Unit 2 industrial dispute

Unit2: Industrial disputes - Covers Anna university syllabus - Industrial relations and labor welfare

1. Industrial relations and labor welfare Unit 2 : Industrial Dispute act 1947 Prepared and presented by N. Ganesha Pandian Assistant professor Madurai school of management Madurai

2. Industrial Dispute Section 2(K) of the Industrial Dispute act 1947, defines “Industrial dispute” means “ Any Dispute or difference between employer and employer or between employer and workman or between workman and workman, which is connected with the employment or non employment or the terms of employment with the conditions of labor, of any person ”

3. Factum of Industrial Dispute Dispute of difference connotes a real and substantial difference having some element of persistency and continuity till resolved If no dispute raised by workmen with the management, any request sent by them to government would only be a demand

4. Parties to Industrial dispute Settlement of disputes between 1- Employer – Workman 2- Employer - Employer 3- Workman – Workman But does not include disputes between: Government and an industrial establishment Workmen and non workmen

5. Subject matter of Industrial dispute The dispute must be connected with the employment and non employment or terms of employment with the conditions of labor, of any person Terms of employment Employment and Non employment

6. Causes of Industrial Dispute 1.Economic causes : wages, dearness allowances and bonus, high industrial profits, working conditions and working hours, weakness of TU 2. Non-Economic causes : Victimization of workers, Ill treatment by staff members, sympathetic strikes, political factors and indiscipline

7. Impact of Industrial Dispute They disturb economic, social and political life of a country Unrest and unnecessary tensions Economic loss due to conflicts Industrial loss leads to economic depression The Lives of low level laborers become worsen When Industrial conflict get out of hand, they become a threat to peace and security

8. SBI and associate bankers strike Source : The Hindu

9. The demands include delinking associate banks from SBI. The All India Bank Employees Association (AIBEA) on Saturday called for a nation-wide strike on June 24,2015 in support of various demands of the State Sector Bank Employees Association (SSBEA ). SSBEA, under its umbrella, has various unions of associate banks of SBI such as State Bank of Bikaner and Jaipur , State Bank of Travancore, State Bank of Hyderabad and State Bank of Mysore and the like, which are also associated with AIBEA . Beside the nation-wide strike call, unions of associate banks — under SSBEA — have also called for a strike on June 4 in their respective cities pressing for their demands . Source : The Hindu

10. The demands include delinking associate banks from SBI, not curbing right of trade unions’ right of representation, extension of compassionate appointment scheme as per government guidelines, increase in quantum of staff housing loan, recruitment of sub-staff and part-time employees and resolving pending demands, among others, AIBEA General Secretary C.H. Venkatachalam told PTI. He accused the SBI management of hampering the performance of associate banks due to its “bossy approach.” Source : The Hindu

11. Instruments of Economic Coercion Activities include various forms such as Withdrawal of labor, raw material, customer dealer or combination of these Strike Picketing Gherao Bandh Lockout

12. Strike Definition: Section 2(Q) of the industrial dispute act 1947 (IDA) defines strike to mean “ 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 no. of persons who are or have been so employed to continue to work or to accept employment

13. Forms of Strike 1, Stay in strike, Sit-down strike, pen down strike or tool down strike 2, Go slow strike 3, Hunger strike 4, Lightning or wild cat strike 5, Work to rule Three forms of withdrawal of labor 1, cessation of work 2, Refusal to continue to work and 3, refusal to accept employment

14. Picketing Elements of picketing Right to freedom of speech Freedom of association Freedom of movement

15. Picketing and Right to freedom of speech Section 7 of the criminal law amendment act 1932 prohibits obstruction of access and intimidation of persons or employees or loitering at places of residence or business with the intent of deterring others from entering or approaching or dealing at such places.

16. Picketing and freedom of movement 1. Article 19(1) (d) of the constitution guarantees to every citizen the right to move freely throughout the territory of India 2. Section 7 of the criminal law amendment act 1932 curtails the freedom of movement by making a mere excuse of right of freedom of movement penal under certain circumstances

17. Picketing and freedom of Association Article 19(1) (C) of the constitution guarantees to all citizen the right to form the associations and unions. This right may however subject to reasonable restrictions in the interest of public order and morality Section 7 of the criminal law amendment act 1932 prohibits mere loitering with certain intent and places restriction on picketing

18. Gherao Instrument of physical not economic Gherao become the mot potent weapon in hands of workers in 1960’s especially found in WB Literally the word means encirclement , confinement, not free Punishable under section 339 or 340 of IPC and may fall under the purview of section 503 IPC Duty of union leaders to condemn this form of labor protest , may affect national interest in long run

19. Bandh In Hindi the word means ‘locked’ or ‘closed’ It is illegal and unconstitutional It is against fundamental rights of an individual The political parties and organizations which call for such bandh are liable to compensate for the losses In period of bandh , “No work, no pay for absence”

20. Lock out Lock out – Employer’s instrument of economic coercion It was resorted to by an employer or group of employers to ban union membership Usually declared by a body employers against a strike at a particular work by closing all factories until strikers returned to work

21. Definition of Lock out Section 2(1) of the industrial disputes Act 1947 defines ‘Lockout’ to mean: The temporary closing of a place of employment or the suspension of work, or refusal by an employer to continue to employ any no. of persons employed by him Lock out is the counterpart to strike It doesn’t include one workman, but means more than one.

