SOME IMPORTANT LABOUR LAWS APPLICABLE SOME IMPORTANT LABOUR LAWS APPLICABLE TO WORKMENTO WORKMEN

• In India several labour laws regulate various conditions of work, wages, In India several labour laws regulate various conditions of work, wages, service, labour relations and other such related matters and for the present service, labour relations and other such related matters and for the present presentation we will discuss the complex labour laws in the Organized presentation we will discuss the complex labour laws in the Organized sector in India. Some of the relevant laws which are discussed here are as sector in India. Some of the relevant laws which are discussed here are as follows:follows:

• The Industrial Disputes Act, 1947;The Industrial Disputes Act, 1947;

• The Factories Act, 1948;The Factories Act, 1948;

• Shops and Establishment Acts of various states;Shops and Establishment Acts of various states;

• The Contract Labour (Regulation and Abolition) Act, 1970;The Contract Labour (Regulation and Abolition) Act, 1970;

• The Trade Unions Act, 1926;The Trade Unions Act, 1926;

• The Workmen’s Compensation Act, 1923;The Workmen’s Compensation Act, 1923;

• The Employees’ Provident Funds and Miscellaneous Provisions Act, 1952;The Employees’ Provident Funds and Miscellaneous Provisions Act, 1952;

• The Employees’ State Insurance Act, 1948;The Employees’ State Insurance Act, 1948;

THE INDUSTRIAL DISPUTES ACT, 1947 THE INDUSTRIAL DISPUTES ACT, 1947 (IDA)(IDA)

• IDA - is an Act to make provision and settlement of Industrial Disputes with the objective to maintain industrial peace and economic justice.

• IDA categories employees into workman and non-workman.

• Section 2 (s) of IDA defines workman.

• “Workman” means any person employed in any industry to carry out manual, skilled and unskilled, technical, operational, clerical or supervisory work for hire or reward.

• The definition specifically excludes – persons employed in managerial or administrative capacity and also those persons (otherwise falling within the definition of workman) who are employed in supervisory capacity at wages more than Rs.1,600/- per month) and sales promotion employees.

INDUSTRIAL DISPUTE ACT 1947INDUSTRIAL DISPUTE ACT 1947

• CHAPTER I :CHAPTER I : EXTENT AND DEFINITIONS- It contains important EXTENT AND DEFINITIONS- It contains important definitions of Employer, Industrial disputes, Layoffs, Lockouts, Public definitions of Employer, Industrial disputes, Layoffs, Lockouts, Public Utility Company, Retrenchment, Unfair Labour Practice Utility Company, Retrenchment, Unfair Labour Practice

• CHAPTER II :CHAPTER II : Section 3 to 9 - Authorities under the Act: Works Section 3 to 9 - Authorities under the Act: Works ommittee, Conciliation Officer, Board of Conciliation, Labour Courts, ommittee, Conciliation Officer, Board of Conciliation, Labour Courts, Industrial Courts, Industrial Tribunal, National TribunalIndustrial Courts, Industrial Tribunal, National Tribunal

• CHAPTER III :CHAPTER III : Reference of Dispute, Notice under section 22 & Reference of Dispute, Notice under section 22 & Voluntary Reference of DisputesVoluntary Reference of Disputes

• CHAPTER IV :CHAPTER IV : Section 11 to 21 Powers & Duties Section 11 to 21 Powers & Duties• CHAPTER V :CHAPTER V : Section 22 to 25 : Strikes & Lockouts Section 22 to 25 : Strikes & Lockouts• CHAPTER VA :CHAPTER VA : Section 25 A to J Layouts & Retrenchment Section 25 A to J Layouts & Retrenchment• CHAPTER VB :CHAPTER VB : Section 26 to 31 Misc Provisions Section 26 to 31 Misc Provisions

Some Important Definations• Section 2 (kkk) defines “lay-off” the failure of the employer to

provide employment due to shortage of raw material, power etc. but who has not been retrenched.

• Section 2 (oo) defines “retrenchment” as termination of a workman

for any reason whatsoever otherwise than voluntary retirement, reaching age of superannuation, non renewal of contract or termination due to continued ill-health.

• Section 2 (oo) (bb) – provides for termination of the service of a workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein.

Some Important Definations• Section 2 (s) of IDA defines workman.

• “Workman” means any person employed in any industry to carry out manual, skilled and unskilled, technical, operational, clerical or supervisory work for hire or reward.

• The definition specifically excludes – persons employed in managerial or administrative capacity and also those persons (otherwise falling within the definition of workman) who are employed in supervisory capacity at wages more than Rs.1,600/- per month) and sales promotion employees.

Adjudicating Authorities under ID Act

Authorities constituted for the settlement

Eight authorities are constituted under the Act, for the settlement of industrial dispute, namely :(a) Works Committee, (b) Conciliation Officer, (c) Boards of Conciliation, (d) Court of Inquiry, (e) Labour Courts, (f) Tribunals, (g) National Tribunals, and(h) Voluntary reference to Arbitrator

(a) Works Committee

• The industrial establishment employed 100 or more workmen, a Works Committee shall be constituted.

• This Committee shall have equal representatives of employers and employees.

• The representatives of the workmen shall be chosen from among the workmen engaged in the establishment and in consultation with their registered trade union.

The duty of the Works Committee

The duty of the Works Committee shall be -

(i) to promote measures for securing and preserving amity (friendly relation),

(ii) to promote good relations between the employer and workmen, and

(iii) to that end, to comment upon matters of their common interest or concern and endeavour to compose any material difference of opinion in respect of such matters. [S.3]

(b) Conciliation Officer

• The appropriate Government may, appoint such number of persons, as it thinks fit to be conciliation officers, charged with the duty of mediating in and promoting the settlement 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 or for a limited period. [S.4]

Duties of Conciliation Officers

• The Conciliation Officer shall hold the conciliation proceeding in prescribed manner. Investigate the matter for the purpose of bringing about a fair and amicable (peaceful) settlement of the dispute.

