Distinguish between conciliation, Arbitration and adjudication.

Which of these procedures is being used in your organization or any organizational you are familiar with. Give reasons why this particular procedure is being used. Briefly describe the organization you are referring to. Conciliation:- Conciliation is a process by which a third party assists the parties to resolve their dispute by agreement. A conciliator may do this by expressing an opinion about the merits of the dispute. How does conciliation differ from other dispute resolution processes? Conciliation is similar to mediation in that the role of the conciliator is to assist the parties to reach an agreed resolution. Unlike mediation, a conciliator will express an opinion about the merits of the dispute. Unlike arbitration and expert determination (and litigation), the conciliator does not decide the disputs for the parties. Conciliation can provide a quick, cheap, confidential means of resolving disputes. Conciliation, as opposed to mediation, can be useful where one of the parties has unrealistic expectations about the dispute and a more pro-active approach to the merits may assist in resolving the matter. Conciliation may also be useful where the parties wish to have their dispute resolved by objective considerations of what is appropriate, rather than purely by agreement between the parties. Conciliation can be used with a broad range of disputes. It is best to conciliate as soon as possible. If conciliation occurs early, positions have not become entrenched and expense has not been incurred. The cost of conciliation depends on the nature of the dispute and the number of parties involved. It also depends on any additional work performed by the conciliator eg providing a formal opinion. In general, however, a dispute resolved through conciliation will have involved less expense than resolution through litigation. The process followed is similar to the process for a mediation, involving discussion between the parties. A conciliation may focus more on the merits of the parties' positions. The parties may provide information to the conciliator to enable the conciliator to give an opinion about issues in dispute or the parties positions. The approach to be taken by the conciliator is something which will be discussed at the initial preliminary meeting. Parties to conciliation proceedings will have signed a formal agreement regulating the process. Included in the agreement will be provisions requiring the parties to maintain the confidentiality of information disclosed in the conciliation. Parties are best able to negotiate if they know what their rights and obligations are, before and during the process. Arbitration:- Arbitration occurs where parties agree to have a third party, the arbitrator, determine a dispute which has arisen between them. In Western Australia, arbitration is governed by the Commercial Arbitration Act, 1985. A copy of the Act can be obtained from www.slp.wa.gov.au/statutes/swans.nsf An arbitrator's determination is called an "award". A party to arbitration can apply to the Court to have the award determination registered as a judgment of the Court. Arbitration differs from litigation in that it is consensual: the parties must agree to resolve their dispute by arbitration. Unlike mediation or conciliation, an arbitrator decides the dispute. Generally, an arbitrator may only act on material provided by the parties. A table showing the differences between arbitration and other dispute resolution processes can be found here, download PDF version or RTF version. Arbitration can be quicker, simpler and less formal than litigation. Arbitration is also more private that court proceedings. Members of the public and representatives of the media cannot attend arbitration proceedings and listen to the evidence. Parties can agree that the outcome of the arbitration shall be confidential. Generally, parties to arbitration are assisted by retaining lawyers to represent them. An arbitrator will not provide legal advice to the parties about their position. An award made by an arbitrator can be registered in the Supreme Court and enforced in the same way as a Supreme Court judgment. Arbitrators' decisions on questions of fact are final and binding. It is possible to appeal an arbitrator's decision on a question of law made by an arbitrator, but only with permission from the Court. The grounds on which permission will be granted are limited. The parties bear the costs of an arbitration, including the arbitrator's fees. The arbitrator can order an unsuccessful party to contribute to the successful party's legal costs, as in court proceedings. Expert Determination In expert determination, the parties get an independent third party, who is expert in a particular field, to adjudicate on a dispute within the field of expertise. An expert determination is similar to arbitration in that the expert makes a determination of the issues,

rather than getting the parties to agree on the resolution of the matter, as in mediation. Unlike a court, an expert making a determination can take into account his knowledge and expertise. Expert determination is suitable for determination of 'simple' issues requiring technical expertise or evaluation, such as the value of a piece of land, or the amount of notice to which an employee is entitled. Expert determination is sometimes used where the parties want to reduce the chance that the decision will be appealed or the process contested. Expert determination can avoid the need for a formal hearing, which can make it both cheap and efficient. There are very limited avenues for challenging a decision made by an expert appraiser. The cost depends on the nature of the dispute and the approach of the parties and the expert. Because the procedure can be very informal, and the parties do not generally put evidence to the expert, the process should be cheaper than determination the same issue in court or by arbitration. The procedure for an expert determination is largely a matter for the parties, or, if they make no agreement, for the expert. The expert determination process is very flexible. Generally, it involves: (1) a meeting between the expert and the parties about the conduct of the determination; (2) the provision of information to the expert by the parties. (3) a determination by the expert. The parties may agree that all aspects of the process and the outcome shall be confidential. Scott's standard expert determination agreement can be accessed here. Generally, parties to an expert determination are assisted by retaining lawyers to represent their interests. An expert determiner does not provide advice to parties about their legal position. This depends on the particular process chosen for the expert determination. Generally, it will be necessary for background information to the provided to the expert to assist in the determination. It is not usually necessary for the parties to give oral evidence. Adjudication:- Adjudication is the process for rapid resolution of disputes about payment for construction work in Western Australia established by the Construction Contracts Act, 2004. Only claims made under a "construction contract" can be dealt with by this process. The definition of "construction contract" in the Act includes contracts for construction work, the supply of goods to site, the provision of related professional and on site services. Claims include both claims by a contractor for performance of work and claims by a principal against the contractor. Adjudicators may be nominated in the contract, selected by the applicant or selected by a "prescribed appointor" under the Act. Adjudicators must be registered under the Act. The procedure for adjudications is set out in the Act and the Construction Contract Regulations, 2004. Potential claimants should seek separate advice concerning these requirements. In broad terms, an application must be served on all the parties to the contract and the adjudicator or appointing body within 28 days after a payment dispute arises. This time limit cannot be extended. If the claim is not made within 28 days, a claimant cannot pursue adjudication under the Act in respect of that dispute. However, this does not stop the claimant suing in court or commencing arbitration proceedings. The respondent then has 14 days within which to respond. The determination must be made within 28 days after the initial application (unless the parties agree to extend time). Generally the determination will be made on the basis of the parties' written application and response. An adjudicator's determination may, with the permission of the Court, be enforced like a Court judgment. Generally there is no right of appeal from a determination of an adjudicator under the Act. However, if there are any further proceedings between the parties (such as arbitration or litigation), the parties are not bound by the adjudicator's determination. Generally parties to a dispute are assisted by lawyers. The adjudication process is, however, intended to be informal and simple. The costs of the process overall depend on the complexity of the claim and the amount of material submitted by the parties. Generally, the parties must pay their own costs and must share the adjudicator's costs.

