INDUSTRIAL DISPUTES ACT, 1947

A K BASU

INDUSTRIAL LAWS
Are they necessary ? Concept of Equity Concept of Fairness Concept of Social Benefit Types of Laws Legislated Judge Made Why should you study them ?

THE INDUSTRIAL DISPUTES ACT, 1947

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

APPLICABILITY To the whole of India Enforced with effect from 1 April 1947

SALIENT DEFINITIONS

INDUSTRY [Section 2 j ]

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

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

SALIENT DEFINITIONS (contd)

INDUSTRIAL DISPUTE [ Section 2 k ] Any dispute or difference between Employers & Employers Employers & Workmen Workmen & Workmen

Which is connected with The employment or non-employment Terms of employment Conditions of Labour Of any person

SALIENT DEFINITIONS (contd)

EMPLOYER [ Section 2 g ]

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

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

SALIENT DEFINITIONS (contd)

WORKMAN [ Section 2 s ] Any person (including an apprentice) employed in any industry to do work which is (i) Manual (ii) Unskilled (iii) Skilled (iv) Technical (v) Operational (vi) Clerical (vii) Supervisory

SALIENT DEFINITIONS (contd)

WORKMAN [ Section 2 s ]

For hire or reward

Terms expressed or implied

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

SALIENT DEFINITIONS (contd)

WORKMAN [Section 2 s ] Does not include Person employed in Army, Navy or Air Force Person employed in Police or any Officer / Employee of a Prison Person employed managerial or capacity mainly in administrative

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

SALIENT DEFINITIONS (contd)

INDUSTRIAL DISPUTE [ Sections 2k & 2A ]

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

SALIENT DEFINITIONS (contd)

WAGES [ Section 2 rr ] All remuneration capable of being expressed in money which would be payable as per terms of employment to a workman in respect of his employment or of work done in such employment Includes all allowances and DA Includes value of house accommodation, supply of light, water, medical attendance, any amenity, any service, concessional supply of food-grains and other articles Includes travelling concession Commission on sales or business promotion

SALIENT DEFINITIONS (contd)

WAGES DOES NOT INCLUDE Any bonus Employers contribution paid or payable to Pension Fund or PF Gratuity SETTLEMENT [ Section 2 p ] Arrived at in course of conciliation Any bipartite written agreement between employer & workmen in prescribed format, which has been also sent to Conciliation Officer and Secretary, Dept. of Labour of State Government or Central Government

STRIKE
Cessation of work by a body of persons in combination or a concerted refusal to continue to work or to accept employment Mass absenteeism Sit down strike Leaving workplace en masse Go slow ?

LOCK OUT [ Section 2 l ]

Temporary closing of a place of employment or suspension of work, or refusal by employer to continue to employ any number of persons otherwise employed by him Conditions for lock out ? Is part lock out possible ?

RETRENCHMENT [Sec 2oo]

Termination for any reason whatsoever,otherwise than as punishment Doesnot include - voluntary retirement - retirement on superannuation - termination of fixed-time contracts - termination for continued ill health

VARIOUS AUTHORITIES FOR SETTLEMENT OF INDUSTRIAL DISPUTES

INTERNAL TO THE INDUSTRIAL ESTABLISHMENT Works Committee (estb. having 100 workmen) Joint Body Workmen representatives selected / elected to be

To secure / promote amity and good relations by resolving differences

Works Grievance Settlement Authority for Settlement of Individual Dispute

VARIOUS AUTHORITIES FOR SETTLEMENT OF INDUSTRIAL DISPUTES

EXTERNAL AGENCIES Conciliation Officers Mediates in case industrial dispute exists or is apprehended Signs tripartite settlement If no settlement, submits failure report to Government with recommendation to refer to tribunal or not Has no judicial powers or authority for enforcement or issue of order

VARIOUS AUTHORITIES FOR SETTLEMENT OF INDUSTRIAL DISPUTES

BOARD OF CONCILIATION Parties can individually or jointly apply for conciliation Government can refer directly

COURTS OF ENQUIRY For inquiring into any matter relevant to an industrial dispute

VARIOUS AUTHORITIES FOR SETTLEMENT OF INDUSTRIAL DISPUTES

LABOUR COURTS Adjudicates, on reference by the Government, on any dispute relating to matters specified in 2nd schedule Adjudicates, on receiving complaint, whether conditions of service have been changed in contravention of the Act during pendency of proceedings [Section 33] Determines recovery of money due by a workman from an employer (Sec 33 C) Have powers similar to a civil court

VARIOUS AUTHORITIES FOR SETTLEMENT OF INDUSTRIAL DISPUTES

TRIBUNALS Adjudicates on any matter in the 2nd or 3rd schedules on reference Judicial powers similar to Labour Courts NATIONAL TRIBUNALS To adjudicate on disputes of national importance or of such nature that industries in more than one state are likely to be involved