• When he arrived on settlement send a report to the Government, with memorandum signed by the parties.

• But, where no settlement arrived, send a report with reasons and steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof, together with a full statement of such facts and circumstances, and the reasons on account of which, in his opinion, a settlement could not be arrived at.

• Such report shall be submitted within 14 days of the commencement of the conciliation proceedings or within such shorter period as may be fixed by the Government. [S.12]

(c) Boards of Conciliation

• According to S.5 of the Act, the appropriate Government may constitute Board of Conciliation for promoting the settlement of an industrial dispute.

• A Board shall consist of a Chairman and two or four other members, as the Government thinks fit.

• The Chairman shall be an independent person and the other members shall be persons appointed in equal numbers to represent the parties to the dispute and any person appointed to represent a party shall be appointed on the recommendation of that party.

• If, any party fails to make a recommendation as aforesaid within the prescribed time, the Government shall appoint such persons as it thinks fit to represent that party.

Duties of Board• On the reference of the case, the Board without delay shall investigate the

matter for the purpose of bringing about a fair and amicable (peaceful) settlement of the dispute.

• When they arrived on settlement send a report to the Government, with memorandum signed by the parties.

• But, where no settlement arrived, send a report with reasons and steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof, together with a full statement of such facts and circumstances, and the reasons on account of which, in his opinion, a settlement could not be arrived at.

• The Board shall submit its report within two months of the date on which the dispute was referred to it, or within such shorter period as may be fixed by the Government.

• The board’s report should be in writing and is to be signed by all the members of board. Every report is to be published in such a manner as appropriate Government thinks fit within 30 days of its receipt. [Ss.13, 16 and 17]

(d) Court of Inquiry• The appropriate Government may, 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 Government may think fit and where a court consists of two or more members, one of them shall be appointed as a Chairman.

• A Court shall inquire into the matters referred to, and report thereon to the Government ordinarily within a period of six months from the commencement of its inquiry. [S.6 and S.14]

(e) Labour Courts• The appropriate Government may, by notification in the Official 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 Government.

• The presiding officer of a Labour Court shall be qualified if, - (i) he is, or has been, a judge of a High Court; or (ii) he has at least for three years been a District Judge or an Additional District

Judge; or (iii) he has held at least for seven years any judicial office in India; or (iv) he has been the presiding officer at least five years of a Labour Court

constituted under any Provincial Act or State Act. • But, no person shall be appointed to, or continue in, the office of the

presiding officer of a Labour Court, if –(i) he is not an independent person; or (ii) he has attained the age of 65 years. [S.7]

Jurisdiction of Labour Court :Matters, within Second Schedule of the Act, are –

(i) The propriety or legality of an order passed by an employer under the standing orders;

(ii) The application and interpretation of standing order;

(iii) Discharge or dismissal of workmen including re-instatement of, or grant of relief to, workmen wrongfully dismissed;

(iv) Withdrawal of any customary concession or privilege;

(v) Illegality or otherwise of a strike or lock-out; and

(vi) All matters other than those specified in the Third Schedule.

(f) Tribunals (Industrial)• The appropriate Government may, constitute one or more Industrial

Tribunals for the adjudication of industrial disputes relating to any matter, whether specified in the Second Schedule or the Third Schedule and for performing such other functions as may be assigned to them under this Act.

• A Tribunal shall consist of one person only to be appointed by the appropriate Government. The presiding officer of a Tribunal shall be qualified if, -

(i) he is, or has been, a Judge of a High Court; or (ii) he has at least for three years been a District Judge or an Additional District

Judge. • The Government may, if it so thinks fit, appoint two persons as assessors to

advise the Tribunal in the proceeding before it. • But, no person shall be appointed to, or continue in, the office of the

presiding officer of a Tribunal, if – (i) He is not an independent person; or (ii) He has attained the age of 65 years.

Jurisdiction of the Industrial Tribunals :Matters, described in the Third Schedule of the Act, are –

(i) Wages, including the period and mode of payment;

(ii) Compensatory and other allowances;

(iii) Hours of work and rest intervals;

(iv) Leave with wages and holidays;

(v) Bonus, profit sharing, provident fund and gratuity;

(vi) Shift working otherwise than in accordance with standing orders;

(vii) Classification by grades;

(viii) Rules of discipline;

(ix) Rationalisation;

(x) Retrenchment of workmen and closure of establishment; and

(xi) Any other matter that may be prescribed.

(g) National Tribunals• The Central Government may, by notification in the official Gazette,

constitute one or more National Industrial Tribunals for the adjudication of industrial disputes which, in the opinion of the Central Government, involve questions of national importance or are of such a nature that industrial establishments situated in more than one State are likely to be interested in, or affected by such disputes.

• A National Tribunal shall consist of one person only to be appointed by the Central Government.

• The presiding officer of a National Tribunal shall be sitting, or has been, a Judge of a High Court. The Central Government may also appoint two persons as assessors to advise the National Tribunal in the proceeding before it.

• But, no person shall be appointed to, or continue in, the office of the presiding officer of a National Tribunal, if-

• (i) he is not an independent person; or • (ii) he has attained the age of 65 years. [S.7B and 7C]

Duties of a Labour Court, or Tribunals or National Tribunals

• Where an industrial dispute has been referred to a Labour Court, or Tribunal or National Tribunal, for adjudication.

• It shall hold its proceedings expeditiously and shall, within the period specified in the order referring such industrial dispute, submit its award to the appropriate Government.

• Where the parties to an industrial dispute apply in the prescribed manner, whether jointly or separately, to the a Labour Court, or Tribunal or National Tribunal, for extension of such period or for any other reason, and the presiding officer of such Labour Court, or Tribunal or National Tribunal considers it necessary or expedient to extend such period, he may for reasons to be recorded in writing, extend such period by such further period as he may think fit. [S.15]

Procedure and power of Authority

• Procedure : An arbitrator, a Board, Court, Labour Court, Tribunal or National Tribunal shall follow such procedure as the arbitrator or other authority concerned may think fit.

