Slide-Industrial Disputes Act

INDUSTRIAL DISPUTES

ACT, 1947

A K BASU

INDUSTRIAL LAWS

Are they necessary ?

Concept of Equity

Concept of Fairness

Concept of Social Benefit

Types of Laws

Legislated

Judge Made

Why should you study them ?

OBJECTIVE

An act to make provision for the investigation and settlement of industrial disputes and for certain other purposes

APPLICABILITY

To the whole of India

Enforced with effect from 1 April 1947

THE INDUSTRIAL DISPUTES ACT, 1947

INDUSTRY [Section 2 j ]

Any business, trade, undertaking, manufacture or calling of employers, and includes

Any calling service, employment, handicraft or industrial occupation or avocation of workmen

SALIENT DEFINITIONS

INDUSTRIAL DISPUTE [ Section 2 k ]

Any dispute or difference between

Employers & Employers

Employers & Workmen

Workmen & Workmen

Which is connected with

The employment or non-employment

Terms of employment

Conditions of Labour

Of any person

SALIENT DEFINITIONS (contd)

EMPLOYER [ Section 2 g ]

Industry carried on by or under authority of any department of Central or State Government, it is authority specified or Head of the Department where no authority is specified

Industry carried on by or on behalf of a local authority, the Chief Executive Officer


WORKMAN [ Section 2 s ]

Any person (including an apprentice) employed in any industry to do work which is

(i) Manual

(ii) Unskilled

(iii) Skilled

(iv) Technical

(v) Operational

(vi) Clerical

(vii) Supervisory


WORKMAN [ Section 2 s ]

For hire or reward

Terms expressed or implied

Also includes any person who is dismissed, discharged or retrenched regarding which an Industrial Dispute is in existence


WORKMAN [Section 2 s ]

Does not include

Person employed in Army, Navy or Air Force

Person employed in Police or any Officer / Employee of a Prison

Person employed mainly in managerial or administrative capacity

Person being employed in supervisory capacity draws wages exceeding Rs.10,000/- per month or performs function mainly of a managerial nature


INDUSTRIAL DISPUTE [ Sections 2k & 2A ]

A dispute or difference between an employer & an individual workman regarding the discharge, dismissal, retrenchment or termination of the workman will be an Industrial Dispute regardless or whether any Union or any other Workman is a party to the dispute

Any dispute or difference between Employers & Employers, between Employers & Workmen or between Workmen & Workmen regarding employment or conditions of labour


WAGES [ Section 2 rr ]

All remuneration capable of being expressed in money which would be payable as per terms of employment to a workman in respect of his employment or of work done in such employment

Includes all allowances and DA

Includes value of house accommodation, supply of light, water, medical attendance, any amenity, any service, concessional supply of food-grains and other articles

Includes travelling concession

Commission on sales or business promotion


WAGES DOES NOT INCLUDE

Any bonus

Employer’s contribution paid or payable to Pension Fund or PF

Gratuity

SETTLEMENT [ Section 2 p ]

Arrived at in course of conciliation

Any bipartite written agreement between employer & workmen in prescribed format, which has been also sent to Conciliation Officer and Secretary, Dept. of Labour of State Government or Central Government


STRIKE

• Cessation of work by a body of persons in combination or a concerted refusal to continue to work or to accept employment

• Mass absenteeism

• Sit – down strike

• Leaving workplace en masse

• Go slow ?

LOCK – OUT [ Section 2 l ]

• Temporary closing of a place of employment or suspension of work, or refusal by employer to continue to employ any number of persons otherwise employed by him

• Conditions for lock – out ?

• Is part lock – out possible ?