1 What is conciliation? Ans. Participation by a third party in a industrial dispute between management and its employees in order to bring them together to resolve their differences is termed mediation or conciliation.

2 Which are the authorities competent for holding conciliation? Ans. Section 4 of Industrial Disputes Act 1947 empowers the appropriate government to appoint such number of persons as may be deemed necessary by notification in the official gazette as conciliation officers, for discharging the responsibility of mediating in and promoting the settlement of industrial disputes. All Labour officers, Asst. Labour Commissioner including Dy. Labour Commissioner, Labour appointed conciliation officers. Government of N.C.T. of Delhi for administrative and public convenience has divided entire territory into 9 districts i.e. East, North-East, South-West, West, South, North, NorthWest, Central & New Delhi.

3. What are the functions of conciliation officers? Ans. Section 12 of I.D. Act 1947 provides duties of conciliation officers. A conciliation officer is required to investigate without delay the industrial disputes and make efforts to settlement thereof and for the purpose of bringing about a settlement of the dispute he may do all such things as he deems fit for the purpose of bringing parties to come to a fair and amicable settlement of the disputes.

4. Can conciliation officer bind the parties? Ans. No. A conciliation officer has no authority or power to force the parties to agree to his suggestions. He merely offers his services through his good offices to find an amicable solution and will meet the needs of the two parties. He may suggest answer to the problem.

5. Whether conciliation is mandatory or discretionary? Ans. In case of public utility services where a notice under section 22 of the I D Act, 1947 has been received, the conciliation officer must necessarily hold immediate conciliation proceedings for prompt settlement of the disputes. He has discretion in respect of non public utility services. 6. Ans. When CO should intervene in industrial disputes? Intervention must not be either premature or too late. Time for intervention may be chosen by the conciliation officer with due care.

7. Ans.

When is conciliation proceeding commenced? Conciliation proceedings in public utility services are deemed to have commenced on the date when the conciliation officer receives the notice of strike or lock-out u/s 122 of I.D. Act 1947 and in such cases he has to act with great speed in order to complete the proceedings within 14 days time. In case of non public utility services, the conciliation officer has to give formal intimation in writing to the parties declaring his intention to commence conciliation proceedings with effect from such date as he may specify.

8. Ans.

When are conciliation proceedings deemed to have concluded? The conciliation proceedings are concluded in the following manner.

1. Where conciliation ended in settlement - the date on which settlement is signed by the parties to the disputes or 2. Where conciliation ended in failure, the date on which the failure report of conciliation officer is received by the appropriate Govt. 3. When a reference is made to a Labour Court / Industrial Tribunal during the pendancy of conciliation proceedings.
9. Ans. Whether parties are required to be informed about the failure of conciliation? Yes, copies of failure report under Section 12 (A) of I.D. Act 1947 are required to be sent to the parties to the dispute.

10. Ans.

Whether conciliation officer can arrive at ex-parte conclusion of proceedings? Yes, If the party raising the dispute fails to turn-up without reasonable cause, the case may be closed under intimation to it. If the opposite party fails to turn-up, inspite of having been given reasonable no. of opportunities, an adverse inference may be drawn and the case be proceeded with on ex-parte basis.

Can a Strike called by wokers of a Public Utility Service ever be Legal under the Industrial Disputes Act, 1947? If yes when? Under the Industrial Disputes Act 1947, a Public Utility service can go on a legal strike by giving the stipulated 14 days notice. So this right is granted by law. The idea behind the notice is to give the labour department sufficient time to conciliate between the parties in an attempt to resolve the dispute and extinguish the cause for the strike. However this rarely happens. Because it is a Public Utility Servicve and no populist government can afford the ire of its constituency, it rushes in with fiats like, declaring the said service to be"essential service" and under the ESMA (Essential Services Maintenance Act) prohibit the impending the strike, or ban the strike under the provisions of ID Act itself while simultaneously referring the dispute to judicial determination. The public at large may be pleased with such measures but the those poor guys serving in the said Public Utility Service find themselves in an unenviable situation of possesing a right that they are rarely permitted to use! The answer to your query is therefore that Public Utility Service has a right to go on a Legal strike only on paper. In reality due to such encrochments described above, they rarely are on legal strike!!! Everyone has a right to strike! Public Utility Industry 's right is ferreted as explained in the last post. But all other industries can strike even without notice. (Maharashtra Recognitions of Trade Unions and Unfair labour Practices Act has some overlapping provisions also.) The terms strike, lock-out, lay-off and retrenchment and closure are all defined in Industrial Disputes Act 1947. A strike or a lock-out may be legal or illegal. What is important is that not only at imposition but through out its continuance it must also be justifiable. These actions must be legal and justifiable. When no notice is required to be given a strike commenced suddenly may be legal at imposition but not necessarily justifiable. The law does not compel parties per se` to unavoidably to pay for the duration of the action. The party that imposes an action does so on the conviction that its action is legal & justified. Therefore the aggreived party has to "claim" wages by callling the strike/lock-out to be illegal and then proving it to be so! A strike or a lock-out is the last weapon in the hands of the respective parties. When all else fails (collective bargaining, conciliation etc.) a party may resort to such an action in an effort to force the other party to see things its way and concede its demands. If the dispute over which the action was initiated, the party may while settling the main dispute settle this matter also-one way or the other. Even if matter involving wages for the strike or the lock-out period go to a court for judicial determination, the parties are freee to continue a dialogue and settle the matter "out of court" but then they will have to obtain an "award in terms of the settlement". This is not very difficult once the court finds the settlement fair and amicable! Now, look, I think I have said a lot and even scratched the surface. Every question connected with this subject is intertwined with some aspect of law and case law and therefore the bare act is to be followed carefully. I would be in position to help you better if you raise specific questions. For the time being your question/s have been answered!

