the legal framework concerning ids

8/18/2019 The Legal Framework Concerning IDs

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The Legal Framework concerning

IDs

Prof. K.R. Shyam Sundar

XLRI


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The Principal Objects of the Act:

promotion of measures for securing and preserving amityand good relations

investigation& settlement of Industrial Disputes Prevention of illegal Strike/Lockout

Relief to workmen in the matter of layoff and retrenchment

collective bargaining

Chapter V-A & V-B to provide for regulation of layoff,retrenchment and closure of an undertaking

Regulating terms and conditions of employment during thestate intervention mechanism’s tenure

THE OBJECT OF THE ACT IS “TO MAKW PROVISION FOR

INVESTIGATION & SETTLEMENT OF IDs AND FOR CERTAINOTHER PURPOSES”

MAJOR AMEDNMENTS IN 1976, 1982 AND 2009


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• Lockout – the temporary closing of a place ofemployment or thesuspension of work or

refusal by an employer tocontinue to employ any noof persons employed byhim/her

• Strike – a cessation of work

by a BODY of persons…acting in COMBINATIONor a CONCERTED REFUSALor a refusal under aCOMMONUNDERSTANDING

• Closure – means thepermanent closing down ofa place of employment orpart thereof

Retrenchment – termination ofservices of a worker for anyreason otherwise than as apunishment inflicted by way of

disciplinary action butExcludes: VRS,

retirement or superannuation(as per settlement),

termination due to non-nonrenewal of contract due toexpiry or on agreed conditions,

termination due to continuedillness


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Lay off

1) Generally occurs in

continuing business

2) Inability to give

employment due to

reasons mentioned in the

law3) Lay off compensation as

per the law for non

provision of employment

4) This is due to factors oftenbeyond the control of the

employer

Lockout

1) Closure of business

temporarily

2) Employer refuses to give

employment and

temporarily closes business

– Non-employment not due to reasons as for lay-

off

3) Liability would depend on

the legality of lockout4) Used as a collective

bargaining ploy


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Lay off

1) A measures of economy

2) Declared by the employer3) Statutory compensation to

be paid

4) Subsistence of employer-

employee relationshipduring

5) temporary measure

Retrenchment

1) A measures of economy

2) Declared by the employer3) Statutory compensation to

be paid

4) Termination of employer-

employee relationshipduring

5) Permanent measure


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Lockout

1) Temporary closing of a

place of employment orthe suspension of work

2) Intention is not closure

3) As a collective bargainingploy

4) Post-dispute – intention tore-start production

5) NO need for compensationunless the lockout is held

to be illegal6) Compliance with law for

legal lockout

Closure

1) Closure of business place

on a permanent basis

2) Intention is closure

3) Due to economic or

exigencies

4) No intention at all

5) Compensation according to

the applicable law

6) Prior authorization in some

cases and some

administrative compliance


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S. 2-A (1965/2010) – discharge, dismissal,retrenchment or other form of termination andthe dispute arising out of these SHALL BEDEEMED to be ID even if “no other workmen orany union is a party to the dispute”

• S. 2-A – 2010 Amendment:

• The aggrieved worker need to approach conmachinery

• After the 45th date she can make an

application to the labour adjudicatory bodyfor adjudication – self referral as if it’s a govtreferral


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WorkmanEight types of employment

(a) Manual(b) Unskilled

(c) Skilled

(d) Technical

(e) Operational(f) Clerical

(g) Supervisory

(h) Managerial oradministrative

Main work (principal natureof duties & functions) test todecide the category

Clearly included: (a) to (f) (no

salary limit)Clearly excluded: (h)

Managerial – power to makeappointment, take decisions& assume responsibility to

the matters entrusted(irrespective of salary)


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• Exclusions:

• Air force, naval, army

• Police service or prison

personnel

• Employed mainly in amanagerial oradministrative capacity

•Employed in a supervisorycapacity but draws > 10,000per month or exerciseseither by the nature of theduties attached to the office

or by powers vested in him,functions mainly amanagerial nature

• The mere designation doesnot matter

• The main nature of duties

and powers conferred onthe employee as well asthe functions


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Taxonomy of Industrial Disputes

