Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
(Law)
21-11-2015
Workman
M. Mahindra Prabu
Asst. Professor (Law)
TNNLS
S. 2(s)
Any person (including an apprentice)
employed in any industry to do any
Manual
Unskilled
Skilled
Technical
Operational
Clerical or Supervisory work
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Person
Person employed in any industry
any such person who has been dismissed,
discharged or retrenched in connection with,
or as a consequence of, that dispute, or whose
dismissal, discharge or retrenchment has led
to that dispute
Employed
Engaged or Occupied
Master or Servant Relationship
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test.
All other relevant factors and circumstances
are also required to be considered including
the terms and conditions of contract.
The court also emphasized the importance of
an integrated approach in such matters.
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Teacher: If Workman?
Miss A. Sundarmbal v. Govt of Goa, Daman &
Diu, (1989) 1 LLJ 62 (SC)
Amar Jyoti school v. Govt of NCT, (2009) 122
FLR 354
Imparting of Education is in the nature of a
mission or noble vocation
Trainees: If Workman?
Shri Vijay Kumar v. Presiding Judge, Labour
Court, (1983) 1 LLJ 30
Never offered employment after training, the
mere fact that wage slip mentioned that
petitioner has been confirmed will not make him
a confirmed employee. In order to become
workmen, there should be a separate order
confirming him on successful completion of
training
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with
M. Mahindra Prabu
Asst. Professor (Law)
TNNLS
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Works Committee
Conciliation Officers
Boards of Conciliation
Court of Inquiry
Labour Court
Industrial Tribunal
National Tribunal
Arbitration
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Non-Statutory Machineries
Code of Discipline
Joint Management Council
Tripartite Machinery
Joint Consultative Machinery
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Works Committee
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Why ?
To deal with day to day frictions between
management and workmen
Where ?
100 or more Workman
Constitution
Chairman
Vice Chairman
Secretary
Joint Secretary
Other Members
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Election
Trade Union
Role of Majority
Constituencies
Right to Know Employer (in writing)
Nominated Members?
Role of Assistant Labour Commissioner
Election
Union of India v. MTSSD Workers Union,
AIR 1988 SC 633
A) Where there is a Reg. TU having more than 50%
membership members of the works committee
will be elected without distribution of any
constituencies
B) If in an industry no TU regd. represents more
than 50% of workman, election will be held
between two i.e. Members of Reg TUs v. Nonmembers of TUs
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Functions
To reduce friction
Collective Bargaining?
Conditions of Service?
Decision
Award
Not an
Agreement
Compromise
Arbitrament
Not
Binding
Enforceable
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Assessment
Political Based TUs: Considers WC as Rivals
Division: [TU & Non TU]: Weakens Workmen
Strength
Non-Discussion No Bar to reference by the
Govt. [Decisions of Tribunals & Courts]
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GRM
20 or more
Equal representation
Members shall not exceed SIX
Women representation
Chairman shall be selected on rotational
basis
Conciliation
Persuasive Process
It a process by which a 3rd Party persuades
disputants to come to an equitable adjustment
of claims.
The 3rd Party is not himself a decision maker,
he who helps the disputants through
persuasion to amicably adjust their claims.
The Ultimate decision is of the disputants
themselves.
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Constitution
Conciliation Officer:
S.4
App. Govt
Either Permanently or for a limited period
BoC
S. 10(1)(a)
Ad hoc basis
Independent Chairman and one or two nominees
respectively of employers and workmen
Quorum 2/3 or 3/5
Proceedings Public In Camera
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Powers of BoC
Judicial Capacity
Judicial Proceeding u/s 193, 228 of IPC & s
345,346 & 348 of CrPC
Powers of Civil Court
More powers than C.O
Board can accept evidence
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BoC - Timelimit
Within 2 months or
Shorter time as fixed by the app. govt.
Time limit can be extended either by app.
govt. or by all parties to the dispute [S.13(5)]
Pendency of Conciliation Proceedings
S. 22(1) (d); 22(2) (d) and 33
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Settlement - CO
Must be in writing
Must be signed by the parties
Must be in the prescribed form
Termination agreed period or 6 months from
the date of signing until the expiry of 2 months
from the date of termination notice in writing
BoC Publication of Settlement within 30 days
from the date of receipt by app. govt. [S. 17(1)]
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Selection of Arbitrator
Any person
By Parties
Even Number then appointment of Umpire
must
Award of Umpire is final and shall prevail if
other arbitrators are equally divided
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Arbitration Agreement
Assignment Qs
Whether the High Court has power of
superintendence over voluntary arbitrators
under Art. 226?