22. Is strike a fundamental rights? 19(1)(C) guarantees the right to form associations , a guarantee is also implied that the fulfillment of every object of an association so formed is also a protected right, with the result that there is a constitutional guarantee that every association shall effectively achieve the purpose, without interference by law except on grounds relevant to the preservation of public order and morality

23. Legal and Illegal strikes The strike cannot be said to be illegal strike if it does not contravene any provision of the law Section 24 of ID act , prescribes the grounds where the strike would be declared illegal. The punishment of dismissal or termination of service has, therefore to be imposed on such workmen who had participated and fomented the strike

24. Wages for strike period The workers are not entitled to wages for the strike period even if the strike is legal, but not justified, it should be legal and justified The legality of strike can be looked from ID act and whereas Justifiability of strike can be looked from the charter of demands

25. Sec 22 Prohibition of Strikes and Lockout No person employed in public utility service neither shall go on strike nor a employer shall lock out A, Without giving notice within six weeks or within fourteen days of giving such notice B, Or before the expiry of the date specified in any such notice C, or during the pendency of any conciliation proceedings and seven days after that conclusion of proceedings

26. Layoff and Retrenchment Definition of continuous services : “A workman shell be said to be in continuous service for a period if he is for that period in uninterrupted service including service may be interrupted on account of sickness or authorized leave or an accident or a strike which is not illegal or lockout or cessation of work which is not due to fault at part of workman”

27. Retrenchment ‘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 doesn’t include: Voluntary retirement of the workman or, Retirement of the workman or reaching the age of superannuation Termination of service contract as result of non renewal Termination on ground of continued ill health

28. Conditions precedent to retrenchment of workman sec 25F No workmen employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until- 1, one month’s notice to the workman by the employer indicating the reasons for retrenchment or payment of wages for the period of notice in lieu of notice 2, Payment of compensation at the time of retrenchment at the rate equivalent to 15 days average pay for every completed year of continuous service or any part thereof in excess of six months

29. Contd … 3 . Notice to appropriate government or such authority as may be specified by the appropriate government, in the prescribed manner These above conditions achieve double purpose of A, to save the employer from carrying the deadweight of surplus labor B, and to provide compensation to workman suffer hardship due to unemployment caused by retrenchment

30. Procedure for retrenchment sec 25G There is no general law laid down anywhere in the act except that laid down in section 25G provides procedure for retrenchment This section prescribes that an employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for the reasons to be recorded in writing, the employer retrenches any other workman The rule of “Last come first Go” has been statutorily recognized by sec 25G

31. Re employment of retrenched workman sec 25H Section 25 H was inserted in the industrial disputes act by the amendment act of 1953. It prescribes that if the employer proposes to employ new hand, then he has to provide an opportunity to the retrenched workman and preference given to such workman over other person

32. Penalty for retrenchment and layoff without prior permission sec 25Q Any employer who contravenes the provisions of sec 25M and sec 25N shall be punishable with imprisonment for a term of which may extend to one month, or with fine which may extend to one thousand rupees or with both

33. Penalty for illegal strikes and lock outs (sec 26) 1, Indulgence of any workman in illegal strike leads to imprisonment for a term extend to one month or with fine to fifty rupees or both 2, Illegal lock out shall be punishable by one month imprisonment or one thousand fine or both

34. 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 breakdown of machinery or natural calamity or for any other connected reason to give employment to a workman whose name is in borne on the muster rolls of his industrial establishment and who has not been retrenched

35. Right of workman laid off for compensation sec 25C According to provisions of sec 25c , a workman who has completed one year of continuous service as defined in sec 25B of act whose name is borne on the muster roll has been laid-off, will be entitled to 50% of total basic wages and D.A If workmen laid off more than 45 days, there will be no compensation payable and employer shall have retrenchment after the expiry of 45 days If any compensation paid to workman for having been laid-off may be set off against the compensation payable for retrenchment.

36. Prohibition of lay-off sec 25M 1. Layoff by employer should get prior permission from appropriate government by notification in official gazette The workman of industrial establishment can be laid off under following reasons as fire, flood, or excess of inflammable gas or explosion Employer should get permission from appropriate government of 30 days within after commencement of lay-off for above said reasons

37. Contd … After such notification of lay-off, if government doesn’t communicate grant or refusal, then it is deemed to have been granted after expiry of 60 d ays Where the permission for any lay-off has been refused, such lay-off shall be deemed to be illegal Notwithstanding of above said provisions, there are certain exceptions for lay-off with immediate effect such as accident in establishment or death of employer and alike

38. Settlement Settlement means a settlement arrived at in the course of conciliation proceedings and includes a written agreement b/w the employer and workmen arrives at otherwise than in the course of conciliation proceeding where such agreement has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent an officer authorized in this behalf by appropriate government and the conciliation officer

