SALIENT FEATURES OF THE INDUSTRIAL DISPUTES ACT, 1947
M.L.PANDIA
I. IMPORTANT DEFINITIONS CERTAIN IMPORTANT TERMS UNDER THE INDUSTRIAL DISPUTES ACT AND THEIR SIGNIFICANCE. a) APPROPRIATE GOVERNMENT [Sn.2(a)] UNDER THE ID ACT SOME INDUSTRIES FALL UNDER THE CENTRAL LABOUR MACHINERY AND SOME OTHERS FALL UNDER THE STATE LABOUR MACHINERY. SN 2(a) HELPS US TO DETERMINE UNDER WHOSE JURISDICTION A PARTICULAR INDUSTRY FALLS AND WHETHER THE STATE/CENTRAL RULES WILL APPLY. b) INDUSTRY [Sn.2(j)] THE ID ACT IS NOT APPLICABLE TO ALL KINDS OF ESTABLISHMENTS. IT IS APPLICABLE ONLY TO ESTABLISHMENTS SATISFYING THE DEFINITION OF THE TERM 'INDUSTRY' (AS DECIDED IN SEVERAL JUDICIAL PRONOUNCEMENTS). THE 1984 AMENDED DEFINITION NOW APPEARING IN Sn.2(j) IS YET TO BE BROUGHT INTO FORCE AND THE OLD DEFINITION IS STILL IN VOGUE.
c) WORKMAN [(Sn.2(s)] ALL EMPLOYEES IN AN ESTABLISHMENT ARE NOT 'WORKMEN' UNDER THE ID ACT. ONLY EMPLOYEES DOING ANY MANUAL, UNSKILLED, SKILLED, TECHNICAL, OPERATIONAL, CLERICAL (IRRESPECTIVE OF WHETHER THEIR WAGES IS ABOVE Rs.1600/- PER MONTH OR NOT) AND SUCH OF THE SUPERVISORS DRAWING WAGES BELOW Rs.1600/- PM (SEE DEFINITION OF WAGES IN Sn.2(rr). IT ALSO INCLUDES DISMISSED WORKMEN FALLING UNDER THE ABOVE CATEGORIES. HOWEVER MANAGERIAL STAFF ARE TOTALLY EXCLUDED IRRESPECTIVE OF THEIR SALARY. [THE TEST OF DETERMINING WHO IS A 'WORKMAN' WAS PRONOUNCED IN A RECENT SUPREME COURT JUDGEMENT IN SANDOZ LTD CASE REPORTED IN 1994 II LLN 1017) d) WAGES [Sn.2(rr)] WAGES WILL INCLUDE BASIC, DA, VALUE OF HOUSE ACCOMMODATION, OTHER AMENITIES, TRAVELLING CONCESSION, COMMISSION PAYABLE AND OTHER REMUNERATION PAYABLE UNDER THE CONTRACT, BUT EXCLUDES THE FOLLOWING : ANY BONUS AND RETIREMENT BENEFITS LIKE EPF/GRATUITY
II
WHAT AMOUNTS TO INDUSTRIAL DISPUTE
EXTENT AND SCOPE OF THE TERM 'INDUSTRIAL DISPUTE' UNDER THE INDUSTRIAL DISPUTES ACT 1947. PROVISIONS SECTIONS 2(k),2(ka),2(j),2(s),2(A),2(rr). a) WHAT ARE THE INGREDIENTS OF AN INDUSTRIAL DISPUTE [Sn.2(k)] ? THE
i) DISPUTE MUST BE IN AN ESTABLISHMENT SATISFYING DEFINITION OF 'INDUSTRY' IN SECTIONS 2(ka) & 2 (j).
BROUGHT ii) -
(NOTE : THE NEW DEFINITION OF 2(j) HAS NOT BEEN INTO FORCE YET). DISPUTE MUST BE BETWEEN : EMPLOYER Vs EMPLOYER EMPLOYER Vs WORKMEN WORKMEN Vs WORKMEN
iii
THE SUBJECT MATTER OF THE DISPUTE MUST BE : - CONNECTED WITH EMPLOYMENT OR NON-EMPLOYMENT - CONNECTED WITH TERMS OF EMPLOYMENT - CONNECTED WITH CONDITIONS OF LABOUR
iv
OF 'ANY PERSON' - PROVIDED THAT PERSON HAS A NEXUS WITH THE INDUSTRY
v DISPUTE MUST BE RAISED BY WORKMEN : BY UNION, OR A GROUP OF WORKMEN. b) CAN ALL EMPLOYEES IN AN INDUSTRY RAISE AN INDUSTRIAL DISPUTE [Sn.2(s),2(k)]? ANSWER IS NO. INDUSTRIAL DISPUTE CAN BE RAISED ONLY BY EMPLOYEES SATISFYING THE DEFINITION OF 'WORKMAN' IN SECTION 2(s). THOSE NOT SATISFYING THE DEFINITION OF WORKMAN CANNOT RAISE A DISPUTE UNDER ID ACT.
c) WHAT CATEGORY OF EMPLOYEES WOULD FALL UNDER THE DEFINITION OF 'WORKMAN' UNDER SECTION 2(s) ? ANY PERSON IN AN 'INDUSTRY' (INCLUDING AN APPRENTICE) EMPLOYED ON MANUAL, UNSKILLED, SKILLED, TECHNICAL, OPERATIONAL JOBS PLUS THOSE SUPERVISORY STAFF DRAWING 'WAGES' BELOW Rs.1600 PM AS PER DEFINITION OF WAGES IN Sn.2(rr). NOTE : - ALL MANAGERIAL STAFF ARE EXCLUDED IRRESPECTIVE OF THEIR SALARY - MEMBERS OF SUPERVISORY STAFF WILL BE EXCLUDED ONLY IF THEY ARE DRAWING WAGES ABOVE Rs.1600 PM - WORKMEN WHO WERE TERMINATED COULD CONTINUE TO CLAIM STATUS OF WORKMEN FOR PURSUING THEIR DISPUTES - THE WAGES OF SUPERVISORY STAFF SHOULD BE COMPUTED AS PER DEFINITION OF 'WAGES' IN SECTION 2(rr).
d)
CAN ONLY A MAJORITY OF WORKMEN IN AN INDUSTRY RAISE A DISPUTE ?
IT IS NOT NECESSARY THAT A MAJORITY OF WORKMEN SHOULD SUPPORT THE RAISING OF THE DISPUTE. IT IS ENOUGH IF A SUBSTANTIAL NUMBER BACK THE RAISING OF THE DISPUTE. WHILE A UNION CAN RAISE A DISPUTE, IT IS NOT NECESSARY THAT ONLY A UNION CAN RAISE A DISPUTE. A SINGLE WORKMAN CANNOT NORMALLY RAISE DISPUTE. e)
WHEN CAN AN INDIVIDUAL WORKMEN RAISE A DISPUTE (i.e. EVEN WITHOUT THE SUPPORT OF OTHER WORKMEN) ?
NORMALLY ONLY COLLECTIVE DISPUTES (DISPUTES RAISED BY A GROUP OF WORKMEN CAN BE TAKEN UP AS INDUSTRIAL DISPUTES). AN INDIVIDUAL WORKMAN CAN RAISE A DISPUTE IF IT FALLS UNDER THE EXCEPTIONAL CASES LISTED IN SECTION 2 A: CASES OF DISMISSAL / DISCHARGE / RETRENCHMENT / TERMINATION ONLY. FOR NON-TERMINATION ISSUES (LIKE PROMOTION / TRANSFER / PUNISHMENTS NOT AMOUNTING TO TERMINATION) INDIVIDUAL WORKMAN CANNOT RAISE A DISPUTE IF THERE ARE NO OTHER WORKMEN SUPPORTING HIS CASE.
f)
CAN WORKMEN RAISE AN INDUSTRIAL DISPUTE PERTAINING TO NON-WORKMEN ?
ANSWER IS 'YES' - THEY CAN AS PER SECTION 2(k) RAISE AN INDUSTRIAL DISPUTE REGARDING 'ANY PERSON' IF IT CAN BE SHOWN THAT 'THAT PERSON' HAS A NEXUS WITH THEIR INDUSTRY (THEY COULD THEREFORE RAISE DISPUTES DEMANDING BENEFITS OR REINSTATEMENT OF DISMISSED MANAGERS / SUPERVISORS). g)
HOW CAN AN INDIVIDUAL WORKMAN REDRESS HIS DISPUTE ?
HE SHOULD GET OTHER WORKMEN / UNION TO SPONSOR IT TO MAKE IT AN INDUSTRIAL DISPUTE UNDER Sn.2(k). IF IT IS A TERMINATION CASE HE CAN RAISE IT HIMSELF UNDER Sn.2(A).
III
FUNCTIONING OF DISPUTE SETTLING MACHINERIES
a)
ALL ABOUT CONCILIATION
i)
WHAT TYPE OF CONCILIATION MACHINERY EXIST UNDER THE ID ACT ?
CONCILIATION BY AN OFFICER [Sn.4 & 2(d)] AND A BOARD (AN ADHOC BOARD CONSISTING OF AN INDEPENDENT CHAIRMAN AND EQUAL NUMBER OF WORKMEN AND EMPLOYER REPRESENTATIVES) [Sn.5 & 2(e)]. [THIS IS NOT A PERMANENT BODY, SET UP ONLY FOR A PARTICULAR DISPUTE AND THE BOARD WILL STAND DISSOLVED WHEN THE ISSUE IS SETTLED].
ii)
WHAT ARE THE DUTIES OF A CONCILIATION OFFICER ?
AS PER Sn.12 (1) AND RULE 9(1) WHEN A STRIKE / LOCKOUT NOTICE IS ISSUED UNDER RULE 71/72 IN A PUBLIC UTILITY SERVICE, HE IS BOUND TO IMMEDIATELY CONVENE A CONCILIATION MEETING.
AS PER Sn.12(1) AND RULES 9(2) & 10, IN NON PUBLIC UTILITY SERVICE OR IN NON-STRIKE DISPUTES IN PUBLIC UTILITY SERVICE HE IS NOT BOUND, BUT MAY HOLD CONCILIATION MEETINGS. HE WILL HOWEVER HOLD ORDINARY JOINT MEETINGS WHICH WOULD NOT BE COUNTED AS CONCILIATION MEETINGS.
HE WILL TRY TO PERSUADE THE PARTIES TO RESOLVE THE DISPUTES AS PER RULES 10A, 11, 12 AND 13.
IF HE SUCCEEDS IN BRINGING ABOUT AN UNDERSTANDING, HE GETS THE PARTIES TO SIGN A SETTLEMENT IN FORM-H AS PER Sn.12(3), 18(3) AND RULE-58. AS PER RULE 75, HE HAS TO MAINTAIN A REGISTER IN FORM-O, GIVING THE DETAILS OF THE SETTLEMENTS SIGNED BY HIM. IF HE FAILS TO BRING ABOUT A SETTLEMENT, AS PER Sn.12(4) HE HAS TO INFORM THE GOVERNMENT AND THIS IS CALLED A FAILURE REPORT. BEFORE SENDING THE FAILURE REPORT HE SHOULD ASK THE DISPUTING PARTIES WHETHER THEY WOULD LIKE THE DISPUTE TO BE SENT FOR ARBITRATION. AS PER SN.12(6) HE IS EXPECTED TO CLOSE THE CONCILIATION PROCEEDINGS WITHIN 14 DAYS BUT WITH THE CONSENT OF THE PARTIES HE CAN KEEP THE CONCILIATION PROCESS GOING FOR A LONGER DURATION. WHEN NOTICE OF CHANGE IS ISSUED UNDER Sn.9A HE IS OBLIGED TO HOLD MEETINGS TO RESOLVE THE DISPUTE. WHEN APPROVAL/PERMISSION APPLICATIONS ARE FILED UNDER Sn.33/33A HE IS REQUIRED TO PASS APPROPRIATE ORDERS. NOTE : UNLIKE IN ARBITRATION/ADJUDICATION PROCEEDINGS, A CONCILIATION OFFICER HAS NO POWER TO ENFORCE HIS DECISION ON THE PARTIES. HE CAN ONLY TRY TO PERSUADE THE PARTIES TO ACCEPT HIS SUGGESTION.
iii)
WHAT ARE THE POWERS OF A CONCILIATION OFFICER ?
