industrial dispute act-

8/22/2019 industrial dispute act-

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Bhumika Sharma(A-38)Tarkik Dave(A-26)

NICM Gandhinagar

Gujarat

+919409623298


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Introduction Dispute- To question the truth or validity of, a

disagreement , a debate

Industry - means any systematic activity carried onby co-operation between an employer and hisworkmen (whether such workmen are employedby such employer directly or by or through anyagency, including a contractor) for the production,

supply or distribution of goods or services with aview to satisfy human wants or wishes (not beingwants or wishes which are merely spiritual orreligious in nature), whether or not,-

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(i) any capital has been invested for the purpose ofcarrying on such activity

(ii) such activity is carried on with a motive to makeany gain or profit, and includes- any activity of the Dock Labour Board established under

section 5 A of the Dock Workers (Regulation of

Employment) Act, 1948 any activity relating to the promotion of sales or business

or both carried on by an establishment

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Doesnotinclude1. any agricultural operation

2. hospitals or dispensaries

3. Educational, scientific, research or traininginstitutions

4. Institutions owned or managed by organisationswholly or substantially engaged in any charitable,social or philanthropic service

5. Khadi or village industries

6. any domestic service

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7. any activity of the Government relatable to thesovereign functions of the Government(defence

research, atomic energy and space)8. any activity being a profession practised by anindividual or body of individuals(less than 10)

9. an activity carried on by a co-operative society or a

club or any other like body of individuals(< 10)

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WhatisIndustrialDispute

Act, 1947 ? Under Section 2 (k)

i. It means any dispute or difference between

employers and employers,ii. employers and workmen, or

iii. workmen and which is connected with-i. the employment or non-employment

ii. the terms of employment, or

iii. with the conditions of labour, of any person.

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Historyoflawsof

IndustrialDispute Employers and Workmens Disputes Act, 1860

Trade Disputes Act, 1929

Rule 81-A (Defense of India Rules) Industrial Dispute Act, 1st April - 1947

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IndustrialDispute Object

To Ensure fare terms to the workmen

To prevent dispute between employers and employees

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ClassificationofIndustrial

Disputes

Industrial

Dispute

Interest Dispute

Grievance/Rights

Dispute

Unfair Labor

Practices

Recognition

Dispute

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Interest Dispute It arise out of deadlocks in the negotiations for a

collective agreement.

They relate to the determination of new terms andconditions of employment for general body ofworker

Originates from the demand of improvement in

wages, job security, fringe benefits, etc.

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Grievance/ RightsDisputes Its a protest against an act of management that is

considered to violate the rights of workmen.

Discipline and dismissal, working time, over-time,rights of supervisor

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Unfair Labor Parctice Discrimination on grounds that workers are trade

union members, participated in trade union activity.

To interfere, restraint the workers when theyexercise their rights to organize, join or assist aunion, refusal to bargain collectively.

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Recognition Dsipute When the employers organization refuses to

recognize a trade union for the purpose of collective

bargaining.

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Strikes!!! Strike- a cessation of work by a body of persons

employed in any industry acting in combination or

a concerted refusal, or a refusal under a commonunderstanding, of any number of persons who are orhave been so employed to continue to work or toaccept employment.

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TypesofstrikeSTRIKES

Primary Strikes

Stay Away

i) Sit Downii)Stay-in

iii)Tool-down

iv) Pen Down

Go Slow

Work to Rule

Token Or Protest

Lighting or Cat-Call

Picketing &Boycott

Gherao

SecondaryStrikes

Sympathy

Others

1. General

2. Particular3. Political

4. Bandhs

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Types of Strikes Primary Strikes- are aimed against the employer

with whom the dispute exists.

Secondary Strikes- in which the pressure is appliednot against the primary employer with whom theprimary workers have a dispute but against somethird person who has good trade relations with him.

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Primary Strikes

Stay away Strike- workman do not come to theworkplace during the prescribed working hours.

The organize rallies and demonstration

Sit Down and Stay in strikeIn sit down strike theemployees take the possession of the property of thebusiness, established themselves in the plant, stop itsproduction and refuse access to the owners or to

others desiring to work Stay in strike generally develops when the demands

are not meet on the strike day and workers remaindetermine on sit down strike not leaving the plant.