RETRENCHMENT [Sec 2oo]

• Termination for any reason whatsoever,otherwise than as punishment

• Doesnot include - voluntary retirement - retirement on superannuation - termination of fixed-time contracts - termination for continued ill health

INTERNAL TO THE INDUSTRIAL ESTABLISHMENT

Works Committee (estb. having 100 workmen)

Joint Body

Workmen representatives to be selected / elected

To secure / promote amity and good relations by resolving differences

Works Grievance Settlement Authority for

Settlement of Individual Dispute

VARIOUS AUTHORITIES FOR SETTLEMENT OF INDUSTRIAL DISPUTES

EXTERNAL AGENCIES

Conciliation Officers

Mediates in case industrial dispute exists or is apprehended

Signs tripartite settlement

If no settlement, submits failure report to Government with recommendation to refer to tribunal or not

Has no judicial powers or authority for enforcement or issue of order


BOARD OF CONCILIATION

Parties can individually or jointly apply for conciliation

Government can refer directly

COURTS OF ENQUIRY

For inquiring into any matter relevant to an industrial dispute


LABOUR COURTS

Adjudicates, on reference by the Government, on any dispute relating to matters specified in 2nd schedule

Adjudicates, on receiving complaint, whether conditions of service have been changed in contravention of the Act during pendency of proceedings [Section 33]

Determines recovery of money due by a workman from an employer (Sec 33 C)

Have powers similar to a civil court


TRIBUNALS

Adjudicates on any matter in the 2nd or 3rd schedules on reference

Judicial powers similar to Labour Courts

NATIONAL TRIBUNALS

To adjudicate on disputes of national importance or of such nature that industries in more than one state are likely to be involved


ARBITRATION

Voluntary reference by written agreement between employer and workmen

Government to issue notification of reference on receiving copy of agreement

Others not party to the agreement will be given opportunity to present their case

Prohibition of strike/lock-out during arbitration


BIPARTITE SETTLEMENT [Section 18 { 1 } ]

Binding on the parties to the settlement

TRIPARTITE SETTLEMENT [Section 18 { 3} ]

Arrived at in conciliation

Binding on all parties to the industrial dispute

All other parties summoned or not summoned

All future employees for the period of settlement

SETTLEMENT OF DISPUTES

PERIOD OF OPERATION [ Section 19 ]

From the date agreed upon or, in its absence, from the date of signing Memorandum of Settlement

Shall continue in operation after date of expiry until 2 months after giving notice of termination by one party to the other

SETTLEMENT OF DISPUTES (contd)

On failure of conciliation, Government may or may not refer dispute for adjudication

Labour Court or Tribunal is a judicial body

Power to summon persons and inspect documents

Power to appoint specialists as assessors to help it

Power to order reinstatement or give lesser punishment

Power to re-open enquiry proceedings and adduce fresh evidence

Award is applicable on expiry of 30 days from its publication in official notification

ADJUDICATION

Employer can move the High Court or Supreme Court against an award of Labour Court / Tribunal to the

Single Bench of High Court

Division Bench of High Court

Supreme Court

Full wages payable to workman during pendency of proceedings in case workman is not employed elsewhere [Section 17 B ]

RIGHT OF REDRESSAL

Notice of change to be given to workman for any change in service conditions as specified in Fourth Schedule

Notice to be given 21 days before making such change [ 42 days in West Bengal ]

No Notice required if

Change is a result of any settlement / award

Workman are covered by Civil Service, Defence or Railway Rules

Power to exempt by appropriate govern –

ment if public interest warrants

CHANGE IN SERVICE CONDITIONS (SEC 9A)

DEFINITION

Failure, refusal or inability or employer to employ one or more workman on account of

Shortage of coal power or raw materials

Accumulation of stocks

Breakdown of machinery

Natural Calamity

Any other connected reason

LAY OFF [ Section 2 kkk ]

LAY OFF CONPENSATION [Section 25C] :

50% of Basic wages and DA upto 45 days. Thereafter, can be retrenched

NO COMPENSATION IF [Section 25E] :

Workman refuses to accept redeployment at same wages

Workman does not present himself for work every day

Such lay off is due to strike or go slow in another part of establishment

LAY OFF (contd)

LAY OFF PROVISIONS DO NOT APPLY TO :

Seasonal establishment

Establishments in which work is performed only intermittently

Establishments in which less than 50 workmen have been employed in preceding month

LAY OFF (contd)

CHAPTER V-B RESTRICTIONS

Applicable to industrial establishment in which 100 or more workmen were employed in preceding 12 months on an average per working day [ 50 IN CASE OF West Bengal ].