Industrial Disputes: [Sec. 2 (k)] Any dispute or difference between o Employers and employers, or o Employers and workmen, or o Workmen and workmen, This is connected with the o Employment or non-employment, or o The conditions of labour of any person. Sec.2 (k), 2A recognizes those disputes that arise between an individual workman and his employers even though no other workman nor is any union of workmen a party to the dispute. Strike: [Sec.2 (q)] A cessation of work by a body of persons employed in any industry acting in combination, or o A concerted refusal, or o 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. Lock-out: [Sec. 2(1)] The closing of a place of employment, or the suspension of work, or the refusal by an employer to continue to employ any number of persons employed by him. Workman: [Sec. (s)] Any person (including an apprentice) employed in any industry to do any o Manual, unskilled, skilled, technical, operational, clerical or supervisory work, o For hire or reward, o Whether the terms of employment be express or implied. The Industrial Disputes Act, 1947, since it deals with disputes, also considers as workmen, any such person who o Has been dismissed, discharged, or retrenched in connection with, or as a consequence of, that dispute, or o Whose dismissal, discharge, or retrenchment has led to that dispute. This Act does not consider as workmen and hence does not apply to any such person: o Who is subject to the Army Act, the Air Force Act, or the Navy Act; or o Who is employed in the police service as an officer or other employee of a prison; or o Who is employed mainly in a managerial or administrative capacity; or o Who, being in a supervisory capacity, draws wages exceeding Rs.1600/= per month, or the nature of his duties, powers vested in him, and functions are mainly managerial. ay-off: [Sec. 2(k)] The failure, refusal, or inability of an employer on account of o Shortage of coal, power or raw materials, or o Accumulation of stocks, or o The breakdown of machinery, or o Natural calamity, or o 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. The two-hour rule regarding lay-offs. The half-day rule regarding lay-offs. Employer calls a workman (whose name is on the muster roll) for work during the second half of the shift and is not able to give employment when the workman presents himself for work; this is not considered to be a lay-off for the second half of the shift for the day. o Such workman is entitled to full basic wages and dearness allowance for that part of the day. Retrenchment: [Sec.2 (o)] The termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action. Retrenchment does not include: o Voluntary retirement of a workman; o Retirement of a workman or reaching the age of retirement as stipulated in the employment contract between him and his employer; o Termination of the service of the workman as a result of non-renewal of his employment contract; o Termination of such an employment contract under a stipulation contained therein; or o Termination of the service of a workman on the ground of continued ill health.

Settlement: [Sec.2 (p)] A settlement, arrived at in the course of a conciliation proceeding. This term includes a written agreement between the employer and workmen that did not involve conciliation but the two parties, on their own, signed such an agreement in the prescribed manner. Appropriate government: Central Government: This is the appropriate government in relation to: o Any industrial dispute concerning any industry carried on by or under the authority of the Central Government; o A railway company; or o Any such industry as may be specified by the central government; or o Industrial dispute concerning a Dock Labour Board; or o Industrial Finance Corporation of India; or o ESIC; or o The Board of Trustees under the Coal Mines Provident Fund and Miscellaneous Provisions Act, 1948; or o The central and state Boards of Trustees under the Employees Provident Fund and Miscellaneous Provisions Act, 1952; or o The Indian Airlines and Air India; or o The ONGC; or o The Food Corporation of India; or o The Airports Authority of India; or o An air transport service or a banking or an insurance company, a mine, an oil-field, a cantonment board or a major port, etc. State Government: This is the appropriate government in relation to any other industrial dispute. Public Utility service: Any railway service or any transport service for the carriage of passengers or goods by air; Any service in or in connection with the working of, any major port or dock; Any section of an industrial establishment, on the working of which, the safety of the establishment or the workmen employed therein depends; Any postal, telegraph or telephone service; Any industry which supplies power, light or water to the public; Any system of public conservancy (safety) and sanitation. The appropriate government may declare any of the following industries as public utility service if it is satisfied that there is a public emergency or it is in the public interest to do so; o Transport (other than railways as it is already in the list of permanent public utility services) for the carriage of passengers or goods by land or water; o Banking; o Cement; o Coal; o Cotton textiles; o Foodstuffs; o Iron and steel; o Defense establishments; o Service in hospitals and dispensaries; o Fire brigade service; o India Government mints and currency note press; o Various mines; o Service in the International Airports Authority of India; o Industrial establishments manufacturing or producing nuclear fuel and components, heavy water and allied chemicals and atomic energy, etc. Any of these services may be declared as public utility service by the appropriate government by notification in the official gazette. This status of a public utility service will not normally be for a period exceeding six months but further extension of up to six months at a time is possible if public emergency or public interest so requires. Industry: [Sec. 2 (j)] Any systematic activity carried on o by co-operation between an employer and his workmen (whether direct or contractual) o for the production, supply or distribution of goods or services o with a view to satisfy human wants or wishes (religious or spiritual wants not included).