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Types of Strikes

Tools Down Strike/ Pen down Strike theworkers/employees lay down their tools or pen andrefrain from doing work, though they remain on the

job in the workplace. Token or Protest Strikeit is very short duration

strike.

Its the signal to employers for the danger ahead.

The intention is not to disrupt the business ofemployer but to communicate to him the grievancedeveloping among employees.

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Types of Strikes

Lighting or Cat-call Strike- it is suddenly announced,generally by the way of surprise without notice orvery short notice.

The issues in dispute are discussed.

They take place due to some provocation

The real cause may be some discontent on morefundamental issues (employer- employee relations)

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Types of Strikes

Go slow- the worker intentionally reduce the speedof work o efficiency, slow the production whilepretending to be engaged in the factory

It is considered as a serious type of misconduct andworkers who resort to it can be dismissed.

Picketing and Boycottis an act of posting picketsand implies marching of workmen in front ofemployers premises, carrying and displaying signs.

Boycott disrupts the normal functioning of the

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Types of Strikes

Gherao- it is a physical blockade of a target byencirclement, intended to block the to and fro fromand to a particular office/residence/factory.

The target are usually the managerial or supervisorystaff.

The fulfillment of demands not through the law

machinery but by violence It involves the commission of offences and hence

illegal and unconstitutional

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Types of Strikes

Hunger strike- is done by the leaders of union orall/part of workers for limited period of time toattract sympathy of employers

Sympathetic strike- the striking workmen have nodemands of their own but to support others in theircause.

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Other Types of Strikes

General Strike- has wide coverage, it involves the

entire working class of a country.

It may be a part of a revolutionary movement.

Particular strike- they are limited in scope and

usually confine to a single plant or few plants or

occupations in a particular town

Generally by plant level union

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Other Types of Strikes

Political strike- are intended to put pressure on

government. Sometimes to express the workers

support to a particular political cause.

Bandhs- objectives are usually political in nature.

They often lead to wide-spread suffering and

inconvenience particularly for local community.

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Important Definitions. Appropriate GovernmentSection - 2(A) Public Utility ServiceSection -2 (N) Industry - Section -2 ( J ) WorkmanSection -2( S ) Industrial DisputeSection -2(K) AwardSection -2(B) Settlement - Section -2 (P) StrikeSection2 (Q) LockoutSection2 (L Lay Off - Section2 (Kkk) Retrenchment - 2 (Oo) ClosureSection2 (Cc)

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APPROPRIATE GOVERNMENT 2(a)Appropriate govt. MeansIn relation to any dispute concerning any industrycarried on by or under the authority of thecentral govt. OrBy A railway company orConcerning any such controlled industry

Dock labour board , major port, air transportservice, banking company, mine or oilfield etc,The central govt and in relation to any other industrial dispute thestate government.

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WORKMAN - SECTION 2(S) Workman means - any person ( including an

apprentice) employed in an industry , to domanual , skilled, unskilled , technical,operational , clerical or supervisory work , for

hire or reward, whether the terms of employment beexpress or implied andSupervisor drawing wages less then 10000/- areworkman.

Note:: manager or a person employed inManagerial or administrative activity are totallyexcluded irrespective of their salary.

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LOCK-OUT [SECTION 2(g)]Lockout means -

Closing of a place of employment or

Suspension of work or

Refusal by an employer to employ any number ofpersons employed by him.

Lock-out is co-eraive , legitimate weapon in thehands of the employer for forcing the workers toaccept his demands & to withdraw the demandsmade by them.

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PROHIBITION OF STRIKES IN P.U.S( Sec - 22 of I.D. Act -1947)

No person employed in PUS shall go on Strike inbreach of contract

1) Without giving Notice of strike within six weeks

of striking OR

2) Within 14 days of giving such Notice OR

3) Before the date of strike specified in the Notice

OR4) During the pendency of the Conciliation

Proceedings before the Conciliation Officer and 7days after conclusion of such proceedings.

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GENERAL PROHIBITATION OF

STRIKES (Sec - 23 of I.D. Act -1947)

No Person Employed In Any Industrial Establishment ShallGo On Strike In Breach Of Contract

1) During The Pendency Of Conciliation Proceedings

Before A Board And Seven Days After Its Conclusion.

2) During The Pendency Of Proceedings Before TheAdjudication Authorities And Two Months After ItsConclusion.