AS PER Sn.11(1) AND RULE 23, HE CAN ENTER AND INSPECT ANY ESTABLISHMENT. AS PER Sn.11(4) AND RULE 17 HE CAN SUMMON ANY PERSON AS WITNESS OR COMPEL THE PRODUCTION OF DOCUMENTS HAVING RELEVANCE TO THE DISPUTE. AS PER Sn.33/33A AND RULES 59, 60, 61 HE CAN GRANT/REFUSE APPROVAL/PERMISSION TO PETITIONS FILED BY EMPLOYER ON DISCIPLINARY MATTERS DURING PENDENCY OF CONCILIATION BEFORE HIM.
iv)
SUMMARY OF SECTIONS SECTIONS 2(d), 2(e), 4, 5, 11, 12, 13, 18(3), 20, 33, 33A RULES 9, 10, 10A, 11, 12, 13, 17, 23, 58, 59, 60, 61 FORM-H
b)
ALL ABOUT ADJUDICATION
i)
WHAT IS MEANT BY ADJUDICATION ? ADJUDICATION IS A JUDICIAL (DECISION MAKING) PROCESS FOR SETTLEMENT OF INDUSTRIAL DISPUTES [Sn.2(aa)].
ii)
WHAT ARE THE ADJUDICATING BODIES UNDER THE ID ACT ? LABOUR COURTS
[Sn.2(kkb), 7, Sch.II]
TRIBUNALS
[Sn.2(r), 7A, Sch.III]
NATIONAL TRIBUNALS
[Sn.2(11), 7B, Sch.III]
iii) CAN PARTIES (EMPLOYER OR WORKMEN) APPROACH THE ADJUDICATING BODIES DIRECTLY FOR DISPUTE SETTLEMENT ? UNLIKE IN THE CIVIL COURTS, PARTIES CANNOT APPROACH THE LABOUR COURT / TRIBUNAL / NATIONAL TRIBUNAL DIRECTLY. DISPUTES CAN BE TAKEN UP BY LABOUR COURT / TRIBUNAL / NATIONAL TRIBUNAL ONLY IF THEY ARE REFERRED TO THEM BY THE GOVERNMENT. GOVERNMENT CAN REFER THE DISPUTES AFTER RECEIPT OF THE CONCILIATION FAILURE REPORT OR WHEN THE PARTIES REQUEST THE GOVERNMENT TO MAKE A REFERENCE [Sn.10(1), 10(1A), 10(2), 10(6), 12(4), 12(5), 12(6)]. iv
WHEN DOES ADJUDICATION COMMENCE AND WHEN DOES IT END ? ADJUDICATION PROCEEDINGS ARE DEEMED TO HAVE COMMENCED FROM THE DATE THE GOVERNMENT REFERRED THE DISPUTE TO LABOUR COURT/TRIBUNAL / NATIONAL TRIBUNAL.
IT IS DEEMED TO HAVE CONCLUDED ON THE DATE THE AWARD BECOMES ENFORCEABLE AS PER Sn.17A [Sn.20(3)].
v
DUTIES OF LABOUR COURT / TRIBUNAL / NATIONAL TRIBUNAL ?
TO HOLD ADJUDICATING PROCEEDINGS EXPEDITIOUSLY AND SUBMIT THEIR REPORT TO THE GOVERNMENT WITHIN THE PRESCRIBED TIME LIMIT [Sn.15, 10(2A), 16(2)]. TO CONFINE THE SCOPE OF THEIR JUDGEMENT TO THE POINTS REFERRED TO THEM FOR DETERMINATION [Sn.10(4)]. vi WHAT ARE THE POWERS OF LABOUR COURT / TRIBUNAL /NATIONAL TRIBUNAL ? THEY CAN ENTER ANY ESTABLISHMENT FOR FACT FINDING [Sn.11(2) AND R.23] CAN ENFORCE ATTENDANCE OF ANY PERSON AND PRODUCTION OF DOCUMENTS AND MATERIALS HAVING BEARING ON THE DISPUTE [Sn.11(3), R-10A, 10B]. EMPOWERED TO ADMINISTER OATHS AND ISSUE SUMMONS TO PARTIES / WITNESSES [R-16, 17, 18]. CAN APPOINT ASSESSORS TO ASSIST THEM [Sn.11(5), R-25]. CAN EXERCISE POWERS OF 'PUBLIC SERVANTS' UNDER Sn.21 OF IPC [Sn.11(6)] CAN PASS ORDERS ON AWARDING COSTS TO THE AGGTRIEVED PARTY
[Sn.11(7)] CAN EXERCISE POWERS OF CIVIL COURTS FOR PURPOSES OFSn.345, 346, 348 OF THE CIVIL PROCEDURE CODE OF 1973 [Sn.11(8)]. HAS POWERS TO REVIEW DISCIPLINARY PUNISHMENT ORDERS ISSUED BY MANAGEMENT AND CAN REDUCE/SUBSTITUTE PUNISHMENTS OR ORDER REINSTATEMENT WITH/WITHOUT BACK WAGES [Sn.11(A)]. HAS POWERS TO GRANT / REFUSE APPROVAL / PERMISSION PETITIONS FILED UNDER Sn.33 [Sn.33A] CAN PASS ORDERS ON MONEY CLAIM PETITIONS FILED BY WORKMEN AGAINST EMPLOYERS [Sn.33C(2)]. vii
PROCEDURE FOR ENFORCING ADJUDICATION AWARDS
DECISIONS GIVEN BY LABOUR COURT / TRIBUNAL / NATIONAL TRIBUNAL ARE CALLED AWARDS [Sn.2(b)]. AWARDS ARE NOT ENFORCEABLE DIRECTLY. THE LABOUR COURT / TRIBUNAL / NATIONAL TRIBUNAL CAN ONLY SEND THEIR FINDINGS TO THE GOVERNMENT AND CANNOT ANNOUNCE THEM DIRECTLY. [Sn.15] AFTER RECEIPT OF THE REPORT, THE APPROPRIATE GOVERNMENT WOULD DECIDE WHETHER TO ACCEPT / MODIFY / WITH-HOLD THE REPORT - THE GOVERNMENT HAS TO ANNOUNCE THEIR DECISION THROUGH THE GAZETTE WITHIN 30 DAYS OF RECEIPT OF THE REPORT [Sn.17, 17A]. THE GOVERNMENT ORDER ON THE ADJUDICATION DECISION BECOMES ENFORCEABLE ON THE EXPIRY OF 30 DAYS FROM THE DATE OF THE GAZETTE NOTIFICAITON [Sn.17A].
viii
FOR WHAT DURATION IS THE ADJUDICATION AWARD VALID ?
AN ADJUDICATION AWARD (AS PUBLISHED BY GOVERNMENT) SHALL BE IN OPERATION FOR A PERIOD OF ONE YEAR FROM THE DATE IT BECOMES ENFORCEABLE UNDER 17A [Sn.19(3)]. GOVERNMENT HAS THE POWER TO REDUCE THE VALIDITY PERIOD OR EVEN EXTEND THE VALIDITY PERIOD BY ONE YEAR AT A TIME SUBJECT TO THE TOTAL DURATION NOT EXCEEDING THREE YEARS [Sn.17A,19(3)]. EVEN AFTER THE NORMAL / EXTENDED PERIOD OF OPERATION, THE TERMS OF THE AWARD SHALL CONTINUE TO BE IN FORCE UNTIL ONE OF THE PARTIES SERVES A FORMAL NOTICE OF TERMINATION [Sn.19(5), 19(6), 19(7)]. ix
ON WHOM ARE THE AWARDS BINDING ?
IT IS BINDING ON ALL PARTIES TO THE DISPUTE. IT IS ALSO BINDING ON ALL OTHER PARTIES SUMMONED TO APPEAR IN THE PROCEEDINGS TO THE DISPUTE. ON THE EMPLOYER, HIS HEIRS,ASSIGNS ANDSUCCESSORS. ON WORKMEN CURRENTLY EMPLOYED AND WHO SUBSEQUENTLY GET EMPLOYED IN THE ESTABLISHMENTS [Sn.18(3)].
c)
ALL ABOUT ARBITRATION
i)
WHAT IS MEANT BY ARBITRATION ? IT IS A DISPUTE RESOLVING PROCESS THROUGH AN UMPIRE SELECTED BY THE DISPUTING PARTIES.
ii)
HOW DOES ARBITRATION DIFFER FROM ADJUDICATION AND CONCILIATION ? WHILE THE PRESIDING OFFICERS OF CONCILIATION AND ADJUDICATION PROCEEDINGS ARE FULL TIME OFFICERS APPOINTED BY GOVERNMENT, ARBITRATORS ARE ADHOC UMPIRES APPOINTED BY THE DISPUTANTS.
WHILE THE CONCILIATION OFFICER HAS NO POWER TO IMPOSE HIS DECISION ON THE PARTIES, AN ARBITRATOR HAS AUTHORITY TO GIVE AN ORDER WHICH CANNOT BE CHALLENGED BY THE PARTIES.ADJUDICATORS GET THEIR POWER FROM STATUTE , ARBITRATORS ACQUIRE THEIR POWR FROM THE CONSENT OF THE PARTIES.
iii)
TYPES OF ARBITRATION
ID ACT CONTEMPLATES TWO TYPES OF ARBITRATION, ONE UNDER SECTION 10(2) TO A LABOUR COURT / TRIBUNAL AND THE SECOND TYPE UNDER 10A TO ANY OTHER ARBITRATOR INCLUDING TO LABOUR COURTS OR TRIBUNALS. iv)
HOW IS ARBITRATION PROCESS INITIATED [Sn.10(2)+10A] ?
WHEN CONCILIATION FAILS, BEFORE SENDING THE FAILURE REPORT, THE CONCILIATION OFFICER ASKS THE PARTIES IF THEY WISH TO SEND THE DISPUTE FOR ARBITRATION. IF PARTIES DESIRE SO, THEY MUST SIGN AN ARBITRATION AGREEMENT IN FORM-C UNDER RULE 7 AND SEND IT TO THE GOVERNMENT. GOVERNMENT WILL THEN NOTIFY HIM AS AN ARBITRATOR v)
AWARDS OF ARBITRATORS
ARBITRATORS HEAR THE PLEADINGS OF BOTH PARTIES AND SUBMIT THEIR ORDERS TO THE GOVERNMENT WHO PROCESSES IT LIKE AN ADJUDICATION AWARD AND IT IS IMPLEMENTED LIKE AN ADJUDICATION AWARD.
IV
PENDENCY OF PROCEEDINGS AND ITS IMPLICATIONS
a)
WHAT IS MEANT BY PENDENCY OF PROCEEDINGS [Sn.20] ?
i)
THE PERIOD FROM WHICH CONCILIATION / ADJUDICATION / ARBITRATION PROCEEDINGS COMMENCES AND CONCLUDES UNDER Sn.20 IS CALLED PERIOD OF PENDENCY. ii) WHEN IS CONCILIATION DEEMED TO BE PENDING COMMENCEMENT AND CONCLUSION [Sn.20(1)(2)(a,b)] ?
COMMENCEMENT : WHEN NOTICE OF STRIKE/LOCKOUT IN PUBLIC UTILITY INDUSTRIES UNDER Sn.22 IS RECEIVED BY THE CONCILIATION OFFICER OR ON THE DATE THE DISPUTE IS REFERRED TO THE CONCILIATION BOARD AND IN OTHER CASES WHEN THE CONCILIATION OFFICER ISSUES NOTICE OF CONCILIATION.