Lay off can only be made after obtaining prior permission of Government, except in cases of

Shortage of power

Natural Calamity

Fire / Flood

Excess of inflammable Gas

Explosion

LAY OFF (contd)

CONDITIONS PRECEDENT TO RETRENCHMENT

Workman has been given 1 month’s notice, or wages in lieu

Compensation equal to 15 days average pay for every year of continuous service

PROCEDURE

Either By

Agreement between employer & workmen, or

Last person employed in a category - LIFO

RETRENCHMENT

RE-EMPLOYMENT

In case of fresh recruitment, retrenched employee to get preference

RETRENCHMENT (contd)

RESTRICTIONS OF RETRENCHMENT IN CHAPTER VB

Applicable to establishment employing 100 or more workmen - in case of West Bengal 50 or more

NO RETRENCHMENT UNLESS

Workmen has been given 3 month’s notice in writing indicating reasons for retrenchment, and period of notice has expired or the workmen has been paid wages in lieu;

Prior permission of the appropriate Government has been obtained on an application made in this behalf. Copy of application to be served on the workmen concerned


Appropriate Government / Specified Authority to give reasonable opportunity to the employer of being heard in the matter, grant permission or refuse in writing

If Order of Government / Specified Authority is not received with the period of 60 days from the date of application, deemed permission is granted

In case of issue of Order, binding on all parties concerned and will remain in force for one year


CLOSURE / TRANSFER DEFINITION

Permanent closing down of a place of employment or part thereof

CONDITIONS PRECEDENT TO CLOSURE

Prior permission of Government necessary for industrial establishments engaging 100 or more workmen in preceding 12 months [ 50 workmen in case of West Bengal ]

60 days notice for industrial establishments engaging 50 to 99 workmen

COMPENSATION

Same as retrenchment compensation

Average pay for 3 months in cases of closure due to unavoidable circumstances

CLOSURE / TRANSFER (contd)

UNAVOIDABLE CIRCUMSTANCES DOES NOT INCLUDE

Financial difficulties

Accumulation of undisposed stocks

Expiry of lease or licence

For Mines, Exhaustion of Minerals

TRANSFER OR OWNERSHIP

Notice & Compensation same as retrenchment if service is interrupted

RESTRICTIONS OF CLOSURE OF CHAPTER VB

Applicable to establishment employing 100 or more workmen - in case of West Bengal 50 or more

Employer to seek prior permission of atleast 90 days in advance of the date of intended closure from Government with copy served on representatives of workmen

Same procedure of Retrenchment to be followed

These Clauses will not apply to any undertaking set up for construction of building, bridges, roads, canals, dams or for other construction work

CLOSURE (contd)

STRIKES /LOCK OUT

PUBLIC UTILITY SERVICE

Railways or any air transport service

Major port or dock

Any section of an industrial establishment on whose working the safety of establishment depends

Postal, Telegraph, Telephone services

Industry supplying power, light or water

Public conservancy or sanitation

Any industry specified in 1st schedule

PROHIBITION OF STRIKES /LOCK-OUTS

In public utility services, without giving due notice to the other party of at least 14 days or during pendency of conciliation proceedings and 7 days after conclusion of proceedings

To send copy of notice to appropriate authority

STRIKES /LOCK OUT (contd)

For any industrial establishment

During pendency of conciliation proceedings before a Board and 7 days after conclusion

During pendency of proceedings before an arbitrator, Labour Court, Tribunal or National Tribunal & 2 months after conclusion

During period of settlement / award for any matter covered by it

What are illegal strikes ?


ILLEGAL STRIKES / LOCK-OUTS

Not illegal if it was in existence at time of reference of dispute unless specially prohibited

Lock-out / Strike declared as a consequence of illegal Strike / Lock-out is not illegal

Penalties


APPLICABILITY OF THE ACT ON INDIVIDUAL WORKMEN

Workmen can raise disputes individually U/S 2A

In an industrial establishment in which 50 or more workmen are employed, the employer is obligated to set up a Grievances Settlement Authority for the settlement of Industrial Dispute connected with an individual workman (Sec 9C)

INDIVIDUAL WORKMAN

APPLICABILITY OF THE ACT ON INDIVIDUAL WORKMEN (cont..)

