Professional Documents
Culture Documents
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CONTENTS
Module-1) The Industrial Disputes Act 1947
Module-2) The Industrial Employment (Standing Orders) Act 1946
Module-3) Trade Unions Act 1926
Module-4) Gujarat Industrial Relations Act (former BIR Act) & Collective
Bargaining
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Go To Contents
MODULE-1 QUESTIONS :
Discuss : Development of Labour Laws (Industrial Law) internationally as well as in
India.
Discuss : Scope, objects and main features of the ID Act 1947, Definitions : Industry,
Industrial Dispute (Individual and Collective), Workman etc. and Judicial
Pronouncements.
Explain in detail the aims and objectives of the Industrial Disputes Act 1947.
(Dec-2016)
State the aims and objects of the industrial disputes act 1947. (Nov-2011)
State the concept of industry and industrial dispute with case laws under the I.D.
Act 1947. (Dec-2016)
Explain with decided cases the definition of worker, industries and industrial disputes
under ID act. (Nov-2011)
Explain the definition of "an Industry and Industrial Dispute" with reference to passed
judgment under Industrial Dispute Act 1947. (Oct-2013, Nov-2014)
Write short note : industry. (Nov-2012, Nov-2014)
Discuss : Authorities under the ID Act 1947 : Works Committee, Conciliation Officer,
Boards of conciliation, Courts of Inquiry, Labour Court, Tribunals
Explain in detail the Authorities under the I.D. Act 1947. (Dec-2016)
Discuss : Procedure, powers and duties of the Authorities under ID Act 1947
Discuss the powers and jurisdiction of the labour Court, industrial Tribunal and
national Tribunal. (Nov-2012)
Write short note : industrial tribunal. (Nov-2014)
Write explanatory notes : Jurisdiction of Industrial Tribunal. (Oct-2013)
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Go To Contents
MODULE-1 ANSWERS :
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repealing the Trade Disputes Act 1929 has since remained on statute book.
Constitutional provisions with regard to labour laws :
The relevance of the dignity of human labour and the need for protecting and
safeguarding the interest of labour as human beings has been enshrined in
Chapter-III (Articles 16, 19, 23 & 24) and Chapter IV (Articles 39, 41, 42, 43, 43A
& 54) of the Constitution of India keeping in line with Fundamental Rights and
Directive Principles of State Policy.
Labour is a concurrent subject in the Constitution of India implying that both the
Union and the state governments are competent to legislate on labour matters and
administer the same. The bulk of important legislative acts have been enacted by
the Parliament.
These legislations can be categorized as follows :
1) Labour laws enacted by the Central Government, where the Central
Government has the sole responsibility for enforcement.
2) Labour laws enacted by Central Government and enforced both by Central
and State Governments.
3) Labour laws enacted by Central Government and enforced by the State
Governments.
4) Labour laws enacted and enforced by the various State Governments which
apply to respective States.
The Constitution of India provides detailed provisions for the rights of the citizens
and also lays down the Directive Principles of State Policy which set an aim to
which the activities of the state are to be guided. These Directive Principles
provide:
a. for securing the health and strength of employees, men and women;
b. that the tender age of children are not abused;
c. that citizens are not forced by economic necessity to enter avocations
unsuited to their age or strength;
d. just and humane conditions of work and maternity relief are provided; and
e. that the Government shall take steps, by suitable legislation or in any other
way, to secure the participation of employee in the management of
undertakings, establishments or other organisations engaged in any industry.
Go To MODULE-1 QUESTIONS
Go To Contents
Discuss : Scope, objects and main features of the ID Act 1947, Definitions : Industry,
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the central or State Government , to appoint conciliation officers with the duty of
mediating in and promoting the settlement of industrial disputes.
For the purpose of adjudication, there is a three tier system of labour courts,
industrial tribunals and national tribunals.
The Act prescribes pre-conditions for legality of strikes and lockouts.
It also provides for payment of compensation to workmen in cases of lay-off,
retrenchment and closure.
Objectives of the ID Act 1947 :
To ensure social justice to both employers & employees and advance
progress of industry by bringing about harmony & cordial relationship. To
settle disputes arising between the capital and labour by peaceful
methods and through machinery of conciliation, arbitration and if
necessary, by approaching the tribunals constituted under the Act .
To promote measures for securing and preserving amity and good
relations between the employer & workmen.
To prevent illegal strikes and lockouts
To provide compensation to workmen in case of lay off, retrenchment and closure.
To protect workmen against victimization by the employer & to ensure
termination of industrial disputes in a peaceful manner.
To promote collective bargaining.
Definition : Sec-2(s) : "Workman" : workman means any person (including an
apprentice) employed in any industry to do any manual, unskilled, skilled, technical,
operational, clerical or supervisory work for hire or reward, whether the terms of
employment be express or implied, and for the purposes of any proceeding under this
Act in relation to an industrial dispute, includes any such person who has been
dismissed, discharged or retrenched in connection with, or as a consequence of, that
dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but
does not include any such person
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950
(46 of 1950), or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or as an officer or other employee of a
prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages exceeding one
thousand six hundred rupees per mensem or exercises, either by the nature of
the duties attached to the office or by reason of the powers vested in him,
functions mainly of a managerial nature.
Analysis of the definition : The definition of workmen in section 2(s) falls in three
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parts.
The first part determines what a workman means. It gives a statutory meaning
of workman. This part determines a workman by reference to a person
(including an apprentice) employed in an industry to do any manual, unskilled,
skilled, technical, operational, clerical or supervisory work, for the hire or
reward. Unless there is a relationship of employer and employee between
parties, the definition of; workman; will not come into play.
The second part is designed to include something more in what the term
primarily denotes. This part gives an extended connotation to the expression
workman.
The third part specifically excludes the categories of persons specified in clauses
(i) to (iv) of this subsection. Even if a person satisfies the requirements of any
of the first two parts, he shall be excluded from the definition of workman if he
falls in any of the four categories in the third part.
Industry
Normally speaking by industry it is meant production of goods, and wealth and with
the cooperation of labour and capital, but it is not so under ID Act 1947.
Definition : section 2(j) : Industry means any business, trade, undertaking,
manufacture or calling of the employees and includes any calling, service,
employment, handicraft, or industrial occupation or vocation of workmen.
The definition of industry is in two parts.
the first part says that industry means any business, trade, undertaking,
manufacture or calling of employers, and
the second part of the definition of industry says that it includes any calling,
service, employment, handicraft, or industrial occupation or avocation of
workmen.
The definition of 'industry' gives the meaning as a collective enterprise in which
employers and employees working together are associated with the industry. It is
to be mentioned here that the industry does not consist of either employers alone
or by employees alone.
It is to be mentioned here that according to the phraseology of this definition one
can easily brand any business activity or trade as an industry in order to attract the
provisions of the Industrial Disputes Act, 1947.
The Courts have given different meaning to this concept at different times, and
actually, the interpretation has always depended on individual Judges. And even
today, controversy on definition of term "industry' remains unsettled.
In the case of Budge Municipality Vs P.R. Mukerjee, the Supreme Court analyzed
this situation in the light of the Australian Judgment given in Federated Municipal
and Shire Council Employees Union of Australia Vs Melbourne Corporation and
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observed that through every activity in which the relationship of employer and
employee existed commonly understood at an industry, but still a wider and more
comprehensive interpretation has to be given to such words to meet the rapid
industrial progress and to bring about industrial peace, and economy and a fair.
In the case of workmen of I. S. Institution Vs I. S. Institution it was held that the
industry is ordinarily something which employers create or undertake. which is
gradually yielding place to the modern concept which regards industry as a joint
venture undertaken by employers, and workmen, an enterprise which equally
belongs to both. Here it is not necessary to view definition of industry under section
2(j) of the Industrial Dispute Act in two parts.
In Bangalore Water Supply Vs A. Rajappa, a seven Judges Bench of the Supreme
Court exhaustively examined and considered the scope of industry and prescribed
the Triple test which has practically reiterated the test projected in Hospital
Mazdoor Sabha case. The Triple test laid down in the Bangalore Water Supply case
are that where there is,
a) systematic activity,
b) organized by co-operation between employer and employee (the direct and
substantial element is chimerical),
c) for the production and/or distribution of goods and services calculated to
satisfy human wants and wishes,
prima facie, there is an industry.
It is noteworthy, here that in "triple test",
i. Absence of profit motive or gainful objective is irrelevant, be the venture in
public, joint, private or other sectors.
ii. The true focus is functional and the decision test is the nature of the activity
with special emphasis on the employer and employee relations.
iii) An organization does not cease to be an 'industry' even if it is a philanthropic
undertaking.
In view of the above points and the consequences of the decision given in the
Bangalore Water Supply case, activities such as clubs, educational institutions,
cooperatives, Research institutes, charitable projects, etc, if they fulfill the above
Triple test, cannot be exempted from the scope of definition of term "industry" as
given in section 2(j) of the Industrial Disputes Act, 1947.
Definition Sec-2(k) Industrial Disputes means any dispute or difference between :
Employers and Employers or between
Employers and Workmen or between
Workmen and Workmen,
which is connected with the employment or non-employment or the terms of
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dispute :
1. The dispute must affect large group of workmen or employers who have
community of interest and the rights of these workmen must be affected as a
class in the interest of common good. In other words, considerable section of
employees should necessarily make common cause with the general lot.
2. The dispute should invariably be taken up by the industry union or by an
appreciable number of workmen.
3. There must be a concentrated demand by the workers for redress and the
grievance becomes such that if turns from individual complaint into the
general complaint.
4. The parties to the dispute must have direct and substantial interest in the
dispute, i.e., there must be some nexus between the union which espouses
the cause of the workmen and the dispute. Moreover, the union must fairly
claim a representative character.
5. If the dispute was in its inception an individual dispute and continued to be
such till the date of its reference by the Government for adjudication, it could
not be converted into an industrial dispute by support to the reference even of
workmen interested in the dispute.
The whole controversy ultimately ended in the year 1965 and the situation was
changed in cases of dismissals and retrenchments when the Parliament amended
the Industrial Dispute Act, 1947 and added section - 2A, according to which,
even the individual disputes relating to termination of service would now be
called industrial disputes under the Act, notwithstanding whether they have been
taken up by any union or by a number of workmen.
Definition : Section - 2A : Dismissal, etc., of an individual workman to be
deemed to be an industrial dispute : Where any employer discharges,
dismisses, retrenches or otherwise terminates the services of an individual
workman, any dispute or difference between that workman and his employer
connected with, or arising out of, such discharge, dismissal, retrenchment or
termination shall be deemed to be an industrial dispute notwithstanding that no
other workman nor any union of workmen is a party to the dispute.
Categories of Disputes : The following dispute have been categorized as industrial
dispute,
allegation of wrongful termination of service
Compulsory retirement of an employee
Claim for reinstatement of dismissed workmen
Dispute connected with minimum wages
Dispute regarding payment to be made under production bonus scheme
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The Ministry of Labour under Section 17 of the I.D. Act publishes the Award in the
Official Gazette within a period of 30 days from the date of receipt of the Award.
How is the Award implemented ?
An Award becomes enforceable on the expiry of 30 days from the date of its
publication in the Official Gazette. The Regional Labour Commissioner is the
implementing authority of the Awards.
General Prohibition of Strikes and Lockouts : No workman who is employed in any
industrial establishment shall go on strike in breach of contract and no employer of
any such workman shall declare a lockout :
(a) During the pendency of conciliation proceedings before a Board and seven days
after the conclusion of such proceedings,
(b) During the pendency of such proceedings before a Labour Court, Tribunal or
National Tribunal and 2 months after the conclusion of such proceedings.
(c) During the pendency of arbitration proceedings before an Arbitrator and 2
months after the conclusion of such proceedings, where a notification has been
issued.
(d) During any period in which a settlement or Award is in operation in respect of
any of the matters covered by the settlement of Award.
Strike : Does the workman have the Right to go on strike with proper notice in Public
Utility Services ? No person employed in a Public Utility Service can go on strike
without giving to the employer notice of strike :
(a) Within 6 weeks before striking.
(b) Within 14 days of giving such notice.
(c) Before the expiry of the date of strike specified in such notice.
(d) During the pendency of any conciliation proceedings before a Conciliation
Officer and 7 days after the conclusion of such proceedings.
Lock out : Does the Employer have the right to lock out any Public Utility Service ?
No employer carrying on any Public Utility service can lockout any of his workman :
(i) Without giving to them notice of lockout provided within 6 weeks before locking
out.
(ii) Within 14 days of giving such notice.