Whether an appeal would lie u/A 136 of the
Constitution from an arbitration award u/s
10A of ID Act?
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S. 10 (1) Reference
Reference to BoC and CoI:
Where the appropriate government is of opinion
that any industrial dispute exists or is apprehended,
it may at any time, by order in writing refer the dispute to a Board for promoting a
settlement thereof; or [S.10(1)(a)]
(b) refer any matter appearing to be connected
with or relevant to the dispute to a court for
inquiry; or [S.10(1)(b)]
Reference to LC & IT
refer the dispute or any matter appearing to be
connected with, or relevant to, the dispute, if it
relates to any matter specified in the Second
Schedule, to a Labor Court for adjudication; or
[S.10(1)(c)]
refer the dispute or any matter appearing to be
connected with, or relevant to, the dispute ,
whether it relates to any matter specified in the
Second Schedule or the Third Schedule, to a
Tribunal for adjudication [S.10(1)(d)]
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Qualification LC Judges
He is or has been
Judge of a HC or
DJ or ADJ (not less than 3 yrs) or
Any Judicial office (not less than 7 yrs) or
Presiding Off. of LC (not less than 5 yrs) or
Deputy Chief labour Comm. (Central) or Joint
Comm. of State labour dept having degree in law
& 7yr experience in Lab. Dept including 3 yr exp
as conciliation officer or
Officer of Indian legal Service in Grade III with 3
yrs experience in that grade
Award
Duty of the LC to submit its award to app.
Govt. within the specified time frame
mentioned in the reference order.
An award shall be in writing and signed by
P.O.
Publication of award by govt. (within 30 days
in such manner as the app. govt. thinks fit)
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Qualification IT Judges
He is or has been
Judge of a HC or
DJ or ADJ (not less than 3 yrs) or
Deputy Chief labour Comm. (Central) or Joint
Comm. of State labour dept having degree in law &
7yr experience in Lab. Dept including 3 yr exp as
conciliation officer or
Officer of Indian legal Service in Grade III with 3 yrs
experience in that grade
Assessors:
By App. Govt
2 persons
To advise the IT in the proceedings before it
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Qualification
He is or has been a Judge of HC
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Disqualification of P.O.
LC, IT or NIT
He is not an Independent person
(appointment)
He has attained the age of 65 years
(continuance)
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Powers
After giving reasonable notice, power to enter
premises C.O., BoC, P.O. [LC, IT, NIT]
BoC, LC, IT, NIT Powers of Civil Court
Judicial Proceedings
LC, IT, NIT Deemed to be a civil court
C.O., BoC, P.O. [LC, IT, NIT] Public Servants
LC, IT, NIT Award Costs
Awards of LC, IT & NIT = Decree of a civil court
and they should be executed under Order 21 of
the CPC.
M. Mahindra Prabu
Asst. Professor (Law)
TNNLS
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Strike S. 2(q)
strike means
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 common understanding of any number
of persons
who are or have been so employed to continue to
work or to accept employment;
Essential Requirements
Cessation of work:
Abandonment, stoppage, omission of performance of
duties of their posts, hampering or reducing normal
works, hindrance to the working or suspension of
work, refusing or failing to return or to resume
employment etc.
Must be Temporary & Voluntary
Length of time has nothing to do with S.2(q), Refusal
to work even for a few hours would amount to strike.
See State of Bihar v. Deodhar Jha, AIR 1958 Pat. 51.
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Concerted Action
The workers must act under a common
understanding i.e. the cessation of work by a body of
persons employed in any industry in combination is a
strike
In order to establish such a concert there need not be
any formal meeting, discussion or even interchange
of mutual consent or assent to a common purpose or
course of conduct. It may be deduced from similar
acts and course of conduct.
The expression concerted action indicates that it has
been planned, arranged, adjusted or agreed on and
settled between parties acting together pursuant to
some design or scheme. See Shamnagar Jute Factory v.
Their Workmen, (1950) LLJ 235 (IT)
Assignment
Discuss the Judicial Interpretation of
Combination, concert or common
understanding related to definition
of Strike under ID Act, 1947?
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Strikes in PUS
S. 22 - Prohibition of strikes and Lockouts
No person employed in a public utility service
shall go on strike in breach of contract (a) without giving to the employer notice of strike, as
hereinafter provided, within six weeks before
striking; or
(b) within fourteen days of giving such notice; or
(c) before the expiry of the date of strike specified in
any such notice as aforesaid; or
(d) during the pendency of any conciliation
proceedings before a conciliation officer and seven
days after the conclusion of such proceedings.