• Powers : Authority may for the purpose of inquiry into any existing or apprehended industrial dispute, after giving reasonable notice, enter the premises occupied by any establishment to which the dispute relates.

• Every Authority shall have the same powers as are vested in a Civil Court under the C.P.C., when trying a suit, in respect of the following matters - (i) Enforcing the attendance of any person and examining him on oath. (ii) Compelling the production of documents and material object. (iii) Issuing commissions for the examination of witnesses. (iv) In respect of such other matters as may be prescribed.

• And every inquiry or investigation by authority shall be deemed to be a judicial proceeding.

Powers of Labour Court / Tribunals to give appropriate

relief in case of discharge or dismissal of workmen • Where an industrial dispute relating to the discharge or dismissal of a

workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court or Tribunals is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct re-instatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require. In any proceeding under the Labour Court or Tribunals shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter. [S.11A]

(h) Voluntary reference to Arbitrator

• The Act provides voluntary reference of disputes to Arbitration. According to S.10-A of the Act, where any industrial dispute exists or is apprehended and the employer and the workman agree to refer the dispute to arbitration, they may, at any time before the dispute has been referred to a Labour Court or Tribunal or National Tribunal by a written agreement, refer the dispute to arbitration and the reference shall be to such person or persons (including the presiding officer of a Labour Court or Tribunal, or National Tribunal) as an arbitrator or arbitrators as may be specified in the arbitration agreement.

• Where an arbitration agreement provides for a reference of the dispute to an even number of arbitrators the agreement shall provide for the appointment of another person as umpire who shall enter upon the reference, if the arbitrators are equally divided in their opinion, and the award of the umpire shall prevail and shall be deemed to be the arbitration award for the purposes of this Act.

• An arbitration agreement shall be in such form and shall be signed by the parties thereto in such manner as may be prescribed. A copy of the arbitration agreement shall be forwarded to the appropriate Government and the conciliation officer and the appropriate Government shall, within one month from the date of the receipt of such copy, publish the same in the Official Gazette.

• Where an industrial dispute has been referred to arbitration the appropriate Government may, within the prescribed time, issue a notification; and when any such notification is issued, the employers and workmen who are not parties to the arbitration agreement but are concerned in the dispute, shall be given an opportunity of presenting their case before the arbitrator or arbitrators.

• The arbitrator(s) shall investigate the dispute and submit to the appropriate Government the arbitration award signed by the arbitrator or all the arbitrators, as the case may be. Where an industrial dispute has been referred to arbitration and a notification has been issued, the appropriate Government may, by order, prohibit the continuance of any strike or lock-out in connection with such dispute, which may be in existence on the date of the reference.

• The provisions of Arbitration and Conciliation Act, 1996 shall not apply to arbitrations under this section.

Powers of SC and HC to issue writs

• The Hon’ble SC under Art.32 and HC under Art. 226 may issues any of the writs on the violation of any of fundamental rights. But, in this regard HCs are having more powers than SC; it can issue writs otherwise also. Following writ may be issued – (1) Habeas corpus writ (2) Mandamus writ (3) Certiorari writ (4) Writ of Prohibition (5) Writ of Quo-warranto

Mandamus writ

• The writ of mandamus is thus an order by a superior court commanding a person or public authorities (to the Government, inferior court, tribunal corporation {any Labour Tribunals} or any other persons) to perform the public duty or to refrain from doing an illegal act. It will lie when there is a failure to perform a mandatory duty. But, even in the cases of alleged breaches of mandatory. The party must show that he has made a distinct demand to enforce that the duty and the demand was met with refusal.

Certiorari writ• Certiorari means, “to certify”, it is so named as in its original Latin from its

required. This writ is issued by a Superior Court to inferior court or tribunal {any Labour Tribunals} or body exercising judicial or quasi-judicial functions to remove the proceedings from such court, tribunal or body exercising such power for examining the legality of the proceeding and object of this writ is to prevent them from acting without jurisdiction. [Ranjit Singh v. UT Chandigarh, AIR 1991 SC]

• This writ can be issued on the following grounds : (a) Want of excess of jurisdiction, (b) For correcting error of law apparent on the force of record, or (c) On the violation of procedure or disregard of principles of natural

justice.

Writ of Prohibition

• A writ of prohibition is issued primarily to prevent an inferior court or tribunal from exceeding its jurisdiction, or acting contrary to the rule of natural justice. It is issued by a superior court to inferior courts for the purpose of preventing inferior courts from usurping a jurisdiction with which it was not legally vested or in other words to compel inferior courts to keep within the limits of their jurisdiction.

High CourtAny punishment authorised by Law

Assistance Sessions JudgeImprisonment up to 10 years and/or fine

Chief or Additional Metropolitan Magistrate (in metropolitan cities)

Imprisonment up to 7 years and/or fine

Chief or Additional Judicial Magistrate (in other areas)Imprisonment up to 7 years and/or fine

Courts of SessionsSessions and Additional Session Judge

Any punishment authorised by Law, but death sentence subject to the conformation of HC

Judicial Magistrate I Class Imprisonment up to 3 years and/or fine up to Rs.

10,000/-

Judicial Magistrate II ClassImprisonment up to one years and/or fine up to Rs. 5,000/-

Metropolitan or Special Metropolitan MagistrateImprisonment up to 3 years and/or fine up to Rs. 10,000/-

Courts of Magistrate

Sub Divisional MagistrateImprisonment up to 3 years and/or fine up to Rs.

10,000/-

Supreme CourtAny punishment authorised by Law

Hierarchy of Indian Criminal Court

Strike, Lock-out and Illegal Notice

Strike and Lockout

Strike is a weapon used by the workmen as a last resort in the process of collective bargaining similarly lockout is for the employers.