CONCLUSION : IT CONCLUDES WHEN A SETTLEMENT IS SIGNED BY THE PARTIES. IF THERE IS NO SETTLEMENT WHEN THE FAILURE REPORT OF THE CONCILIATION OFFICER IS RECEIVED BY THE GOVERNMENT.
iii)
WHEN IS ADJUDICATION /ARBITRATION DEEMED TO BE PENDING [Sn.20(2)(C)20(3) & 17] ? COMMENCEMENT :
ADJUDICATION / ARBITRATION PROCEEDINGS ARE DEEMED TO COMMENCE ON THE DATE WHEN THE GOVERNMENT REFERS THE DISPUTE TO LABOUR COURT / TRIBUNAL / NATIONAL TRIBUNAL OR ARBITRATOR UNDER SECTION 10 OR 10 A AS THE CASE MAY BE. CONCLUSION : ADJUDICATION / ARBITRATION PROCEEDINGS ARE DEEMED TO HAVE CONCLUDED ON THE DATE ON WHICH THEIR AWARDS BECOME ENFORCEABLE UNDER SECTION 17 A, i.e. AFTER 30 DAYS OF THE PUBLICATION OF THE AWARD IN THE OFFICIAL GAZETTE.
b)
IMPACT OF PENDENCY ON STRIKES / LOCKOUTS
i) WHY IS IT IMPORTANT TO KNOW THE PERIOD OF PENDENCY OF PROCEEDINGS ? AS PER SECTION 22(d) ANY STRIKE / LOCKOUT IN A PUBLIC UTILITY INDUSTRY DURING THE PENDENCY OF CONCILIATION AND SEVEN DAYS THEREAFTER WOULD BE ILLEGAL [(Sn.22(d)]. ANY STRIKE / LOCKOUT IN A NON-PUBLIC UTILITY AS WELL AS PUBLIC UTILITY DURING PENDENCY OF CONCILIATION BEFORE A BOARD AND SEVEN DAYS THEREAFTER WOULD BE ILLEGAL [Sn.23(a)]. ANY STRIKE/LOCK OUT DURING THE PENDENCY OFADJUDICATION /ARBITRATION PROCEEDING AND TWO MONTHS THEREAFTER WOULD BE ILLEGAL IN BOTH PUBLIC AND NONPUBLIC UTILITY INDUSTRIES [Sn.23(b), 23(bb)].
c)
IMPACT OF PENDENCY ON EMPLOYER'S RIGHT TO ALTER SERVICE CONDITIONS
i) WHILE EMPLOYERS ARE ENTITLED TO ALTER THE SERVICE CONDITIONS / TAKE DISCIPLINARY ACTION IN TERMS OF THEIR STANDING ORDERS DURING NORMAL TIMES; SOME RESTRICTIONS ARE PLACED ON THESE RIGHTS DURING PENDENCY OF PROCEEDINGS LIKE CONCILIATION, ARBITRATION AND ADJUDICATION. ii) AS PER Sn.33(1)(a) DURING PENDENCY OF PROCEEDINS, ANY ALTERATION OF ANY MATTER CONNECTED WITH THE DISPUTE CAN BE MADE ONLY WITH EXPRESS WRITTEN PERMISSION OF THE AUTHORITY BEFORE WHOM THE DISPUTE IS PENDING [APPLY IN FORM-J UNDER RULE 60(1)[Sn.33(1)(a), R-60(1),F-J] iii)
AS PER Sn.33(2)(a), EVEN DURING PENDENCY OF PROCEEDINGS NO PERMISSION IS REQUIRED FOR ALTERING ANY MATTER NOT CONNECTED WITH THE DISPUTE IF THE STANDING ORDERS OR CONTRACT OF EMPLOYMENT OF THE CONCERNED WORKMEN ALLOW THE EMPLOYER TO MAKE SUCH ALTERATION [Sn.33(2)(a)].
d) IMPACT OF PENDENCY ON EMPLOYER'S RIGHT TO TAKE DISCIPLINARY ACTION i) AS PER Sn.33(1)(b) DURING PENDENCY OF PROCEEDINGS ANY DISCIPLINARY PUNISHMENT FOR A MISCONDUCT CONNECTED WITH THE DISPUTE CAN BE TAKEN ONLY AFTER OBTAINING EXPRESS WRITTEN PERMISSION OF THE AUTHORITY BEFORE WHOM THE DISPUTE IS PENDING [APPLY IN FORM-J UNDER RULE 60(1)]. ii) AS PER Sn.33(2)(b) IF THE MISCONDUCT IS NOT CONNECTED WITH THE PENDING DISPUTE NO PRIOR PERMISSION FOR DISMISSING OR DISCHARGING IS REQUIRED BUT RATIFICATION OR APPROVAL IS TO BE TAKEN FROM THE AUTHORITY AFTER THE TERMINATION ORDER IS ISSUED. iii) WHILE ISSUING THE TERMINATION ORDER ONE FULL MONTH'S WAGES (WITHOUT ANY DEDUCTIONS) SHOULD ALSO BE PAID AND AN APPLICATION FOR APPROVAL IN FORM-K UNDER RULE 60(2) SHOULD ALSO BE SUBMITTED TO THE AUTHORITY ON THE VERY SAME DAY OF ISSUE OF THE TERMINATION ORDER [Sn.33(2)(b), R60(2),F-K].
NOTE : IF APPROVAL IS REFUSED THE WORKMAN WILL HAVE TO BE REINSTATED WITH BACK WAGES.
e) IMPACT OF PENDENCY ON TAKING ACTION AGAINST 'PROTECTED WORKMEN' AS PER Sn.33(3) DURING PENDENCY OF PROCEEDINGS, TRADE UNION OFFICE BEARERS WHO QUALIFY FOR THE STATUS OF 'PROTECTED WORKMEN' UNDER RULE 61 SHOULD NOT BE PUNISHED OR TERMINATED WITHOUT THE PRIOR WRITTEN PERMISSION FROM THE AUTHORITY CONCERNED [AN APPLICATION FOR PERMISSION UNDER RULE 60(1) IS TO BE MADE IN FORM-J] [Sn.33(3), R60(1),F-J].
f)
WORKMEN'S MODE OF SEEKING RELIEF FOR EMPLOYERS VIOLATION OF SECTION-33
i)
IF DURING THE PENDENCY OF PROCEEDINGS THE EMPLOYER HAS ALTERTED THE SERVICE CONDITIONS VIOLATING Sn.33(1)(a) OR 33(2)(a) OR PUNISHED A WORKMAN IN VIOLATION OF Sn.33(1)(b) OR 33(2)(b) OR PUNISHED A PROTECTED WORKMAN (OFFICE BEARER) IN VIOLATION OF SECTION 33(3), THE AGGRIEVED WORKMAN CAN FILE A COMPLAINT TO THE AUTHORITY IN FORM-I UNDER RULE 59 AND Sn.33A [Sn.33(A), R-59,F-I].
ii) THE AUTHORITY CONCERNED WILL MAKE AN ENQUIRY AND AFTER HEARING THE PARTIES WILL PASS APPROPRIATE ORDERS GRANTING OR REFUSING APPROVAL OR PERMISSION AS THE CASE MAY BE [Sn.33A].
NOTE : 1
IF APPROVAL IS REFUSED WORKMAN HAS TO BE REINSTATED
2
WHEN PERMISSION IS REQUIRED, ACTION BY EMPLOYER CAN BE ONLY AFTER GETTING WRITTEN PERMISSION
3
EVEN IF APPROVAL/PERMISSION IS GRANTED UNDER Sn.33A, THE WORKMAN IS NOT BARRED FROM CHALLEGING THE ACTION AND RAISING A DISPUTE FOR REINSTATEMENT UNDER SECTION 2(K) OR 2(A).
SIGNIFICANCE OF SECTION 33 OF THE I.D.ACT 1947 I SIGNIFICAN - IT PLACESMAKE CHANGES IN SERVICE CE OF CERTAIN CONDITONS OF WORKMEN SECTION 33 TEMPORARY TO AWARD PUNISHMENT OF RESTRICTIONS DISMISSAL/DISCHARGE ON ON EMPLOYERSANY WORKMAN RIGHT TO: TO IMPOSE ANY KIND OF PUNISHMENT ON UNION OFFICE BEARERS TREATED AS ‘PROTECTED WORKMEN’
II ARE THESERESTRICTIO NS ALWAYS APPLICABLE ?
NO. [THERE ARE NO RESTRICTIONS IF NO PROCEEDING IS
III THEN WHEN ARE THEY APPLICABLE ?
-
IV WHAT IS MEANT BY ‘PERIOD OF PENDENCY’ ? -
IT APPLIES ONLY DURING ‘THE PERIOD OF PENDENCY OF ANY ONE OF THE FOLLOWING PROCEEDINGS:
CONCILIATION ADJUDICATION ARBITRATION [Sn 33(1)]
CONCILIATION IS DEEMED TO COMMENCE AND CONCLUDE WHEN CONTINGENCIES MENTIONED IN SECTION 20(1) 20(2) ARE SATISFIED SIMILARLY ‘ADJUDICATION’ & ‘ARBITRATION’ ARE DEEMED TO COMMENCE & CONCLUDE WHEN CONTINGENCIES MENTIONED IN SECTION 20(3) IS SATISFIED.
V WHAT IS THE NATURE OF RESTRICTIONS IMPOSED CONTINGENC Y
TAKE PRIOR WRITTEN PERMISSION
TAKE POST FACTO APPROVAL
ALTERATION OF SERVICE CONDITIONS A WHEN EMPLOYER WANTS TO ALTER A MATTER/ SERVICE CONDITION WHICH IS THE SUBJECT MATTER OF THE DISPUTE
ACTION ONLY AFTER GETTING PRIOR WRITTEN PERMISSION FROM AUTHORITY
NA
B WHEN SERVICE CONDITIONS / ANY OTHER MATTER NOT CONNECTED WITH THE PENDING DISPUTE ARE TO BE ALTERED IN CASE OF PERSONS CONCERNED IN THE
NA
NO PERMISSION OR APPROVAL IS REQUIRED IF THE ACTION IS AS PER APPLICABLE STANDING ORDER PROVISIONS OR PREVAILING SERVICE RULES.
PROTECTED WORKMEN PUNISHING ‘PROTECTED WORKMEN’ [Sn 33(3), R-62]
VI WHERE TO FILE APPROVAL /PERMISSION APPLICATIONS
ANY KIND OF PUNISHMENT TO ‘PROTECTED WORKMEN’ MUST BE GIVEN ONLY AFTER APPLYING AND GETTING WRITTEN PERMISSION
IF NOT A ‘PROTECTED WORKMAN’ FILE APPROVAL PETITION (ONLY FOR TERMINATION CASES)
PERMISSION OR APPROVAL APPLICATIONS TO BE FILED BEFORE THE DISPUTE PENDING AUTHORITY IF DISPUTE PENDING BEFORE MORE THAN ONE AUTHROTITY –
VII IS THERE ANY SPECIFIC FORMAT
VIII WHAT CAN A WORKMAN DO WHEN EMPLOYER DOES NOT COMPLY WITH SECTION 33 IX
SEE THE APPLICABLE STATE RULES IN KERALA THE APPLICABLE RULE & FORMAT ARE AS FOLLOWS: CONTINGENCYRULE NO.
IN FORM NO.
FOR PERMISSION PETITIONS
61(1) & (3) (4) & (5)
J
FOR APPROVAL PETITIONS
61(2) (3) (4) K & (5)
AS PER SECTION 33(A) AND RULE 60 (1) (2) (3) (4) HE CAN FILE A COMPLAINT TO THE AUTHORITY BEFORE WHOM PROCEEDING IS PENDING
CONSEQUENCES OF THE WORKMAN HAS TO BE REINSTATED IN APPROVALS NOT SERVICE AND GIVEN FULL BACK PAY AND BEING GRANTED BENEFITS [Sn 33(A)]
X
GENERAL
EVEN IF APPROVAL/PERMISSION IS GIVEN UNDER SECTION 33, WORKMAN CAN RAISE A SEPARATE DISPUTE CHALLENGING HIS DISMISSAL [Sn-2(A) & 11A] EVEN IF NO APPLCATION FOR PERMISSION/APPROVAL IS MADE, DISMISSAL/DISCIPLINARY ACTION WILL NOT BE IPSO FACTO ILLEGAL. EMPLOYERS CAN STILL JUSTIFY HIS ACTION WHEN CASE COMES UP BEFORE LABOUR COURT. EVEN IN PERMISSION CASES THE EMPLOYER CAN FILE THE PERMISSION APPLCIATION AND PARALLALY PLACE THE WORKMAN UNDER SUSPENSION PENDING ENQUIRY PROVIDED HE IS PAID THE APPLICABLE SUBSISTENCE ALLOWANCE TILL THE PERMISSION APPLICATION IS DISPOSED OF.