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Note:
Notice may be given by TU or representatives
of workmen
Notice of Strikes within 6 weeks before
striking is not necessary where there is
already a lock-out in existence
Notice of Strike shall not be effective after 6
weeks from the date it is given. So the strike
must be commenced within that period.
Strikes in Non-PUS
S. 23 General prohibition of strikes and Lockouts
No workman who is employed in any industrial
establishment shall go on strike in breach of contract
(a) during the pendency of conciliation proceedings
before a 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
(bb) during the pendency of arbitration proceedings
before an arbitrator and two months after the conclusion
of such proceedings, where a notification has been issued
under sub-section (3A) of section 10A; or
(c) 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.
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Types of Strikes
General Strikes
Stay-In Strikes
Hunger Strike
Lightning or Wildcat Strike
Sympathetic Strike
Go-Slow Strikes
Work to Rule
General Strike
GS is one where the workmen join together
for common cause and stay away from work
depriving the employer of their labour needed
to run his factory.
Two Phases:
Token Strike: For a day or a few hours or a
shorter duration to draw attention of employer
General Strike: For longer Period
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Hunger Strike
Hunger strike with fasting by some or all
strikers or even outsiders added to exert moral
force or perhaps what may be more aptly
described as coercion for acceptance of the
demands.
Hunger strike falls under the definition of
strike u/s 2(q) because it is accompanied by
cessation of work and there is demand related
to industrial dispute.
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Sympathetic Strike
It is resorted to in sympathy of other
striking workmen
No demand or grievance of their own
To extend moral support
Intention to use it against the management
is absent.
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Go Slow Strike
Workers deliberately slow down the
pace of production
Whether it comes under S. 2(q)?
What action can be initiated against the
workmen for go-slow strike activity?
Work-to-Rule
In the form of concerted activity, employees though
remaining on job, do the work literally in accordance
with the rules or procedure laid down for the purpose,
decline to do anything not mentioned therein, take all
permissible time of the job, and do the work in such a
manner that it results in dislocation of the work.
Harmonious working for maximizing production is
frustrated.
In these tactics, the workers literally work according
to rules but in spirit they work against them.
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Right to Demonstrate
The freedom will come to an end as soon as
the right of someone else to hold his property
intervenes.
Restrain from holding demonstration within
100 m from the factory or residential
premises of the employer.
See Delhi Security Printer v. Hindustan Engg.
& General Mazdoor Union (1996) LLR 714
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Contd..
S.24(3) A lock-out declared in consequence of
an illegal strike or a strike declared in
consequence of an illegal lock-out shall not be
deemed to be illegal.
S.10(3) Where an industrial dispute has been
referred to a Board, Labor Court, Tribunal or
National Tribunal under this section, 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.
Contd.,
S. 10A(4A) Where an industrial dispute has been
referred to arbitration and a notification has
been issued under sub-section (3A), the
appropriate government may, by order, prohibit
the continuance of any strike or lock-out in
connection with such dispute which maybe in
existence on the date of the reference
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Breach of Contract
Standing orders approved by Statutory authority,
govern the contractual relationship between the
workmen and employer
Breach of S.O = Breach of Contract of service.
For any strike to be illegal, mere breach of
contract of service is not enough to declare it as
illegal strike; the other conditions u/s 23 are also
required fulfilled. See Ballarpur Collieries Co. v.
Salim M. Merchant, (1967) II LLJ 201 (Pat).
Financial Aids
S. 25 - Prohibition of financial aid to illegal
strikes and Lockouts
S. 28 - Penalty for giving financial aid to
illegal strikes and Lockouts
6 months or Rs. 1000 or both
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Assignment
Discuss the concept of Justified & Unjustifed
Strike and Lock-out?
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Dismissals
wages
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Ingredients of Lock-out
i.
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M. Mahindra Prabu
Asst. Professor (Law)
TNNLS
S.2(kkk)
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 break-down of machinery or
natural calamity or
for any other connected reason
to give employment to a workman whose name is
borne on the muster rolls of his industrial
establishment and who has not been retrenched;
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LAY OFF
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Chapter VA & VB
Layoff, Retrenchment, Transfer of an
undertaking & Closure
Chapter
VA
Ordinary
Industrial
Establishments
Chapter
VB
Special
Industrial
Establishments Applies to establishment not
less than 100 workmen
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Compensation
As per Standing Orders and in the absence of
which, S.25C of ID Act says
50% of the total of the basic wage and
dearness allowance, provided he has
completed the service of one year or more
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6 Months
95 days (below ground i.e. mine)
120 days (above ground)
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Retrenchment
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Procedure of Retrenchment
S. 25 G
LAST COME FIRST GO RULE
Q: whether a senior employee is retrenched,
retaining his juniors is valid?