3) During The Pendency Of Arbitration Proceedings

Before An Arbitrator And Two Months After Its

Conclusion Or Where The Notification Has Been IssuedUnder Section10 A ( 3-a).

4) During Any Period In Which A Settlement Or Award IsIn Operation.

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Strikes VS Lock-Out

By workman

Refusal to work oraccept employment.

Under common

understanding or acting

in concert.

[Section 2q]

By employer.

Temporary closure Refusal to continue to

employ the person

employed.

[Section 2I]

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Penalty for Illegal Strikes and Lock-

outs Illegal strike :- imprisonment for one month or fine of

Rs.50 or both.

Illegal Lock-out :- imprisonment for one month orfine of one thousand rupees or both.

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Confusing sequence.!!??

1 Conciliation

2 Adjudication

3 Arbitration

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Conciliation officer Appointed by appropriate government.

Duty: Settlement of industrial dispute.

Nature: Appointed for a specified area of for specifiedindustries in a specified area or for one or more industry

either permanently or for limited time.

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Duties of Conciliation officer As per sec 12(1) and rule 9(1) when a strike/lock-out

notice issued in public utility service conciliation officer isbound to convene immediate conciliation meeting.

To hold conciliation proceeding (sec. 22) To investigate dispute

To send report and memorandum of settlement toappropriate government.

If he fails to bring about a settlement he has to bring factsto the attention of government under section 12(4)

Conciliation process should be complete within 14 days.

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Power of Conciliation Officer. Power to enter the premises.

Power to call for inspect documents.

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Adjudication Section 7 to 9 pertains to the constitution of adjudication

authorities under the act. These authorities are:

1. labour court

2. Industrial Tribunals

3. National tribunal

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Labor courts (section 7) Appropriate government form one or more labor court by

notification in the Official Gazette for adjudication of

industrial dispute.

The labor court consist only one person appointed by the

government .

The person known as Presiding Officer of a Labor Court.

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Industrial Tribunals (Section 7A)

Appointment and Constitution

Tribunal for Limited Period.

Only one person appointed may be two if governmentthink.

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VOLUNTARY ARBITRATION - [ Sec

10 A ]

PARTIES CAN REFER FOR VOLUNTARY ARBITRATION FOR

ANY INDUSTRIAL DISPUTEEXISTING /APPREHENDED,

BEFORE THE SAME IS REFERRED FOR ADJUDICATION.

SUCH REFERENCE IS MADE BY WRITTEN AGREEMENT, INTHE PRESCRIBED MANNER.

APPOINTMENT OF UMPIRE IS MADE WNEN AGREEMENTPROVIDES FOR EVEN NO. OF ARBITRATORS. ( SEC. 10 -1A)

IF ARBITRATORS ARE EQUALLY DEVIDED, THE OPINIONOF UMPIRE SHALL PREVAIL.

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10 A ]

ARBITRATION AGREEMENT MUST BE IN THEPRESCRIBED FORM AND SIGNED BY THE PARTIES. [Sec- 10 A(2) ]

A COPY OF ARBITRATION AGREEMENT SHALL BEFORWARDED TO THE APPRO. GOVT. WHO SHALLPUBLISH THE SAME IN OFFICIAL GAZETTE. WITHINONE MONTH OF PUBLICATION, APPRO. GOVT. SHALLISSUE NOTIFICATION. [ SEC-10A ( 3A) ]

ARBITRATORS INVESTIGATE THE DISPUTE AND

SUBMIT REPORT TO THE APPROPRIATE GOVT. [ SEC10 A(4)

PROVISIONS OF ARBITRATION ACT -1940 DOES NOTAPPLY

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10 A ]

ARBITRATION AGREEMENT MUST BE IN THE PRESCRIBEDFORM AND SIGNED BY THE PARTIES. [ Sec- 10 A(2) ]

A COPY OF ARBITRATION AGREEMENT SHALL BE

FORWARDED TO THE APPRO. GOVT. WHO SHALL PUBLISHTHE SAME IN OFFICIAL GAZETTE. [ SEC- 10A(3) ]

WITHIN ONE MONTH OF PUBLICATION, APPRO. GOVT.SHALL ISSUE NOTIFICATION. [SEC-10A ( 3A) ]

ARBITRATORS INVESTIGATE THE DISPUTE AND SUBMITREPORT TO THE APPROPRIATE GOVT. [ SEC10 A(4) ]

PROVISIONS OF ARBITRATION ACT -1940 DOES NOT APPLY.