(iii) Before expiry of the date of lockout specified in any such notice.
(iv) During the pendency of any conciliation proceedings before a Conciliation
Officer and 7 days after the conclusion of such proceedings.
Lay-off : What compensation will a workman get when laid off?
Whenever a workman (other than a badli workman or a casual workman)
whose name is borne on the muster rolls of an industrial establishment
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Go To MODULE-1 QUESTIONS
Go To Contents
Discuss : Authorities under the ID Act 1947 : Works Committee, Conciliation Officer,
Boards of conciliation, Courts of Inquiry, Labour Court, Tribunals
Explain in detail the Authorities under the I.D. Act 1947. (Dec-2016)
Discuss : Procedure, powers and duties of the Authorities under ID Act 1947
Discuss the powers and jurisdiction of the labour Court, industrial Tribunal and
national Tribunal. (Nov-2012)
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matters.
Works Committee consists of representatives of employers and workmen engaged
in the establishment. The number of representatives of workmen on the Committee
shall not be less than the number of representatives of the employer.
The representatives of the workmen shall be chosen in the prescribed manner from
among the workmen engaged in the establishment and in consultation with their
trade union, if any, registered under the Indian Trade Unions Act, 1926.
Duty of work committee :
It shall be the duty of the Works Committee to promote measures for securing
and preserving amity and good relations between the employer and workmen
and, to that end to comment upon matters of their common interest or concern
and endeavour to compose any material difference of opinion in respect of such
matters.
The Committees attempt to remove causes of friction between employers and
workers in the day-to-day working of the factory.
They provide a forum for negotiations between employers and workers at the
factory level.
Short comings : The scope of the Works Committee as in Sec. 3 (ii) of the
Industrial Disputes Act, 1947 is vague. The function and the responsibility of the
Works Committees as their very nomenclature indicates cannot go beyond
recommendation and as such they are more or less bodies who in the first
instances endeavour to compose the differences and the final decision rests with
the employer.
Conciliation Officers (Sec-4 of ID Act 1947) :
Intro :
The ID Act provides for "conciliation" with a view to bringing about an amicable
settlement of industrial disputes. The word "conciliation" has not been defined
under the Act. In industrial parlance, it involves in an industrial dispute
intervention by a third party, who may be a private body or a governmental
representative, for the purpose of bringing about a "settlement".
What is conciliation ? According to Simkim 'conciliation' is a mild form of
intervention limited primarily to scheduling conferences, trying to keep the
disputants talking, facilitating other procedural niceties, carrying messages back
and forth between the parties, and generally being a "good fellow" who tries to
keep things calm and forward looking in a tense situation.
The conciliation officer (hereinafter referred to as "officer") is required to
investigate the dispute and evolve "a recipe for settlement." He does not
discharge any adjudicatory functions in promoting "a fair and amicable
settlement", but can only goad, induce, encourage or cajole the disputants to
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is binding on
i. all parties to the industrial disputes.
ii. all other parties summoned to appear in the proceedings as parties to the
dispute.
iii. where such parties is employer, his heirs and successors of the establishment
to which the dispute relates.
iv. where such parties composed of workmen all persons who were employed in
the establishment or part of the establishment, as the case may be to which the
dispute relates.
Courts of Inquiry (Sec-6 of ID Act 1947) : The idea of Court Inquiry is new in this Act
and has been borrowed from the British Industrial Court Act, 1919. Under the British
Act, the Minister-in-charge can constitute a Court of inquiry to enquire into and report
on the causes and circumstances of any trade dispute together with its own
recommendations.
Generally Court of Inquiry is constituted when no settlement is arrived at as a
result of efforts made by the Conciliation Board.
Constitution :
Setting of a Court of Inquiry is at the discretion of an appropriate Government.
The Government can refer any single or more matter connected or relevant to
the dispute or can refer whole to the Court which can be set up (irrespective of
consent of parties to dispute) for the purpose of inquiry in to any matter
appearing to connect with or relevant to an industrial dispute.
Usually, the Courts of Inquiry comprise one person. In case it has more than one
member one of them will be nominated as Chairmen usually.
Duties :
A Court of Inquiry is required to enquiry into the matter referred to it and report
appropriate Government ordinarily within a period of six months from the
commencement of its inquiry.
The report of inquiry is to be in writing and sign by the all members but any of
its members is free to record any minute of dissent from any recommendations.
Consequences :
The report should be given vide publicity to rouse public interest in the matter in
order to prevent any irrational step on the part of the parties for fear of public
condemnation.
After receiving the report of the Court of Inquiry, the Government may refer the
dispute to one of the adjudication authorities or Labour Courts or Industrial
Tribunal or National Tribunals as the case may be.
Labour Courts (Sec-7 of ID Act 1947) :
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Labour Court is one of the adjudication authorities set up under the Industrial
Disputes Act, 1947 it was introduced by amending Act in 1956. Setting up of a
Labour Court is at the discretion of the Government.
The Government may constitute one or more Labour Courts for the adjudication of
industrial disputes related to legality of an order passed by employer, interpretation
or application of a standing order, discharge or dismissal of workmen, withdrawal
of benefits etc.
Labour Courts, Tribunal or National Tribunal shall hold their adjudication
proceedings expeditiously and submit their report as soon as practicable.
Qualification :
The Presiding Officers of Labour Courts should be independent persons, below
the age of 65 years and with no interest in the industry whose dispute be heard.
It is a one man Court presided over by a person who has held either a judicial
position in India for not less than seven years or who has been a presiding
officer of Labour Court constituted under any state act for not less than five
years.
Duties :
The court has to inquire in the matters referred to it and submit report to
Government in six months of commencement of inquiry.
Function / Jurisdiction :
The function of labour Court is to adjudicate on matters referred to it are listed
in the schedule II appended to the Act, which includes;
The propriety or legality of an order passed by an employer under the
standing orders;
Discharge or dismissal of workmen including re-instatement of or grant of
relief to workmen wrongfully dismissed;
Withdrawal of customary concession or privilege.
Illegality or otherwise of a strike or a lock out.
All matters other than those provided in the Third Schedule appended to
the Act
Reports & Awards : Must be in writing, and needs to be published by the
government within one month from the receipt.
Industrial Tribunals (Sec-7A of ID Act 1947) :
Appropriate Government may constitute by official notification one or more
Industrial Tribunals, on a temporary or permanent basis, for the adjudication of
industrial disputes related to any matter including wages, compensation and other
allowances, hours of work, bonus , profit sharing PF, gratuity, retrenchment,
closure etc. It can also handle disputes related to classification of grades,
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any thing contained in the Act, no Labour Court or Tribunal has jurisdiction to
adjudicate upon any matter which is under adjudication before it. If the mater
under adjudication of National Tribunal is pending before a Court or Tribunal the
proceedings relating to that matter which are pending before them will be
deemed to have been quashed.
State Governments are debarred from referring the matter under adjudication of
National Tribunal to any Labour Court or Industrial Tribunal.
Reports & Awards : Must be in writing, and needs to be published by the
government within one month from the receipt.
Go To MODULE-1 QUESTIONS
Go To Contents
Discuss the provisions of "Strike" and "Lockout" under Industrial Dispute Act 1947.
(Oct-2013)
Explain with Case laws the provisions against the illegal strike and Lockout Under The
BIR act 1946. (Nov-2011)
Write short note : strike and Lockout. (Nov-2012)
Explain in detail the concept of strikes and lock-outs with case laws under the I.D. Act
1947. (Dec-2016)
ANSWER :
Definitions :
Strike means concerted refusal by workmen to carry work or accept employment.
"Lockout" means the closing of a place of employment or suspension of work or
refusal by an employer to continue to employ any number of persons employed by
him.
Strike :
Definition of strike postulates [i] plurality of workmen; [ii] cessation of work or
refusal to continue work; [iii] acting in combination under a common
understanding.
Workmen may not strike if [i] conciliation is going on before a Board; [ii]
adjudication is on before Labour Court or Tribunal; [iii] when Government in its
reference prohibits strike; [iv] arbitration is on and [v] when a settlement or award
is in operation .
For public utilities there are more restrictions on strikes.
Lockout : Employers right to lock out is subject to same restrictions as for strikes
above.
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work on this
Illegal lockout https://www.scribd.com/doc/50717022/THE-BOMBAY-INDUSTRIAL-
RELATIONS-ACT-1946
Go To MODULE-1 QUESTIONS
Go To Contents
Discuss the provisions of the layoff and retrenchment under the industrial disputes
act 1947. (Nov-2012, Nov-2014)
Write explanatory notes : Lay-off and Retrenchment. (Oct-2013)
ANSWER :
Refer :
Meaning :
Lay-off means the failure, refusal or inability of an employer on account of
shortage of coal, power, raw materials or on account of accumulation of stocks,
or the break down of machinery or for any other 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.
Retrenchment means the termination by employer of the service of the
workman for any reason whatsoever otherwise than a punishment inflicted by
way of disciplinary action.
Closure means permanent closing down of a place of work or a part thereof.
Prior Permission from government :
Lay-off : Not necessary if < 50 employees
Retrenchment : Not necessary if < 50 employees
Closure : Necessary
Notice to workmen :
Lay-off : Prior gov permission to be obtained
Retrenchment : 30 day notice if < 50 workman, 3 month notice otherwise
Closure : 60 day notice if < 50 workman, 3 month notice otherwise
Compensation :
Lay-off : 50% of his basic wages and DA is workman on rolls for >1 year
Retrenchment : 15 days wages for each completed year
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Act, 1947".
Section 25T of the ID Act : No employer or workman or a trade union, whether
registered under the Trade Unions Act, 1926 or not, shall commit any unfair labour
practice.
Section 25U of the ID Act : Penalty for committing unfair labour practices : Any
person who commits any unfair labour practice shall be punishable with imprisonment
for a term which may extend to six months or with fine which may extend to one
thousand rupees or with both.
Fifth Schedule to the Industrial Disputes Act, 1947 provides a list as to what
constitutes an unfair labour practices :
I. Unfair labour practices on the part of employers and trade unions of employers
:
1. To interfere with, restrain from, or coerce, workmen in the exercise of their
right to organise, form, join or assist a trade union or to engage in concerted
activities for the purposes of collective bargaining or other mutual aid or
protection, that is to say
(a) threatening workmen with discharge or dismissal, if they join a trade
union;
(b) threatening a lock-out or closure, if a trade union is organised;
(c) granting wage increase to workmen at crucial periods of trade union
organisation, with a view to undermining the efforts of the trade union
organisation.
2. To dominate, interfere with or contribute support, financial or otherwise, to
any trade union, that is to say
(a) an employer taking an active interest in organising a trade union of his
workmen; and
(b) an employer showing partiality or granting favour to one of several trade
unions attempting to organise his workmen or to its members, where such a
trade union is not a recognised trade union.
3. To establish employer sponsored trade unions of workmen.
4. To encourage or discourage membership in any trade union by discriminating
against any workman, that is to say
(a) discharging or punishing a workman, because he urged other workmen to
join or organise a trade union;
(b) discharging or dismissing a workman for taking part in any strike (not
being a strike which is deemed to be an illegal strike under this Act);
(c) changing seniority rating of workmen because of trade union activities;
(d) refusing to promote workmen to higher posts on account of their trade
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union activities;
e) giving unmerited promotions to certain workmen with a view to creating
discord amongst other workmen, or to undermine the strength of their trade
union;
(f) discharging office-bearers or active members of the trade union on account
of their trade union activities.
5. To discharge or dismiss workmen
(a) by way of victimisation;
(b) not in good faith, but in the colourable exercise of the employers rights;
(c) by falsely implicating a workman in a criminal case on false evidence or on
concocted evidence;
(d) for patently false reasons;
(e) on untrue or trumped up allegations of absence without leave;
(f) in utter disregard of the principles of natural justice in the conduct of
domestic enquiry or with undue haste;
(g) for misconduct of a minor or technical character, without having any
regard to the nature of the particular misconduct or the past record or service
of the workman, thereby leading to a disproportionate punishment.
6. 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.
7. To transfer a workman mala fide from one place to another, under the guise
of following management policy.
8. To insist upon individual workmen, who are on a legal strike to sign a good
conduct bond, as a precondition to allowing them to resume work.
9. To show favouritism or partiality to one set of workers regardless of merit.
10. To employ workmen as badlis, casuals or temporaries and to continue
them as such for years, with the object of depriving them of the status and
privileges of permanent workmen.
11. To discharge or discriminate against any workman for filing charges or
testifying against an employer in any enquiry or proceeding relating to any
industrial dispute.