VARIOUS AUTHORITIES FOR SETTLEMENT OF INDUSTRIAL DISPUTES

ARBITRATION Voluntary agreement workmen reference by written between employer and of of

Government to issue notification reference on receiving copy agreement

Others not party to the agreement will be given opportunity to present their case Prohibition arbitration of strike/lock-out during

SETTLEMENT OF DISPUTES
BIPARTITE SETTLEMENT [Section 18 { 1 } ] Binding on the parties to the settlement TRIPARTITE SETTLEMENT [Section 18 { 3} ] Arrived at in conciliation Binding on all parties to the industrial dispute All other parties summoned or not summoned All future employees for the period of settlement

SETTLEMENT OF DISPUTES (contd)

PERIOD OF OPERATION [ Section 19 ] From the date agreed upon or, in its absence, from the date of signing Memorandum of Settlement Shall continue in operation after date of expiry until 2 months after giving notice of termination by one party to the other

ADJUDICATION
On failure of conciliation, Government may or may not refer dispute for adjudication Labour Court or Tribunal is a judicial body Power to summon persons and inspect documents Power to appoint specialists as assessors to help it Power to order reinstatement or give lesser punishment Power to re-open enquiry proceedings and adduce fresh evidence Award is applicable on expiry of 30 days from its publication in official notification

RIGHT OF REDRESSAL
Employer can move the High Court or Supreme Court against an award of Labour Court / Tribunal to the Single Bench of High Court Division Bench of High Court Supreme Court Full wages payable to workman during pendency of proceedings in case workman is not employed elsewhere [Section 17 B ]

CHANGE IN SERVICE CONDITIONS (SEC 9A)

Notice of change to be given to workman for any change in service conditions as specified in Fourth Schedule Notice to be given 21 days before making such change [ 42 days in West Bengal ] No Notice required if Change is a result of any settlement / award Workman are covered by Civil Service, Defence or Railway Rules Power to exempt by appropriate govern ment if public interest warrants

LAY OFF [ Section 2 kkk ]

DEFINITION Failure, refusal or inability or employer to employ one or more workman on account of Shortage of materials coal power or raw

Accumulation of stocks Breakdown of machinery Natural Calamity Any other connected reason

LAY OFF (contd)

LAY OFF CONPENSATION [Section 25C] : 50% of Basic wages and DA upto 45 days. Thereafter, can be retrenched

NO COMPENSATION IF [Section 25E] : Workman refuses to accept redeployment at same wages Workman does not present himself for work every day Such lay off is due to strike or go slow in another part of establishment

LAY OFF (contd)

LAY OFF PROVISIONS DO NOT APPLY TO : Seasonal establishment Establishments in which work performed only intermittently is

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

LAY OFF (contd)

CHAPTER V-B RESTRICTIONS Applicable to industrial establishment in which 100 or more workmen were employed in preceding 12 months on an average per working day [ 50 IN CASE OF West Bengal ]. Lay off can only be made after obtaining prior permission of Government, except in cases of Shortage of power Natural Calamity Fire / Flood Excess of inflammable Gas Explosion

RETRENCHMENT
CONDITIONS PRECEDENT TO RETRENCHMENT Workman has been given 1 months notice, or wages in lieu Compensation equal to 15 days average pay for every year of continuous service PROCEDURE Either By Agreement between employer & workmen, or Last person employed in a category - LIFO

RETRENCHMENT (contd)
RE-EMPLOYMENT In case of fresh recruitment, retrenched employee to get preference

RETRENCHMENT (contd)
RESTRICTIONS OF RETRENCHMENT IN CHAPTER VB Applicable to establishment employing 100 or more workmen - in case of West Bengal 50 or more NO RETRENCHMENT UNLESS Workmen has been given 3 months notice in writing indicating reasons for retrenchment, and period of notice has expired or the workmen has been paid wages in lieu; Prior permission of the appropriate Government has been obtained on an application made in this behalf. Copy of application to be served on the workmen concerned

RETRENCHMENT (contd)
Appropriate Government / Specified Authority to give reasonable opportunity to the employer of being heard in the matter, grant permission or refuse in writing If Order of Government / Specified Authority is not received with the period of 60 days from the date of application, deemed permission is granted In case of issue of Order, binding on all parties concerned and will remain in force for one year

CLOSURE / TRANSFER
DEFINITION Permanent closing down of a place of employment or part thereof CONDITIONS PRECEDENT TO CLOSURE Prior permission of Government necessary for industrial establishments engaging 100 or more workmen in preceding 12 months [ 50 workmen in case of West Bengal ] 60 days notice for industrial establishments engaging 50 to 99 workmen COMPENSATION Same as retrenchment compensation Average pay for 3 months in cases of closure due to unavoidable circumstances

CLOSURE / TRANSFER (contd)

UNAVOIDABLE INCLUDE CIRCUMSTANCES DOES NOT

Financial difficulties Accumulation of undisposed stocks Expiry of lease or licence For Mines, Exhaustion of Minerals TRANSFER OR OWNERSHIP Notice & Compensation same as retrenchment if service is interrupted