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AMENDMENT ACT, 2010

SALIENT FEATURES

Definition of Appropriate Govt. (Section-2 (a) amended.

Enhancement of wage ceiling of a workman from Rs.

1600/- Per Month to Rs. 10,000/- Per Month.

Direct access to the workman to the Labour Court or

Industrial Tribunal in case of disputes arising out of

Section-2 A of the Act.

Empowering Labour Court or Tribunal to execute

Awards, Orders of Settlements arrived at by Labour Court

or Industrial Tribunals.

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Expanding the scope of qualifications of Presiding

Officers of Labour Courts or Tribunals under Section

-7 & Section7A of the Act.

Establishment of Grievance Redressed Machinery in

every industrial establishment employing 20 or more

workmen for the resolution of disputes arising out of

individual grievances.

The Amendments have been brought into force w.e.f.

15.09.2010

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Lay Off means the failure, refusal or inability of an employer

on account of shortage of

coal, power or raw materials or the accumulation of stocks

or

the breakdown of machinery

or natural calamity or for any other connected reason

to give employment to a workman whose name isborne on the muster rolls of his industrial

establishment and who has not been retrenched.

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LayOff Every workman whose name is borne on the muster rolls,during normal working hours on any day and is not given

employment by the employer within 2 hoursof his so

presenting himself shall be deemed to have been laid- offfor that day.

Present himself in next shift- laid off for the one half day

And no employment the entire day in-spite of beingpresent then not laid-off

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Continuous Service

Section 25B

if employee provides uninterrupted service, which

includes interrupted service

Sickness

Authorized leave

Accident

strikes which are not illegal

lock out or cessation of work not due to the fault of theworkman

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Continuous ServiceSection 25B

For One Year

190 days- below the ground in

a mine.

240 days- in any other job.

For Six Months

95 days- below the ground in a

mine.

120 days- in any other job.

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Right of workmen Laid-off for

compensation, Section 25C

states that any workman (except Badli Workman):

whose name is borne on the muster-rolls of an industrial

establishment

who has completed at least one (1) year of continuous

service under the employer

shall be paid compensation for the period during which he was

laid-off, equal to

50 % of the total of the basic wages and dearness allowance

that should be payable to him had such workman not been

so laid-off.

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If during the one (1) year period of continuous service, the

workman is laid-off for more than forty five (45) days, no

further compensation will be paid if there is an agreement in

that respect between the workman and the employer Upon the expiry of this period, the employer can retrench the

workman

And the Compensation then paid would exclude the amount

already paid during the forty-five (45) day period of layoff.

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For Badli Workman

if the workman is a badli workman or a casual

workman, he would fall outside the ambit of Section 25C.

However, if a badli workman has completed 1year of

continuous service in the industrial establishment, he will

be treated as a permanent workman for all purposes

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Muster Rolls of Workmen

Section 25D Duty of an employer to maintain muster rolls of

workmen. Notwithstanding that workmen in any

industrial establishment have been laid- off, it shall be

the duty of every employer to maintain for the

purposes of this Chapter a muster roll and to provide

for the making of entries therein by workmen who

may present themselves for work at the establishmentat the appointed time during normal working hours.

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Workman not entitled to

Compensation, Section 25E he refuses to accept any alternate employment offered by the

employer in the same establishment or in any other establishment of the same employer, provided such establishment is

within a five (5) miles radius from the previous establishment

Further, such alternate employment should not call for any special skill or experience

the employer must pay at least the same wages as were previously paid to the

workman.

he does not present himself for work at the establishment at theappointed time during normal working hours at least once aday;

(such lay-off is due to a strike or slowing-down of production

by workmen in another part of the establishment.

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Prohibition of Lay-off

Section 25M

Cannot be laid- off by his employer except

with the prior permission of the appropriate Government or

such authority as may be specified by that Government by

notification in the Official Gazette obtained on anapplication made in this behalf

unless such layoff is due to shortage of power or to natural

calamity

and in the case of a mine, such layoff is due also to fire,flood, excess of inflammable gas or explosion

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An application for permission shall be made by theemployer in the prescribed manner stating clearly thereasons for the intended layoff and a copy of such

application shall also be served simultaneously on theworkmen concerned in the prescribed manner.

