Psm_different Laws One Should Know

Different Laws one should know

Laws which one should Know Indian Electricity Act  Different Environmental Norms and Laws  Company Laws  Apprentice Act, 1961  Bonded Labour System (Abolition) Act 1976  Child Labour (Prohibition & Regulation) Act 1986 

Laws which one should Know….Contd The Contract Labour (Regulation & Abolition) Act 1970  The Employees’ Provident Funds and Miscellaneous Provisions Act, 1952  The Employee State Insurance Act 1948  The Employment Exchange (Compulsory Notification of Vacancy) Act, 1959  Factories Act 1948 

Laws which one should Know….Contd The Industrial Dispute Act , 1947  The Industrial Employment (Standing Orders) Act , 1946  Labour Law (Exemption from Furnishing Returns & Maintaining Registers by Certain Establishment) Act, 1988  The Maternity Benefit Act 1961  Mines Act 1952 

Laws which one should Know….Contd Inter State Migrant Workmen (Regulation of Employment and Condition of Service) Act, 1979  The Minimum Wages Act 1948  The Payment of Bonus Act, 1965  The Payment of Gratuity Act, 1972  The Payment of Wages Act, 1936  The Trade Union Act 1926 

Laws which one should Know….Contd The Shops And Establishment Act 1948  The Workmen Compensation Act, 1923  Knowledge of Domestic Enquiry/ Misconduct/ Dismissal/ Discharge 

New Trends: Labour Laws 1st National Commission on Labour: To review changes in conditions of Labour  Ramanujam Commission  VV Giri Committee  Central Pay Commissions  Committee on Fair wages  Indian Labour Conferences  2nd National Commission on Labour: Rationalization of existing Laws; Umbrella legislation. 

Clubbing of various legislation Common law for I.D. Act, TU Act, Standing order Act.  Common law for social security (Terminal benefits, i.e. PF, Gratuity, Workmen Compensation, ESI, Maternity Benefit.  One law for wages i.e. Minimum wages, Payment of wages, Compensation for extra work, Sec 33 of I.D. Act.,Contract Labour Act,Migrant Labour Act,Building Construction Workers’ Act,Contract Labour related provisions in PF Act,ESI Act,etc. 

Industrial Disputes Act  Preamble:  An

act to make provisions for the investigation and settlement of Industrial Disputes and for certain purposes (job security)

INDUSTRY “Industry” means any business trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft or industrial occupation or avocation of workmen.  Industry means  systematic activity  co-operation between an employer and his workmen for the production, supply of distribution of goods and services with a view to satisfy human wants or wishes. 

Definitions INDUSTRY :- Amended definition (1982) to be made applicable . Exclude Hospital, Research Institutions, Educational Institutions.  WORKMAN:- Getting wages more than 10,000/- per month to be excluded.  WAGES:- To include Pay plus dearness Allowance only. Excluding Allowances.  STRIKE:-Go slow,disobeying instruction in garb of work to rule be included as strike. 

Exclusion 

Industry does not include: -- Any agricultural operation;    

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Charitable, social or philanthropic services; or Sovereign functions; or Domestic services; or Profession practiced by an individual or body of individuals (no. less than ten); or Cooperative society or a club (no. less than ten). …. Contd.

WORKMAN Any person employed for hire or reward in industry;  To do any skilled, manual or clerical work  Exclude military personnel.  Subsequent Additions:  Whether terms of employment express or implied.  Manual, unskilled, skilled, technical, operational clerical or supervisory work.  Exclude supervisors with wages above Rs.1600/- or engaged in managerial capacity. 

Scope •The basic test of Master Servant relationship to be clearly spelt out in the Act itself as has now been established through various legal pronouncements. •To fix a clearly defined set of Remunerative limit for such definition of Worker. E.g. Rs. 25000/- as suggested by 2nd NCL. •Minimum level of Protection only against unfair termination and removal from service to be provided to such worker only. •Supervisors and Executives/Manager to kept out of such provision of worker. •No protection to be provided to such category of employees who could be regulated purely from the standpoint of Employers’ requirements.

RETRENCHMENT 

Termination for any reason except:    

For misconduct, Retirement Continued ill health As per service termination clause contained in offer of appointment.

Retrenchment 

Misconduct 

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Retirement 

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Misconduct has to be established following principles of natural justice. Retirement age must be specified in Rules.

Health - Temporary sickness/disablement cannot amount to continued ill health.

Retrenchment 

Specific cases decided by Supreme Court 

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Tribunal has right to ascertain real intention behind termination. All cases of termination except specifically excluded in act amount to Retrenchment After 1984 amendment – discharge Simplisitor not amount to retrenchment.

PROCEDURE OF RETRENCHMENT       

Last come – First out, unless valid reasons for deviation. In case of workmen completed one year of continuous service – notice or notice pay. Retrenchment compensation. (Gratuity has to be paid independently). Subsequently notice to appropriate Govt. Yardstick for mis-conduct,medical unfitness to be laid down. Brief procedure to be defined. Procedure for service of communication be defined.