Definition of Strike • "Strike,” means –

(i) a cessation of work by a body of persons employed in any industry acting in combination; or

(ii) a concerted refusal, or a refusal, under a common understanding of any number of persons who are or have been so employed to continue to work or to accept employment. [S.2 (q)]

• In both strike and lock-out, although the work comes to stop but the relation is deemed to be continued. It was held by Hon’ble SC that “Pen-down” stoppage of work is a strike within the meaning of S.2 (q) of the ID Act.

• When the workmen are not bound to do particular work and he refused to do that work does not amount to strike, because their refusal is not concerted or under a common understanding.

• When there is a cessation of work, the mode of duration of stoppage is immaterial and of no consequence.

Essential elements of the strike

(1) Strike is an action by the body of persons employed in any industry.

(2) Such action involve either cessation of work; or a concerted refusal; or refusal under a common understanding of any number of employees.

(3) Such cessation or refusal shall be under a common understanding of persons who are or have been employed to continue to work or to accept employment.

Definition of “Lock-out” • "Lock-out" means –

(a) the temporary closing of a place of employment, or (b) the suspension of work, or (c) the refusal by an employer to continue to employ any number

of persons employed by him. [S.2 (l)] • The SC interpreted the word “lock-out” to mean the employer’s

refusal to permit any number of persons employed by him to attend to their duties, without effecting a termination of service. (1960)

• Lock-out involves merely the closing of place of business, and not of the business itself. This distinction is also the test of the difference between the lock-out and closure, as the later involves the closing down of the business itself. [SC, 1962]

Prohibition of strikes and Lockouts

• According to S. 22 of the Act, no person employed in a public utility service (PUS) shall go on strike in breach of contract/No employer carrying on any public utility service shall lock-out any of his workplace -(a) Without giving to the employer/employee notice of strike/lock-out,

within 6 weeks before striking/locking out; or(b) Within 14 days of giving such notice; or (c) Before the expiry of the date of strike/lock-out specified in notice;

or(d) During the pendency of any conciliation proceedings before a

conciliation officer and seven days after the conclusion of such proceedings.

Notice of lock-out or strike • The notice of lock-out/strike, shall not be necessary where there is

already in existence a strike or, as the case may be, lock-out in the PUS, but the employer shall send intimation of such lock-out or strike on the day on which it is declared, to such authority as may be specified by the appropriate Government.

• Notice shall be given in the prescribed form : The notice of strike shall be given by such number of persons to such person or persons and in such manner as may be prescribed. Similarly, the notice of lock-out shall be given in such manner as may be prescribed.

• Notice to be reported to the appropriate Government : If on any day an employer receives from any person employed by him any such notices or gives to any person employed by him any such notices, he shall within five days thereof report to the appropriate Government, the number of such notices received or given on that day.

General prohibition of strikes and Lockouts • According to S.23 of the Act, no workman who is employed in any

industrial establishment shall go on strike in breach of contract and no employer of any such workman shall declare a lock-out-(a) During the pendency of conciliation proceedings before a

Conciliation Board and seven days after the conclusion of such proceedings;

(b) During the pendency of proceedings before a Labour Court, Tribunal or National Tribunal and two months, after the conclusion of such proceedings;

(c) During the pendency of arbitration proceedings before an arbitrator and two months after the conclusion of such proceedings, where a notification has been issued, in case of voluntarily reference to arbitration; or

(d) During any period in which a settlement or award is in operation, in respect of any of the matters covered by the settlement or award.

Illegal strikes and Lockouts

According to S.24, a strike or lock-out shall be illegal if -(a) It is commenced or declared in contravention of any prohibition

of strike and lock-out; or(b) It is continued in contravention of an order made by appropriate

Govt. to prohibit the continuance of any strike or lock-out in connection with dispute referred to a Board, Labour Court, Tribunal or National Tribunal which may be in existence on the date of the reference; or

(c) It is continued in contravention of an order made by appropriate Govt. to prohibit the continuance of any strike or lock-out in connection with dispute referred to arbitration and a notification has been issued.

But, a strike or lock-out shall not be illegal if -(a) Where a strike or lock-out in pursuance of an industrial dispute has

already commenced and is in existence at the time of the reference of the dispute to a Conciliation Board, an Arbitrator, Labor Court, Tribunal or National Tribunal, the continuance of such strike or lock-out shall not be deemed to be illegal, provided that such strike or lock out was not at its commencement in contravention of the provisions of this Act or the continuance thereof was not prohibited by an order of appropriate Govt; or

(b) A lockout declared in consequence of an illegal strike or a strike declared in consequence of an illegal lockout shall not be deemed to be illegal.Prohibition of financial aid to illegal strikes and Lockouts : No person shall knowingly expend or apply any money in direct furtherance or support of any illegal strike or lockout.

Offences and Penalties • Penalty for illegal strikes : Any workman who commences, continues or

otherwise acts in furtherance of, a strike, which is illegal under this Act, – shall be punishable with imprisonment up to one month, or with fine up to Rs.

50, or with both. • Penalty for illegal Lockouts : Any employer, who commences, continues, or

otherwise acts in furtherance of a lockout, which is illegal under this Act, – shall be punishable with imprisonment up to one month, or with fine up to Rs.

1000, or with both. • Penalty for instigation, etc. : Any person who instigates or incites others to

take part in, or otherwise acts in furtherance of, a strike or lock-out which is illegal under this Act, – shall be punishable with imprisonment up to six months, or with fine up to Rs

1000, or with both. • Penalty for giving financial aid to illegal strikes and Lockouts : Any person

who knowingly expends or applies any money in direct furtherance or support of any illegal strike or lock-out – shall be punishable with imprisonment up to 6 months, or with fine up to Rs

1000, or with both.