12. To recruit workmen during a strike which is not an illegal strike.
13. Failure to implement award, settlement or agreement,
14. To indulge in acts of force or violence.
15. To refuse to bargain collectively, in good faith with the recognised trade
unions.
16. Proposing or continuing a lock-out deemed to be illegal under this Act.
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II. Unfair labour practices on the part of workmen and trade unions of workmen :
1. To advise or actively support or instigate any strike deemed to be illegal
under this Act.
2. To coerce workmen in the exercise of their right to self-organisation or to join
a trade union or refrain from joining any trade union, that is to say
(a) for a trade union or its members to picketing in such a manner that
nonstriking workmen are physically debarred from entering the work places;
(b) to indulge in acts of force or violence or to hold out threats of intimidation
in connection with a strike against non-striking workmen or against
managerial staff.
3. For a recognised union to refuse to bargain collectively in good faith with the
employer.
4. To indulge in coercive activities against certification of a bargaining
representative.
5. To stage, encourage or instigate such forms of coercive actions as wilful go
slow, squatting on the work premises after working hours or gherao of any of
the members of the managerial or other staff.
6. To stage demonstrations at the residences of the employers or the managerial
staff members.
7. To incite or indulge in willful damage to employers property connected with
the industry.
8. 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.
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definition of award, the types of award, the law relating to the enforcement of
award and the remedies available to the aggrieved parties against the award.
Definition : Sec. 2(b) of the I.D.Act
award means an interim or final determination of any industrial dispute or of any
question relating thereto by any Labour Court, Industrial Tribunal or National
Industrial Tribunal and includes an arbitration award made under Sec. 10-A.
Interim or final determination, award and relief :
The determination contemplated is of a quasi-judicial nature, implying thereby that
the adjudicatory authority must exercise its own judgment by applying its mind to
the merits of the dispute.
The Supreme Court in Cox&Kings (Agents) Ltd. v. Their Workmen2 laid down a
two-fold test for a decision of the Tribunal to fall within the definition of award.
First, it must be an adjudication of a question or point relating to the industrial
dispute, which has been specified in the order of reference, or is incidental
thereto; and
secondly, such adjudication must be on merits.
The word determination also implies that the adjudicator has to adjudicate upon
the whole dispute as referred to him. The adjudicator cannot determine only part of
the dispute, by leaving the rest to be determined by the parties.
The Act itself distinguishes between award and other decisions of adjudicators in
certain cases. For example, Sec. 19 (4) of the Act, which empowers the appropriate
Government to reduce the period of operation of an award provides for the
reference of such a question to the adjudicator for a decision, whether the period
of operation should not be shortened and that the decision shall be final., It is clear
that such decision shall not be an award.
Similarly, Secs. 33 and 33-C (2) use the words order and decision, respectively,
and the decisions of the adjudicator under these Sections are not awards.
Thus, all the decisions of the adjudicators under the Act are not necessarily awards
within the meaning of Sec. 2(b) of the Act.
The word interim here means a temporary or provisional arrangement made
pending the final disposal of the dispute.
In Hotel Imperial v. Hotel Workers Union the Supreme Court pointed out that it
was open for the adjudicator to make the award in respect of some of the matters
referred to it, whilst some others remain to be determined.
This would be the determination of the matters decided and would be an interim
award.
The Supreme Court in this case also ruled that an adjudicator is empowered
under Sec. 10 (4) of the Act to grant interim relief, with respect to disputes
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makes an ex-parte award after applying its mind fully to the material placed before
it by the party appearing.
Such ex-parte decision is an award within the meaning of Sec. 2 (b), requiring
publication under Sec. 17 of the Act.
Form of an award :
Sec. 16 (2) of the Act simply states, the award of a Labour Court, Tribunal or
National Tribunal shall be in writing and shall be signed by the presiding officer.
No particular form is prescribed.
Usually, an award contains two parts, namely, recitals and the operative part.
Although, it is not necessary for its validity that it should contain an introduction, it
is normally added for the sake of clarity. Sometimes, it may be difficult to
understand the operative part without some preliminary explanation. Therefore,
generally the award contains recitals giving particulars about the dispute.
The operative part of the award is the actual decision of the adjudicator upon the
matters in dispute under reference. It is the essential part of the award.
The award must be certain and consistent in all its parts.
The award must cover all the points referred to it for adjudication. In order that the
award shall be valid, it is essential that it should be confined to the points specified
in the order of reference and matters incidental thereto.
The award must be certain, in the sense that the parties must know what they are
required to do in terms of the award.
The award should contain the findings of the adjudicator and the materials on the
basis of which the findings are based.
The award should finally give directions necessary for proper implementation of the
award. The directions should not be contrary to the law and they should be within
the scope of powers of the adjudicator.
Publication of awards :
The adjudicator shall submit the award to the appropriate Government. The
appropriate Government shall then within a period of thirty days from the date of
its receipt publish the award in such manner as the Government thinks fit.
It is mandatory for the appropriate Government to publish the award, unless it is
prevented from doing so by an order of a Court of competent jurisdiction.
Sometimes, to avoid conflict between a settlement and award, the Courts had
ordered the Government to withhold publication. Excepting in such extra-ordinary
circumstances, the appropriate Government is duty bound to publish the award,
because unless the award is published it cannot become enforceable under the
scheme of the Act.
Conclusion : Introduction of some of the following changes would help the quick and
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MODULE-2 QUESTIONS :
Discuss the objects applications and standing orders under the industrial
employment standing orders act 1946. (Nov-2012, Oct-2013, Nov-2014)
Explain in detail : Standing orders and model standing orders under the
Industrial Employment (Standing Orders) Act 1946. (Dec-2016)
Discuss : salient features/ provisions of industrial employment standing order act.
Discuss : (i) Certification and Cancellation of Standing Orders, (ii) Appeal against
Standing orders.
Explain standing orders under the industrial employment standing order act. (Nov-
2011)
Explain with decided cases the various stages of departmental enquiry for
disciplinary action in light of the principles of natural justice. (Nov-2011)
Explain the various stages of the departmental enquiry for disciplinary action in the
industrial establishment. (Nov-2012, Oct-2013, Nov-2014)
Explain in detail : Provisions of the Departmental Enquiries under the Industrial
Employment (Standing Orders) Act 1946. (Dec-2016)
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MODULE-2 ANSWERS :
Discuss the objects applications and standing orders under the industrial
employment standing orders act 1946. (Nov-2012, Oct-2013, Nov-2014)
Explain in detail : Standing orders and model standing orders under the
Industrial Employment (Standing Orders) Act 1946. (Dec-2016)
Discuss : salient features/ provisions of industrial employment standing order act.
Discuss : (i) Certification and Cancellation of Standing Orders, (ii) Appeal against
Standing orders.
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Explain standing orders under the industrial employment standing order act. (Nov-
2011)
ANSWER :
Refer :
http://www.whatishumanresource.com/industrial-employment-standing-orders-
act-1946
Coverage of Act :-
The Act is applicable to all industrial establishments employing 100 or more
workmen. [section 1(3)]
Definition : "Industrial establishment" means
(i) an industrial establishment as defined in clause (ii) of section 2 of the Payment
of Wages Act, 1936 (4 of 1936), or
(ii) a factory as defined in clause (m) of section 2 of the Factories Act, 1948 (63 of
1948), or
(iii) a railway as defined in clause (4) of section 2 of the Indian Railways Act, 1890
(9 of 1890), or
(iv) the establishment of a person who, for the purpose of fulfilling a contract with
the owner of any industrial establishment, employs workmen;
Definition : Workman - Workman has meaning assigned to it under section 2(s) of
Industrial Disputes Act. [section 2(i)]. Thus, workman includes skilled, unskilled,
manual or clerical work. However, workman does not include employees engaged in
managerial or administrative capacity or supervisory capacity. Workman does not
include workers subject to Army Act, Navy Act or Air Force Act or to police or prison
services.
What are Standing Orders ? :-
The Industrial Employment (Standing Orders) Act, 1947 is designed to provide
service rules to workmen. The object of the Act is to require employers in industrial
establishments to formally define conditions of employment under them, and make
the said conditions known to workmen employed by them.
Standing Orders means rules of conduct for workmen employed in industrial
establishments. Standing orders means rules relating to matters set out in the
schedule to the Act. [section 2(g)]. The schedule to the Act requires that following
should be specified in Standing Orders -
(a) classification of workmen i.e. temporary, badli, casual, permanent, skilled
etc.
(b) manner of intimating to workmen working hours, shift working, transfers etc.
(c) Holidays
(d) Attendance and late coming rules
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(1) On receipt of the draft under section 3, the Certifying Officer shall forward a
copy thereof to the trade union, if any, of the workmen, or where there is no such
trade union, to the workmen in such manner as may be prescribed, together with a
notice in the prescribed form requiring objections, if any, which the workmen may
desire to make to the draft standing orders to be submitted to him within fifteen
days from the receipt of the notice.
(2) After giving the employer and the trade union or such other representatives of
the workmen as may be prescribed an opportunity of being heard, the Certifying
Officer shall decide whether or not any modification of or addition to the draft
submitted by the employer is necessary to render the draft Standing Orders
certifiable under this Act, and shall make an order in writing accordingly [section
5].
(3) The Certifying Officer shall thereupon certify the draft standing orders, after
making any modifications therein which his order under sub-section (2) may
require, and shall within seven days thereafter send copies of the certified standing
orders authenticated in the prescribed manner and of his order under sub-section
(2) to the employer and to the trade union or other prescribed representatives of
the workmen.
Other features/ provisions :
Till standing orders are certified, Model Standing Order prepared by Government
will automatically apply. [section 12A].
Standing order should be displayed in English and local language on special notice
boards at or near entrance of the establishment. [section 9].
Modifications of Standing Order shall be done by following similar procedure.
[section 10].
Effect of standing orders :
Once the Standing Orders are certified, they supersede any term and condition of
employment, contained in the appointment letter. If there is inconsistency between
Standing Order and Appointment Letter, the provisions of Standing Order
prevail - Eicher Goodearth Ltd. v. R K Soni - (1993)
Standing orders are binding on employer and employee. These are statutorily
imposed conditions of service. However, they are not statutory provisions
themselves (meaning that the Standing Orders even when approved, do not
become law in the sense in which Rules and Notifications issued under delegated
legislation become after they are published as prescribed.) - Rajasthan SRTC v.
Krishna Kant - AIR 1995
Appeal against standing orders / cancellation :
(1) Any employer, workman, trade union or other prescribed representatives of the
workmen aggrieved by the order of the Certifying Officer appeal to the appellate
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authority, and the appellate authority, whose decision shall be final, shall by order
in writing confirm the standing orders either in the form certified by the Certifying
Officer or after amending the said standing orders by making such modifications
thereof or additions thereto as it thinks necessary to render the standing orders
certifiable under this Act.
Date of operation of Standing Orders : Standing orders shall, unless an appeal is
preferred under section 6, come into operation on the expiry of thirty days from the
date on which authenticated copies thereof are sent under sub-section (3) of section
5, or where an appeal as aforesaid is preferred, on the expiry of seven days from the
date on which copies of the order of the appellate authority, are sent under sub-
section (2) of section 6.
Duration and modification of Standing Orders :
(1) Standing orders finally certified under this Act shall not, except on agreement
between the employer and the workmen, or a trade union or other representative
body of the workmen, be liable to modification until the expiry of six months from
the date on which the standing orders or the last modifications thereof came into
operation.
(2) An employer or workman or a trade union or other representative body of the
workmen may apply to the Certifying Officer to have the standing orders modified,
and such application shall be accompanied by five copies of the modifications
proposed to be made, and where such modifications are proposed to be made by
agreement between the employer and the workman or a trade union or other
representative body of the workmen, a certified copy of that agreement shall be
filed along with the application.
Disciplinary Action - The most important use of Standing Orders is in case of
disciplinary action. A workman can be punished only if the act committed by him is a
misconduct as defined under the Standing Orders. The Model Standing Orders
contain such acts like insubordination, disobedience, fraud, dishonesty, damage to
employers property, taking bribe, habitual absence or habitual late attendance,
riotous behaviour, habitual neglect of work, strike in contravention of rules etc. as
misconducts. The Certified Standing Orders may cover other acts as misconduct, if
approved by Certifying Officer.
