. 100 fine .

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