V
LEGALITY AND ILLEGALITIES
a)
PROVISIONS ON 'STRIKE & LOCKOUT' PROVISIONS SECTIONS 2(q), 2(l), 2(n), 22, 23, 24, 25, 26, 27,28 RULES 71, 72, 73, 74 FORMS L, M, N AND SCHEDULE I
i)
INGREDIENTS OF STRIKE & LOCKOUTS
STRIKE [2(q)] BY WORKMEN REFUSAL TO WORK OR ACCEPT EMPLOYMENT BY A BODY OF PERSONS IN 'INDUSTRY' [2(j)] IF UNDER A COMMON UNDERSTANDING OR ACTING IN CONCERT LOCKOUT [2(l)] BY EMPLOYER TEMPORARY CLOSING OF PLACE OF EMPLOYMENT, OR REFUSAL TO CONTINUE TO EMPLOY PERSONS EMPLOYED BY AN EMPLOYER
ii)
IS NOTICE OF STRIKE/LOCKOUT MANDATORY MANDATORY [2(n), SCH-I, 22(1), 22(2), 23(1)]:
IF INDUSTRY FALLS UNDER DEFINITION OF 'PUBLIC UTILITY SERVICE' AS PER SECTION 2(n), SCH-I OR IF THE TERMS OF EMPLOYMENT (APPOINTMENT LETTER) OR STANDING ORDER REQUIRES GIVING OF NOTICE. NON MANDATORY [22(3), 23(1)] : IN NON-PUBLIC UTILITY SERVICE, UNLESS STANDING ORDERS OR APPOINTMENT ORDERS STIPULATES GIVING OF NOTICE, OR IT IS IN RETALIATION FOR A STRIKE OR LOCKOUT.
iii)
WHEN WOULD STRIKES OR LOCKOUTS BE ILLEGAL
IN 'PUBLIC UTILITY SERVICE' [22(1)& (2), 23, 30, 19] WHEN STRIKE / LOCKOUT IS COMMENCED : a) WITHOUT GIVING ATLEST 14 DAYS NOTICE b) COMMENCED AFTER 42 DAYS OF NOTICE c) PRIOR TO DATE INDICATED IN THE NOTICE d) DURING PENDENCY OF PROCEEDINGS BEFORE CONCILIATION OFFICER/BOARD AND SEVEN DAYS THEREAFTER e) DURING PENDENCY OF PROCEEDINGS BEFORE LABOUR COURT / TRIBUNAL / ARBITRATORS AND TWO MONTHS THEREAFTER f) DURING THE PERIOD WHEN A SETTLEMENT OR AWARD IS IN OPERATION ON MATTERS COVERED
IN NON-PUBLIC UTILITY SERVICE [23, 20, 19] WHEN STRIKE / LOCKOUT IS COMMENCED : a) IN BREACH OF CONTRACT b) DURING PENDENCY OF CONCILIATION BEFORE A BOARD AND SEVEN DAYS THEREAFTER c) DURING PENDENCY OF CONCILIATION BEFORE LABOUR COURT / TRIBUNAL / ARBITRATOR AND TWO MONTHS THEREAFTER d) DURING THE PERIOD ON MATTERS COVERED WHEN A SETTLEMENT OR AWARD IS IN OPERATION. NOTE : A STRIKE/LOCK OUT LEGALLY COMMENCED WOULD BECOME ILLEGAL IF CONTINUED AFTER GOVERNMENT BANS IT UNDER SECTION 10(4A) AND 24
iv)
MANNER OF GIVING STRIKE/LOCKOUT NOTICE STRIKE [22(4)]
NOTICE SHALL BE GIVEN IN FORM-L. AS PRESCRIBED UNDER RULE 71 CORRESPONDING STATE RULE
OF
CENTRAL
RULE
OR
OF
CENTRAL
RULE
OR
LOCKOUT [22(5)]. NOTICE SHALL BE GIVEN IN FORM-M AS PRESCRIBED UNDER RULE 72 CORRESPONDING STATE RULE.
v)
DUTY OF EMPLOYER ON RECEIVING / GIVING NOTICE
ON RECEIVING STRIKE NOTICE / OR GIVING LOCKOUT NOTICE. [RULES 71, 72, 73, 74 AND Sn.22(3), 22(6)]. SHOULD INFORM THE APPROPRIATE GOVERNMENT WITHIN FIVE DAYS OF RECEIPT OF NOTICE [22(6)] AND ALSO FORTHWITH INFORM THE CONCILIATION OFFICER [RULE-71(2)]. LOCKOUT NOTICE MUST BE DISPLAYED ON NOTICE BOARD AT THE ENTRANCE [RULE72]. A REPORT ON STRIKE / LOCKOUT SHOLD BE SENT IN FORM-N AS PER SECTION 22(3), RULES 73, 74.
vi)
CONSEQUENCES OF ILLEGAL STRIKES / LOCKOUTS ON WORKMEN
ALL WORKMEN NO WAGES INSTIGATORS COULD BE PUNISHED/IMPRISONED UNDER SECTIONS 26, 27, 28. ON EMPLOYER WILL HAVE TO PAY WAGES AND PUNISHED/IMPRISONED UNDER SECTIONS 26, 27, 28.
CAN
BE
ON ANY PERSON -
ANY PERSON EXTENDING FINANCIAL ASSISTANCE TO FURTHER AN ILLEGAL STRIKE OR LOCKOUT WOULD BE VIOLATING SECTION 25.
vii)
ROLE OF CONCILIATION OFFICER WHEN STRIKE NOTICE IS ISSUED [Sn.12(1)]
HE MAY HOLD CONCILIATION MEETINGS IF NOTICE IS IN NON-PUBLIC UTILITY SERVICE. HE MUST HOLD CONCILIATION MEETINGS IF NOTICE IS IN PUBLIC UTILITY INDUSTRY. NOTE
:
IN THE SYNDICATE BANK CASE [1994 II LLJ 836] SUPREME COURT HELD THAT WORKMEN ON STRIKE WOULD BE ELIGIBLE TO CLAIM WAGES ONLY IF THEY ESTABLISH THAT THEIR STRIKE WAS LEGAL AND JUSTIFIED. IF IT WAS ONLY LEGAL BUT NOT JUSTIFIED, NO WAGES IS PAYABLE.
WHAT IS PUBLIC UTILITY SERVICE & ITS SIGNIFICANCE I
SIGNIFICANCE
a)
UNDER SECTION 2(n) OF THE ID ACT 1947 CERTAIN CATEGORY OF INDUSTRIES HAVE BEEN DECLARED AS PUBLIC UTILITY SERVICES.
b)
AS PER SECTIONS 22 TO 24 MORE STRINGENT PROVISONS HAVE BEEN PRESCRIBED FOR DECLARING LOCK OUTS (BY EMPLOYERS) OR FOR ORGANISING STRIKES (BY WORKMEN) IN SUCH INDUSTRIES. II
CONSEQUENCE
a)
NON-OBSERVANCE BY EMPLOYERS WOULD MAKE THE LOCK OUT ILLEGAL AND MAKE THE WORKMEN ELIGIBLE FOR WAGES FOR THE PERIOD OF ILLEGAL LOCK OUT. b) NON-OBSERVANCE BY WORKMEN WOULD MAKE THE STRIKE ILLEGAL AND MAKE THEM DISENTITLED FOR WAGES FOR THE STRIKE PERIOD.
III CATEGORIES OF INDUSTRIES FALLING UNDER 'PUBLIC UTILITY SERVICE' SECTION 2(n) DECLARES CERTAIN TYPES OF DINDUSTRIES TO BE PERMANENTLY PUBLIC UTILITY SERVICES AND SOME OTHERS WHICH COULD BE DELCARED AS PUBLIC UTILITIES FOR TEMPORARY PERIODS OF SIX MONTHS AT A TIME. a)
PERMANENT PUBLIC UTILITY SERVICES [Sn.2(n)(I TO v)]
i)
ANY RAIL/TRANSPORT/AIR SERVICES/SERVICES IN MAJOR PORTS OR DOCKS
ii) ANY SECTION OF AN INDUSTRY THE WORKING OF WHICH IS ESSENTIAL FOR ENSURING SAFETY OF WORKMEN EMPLOYED. iii) POST/TELEGRAPH/TELEPHONE SERVICES iv)
INDUSTRIES SUPPLYING POWER/LIGHT OR WATER TO PUBLIC
v)
ANY SYSTEM OF PUBLIC CONSERVANCY SANITATION.
b)
TEMPORARY PUBLIC UTILITY SERVICES
i)
SECTION 2n(vi) EMPOWERS THE CENTRAL/STATE GOVERNMENTS TO DECLARE ANY INDUSTRY LISTED IN SCHEDULE -I OF THE ID ACT AS PUBLIC UTILITY SERVICES ii) SUCH DECLARATIONS BY THE APPROPRIATE GOVERNMENT IS VALID FOR SIX MONTHS FROMDATE OF NOTIFICATION IN GAZETTE. iii) GOVERNMENT CAN EXTEND THE VALIDITY BY RENEWING THE DECLARATION AT THE END OF EACH SIX MONTH. iv) IF THE DECLARATIONS ARE NOT RENEWED SUCH NOTIFIED INDUSTRIES WOULD COME OUT OF THE DEFINITION OF PUBLIC UTILITY. v) AS PER SCHEDULE-I, THE FOLLOWING CATEGORIES OF INDUSTRIES COULD BE CLARED AS PUBLIC UTILITY FOR SIX MONTHLY SPELLS THROUGH A GAZETTE NOTIFICATIONS:
SCHEDULE-I 1
TRANSPORT SERVICES
2
BANKING
3
CEMENT
4
COAL
5
COTTON TEXTILES
6
FOOD STUFFS
7
IRON & STEEL
8
DEFENCE ESTABLISHMENTS
9
HOSPITALS & DISPENSARIES
10
FIRE BRIGADE
11
GOVERNMENT MINTS
12
INDIA SECURITY PRESSES
13
COPPER MINING
14
IRON ORE MINING
15
LEAD MINING
16
ZINC MINING
17
SERVICE IN ANY OIL FIELD
18
SERVICE IN URANIUM INDUSTRY
19
PYRITES MINING INDUSTRY
20
SECURITY PAPER , MILL, HOSHANGABD
21
SERVICES IN THE BANK
22
PHOSPHORITE MINING
23
MAGNESITE MINING
24
CURRENCY NOTE PRESS
25
FERTILIZER INDUSTRY
26
MANUFACTURING, MARKETING & DISTRIBUTION OF PETROLEUM PRODUCTS
b)
PROVISIONS IN LAYOFF
i)
WHAT SECTIONS AND CHAPTERS OF ID ACT REGULATE LAY OFF ? SECTIONS 2(kkk), 25A, 25B, 25C, 25D, 25E OF CHAPTER VA AND SECTIONS 25K, 25L, 25M, 25Q, AND 25S OF CHAPTER VB. ii)
WHAT IS LAY OFF' ?
AS PER SECTION 2(kkk) LAY OFF IS THE INABILITY / FAILURE / REFUSAL OF THE EMPLOYER TO GIVE EMPLOYMENT TO WORKMEN ON HIS MUSTER ROLLS (EXCLUDES BADLIS AND CASUALS) ON ACCOUNT OF : SHORTAGE OF COAL / POWER / RAW MATERIALS ACCUMULATION OF STOCKS BREAKDOWN OF MACHINERY NATURAL CALAMITY (LIKE FLOODS / EARTHQUAKE / FIRE / LIGHTNING, ETC) OR ANY OTHER CONNECTED REASON
iii) IS THE LAY OFF PROVISIONS APPLICABLE TO ALL INDUSTRIES FALLING UNDER Sn 2(j) ? NO - LAY OFF PROVISIONS ARE APPLICABLE ONLY TO A LIMITED CATEGORY OF INDUSTRIES LIKE FACTORES, MINES AND PLANTATIONS, THAT TOO IF THEY ARE EMPLOYING MORE THAN 50 WORKMEN ON THE AVERAGE [25A(b) & 25 (k)]. IF THE ESTABLISHMENT IS OF SEASONAL CHARACTER OR IS OPERATING ONLY INTERMITTENTLY ALSO LAY OFF PROVISIONS WILL NOT APPLY [SEE SECTIONS 25A(b) & 25(k)].
iv) ARE WORKMEN REQUIRED TO PUT IN A MINIMUM QUALIFYING SERVICE FOR BEING ELIGIBLE FOR LAY OFF COMPENSATION ? AS PER SECTION 25(B) ONLY WORKMEN WHO HAVE PUT IN ONE YEAR 'CONTINUOUS SERVICE' (RECKONED FROM THE DATE OF LAY OFF) ARE ELIGIBLE TO LAY OFF COMPENSATION. ONE YEAR CONTINUOUS SERVICE MEANS PERMANENT EMPLOYMENT OR WORKING FOR 240 DAYS IN A PERIOD OF 12 MONTHS. 240 DAYS WILL INCLUDE DAYS OF SICKNESS/EARNED LEAVE AVAILED/ACCIDENT LEAVE/MATERNITY LEAVE/STRIKE WHICH IS NOT ILLEGAL/LOCK OUT DAYS/AND CESSATION OF WORK NOT DUE TO FAULT OF WORKMAN.
v)
ARE ANY CATEGORY OF WORKMEN EXCLUDED FROM LAY OFF BENEFITS ?