In case of lay-off of mine, under for reasons of fire, floodor excess of inflammable gas or explosion, the employer,shall within a period of30 days from the date ofcommencement of such layoff, apply to the appropriateGovernment or the specified authority for permission tocontinue the layoff

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Appropriate Government does not communicate to

employer within a period of60 days from the date on

which such application is made, the permission applied

shall be deemed to have been granted

No Compensation for industry which has more than 100

workmen employed on an average per working day for the

preceding 12 months

The appropriate government has the final authority to decide

whether the establishment is in fact seasonal or not.

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Retrenchment

The termination by the employer of the service of aworkman for any reason whatsoever,otherwise thanas a punishment inflicted by way of disciplinary

action, but does not include voluntary retirement of the workman

retirement of the workman on reaching the age ofsuperannuating if the contract of employment betweenthe employer and the workman concerned contains a

stipulation in that behalf termination of the service of a workman on the ground

of continued ill-health

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Condition precedent to retrenchmentof workmen, Section 25F

The workman has been given 1 month notice in writing

indicating the reasons for retrenchment and

the period of notice has expired or

the workman has been paid in lieu of such notice, wages for the

period of the notice

The workman has been paid, at the time of retrenchment,compensation which shall be equivalent to

15 days average pay [for every completed year of continuous

service] or any part thereof in excess of six months

Notice in the prescribed manner is served on the appropriateGovernment

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Condition precedent to retrenchment

of workmen, Section 24N The workman has been given 3 months notice in writing

indicating the reasons for retrenchment and the period of

notice has expired, or the workman has been paid in lieu

of such notice, wages for the period of the notice

The prior permission of the appropriate Government or

such authority as may be specified by that Government by

notification in the Official Gazette (hereafter in this

section referred to as the specified authority) has been

obtained on an application made in this behalf.

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Procedure of Retrenchment,Section 25G

Where any workman in an industrial establishment

who is a citizen of India

he belongs to a particular category of workmen in that

establishment

in the absence of any agreement between the employer and

the workman in this behalf

the employer shall ordinarily retrench the workman who

was the last person to be employed in that category

unless for reasons to be recorded the employer retrenches

any other workman.

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Re-employment of Retrenched

workman, Section 25H He should have been retrenched prior to re-

employment

He should be a citizen of India He should have been retrenched from the category of

service, for which the re-employment is sought

He should offer himself for re-employment in

response to notice

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Penalty for Lay-off andRetrenchment, Section 25Q

Any employer who violates the provisions of section

25-M or section 25-N shall be punishable with

imprisonment of a term which may extend to one month, or

with fine which may extend to one thousand rupees, or

with both

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Compensation in case of transfer,

Section 25FF the service of the workman has not been interrupted by such transfer;

the terms and conditions of service applicable to the workman aftersuch transfer are not in any way less favourable to the workman thanthose applicable to him immediately before the transfer

the new employer is, under the terms of such transfer or otherwise,legally liable to pay to the workman, in the event of hisretrenchment, compensation on the basis that his service has beencontinuous and has not been interrupted by the transfer.

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60 days notice in case of closing

down, Section 25FFA A notice at least sixty days before the date on which the intendedclosure is to become effective, in the prescribed manner, on theappropriate Government stating clearly the reasons for the intendedclosure of the undertaking

Does not apply to An undertaking in which

less than fifty workmen are employed, or

less than fifty workmen were employed on an average per working day in thepreceding twelve months,

an undertaking set up for the construction of buildings, bridges, roads,

canals, dams or for other construction work or project.

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Compensation in case of closing

down, Section 25FFF Every workman (service nt


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an undertaking engaged in mining operations is closed

down by reason merely of exhaustion of the minerals

in the area in which such operations are carried on, no

workman referred to shall be entitled to any notice or

compensation in accordance with the provisions of

section 25F(Retrenchment)

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Any undertaking set- up for

construction of buildings, bridges, roads, canals, dams or otherconstruction work

is closed down on account of the completion of the workwithin two years from the date on which the undertaking had

been set- up,

No workman employed therein shall be entitled to anycompensation under of section 25F

But if the construction work is not so completed within twoyears, he shall be entitled to notice and compensation underthat section

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Penalty for Closure

Section 25R Sub section 1- punishable with

imprisonment for a term which may extend to 6 months, or

with fine which may extend to Rs. 5000, or

with both. Sub Section 2 shall be punishable with

imprisonment for a term which may extend to 1year,

with fine which may extend to Rs.5000, or

with both

In case of continuing contravention punished with

a further fine which may extend to Rs. 2000 for every day duringwhich the contravention continues after the conviction.