Wages during strike period

• Wages during strike period are payable only if the strike is both legal and justified. [SC, (1994) & followed in (1997)]

• Similarly, on the other hand held that when lockout by employer is legal and justified, workmen are not entitled to payment of wages for the period during which the lock-out continued. [SC, (1996)]

• Principle of ‘No work no pay’ has been accepted by Supreme Court. [Bank of India v. T S Kelawala, (1990) & followed in (1994)]

Strike, Gherao, Demonstration & Shouting Slogans

• The Hon’ble Delhi High Court held that while it may be right of the union and employees to hold peaceful demonstration, they however, cannot under grab of such demonstration become violent or adopt threatening tactics to stop the employees. They also cannot be allowed to damage the property and gherao the managerial persons and willing workers. The High Court permitted to hold such activities in peaceful manner, beyond the radius of 60 meters of the premises.

• [Escorts Heart Institute and Research Center Ltd. v. Delhi Mazdoor Sangathan Regt. and Ors, 2007 I LLJ 366]

Notice of change

• According to S.9-A of the Act, no employer, who proposes to effect any change in the conditions of service applicable to any workman in respect of any matter specified in the Fourth Schedule, shall effect such change, -(a) Without giving to the workmen likely to be affected by such change a

notice in the prescribed manner of the nature of the change proposed to be effected; or

(b) Within 21 days of giving such notice.

* Any notice given in the contravention of above provision is called illegal notice.

No notice shall be required for

affecting any such change • Where the change is effected in pursuance of any settlement

or award; or• Where the workmen likely to be affected by the change are

persons, to whom –– the Fundamental and Supplementary Rules, – Civil Services (Classification, Control and Appeal) Rules,– Civil Services (Temporary Service) Rules, – Revised Leave Rules, – Civil Services Regulations, – Civilians in Defence Services (Classification, Control and Appeal) Rules

or – the Indian Railway Establishment Code or – any other rules or regulations that may be notified in this behalf by

the appropriate Government in the Official Gazette.

Fourth Schedule • According to Fourth Schedule following are the conditions of service for change of

which notice is to be given -(1) Wages, including the period and mode of payment.(2) 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.(3) Compensatory and other allowances.(4) Hours of work and rest intervals.(5) Leave with wages and holidays.(6) Starting alteration or discontinuance of shift working otherwise than in accordance

with standing orders.(7) Classification by grades.(8) Withdrawal of any customary concession or privilege or change in usage.(9) Introduction of new rules of discipline, or alteration of existing rules, except in so far

as they are provided in standing orders.(10) Rationalisation, standardisation or improvement of plant or technique, which is

likely to lead to retrenchment of workmen.(11) Any increases 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 occasioned by circumstances over which the employer has no control.

Unfair Labour Practices “Unfair labour practice” means any of the practices specified in the Fifth Schedule.

The Fifth Schedule describer the practice on the part of employer and on the part of employee are unfair labour practice.

This is based on the principle of coercion that employer shall not involved in the affairs of employees trade union by financial help or showing interest.

Similarly, on the other hand employee must not leak any information and do any activities which harm the community of employees.

This Act prohibits unfair labour practice and states that no employer or workman or a trade union, whether registered under the Trade Union Act, 1926 or not, shall commit any unfair labour practice.

If, any person who commits any unfair labour practice shall be punishable with imprisonment up to six months or with fine up to Rs. 1000, or with both.

VI. LAY-OFF AND RETRENCHMENT OF WORKMAN IN PRIVATE SECTOR

• Section 2 (kkk) defines “lay-off” the failure of the employer to provide employment due to shortage of raw material, power etc. but who has not been retrenched.

• Section 2 (oo) defines “retrenchment” as termination of a workman

for any reason whatsoever otherwise than voluntary retirement, reaching age of superannuation, non renewal of contract or termination due to continued ill-health.

• Section 2 (oo) (bb) – provides for termination of the service of a workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein.

VII. CHAPTER VA AND VB OF IDA WITH REFERENCE TO

LAY-OFF, RETRENCHMENT, TRANSFER AND CLOSURE

• Chapter VA applies to industrial establishment - in which less than fifty workmen on an average working day have been employed in the preceding calendar month and which are seasonal in character.

• Section 25C- A workman laid-off under this Chapter is entitled to fifty percent of his basic wages and dearness allowance.

• The workman who has been in continuous service for at least one year (a year being defined as 240 days of actual work) is terminated, covered under chapter VA, the conditions listed below will have to be fulfilled.

• Section 25F- Workman cannot be retrenched unless the employer has complied with – (i) giving one months notice in writing, (ii) paid compensation equivalent to 15 days average pay (for every completed year of continuous service) or any part thereof in excess of six months and (iii) notice in the prescribed manner to the appropriate Government.

CHAPTER V B CONTD.• Chapter VB applies to industrial establishment in which not less

than one hundred workmen were employed on an average per working day for the preceding twelve months.

• Section 25M – Prohibits the employer to lay- off except with the prior permission of the appropriate Government unless it is due to the shortage of power or due to natural calamity.

• Section 25N – No workman to which this chapter applies can be retrenched until the employer (i) has given three months notice in writing with reasons for retrenchment and (ii) prior permission has been obtained from the appropriate Government (‘specified authority”).

• An extremely compelling case has to be made out in the application to the appropriate Government, but even so the Government rarely grants this permission.

VIII. TRANSFER AND CLOSURE

• Section 25FF- provides for transfer of an undertaking , whether by agreement or operation of law, in which case workmen are entitled to compensation as if the workman had been retrenched.

• The transferee of the undertaking is not bound to take the employees.

• The transferor is only bound to compensate the workman as if he is deemed to be retrenched

……. CLOSURE – CHAPTER VB

• Section 25-O provides the procedure for closure.

• An employer intending to close the undertaking has to take at least 90 days’ prior permission of the appropriate Government.

• If the appropriate Government does not communicate within 60 days, permission will be deemed to have been granted.

• On permission being granted, workman will be entitled to receive compensation which shall be equivalent to fifteen days’ average pay for every completed year of service or any part thereof in excess of 6 months.

Understanding the Importance of Knowledge

Knowledge in organizational context.