Scope •Retrenchment to be precisely defined so as to allow termination on grounds as defined earlier. •Other forms of termination to be kept out of the purview of Higher courts. •Validity and dispute or otherwise to kept only in the purview of Arbitration whose decisions on the basis of evidences could be made binding. •Time frame to be laid down for such hearings. Exceeding the time limit could attract stiffer penalties including the holding or allowing the validity of such actions. •Terminations on the grounds of Misconduct to be within the purview of Arbitrators only.

RETRENCHMENT-Condition of Prior permission be not there instead higher compensation say 45 days per year.  Option to employer to pay higher compensation even in case of defective enquiry.  In case of excessive punishment of termination,lower punishment to be decided by employer.  No right to interfere if termination on Theft,Fraud,rioting or grave action of moral turpitude. 

APPLICATION OF CHAPTER V-B 3 months notice or pay in lieu.  Prior permission of Government.  Permission deemed if no reply received in 60 days of date of application.  Applicable to Establishments (Mine, Factory, Plantation only) employing 100 or more workmen. 

Continuous Service of 1 year 

Continuously in service including interruptions on account of:    

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Sickness; Disability due to accident; Authorised leave; Lockout or strike which is not illegal.

If not continuously employed then in last one year:    

Actually worked for 240 days including lay off period. Leave with wages availed. Disablement period due to accident while on duty. Maternity leave not exceeding 12 weeks.

POWERS OF TRIBUNAL/LABOUR COURT TO ORDER REINSTATEMENT 

BACKGROUND 

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In 1958, Supreme Court held that if there is fair enquiry and no malafide intention on part of employer in termination of workmen for mis-conduct, the tribunal has no authority to act as appellate court. I.L.O. felt that workmen should have right of appeal to Neutral Body. Such Neutral Body if feels, termination is too harsh should have right to order reinstatement or adequate compensation.

•Hence insertion of Sec.11 A providing ………. Direct reinstatement ……… or give such other relief including award of lesser punishment.

Context: Termination: SUPREME COURT HELD: Application of Sec. 11 A prospective.  Only applicable in case of termination for misconduct.  No power to reduce punishment like demotion, increment, stoppage etc.  No application in Arbitration.  Compensation need not be limited to retrenchment compensation. 

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In nutshell Tribunal can order reinstatement on:

Victimisation, unfair labour practice, malafide intention on part of employer.  Violation of procedure laid for retrenchment.  Punishment for misconduct found to be excessive or enquiry is defective. 

INDUSTRIAL DISPUTE • Dispute or difference between – Employers & Employers, or – Employers & Workmen, or – Workmen & Workmen.

• In an Industry. • Connected with – Employment or non employment or – Terms of employment, or – Condition of labour of any person.

Protected Workmen 

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No protection against termination in case of misconduct such as theft,fraud,sabotage,violence or other act involving moral turpitude. Moral turpitude to be defined. Period of Limitation:In case of disputes,consequence to any specific actions of employer ,dispute can be raised only within one year .Similar limitation in case of proceedings under Sec.33.

SETTLEMENT OF INDUSTRIAL DISPUTES • Conciliation; • Voluntary arbitration; • Adjudication – Powers of Industrial Courts/ Tribunals

ADJUDICATION • Almost like compulsory arbitration. Once dispute is referred procedure in both the cases is same. Common features: - Award final & binding. - Award not bound by ordinary principles of law/ - Bonus awarded by Tribunal even where there was no payment of Bonus Act. - Wage hike more than minimum wages granted by tribunals.

OPTION IN CIVIL COURT/VS. TRIBUNAL OR LABOUR COURT • If the dispute is not an industrial dispute nor does it relate to enforcement of any other right under the Act the remedy lies only in the Civil Court. • If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, the jurisdiction of the Civil Court is alternative, leaving it to the choice of the suitor concerned to choose his remedy

• If the Industrial Dispute relates to the enforcement of a right or an obligation created under the Act than the only remedy available to the the suitor is to get an adjudication under the Act. • If the right which is sought to be enforced is a right created under the act such as Chapter V-A than the remedy for its enforcement is either Section 33-C or the raising of an industrial dispute, as the case may be. – Government not bound to refer each failure for adjudication. – Disputes must exist/apprehended at the time of reference.

REPRESENTATION OF PARTIES A workman who is a party to dispute shall be entitled to be represented in any proceedings under this Act by – • Any member of the executive or other office bearer of a registered trade union of which he is a member; • Any member of the executive or other office bearer of a federation of trade unions to which the trade union referred to in clause (a) is affiliated.

Scope •Method of laying down clear modalities for recognition to be laid down. •Strike to be called by only recognized negotiating agent. •Such agent to call for strike only after collecting a Strike ballot of at least 51%. •A worker going on illegal Strike to lose 3 days of wages for every day of such illegal strike. •The Union leading an illegal Strike to immediately lose recognition and registration for a period of two years. •Essential Services to be banned from all forms of work stoppage. •Law and Order machinery to get extra Powers as available in ESMA. •Compulsory adjudication in such cases on failure of conciliation.