Industrial Disputes

Interest Disputes

Rights DisputesRecognition

disputes

Unfair LabourPractices


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Interests and Rights Disputes

Interest

Also known as collective

labour disputes, conflicts

on interests, economic

disputes Relate to creation of new

terms & conditions of

employment for the general

body of workers – arising

out of deadlocks in

collective negotiations

Compromise – give & take

Conciliable

Rights

• Also known as grievancedisputes, conflicts of rights,legal, individual disputes

• Disputes arising out of

interpretation & application ofexisting regulations (incl.custom) & day-to-day relationsin the establishment

• Alleged violation of existing

rights or unfair treatment• Settlement on the basis of

some existingrulebook/standards

• Judiciable


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Conflict

DealingMethods

Preventive

WorkCommittee

GrievanceRedressal

Committee

Investigative

Court ofInquiry

Settlement

State

Conciliation

ConciliationOfficer

ConciliationBoard

CompulsoryAdjudication

LC/TRIB

NT

Non-State

Collective

Bargaining VoluntaryArbitration


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Sources of Grievances• Grievances generally arise from the day-to-day working

relations in the undertaking, usually as a worker or tradeunion protest against an act or omission of managementthat is considered to violate workers' rights.

• Grievances typically arise on such questions as

discipline and dismissal,

the payment of wages and other fringe benefits, working time, overtime and time-off entitlements,

promotion,

demotion and transfer, rights deriving from seniority, rightsof supervisors and union officers,

job classification problems,

the relationship of works rules to the collective agreementand

the fulfillment of obligations relating to safety and health

laid down in the agreement


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ID Act 1947 – Chapter II-B (Act of 24 of 2010,

with effect from 15 Sep 2010)

20+ establishments (1982-2010 = 50+) to setup one or more Grievance Redressal Cell for

the resolution of disputes arising out of

individual grievancesGRC = not > 6 & in equal numbers

Chairman by rotation

Half the membership for womenGrievance redressal


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CONCILIATION

CONCILIATION & C.B.

• Historically the practice ofthird party intervention viamediation or conciliationarose thanks to failures innegotiations

• Hence Con has been seen asan extension of C.B. orassisted C.B.

• The parties continue their

negotiations at conciliation• The agreement arising out

of con is merely aided byconciliator – voluntary innature

DEFINITION OF CONCILIATION

• “the practice by which the

services of a neutral third

party are used in a dispute

as a means of helping the

disputing parties to reducethe extent of their

differences and to arrive at

an amicable settlement or

agreed solution” (ILO)


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Conciliation/Mediation/Arbitration (V.A.&C.A)

CONCILIATION & MEDIATION

• Hair splitting difference

• Difference of degree than

kind

•

Med a stronger form ofintervention – mild to up to

offer of solutions

• Encourage, facilitate & leave

settlements to parties –

weaker form

• BUT BOTH USED INTER-

CHANGEABLY

CONCILIATION & ARBITRATION

• Differences in approach –

aiding/solution giving

• In process – talks separately

or jointly/hearing process,

always jointly

• Informal/ more formal

• No judgment/judgment

imposed

• Failure possible/award

binding (usually)


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• VOLUNARY ARBITRATION VERSUS

COMPULSORY ARBITRATION OR

ADJUDICATION


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Conciliation Officer – THE LAWS. 4 (C.II) – The govt may appoint any

number of persons to “mediate in &promote the settlement of IndustrialDisputes”

• S. 12 For bringing about settlement, she

shall without delay investigate the dispute& all related matters affecting the merits &the right settlement thereof

• She may do all such things as she thinks fit

for the purpose of inducing the parties to afair & amicable settlement of ID

•


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Settlement or Failure of Conciliation – Conciliation Officer

(CO)

• In case of a settlement, the CO shall send a report to authorized

officer with settlement copy [12(3)]• In case of failure, after the closure of INVESTIGATION SEND A

FAILURE REPORT

• On consideration of failure report, the govt if satisfied of a case

for refer to adjudication• or else refuse to refer and communicate the reasons for it

• [12 (6)] The report should be submitted within 14 days FROM

THE DATE OF COMMENCEMENT OF CONCILIATION PROCEEDINGS

OR WITHIN SHORTER PERIOD AS FIXED BY GOVT –

thoughextendable by Conciliation officer with consensus from all the

parties to the dispute


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Labour Court (1 person)

The propriety or legality of anorder passed by an employer

under the standing orders; The application and interpretation

of standing orders which regulateconditions of employment.