The difference between the ordinary and the extraordinary handling of any task, process or interaction – between employees with customers or with any other stakeholder of the firm – has always been the explicit and tacit usage of knowledge by the person guiding the transaction

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• The application of knowledge and the practice of knowledge management as a precise science can create wonderful results in any organizational context.

•Managing knowledge is becoming a business imperative for those corporation who want to protect their present market share, build future opportunity share and stay ahead of competition.

•Knowledge will also be the key driver for those firms who are keen to innovate and change the rules of the game.

Understanding the Importance of Knowledge

From Knowledge to Knowledge Management

• Organization need to know what their knowledge assts are.

• Knowledge assets are nothing but knowledge about,1.Markets2.Products3.Processes4.Technologies

•The key processes associated with these assets are:1.Knowledge generation2.Knowledge storage3.Knowledge utilization Continue…

From Knowledge to Knowledge Management

• Knowledge generation can be seen to broadly comprise: Knowledge acquisition Knowledge synthesis Knowledge creation • Knowledge Acquisition is quite simple the process of acquiring knowledge that is available somewhere. For an organization it might, Knowledge for existing documents. Capturing tacit knowledge of its people into its repositories. Identifying external sources of either process/ technology experts. Or market intelligence.

So, this knowledge can be purchased. Continue…

From Knowledge to Knowledge Management

• Knowledge synthesis: It is the process of putting either different kinds of information or. People together to be able to come up with new patterns and ideas.

• Knowledge Storage• Knowledge once acquired needs to be preserved. • Knowledge storage entails the following: Determining the knowledge typology relevant to the organization. Knowledge capture Maintaining the knowledge bases Creating knowledge maps Continue…

From Knowledge to Knowledge Management

• Knowledge Typology

Before any organization can start a knowledge initiative, it becomes important to understand the kinds of knowledge that it uses and also those that it needs. Numerous classification of knowledge are available. The most basic demarcation is classifying knowledge as being ‘’tacit’ or ‘explicit’

1.Tacit knowledge is experiential and localized in people’s heads.2.Explicit knowledge on the other hand is available in some documented form. Continue…

From Knowledge to Knowledge Management

• Knowledge Utilization The fundamental premise of knowledge management is that enterprises rely largely on the tacit knowledge of a few individuals for running a business.

Knowledge management should endeavor ensure that the advantage of this knowledge permeates across the organization instead of available in isolated pockets.

Knowledge utilization, therefore, can be achieved through knowledge dissemination and sharing, using it as best as possible and ploughing back the learning to further enrich the knowledge base. Continue…

Knowledge Transfer

Tacit/ individual Explicit/ individual

Explicit/GroupTacit/ Group

Articulation

Intermalization

Co

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inatio

n

Knowledge and the organization

• Knowledge creation and SECI model There are two types of knowledge: Tacit and Explicit.

Tacit knowledge is personal, context specific, and therefore hard to formalize and communicate.Tacit knowledge is experience- based knowledge that cannot be expressed in words, sentences, numbers and formulae. It is very context specific.Tacit knowledge includes beliefs, images, intuition, mental methods and technical skills – like the expertise of the craftsman.Explicit of codified knowledge refers to knowledge that is transmittable in a formal systematic language

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Knowledge and the organization

• Human knowledge is created and expanded through social interactions between tacit and explicit knowledge . We call this interaction knowledge conversion.

• We have fours modes of knowledge conversion.1.Socialization2.Externalization3.Combination and 4.Internalization

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SECI MODEL

•Socialization: Which is the conversion from tacit to tacit, is a process of creating tacit knowledge such as shared mental models and technical skills through shared experiences. The key to acquiring tacit knowledge is experiencing, particularly some form of shared experience.For example apprentices work with their masters and learn craftsmanship, not through language but through observation, imitation and practice.In the business setting on the job training uses basically the same principle.

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SECI MODEL

•Externalization:

Which is conversion from tacit to explicit knowledge. This is the process of articulating tacit knowledge into explicit concepts or languages.This mode is important for the entire knowledge-creation process in that tacit knowledge becomes explicit, often through metaphors, analogies, concepts and models.

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SECI MODEL

•Combination:

Which is combination of explicit with explicit knowledge. Combination and systemization of concepts through symbols such as language or figures is achieved through media such as documents, meetings, telephone conversation or computerized communication. Information technology can be very effectively used to enhance combination. The recent progress in knowledge management has largely been made by facilitating this conversion mode.

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•Internalization:

Which is the conversion process from explicit into tacit knowledge.Internalization is the process of embodying explicit knowledge, and it is closely related to learning by doing.The new knowledge created through combination is internalized into individual tacit knowledge again.

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SECI MODEL

Organizational knowledge creation is a continuous and dynamic process of interaction between tacit and explicit knowledge.

Not many individual can share their knowledge freely. However to create new knowledge, it is necessary to

transcend the personal sphere. Teams need to articulate new knowledge and to combine it

with existing knowledge so that they can share it with other groups or departments to create organizational knowledge.

Thus, knowledge creation is process of self-transcendence, and organizations are place for the creation of knowledge.

Organizations need to support individuals, rather than control them, because they are the source of tacit knowledge.

Knowledge Creation

Knowledge Vision and Strategy• The knowledge creation process is supported in several

ways.• Knowledge vision: We need to design the vision, strategy, structure, system

and leadership to promote the process continuously. Visions are image that challenge us to transcend our own

boundaries.• Knowledge Strategy: From the view point of knowledge creation, the essence of

strategy lies in developing the organizational capability to acquire, create, accumulate, and exploit knowledge.

The most critical elements of corporate strategy is to conceptualize a vision about it into a management system for implementation.

HR IN INSTITUTIONALIZING KNOWLEDGE MANAGEMENT IN AN

ORGANIZATION

HR has a pivotal and a key role in the development of the knowledge-based

enterprise HR processes such as – •corporate education, •performance management •nurturing (sharing, doing and caring) culture –•Focus on strengthening collaborative team effort to leverage collective knowledge of the enterprise.•Recruitment, training, skill and competency development.•New HRM roles are those of human capital steward, knowledge facilitator, relationship builder, and rapid deployment specialist.