 For the purpose of carrying on this activity, o Capital may or may not have been invested, or Such an activity is or is not carried on with the motive to make any gain or profit (e.g. State owned industries) and includes o Any activity of the Dock Labour Board established under the Dock Workers (Regulation of Employment Act), 1948 and o Any activity relating to the promotion of sales or business or both carried on by an establishment. Under this Act, the term industry does not include: o Any agricultural operation except where such agricultural operation is carried on in an integrated manner with any other activity (being any of the previously mentioned activities) and such other activity is the predominant one; o Hospital or dispensaries; o Educational, scientific, research or training institutions; o Institutions owned or managed by organizations wholly or substantially engaged in any charitable, social or philanthropic service; o Khadi or village industries; o Any professional activity practiced by an individual or body of individuals, if the number of persons employed by the individual or body of individuals in relation to such profession is less than ten; o Any activity carried on by a co-operative society or club or any other similar body of individuals, if the number of persons employed in relation to such activity is less than ten. Authorities and reference of Disputes: Under the Act, the authorities or bodies for the prevention or settlement of disputes are as follows: o For individual disputes: Grievance Settlement Authority o For prevention of industrial disputes: Works Committee o For conciliation (compulsory): Conciliation Officer Board of Conciliation o For voluntary arbitration: Arbitrator o For inquiry into industrial disputes: Court of Inquiry o For adjudication: Labour Court Industrial Tribunal National Tribunal Grievance Settlement Authority: [Sec. 9 (c)] This authority is required to be constituted in an industrial establishment employing 50 or more workmen (on an average) in a year. This authority is constituted for the settlement of industrial disputes connected with an individual workman employed in an establishment. In case of an industrial dispute arising with an individual workman, the workman or the union (if he belongs to one) refers the dispute in the prescribed manner to the grievance settlement authority for settlement. The authority has to follow a prescribed procedure and is also allocated a time limit within which it has to complete its proceedings. Such a dispute cannot be referred to conciliation, arbitration or adjudication authorities unless it has been referred to the grievance settlement authority and its decision is not acceptable to any of the parties to the dispute. Works Committees: [Sec. 3] Constitution: o The appropriate government, through a general or special order, may require the employer to constitute a works committee in an industrial establishment employing 100 or more workmen (on an average) in the previous 12 months. Composition: o Such a committee is made up of representatives of employers and workmen. o Representatives of workmen cannot be less than the representatives of employers. o If the workmen of the establishment belong to any registered trade union, this union will be

consulted while choosing the representatives of the workmen. Functions and Powers: o Such a works committee is required to promote measures for securing and preserving amity and good relations between the employers and workmen. o It is also authorized to comment upon matters of common interest or concern to both the parties and try to address any significant difference of opinion in respect of such matters. Conciliation Officer: Constitution: o The appropriate government appoints conciliation officers by notification in the official gazette. o The number of such officers is also left to the discretion of the appropriate government. o Such conciliation officer(s) may be appointed for a specified area, or for a specified industry in a specified area or for one or more specified industries, either permanently or for a limited period. [Sec.4] Working: o Disputing parties may approach such an officer. o In the case of public utility services, the disputing parties who have to send a notice of a strike or lockout as prescribed under Sec.22 of the Act, the conciliation officer is required to intervene and hold conciliation proceedings in the prescribed manner. Functions: o A conciliation officer has to take steps for inducing the parties to reach a fair and amicable settlement. o If a settlement is reached, the report of the conciliation proceedings along with the agreement (signed by both the parties) has to be sent to the appropriate government or an officer authorized by it. o If no settlement is reached, he still has to notify the appropriate government about the steps taken by him to ascertain the facts and circumstances leading to the dispute and what he did to bring about a settlement. o Normally, the conciliation officer is given 14 days to conduct his proceedings and submit his report. But extension is possible. o In case of no settlement, the appropriate government will consider the officers report and may then refer the dispute to the Board of Conciliation, Labour Court, Tribunal or National Tribunal. [Sec.11] Powers: o Such a conciliation officer is deemed to be a public servant under the Indian Penal Code and enjoys the same powers as those enjoyed by a civil court. He may, after giving reasonable notice, enter the premises of the establishment for the purpose of inquiring into existing or apprehended dispute. He may also enforce the attendance of any person for the purpose of examining him. He may also call for inspection any document relevant to the dispute or for verifying the implementation of any award. Board of Conciliation: Constitution: o This Board is constituted by the appropriate government only if the need arises. Composition: [Sec. 5] o This Board consists of an independently appointed Chairman and two or four members to be appointed in equal number by the parties to the dispute. o The appropriate government will try to appoint the members representing the parties on the recommendations of the parties concerned. o This Board may function in the temporary absence of the chairman or any of its members. o But a permanent unavailability of either the chairman or any of the members has to be notified by the appropriate government to the remaining members and the Board will not function till a new chairman and members are appointed. Working: [Sec. 10] o The appropriate government refers an existing or an impending dispute to the Board, in writing. o Either or both the parties may also directly approach such a Board for promoting the settlement of their dispute. o Once the dispute reaches the Board, the appropriate government may prohibit the continuance of the strike or lock-out in connection with this dispute which may have been in existence at the time of reference.

 Duties and Powers: [Sec. 11,13,16,17] o All members of the Board of Conciliation are public servants. o An inquiry by such a Board is considered to be a judicial inquiry within the meaning of the IPC. o Every Board enjoys the same powers as are vested in a civil court. A member of the Board, while carrying out the inquiry into the dispute, may, after giving a notice, enter the premises of the establishment. He may enforce the attendance of any person and examine him on oath. He may compel the production of documents and material objects for inspection. o If a settlement is arrived at, the Board is required to send a report and a memorandum of the settlement signed by all the members of the Board and the parties to the dispute, to the appropriate government. o If no settlement is reached, the Board is still required to report to the appropriate government the entire proceedings, the steps taken by it to bring about a settlement, facts, circumstances and reasons why the settlement could not be achieved. o The Board is required to submit its report within 2 months of the reference of the dispute or even a shorter period if so determined by the appropriate authority. But a further extension of 2 months is possible. o If no settlement is reached in the case of public utility services, the appropriate government on reading the report filed by the Board of Conciliation may or may not refer the dispute to a Labour Court, Tribunal or National Tribunal. The Conciliation Officer and the Board of Conciliation are bodies that are a part of the conciliation efforts of the government. Commencement and conclusion of these conciliation proceedings: [Sec. 20] o Date of commencement: The date on which the notice of a strike or lockout (as required under Sec. 22 for public utility services) is received by the Conciliation Officer, or The date of which the order referring the dispute to a Board of Conciliation. o Date of conclusion: The date on which the memorandum of settlement is signed (if such a settlement is reached), or The date on which the report of the Conciliation Officer is received by the appropriate government or when the report of the Board of Conciliation has been published (if no settlement is reached), or The date on which matters are referred to a Court of Inquiry, Labour Court, Tribunal or National Tribunal. Period of operation of settlement: [Sec. 19] o The settlement comes into effect on the date decided by the parties to the dispute or on the date on which the memorandum of settlement is signed. o The period for which such a settlement is binding on the parties may also be decided by the parties themselves. If no such decision is taken, the settlement is said to be binding for a period of six months from the date of signing the memorandum of settlement. The settlement continues to be binding on the parties for two months from the date of the notice for its termination is sent by one party to the other or by both the parties. Persons on whom settlements are binding: [Sec.18] o A voluntary settlement arrived at (without conciliation) by the agreement between employer and workmen, is binding on the parties to the agreement. o A settlement reached as a result of conciliation proceedings (Conciliation Officer or Board of Conciliation) is binding on: All parties to the industrial dispute; All other parties summoned to appear in the proceedings as parties to the dispute; In the case of the employer, his heirs, successors or assigns in respect of the establishment to which the dispute related; and In the case of workmen, all persons who were currently employed in the establishment or part of the establishment to which the dispute relates on the date of the dispute, and all persons who subsequently become employed in that establishment or its part. Court of Inquiry: [Sec. 6,11,14,16 and 17] This is just a fact-finding body. Constitution: o The appropriate government constitutes this body as and when the need arises. o Objective inquiring into any matter appearing to be connected with or relevant to an industrial dispute. Composition: o This body could have a single independent person.