CLOSURE (contd)
RESTRICTIONS OF CLOSURE OF CHAPTER VB Applicable to establishment employing 100 or more workmen - in case of West Bengal 50 or more Employer to seek prior permission of atleast 90 days in advance of the date of intended closure from Government with copy served on representatives of workmen Same procedure of Retrenchment to be followed These Clauses will not apply to any undertaking set up for construction of building, bridges, roads, canals, dams or for other construction work

STRIKES /LOCK OUT

PUBLIC UTILITY SERVICE Railways or any air transport service Major port or dock Any section of an industrial establishment on whose working the safety of establishment depends Postal, Telegraph, Telephone services Industry supplying power, light or water Public conservancy or sanitation Any industry specified in 1st schedule

STRIKES /LOCK OUT (contd)

PROHIBITION OF STRIKES /LOCK-OUTS In public utility services, without giving due notice to the other party of at least 14 days or during pendency of conciliation proceedings and 7 days after conclusion of proceedings To send copy of notice to appropriate authority

STRIKES /LOCK OUT (contd)

For any industrial establishment During pendency of conciliation proceedings before a Board and 7 days after conclusion During pendency of proceedings before an arbitrator, Labour Court, Tribunal or National Tribunal & 2 months after conclusion During period of settlement / award for any matter covered by it What are illegal strikes ?

STRIKES /LOCK OUT (contd)

ILLEGAL STRIKES / LOCK-OUTS Not illegal if it was in existence at time of reference of dispute unless specially prohibited Lock-out / Strike declared as a consequence of illegal Strike / Lock-out is not illegal Penalties

INDIVIDUAL WORKMAN
APPLICABILITY WORKMEN OF THE ACT ON INDIVIDUAL

Workmen can raise disputes individually U/S 2A

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

INDIVIDUAL WORKMAN (contd)

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

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

INDIVIDUAL WORKMAN (contd)

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

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

CONDITIONS OF SERVICES TO REMAIN UNCHANGED (SEC 33)

DURING PENDENCY EMPLOYER SHALL NOT

OF

ANY

PROCEEDINGS

Regarding any matter connected with the dispute alter the conditions of service, or discharge or punish by dismissal, any workman connected with the dispute without prior permission from the concerned authority before whom proceeding is pending [ Section 33 {1} ] Regarding any matter not connected with the dispute, alter conditions of service in accordance with Standing Orders or terms of contract, or discharge /punish workman not connected with the dispute without paying one months wages for discharge/ dismissal and applying for post facto approval [ Section 33 {2} ]

CONDITIONS OF SERVICES TO REMAIN UNCHANGED (SEC 33)

PENDENCY OF PROCEEDINGS Conciliation proceeding commences on date of receipt of notice of Strike/ Lock-out, or when Order is made referring dispute to Board Concludes when settlement is arrived at or when failure report is received by Government or when a reference is made to Court, etc. during pendency Proceedings before Arbitrator, Labour Court, Tribunal, etc. commences on date of reference & concludes when award becomes enforceable after 30 days of publication

CONDITIONS OF SERVICES TO REMAIN UNCHANGED (SEC 33)

PROTECTED WORKMAN Office Bearer or Executive Member of a registered Trade Union recognised as Protected Workman as per prescribed procedure [Section 33 {3} & {4} and Rule 61 ] No employer shall take any action against a protected workman concerned in a dispute which is pending before an Authority

UNFAIR LABOUR PRACTICES

Any practice specified in Fifth Schedule New Chapter V-C inserted with effected from 21 August 1984 Prohibition of Unfair Labour Practice by employer, workman or Trade Union, whether registered or not Penalty Imprisonment for 6 months Fine upto Rs. 1000/- or both

LEGAL RESTRICTIONS ON DISMISSAL

Section 33 of Industrial Disputes Act, 1947

Section 11A of I.D. Act, 1947

Section 17 B of I.D. Act, 1947

Section 2 A of I.D Act 1947

Termination of Contract and Retrenchment

TYPES OF EMPLOYMENT
PROBATIONERS For stipulated period Termination at retrenchment end of period not

Extension to be specified in writing

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

TYPES OF EMPLOYMENT (contd)

CONCEPT OF CONTINUOUS SERVICES Industrial Dispute Act [Section 25B ] Payment of Gratuity Act [Section 2A ]

CASUAL / TEMPORARY / BADLI Appointment for specified period to be clearly stated Break in service

APPRENTICES
DIFFERENCE WITH MASTER-SERVANT CONTRACTS COMPANY APPRENTICES - THE STATUS IN LAW Industrial Dispute Act Provident Funds Act ESI Act Factories Act MASTER SERVANT RELATIONSHIP Power of selection Payment of wages or other remuneration Right of superintendence & control Power of suspension / dismissal APPRENTICES ACT, 1961