• Talent management, which is the domain of HR and knowledge management are closely interrelated.

• Talent Management focuses at individual level -- recruitment, training, skill and competency development and career planning of an individual.

• Knowledge management focuses on people at collective level, how to leverage the collective knowledge of the enterprise, through Mentoring and knowledge sharing and collaborative team working.

HR PROCESSES ALIGNED TO STRENGTHEN KNOWLEDGE

MANAGEMENT.

• INDUCTION STAGE

New executives undergo coaching and mentoring systems which are meant to transfer knowledge, they attain exposure during training given to a variety of units and geographical locations which helps knowledge awareness / transfer.

"Mentorship" The role of the mentor in the later period would

be to challenge the executive to look beyond the obvious, look for past learning and base decisions on a more informed platform .

JOB ROTATIONS

• Well-planned job (role) rotations across geographical locations and businesses in a firm help not only people development, but also provide an important vehicle for transfer of knowledge and best practices.

• Though an organization cannot obviously depend on this only as the main source of knowledge transfer

NETWORKED ORGANIZATION• people playing multiple roles, being part of

multiple teams – • vertical team (Business / category) & Horizontal

team (function / knowledge domain), is the way forward to effectively "leverage collective knowledge" of an enterprise.

• HR should play a key role in developing such a networked organization, through sponsorship and or facilitation of knowledge communities (teams), cutting across formal organizational bounds.

"Leverage Collective Knowledge"

• What does leveraging "collective knowledge" involve?

• Working in collaborative teams, capturing and sharing knowledge and delivering business excellence.

• Developing and sharing "best practices."

• Faster replication of innovations through faster movement of knowledge through the organization.

• Acquisition and sharing of "new knowledge."

• Creating an environment that is comfortable to the idea of openness, knowledge sharing, risk of failure as well as rewards for success.

• Managing organizational learning

KNOWLEDGE COMMUNITIES

• The owners and users of the knowledge, should play an active role in developing suitable course material for the functional and business specific courses.

TRAINING

• A Company's training program needs to focus on functional and business specific skill development programs as well as competency development focused programs.

• company training programs --- like creative workshops, team excellence workshops, process improvement workouts are a combination of learning initiatives and knowledge initiatives which converge with training initiatives

E- Learning

• Online learning is made available through company web sites (Intranets), and even through CD-ROMs. It allows the learner to enroll into courses or programs of their choice and acquire knowledge at their own pace at the place of their choice.

CULTURE CHANGESTEPS IMPLEMENTED BY HR TO FACILITATE CULTURE CHANGE:• “The best KM practitioners reward employees for learning, sharing and

collaborating. • HR could implement Institute Team awards for a better sharing culture. Xerox: “Eureka Hall of Fame" • Performance Development Planning (PDP); Learning from experience Team commitment Developing others

• Develop a mechanism to communicate effectively.

• Collaborative effort and knowledge.

• Make KM part of the Company training modules.

• Hold visible knowledge sharing events.

BARRIERS FOR IMPLEMENTING KNOWLEDGE MANAGEMENT

• Conceptual / mindset related issues

• Operational issues

CONCEPTUAL / MINDSET RELATED ISSUES

• We need to create a culture of sharing. Often knowledge is seen as power and in a competitive environment there could be a tendency to hoard knowledge.

“Hoarding of knowledge to gain power"

"sharing of knowledge to gain power."

OPERATIONAL ISSUES

• The typical executive is already hard pressed for time. He has no time for an additional initiative, if it is seen as a diversion from focus on immediate results. So Knowledge Management should not be seen as a separate initiative, but should be integrated into current workflow as a more effective way to achieve business results.

The role of HR in institutionalizing KM in an

organization

• Focus on strengthening collaborative team effort to leverage collective knowledge of the enterprise.

• Corporate Education.• Performance Management and nurturing (sharing, doing and caring)

culture.• Talent management. • Recruitment, training, skill and competency development.• New HRM roles are those of human capital steward, knowledge

facilitator, relationship builder, and rapid deployment specialist.

• Human capital steward– Creates an environment and culture in which employees voluntarily

contribute skills, ideas, and energy– Human capital is not “owned” by organization

• Knowledge facilitator– Procures necessary employee knowledge and skill sets that allow

information to be acquired, developed, and disseminated– Provides a competitive advantage – Must be part of strategically designed employee development plan

New HRM Roles

• Relationship builder– Develops structure, work practices, and culture that allow individuals to

work together– Develops networks that focus on strategic objectives

• Rapid deployment specialist– Creates fluid and adaptable structure and systems– Global, knowledge-based economy mandates flexibility and culture that

embraces change

How then do HR processes and practices impact the knowledge

sharing in a firm?• Job rotations

• Networked organization

• Training

• Knowledge communities (Teams)

• E- Learning

• Culture change

How do we create a knowledge sharing culture?

Realign incentive and reward program:• “The best KM practitioners reward employees for learning, sharing and collaborating.

Step HR could implement are: • Institute Team awards Xerox: “Eureka Hall of Fame" Hewlett Packard Consulting: in their "vision" statement: "Our consultants feel and act as if they have the knowledge of the entire organization at

their fingertips when they consult with customers. We will recognize those consultants that share and those that leverage other's knowledge and experience as most valuable members of the HP team."

HR should be the catalyst for culture change

• HR will also be a key facilitator in implementing a companywide communication of value behaviours.

• Team excellence workshops and process improvement (speed, simplicity and excellence) workouts are among the key initiatives that will soon be launched by HR to support the culture change.

• These culture change initiatives will strongly support our efforts to become a

stronger knowledge driven company, committed to business excellence.

• Develop "Knowledge Pull“.