o If this body contains two or more persons, then one of them has to be appointed as the Chairman. o All the members of the Court of Inquiry are deemed to be public servants under the IPC. Functioning: o A Court of Inquiry is required to inquire in to the matters referred to it and report to the appropriate government, in writing, within a period of six months from the commencement of its inquiry. o Such a report has to be published by the appropriate government within a period of 30 days from the date of the receipt of the report. Powers: o A Court of Inquiry enjoys the same powers as are vested in the Civil Court. For the purpose of the inquiry and with reasonable notice, the member(s) may enter the premises of the industrial establishment. The member(s) may enforce the attendance of any person and may examine him under oath. They may compel the production of documents and material objects. o Every enquiry or investigation of the Court of Inquiry is treated as a judicial proceeding within the meaning of the IPC. o A Court of Inquiry may appoint a person or persons with specialized knowledge, to advice them of matters under consideration. Labour Court: Constitution: o The appropriate government may constitute one or more Labour Courts for the adjudication of industrial disputes relating to matters that the Act mentions in its Second Schedule. o The key person in the Labour Court is the presiding officer who has to have a substantial judicial experience at the district level at least (Refer to the notes on the chap. Methods of settling industrial disputes for the exact details regarding experience criteria). Matters to be looked into by the Labour Court as mentioned in the Second Schedule of the Act: o The propriety or legality of an order passed by the employer under the standing orders; o The application and interpretation of standing orders; o Discharge or dismissal of workmen, including reinstatement of, or grant of relief to, workmen wrongfully dismissed; o Withdrawal of any customary concession or privilege; o Illegality or otherwise of a strike or lockout; and o All matters other than those mentioned in the Third Schedule which specifies the matters to be within the jurisdiction of Industrial Tribunals. Industrial Tribunal: [Sec.7A] Constitution: o The appropriate government may constitute one or more Industrial Tribunals for the adjudication of industrial disputes of a certain nature. Composition: o A tribunal is to consist of one key person known as the presiding officer. o Qualifications: Is or has been a Judge of a High Court; or Is or has been District Judge or Additional District Judge for a period of not less than three years. o Two assessors may also be appointed by the appropriate government to advice the Tribunal from time to time. Matters to be looked in by the Industrial Tribunal: o Matters specified in the second schedule (mentioned above); or o Matters mentioned in the Third Schedule: Wages, including the period and mode of payment; Compensatory and other allowances; Hours of work and intervals; Leave with wages and holidays; Bonus, profit-sharing, provident fund and gratuity; Classification by grades; Rules of discipline; Retrenchment of workmen and closure of establishments; and Any other matters that may be prescribed. National Tribunal: [Sec.7B] Constitution:

o The Central Government is empowered to constitute one or more National Tribunals for the adjudication of industrial disputes involving Questions of national importance, or Involve matters that are likely of interest to industrial establishments situated in more than one state. Composition: o One key person known as the presiding officer. o Qualifications: Is or has been a Judge of a High Court. o Two assessors may also be appointed to assist the National Tribunal. The Labour Courts and both the Tribunals Industrial and National, are adjudicating bodies. Disqualifications of the presiding officers of these adjudicating bodies: [Sec.7C] Reference of disputes to the adjudicating bodies: [Sec.10] o The appropriate government may refer an existing or apprehended dispute to the relevant body (depending on Schedule Two, Schedule Three or nationally relevant matters), in writing. o The disputing parties may make a request in the prescribed manner to the appropriate government who in turn will refer the matter to the concerned authority. o If a dispute of national importance or that involving the interest of industrial establishments of different state is referred to the National Tribunal, no Labour Court or Industrial Tribunal has jurisdiction to adjudicate upon such a matter now. o Where an industrial dispute has been referred to any adjudication authority, the appropriate government may, by order, prohibit the continuance of any strike or lock-out in connection with such dispute which might have been in existence on the date of reference. o No proceedings before an adjudication authority in relation to an industrial dispute are to lapse by reason of the death of any of the parties to the dispute including that of a workman. Arbitrators and voluntary reference of Disputes to Arbitration: [Sec.10A] Who can instigate the arbitration proceedings? o Voluntarily, the employer and the workmen may refer the dispute to an arbitrator/s mutually agreed upon by them. o Compulsorily, the appropriate government may refer a dispute to the arbitrator/s. Who can be an arbitrator? o If not mutually agreed upon, an arbitrator may be appointed from amongst the presiding officers of the Labour Courts, Industrial Tribunals or National Tribunals. Arbitration agreement: o When the arbitration proceedings are instigated by the appropriate government, the arbitration agreement has to be in the prescribed form and signed by the parties. o A copy of the said agreement must be forwarded to the appropriate government and to the Conciliation Officer. o This agreement must also be published by the appropriate government in the official gazette within one month of the receipt of the copy. Notification of the arbitration proceedings: o Where an industrial dispute is referred to arbitration and the appropriate government is satisfied that the persons referring the dispute represent the majority of each party, it may issue a notification in the prescribed manner. o Once such a notification is issued, employers and workmen who are not parties to the arbitration agreement but are concerned with the dispute will be given the opportunity of presenting their case before the arbitrators. Agenda of the arbitrator? o To investigate the dispute and submit to the appropriate government the arbitration award signed by him. o In the case of an industrial dispute that has been referred for arbitration and where the notification has also been issued by the appropriate government, the same government may, by order, prohibit the continuance of any strike or lockout in connection with such dispute which might have been in existence on the date of reference. Miscellaneous provisions relating to procedures, powers of adjudication authorities including granting of awards: Provisions under Sec.11: o Every Labour Court, Tribunal or National Tribunal is deemed to be a civil court for the purposes of