Discharge or dismissal of workmenincluding reinstatement of, or

grant of relief to, workmen Wrongfully dismissed;

Withdrawal of any customary concession or privilege;

Illegality or otherwise of a strike orlock-out; and

All matters other than thosespecified in the Third Schedule

ALL MATTERS IN 3rd Schedule if N=


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POWERS OF LAB JUDICIARY• In settling the Industrial Disputes “the functions of the

tribunal are not confined to administration inaccordance with law.

• It can confer rights and privileges on either partieswhich it considers reasonable and proper though they

may not be within the terms of existing agreement.• It is not merely to interpret to give effect to

contractual rights or obligations of the parties but itcan create new rights and obligations between them

which it considers essential fore them for keepingindustrial peace (Bharat Bank vs. The Employees ofBharat Bank, (1950), LLJ 921


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Powers of Labour Judiciary• Power to deliver ex-parte award

• Cannot rescind or cancel reference and pronounce nodispute award for absence of one party and bound byreference

• Power to cancel promotion order by management if

found mala fide victimisation• Tribunal may in consultation with the parties frame rules

for promotion

• Pronounce ad hoc rise in wages/interim relief to protecta party from irreparable loss & balance & convenience

• 11-A – direct re-instatement on such conditions it deemsfit if the dismissal or discharge etc. Was not justified orlessen the punishment (proportionality principle)


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S. 11-A

• 11-A – If the compulsory adjudication

bodies find the orders relating to discharge

or dismissal of workers WAS NOT JUSTIFIED,

they CAN BY ITS AWARD SET IT ASIDE and

order REINSTATEMENT of workers undersuch conditions or to GIVE LESSER

PUNISHMENT IN PLACE OF DISMISSAL OR

DISCHARGE as circumstances of the casesrequire – no fresh record or matter for

these


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Award

The decisions of the adjudication body =

AWARD

The final output of a Board/Court = Report

Report or Award shall be published within 30

days by govt

An award is enforceable on the expiry of 30

days from the date of publication – unless

govt desires a review on public grounds


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CA – SOME BASICS

• Why Compulsory Adjudication (CA) over CB?

• The main objectives of CA model were,expeditious settlement of industrial disputes,easy access to disputants (especially weaker),

inexpensive process, administration ofindustrial justice in an informal set up (quasi judicial), the judges of labour judiciary to behelped by assessors

• Qualified presence of lawyering inadjudication (17/2)


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Time Process in Adjudication

Action Time Action Time

Claim statement bydisputant

15 days Evidence date 1 month or 60 daysfrom date of ref

Response 15 Adjournments 3 * 7 (normally)

One more chance

by LC

15 Arguments/hearing 15 from close of

evidence

First hearing


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Juridification Thesis

“the behaviour of line and personnel managers,

shop stewards and full time officers in dealingwith individual and collective emp issues (is)determined by reference to legal (or what arebelieved to be legal) norms, procedures, rather

than to voluntarily agreed norm and proceduresor to custom and practice” (Clark andWedderburn 1983 quoted in Saini 1991)

The process involves classification of industrialmatters into two watertight compartments, viz.lawful or unlawful – GREY AREAS SUBJECT TOLITIGIATION……..


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Juridification processes – Saini’s study findings

Though in general disputants perceive CB as the best methodesp. for Collective Disputes, the inevitability of CA is entrenchedin the actors’ beliefs (inequality fear)

CA works better for employers as it prevents CB; for workers – belief in industrial justice

Shift of power outside voluntary boundaries into judicial system

High use of law specialists – MC or outside union leaders – vested interests strengthen juridification

Legalistic arguments - ? The very fundamental issue at dispute – long legal struggle on basic issues (improper espousal of dispute)

Higher average adjournments by law professionals

Long time to settle the cases by labour judiciary – on an average3 years (1113 days)

Legal reasoning sticks to law – say MW (min converted into max)or bonus as per law even otherwise…


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Judicial administrative burden

On 31-12-1985 cases in SC ranged from 1971 to

1985

Cases reaching SC in 1971 must have had at least

5 years of legal existence in lower courts + 5 years

in HC? = 25 years?Pending labour matters in 7 HCs in 18985 = 10233

General tendency to rush to SC avoding HC under

A. 136Terrible impact on weaker adversary – is it justice

seeking or weakening and destroying adversary?