AS PER SECTION 25(C) AND 25(M) BADLIS AND CASUALS ARE INELIGIBLE UNLESS THEY HAVE PUT IN 240 DAYS ATTENDANCE IN 12 MONTHS PRIOR TO DATE OF LAY OFF.
vi)
IS PRIOR GOVERNMENT APPROVAL REQUIRED FOR LAYING OFF WORKMEN ?
ESTABLISHSMENTS EMPLOYING AVERAGE OF 50 WORKMEN OR MORE DURING THE MONTH PRIOR TO LAY OFF AND EMPLOYING LESS THAN 100 WORKMEN ON AN AVERAGE ARE REGULATED BY PROVISIONS OF CHAPTER VA AND NEED NOT TAKE ANY PERMISSION. ESTABLISHMENTS WHICH EMPLOYED AVERAGE OF 100 OR MORE WORKMEN DURING THE 12 MONTHS PRIOR TO LAY OFF ARE REGULATED BY CHAPTER VB AND MUST OBTAIN PRIOR PERMISSION FROM APPROPRIATE GOVERNMENT.
NOTE FOR ESTABLISHMENTS HAVING MORE THAN 51% CENTRAL GOVERNMENT SHARE CAPITAL THE APPROPRIATE GOVERNMENT FOR LAY OFF WILL BE ONLY THE CENTRAL GOVERNMENT AND NOT THE STATE GOVERNMENT [SEE Sn.25(L)(b)]. vii) WHAT HAPPENS IF PERMISSION IS NOT APPLIED FOR OR PERMISSION IS DENIED BY GOVERNMENT ? WORKMEN WILL BE ELIGIBLE TO RECEIVE FULL WAGES FOR THE ENTIRE LAY OFF PERIOD. viii)
WHAT IS THE NORMAL RATE OF LAY OFF COMPENSATION ? NORMAL RATE OF COMPENSATION PAYABLE IS 50% OF BASIC + DA [25(C) IF PERMISSION IS REFUSED OR NOT OBTAINED MUST PAY FULL WAGES [25 (M)(8)].
ix)
WHAT IS THE PROCEDURE FOR APPLYING FOR PERMISSION ?
ESTABLISHMENTS ATTRACTED BY CHAPTER VB MUST SUBMIT APPLICATION TO APPROPRIATE GOVERNMENT IN FORM-03. MUST ALSO NOTIFY REGIONAL LABOUR COMMISSIONER THE COMMENCEMENT AND CONCLUSION OF LAY OFF IN FORMS 01 AND 02 WITHIN 7 DAYS [SECTIONS 25(M) AND R 75A]. GOVERNMENT MAY GRANT / REFUSE PERMISSION WITHIN 60 DAYS OF SUBMISSION OF APPLICATION. IF NO REPLY FROM GOVERNMENT - AFTER 60 DAYS PERMISSION CAN BE ASSUMED [SECTION 25(M)(5)].
x) CAN EMPLOYER CIRCUMSTANCES ?
DENY
LAY
OFF
PAYMENT
IN
ANY
UNDER CERTAIN CONTINGENCIES MENTIONED IN SECTION 25(E) ESTABLISHMENTS ATTRACTED BY CHAPTER VA CAN REFUSE TO PAY LAY OFF COMPENSATION. IF WORKMEN REFUSE TO ACCEPT ALTERNATE EMPLOYMENT UNDER SAME EMPLOYER WITHIN RADIUS OF 5 MILES [25(E)(1)]. IF HE DOES NOT REPORT FOR GIVING ATTENDANCE [25(E)(2)]. IF LAY OFF IS DUE TO STRIKE OR GO SLOW BY ANOTHER SECTION OF WORKMEN [25(E)(3)].
NOTE THIS DENIAL OF COMPENSATION IS NOT APPLICABLE TO ESTABLISHMENTS FALLING UNDER CHAPTER VB. xi) CAN AN EMPLOYER RESORT TO RETRENCHMENT AFTER CERTAIN DURATION OF LAY OFF ? AS PER SECTION 25 C AN EMPLOYER GOVERNED BY CHAPTER VA (NOT APPLICABLE TO CHAPTER V B) CAN AFTER 45 DAYS LAY OFF IN 12 MONTHS RETRENCH HIS WORKMEN OR SIGN A SETTLEMENT WITH THE WORKMEN TO RETAIN THEM ON THE MUSTER ROLLS WITHOUT PAYMENT OF LAY OFF COMPENSATION. IF HE RESORTS TO RETRENCHMENT HE MUST FOLLOW THE PROCEDURE AND PROVISIONS OF RETRENCHMENT STIPULATED IN SECTION 25F. WHILE PAYING RETRENCHMENT COMPENSATION HE CAN REDUCE THE AMOUNT OF ALY OFF COMPENSATION PAID DURING THE PREVIOUS 12 MONTHS [25(C )]. xii)
WHAT ARE THE EMPLOYERS OBLIGATIONS ? TO MAINTAIN MUSTER ROLL OF WORKMEN [Sn.25(D)] APPLY FOR PERMISSION IN FORM 03 [Sn.25(M)(2)] SUBMIT RETURN IN FORMS 0-1 AND 02 [Sn.25(M)(2)] PAY HALF/FULL WAGES AS COMPENSATION [Sn.25© & 25(M)]
C i)
PROVISIONS ON 'RETRENCHMENT' WHAT AMOUNTS TO RETRENCHMENT [DEFINITION SECTION 2(00)] ?
AS PER SECTION 2(00) ALL TYPES OF TERMINATION OF A WORKMAN BY AN EMPLOYER WOULD BE RETRENCHMENT, UNLESS IT IS A TERMINATION BY WAY OF DISCIPLINARY ACTION OR IT FALLS UNDER ANY ONE OF THE FOLLOWING FOUR EXCEPTIONS : 1)
VOLUNTARY RETIREMENT
2) RETIREMENT ON REACHING THE AGE OF SUPERANNUATION (IF THERE IS A STIPULATION IN THE CONTRACT OF EMPLOYMENT) 3) TERMINATION RESULTING OUT OF NON-RENEWAL OF A FIXED TERM CONTRACT EMPLOYMENT. 4)
TERMINATION ON ACCOUNT OF CONTINUED ILL- HEALTH.
ii)
IS PRIOR PERMISSION REQUIRED FROM THE APPROPRIATE GOVERNMENT FOR RESORTING TO RETRENCHMENT ?
NO PERMISSION REQUIRED IF ESTABLISHMENT EMPLOYED LESS THAN 100 WORKMEN (AVERAGE FOR THE PREVIOUS 12 MONTHS) -Sn.25K. MAKING OF APPLICATION AND OBTAINING PRIOR PERMISSION FROM APPROPRIATE GOVERNMENT (OR NOTIFIED AUTHORITY) IS REQUIRED IN ESTABLISHMENTS (LIKE 'FACTORIES', 'MINES' AND 'PLANTATIONS' ONLY) WHICH EMPLOYED MORE THAN 100 WORKMEN (AVERAGE FOR PREVIOUS 12 MONTHS) Sn.25N(1)(b), 25L(a), 25L(b), AND 2(a)]. SUCH APPLICATION FOR PRIOR PERMISSION SHOULD BE MADE IN ADVANCE AND IF NOT TURNED DOWN, AFTER 60 DAYS IT CAN BE PRESUMED THAT PERMISSION IS GIVEN - Sn.25N(4).
NOTE 1) WHILE GIVING OF NOTICE AND PAYMENT OF COMPENSATION TO WORKMEN IS APPLICABLE TO ALL TYPES OF INDUSTRIAL ESTABLISHMENTS, THE REQUIREMENT OF APPLYING AND OBTAINING PRIOR GOVERNMENT PERMISSION IS APPLICABLE ONLY TO THREE CATEGORIES OF INDUSTRIAL ESTABLISHMENTS, VIZ FACTORIES, MINES AND PLANTATIONS [25L(a)]. 2)
PUBLIC SECTOR UNDERTAKINGS IN WHICH CENTRAL GOVERNMENT HAS AT LEAST 51% SHARE CAPITAL SHOULD APPLY AND OBTAIN PERMISSION FROM THE CENTRAL GOVERNMENT AND NOT THE STATE GOVERNMENT EVEN IF THE APPROPRIATE GOVERNMENT FOR THEM UNDER SECTION 2(a) IS THE STATE GOVERNMENT [SEE Sn.25L(b)].
iii) POWER OF GOVERNMENT TO GRANT/REFUSE/REVIEW PERMISSION [25 N(1) TO (9)] UNDER Sn.25N(3) GOVERNMENT CAN GRANT/REFUSE PERMISSION, BUT MUST GIVE REASON FOR THIS TO EMPLOYER AND WORKMEN. UNDER Sn.25N(6) GOVERNMENT CAN REVERSE ITS EARLIER ORDER GRANTING OR REFUSING PERMISSION AND ISSUE FRESH ORDERS. GOVERNMENT CAN ALTERNATIVELY UNDER Sn.25N(6) REFER THE ISSUE OF PERMISSION TO TRIBUNAL FOR GRANTING OR REFUSING PERMISSION AND SUCH TRIBUNAL SHOULD PASS AN ORDER IN 30 DAYS. ANY ORDER PASSED BY GOVERNMENT/APPROPRIATE AUTHORITY SHALL AS PER Sn.25N(5) BE BINDING FOR A PERIOD OF ONE YEAR. NOTE IF WORKMEN HAVE BEEN RETRENCHED WITHOUT PERMISSION (IN ABOVE 100 WORKMEN CASE) OR PERMISSION HAS BEEN REFUSED THE AFFECTED WORKMEN WILL GET ALL BENEFITS AS IF THEY WERE NEVER TERMINATED [Sn.25N(7)].
iv)
NOTICE, IF ANY, REQUIRED TO BE GIVEN TO WORKMEN TO BE RETRENCHED
IN SMALLER ESTABLISHMENTS (AVERAGE LESS THAN 100 WORKMEN) MINIMUM ONE MONTH’S NOTICE OR ONE MONTH’S PAY IN LIEU OF NOTICE MUST BE GIVEN [Sn. 25F(a)] IN LARGER ESTABLISHMENTS( AVERAGE MORE THAN 100 WORKMEN) MINIMUM THREE MONTHS NOTICE OR THREE MONTH’S PAY IN LIEU OF NOTICE MUST BE GIVEN [Sn. 25 N(1)(a)].
v) EXTENT OF COMPENSATION PAYABLE TO RETRENCHED WORKMEN ELIGIBLE FOR 15 DAYS AVERAGE PAY FOR EVERY COMPLETED YEAR OF CONTIINUOUS SERVICE OR PART IN EXCESS OF SIX MONTHS IF THE WORKMEN SATISFIES THE REQUIREMENT OF ATTENDANCE UNDER Sn. 25B(1) & (2) [Sn.25N(9), 25F(b), AND 25B(1) & (2)]. IF UNDER ANY OTHER LAW OR STANDING ORDERS WORKMEN ARE ELIGIBLE TO A HIGHER QUANTUM OF COMPENSATION, THAT HIGHER QUANTUM WILL PREVAIL [Sn.25J(1)].
NOTE IN ESTABLISHMENTS EMPLOYING LESS THAN 100 WORKMEN (AVERAGE OF THE PREVIOUS 12 MONTHS) IF LAY OFF HAS EXCEEDED 45 DAYS DURING THE IMMEDIATE PRECEDING 12 MONTHS, THE LAY OFF COMPENSATION PAID CAN BE OFFSET FROM THE RETRENCHMENT COMPENSATION PAYABLE TO THE WORKMEN [25C (PROVISO)]. vi)
PROCEDURE FOR RESORTING TO RETRENCHMENT
NOTICE MUST BE SENT TO THE APPROPRIATE GOVERNMENT /NOTIFIED AUTHORITY IN FORM P UNDER RULE 76. APPLICATION FOR PERMISSION MUST BE MADE IN FORM PA UNDER RULE 76-A(1) OR FORM PB UNDER RULE 76-A(2) AS THE CASE MAY BE. A CATEGORY WISE WORKMEN SENIORITY LIST MUST BE PREPARED AND IN EACH CATEGORY THE LEAST SENIOR, MUST GO OUT FIRST - EXCEPTIONS CAN BE MADE WITH PROPER REASONS RECORDED AND THE SENIORITY LIST SHOLD BE DISPLAYED AS PER RULE 77 [Sn.25G].
vii) HAVE RETRENCHED EMPLOYMENT ?