the Code of Criminal Procedure. o A presiding officer of a Labour Court, Tribunal or National Tribunal is deemed to be a public servant within the meaning of the IPC. o Such presiding officers are empowered to decide the costs of any proceedings and to determine the persons liable to pay the costs and the persons entitled to receive them. o These adjudicating authorities have the power to set aside the order of discharge or dismissal of a workman (which led to the dispute and the subsequent referral to these authorities). They may also direct the reinstatement of the workman on terms and conditions as they think fit; or They may give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal. Provision under Sec.15: o The adjudication authorities are required to hold their proceedings speedily and o submit the awards to the appropriate government within the period specified in the order or within the extended period. Provision under Sec. 17B dealing with payment of full wages pending proceedings in Higher Courts: o Suppose the adjudication authority awards reinstatement of any workman and the employer wants to appeal against such an award and approach a High Court or the Supreme Court. o In this case, the employer is liable to pay to the workman during the period in which these proceedings are pending in the higher courts, full wages last drawn by him including any maintenance allowance admissible to him. These payments would be made if the workman has not been employed in any establishment in the intervening period and an affidavit has been filed by him to that effect. Provisions under Sec. 17 dealing with the Publication and Commencement of Award granted by the arbitration and adjudication authorities: o The award of a Labour Court, Tribunal or National Tribunal has to be in writing and has to be signed by the presiding officer. o Every award of an arbitrator or an adjudication authority is to be published by the appropriate government within a period of 30 days from the date of its receipt. o Normally, an arbitration or adjudication award comes into force on the expiry of 30 days from the date of its publication by the appropriate government (though from time to time the appropriate government may declare differently), or on the date that is specified by the appropriate government. Provision under Sec. 19 dealing with period of operation of awards: o Ordinarily, the award is to remain in operation for a period of one year from the date on which it becomes enforceable But such a period may be reduced o extended by the appropriate government. Extension can be granted for not more than one year at a time but it may not exceed three years from the date on which it comes into operation. Provision under Sec. 18 dealing with persons on whom an award is binding: o An award of arbitration for which no notification has been issued, is binding on the parties to the agreement referring the dispute to arbitration. o An award of arbitration for which notification has been issued or an award of any of the adjudication authorities is binding on: All parties to the industrial dispute; All other parties summoned to appear in the proceedings unless the concerned authority records its opinion that they were so summoned without proper cause; Where a party is an employer, his heirs, successors, or assigns in respect of the establishment to which the dispute relates; and Where a party is composed of workmen, all persons who were employed in the establishment or its part (to which the dispute relates) on the date of the dispute and all persons who subsequently become employed in that establishment. Provisions under Sections 21 and 30 dealing with confidential matters: o A trade union, person, firm or company carrying on a business can request any of the authorities constituted under the Act (that we have studied so far) to treat certain information as confidential. o On receiving such a request, the authorities are required to do so. o Disclosure of such information will require the written consent of the person concerned. Prohibition of Strikes and Lockouts: Provisions under Sec. 23 dealing with general prohibition: o No workman employed in any industrial establishment is allowed to go on strike while citing

breach of contract as the reason: During the conciliation proceedings before a Board of Conciliation and 7 days after the conclusion of such proceedings; or During the adjudication proceedings before the Labour Court, Tribunal or National Tribunal, and 2 months after the conclusion of such proceedings; or During the arbitration proceedings before an arbitrator and 2 months after the conclusion of such proceedings (if a notification prohibiting such strike has been issued by the appropriate government); or If the settlement or award covers a particular matter or matters and such a settlement is still in operation. Under Sec. 22 dealing with Prohibition of Strikes in Public Utility Services: o Section 22 applies to Public Utility Services in addition to Section 23 dealing with general prohibitions. o A person employed in public utility service must not go on strike citing breach of contract as a reason: Without giving to the employer a notice of strike within 6 weeks before striking; or Within fourteen days of giving such notice; or Before the expiry of the date of strike specified in the notice (at least 6 weeks from the date of notice); or During the conciliation proceedings before a Conciliation Officer and 7 days after the conclusion of such proceedings. o The employer, on receiving such notice of a strike, has to report the matter to the appropriate government or an authority specified by it within 5 days of receiving such a notice. Under Sections 22 and 23 also dealing with prohibition of lockouts (general and pertaining to employers in the public utility services): o The provisions regarding the prohibition of lockouts are the same as those for the prohibition of strikes. Provisions under Sec. 24 dealing with illegal strikes and lockouts: o A strike or lockout is illegal in the following cases: It is started or declared in contravention to the provisions made in Sections 22 and 23. It is continued in spite of the order prohibiting such action has been passed by the appropriate government while the adjudication proceedings are on. It is continued in spite of the order prohibiting such actions has been passed by the appropriate government while the arbitration proceedings are on and a notification has also been passed to that effect by the appropriate government. o A lockout declared in consequence of an illegal strike or a strike declared in consequence of an illegal lockout is not illegal. Provision under Sec. 25 dealing with Financial Aid to Illegal Strikes and Lockouts: o The Act prohibits expending or applying any money in direct furtherance or support of any illegal strike or lockout. Layoff, Retrenchment, and Closure: [Sec. 25] Layoff: o The provisions regarding layoff do not apply to: Industrial establishments employing less than 50 workmen (on an average) per working day in the preceding 12 months; and Industrial establishment whose work is seasonal in nature or is performed only intermittently. The appropriate government gets to decide the seasonal or intermittent character of a particular industrial establishment. o Right of the workmen laid-off to receive compensation: These rights are enjoyed by only those workmen whose names appear on the muster roll of the industrial establishment; and Those who have completed one year of continuous service. Compensation entitlement is 50 % of the total basic wages and dearness allowance that would have been payable to him had he not been laid-off. Calculations exclude the intervening weekly holidays. If there is an agreement between the employer and the workmen regarding this issue, it could lawfully contain a clause that entitles the workmen to receive such layoff compensation for only the first 45 days if the layoff were to exceed this limit in any period of 12 months. It is also lawful for the employer to retrench the workmen at any time after the expiry of the first 45 days of the layoff.