Payment of Subsistence Allowance :
(1) Where any workman is suspended by the employer pending investigation or
inquiry into complaints or charges of misconduct against him, the employer shall
pay to such workman subsistence allowance
(a) at the rate of fifty per cent. of the wages which the workman was entitled to
immediately preceding the date of such suspension, for the first ninety days of
suspension; and
(b) at the rate of seventy-five per cent. of such wages for the remaining period
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Explain with decided cases the various stages of departmental enquiry for
disciplinary action in light of the principles of natural justice. (Nov-2011)
Explain the various stages of the departmental enquiry for disciplinary action in the
industrial establishment. (Nov-2012, Oct-2013, Nov-2014)
Explain in detail : Provisions of the Departmental Enquiries under the Industrial
Employment (Standing Orders) Act 1946. (Dec-2016)
ANSWER :
Refer :
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http://aipnbsf.org/files/Microsoft%20Word%20-%20Domestic%20Enquiry.pdf
http://psalegal.com/upload/publication/assocFile/Labor-Bulletin-Issue-
VIII04072010050903PM.pdf
Introduction
For the smooth functioning of an industry, the defined codes of discipline, contracts
of service by awards, agreements and standing orders must be adhered to. In the
event of an employee not complying with these codes of conduct, he is liable to
face disciplinary actions initiated by the Management according to the Standing
Order. This procedure is called Domestic Enquiry and it is conducted in accordance
with the standing order/agreements.
Disciplining a workman is one of the key methods of curtailing disputes amongst
them and achieving maximum productivity. Accordingly, the Supreme Court of
India (SC) in Hombe Gowda Educational Trust v. State of Karnataka, stated that
giving managers the power to punish a workman according to law, even if the
punishment may result in some hardship is important.
But, one needs to bear in mind that conducting disciplinary proceedings against a
workman is most controversial and often lead to long drawn-out cases. Hence, the
management of any industrial establishment must cautiously approach such
proceedings and strictly follow the procedure laid down by judicial precedents.
What is misconduct ?
Even though the term misconduct is not defined under any legislation governing
labour laws in India, the SC in State of Punjab v. Ram Singh Ex. Constable, held
that misconduct can involve moral turpitude, improper or wrongful behavior, willful
incharacter, doing a forbidden act, or transgression of well established rules of
action or code of conduct.
But, SC further stated that misconduct cannot include a mere error of judgment,
carelessness or negligence in performance of duty.
Moreover, the central government has prescribed Model Standing Orders, which
provides the following instances to constitute misconduct:
(a) willful insubordination or disobedience of any lawful and reasonable order of
a superior;
(b) theft, fraud or dishonesty of the employers business or property;
(c) willful damage or loss to employers goods or property;
(d) taking or giving bribes;
(e) habitual breach of any law applicable to the industrial establishment;
(f) riotous or disorderly behavior during working hours at the industrial
establishment;
(g) habitual negligence or neglect of work;
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(h) repetition of any act or omission for which fine may be imposed to a
maximum of 2% of the monthly wages;
(i) striking work or inciting others to strike work in contravention of the provision
of any law;
(j) sexual harassment.
As is evident from the language used, the instances cited above are illustrative and
not exhaustive. Categorization of an act or omission as misconduct will depends on
the facts and circumstances of the case. However, to construe an act or omission
as misconduct it should have a rational connection with the employment of the
workman and the relationship with his employer.
What is "DOMESTIC ENQUIRY" ?
Based on the above description of domestic enquiry, we understand that the term
domestic enquiry is mainly used to refer to an enquiry into the charges of
indiscipline and misconduct by an employee.
In common parlance, domestic enquiry means departmental enquiry or domestic
tribunal.
In such enquiries, the matter is decided by administrative officers and not by
courts of law.
In cases of alleged indiscipline, it is common for disciplinary authorities in a
department or in an industry to appoint an officer or officers to inquire into the
allegations against an employee. These enquiries are commonly known as
Domestic Enquiries.
General Procedure for disciplining a workman :
The procedure for carrying out disciplinary action has not been prescribed under
any statute or notification and has been evolved through practice and judicial
precedents. In Sur Enamel and Stamping Works (P) Ltd. v. Their Workmen, the SC
in an attempt to lay down the procedure for conducting an enquiry for industrial
adjudication provided that:
Rule of Natural Justice must be observed.
The delinquent is entitled to a just hearing.
Prescribed procedure of conducting enquiry shall be scrupulously followed,
He can call for his own evidence.
the workman proceeded against must be informed clearly of the charges leveled
against him;
the witnesses must be examined in the presence of the workman;
the workman must be given a fair opportunity to cross-examine the witnesses
including himself if he so wishes; and
the Enquiry Officer must record his findings with reasons in his report.
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punishment.
The charge sheet should be drafted very carefully and served properly. It is
important that the charge sheet contains the following details :
Name of the person charged
Employee number
Address
Date, Time & Place of alleged misconduct
Narration of the misconduct alleged
Relevant clause and specific act of misconduct under the standing orders/
settlement.
Calling for an explanation within a stipulated time
If the charge rests on a written report, a copy of that report to be enclosed.
Note : The charges should be specific and clear and never vague. Incidental
matters not connected with the charges and or irrelevant should be omitted from
the charge-sheet.
It is pertinent to note that the charge-sheet is to be properly delivered by the
employer to the workman either in person (in presence of witness, or by registered
post, or (in case it is returned un-served) the employer must get the charges
published in the local newspaper in the regional language understood by the
workman.
Explanation of charged employee :
Pursuant to service of the charge-sheet, the workman must be given an
opportunity to submit an explanation to the Enquiry Officer with respect to the
alleged act or omission leading to misconduct. Accordingly, he must be granted
reasonable time towards submitting the explanation and the enquiry must not be
initiated unless this time period has expired. It is pertinent to note that there are
no defined parameters of what constitutes reasonable time period, and it depends
on the facts and circumstances of each case, nature of charges, nature of proposed
action, etc.
Enquiry proceedings : If employer is not satisfied with the explanation tendered by
the charged employee, employer may initiate conduct of the enquiry proceedgings
with appointment of Enquiry Officer (to conduct impartial enquiry) and a Presenting
Officer (to lead evidence in support of the charge-sheet).
Functions of Enquiry Officer : An Enquiry Officer should complete the enquiry and
submit his findings to the Disciplinary Authority as expeditiously as possible. To this
end he should :
(a) Advise the date of the first hearing to the employee. He may also advise
about the list of documents and witnesses to be relied upon by the prosecution
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and forward copies of the documents which would be received by him from the
Presenting Officer.
(b) Following are the persons allowed in an enquiry proceeding :
i. Delinquent employee
ii. Presenting Officer
iii. Defence Representative if any
iv. Only one witness, at a time who is being examined
(c) Ensure that the employee is present during all sittings of the enquiry.
Without his presence, enquiry should not be conducted.
(d) At the enquiry, ensure identity of the employee and ascertain basic details
about him, such as name, age, etc.
(e) Ask the employee whether he has received the charge sheet quoting the
charge sheet number and date.
(f) The delinquent should be asked if he understood the charges leveled against
him. If the delinquent refuses, the charges be further explained to him, the
enquiry officer should oblige him. Delinquent should be asked whether he admits
the charge. If the employee pleads guilty for a charge proceed to the next
charge. If he does not plead guilty to the charges, ask him if he is going to be
represented by any defence representative. If so, obtain letter from the
employee appointing defence representative.
(g) Ensure that the defence representative is no one other than a representative
of a registered union, or with the permission of the Disciplinary Authority, a
lawyer.
(h) Advise the Presenting Officer to present his case and then to start
examination-in-chief of his witnesses. Immediately
after examination-in-chief of each witness is over, allow the witness to be cross-
examined by the Defence Representative and to be re-examined by the
Presenting Officer after the cross-examination is over.
(i) Then ask the Defence Representative to conduct examination-in-chief of the
defence witnesses also and then follow a similar procedure as above.
(j) After each witness has been disposed of obtain the signatures of all present,
in the recorded note book on each page. The witness should also sign before he
leaves the room.
(k) After all the witnesses of the prosecution and defence have been examined
on the last day of the sitting; the Presenting Officer may be advised to present
his summing up followed by the Defence Representative. If they so desire, they
may be allowed to submit written brief. In that case, advise Presenting Officer to
submit one copy of his brief to the defence Representative.
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granted the Tribunal/ Labour Court extensive power which might be misused.
If the employer or the workman is not satisfied with the decision of the Tribunal/
Labour Court, they may further appeal before a high court by invoking writ
jurisdiction.
Conclusion :
Under the present system an Enquiry Officer does not inspire the confidence of the
delinquent workman as the charge-sheet is given by the employer and the Enquiry
Officer is also appointed by the employer. This frustrates the very essence of
natural justice. Therefore, the law should provide a panel of Enquiry Officers
consisting of retired judges and labour law practitioners. They should be
empowered with quasi-judicial powers while holding enquiries.
Accordingly, due weightage will be given to the findings of such Enquiry Officers
and the number of industrial disputes will reduce.
Further, due to the extensive power of the interference of the Tribunal/ Labour
Court under section 11-A of the Act followed by an appeal before the high court,
the significance of holding a valid domestic enquiry is overlooked in industries. The
rationale is that the industry is averse to get involved with cumbersome procedures
when the Tribunal/ Labour Court is fully empowered to re-examine the case on
merits. This undermines the entire process of industrial adjudication.
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MODULE-3 QUESTIONS :
Explain in detail the history and development of the Trade Unionism in India
under the Trade Unions Act 1926. (Dec-2016).
Explain the provisions relating registration of trade union under the trade unions
act 1926. (Nov-2012, Oct-2013)
Explain the provisions relating to trade union under the trade unions act 1926.
(Nov-2014)
Explain in detail : Registration of Trade Union under the Trade Union Act 1926. (Dec-
2016)
Explain rights and privileges of the registered trade union. (Nov-2011)
Explain in detail : Privileges of the registered trade union under the Trade Union Act
1926. (Dec-2016)
Discuss the rights and duties of the office bearers of the union under the trade
union act 1926. (Nov-2012, Oct-2013, Nov-2014)
Immunities available to a registered Trade Union.
Go To Contents
MODULE-3 ANSWERS :
Explain in detail the history and development of the Trade Unionism in India
under the Trade Unions Act 1926. (Dec-2016).
ANSWER :
Go To MODULE-3 QUESTIONS
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Explain the provisions relating registration of trade union under the trade unions
act 1926. (Nov-2012, Oct-2013)
Explain the provisions relating to trade union under the trade unions act 1926.
(Nov-2014)
Explain in detail : Registration of Trade Union under the Trade Union Act 1926. (Dec-
2016)
ANSWER :
Refer :
http://www.businessmanagementideas.com/trade-unions/trade-unions-objectives-
functions-formation-regulations-rights-and-liabilities/2489
Intro :
The Trade Unions Act, 1926 provides for registration of trade unions with a view to
render lawful organisation of labour to enable collective bargaining. It also confers
on a registered trade union certain protection and privileges.
The Act extends to the whole of India and applies to all kinds of unions of workers
and associations of employers, which aim at regularising labour management
relations.
A Trade Union is formed for regulating the relations not only between workmen and
employers but also between workmen and workmen or between employers and
employers.
The law relating to the registration of trade unions and certain other matters is
contained in the Trade Unions Act 1926. This Act was passed to regulate:
a) Conditions governing the registration of Trade Unions
b) Obligations imposed upon a registered Trade Unions
c) Rights and Liabilities of registered Trade Unions
Definition : Sec-2(h) : Trade Union means for the combination, whether temporary
or permanent, formed primarily for the purpose of regulating the relations between
workmen and employers or between workmen and workmen and or between
employers and employers, or for imposing restrictive conditions on the conduct of any
trade or business, and includes any federation of two or more Trade Unions, Provided
that this shall not affect-
(i) Any agreement between partners as to their own business
(ii) Any agreement between an employer and those employed by him as to such
employment; or
(iii) Any agreement in consideration of the sale of the goodwill of a business or of
instruction in any profession, trade or handicraft.
Objectives of trade unions :
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A registered trade union may change its name with the consent of at least 2/3rds
of the total numbers of its members.
Notice of change of name in writing, signed by the secretary and 7 members of the
union, should be sent to the registrar.
the Registrar shall register the change in name if he is satisfied that the proposed
name is not identical with the name of any other existing union and the
requirements with respect to change of name have been complied with.
The change of name shall not affect any rights and obligations of the trade union or
render any legal proceeding by or against the trade union as defective.