WORKMEN
THE
RIGHT
TO
RE-
IF AT ANY LATER DATE THE PLANT OR PROCESS IS RESTARTED, RETRENCHED WORKMEN SHOULD BE GIVEN PREFERENCE FO REEMPLOYMENT AND THE INTIMATION GIVEN TO THE CONCERNED WORKMEN AND UNION AND NOTICE DISPLAYED AT LEAST 10 DAYS BEFORE FILLING UP THE VACANCY. [Sn.25H, R-78].
viii)
IMPACT OF OTHER LAWS
ANY PROVISION ON RETRENCHMENT IN ANY OTHER LAW OR STANDING ORDERS INCONSISTENT WITH THE PROVISIONS IN THE ACT SHALL BE NULL AND VOID. HOWEVER, IF MORE BENEFICIAL TERMS EXIST THOSE WILL PREVAIL [Sn.25J].
ID
Ix) CONSEQUENCES OF VIOLATING THE PROVISIONS ON RETRENCHMENT AS PER Sn.25Q IMPRISONMENT UPTO ONE MONTH OR Rs.1000/FINE OR BOTH.
x)
SUMMARY OF SECTIONS ON RETRENCHMENT SECTIONS 2(00), 25B, 25C, 25F, 25G, 25H, 25J, 25K, 25L, 25Q, 25S RULES : 76, 76A, 77, 78 FORMS:P, PA, PB
d)
PROVISIONS ON 'CLOSURE'
i)
WHAT AMOUNTS TO CLOSURE [2n.2(cc)] ? A PERMANENT CLOSURE OF (a) A PLACE OF EMPLOYMENT, OR (b) A PART OF THE ESTABLISHMENT.
ii)
IS PRIOR PERMISSION REQUIRED FROM THE APPROPRIATE GOVERNMENT FOR CLOSING DOWN AN ESTABLISHMENT ?
NO PERMISSION REQUIRED IF ESTABLISHMENT EMPLOYED LESS THAN 100 WORKMEN (AVERAGE FOR PREVIOUS 12 MONTHS) [Sn.25 K] MAKING OF APPLICATION AND OBTAINING PRIOR PERMISSION FROM APPROPRIATE GOVERNMENT (OR NOTIFIED AUTHORITY) IS REQUIRED IF THE ESTABLISHMENT IS A 'FACTORY', 'MINE' OR 'PLANTATION' WHICH EMPLOYED MORE THAN 100 WORKMEN (AVERAGE OF PREVIOUS 12 MONTHS) [Sn.25-O(I), 25L(a), 25L(b), 2(a)]. SUCH APPLICATION FOR PRIOR PERMISSION SHOLD BE SUBMITTED AT LEAST 90 DAYS IN ADVANCE OF PROPOSED DATE OF CLOSURE - COPY OF APPLICATION TO BE SENT TO UNION/WORKMEN REPRESENTATIVES [25(O)(1)] IF NO REPLY IS RECEIVED FROM GOVERNMENT WITHIN 60 DAYS, APPROVAL CAN BE PRESUMED [25(O)(3)]. NOTE 1) PRIOR PERMISSION REQUIRED ONLY FOR 'FACTORIES', 'MINES' AND 'PLANTATIONS'. 2) PUBLIC SECTOR UNDERTAKINGS IN WHICH CENTRAL GOVERNMENT HAS AT LEAST 51% SHARE CAPITAL SHOLD APPLY AND OBTAIN PERMISSION FROM CENTRAL GOVERNMENT AND NOT THE STATE GOVERNMENT EVEN IF THE APPROPRIATE GOVERNMENT FOR THEM UNDER SECTION 2(a) IS THE STATE GOVERNMENT [Sn.25L(b), 2(a)].
iii) POWER OF GOVERNMENT TO GRANT/REFUSE/REVIEW PERMISSION UNDER Sn.25(O)(2) GOVERNMENT CAN GRANT/REFUSE PERMISSION, BUT MUST GIVE REASON FOR THIS TO EMPLOYER AND WORKMEN. UNDER Sn.25(O)(5) GOVERNMENT CAN REVERSE ITS EARLIER ORDER GRANTING OR REFUSING PERMISSION AND ISSUE FRESH ORDERS. GOVERNMENT CAN ALTERNATIVELY UNDER Sn.25(O)(5) REFER THE ISSUE OF PERMISSION TO A TRIBUNAL FOR GRANTING OR REFUSING PERMISSION AND SUCH TRIBUNAL SHOULD PASS AN ORDER IN 30 DAYS. ANY ORDER PASSED BY GOVERNMENT/APPROPRIATE AUTHORITY SHALL AS PER Sn.25(O)(4) BE BINDING FOR A PERIOD OF ONE YEAR. IF NO ORDER IS PASSED WITHIN 60 DAYS OF MAKING APPLICATION AS PER Sn.25(O)(3) IT CAN BE PRESUMED THAT PERMISSION HAS BEEN GIVEN.
NOTE : 1) WHERE THE ESTABLISHSMENT HAS BEEN CLOSED WITHOUT MAKING AN APPLICATION OR WITHOUT OBTAINING PERMISSION FROM THE GOVERNMENT OR WHEN THE PERMISSION HAS BEEN REFUSED AS PER Sn.25(O)(6), AFFECTED WORKMEN WILL BE ENTITLED TO ALL BENEFITS AND BE TREATED AS IF THE UNDERTAKING WAS NOT CLOSED DOWN. 2)
IN CASES LIKE CLOUSURE DUE TO DEATH OF AN EMPLOYER OR DUE TO ACCIDENT IN THE ESTABLISHMENT AS PER Sn. 25(O)(7) GOVERNMENT CAN GRANT RELAXATION OR EXEMPTION FROM THE VARIOUS PROVISIONS ON CLOSURE.
Iv)
NOTICE, IF ANY, REQUIRED TO BE GIVEN BEFORE CLOSURE OF UNDERTAKING
AS PER Sn.25FFA AND RULE 76B IN SMALLER ESTABLISHMENTS (EMPLOYING LESS THAN 100 WORKMEN BUT ABOVE 50 WORKMEN) NOTICE OF CLOSURE IN FORM 'Q' MUST BE GIVEN BY REGISTERED POST TO : a) b) c)
APPROPRIATE GOVERNMENT REGIONAL LABOUR COMMISSIONER EMPLOYMENT EXCHANGE CONCERNED
IN LARGER ESTABLISHMENT (EMPLOYING MORE THAN 100 WORKMEN ON AN AVERAGE FOR PREVIOUS 12 MONTHS) AS PER Sn.25(O)(1) AND RULE 76 C NOTICE OF CLOSURE MUST BE GIVEN IN FORM 'QA' TO THE APPROPRIATE GOVERNMENT BY REGISTEREDPOST. IN ADDITION TO NOTICE UNDER S n.25(O)(3) AND RULE 76C IN FORM 'QB' (IN TRIPLICATE) MUST BE SENT BY REGISTERED POST TO THE APPROPRIATE GOVERNMENT. AS PER RULE 76C(3) THE EMPLOYER IS BOUND TO SUPPLY ADDITIONAL INFORMATION, IF ANY, CALLED FOR BY GOVERNMENT. AS PER RULE 76C(2) THE DATE ON WHICH THE REGISTERED POST IS RECEIVED BY GOVERNMENT SHALL BE TREATED AS THE DATE OF FILING THE APPLICATION FOR PERMISSION.
v) EXTENT OF COMPENSATION PAYABLE TO AFFECTED WORKMEN AS PER Sn.25FFF IN SMALLER ESTABLISHMENTS (AVERAGE LESS THAN 100 WORKMEN) WORKMEN SATISFYING THE ATTENDANCE REQUIREMENT OF Sn.25B ARE ENTITLED TO COMPENSATION AS IF THEY WERE RETRENCHED (15 DAYS WAGES PER YEAR OF SERVICE). HOWEVER, IF THE ESTABLISHMENT CAN JUSTIFY THAT IT HAD TO BE CLOSED DOWN DUE TO CIRCUMSTANCES BEYOND THE EMPLOYERS CONTROL (PLEASE SEE EXPLANATION TO 25FFF AS TO WHAT WOULD NOT BE TREATED AS FACTORS BEYOND THE CONTROL) THE MAXIMUM COMPENSATION PAYABLE WOULD BE LIMITED TO THREE MONTHS WAGES [PLEASE ALSO SEE Sn.25FFF(1A) ON CLOSURE OF MINING ESTABLISHMENT AND Sn.25FFF(2) ON CONSTRUCTION ESTABLISHMENT]. IN LARGER ESTABLISHMENTS (EMPLOYING MORE THAN 100 WORKMEN ON AN AVERAGE DURING THE PREVIOUS 12 MONTHS) AS PER Sn.25(O)(8) COMPENSATION AT THE RATE OF 15 DAYS WAGES PER YEAR OF SERVICE IS PAYABLE AND AS PER Sn.25J IF UNDER ANY OTHER LAW OR CONTRACT/STANDING ORDER THEY ARE ELIGIBLE FOR BETTER RATE OF COMPENSATION THE HIGHER OR BETTER RATE WILL PREVAIL.
vi)
CONSEQUENCIES OF VIOLATING THE PROVISIONS ON CLOSURE
AS PER Sn.25R ANY EMPLOYER WHO CLOSES DOWN AN ESTABLISHMENT WITHOUT COMPLYING WITH THE PROVISIONS OF Sn.25(O)(1) SHALL BE PUNISHABLE WITH IMPRISONMENT FOR 6 MONTHS OR WITH FINE UPTO Rs.5,000/- OR BOTH. vii)
SUMMARY OF SECTIONS 2(cc), 25B, 25FA, 25FFF, 25J, 25K, 25L, 25O, 25R, 25S.
e)
PROVISIONS FOR ALTERATION OF SERVICE CONDITIONS / ISSUE OF 'NOTICE OF CHANGE'
i)
CAN AN EMPLOYER UNILATERALLY ALTER THE CONDITIONS OF SERVICE APPLICABLE TO WORKMEN ?
ON ANY ITEMS LISTED IN SCHEDULE IV OF THE ID ACT, HE CANNOT ALTER, UNLESS HE GIVES A NOTICE OF CHANGE AS CONTEMPLATED IN SECTION 9A OF THE ACT.
ii)
WHAT KIND OF NOTICE MUST BE GIVEN ?
AS PER Sn.9A(b) HE SHOULD GIVE AT LEAST 21 DAYS ADVANCE NOTICE. IF THE CHANGE IS MADE AS A RESULT OF AN AGREEMENT, NO NOTICE IS REQUIRED [Sn.9A, PROVISO (a)] OR THE WORKMEN BELONG TO THE CATEGORIES LISTED IN PART(b) OF THE PROVISO TO 9A. THE NOTICE MUST BE GIVEN IN FORM-E AS PER RULE 34.