See Madho Soru Land v. Chase Brigh Steel Ltd,
(1984) I LLJ 517 Bom.
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Illegal Retrenchment
Re- Instatement with back wages
Compensation in-lieu of re-instatement
S. 25 H: Re-employment of retrenched Wm
Opportunity & Preference
S. 25 Q: Penalty
1 Month or Rs. 1000 fine or both
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Closure
S.2(cc) - Closure means the permanent
closing down of a place of employment or
part thereof.
S. 25 FFF Wm 1 month notice +
Compensation
S. 25 FFA 60 Days Notice nlt 50 Wm
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Compensation
Compensation (same as R.C.)
Max Compensation: 3 months Salary
(unavoidable circumstances beyond the
control of the employer)
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Act of God
Enemy Action as in time of war
Action of State i.e Restraint on trade
When Wm create circumstances which lead
to closure
i.e. closure due to strike, threats, intimidation,
violent methods like stabbing and bomb throwing
by workers
M. Mahindra Prabu
Asst. Professor (Law)
TNNLS
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First Schedule
31 Industries
State Amendments
Ex: Banking, Cement, Coal, Cotton textiles, Food
stuffs, Iron and Steel etc.
Govt authorized to issue notification only in
respect of industries in 1st Schedule
Reasons: Public Interest or Public Emergency
Validity of Notification: 6 months (can be
extended further)
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S. 2 (ra)
unfair labor practice means any of the
practices specified in the Fifth Schedule.
5th Schedule:
Two Parts
Employer & TUs of Employer (16 Practices)
Interfere with right to form, assist or join TU
To recruit workmen during a legal strike etc.
History
1st Defined and Codified in Maharashtra
Recognition of Trade Unions and Prevention
of Unfair Labour Practices Act, 1971. [MRTU
& PULP]
Later in 1982, it was inserted into ID Act
along with 5th schedule and came into force
on 1984.
See Siemens Ltd v. Siemens Employees Union,
(2011)2 SCC (L&S) 593
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Concept of ULP
Arbitrariness and
Unreasonableness
Equality: Art. 14
Twin Objectives:
Industrial Peace and
Economic Justice
Victimisation
Not defined Dictionary Meaning
If a person is made to suffer by some exceptional
treatment it would amount to victimisation.
It may be victimisation in fact or law.
Major Misconduct dismissal or discharge based on
past records legal victimisation.
Ex: 10 Mazdoors 2 Operators Found asleep during
night shift Mazdoors let off with mere warning,
Operators dismissed Equated with Kill a fly with
sledge hammer Legal Victimisation ULP.
For an ULP there must be an allegation of
victimisation.
See Siemens Ltd v. Siemens Employees Union,
(2011)2 SCC (L&S) 593
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M. Mahindra Prabu
Asst. Professor (Law)
TNNLS
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S.33
S. 33(1) During Pendency of proceedings,
no employer shall
alter conditions of service to the prejudice of the
workmen or
Punish for misconduct connected with dispute
without express permission in writing from
authority before which proceeding is pending
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S. 33(1)
Pending dispute
Service Conditions:
connected with dispute
Service Conditions
prejudicial to the workmen
concerned sought to be
altered
Service Conditions sought
to be altered affect
workmen concerned with
dispute
S. 33 (2)
Pending dispute
Service Conditions: not
connected with dispute
Any Service Conditions
whether prejudicial or not
to workmen sought to be
altered
Service Conditions sought
to be altered affect
workmen concerned with
dispute
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S. 33 (5)
Where an Employer makes an application u/s
33(2) to concerned authority before which
proceeding is pending for approval of action
taken by him, the authority shall pass order
within 3 months but it may extend such
period with reasons recorded in writing.
No proceeding shall lapse merely on ground
that any period specified is expired.
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Lockout
Lay-off
Suspension
Transfer
a) Above all
b) Only a, b & c
c) Only d
Notice of Change
S. 9A
COS 4th Schedule
Employer can Change, provided 21 Days
Notice must be given to workmen prior
to change
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Remedy S. 33A
S.31 6 months imprisonment or Rs. 1000
fine or both
Make an application u/s 33A to concerned
authority before which proceeding is pending.
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