 And when he does so, any compensation paid to the workmen for layoff during the preceding 12 months may be set off against the compensation payable for retrenchment. o A workman is not entitled to received layoff compensation under the following cases: If he refuses to accept any alternative employment in the same establishment, or in any other establishment belonging to the same employer and situated in the same town or village, provided that the workman was offered the same wages which he would have normally drawn; If he does not present himself for work at the establishment at the appointed time during normal working hours at least once a day; and If such laying-off is due to a strike or slowing down of production on the part of workmen in another part of the establishment. Retrenchment: o In the case of workmen in any industry, who have been in continuous service for not less than 12 months, retrenchment is possible only under the following conditions: 1 months written notice was given to the workman indicating the reasons for retrenchment and the notice period has come to an end, or The workman has been paid in lieu of such notice; At the time of retrenchment, the workman has been paid a compensation equivalent to 15 days average pay for every completed year of continuous service Or any part of it in excess of 6 months; and A notice has been served in the prescribed manner on the appropriate government or any authority specified by such government by notification in the official gazette. o Every workman who has been in continuous service for not less than 12 months in an establishment whose ownership or management is transferred to a new employer, is entitled to: A prescribed notice and compensation as if he has been retrenched. This compensation would have to be paid: If there has been an interruption in the service of the workman as a result of the transfer; The new terms and conditions of service applicable to him are less favourable to him than those applicable just before the transfer; and The new employer, under the terms of agreement or even otherwise, is not legally liable to pay to the workman, retrenchment compensation if the workmans service has not been continuous even though now it has been interrupted by the transfer. o Ordinarily, the employer is required to retrench the workman who was the last person appointed in his category. o Later on, if the same employer proposes to employ persons in the industrial establishment, the retrenched workmen will have to be given preference over other persons if they offer themselves for re-employment. Closure: o Notice regarding closure has to be served in the prescribed manner on the appropriate government. The notice should clearly state the reasons for the intended closure. This notice has to be served at least 60 days before the closure is to become effective. This notice is not necessary in undertakings: That employ (on an average) less than 50 workmen per working day in the preceding 12 months. Those are set up for carrying out any kind of construction work. o Every workman who has been in continuous service for not less than 12 months immediately before the closure, is entitled to: The prescribed notice, and Compensation as if he had been retrenched. o If the closure is on account of unavoidable circumstances beyond the control of the employer; The compensation is not to exceed his average pay for 3 months. o The phrase unavoidable circumstances beyond the control of the employer does not include: Financial difficulties including financial losses, Accumulation of unsold and unutilized stocks, The expiry of the period of lease or the license granted to it, or The exhaustion of minerals in a particular area. Definition of Continuous Service for the purposes of Layoff and Retrenchment Compensation: For the above-mentioned purposes, a workman is said to be in continuous service for a period, if he is, for that period, in uninterrupted service. o Service interrupted on account of the following reasons is also included in the counting of `uninterrupted service:

 Sickness, or Authorized leave, or An accident, or A legal strike or a legal lockout, or A cessation of work which is not due to any fault on the part of the workman. He has been laid-off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946; He has been on leave with full wages earned in the previous years; He has been absent due to temporary disablement caused by accident arising out of and in the course of his employment; and In the case of a female workman, she has been on maternity leave for not exceeding 12 weeks. Special Provisions for Layoff, Retrenchment, and Closure: These special provisions apply to those industrial establishments: o That are not of seasonal character and where work is not performed only intermittently, o That employed not less than 100 workmen on an average per working day in the preceding 12 months. Special Provisions for Layoff: o These special provisions also apply to only those workmen whose names are on the muster-rolls of the industrial establishments. o Such workmen cannot be laid-off by their employer without the permission of the appropriate government or an authority specified by that government by notification in the official gazette. The application for permission has to contain the reasons for the intended layoff. When the application seeking permission to layoff workmen is made to the appropriate government, at the same time, it should be served on the workmen concerned. o Such permission for layoff is not necessary where: It is due to shortage of power; or It is due to natural calamity; and In the case of the mining industry, it is due to fire, flood, and excess of inflammable gas or explosion. o The appropriate government or the specified authority will take into consideration the genuineness and adequacy of the reasons for layoff, the interests of the workmen and all other relevant factors and then pass an order granting or refusing such permission. o Such an order will be final and binding on all the parties concerned and is to remain in force for 1 year from the date of the order. o In case an application for permission for layoff or its continuance has not been made in time, or if such permission has been refused, the layoff is considered illegal and the workmen are entitled to all the benefits as if they had not been laid-off. The benefits and compensation in this case are the same as those discussed earlier. Special provisions for Retrenchment of workmen: o No workman employed in an industrial establishment covered by the special provisions (relating to layoff, retrenchment and closure) and who has been in continuous service for 12 months or more, is not to be retrenched until: He has been given 3 months notice (in writing) clarifying the reasons for retrenchment, The period of this notice has expired, or He has been paid wages in lieu of such notice, and Prior permission (as discussed in the case of layoff) has been obtained on application. o In case permission for retrenchment has been granted (or presumed to have been granted), every workman who is employed in that establishment immediately before the date of application for permission, is entitled to receive, at the time of retrenchment compensation. This compensation is the same as that provided under general provisions 15 days average pay for every completed year of continuous service or any part in excess of six months. Special provisions for closure of undertakings: o An employer intending to close down an industrial establishment to which these special provisions apply: Has to seek prior permission of the appropriate government. The application for permission has to be made at least 3 months before the intended date of closure. The application must include the reasons for the intended closure. A copy of the application is also to be served silmultaneously on the workers concerned. o Such permission is not necessary in case of undertakings set up for construction work.