Amalgamation of Trade Union : Any two or more registered Trade Unions may
become amalgamated together as one Trade Union with or without dissolution or
division of the funds of such Trade Unions or either or any of them, provided that the
votes of at least one-half of the members of each or every such Trade Union entitled
to vote are recorded, and that at least sixty percent of the votes recorded are in
favour of the proposal.
Dissolution :
(1) When a registered Trade Union is dissolved, notice for the dissolution signed by
seven members and by the Secretary of the Trade Union shall, within fourteen days
of the dissolution, be sent to the Registrar and shall be registered by him if he is
satisfied the dissolution has been effected in accordance with the rules of the Trade
Union, and the dissolution shall have effect from the date of such regulation.
(2) Where the dissolution of a registered Trade Union has been registered and the
rules of the Trade Union do not provide for the distribution and funds of the Trade
Union on dissolution, the Registrar shall divide the funds amongst the member in
such manner as may be prescribed.
General Fund : The Registered Trade Union may use the general fund for the following
purposes:
Salaries/allowances to office bearers
Expenses for administration of trade union
Conduct of Trade disputes on behalf of Trade Union
Provision for education, social or religious beliefs of members or to the dependents
of deceased members, etc.
Political Fund : a separate political fund may be constituted by a trade Union for the
following purposes:
Payment of expenses for a candidate for election to a legislative body
Holding of any meeting or distribution of any literature in support of such candidate
Maintenance of any person elected to legislative body
Note : The membership to such a political fund should be
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Discuss the rights and duties of the office bearers of the union under the trade
union act 1926. (Nov-2012, Oct-2013, Nov-2014)
ANSWER :
THE RIGHTS OF OFFICERS OF APPROVED TRADE UNIONS :
(a) To collect sums payable by members to the union
(b) To put up or cause to be put up a notice-board on the premises of undertakings
in which its members are employed & affix notices thereon
(c) For prevention or settlement of an industrial dispute
(i) to hold discussions with the employees concerned who are members of the
union
(ii) to meet & discuss with an employer for redressing the grievances of its
members employed in the undertaking
(iii) to inspect, if necessary
(d) An approved union is entitled to appear before a Labour Court or Industrial
Court for the grant of legal aid at the expense of the State Government.
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However, such an agreement between trade union members is neither void nor
voidable. It is important to note that this right is available only to registered trade
unions. An unregistered trade union must follow the principles of general contract law.
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Module-4) Gujarat Industrial Relations Act (former BIR Act) & Collective
Bargaining :
4.1) Important definitions: Industry, Workman, Employee, Wage Board,
4.2) Classification of Unions : Primary Union, Qualified Union, Representative
Union
4.3) Rights, duties and privileges of the Representative Union
4.4) Notice of Change
4.5) Concept and importance of Principle of Collective Bargaining (This topic may
also fall in Module-1)
Go To Contents
MODULE-4 QUESTIONS :
Distinguish between Bombay Industrial Relations Act 1946 and Industrial Disputes Act
1947
State the aims and objects of the Bombay Industrial Relations Act 1946. (Nov-2011)
Discuss : Definitions : Industry, Workman, Employee, Wage Board.
Discuss under the provisions of the Bombay Industrial Relations Act 1946. (Nov-
2012)
Discuss the various authorities and its power under the Bombay Industrial Relations
Act 1946. (Nov-2012)
Explain in detail the various authorities and its power under the BIR act 1946. (Nov-
2011)
Explain in detail the provisions of Labour Courts and Industrial Courts
prescribed under the Gujarat (Mumbai) Industrial Relations Act 1946 (BIR Act) with
case laws. (Dec-2016)
State the kinds of unions and explain the provisions of registration of unions under
Gujarat industrial relations act (Former BIR Act 1946). (Nov-2014)
State the kinds of unions and explain the provisions of registration of unions under
B.I.R. Act 1946. (Oct-2013)
Explain the concept of the wage board under the BIR act 1946 and discuss the
jurisdiction of such wage board. (Nov-2011)
Explain methods of fixation of minimum wages under the minimum wages act. (Nov-
2011)
Explain provisions of wages and deduction under the payment of wages act. (Nov-
2011)
Write short note : illegal change. (Nov-2012, Nov-2014)
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Go To Contents
MODULE-4 ANSWERS :
Distinguish between Bombay Industrial Relations Act 1946 and Industrial Disputes Act
1947
ANSWER :
https://www.scribd.com/doc/37194908/bombay-industrial-regulation-act-1946
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One more difference : To seek any change in the existing service conditions
Workmen have to raise a charter of demands under the Industrial disputes Act,
Workmen have to issue notice of change under the BIR Act.
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State the aims and objects of the Bombay Industrial Relations Act 1946. (Nov-2011)
Discuss : Definitions : Industry, Workman, Employee, Wage Board.
Discuss under the provisions of the Bombay Industrial Relations Act 1946. (Nov-
2012)
Discuss the various authorities and its power under the Bombay Industrial Relations
Act 1946. (Nov-2012)
Explain in detail the various authorities and its power under the BIR act 1946. (Nov-
2011)
Explain in detail the provisions of Labour Courts and Industrial Courts
prescribed under the Gujarat (Mumbai) Industrial Relations Act 1946 (BIR Act) with
case laws. (Dec-2016)
ANSWER :
Refer :
https://www.scribd.com/doc/50717022/THE-BOMBAY-INDUSTRIAL-RELATIONS-
ACT-1946
Intro :
The Government of Bombay enacted the Bombay Industrial Disputes Act, 1938,
which came into force with effect from 1/6/1939.
Subsequently, The Bombay Industrial Relations Act, 1947, was brought on the
statute book and was enforced in 1947, replacing
The Bombay Industrial Disputes Act, 1938.
Shri G.L.Nanda, who was then the Labour Minister for Bombay Province, was the
pioneer of this Act.
The Act is based on three Gandhian principles, namely, (i) negotiations, (ii)
conciliations, and (iii) arbitrations.
Aims And Object Of The B.I.R. Act : The principle objectives of the Act may be stated
as below :
1. to regulate relations between employers and employees and to promote
harmonious relations between them,
2. To provide a machinery for settlement of disputes by adjudication or arbitration
on considerations of justice, equity and good conscience.
3. To promote collective bargaining.
APPLICABILITY :
1. The Act extends to the state of Maharashtra and Gujarat and
2. The Act is applicable only to certain industries like silk, cotton, hosiery, woolen,
textile processing, sugar, co-operative banking, generation and supply of electricity
and transport (BEST Undertaking).
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IMPORTANT DEFINITIONS :
1. Employees : Employees means any person employed to do any skilled or
unskilled work for hire or reward in any industries, and includes a person employed
by a contractor but does not include,
- person employed with armed forces, police, prison
- person employed primarily in a managerial, administrative, supervisory or
technical capacity drawing basic pay excluding allowances exceeding Rs. 1000
per month.
2. Industry : Industry means
(a) any business, trade, manufacture or undertaking or calling of employees.
(b) any calling, service, employment, handicraft, or, occupation or avocation
of employees;
Industry includes (i)agriculture and agriculture operations; (ii) any branch of
industries or group of industries which the (State) Government may be
notification of the Official Gazette declare to be an industry for the purposes of
this Act.
3. Workman :
4. Wage Board :
Authorities Under The B.I.R. Act :
1. Commissioner of Labour :
2. Registrar, Additional Registrars, and Assistant Registrars of Unions :
3. Chief Conciliator and Conciliators :
4. Board of Conciliation :
5. Labour Officer :
6. Labour Court :
7. Industrial court :
8. Court of enquiry :
1. Commissioner of Labour :
Definition : "Commissioner of Labour" means an officer appointed by the [State]
Government for the time being to be the Commissioner of the Labour; and in
respect of any of the powers and duties of the Commissioner of Labour that may
be conferred and imposed on any person, includes such person;
The duty of the Commissioner of Labour is to mediate and settle the disputes
under this Act. He is also empowered to settle the standing orders, regulate the
relation between the employer and employees with regard to the industries
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matters.
2. Registrar, Additional Registrars, and Assistant Registrars of Unions :
Definition : "Registrar" means a person for the time being appointed to be the
Registrar of Unions under this Act; and includes [an Additional Registrar and] in
respect of such powers and duties of the Registrar as may be conferred and
imposed on him, an Assistant Registrar of Unions;
The additional registrar is not subordinate to the registrar. The function of the
registrar is to make enquiry as he deems fit and recognize for the purpose of
this act any concern in any industry to be an undertaking and any section of an
undertaking to be an occupation.
Further, he is to maintain registers of union and list of approved unions.
He is also empowered to cancel registrations of any union.
The Deputy Commissioner of Labour (Admin) Bombay, is notified as Registrar of
Trade Unions and Chief Conciliator for the purpose of this Act for the whole of
the state of Maharashtra.
3. Chief Conciliator and Conciliators :
The State Government shall appoint a person to be the Chief Conciliator. It may
also appoint one of more Chief Conciliators.
A conciliator is a public servant within the meaning of the Indian Penal Code. He
has to hold proceedings in the prescribed manner. He has power to call for the
inspect documents. The conciliators function is to mediate and Endeavour to
settle the dispute between the employer and employees.
4. Board of Conciliation :
The State Government may by notification constitute a Board of Conciliation and
when an industrial dispute arises for promoting the settlement of such dispute.
The board consists of a Chairman who is an independent person and an even
number of members representing the interests of employer and employees.
Its powers are wider than those of conciliators.
5. Labour Officer :
Definition : "Labour Officer" means an officer appointed to perform the duties of
a Labour Officer under this Act; and includes in respect of such powers and
duties of the Labour Officer as may be conferred and imposed on him, as
Assistant Labour Officer;
The State Government may by notification in the Official Gazette appoint Labour
Officers and Assistant Labour Officers for any local area or areas.
The Labour Officers duty is to:
1. watch the interest of employees and promote harmonious relations
between employer and employees;
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State the kinds of unions and explain the provisions of registration of unions under
Gujarat industrial relations act (Former BIR Act 1946). (Nov-2014)
State the kinds of unions and explain the provisions of registration of unions under
B.I.R. Act 1946. (Oct-2013)
ANSWER :
Refer :
read from page-111 of the boook
Kinds of Union :
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Registration of Unions :
<discussed elsewhere in this doc>
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Explain the concept of the wage board under the BIR act 1946 and discuss the
jurisdiction of such wage board. (Nov-2011)
ANSWER :
Refer :
Not good ---> Reproduced sections-86A to 86KK from bare act BIR Act
86-A. Wage Boards.-The [State] Government may, by notification in the Official
Gazette, constitute for one or more industries a Wage Board for the State.
86-B. Constitution of Wage Board.- The Wage Board shall consist of an equal number
of persons nominated by the [State] Government to represent employers and
employees and such number of independent persons as the [State] Government
nominates. The Chairman shall be appointed by the [State] Government.
Explanation.-For the purposes of this section a person shall be deemed to be an
independent person if he is unconnected with the industrial matter which may be
referred to it under section 86C [or 86CC] and the industry directly affected by the
industrial matter.
86-C. Reference to Wage Boards.-
(1) Notwithstanding anything contained in any other provision of this Act, the
[State] Government may, by an order notified in the Official Gazette, refer to a
Wage Board for decision on any industrial matter or industrial dispute regarding
items numbered, 1, 2, 4, 9 and 10 in Schedule II, and such other industrial matters
or disputes as may be prescribed.
(2) The order of reference under sub-section (1) shall specify which employers and
employees (including representative of employees if any, and association of
employers, if any) shall be parties to the proceedings before the Wage Board.
86-CC. Reference to Wage Board by certain registered unions : Notwithstanding
anything contained in any other provision of this Act, [an employer or] a registered
union which is a representative of employees and which is also an approved union
may refer any industrial dispute of the nature mentioned in sub- section (1) of section
86C other than a dispute in respect of bonus, to a Wage Board for decisions :
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Provided that no such dispute shall be referred to the Wage Board by the union,-
(i) after two months from the date of the completion of the proceedings
before the Conciliator;
(ii) where the registered union or the employer, as the case may be, has
offered in writing before the Conciliator to submit the dispute to arbitration
under this Act and the employer or the Union, as the case may be, has not
agreed to do so;]
(iii) unless the dispute is first submitted to the Conciliator and the conciliation
proceedings are completed or the Conciliator certifies that the dispute is not
capable of being settled by conciliation].
Effect of reference on proceedings before other forums, like Conciliator, Board,
Labour Court or the Industrial Court or a Court of Enquiry :
86-D. Proceedings not to be commenced or continued before Conciliator, Board, etc :
Notwithstanding anything contained in any other provision of this Act, where an
industrial matter or industrial dispute is referred for decision to a Wage Board under
section 86C, [or 86CC] no proceedings regarding the same shall be commenced
before a Conciliator, Board, Labour Court or the Industrial Court or a Court of
Enquiry; and any such proceedings already commenced shall be forthwith stayed on
the making of the reference.