If an Industrial Dispute related to discharge or dismissal has been referred to Labour Court, Tribunal or National Tribunal for adjudication, if the authority is satisfied that order of discharge /dismissal was not justified it may set aside such order and direct reinstatement of the workman on such terms and condition as it thinks fit, or give such other relief including less punishment as the circumstances of the case may require [ Section 11A ]

NOTE :

The authority shall rely on the materials on record and shall not take any fresh evidence in the matter

INDIVIDUAL WORKMAN (contd)

APPLICABILITY OF THE ACT ON INDIVIDUAL WORKMEN (cont..)

Where Labour Court, Tribunal or National Tribunal directs reinstatement or workmen and employer refers appeal against such order in High Court / Supreme Court, then the employer shall be liable to pay during the pendency of such proceedings full wages last drawn by the workman, if the workman has not been employed in any establishment during such period. In case the workman has been engaged, then High Court / Supreme Court may order that no wages be paid to him provided he receives adequate remuneration in his alternative job (Sec 17B)

INDIVIDUAL WORKMAN (contd)

CONDITIONS OF SERVICES TO REMAIN UNCHANGED (SEC 33) DURING PENDENCY OF ANY PROCEEDINGS

EMPLOYER SHALL NOT

Regarding any matter connected with the dispute alter the conditions of service, or discharge or punish by dismissal, any workman connected with the dispute without prior permission from the concerned authority before whom proceeding is pending [ Section 33 {1} ]

Regarding any matter not connected with the dispute, alter conditions of service in accordance with Standing Orders or terms of contract, or discharge /punish workman not connected with the dispute without paying one month’s wages for discharge/ dismissal and applying for post facto approval [ Section 33 {2} ]

CONDITIONS OF SERVICES TO REMAIN UNCHANGED (SEC 33)

PENDENCY OF PROCEEDINGS

Conciliation proceeding commences on date of receipt of notice of Strike/ Lock-out, or when Order is made referring dispute to Board

Concludes when settlement is arrived at or when failure report is received by Government or when a reference is made to Court, etc. during pendency

Proceedings before Arbitrator, Labour Court, Tribunal, etc. commences on date of reference & concludes when award becomes enforceable after 30 days of publication

CONDITIONS OF SERVICES TO REMAIN UNCHANGED (SEC 33)

PROTECTED WORKMAN

Office Bearer or Executive Member of a registered Trade Union recognised as “Protected Workman” as per prescribed procedure [Section 33 {3} & {4} and Rule 61 ]

No employer shall take any action against a protected workman concerned in a dispute which is pending before an Authority

UNFAIR LABOUR PRACTICES Any practice specified in Fifth Schedule

New Chapter V-C inserted with effected from 21 August 1984

Prohibition of Unfair Labour Practice by employer, workman or Trade Union, whether registered or not

Penalty

Imprisonment for 6 months

Fine upto Rs. 1000/- or both

LEGAL RESTRICTIONS ON DISMISSAL

Section 33 of Industrial Disputes Act, 1947

Section 11A of I.D. Act, 1947

Section 17 B of I.D. Act, 1947

Section 2 A of I.D Act 1947

Termination of Contract and Retrenchment

TYPES OF EMPLOYMENT

PROBATIONERS

For stipulated period

Termination at end of period not retrenchment

Extension to be specified in writing

PERMANENT

Falls within the ambit of retrenchment in case of termination except dismissal, continued ill health or service time bound contract

TYPES OF EMPLOYMENT (contd)

CONCEPT OF CONTINUOUS SERVICES

Industrial Dispute Act [Section 25B ]

Payment of Gratuity Act [Section 2A ]

CASUAL / TEMPORARY / BADLI

Appointment for specified period to be clearly stated

Break in service

APPRENTICES DIFFERENCE WITH MASTER-SERVANT

CONTRACTS

COMPANY APPRENTICES - THE STATUS IN LAW

Industrial Dispute Act

Provident Funds Act

ESI Act

Factories Act

MASTER SERVANT RELATIONSHIP

Power of selection

Payment of wages or other remuneration

Right of superintendence & control

Power of suspension / dismissal

APPRENTICES ACT, 1961

Documents

Slide-Industrial Disputes Act