Iii)
EFFECT OF GIVING NOTICE
IF WORKMEN/UNIONS DO NOT OBJECT TO THE CHANGE, THE CHANGE CAN BE EFFECTED AFTER 21 DAYS [Sn.9A(1)]. IF WORKMEN OPPOSE THE CHANGE, THE ISSUE WILL BE TAKEN UP IN CONCILIATION AND THE EMPLOYER WILL HAVE TO AWAIT THE OUTCOME OF THE CONCILIATION MEETING/ADJUDICATION PROCESS [Sn.33(1)].
iv) WHAT ARE THE 11 ITEMS LISTED IN SCHEDULE IV FOR WHICH NOTICE OF CHANGE NEEDS TO BE GIVEN ? WAGES, INCLUDING THE PERIOD AND MODE OF PAYMENT; CONTRIBUTION PAID, OR PAYABLE, BY THE EMPLOYER TO ANY PROVIDENT FUND OR PENSION FUND OR FOR THE BENEFIT OF THE WORKMEN UNDER ANY LAW FOR THE TIME BEING IN FORCE; COMPENSATORY AND OTHER ALLOWANCE; STARTING ALTERATION OR DISCONTINUANCE OF SHIFT WORKING OTHERWISE THAN IN ACCORDANCE WITH STANDING ORDERS; CLASSIFICATION BY GRADES; WITHDRAWAL OF ANY CUSTOMARY CONCESSION OR PRIVILEGE OR CHANGE IN USAGE; INTRODUCTION OF NEW RULES OF DISCIPLINE, OR ALTERATION OF EXISTING RULES, EXCEPT IN SO FAR AS THEY ARE PROVIDED IN STANDING ORDERS; RATIONALISATION, STANDARDISATION OR IMPROVEMENT OF PLANT OR TECHNIQUE WHICH IS LIKELY TO LEAD TO RETRENCHMENT OF WORKMEN; ANY INCREASE OR REDUCTION (OTHER THAN CASUAL IN THE NUMBER OF PERSONS EMPLOYED OR TO BE EMPLOYED IN ANY OCCUPATION OR PROCESS OR DEPARTMENT OR SHIFT(NOT OCCASIONAED BY CIRCUMSTANCES OVER WHICH THE EMPLOYER HAS NO CONTROL).
v)
POWER TO EXEMPT
UNDER Sn.9B THE GOVERNMENT HAS POWER TO EXEMPT ANY ESTAB LISHSMENT FROM THE REQUIREMENT OF GIVING NOTICE OF CHANGE UNDER Sn.9A. VI
PROVISIONS FOR 'RECOVERY OF MONEY DUE FROM AN EMPLOYER' UNDER THE INDUSTRIAL DISPUTES ACT 1947.
a)
WHO AND WHEN CAN MONEY CLAIMS BE PUT UP ?
i)
WHAT KIND OF MONEY CLAIMS CAN BE PUT UP UNDER SECTION 33 ?
ANY MONIES DUE TO A WORKMAN/WORKMEN UNDER SETTLEMENT OR AWARD AND ANY COMPENSATION PAYABLE TO WORKMAN FOR LAY OFF/ RETRENCHMENT/ CLOSURE [Sn.33C]. ii)
A
WHO CAN FILE THE MONEY CLAIMS ? WORKMAN HIMSELF ANY OTHER PERSON AUTHORISED AFTER DEATH OF WORKMAN HIS ASSIGNS/LEGAL HEIRS [Sn.33C, R-62(1), 62(2)].
A
NOTE IF MORE THAN ONE WORKMAN HAVE SIMILAR CLAIMS, THEY CAN ALL JOINTLY FILE A COMMON CLAIM AS PER Sn.33C(5). iii)
TIME LIMIT FOR FILING THE CLAIMS
AS PER FIRST PROVISO TO 33C(1), MUST BE FILED WITHIN ONE YEAR OF THE AMOUNT BECOMING DUE FOR PAYMENT. AS PER THE SECOND PROVISO TO 33(C )(2), GOVERNMENT CAN CONDONE THE DELAYED SUBMISSION OF CLAIMS IF PROPER REASON IS PUT UP. b)
TYPES OF CLAIMS
WHERE ONLY THE RIGHT TO CLAIM IS ESTABLISHED BUT THE EXTENT OF THE CLAIM OR ITS EXACT MONEY VALUE IS NOT KNOWN A CLAIM ;PETITION IS TO BE FILED UNDER Sn.33C(1), RULE 62(1) IN FORM K-1 OR K-2. IF THE ACTUAL MONEY VALUE IS PREDETERMINABLE A CLAIM PETITON IS TO BE FILED UNDER Sn.33C(2) RULE 62(2) IN FORMS K- 3 OR K- 4.
c)
ENFORCEMENT OF CLAIMS
i)
GOVERNMENT WILL REFER THE CLAIM PETITION TO THE LABOUR COURT FOR DETERMINATION THE COURT WILL PASS NECESSARY AWARD (ORDER) AND SEND IT TO THE GOVERNMENT [Sn. 33(4)]. THE GOVERNMENT WILL THEN FORWARD THE ORDER TO THE COLLECTOR TO EXCEUTE THE ORDER BY ATTACHING THE EMPLOYER’S PROPERTY AND RECOVERING THE MONEY AND PAYING IT TO THE WORKMAN / WORKMEN [Sn. 33(C)(1),33(C)(4)]. WHAT ARE THE PROVISIONS ON ‘WORKS COMMITTEE’ UNDER THE INDUSTRIAL DISPUTES ACT 1947?WHAT IS A WORKS COMMITTEE? IT IS A COMMITTEE CONSISTING OF EQUAL NUMBER OF MANAGEMENT AND WORKMEN REPRESENTATIVES SET UP FOR PROMOTING AMITY AND GOOD RELATIONS AND EMPOWERED TO COMMENT ON MATTERS OF COMMON INTEREST AND TO ENDEAVOUR TOWARDS REDUCING DIFFERENCES IN THE VIEW POINTS BETWEENTHEM [Sn.3(2)].
ii)
WHEN DOES IT BECOME OBLIGATORY TO SET UP A WORKS COMMITTEE ?
IN ESTABLISHSMENTS WHICH EMPLOY MORE THAN 100 WORKMEN OR HAD EMPLOYED MORE THAN 100 WORKMEN ON ANY DAY IN THE PREVIOUS 12 MONTHS, OBLIGATION ACTUALLY ARISES ONLY WHEN THE GOVERNMMENT THROUGH A GENERAL/SPECIAL ORDER REQUIRES SETTING UP OF A WORKS COMMITTEE [Sn.3(1)].
iii)
MANNER OF CONSTITUTING A WORKS COMMITTEE
THE WORKMEN REPRESENTATIVES SHALL BE ELECTED AND MANAGEMENT REPRESENTATIVES CAN BE NOMINATED [R-40] DIVISION OF CONSTIUTENCIES WITHIN THE ESTABLISHMENT SHALL BE MADE IN CONSULTATION WITH THE UNIONS AFTER COMPLYING WITH PROCEDURE OUTLINED IN RULES 41 TO 43. CANDIDATES CONTESTING SHALL BE AT LEAST 19 YEARS OF AGE AND HAVE AT LEAST ONE YEAR SERVICE. WORKMEN WHO HAVE AT LEAST SIX MONTHS SERVICE AND ABNOVE THE AGE OF 18 COULD VOTE IN THE ELECTIONS. ELECTIONS SHALL BE CONDUCTED IN COMPLIANCE WITH THE PROCEDURE LAID DOWN IN RULES 46 TO 50.
iv)
OFFICE BEARERS
COMMITTEE SHALL HAVE A CHAIRMAN, VICE CHAIRMAN, SECRETARY AND JOINT SECRETARY [R-52]
v)
TERM OF OFFICE THE COMMITTEE ONCE SET UP WILL HAVE A TWO YEAR TERM OF OFFICE. MID TERM VACANCIES SHOLD BE FILLED AS PER RULE 52.
vi)
MEETINGS
COMMITTEE SHALL MEET AT LEAST ONCE IN A QUARTER [R-55] EMPLOYER SHOULD PROVIDE NECESSARY FACILITIES FOR HOLDING THE MEETINGS [R-56]
vii)
DISSOLUTION THE CENTRAL GOVERNMENT OR OTHER AUTHORISED AUTHORITY COULD DISSOLVE A WORKS COMMITTEE AS PER RULE 57.
viii)
SUBMISSION OF RETURNS THE EMPLOYER IS REQUIRED TO SUBMIT HALF YEARLY RETURN IN FORM G-1 IN TRIPLICATE [R-56-A]
ix) SUBJECTS THAT COULD BE DISCUSSED IN THE WORKS COMMITTEE THIS IS NOT SPECIFICALLY LISTED IN THE INDUSTRIAL DISPUTES ACT OR RULES. HOWEVER THE TRIPARTITE LABOUR CONFERENCE HELD IN 1959 HAS DRAWN UP A LIST OF DOS AND DON'TS FOR THE WORKS COMMITTEE.
x) MATTERS THAT COULD BE DISCUSSED AT THE WORKS COMMITTEE CONDITIONS OF WORK SUCH AS VENTILATION, LIGHTING, TEMPERATURE AND SANITATION, INCLUDING LATRINES AND URINALS. AMENITIES SUCH AS DRINKING WATER, CANTEEN REST ROOMS, MEDICAL AND HEALTH SERVICES. SAFETY AND ACCIDENT PREVENTION, OCCUPATIONAL DISEASES AND PROTECTIVE EQUIPMENTS. ADJUSTMENT OF NATIONAL AND FESTIVAL HOLIDAYS. PROMOTION OF THIRFT AND SAVINGS.
xi)
MATTERS WHICH CANNOT BE DISCUSSED AT THE WORKS COMMITTEE
WAGES AND ALLOWANCES BONUS AND PROFIT SHARING BONUS RATIONALISATION AND MATTERS CONNECTED WITH THE FIXATION OF WORKLOAD MATTERS CONNECTED WITH THE FIXATION OF A STANDARD LABOUR FORCE PROGRAMMES OF PLANNING AND DEVELOPMENT MATTERS CONNECTED WITHRETRENCHMENT AND LAYOFF VICTOMISATION FOR TRADE UNION ACTIVITIES PROVIDENT FUND, GRATUITY SCHEME AND RETIREMENT BENEFITS QUANTUM OF LEAVE AND NATIONAL AND FESTIVAL HOLIDAYS INCENTIVE SCHEME HOUSING AND TRANSPORT SERVICE. b)
PROVISIONS ON 'UNFAIR LABOUR PRACTICE'
i)
PROHIBITION ON EMPLOYER/UNIONS/WORKMEN
SECTION 25 T OF THE ID ACT PROHIBITS EMPLOYERS/WORKMEN/UNIONS INDULGING IN ACTS LISTED AS UNFAIR LABOUR PRACTICES UNDER SCHEDULE-V TO THE ID ACT [Sn.2(ra), 25T, Sch.V]
ii) WHAT ARE THE UNFAIR LABOUR PRACTICES LISTED AGAINST EMPLOYERS ? THE FOLLOWING ARE THE IMPORTANT UNFAIR LABOUR PRACTICES LISTED AGAINST EMPLOYERS : 1)
THREATENING WORKMEN WITH DISCHARGE/DISMISSAL/LOCKOUT FOR PREVENTIONG TRADE UNION FORMATION.
2)
GRANTING WAGE INCREASE AIMED AT PREVENTING TRADE UNION FORMATION
3) FINANCING OR ASSISTING IN FORMATION OF EMPLOYER SPONSORED UNIONS 4)
TAMPERING WITH SENIORITY/PROMOTION OF WORKMEN WITH A VIEW TO OBSTRUCT THE GROWTH OF PARTICULAR UNION
5)
VICTIMISING WORKMEN FOR TRADE UNION ACTIVITIES
6)
REPLACING REGULAR JOBS WITH CONTRACT WORKMEN WITH A VIEW TO BREAK A STRIKE
7)
MALAFIDE TRANSFER OF WORKMEN
8)
FORCING WORKMEN ON A LEGAL STRIKE TO GIVE GOOD CONDUCT BONDS
9) EXPLOITING WORKERS BY KEEPING THEM AS CASUALS/ TEMPORARIES/BADLIS FOR LONG YEARS 10)
REFUSE TO IMPLEMENT SETTLEMENTS/AWARDS
11)
FAILURE TO IMPLEMENT SETTLEMENTS/AWARDS
12)
CONTINUIGN WITH ILLEGAL LOCKOUTS
13)
INDULGE IN ACTS OF FORCE/VIOLENCE [Sch.V(1)]
iii) UNFAIR LABOUR PRACTICES LISTED AGAINST UNIONS/ WORKMEN 1)
SUPPORTING/INSTIGATING ILLEGAL STRIKES
2)
FORCING WORKMEN TO JOIN A UNION
3) PICKETING / OBSTRUCTING / THREATENING NON-STRIKING WORKMEN 4)
REFUSING TO PARTICIPATE IN COLLECTIVE BARGAINING
5)
INDULGING IN GO-SLOW/SQUATTING
6)
DEMONSTRATION AT RESIDENCE OF EMPLOYER
7)
WILFUL DAMAGE OF EMPLOYERS PROPERTY [Sch V(II)]
iv)
CONSEQUENCES OF INDULGING IN UNFAIR LABOUR
PRACTICES
AS PER Sn 25U ANY PERSON INDULGING IN UNFAIR LABOUR PRACTICE SHALL BE PUNISHABLE `BY IMPRISONMENT UPTO SIX MONTHS OR FINE OF UPTO Rs.1000/- OR BOTH [Sn.25U]. c)
PROVISIONS ON GRIEVANCE SETTLEMENT
AS PART OF THE 1982 AMENDMENT A GRIEVANCE SETTLEMENT MACHINERY WAS INCORPORATED IN THE INDUSTRIAL DISPUTES ACT. ACCORDINGLY SECTION 9C WAS INCORPORATED IN THE ACT. THIS SECTION HAS HOWEVER NOT BEEN NOTIFIED FOR IMPLEMENTATION SO FAR. SECTION 9C(4) CONTEMPLATES THAT NO DISPUTES SHOULD BE REFERRED FOR ADJUDICATION UNTIL THE GRIEVANCE SETTLEMENT PROCEDURE IS EXHAUSED. d)
PROVISIONS ON REPRESENTAITION OF PARTIES
i)
BAN ON APPEARANCE OF LEGAL PRACTICTIONERS [Sn.36]
SECTION 36(3) OF THE ACT PROHIBITS APPEARANCE OF ADVOCATES. HOWEVER, SECTION 36(4) PERMITS APPEARANCE OF LEGAL PRACTITIONERS WITH THE CONSENT OF THE OTHER PARTY AND LEAVE OF THE PRESIDING OFFICERS.
ii)
WHO CAN REPRESENT THE WORKMEN [Sn.36(1),(a),(b),(c)] ?
