PRESENTATION ON STRIKES & LOCKOUTS

BY: SHIVAM CHAUHAN

 Strikes and lockouts are essential element s of

the collective bargaining process in the workplace. For both employees and employers they provide the necessary leverage to back up their demands.

DEFINITION
Section 23 of the 1996 Constitution expressly

grants every worker the right to strike.

The Labour Relations Act of 1995 (the LRA)

builds on the foundations of the Constitution by providing that every employee has the right to strike and every employer has recourse to lockout (Section 64(1) of the LRA).

 According to the LRA, a strike consists of three

elements :
Its a refusal to works
It must be a consorted or collective action by the

members of the trade unions It must be for a specific purpose, such as the remedying of a grievance or resolving a dispute in a matter of mutual interest

DEFINITION
A lockout is the exclusion by an employer of the

employees from the workplace for the purpose of compelling them to accept a demand about a matter that is of mutual interest.

 the employer simply closes the workplace and

does not permit employees to access the premises. The lockout can only be imposed once the procedures prescribed in the LRA have been followed.

causes of strikes
Strikes can occur because of the following

reasons: Dissatisfaction with company policy Salary and incentive problems Increment not up to the mark Wrongful discharge or dismissal of workmen Withdrawal of any concession or privilege Hours of work and rest intervals Leaves with wages and holidays Bonus, profit sharing, Provident fund and gratuity Retrenchment of workmen and closure of establishment Dispute connected with minimum wages

Illegal Strikes
Several types of strikes have been held to be illegal. They are not protected by federal labor law. Illegal strikers may be discharged by the employer with no rights to reinstatement.

Illegal strikes are:

Violent Strikes Sit-Down Strikes Partial or Intermittent Strikes Wildcat Strikes Strikes during the 60day Cooling-Off Period Strikes in Violation of a No-Strike Clause

NOTICE OF STRIKE/LOCKOUT MANDATORY

MANDATORY IF INDUSTRY FALLS UNDER DEFINITION OF 'PUBLIC UTILITY SERVICE' AS PER SECTION 2(n), SCH-I OR IF THE TERMS OF EMPLOYMENT (APPOINTMENT LETTER) OR STANDING ORDER REQUIRES GIVING OF NOTICE. NON MANDATORY :
IN NON-PUBLIC UTILITY SERVICE, UNLESS STANDING

ORDERS OR APPOINTMENT ORDERS STIPULATES GIVING OF NOTICE, OR IT IS IN RETALIATION FOR A STRIKE OR LOCKOUT.

WHEN WOULD STRIKES OR LOCKOUTS BE ILLEGAL

a) WITHOUT GIVING ATLEST 14 DAYS NOTICE b) COMMENCED AFTER 42 DAYS OF NOTICE c) PRIOR TO DATE INDICATED IN THE NOTICE d) DURING PENDENCY OF PROCEEDINGS BEFORE CONCILIATION OFFICER/BOARD AND SEVEN DAYS THEREAFTER e)DURING PENDENCY OF PROCEEDINGS BEFORE LABOUR COURT / TRIBUNAL / ARBITRATORS AND TWO MONTHS THEREAFTER f)DURING THE PERIOD WHEN A SETTLEMENT OR AWARD IS IN OPERATION ON MATTERS COVERED

WHEN WOULD STRIKE AND LOCKOUT WILL BE ILLEGAL

A STRIKE/LOCK OUT LEGALLY COMMENCED WOULD BECOME ILLEGAL IF CONTINUED AFTER GOVERNMENT BANS IT UNDER SECTION 10(4A) AND 24

MANNER OF GIVING STRIKE/LOCKOUT NOTICE

STRIKE [22(4)] NOTICE SHALL BE GIVEN IN FORM-L. AS PRESCRIBED UNDER RULE 71 OF CENTRAL RULE OR CORRESPONDING STATE RULE
LOCKOUT [22(5)]. NOTICE SHALL BE GIVEN IN FORM-M AS PRESCRIBED UNDER RULE 72 OF CENTRAL RULE OR CORRESPONDING STATE RULE.

DUTY OF EMPLOYER ON RECEIVING / GIVING NOTICE

ON RECEIVING STRIKE NOTICE / OR GIVING LOCKOUT NOTICE: SHOULD INFORM THE APPROPRIATE GOVERNMEN WITHIN FIVE DAYS OF RECEIPT OF NOTICE [22(6)] AND ALSO FORTHWITH INFORM THE CONCILIATION OFFICER .

LOCKOUT NOTICE MUST BE DISPLAYED ON NOTICE BOARD AT THE ENTRANCE .

CONSEQUENCES OF ILLEGAL STRIKES / LOCKOUTS

ON WORKMEN ALL WORKMEN NO WAGES INSTIGATORS COULD BE PUNISHED/IMPRISONED UNDER SECTIONS 26, 27, 28. ON EMPLOYER WILL HAVE TO PAY WAGES AND CAN BE PUNISHED/IMPRISONED UNDER SECTIONS 26, 27, 28.

ON ANY PERSON ANY PERSON EXTENDING FINANCIAL ASSISTANCE TO FURTHER AN ILLEGAL STRIKE OR LOCKOUT WOULD BE VIOLATING SECTION 25.

DEFINITION
"retrenchment" means 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, but does not include - (a) voluntary retirement of the workman; or retirement of the workman on reaching the age of superannuating termination of the service of a workman on the ground of continued ill-health

 The following cases are not retrenchment

(a) Voluntary retirement of a workman

(b) retirement of a workman on reaching the age

of superannuation Termination of the service of a workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated.

Lay-off
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;

Difference between lockout and lay-off: (1) Lockout is an act on the part of the employer to pressurise the labour; while layoff is for trade reasons, beyond the control of the employer; i.e., it is not intentional act. (2) Lockout is exercised due to an industrial dispute and continues during the period of dispute; layoff is not necessiorily concerned with dispute with workmen.

Difference between lock-out and retrenchment: (1) Temporary or permanent: Lockout is temporary measure, while retrenchment is permanent. (2) Relationship: In lockout the relationship of employer and employee is only suspended; it does not come to an end. In retrenchment such a relationship is severed at the instance of the employer. (3) Motive: Lockout is with a motive to coerce the workmen; the intention of retrenchment is to dispense with surplus labour. (4) Trade dispute: Lockout is due to an industrial dispute, whereas in case of retrenchment, there is no such dispute