86-E. Procedure before Wage Boards.- A Wage Board shall, in respect of an
industrial matter or industrial dispute referred to it for decision, subject to any rules
of procedure which may be prescribed, follow the same procedure as the Industrial
Court in respect of arbitration proceedings before it.
In particular the rules of procedure which may be prescribed in this behalf may
provide for the formation of committees with co-option of such other persons from
the local areas as the Wage Board would for the purpose of any reference think fit
to appoint to the committees and the exercise by each such committee of the
jurisdiction and powers vested in the Wage Board in respect of such Industrial
matters or industrial disputes as are referred by the Wage Board to the Committee.
86-EE. Coming into operation of decision of Wage Board :- Save as provided in
section 86-F, a decision of the Wage Board shall come into operation on the date
specified in the decision and where no such date is specified therein on the date on
which it is published in the prescribed manner.]
86-F. Procedure to give effect to decision of Wage Board affecting [State] Gov :-
(1) Where the decision of a Wage Board affects an industry conducted or carried on
by a department of the [State] Government, the decision shall not be effective
except in accordance with the procedure set out in sub-sections (2) and (3).
(2) The Wage Board shall, as soon as practicable on the conclusion of its
proceedings, submit its decision to the [State] Government, and the [State]
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from the date of the making or giving of the order or decision or the last review
thereof, as the case may be:
Provided further that no such application by an employer or an association or a
group of employers shall lie unless the employer, association or group, as the
case may be, employs not less than fifteen per cent of the employees whom the
order or decision binds:
Provided also that no such application by an employee or a body of employees,
shall lie unless the employee or body of employees represents not less than
fifteen per cent of the employees whom the order or decision binds.
(2) Where the [State] Government makes an application in this behalf, the Wage
Board may at any time review its order or decision for any sufficient reason and
upon hearing all the parties.
86-J. Superintendence by Industrial Court :- The Industrial Court shall have
superintendence over all Wage Boards and may-
(a) call for returns from such Boards;
(b) make and issue general rules, and lay down forms for regulating the practice
and procedure of such Boards in matters not expressly provided for by or under
this Act, and in particular, for securing expeditious disposal of cases;
(c) lay down the forms in which books, entries and accounts shall be kept by
officers of Wage Boards;
(d) settle fees for processes issued by Wage Boards.
86-K. Order or decision not to be called in question :-
(1) Save as otherwise provided by this Act, no order or decision of a Wage Board
shall be called in question in any proceeding in any civil or criminal court.
(2) The appellate order or decision of the Industrial Court under section 86G shall
have the same force as the original order or decision of the Wage Board which it
replaces except that there shall be no further appeal against it.
86-KK. Transfer of certain disputes to Wage Boards :- The [State] Government may,
on the recommendation of the Industrial Court, by an order notified in the Official
Gazette, direct that any industrial matter, or industrial dispute of the nature
mentioned in section 86C which has been referred to the Industrial Court under [sub-
section 6) of section 58 or sections 66, 72, 73 or 73A] and is pending before it at any
time shall be transferred to a Wage Board for disposal or for further disposal from the
stage reached before the Industrial Court and thereupon all the provisions of this Act
shall apply to that dispute as if it were referred to the Wage Board for decision under
section 86C].
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Explain methods of fixation of minimum wages under the minimum wages act.
(Nov-2011)
ANSWER :
Refer :
Intro :
The Minimum Wages act aims at making provision for statutory fixation of
Minimum rates of wages in a number of industries. This act aims to prevent
exploitation of labour by payment of wages which are necessary for normal and
reasonable need of a workmen and his family.
Applicability of Act : This Act is applicable to all employments described in the Act
i.e. minimum Wages have to be paid to all the employees of the employments
described in the Act
Definition : "Wages" means all remuneration capable of being expressed in terms of
money which would if the terms of the contract of employment express or implied
were fulfilled be payable to a person employed in respect of his employment or of
work done in such employment and includes house rent allowance but does not
include -
(i) the value of -
(a) any house accommodation supply of light water medical attendance or
(b) any other amenity or any service excluded by general or special order of the
appropriate government;
(ii) any contribution paid by the employer to any person fund or provident fund or
under any scheme of social insurance;
(iii) any traveling allowance or the value of any traveling concession;
(iv) any sum paid to the person employed to defray special expenses entailed on
him by the nature of his employment; or
(v) any gratuity payable on discharge;
Fixing Minimum Rates of Wages :
Appropriate Government shall fix minimum rates of wages for all employments
specified in the Schedule of the Act
Review of Minimum wages The appropriate Government shall review the
minimum wages at such intervals as it may deem fit. However, such a review shall
be done before Five years from date of fixing minimum wages.
Wage period : The Minimum wages may be fixed for different wage periods like
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By the Hour,
By the Day,
By the month, or
By other larger wage period
Exceptions : Different Minimum Wages may be fixed by the Government for :
Different employments (specified in the schedule)
Different classes (e.g. skilled, unskilled, semis skilled, etc.) of work in the same
employment
Adults, adolescents, children and apprentices
Different localities.
What is Minimum rates of Wages : Minimum rates of Wagesfixed by the Government
may consist of
Basic + Special Allowance (which varies with the cost of living index)
Basic + Cash value of concessional supply of materials like food, clothes, etc
An All inclusive rate which includes Basic + Cost of Living Allowance + Cash value
of concessional supply of materials
Fixing minimum Rates of Wages : For fixing Minimum rates of wages, the Government
may :
Publish its proposals in the official gazette asking from comments from the affected
parties, Or.
Constitute committees/sub-committees for the purpose. The committees/sub-
committees and advisory boards constituted by the Government consist of equal
number of members of :
Employers,
Employees and
Independent persons
Wages in Cash : The wages have to be paid in Cash Only. However, permission can
be taken from the government where payment of wages in kind when the same is as
per custom or concessional supply of materials is made to the employees
Deductions from Minimum Wages : deductions from Minimum Wages like PF, ESI,
Advances , etc (as mentioned in Payment of Wages Act 1936) are permitted.
Wages to workman who works less than normal working day : in such cases Full
Wages for normal days work have to be paid to workman. However, a workman is
not entitled to wages for a full normal working day when he is unwilling to work even
though work is made available by the employer.
Penalties :
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Contravention of Minimum Wages Act by employer : Fine which may extend upto
Rs 500/-
Payment of less than Minimum wages to employee : Imprisonment which may
extend upto 6 Months or fine which may extend upto Rs 500/- or Both
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Explain provisions of wages and deduction under the payment of wages act. (Nov-
2011)
ANSWER :
http://www.netlawman.co.in/ia/payment-wages-act-1936
http://www.isspa.org/uploads/laws/pdfs/15_pdf.pdf
Object of the payment of Wages Act : The main object of the Act is to regulate the
payment of wages of certain classes of employed persons, avoid unnecessary delay in
the payment of wages and to prevent unauthorised deductions from the wages.
Purpose of the Act : The main objective of the Act is to avoid unnecessary delay in the
payment of wages and to prevent unauthorized deductions from the wages and
arbitrary fines. The State Government may by notification extend the provisions to
any class of persons employed in any establishment or class of establishment. The
benefit of the Act prescribes for the regular and timely payment of wages .
Applicability of Act :
Factories, industrial Establishments, Tramway service or motor transport service,
Air transport service, Dock, Wharf or Jetty, Inland vessel, Mine, quarry or oil-field
Plantation, Workshop, construction activities or other establishment etc.
In the state of Maharashtra the Act is extended to Shops & commercial
establishments.
Employer's duty :
Employer's required to display the abstracts of the Act in his factory or
establishment. Every employer must display in his factory or establishment a notice
containing the abstracts of the Act and the rules made thereunder in English and
also in the language understood by the majority or the persons.
Coverage of Employees : The employees drawing average wage upto Rs.10,000/-
p.m.
Time of payment of wages : The wages of every person employed be paid :
When less than 1000 persons are employed shall be paid before the expiry of the 7
th day of the following month.
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When more than 1000 workers, before the expiry of the 10 th day of the following
month.
Mode of Payment of Wages :
All wages shall be paid in current coins or currency notes or in both.
After obtaining the authorization, either by cheque or by crediting the wages in
employees bank Account
Wages exceeding Rs.3000/- to be paid by cheque/through bank (Applicable in
Maharashtra only)
Fines as prescribed : (Sec.8) : The provisions of the Act regarding the imposition of
fines on the employed person are as follows :
The employer must exhibit on his premises a list of acts or omissions for which
fines can be imposed, Before imposing a fine on an employed person he must be
given an opportunity of showing cause against the fine, The amount of fine must
not exceed 3 percent of the wages, A fine cannot be imposed on an employed
person who is under the age of 15 years, A fine cannot be recovered by
installments or after 90 days from the day of the act or omission for which it is
imposed, The moneys realized from fines must be applied to purposes beneficial to
employed persons.
Subsection 8(3), 10(1-A) & Rule 15} deals with Any person desiring to impose a
fine on an employed person or to make a deduction for damage or loss shall
explain personally or in writing to the said person the act or omission, or damage
or loss in respect of which the fine or deduction is proposed to be imposed, and the
amount of fine or deduction, which it is proposed to impose, and shall hear his
explanation in the presence of at least one other person, or obtain it in writing.
Deduction from wages :
Deductions such as, fine, deduction for amenities and services supplied by the
employer, advances paid, over payment of wages, loan, granted for house-building
or other purposes, income tax payable, in pursuance of the order of the Court, PF
contributions, cooperative societies, premium for Life Insurance, contribution to
any fund constituted by employer or a trade union, recovery of losses, ESI
contributions etc. can be made from the wages, in accordance with Section 7.
Maximum Deductions :
The maximum permissible deductions is 50% of the wages
In the event of deduction include payment to co-operative societies, the maximum
permissible deduction is 75% of the wages.
The procedure to recover wrongful deductions :
The procedure to employ a person has to follow for claiming deducted or delayed
wages. If contrary to the provisions of the Act any deduction has been made from
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the wages of an employed person or any payment of wages has been delayed, he
has to make an application for claiming the same to the Authority appointed under
the Act. Such application can be made by the employed person himself or a legal
practitioner or an official of a registered trade union. Such application has to be
made within a period of 12 months from the date on which the date on which the
deduction from the wages was made or from the date on which the payment of the
wages was due to be made.
Payment of subsistence allowance :
There is a competent Authority to entertain and decide an application for payment
of subsistence allowance. The subsistence allowance payable to an employee
placed under suspension pending Departmental Enquiry is covered within the
definition of wages given under Section 2(6) of the Act and, therefore, the
Authority is competent to entertain and decide an application for payment of
subsistence allowance.
Authority under the Act :
The Authority under the Payment of Wages Act is a Court of summary jurisdiction
having powers to deal with the simple matter of delay in payment of wages or
deduction from wages. It is not within the competence of the Authority to decide
the question of the status of an employed person which matter is a complicated
question of law as also of fact.
Section 23 : Contracting out : Any contract or agreement, whether made before or
after the commencement of this Act, whereby an employed person relinquishes
any right conferred by this Act shall be null and void in so far as it purports to deprive
him of such right.
ie IF such agreement is beneficial and advantageous to the employees it is not
null and void under Section 23 of the Act.
Penal Provision :
Penalties for breach of provisions are from Rs.200/- to Rs.1000/-.
Repeat offences attract 1 month to 6 months imprisonment and fine from Rs.500/-
to Rs.3000/-
Delayed wage payments attract penalty f Rs.100/- per day
Conclusion :
The Payment wages act is a regulation drawn up to protect the employees rights
from being infringed by the employer. The employee should be paid on time and
should not be harassed against anything during the employment. It has given a lot
of protections to employees and will continue to do so in the future as well.
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section(1) of section 42
(i) within the period provided for in sub-section (1) of Section 44 unless an
agreement is arrived at;
(ii) where no agreement is arrived at before the completion of the conciliation
proceedings and during the period of ten days thereafter;
(iii) where no settlement is arrived at, before the date on which the award of the
arbitrator or the Industrial Court, or as the case may be, decision of the Wage
Board, comes into operation].
(3) No employer shall make any such change in contravention of the terms of a
settlement, effective award, registered agreement or effective order or decision of
a Wage Board.