ANY EXECUTIVE MEMBER OR OFFICE BEARER OF A REGISTERED TRADE UNION. ANY EXECUTIVE MEMBER OF FEDERATION TO WHICH THE TRADE UNION IS AFFILIATED. IF A WORKMAN IS NOT A MEMEBR OF ANY UNION HE CAN AUTHORITIRSE ANY CO-WORKER OR ANY UNION LEADER TO REPRESENT HIM. iii)
WHO CAN REPRESENT AN EMPLOYER [Sn.36(2)(a),(b),(c)] ?
AN OFFICER OF AN ASSOCIATION OF EMPLOYERS. AN OFFICER OF A FEDERATION TO WHICH THE EMPLOYERS ASSOCIATION IS AFFILIATED. IF NOT BELONGING TO ANY ASSOCIATION CAN AUTHORISE ANY OTHER EMPLOYER IN THE INDUSTRY OR ANY OFFICE BEARER OF AN ASSOCIATION OF EMPLOYERS.
e)
PROVISIONS ON 'SETTLEMENT'
i)
WHAT IS MEANT BY A SETTLEMENT [Sn.2(p)] ? AN AGREEMENT ARRIVED AT BETWEEN THE EMPLOYER AND
ii)
WORKMEN.
TYPES OF SETTLEMENTS [Sn.12(3), 18(1), 18(30]
TRIPARTITE SETTLEMENTS UNDER SECTION 12(3) ARRIVED AT WITH HELP OF CONCILITION OFFICER/BOARD. BIPARTITE SETTLEMENT ARRIVED AT WITHOUT CONCILIATION ASSISTANCE BUT SENT JOINTLY TO CONCILIATION OFFICER FOR REGISTRATION AS A SETTLEMENT UNDER SECTION 18(3). BIPARTITE SETTLEMENTS ARRIVED AT BETWEEN THE PARTIES UNDER SECTION 18(1) WITH NO NOTICE TO OR ASSISTANCE FROM CONCILIATION OFFICER. iii)
ON WHOM ARE SETTLEMENTS BINDING [Sn.18(1), 18(3)] ?
BIPARTITE SETTLEMENTS UNDER 18(1) OR 18(3) ARE BINDING ONLY ON THE PARTIES THAT SIGNED THE SETTLEMENT (IT CANNOT BE ENFORCED ON OTHER UNIONS OR WORKERS WHO ARE NOT PARTIES TO THE SETTLEMENT)
A TRIPARTITE SETTLEMENT THROUGH CONCILIATION UNDER 12(3) IS ENFORCEABLE AGAINST : -
iv)
ALL PARTIES TO THE DISPUTES ALL OTHER PARTIES SUMMONED TO THE CONCILIATION PROCEEDINGS IN THE CASE OF EMPLOYER ON HIS HEIRS/SUCCESSORS/ASSIGNS IN THE CASE OF WORKMENON ALL WORKMEN ON THE ROLLS ON DATE OF SETTLEMENT AND ALL FUTURE EMPLOYEES OF THAT ESTABLISHMENT WHEN DOES A SETTLEMENT COME INTO OPERATION [Sn.19(1)] ?
FROM THE DATE AGREED TO AND INDICATED IN THE SETTLEMENT. IF DATE IS SILENT, FROM THE DATE OF SIGNING SETTLEMENT. v)
HOW LONG WILL IT BE BINDING OR PERIOD OF ITS VALIDITY [Sn.19(1)] ? FOR A MINIMUM PERIOD OF SIX MONTHS IF NO PERIOD IS INDICATED, OR FOR THE LONGER PERIOD INDICATED IN THE SETTLEMENT.
vi)
WILL THE OBLIGATIONS ON THE PARTIES CEASE ON THE EXPIRY OF VALIDITY PERIOD [Sn.19(2), 19(6)] ?
OBLGATIONS CONTINUE EVEN BEYOND THE AGREED PERIOD AND WILL CONTINUE TILL PROPER NOTICE OF TERMINATION IS GIVEN UNDER SECTION 19(2) AND TWO MONTHS HAVE EXPIRED AFTER ISSUE OF NOTICE OFTERMINATION. AS PER JUDICIAL DECISIONS THE TERMS OF SETTLEMENT WILL CONTINUE TO BE IN FORCE EVEN AFTER TERMINATION TILL ANOTHER AGREEMENT IS REACHED REPLACING THE CORRESPONDING TERMS IN THE OLD AGREEMENT.
vii)
WHO IS COMPETENT TO ISSUE NOTICE OF TERMINATION [Sn.19(7)] ? ONLY A PARTY REPRESENTING THE MAJORITY OF THE PERSONS BOUND BY THE SETTLEMENT CAN ISSUE A VALID NOTICE OF TERMINATION.
viii)
WHO IS COMPETENT TO SIGN A SETTLEMENT [RULE 58(2)] ?
IN CASE OF EMPLOYER, HIMSELF/HIS AUTHORISED AGENT/MANAGER OR PRINCIPAL OFFICER. IN CASE OF WORKMEN BY A TRADE UNION OFFICE BEARER (PRESIDENT/VICE PRESIDENT/ SECRETARY OR GENERAL SECRETARY/JOINT SECRETARY OR ANY OTHER AUTHORISED OFFICE BEARER). IN CASE OF AN INDIVIDUAL DISPUTE UNDER 2(A) BY WORKMAN HIMSELF.
ix
f)
-
ROLE OF CONCILIATION OFFICER [Sn. 12(3), Rules 58(1), (3) & 75] TO RECORD THE SETTLEMENT IN FORM H UNDER Rule 58 (1). TO MAINTAIN A REGISTER OF ALL SETTLEMENTS UNDER Rule 75. TO SEND A COPY OF SETTLEMENT TO THE APPROPRIATE GOVERNMENT. NOTE: WHERE THERE IS MULTIPLICITY OF UNIONS AND INTER UNION RIVALRY, IT IS PRUDENT TO SIGN ONLY TRIPARTITE CONCILIATION SETTLEMENTS UNDER Section 12 (3) RATHER THAN GO IN FOR BIPARTITE AGREEMENTS UNDER Section 18 (3) OR 18 (1). WHILE A TRIPARTITE SETTLEMENT IS ENFORCEABLE AGAINST ALL, A BIPARTITE AGREEMENT BINDS ONLY ON THE PARTIES TO THE SETTLEMENT. PROVISIONS ON AWARDS WHAT IS MEANT BY AN ‘AWARD’ [Sn. 2 (b)]? AN AWARD IS AN INTERIM OR FINAL ORDER PASSED BY THE FOLLOWING DISPUTE SETTLING AUTHORITIES UNDER THE I.D. ACT. LABOUR COURT UNDER Sn. 7 INDUSTRIAL TRIBUNAL OR NATIONAL TRIBUNAL UNDER SECTION 7(A) OR 7(B) AN ARBITRATOR UNDER SECTION 10 (A)
ii)
TYPES OF AWARDS [Sn.7, 7A, 7B] LABOUR COURTS GIVE AWARDS ON ITEMS LISTED IN SCHEDULE-II OF THE ID ACT TRIBUNALS/ NATIIONAL TRIBUNALS GIVE AWARDS ON ITEMS LISTED IN SCHEDULE-III OF THE ID ACT. ARBITRATORS GIVE AWARD ON SUBJECT REFERRED TO THEM UNDER THE ARBITRATION AGREEMENT. iii)
PUBLICATION OF AWARDS ANDA THEIR FINALITY Sn.17(1)(2), 15, 17(B)] UNLIKE THE CIVIL/CRIMINAL COURTS, LABOUCOURTS/ TRIBUNALS/ ADJUDICATORS UNDER THE ID AC CANNOT PRONOUNCE THEIR DECISIONS/ORDERS IN COURTS. THEIR DECISIONS/ORDERS ARE TO BE SENT TO THE APPROPRIATE GOVERNKENT. THE APPROPRIATE GOVERNMENT IS TO THEN PUBLISH IT WITHIN 30 DAYS OF RECEIPT OF THE ORDER. SUBJECT TO PROVISION OF SECTION 17A, THE AWARDS ARE FINAL AND CANNOT BE CHALLENGED IN ANY COURT. HOWEVER AWARDS PERTAINING TO REINSTATEMENT OF DISMISSED WORKMEN CAN BE CHJALLENGED IN SUPREME COURT/ HIGH COURT. SECTON 17 B STIPULATES THAT IN SUCH CASES THE EMPLOYER MUST PAY FULL LAST DRAWNWAGES TILL THE SIT IS DISPOSED OFF BY THE HIGH COURT/ SUPREME COURT.
IV
ON WHOM ARE AWARDS BINDING [Sn.18(3)] ? AS PER SECTION 18(3) AWARDS ARE BINDING ON THE
OLLOWING :
ALL PARTIES TO THE DISPUTE ALL OTHER PARTIES SUMMONED TO APPEAR IN THE PROCEEDINGS INCASE OF EMPLOYER ON HIS HEIRS/SUCCESSORS/ASSIGNS IN CASE OF WORKMEN,ON ALL WORKMEN ON THE ROLLS ON THE DATE THE DISPUTE AROSE AND ALL FUTURE EMPLOYEES OF THAT ESTABLISHMENT. V WHEN DOES AN AWARD COME INTO OPERATION OR BECOME ENFORCEABLE ? [Sn.17 (A), 17(1),(2), (3), (4)] IT BECOMES ENFORCEABLE ON THE EXPIRY OF 30 DAYS FROM THE DATE OF ITS PUBLICATION BY THE GOVERNMENT UNDER Sn.17.
NOTE : UNDER THE PROVISO TO Sn.17, GOVERNMENT EMPOWERED TO HOLD UP THE ENFORCEMENT OF THE AWARD IN PART OR FULL IN PUBLIC INTEREST BUT MUST THEN PUT UP THE AWARD BEFORE THE LEGISLATURE FOR A FINAL DECISION ON ITS ENFORCEMNE.T VI
WHAT IS THE PERIOD OF VALIDITY OF AN AWARD ?
[Sn.19(3),(4),(5)] AS PER SECTION 19(3) IT SHALL BE IN FORCE FOR ONE YEAR FROM THE DATE IT BECOMES ENFORCEABLE UNDER SECTION 17(A) STATEGOVERNMENT CANE XTEND THIS PERIOD FOR ONE YEAR AT A TIME SUBJECT TO THE TOTAL VALIDITY PERIOD NOT EXCEEDING THREE YEARS. UNDER SECTION 19(4) GOVERNMENT EMPOWERED TO SEEK REDUCTION OF THE NORMAL PERIOD BY REFERRING IT TO THE ADJUDICATING AUTHORITY.
VII)
WILL THE OBLIGATIONS ON THE PARTIES CEASE ON EXPIRY OF THE VALIDITY PERIOD [Sn.19(2), (3), (6)] ? OBLIGATIONS CONTINUE EVEN AFTER THE VALIDTY PERIOD TILL PROPER NOTICE OF TERMINATION IS GIVEN UNDER Sn.19(6) AND TWO MONTHS HAVE ELAPSED FROM DATE OF NOTICE.
VIII) WHO IS COMPETENT TO ISSUE NOTICE OF TERMINATION ? ONLY A PARTY REPRESENTING THE MAJORITY OF THE PERSONS BOUND BY THE AWARD CAN ISSUE A VALID NOTICE OF TERMINATION.