39. Conciliation Conciliation officer – sec4 ‘A conciliator officer may be appointed for a specified area or for specified industries in a specified area or for one or more specified industries and either permanently or for a limited period Boards of conciliation – sec5 ‘A Board shall consists of a chairman and two or four other members ,as government thinks fit. The chairman shall be an independent person and other members shall be appointed in equal nos. to represent the parties to the dispute

40. Duties of conciliation officer sec 12 1, According to notice under sec22 has been given, shall hold conciliation proceedings in the prescribed manner 2, He investigate the matter and try to settle down fair and amicable to both parties 3, If no such settlement is arrived at, the officer shall, as soon as send full report to concerned authority and also may be there is a case for reference to a board, labor court, tribunal or national tribunal 4, A report under this section shall be submitted within 14 days of commencement of the conciliation proceedings or within such shorter period as may be fixed by appropriate government

41. Adjudication If despite efforts of the conciliation officer, no settlement is arrived at between employer and the workman. The ID act provides a three tier system of adjudication 1, Labour courts (sec7) 2, Industrial tribunals (sec 7A) 3, National tribunals (sec7B)

42. Labour courts have been empowered to decide disputes relating to matters specified in the second schedule. These matters are concerned with rights of workers, such as propriety of legality of an order passed by an employer under standing orders application, discharge and interpretation of standing order, strike and lock out The industrial tribunal are empowered to adjudicate on matters specified on both the second and third schedule ( i.e ) both rights and interest disputes

43. The jurisdiction of the industrial tribunal is wider than that of labor courts In case of disputes which in the opinion of the central government involve question of national importance or is of such nature that workers in more than one state are likely to be affected. The act provides for constitution of national tribunals

44. Conciliation and Mediation Both involves third party provides assistance. But in conciliation, both parties come closer to discuss and reach the settlement In mediation sometimes, the third party comes to decision on his own

45. Arbitration Arbitration, a form of alternative dispute resolution(ADR) is a legal technique for the resolution of disputes outside the courts. It is a settlement techniques a third party (arbitrators or arbiters or arbitral tribunal) reviews the case and impose a decision that is legally binding for both sides Arbitration can be either voluntary or mandatory, often used for resolution of commercial disputes

46. Arbitration sometimes called a djudication is a private trial like process that can be commenced by any two or more parties who agree to arbitrate either under a contract, by legislation, or by simple written agreement A properly designed, well managed arbitration process can be completed quickly and is a highly efficient means of resolving disputes Arbitrations are conducted under the commercial arbitration acts. The acts give arbitrators most of the power and authority of supreme court judges

47. Arbitration process An arbitrator is applied to be a “Private judge” and is required to manage a confidential “Private trial” Decision should be based on trying to achieve most time and cost effective process, above all considerations. Inevitably, more formal the process, the lengthier and more expensive it becomes

48. The parties have an opportunity to present and promote their arguments and to have them tested by their opponents After all information and argument presented and tested, the arbitrators evaluates and make it as written decision called the “award” The award is legally binding on the parties and is enforceable through the courts like a court judgment

49. Benefits of arbitration Even the largest and most complex disputes should only require a few months to resolve Cheaper and quicker than conventional litigation Confidentiality is another advantage of this process Confidentiality – often a critical factor in sensitive commercial and family business disputes

50. The arbitration and conciliation act 1996 – more approximate to the traditional system giving more liberty to the parties to choose their own procedures and arbitrators All disputes other than the disputes where substantial question of law touching upon the constitutional, statutory or other doctrinal interpretation should be encouraged to be settled trough Alternative Dispute resolution mechanisms.

51. Industrial peace Industrial peace is not merely a negative concept signifying the absence of industrial unrest or the reconciling of hostile forces to avoid ruinous strife. But it also signifies the active presence of harmonious and good industrial relations generating amity and goodwill between the partners in an industry

52. Industrial relations in public sector The industry policy resolution of 1984 declared that “a dynamic national party must be directed to a continuous increase in production by all possible means, side by side with measures to secure its equitable distribution”. The problem of state participation in industry and the condition in which private enterprise should be allowed to operate must be judged in this context

53. Code of conduct 1, Professionalism 2,Conflict of interest 3,Confidentiality of information 4, Integrity of financial information 5, Protection and use of company property 6, Acceptance of gifts and other benefits 7, Harassments 8, Frauds 9, Compliance with laws and agreement 10, Misconduct and non-conformance with policy 11, Accountability

54. Exam point of view Part – A What do you mean by arbitration? Define strike? What are the primary causes of industrial disputes? Explain the role of conciliation board in maintaining industrial peace? Define “Disputes”? What is meant by adjudication? What is training and development? What are the disadvantages of strike? What do you mean by industrial peace? Who is conciliation officer? Distinguish between strike and lockout?

55. Exam point of view Part – B Conciliation, arbitration and adjudication Causes of industrial dispute and ways to prevent it Sources of industrial disputes Strike, Different forms of strike, Statutory requirements Role of government machinery in case of industrial conflict process of grievances redressal in India