Bar jurisdiction of Civil Courts

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In respect of right created under this act no jurisdiction of any other court Settlement with Recognised union(s) binding on all. Right of settlement with minority union also if some workmen specifically authorise such union Compulsory provision for recognised union/unions. Only Unions with at least 10% membership have the right to raise dispute of general nature. Constitution of Industrial Relations Commission. Such commission to discharge function of App.Govt. for resolution of Disputes.

CONCEPT OF SOLE BARGANING AGENT – WHETHER DESIRBALE METHOD OF IDENTIFICATION OF SOLE BARGANING AGENT: • Secret Ballot; • Check off system; and • Verification

CONCEPT OF SOLE BARGANING AGENT – WHETHER DESIRBALE • Generally felt that it is desirable, provisions exists in MP; Chhatisgarh; Maharashtra; Gujarat; West Bengal; Orissa; Andhra Pradesh; Karnataka; and Rajasthan. Notice of change:-Voluntary retirement,Manpower norms,automation,change of practice to be beyond the scope of Section 9A .

CONTRACT LABOUR REGULATION & ABOLITION ACT PREAMBLE: To Regulate the Employment (In certain establishments) and to provide for it’s abolition in certain circumstances & connected matters

• Test to decide whether Employee or independent contractor: – Extent of control & supervision on manner of doing the job. – Location of work – working hours. – Power of dismissal/withholding of payment or reward. – Who supplies tools and tackles etc. – Payment linked with completion of job. Tests only illustrative. Each case on its own merit.

YARDSTICKS • • • • •

Amount of direct control. Contractor also workmen. Even outworker can be workmen. Economic control. Attendance – leave sanction, O.T. sanction – deployment decision.

PROHIBITION OF EMPLOYMENT OF CONTRACT LABOUR (SECTION-10) The Appropriate Govt. may, after consultation with the central/State Board, Prohibit employment of Contract Labour in any Process operation or other work in any Establishment keeping in view: -Conditions Of Work. -Benefits Provided to the Contract Labour. -Whether the Work is incidental to or necessary for the main function of the Establishment. -Perennial Nature. -Ordinarily done through regular workmen. -Sufficient to employ considerable number of whole time workmen.

CRITERIA OF SHAM CONTRACT Sham Contracts are those contracts which indicate no distinction between regular employees of Enterprises and contract labour. Indicators : 1. Direct supervision 2. Certification of satisfactory completion of work 3. Issue of Job Cards/Gate Passes 4. Maintaining attendance 5. Maintenance of Stock Register for materials and tools of labour.

Scope •Exclude abolition •Recommendation of NCL •In case of licensed contractor no entertainment of plea of Sham Contract. •Prime responsibility of law enforcement that of the contractor. •No provision regarding wages under Rule 25

INDUSTRIAL EMPLOYMENT STANDING ORDERS ACT PREAMBLE: TO REQUIRE EMPLOYERS’ IN INDUSTRIAL ESTABLISHMENTS TO FORMALLY DEFINE CONDITIONS OF EMPLOYMENT

Scope •No limits on issues on which Standing orders can be framed •Model Standing Orders to be made applicable mandatory •Preparation in consultation not be made mandatory •To be made applicable only on establishments engaging more than 100 Employees

STANDING ORDER Applicable only to Industry with at least 100 workmen.  Pending certification,employer authorised to decide about the list of misconduct with approval of certifying authority.  Dispute on provision of Standing Order to be decided by Adjudication or certifying authority.Time frame be not released. 

Trade union act Preamble: To provide for registration of trade unions & to define the laws relating to such registered trade unions

Scope •Desirable to have a ceiling on number of outsiders who can be members of Executive bodies. •Federations and centers to be covered within the definition of Trade Unions. •No recognition to Craft or Caste or Creed based Unions. •A definitive method of Recognition of Unions to be Mandatory. •Determination of Recognition to be through a legally defined agency. •Defined Code of Conduct to be Statutorily laid down implementation of such conduct to incorporate penalties like de-recognition & monetary penalties.

Trade Union Act Compulsory negotiation of Trade Unions.  Minimum amount of membership fee say Rs10 per month.  Ban on unions based on craft,creed,caste,Region,etc. 

MINIMUM WAGES ACT PREAMBLE: To provide for fixing up minimum wages in certain establishments

Scope •A National Minimum Wages to be defined by the Central Govt. •No employment possible below this. •Other than this restriction all other restrictions like schedule of Employments to be removed. •Abolition of present system of Schedule of Employments. •Six monthly system of Dearness Allowance linked to a common system of Consumer Price Index.

FACTORIES ACT PREAMBLE: To consolidate and amend the law regulating labour in Factories

Scope •Flexibility and Removal of limits/Ceilings on working Hours. •Payments for Overtime Hours to be compensated alternatively with compensatory Offs.instead of Double the rate of wages as presently defined. •Exemptions for Contingencies to be liberally expanded. •Night work for Women not to be restricted. •Allow outsourcing of statutory provisions.

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