(4) Any change made in contravention of the provisions of sub- section (1), (2) or
(3) shall he illegal.
(5) Failure to carry out the terms of any settlement, award, registered agreement
or effective order or decision of a Wage Board, a Labour Court or the Industrial
Court affecting Industrial matters shall be deemed to be all illegal change.
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Explain with Case laws the provisions of the safety and health under the factories
act 1948. (Nov-2011)
ANSWER :
Refer :
https://www.icsi.edu/docs/webmodules/Publications/7.%20Industrial,%20Labour
%20and%20General%20Laws.pdf
https://www.legalbites.in/factories-act1948/
http://www.tyagisk.com/factories-act-1948.html
Objective of the Factories Act 1948 :
The main object of the Factories Act, 1948 is to ensure adequate safety measures
and to promote the health, safety and welfare of the workers employed in factories.
To prevent haphazard growth of factories through the provisions related to the
approval of plans before the creation of a factory.
The Act also makes provisions regarding employment of women and young persons
(including children and adolescents), annual leave with wages etc.
Applicability of the Act :
Applicable to the whole of India including Jammu & Kashmir.
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Covers all manufacturing processes and establishments falling within the definition
of factory.
Applicable to all factories using power and employing 10 or more workers, and if
not using power, employing 20 or more workers on any day of the preceding 12
months.
Important provisions the Act may be grouped as follows :
1. Health related
2. Safety related
3. Welfare related
1. Health related provisions : Chapter III of the Factories Act 1948 deals with the
following aspects.
Cleanliness : Section 11 ensures the cleanliness in the factory. It must be seen that
a factory is kept clean and it is free from effluvia arising from any drain, privy or
other nuisance.
floor should be thoroughly cleaned by washing with disinfectant or by some
other effective method [Section 11(1)(b)].
drainage shall be made and maintained
white wash or colour wash should be carried at least once in every period of 14
months;
All doors, windows and other framework which are of wooden or metallic shall be
kept painted or varnished at least once in every period of five years.
The dates on which such processes are carried out shall be entered in the
prescribed register.
If the State Government finds that a particular factory cannot comply with the
above requirements due to its nature of manufacturing process, it may exempt
the factory from the compliance of these provisions and suggest some
alternative method for keeping the factory clean. [Section 11(2)]
Disposal of waste and effluents : Every occupier of a factory shall make effective
arrangements for the treatment of wastes and effluents due to the manufacturing
process carried on in the factory so as to render them innocuous and for their
disposal. Such arrangements should be in accordance with the rules, if any, laid
down by the State Government.
Ventilation and temperature : Section 13 provides that every factory should make
suitable and effective provisions for securing and maintaining
(1) adequate ventilation by the circulation of fresh air; and
(2) such a temperature as will secure to the workers reasonable conditions of
comfort and prevent injury to health.
Measures to reduce excessively high temperature: To prevent excessive heating of
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respect :
every factory must provide and maintain sufficient and suitable lighting, natural,
artificial or both, in every part of the factory where workers are working or
passing;
(3) effective provisions should be made for the prevention of glare from a source
of light or by reflection from a smooth or polished surface
Drinking water : Section 18 makes following provisions with regard to drinking
water.
every factory should make effective arrangements for sufficient supply of
drinking water for all workers in the factory;
water should be wholesome, i.e., free from impurities;
water should be supplied at suitable points convenient for all workers;
Latrines and urinals : Every factory shall make suitable arrangement for the
provision of latrines and urinals for the workers. These points as stated below, are
subject to the provisions of Section 19 and the rules laid down by the State
Government in this behalf.
every factory shall make provision for sufficient number of latrines and urinals of
prescribed standard. These should be conveniently situated and accessible to all
workers during working hours;
separate arrangement shall be made for male and female workers;
Spittoons : Every factory should have sufficient number of spittoons situated at
convenient places. These should be maintained in a clean and hygienic condition.
(Section 20)
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occupier).
Employment of young persons on dangerous machines :
Section 23 provides that no young person shall be required or allowed to work at
any machine to which this section applies unless he has been fully instructed as
to dangers arising in connection with the machine and the precautions to be
observed and (a) has received sufficient training in work at the machine, or (b)
is under adequate supervision by a person who has a thorough knowledge and
experience of the machine.
Striking gear and devices for cutting off power :
Section 24 provides that in every factory suitable striking gears or other efficient
mechanical appliances shall be provided and maintained and used to move
driving belts to and from fast and loose pullyes which form part of the
transmission machinery and such gear or appliances shall be so costructed,
placed and maintained as to prevent the belt from creeping back on the fast
pulley. Further, driving belts when not in use shall not be allowed to rest or ride
upon shafting in motion.
Suitable devices for cutting off power in emergencies from running machinery
shall be provided and maintained in every work-room in every factory.
Self-acting machines :
Section 25 provides further safeguard for workers from being injured by self-
acting machines.
It provides that no traverse part of self-acting machine in any factory and no
material carried thereon shall, if the space over which it runs is a space over
which any person is liable to pass whether in the course of his employment or
otherwise, be allowed to run on its outward or inward traverse within a distance
of forty five centimetres from any fixed structure which is not part of the
machines.
Casing of new machinery :
Section 26 provides further safeguards for casing of new machinery of
dangerous nature. In all machinery driven by power and installed in any factory
(a) every set screw, bolt or key on any revolving shaft, spindle, wheel or
pinion shall be so sunk, encased or otherwise effectively guarded as to
prevent danger;
(b) all spur, worm and other toothed or friction gearing which does not require
frequent adjustment while in motion, shall be completely encased unless it is
so situated as to be so safe as it would be if it were completely encased
Prohibition of employment of woman and children near cotton openers :
According to Section 27, no child or woman shall be employed in any part of
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factory for pressing cotton in which a cotton opener is at work. However, if the
feed-end of a cotton opener is in a room separated from the delivery end by a
partition extending to the roof, women and children may be employed on the
side of partition where the feed-end is situated.
Hoists and lifts : Section 28 provides that in every factory :
every hoist and lift shall be of good mechanical construction, sound material and
adequate strength. It shall be properly maintained and thoroughly examined by
a competent person at least once in every period of six months and a register
shall be kept containing the prescribed particulars of every such examination,
every hoist way and lift way shall be sufficiently protected by an enclosure fitted
with gates
In terms of Section 29, in any factory the prescribed provisions shall be complied
with respect of every lifting machine (other than a hoist and lift) and every
chain, rope and lifting tackle for the purpose of raising or lowering persons,
goods or materials.
Safety measures in case of use of revolving machinery :
Section 30 of the Act prescribes for permanently affixing or placing a notice in
every factory in which process of grinding is carried on.
Pressure plant :
Section 31 provides for taking effective measures to ensure that safe working
pressure of any plant and machinery, used in manufacturing process operated at
pressure above atmospheric pressure, does not exceed the limits.
Floor, stairs and means of access :
Section 32 provides that in every factory (a) all floors, steps, stairs passages
and gangways shall be of sound construction and properly maintained and shall
be kept free from obstruction and substances likely to cause persons to slip
Pits, sumps, openings in floors etc. :
Section 33 requires that in every factory every fixed vessel, sump, tank, pit or
opening in the ground or in a floor which, by reason of its depth, situation,
construction, or contents is or may be source of danger shall be either securely
covered or securely fence.
Excessive weights :
Section 34 provides that no person shall be employed in any factory to lift, carry
or make any load so heavy as to be likely to cause him injury.
The State Government may make rules prescribing the maximum weights which
may be lifted, carried or moved by adult men, adult women, adolescents and
children employed in factories or in any class or description of factories or in
carrying on any specified process.
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Protection of eyes :
Section 35 requires the State Government to make rules and require for
providing the effective screens or suitable goggles for the protection of persons
employed on or in immediate vicinity of any such manufacturing process carried
on in any factory which involves risk of injury to the eyes from particles or
fragments thrown off in the course of the process.
Precautions against dangerous fumes, gases etc. :
Section 36 provides (1) that no person shall be required or allowed to enter any
chamber, tank, vat, pit, pipe, flue or other confined space in any factory in which
any gas, fume, vapour or dust is likely to be present to such an extent as to
involve risk to persons being overcome thereby, unless it is provided with a
manhole of adequate size or other effective means of egress
Explosive or inflammable dust gas, etc. :
Sub-section (1) of section 37 of the Act provides that in every factory where any
manufacturing process produces dust, gas, fume or vapour of such character
and to such extent to be likely to explode on ignition, all practicable measures
shall be taken to prevent any such explosion
Precautions in case of fire :
Section 38 provides that in every factory all practicable measures shall be taken
to outbreak of fire and its spread, both internally and externally and to provide
and maintain (a) safe means of escape for all persons in the event of fire, and
(b) the necessary equipment and facilities for extinguishing fire.
Safety officers :
Section 40-B provides that in every factory (i) where 1,000 or more workers are
ordinarily employed or (ii) where the manufacturing process or operation
involves risk of bodily injury, poisoning or disease or any other hazard to health
of the persons employed therein, the occupier shall employ such number of
safety officers as may be specified in the notification with such duties and
qualifications and conditions of service as may be prescribed by State
Government.
3. Welfare related provisions :
Washing facilities :
Section 42 provides that every factory should provide and maintain adequate
and suitable washing facilities for its workers. For the use of male and female,
such facilities should be separate and adequately screened.
Such facilities should be conveniently accessible for all workers and be kept in a
state of cleanliness. The State Government is empowered to make rules
prescribing standards of adequate and suitable washing facilities.
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rooms and lunch-room with provision of drinking water where the workers can
take rest of or eat meals brought by them. However any canteen which is
maintained in accordance with provisions of Section 45 shall be regarded as part
of the requirements of this sub-section. Where a lunch room exists no worker
shall eat any food in the workroom.
(2) Such places should be equipped with the facility of drinking water.
(3) Such places should be sufficiently lighted, ventilated and kept in cool and
clean conditions
Creches : Following provisions have been made in respect of creches in the
factories :
(1) In every factory wherein more than 30 women workers are ordinarily
employed, the facility of suitable room or rooms should be provided and
maintained for the use of children under the age of six years of such women.
(2) There should be adequate accommodation in such rooms.
(3) These places should be sufficiently lighted and ventilated and kept in clean
and sanitary conditions.
(4) Women trained in the case of children and infants should be made incharge
of such rooms.
Welfare officers :
According to Section 49(1), in every factory wherein 500 or more workers are
ordinarily employed, the occupier should employ such number of welfare officers
as may be prescribed.
The State Government is empowered to prescribe the duties, qualifications and
conditions of service of such welfare officers.
The provisions of Section 49 also apply to seasonal factories like sugar factories
etc.
The State Government is empowered to lay down rules as to the conditions of
service of welfare officers.
The conditions of service may include matters in respect of pay grades, period of
probation and confirmation, dismissal or termination or retirement etc.
Case law : In the case of Associated Cement Cos. Ltd. v. Sharma, A.I.R. 1965
S.C. 1595, the Supreme Court held that
Rule 6 of Punjab Welfare Officers Recruitment and Conditions of Service
Rules, 1952, requiring the concurrence of the Labour Commissioner before the
management can dismiss or terminate the services of Welfare Officer is not
ultra vires.
Provisions relating to hazardous process under Factories Act 1948 :
Definition of Hazardous Substance : Hazardous substance means any substance
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Explain in detail the various benefits available under the Employees State
Insurance act 1946. (Nov-2011)
ANSWER :
Refer :
http://www.isspa.org/uploads/laws/pdfs/15_pdf.pdf
Object of the Act : To provide social insurance for the employees.
Applicability of the Act & Scheme :
Is extended in area-wise to factories employing 10 or more persons and
establishments employing 20 or more person. It has also been extended upon
shops, hotels, restaurants, roads motor transport undertakings, equipment
maintenance staff in the hospitals.
Coverage of employees : Employees drawing gross wages upto Rs.15000/- per
month, engaged either directly or thrugh contractor
Rate of Contribution of the wages :
Employers 4.75%
Employees 1.75%
Manner and Time Limit for making Payment of contribution :
The total amount of contribution (employees share and employers share) is to be
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deposited with the authorized bank through a challan in the prescribed form in
quadruplicate on or before 21 st of month following the calendar month in which
the wages fall due.
Benefits to the employees under the Act :
Medical, sickness, extended sickness for certain diseases, enhanced sickness,
dependents maternity, besides funeral expenses, rehabilitation allowance, medical
benefit to insured person and his or her spouse.