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Authorities

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Works Committee Industrial establishment which 100 or more workmen areemployed or have been employed on any day in the precedingtwelve months,

The appropriate Government require the employer to constitutea Works Committee

consisting equal number of representatives of employers andworkmen engaged in the establishment

The representatives of the workmen shall be chosen in the

prescribed manner from among the workmen engaged in the establishment and

in consultation with their trade union, if any, registered under theIndian Trade Unions Act, 1926 (16 of 1926 ).

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The Works Committee to promote measures for

securing and preserving amity and

good relations between the employer and workmen and

to comment upon matters of their common interest or

concern and

endeavour to compose any material difference of opinion in

respect of such matters.

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Conciliation Officers The appropriate Government may, by notification in theOfficial Gazette, appoint such number of persons as it

thinks fit, to be conciliation officers,

charged with the duty of mediating in and promoting thesettlement of industrial disputes.

A conciliation officer may be appointed for a specified

area or for specified industries in a specified area or for

one or more specified industries and either permanently orfor a limited period.

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Board of Conciliation The appropriate Government may as occasion arises by notificationin the Official Gazette constitute a Board of Conciliation for

promoting the settlement of an industrial dispute.

A Board shall consist of a chairman and 2 or 4 other members, as the

appropriate Government thinks fit. The chairman shall be an independent person

And the other members shall be persons appointed in equal numbersto represent the parties to the dispute

any person appointed to represent a party shall be appointed on therecommendation of that party: Provided that,

if any party fails to make a recommendation within the prescribed time,the appropriate Government shall appoint such persons as it thinks fit torepresent that party.

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A Board, may act in spite the absence of the chairman or

any of its members or any vacancy in its number

Provided that if the appropriate Government notifies the

Board that the services of

the chairman or

any other member have ceased to be available

the Board shall not act until a new chairman or member,as the case may be, has been appointed.

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Court Of Inqury The appropriate Government may as occasion arises bynotification in the Official Gazette constitute a Court of

Inquiry for inquiring into any matter appearing to be

connected with or relevant to an industrial dispute. A Court may consist of

one independent person or

of such number of independent persons as the appropriate

Government may think fit

And where a Court consists of two or more members, one

of them shall be appointed as the chairman.

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A Court, may act in spite of the absence of the chairman

or any of its members or any vacancy in its number:

Provided that, if the appropriate Government notifies the

Court that the services of The chairman have ceased to be available

The Court shall not act until a new chairman has been

appointed.

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Labour Courts The appropriate Government may, by notification in theOfficial Gazette, constitute one or more Labour Courts for

the adjudication of industrial disputes relating to any matter

specified in the Second Schedule and

for performing such other functions as may be assigned to

them under this Act.

A Labour Court shall consist of one person only to be

appointed by the appropriate Government.

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A person shall not be qualified for appointment as the

presiding officer of a Labour Court, unless

he is, or has been, a Judge of a High Court

he has, for a period of not less than 3 years, been a District

Judge or an Additional District Judge

he has held any judicial office in India for not less than 7

years; or

he has been the presiding officer of a Labour Court

constituted under any Provincial Act or State Act for not less

than 5 years

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He is an Officer in Indian Legal Service in Grade III with

3yrs experience in it.

He is or had been a Deputy Chief Labour Commissioner

(Central) or Joint Commissioner of State Labour Dept has

A Degree in Law

At least 7 yrs experience in Labour Dept including

3 yrs as a Conciliation Officer

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National Tribunal The Central Government may, constitute one or more NationalIndustrial Tribunals for the adjudication of industrial disputeswhich, in the opinion of the Central Government, involve questions of national importance or

Are of nature that more than one State are likely to be interestedin, or affected by, such disputes.

A National Tribunal shall consist of one person only to beappointed by the Central Government.

A person shall not be qualified for appointment as the presiding

officer of a National Tribunal unless he is, or has been, a Judgeof a High Court

The Central Government may, appoint two persons as assessorsto advise the National Tribunal in the proceeding before it.

Documents

industrial dispute act-