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Go-slow and Wildcat Strike & Gherao Go slow:

No cessation of work orrefusal to work or emp

For circumvention

SC disapproves of it:

Is a serious misconduct

being a covert & a moredangerous breach ofcontract of employment”

“not recognized as alegitimate weapon ofworkers to redress theirgrievances” – (Bharat SugarMills v. Jai Singh, 1961, 2 LLJ644, SC; Bank of India v. T.S.Kelawala, 1990, 2 RSJ, I at15, SC)

• Wild cat strike:

•

Withdraw first and bargainlater – not legal in PUservices U.S.22 + S.O. of thecompanies

• The judiciary considers asillegal and unjustified

• Gherao – punishable even ifused for CB purposes – guilty under S. 339 or 340 ofIPC(Jay Engg Works v. Stateof WB, AIR, 1968, Cal. 407)

• The defense that it was aconcerted action does notsecure them immunityunder S.17 of the TU Act


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Fundamental right to Strike Derivatory argument from Art. 19 (1) (c) for right to

strike

“…even a very liberal interpretation of sub-clause (c)of A.19 cannot lead to the conclusion that the tradeunions have a guaranteed right to … strike, either as apart of C.B. or otherwise.” (All India Bank EmployeesAssn v. National IT, AIR 1962, SC 171

it is a statutory right and not a fundamental right as itis controlled by law – it is a recognized weapon subjectto regulations

It is a part of democracy and to strike to press for their

demands and express their grievances BUT NOT RAISED TO THE HIGHEST PEDESTAL

DUNDAMENTAL RIGHT TO STRIKE


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• No govt servant shall participate in any demo

or resort to any strike in connection with any

matter pertaining to his condition of service(Rule 4A, Central Civil Services (Conduct)

rules, 1955

• TN GOVT EMPLOYEES STRIKE 2003


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Section 9-A• No employer shall change the conditions of service in

respect of matters specified in 4th

Schedule withoutgiving the workers affected by such change a notice orwithin 21 days of giving such a notice – except that thechanges are in pursuance of any agreement or award…

•

Change in weekly holiday or introducing a machineryon experimental basis and making it a permanentchange - attraction of S.9-A

• The objective of the section is to afford an opportunityto workers affected by changes and hear theirrepresentation – industrial democracy

• Criticism – difficult to introduce technological changes


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Chap –V-B Industrial establishment includes:

A factory registered under the Factories Act

A mine under the Indian Mines Act, 1951

a plantation under PLA 1951

Company in which not < 51% of paid-up share

held by Central government


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Lay off

25-C – lay off compensation = 50% of Basic

wages + Dearness allowance 25-M – industrial establishments employing

>99 workers – prior permission from govt

before laying off of workers – if nocommunication within 60 days – deemed

permission


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Retrenchment 25 - N – Chap – V-B• No worker who has been in continuous service for not < 1

year shall be retrenched until:

(a) Given 3 months’ notice giving reasons or payment in lieuof notice

(b) prior permission of govt via application (or else illegal) – 60 days time post which deemed permission

Govt may consider: the employers’ contentions, workers’views, genuineness or adequacy of employers’ reasons, theinterests of workers and ALL OTHER RELEVANT FACTORS – grant or refuse permission

Where permission granted = retrenchment compensation =

15 days’ of average pay for every completed year ofcontinuous service or any part there of in excess of 6 months

Govt can grant or refuse permission


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25-O- Closure – chap V-B Employer shall apply for prior permission at least 90

days before the intended date of closure stating the

reasonsServe the same notice to representatives of workers

Govt makes enquiry, hear employers, workers, personsinterested in such closure

Regard to the genuineness and adequacy of reasons,the interests of general public and all other relevantfactors – grant or refuse (60 days time for deemed)

The order final and binding and in force for 1 year

(unless suo moto review or referral to adjudication)Where permission granted, compensation to affectedworkers = as if retrenched

the legal framework concerning ids

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