Following to be deemed as wages for ESI contributions :
Basic pay
Dearness allowance
House rent allowance
City compensatory allowance
Overtime wages (but not to be taken into account for determining the coverage of
an employee)
Payment for day of rest
Production incentive
Bonus other than statutory bonus
Night shift allowance
Heat, Gas & Dust allowance
Payment for unsubstituted holidays
Meal/food allowance
Suspension allowance
Lay off compensation
Children education allowance (not being reimbursement for actual tuition fee)
Following NOT to be deemed as wages for ESI contributions :
Contribution paid by the employer to any pension/provident fund or under ESI Act.
Sum paid to defray special expenses entailed by the nature of employment
Daily allowance paid for the period spent on tour.
Gratuity payable on discharge.
Pay in lieu of notice of retrenchment compensation
Benefits paid under the ESI Scheme.
Encashment of leave
Payment of Inam which does not form part of the terms of employment.
Washing allowance
Conveyance Amount towards reimbursement for duty related journey
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Contribution period :
1 st April to 30 th September.
1 st October to 31 st March
Illustration : If the person joined employment for the first time, say on 5 th
January, his first contribution period will be from 5 th January to 31 st March and
his corresponding first benefit will be from 5 th October to 31 st December.
Penal Provision :
For contraventions of Provisions of the Act, imprisonment upto 2 years and fine
upto Rs.5,000/-.
For repeated contraventions of the Act, imprisonment upto 5 years and fine upto
Rs.25,000/-.
Besides these provisions, action also can be taken under section 406 of the IPC
in cases where an employer deducts contributions from the wages of his
employees but does not pay the same to the corporation which act of
employer amounts to criminal breach of trust.
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Explain object of the payment of the gratuity under the Payment of Gratuity Act.
(Nov-2011)
ANSWER :
Intro :
This Act was introduced in 1972 and was amended in 1984 and 1987.
Gratitude is defined as something given without obligation or claim.
Object of the payment of the gratuity :
Supreme Court said: Gratuity is a kind of retirement benefit like the provident fund
or pension. Intended to help them after retirement, whether the retirement is the
result of superannuation or physical disability. General principal behind Gratuity is
that the length of the service of the workmen are to be considered to claim a
certain amount as a retiral benefit.
Article 43 of Constitution of India says that the State should work towards securing
to all workers, work, a living wage, conditions of work ensuring a decent standard
of life and full enjoyment of leisure and social and cultural opportunities
Preamble: An Act to provide for a scheme for the payment of gratuity to employees
engaged in factories, mines, oil-fields, plantations, ports, railway companies, shops
or other establishments and for matters connected therewith or incidental thereto.
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of, property belonging to the employer, shall be forfeited to the extent of the
damage or loss so caused;
(b) the gratuity payable to an employee shall be wholly forfeited,-
(i) if the services of such employee have been terminated for his riotous or
disorderly conduct or any other act of violence on his part, or
(ii) if the services of such employee have been terminated for any act which
constitutes an offence involving moral turpitude, provided that such offence is
committed by him in the course of his employment.
Comment: "The right to gratuity is also a statutory right. The appellant was not
charged with nor was given an opportunity that his gratuity would be withheld as
a measure of punishment. No provision of law has been brought to our notice
under which, the. President is empowered to withhold gratuity as well, after his
retirement as a measure of punishment. Therefore, the order to withhold the
gratuity as a measure of penalty is obviously illegal and is devoid of
jurisdiction.": D.V. Kapoor v. Union of India AIR 1990 SUPREME COURT 1923
Payment of Gratuity Act Applies to :
1. Every factory, mine, oil-field, plantation, port and railway company;
2. Shops or establishment with ten or more persons employed on any day in the
preceding 12 months;
3. Such Shops or establishment with ten or more persons employed on any day
in the preceding 12 months as identified by Central Government by notification;
Applies to the whole of India except to Jammu & Kashmir in so far as to
plantations or ports.
'Not less than 5 years of continuous service' is relaxed for cases of death or
disablement
Calculating Gratuity :
15 day average pay = (Total Salary for the month / 26 working days of the
month) * 15 days
Total Gratuity payment amount = 15 day average pay * total years in service
Total years in service should be calculated for every completed year of service or part
thereof in excess of six-months
Recovery of gratuity : If the amount of gratuity payable under this Act is not paid by
the employer, within the prescribed time, to the person entitled thereto, the
controlling authority shall, on an application made to it in this behalf by the aggrieved
person, issue a certificate for that amount to the Collector who shall recover the
same, together with compound interest thereon 1at such rate as the Central
Government may, by notification, specify, from the date of expiry of the prescribed
time as arrears of land revenue and pay the same to the person entitled thereto
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In respect of any injury which does results in the total or partial disablement of the
workman for a period not exceeding three days.
In respect of any injury, not resulting in death or permanent total disablement
caused by an accident which is directly attributable to-
The workman having been at the time thereof under the influence of drink or
drugs, or
Willful disobedience of the workman to an order expressly given, or to a rule
expressly framed, for the purpose of securing the safety of workmen, or
Willful removal or disregard by the workman of any safety guard or other
device which he knew to have been provided for the purpose of securing the
safety of workman.
Report of accident :
Report of fatal Accident and Serious Injury within 7 days to the Commissioner (not
application when ESI Act applies).
Bar upon contracting out : Any workman relinquishing his right for personal injury not
permissible.
Definition : Section 17 : Any contract or agreement whether made before or after
the commencement of this Act, whereby a workman relinquishes any right of
compensation from the employer for personal injury arising out of or in the course
of the employment, shall be null and void in so far as it purports to remove or
reduce the liability of any person to pay compensation under this Act.
Bar of benefit under other enactments :-
When a person is entitled to any of the benefits provided by this Act, he shall not
be entitled to receive any similar benefit admissible under the provisions of any
other enactment.
Penal Provision : In case of default by employer -
50% of the compensation amount + interest to be paid to the workman or his
dependents as the case may be.
Other offences attract fine upto Rs.5000/-
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Intro :
"Workers participation in Management" is a process by which subordinate
employees, either individually or collectively, become involved in one or more
aspects of organizational decision making within the enterprises in which they
work.
The main reasons for worker's participation in management as summarized by
ILO :
Workers have ideas which can be useful;
Workers may work more intelligently if they are informed about the reasons for
and then intention of decisions that are taken in a participative atmosphere
Objectives of Worker's Participation in Management :
To raise level of motivation of workers by closer involvement.
To provide opportunity for expression and to provide a sense of importance to
workers.
To develop ties of understanding leading to better effort and harmony.
To act on a device to counter-balance powers of managers.
To act on a panacea for solving industrial relation problems.
Forms of Worker's Participation in Management :
Collective Bargaining : Collective bargaining results in collective agreements
which lay down certain rules and conditions of service in an establishment. Such
agreements are normally binding on the parties. Theoretically, collective bargaining
is based on the principle of balance of power, but, in actual practice, each party
tries to outbid the other and get maximum advantage by using, if necessary,
threats and counterthreats like; strikes, lockouts and other direct actions. Joint
consultation, on the other hand, is a particular technique which is intended to
achieve a greater degree of harmony and cooperation by emphasising matters of
common interest. Workers prefer to use the instrument of collective bargaining
rather than ask for a share in management. Workers participation in the U.S.A has
been ensured almost exclusively by means of collective agreements and their
application and interpretation rather than by way of labour representation in
management.
Works Committees/ Councils : These are exclusive bodies of employees,
assigned with different functions in the management of an enterprise. In West
Germany, the works councils have various decision-making functions. In some
countries, their role is limited only to receiving information about the enterprise.
In Yugoslavia, these councils have wider decision-making powers in an enterprise
like; appointment, promotion, salary fixation and also major investment decisions.
Joint Management Councils/ Committees : Mainly these bodies are
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consultative and advisory, with decision-making being left to the top management.
This system of participation is prevalent in many countries, including Britain and
India. As they are consultative and advisory, neither the managements nor the
workers take them seriously.
Board Representations : The role of a worker representative in the board of
directors is essentially one of negotiating the workers interest with the other
members of the board. At times, this may result in tension and friction inside the
board room. The effectiveness of workers representative at the board depend upon
his ability to participate in decision-making, his knowledge of the company affairs,
his educational background, his level of understanding and also on the number of
worker representatives in the Board.
Workers Ownership of Enterprise : Social self-management in Yugoslavia is an
example of complete control of management by workers through an elected board
and workers council. Even in such a system, there exist two distinct managerial
and operative functions with different sets of persons to perform them. Though
workers have the option to influence all the decisions taken at the top level, in
actual practice, the board and the top management team assume a fairly
independent role in taking major policy decisions for the enterprises, especially in
economic matters.
Conclusion :
Workers participation in management is an essential ingredient of Industrial
democracy. The concept of workers participation in management is based on
Human Relations approach to Management which brought about a new set of
values to labour and management. Traditionally the concept of Workers
Participation in Management (WPM) refers to participation of non-managerial
employees in the decision-making process of the organization.
By virtue of their participation, employees are bound to abide by all the decisions
taken. This also helps in boosting the employee morale and enhancing their
commitment to the organization.
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Explain in detail the concept of collective bargaining with case laws under the Gujarat
(Mumbai) Industrial Relations Act 1946. (Dec-2016)
ANSWER :
Refer :
page-35-47 of
http://shodhganga.inflibnet.ac.in/bitstream/10603/8113/12/12_chapter%203.pdf
https://spiritofhr.wordpress.com/industrial-disputes-act-trade-unions-act-factories-
act-plantation-labor-act/
Collective bargaining and Joint Management Council are few of the methods of
Worker's Participation in Management. Joint Management Council is discussed
elsewhere in this doc.
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different manners. It is made up two words collective implies group action through
its unions of representatives and bargaining implies haggling and or negotiating.
The Encyclopedia of Social Sciences defines "collective bargaining" as a process of
decision and negotiations between two parties, one or both of who is a group of
persons acting in concert.
More significantly, it is the procedure by which an employer or employers and a
group of employees agree upon the conditions of work.
The International Labour Organization has defined collective bargaining as --->
Negotiations about working conditions and terms of employment between one or
more employers/ organizations on the one hand, and one or more representative
workers/ organizations on the other, with a view to reaching agreement.
According to Ludwing Teller Collective Bargaining is an agreement between a
single employer or an association of employers on the one hand and labour union
on the other hand which regulate the terms and conditions of employment.
The Supreme Court has also laid down that collective bargaining is a technique by
which dispute between labour and capital are resolved amicably by agreement.
Pre- Requisites of Collective bargaining :
Mutual Recognition
The parties must attain a sufficient degree of organisation
Agreement must be observed by those to whom they apply
There must be a favorable political climate, essential for successful collective
bargaining
A give and take policy must prevail in the organisation
Workers as well as the employers shall have the right to form an organisation of
their own to protect their interests
Negotiation is successful only when the parties rely on facts & figures to support
their points of view
Unfair practices should be avoided from both the parties
The terms of agreement should be clearly & precisely written down in detail
Agreement reached should be honored and fairly implemented
Both the parties must have an understanding about the needs, aspirations,
objectives and problems of other parties
Both the parties should have maturity in leadership and negotiation skills
The trade union participating in the collective bargaining process must be strong &
democratic
Parties to Collective Bargaining :
Two parties namely management and workers are required for collective
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Suggested Reading :
John Bowers and Simon Honeyball, Tex Book on Labour Law, Blackstone, London.
Srivastava K. D. Commentaries on payment of Wages Act, 1936, Eastern, Lucknow.
Srivastava K. D. Commentaries on Minimum Wages Act, 1948, Easteron, Lucknow.
Rao S. B. Law and Practice on Minimum Wage, Law Publishing House, Allahabad.
Sheth D. D. Commentaries on industrial Disputes Act, 1947, Law Publishing House,
Allahabad.
Srivastava K. D. Disciplinary Action against Industrial Employees and its Remedies,
Eastern, Lucknow.
Srivastava K. D. Commentaries on Factories Act, 1948, Eastern, Lucknow.
R. C. Saxena, Labour Problems and Social Welfare Chapter 1.5 and V. V. Giri, Labour
Problems in Indian Industry Chs. 1 and 15
Indian Law Institute, Labour Law and Labour Relation, Cochin University law Review,
Vol. 6 app. 153-210
Report of the National Commission on Labour Ch. 1417, 22, 23, and 24
O. P. Malhotra, The Law of Industrial Dispute, Universal, Delhi,
S.C. Srivastava, Social Security and Labour Laws, Universal Delhi.
S.C. Srivastava, Commentary on the Factories Act, 1948, Universal, Delhi.
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