Some of the steps that HR could take for cultural change :

• Performance Development Planning (PDP); 1.Learning from experience 2.Team commitment 3.Developing others

• Develop a mechanism to communicate effectively.

• Collaborative effort and knowledge.

• Make KM part of the Company training modules.

• Hold visible knowledge sharing events.

Conclusion:• Transformation into knowledge driven organization• HR has a key role to play in nurturing and strengthening knowledge management

through "learning initiatives" and "culture change initiatives.“• HR is best placed to play the role of an effective facilitator, and give positive

reinforcements for Knowledge Management .• Knowledge management has already been embraced as a source of solutions to the

problems of today’s business.

IQ EQ AND SQ FOR LEADERSHIP

IQ EQ SQ

Intelligent Quotient

The ability to…• Perceive and understand information• Reason with it and arrive at conclusions• Imagine possibilities• Use intuition• Make judgements• Solve problems and make decisions

Measurement of IQ

• Bell Curve of IQ

Some Facts about IQ

• 95 % People have IQ scores between 90 to 110 i.e avarage

• 2.5% People have IQ scores very high above 130 i.e. super intelligent

• 2.5 % People have IQ scores less than 70 i.e. mentally retarded, impaired, deficient

• 0.0005 % People are near genius or genius (above 140) or completely retarded (below 60).

Some views on IQ‘Great vision emerges when a powerful mind, working long and hard on massive amounts of information, is able to see (or recognize in suggestions from others) interesting patterns and new possibilities.’John Kotter (1988)

‘The danger of a high intellect is that it can veer into over-intellectualizing a business problem that is essentially very simple. People with lots of nous but average intelligence can be enormously successful in running large companies.’

Gerry Robinson, former CEO of Granada (Tait, 1996)

LOOKING FORWARD

• Is IQ the best way to predict what we’ll accomplish in life?• We have been conditioned to believe that IQ is the best measure• of human potential. In the past 10 years, however, researchers have• found that this isn't necessarily the case, that in actuality, your• Emotional intelligence Quotient (EQ) might be a greater predictor of• success.• The fact which current studies clearly point to is that IQ does not• completely measure our intelligence. IQ is a measure of only a part of• our overall intelligence. For overall development, we need to look at• EQ and SQ. We have always nurtured our IQ but unfortunately left• out our EQ and SQ. This has created an imbalance within us and• made us very monotonic. We not only carry IQ with us, but also EQ• and SQ, but we often lack providing them due attention.•

THE HIGHER DIMENSION –EMOTIONAL QUOTIENT (EQ)

The ability to…• Understand the needs and feelings of oneself

and other people• Manage one’s own feelings• Respond to others in appropriate ways• In the mid-1990’s, research done by many

neuroscientists and Psychologists showed that EQ is a basic requirement for the effective use of IQ

NEED FOR EQ

• . According to John Kotter of Harvard Business School: “Because of the furious pace of change in business today, difficulty in managing relationships sabotage more business than anything else - it is not a question of strategy that gets us into trouble; it is a question of emotions!!”

IMPROVING EQ

• DISCOVERING THE 90/10 PRINCIPLE• What is this principle? • 10% of life is made up of what happens to you. 90% of life is

decided by how you react.• Here are some ways to apply the 90/10 principle.• If someone says something negative about you, don't be a

sponge. Let the attack roll off like water on glass. You don't let the negative comment affect you!

• React properly and it will not ruin your day. A wrong reaction could result in losing a friend, being fired, getting stressed out etc.

Some views on EQ‘Emotional intelligence is much more powerful than IQ in determining who emerges as a leader. IQ is a threshold competence. You need it, but it doesn’t make you a star. Emotional intelligence can.

Warren Bennis (1994)

‘High IQ makes you a good English professor; addinghigh EQ makes you chairman of the EnglishDepartment…High IQ makes you a brilliant fiscalanalyst; adding high EQ makes you CEO.’

Daniel Goleman (1997

MOVING TOWARDS THE BEST

• The last and most important quotient, SQ, is the one that differentiates us from animals

• “Few of us can do great things, but all of us can do small things with great love.”

» Mother Teresa

Spiritual Intelligence

The ability to…• Understand that human beings have an

animating need for meaning, value and a sense of worth in what they seek and do

• Respond to that need in appropriate ways

DEFINITION OF SQ

• “SQ is the intelligence with which we ask fundamental questions and with which we reframe our answers.”

Use of Spiritual Intelligence• Without SQ, both IQ and EQ are barren• What animates us? Spirit• A growing need and awareness of SQ• Spiritual leadership is about satisfying the need• Wealth and happiness• Significant scholars: Fry, Zohar and Marshall,

Fairholm, Frankl• A developing consensus• Inspiration comes from leadership that provides

meaning, purpose and value

Some views on SQ‘He who has a why to live can bear with almost any how.’

Nietzsche (Allport, 1983)

‘When people see their jobs as transcending their own personal needs (by improving the quality of life forothers, for example, or by contributing to society)… the impact can be extremely powerful.’

Kets de Vries and Florent-Treacy (1999)

The Other Intelligence

• Moral IntelligenceThe ability to differentiate right from wrong according to universal moral principles.

Good’ leadership in the moral sense is not a ‘rare talent’: ‘We are all “hard-wired” to be moral’.

Lennick and Kiel (2005)

Behavioural Intelligence (Skills)

• Behaving or acting appropriately according to situational needs

• Verbal communication – writing, speaking and active listening

• Body language• Other physical behaviour

The wise Leader‘[Wisdom is] the extent to which [a leader] uses successful intelligence [memory, analytical abilities and creativity] as moderated by values to…seek to reach a common good…by balancing intrapersonal (one’s own),interpersonal (others’), and extrapersonal (organizat-ional, institutional, spiritual) interests…over the short and long term, to…adapt to, shape, and select environments.

Robert Sternberg (2002)

Conclusion

• Remember the Slogan

‘Engage the mind, touch the heart, feed the soul’.

THANK YOU