 The special provisions will apply in addition to the general provisions relating to layoff, retrenchment and closure. Provisions under Sections 2(RT) and 25T relating to Unfair Labour Practices: These provisions were inserted by an amending Act of 1982. No employer or workman or trade Union (registered or not), is to commit any of the unfair labour practices specified in the 5th Schedule of the Act. Let us see some examples of unfair labour practices as specified in the schedule: o By employers and trade unions of employers (employers associations): Threatening workmen with discharge or dismissal, if they join a trade union; Threatening a lock-out or closure, if a trade union is organized; Granting wage increase to workmen at crucial periods of trade union formation, with a view to undermining the efforts of the trade union at organization; An employer showing partiality or granting favour to one of several trade unions attempting to organize his workmen or to its members, where such a trade union is not recognized trade union; To establish employer-sponsored trade unions of workmen; Discharging or punishing a workman because he urged other workmen to join or organize a trade union; Discharging or dismissing workman for taking part in any strike (which cannot be called an illegal strike according to the provisions of the same Act); Refusing to promote workmen on account of their trade union activities; Discharging office-bearers or active members of the trade union on account of their trade union activities. To discharge or dismiss workmen: By falsely implicating a workman in a criminal case on false evidence or on made-up evidence; For patently false reasons; On untrue or trumped up allegations of absence without leave; To abolish the work of a regular nature being done by workmen, and to give such work to contractors as a measure of breaking a strike; To show favoritism or partiality to one set of workers regardless of merit; To discharge or discriminate against any workman for filing charges or testifying against an employer in any enquiry or proceeding relating to an industrial dispute; To recruit workmen during a strike which is not an illegal strike; To indulge in acts of force or violence; Failure to implement award, settlement; To refuse to bargain collectively, in good faith with the recognized trade unions; Proposing or continuing a lockout deemed to be illegal under this Act. o By workmen and trade unions of workmen: To advise or actively support or instigate any strike deemed to be illegal under this Act; For a trade union or its members to picket in such a manner that non-striking workmen are physically debarred from entering the workplaces; To indulge in acts of force or violence or to hold out threats of intimidation in connection with strike against non-striking workmen or against management staff; For a recognized union to refuse to bargain collectively with the employer; To stage, encourage or instigate such forms of coercive actions as willful go slow, squatting on the work premises after working hours or gherao of any managerial or other staff; To stage demonstrations at the residences of the employer or the managerial staff members; To incite or indulge in willful damage to the employers property connected with the industry; To indulge in acts of force or violence or to hold out threats of intimidation against any workman with a view to prevent him from attending work. Provisions under Sec. 33 dealing with change of conditions of service during the period in which proceedings are pending: When any dispute is pending before a conciliation or adjudication authority or an arbitrator, the employer must not: o Alter to the prejudice of the workmen concerned, the conditions of service applicable to them immediately before the commencement of the proceedings in regard to any matter concerned with the dispute; or o Discharge or punish any workmen concerned with the dispute for any misconduct connected with the dispute, unless he has been permitted by the authority to do so. Provisions under Sec. 9 which deals with notice of change: An employer, proposing to effect any change in the conditions of service applicable to a workman in respect of matters mentioned in the 4th Schedule of this Act, cannot do so without giving proper notice (of 21 days) of the proposed change to the workmen affected by it.

o These matters mentioned in the 4th Schedule are: Wages, including the period and mode of payment; Contribution paid, or payable, by the employer to any provident fund, pension fund or for any benefit for the workmen; Hours of work and rest intervals; Leave with wages and holidays; Starting, alteration or discontinuance of shift-working otherwise than in accordance with standing orders; Classification by grades; Withdrawal of any customary concession or privilege or change in usage; Introduction of new rules of discipline, or alteration of existing rules, except those provided in the standing orders; Any increase 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. Provision under Sec.35 dealing with protection of persons: A person refusing to participate in an illegal strike or lock-out cannot be expelled from any trade union or society; o Such person will not be fined or penalized; o Nor will he be deprived of any right or benefit to which he is entitled; o He will also not be placed in a disadvantageous position as compared with other members of the union or society. Provisions under Sec.36 dealing with representation of parties: Under this Act, a workman who is a party to any dispute is entitled to be represented in any nonadjudication proceedings by: o A member of the executive or other office-bearer of a registered trade union of which he is a member; or o A member of the executive or other office-bearer of a federation of trade unions to which his trade union his affiliated; or o Where the worker is not a member of any trade union, by a member of the executive or other office-bearer of any trade union in the industry in which he is employed or any other workman in the industry. The employer may also be represented (in such non-adjudication matters) by: o An officer of an association of employers of which he is a member; or o An officer of a federation of associations of employers to which his association is affiliated; or o Where an employer is not a member of any association, by any association of employers connected with the industry or by any employer in the industry. o No party to a dispute is authorized to be represented by a legal practitioner in conciliation proceedings or proceedings before a Court of Inquiry. A party to a dispute before an adjudication authority may be represented by a legal practitioner with the consent of the other parties or with the leave of the authority concerned. Provisions regarding penalties: Participation by a workman in an illegal strike and acting in furtherance of illegal strike is punishable with imprisonment extending 1 month or fine up to Rs.50 or both [Sec.26(1)]. An employer declaring an illegal lockout or acting in furtherance of an illegal lockout is punishable with imprisonment up to 1 month of fine up to Rs.1000 or both [Sec.26(2)]. Any person who instigate or incites another person to take part in, or finances any illegal strike of lockout is punishable with imprisonment of maximum 6 months or with a fine of maximum Rs.1000 or both [Secs.27, 28]. Any person who commits any unfair labour practice is punishable with imprisonment up to 6 months or with fine up to Rs.1000 or with both [Sec.25U]. Any person who willfully discloses confidential information is punishable with imprisonment up to 6 months or with fine which may extend to Rs.1000 or with both [Sec.30]. Any employer who closes down an industrial undertaking against the provisions relating to notice to workmen of intention to closure, is punishable with imprisonment up to 6 months or with fine up to Rs.500 or with both [Sec.30A]. Any employer who closes sown an undertaking against the special provisions relating to application for permission and serving a copy to the workmen is punishable with imprisonment up to 6 months or with fine which may extend to Rs.5000 or with both [Sec.25R]. Any employer who goes against the special provisions of the Act relating to the obtaining the permission of the government before laying-off or retrenching workmen is punishable with imprisonment up to 1 month or with fine up to Rs.1000 or with both [Sec25Q]