LLB 4th Semester Examination - 2017
Labour and Industrial Law
(K-4002)
Section A
Note: Attempt all questions. Each question carries 4 marks
1. Workman
2. Work Committee
3. Appropriate Government
4. Award
5. Collective Bargaining.
Section B
Note: Attempt any two questions. Each question carries 10 marks
6. State the liabilities of a registered Trade Union.
7. When a strike becomes illegal?
8. When can an individual's dispute becomes industrial dispute?
Section C
Note: Attempt any three questions. Each question carries 20 marks
9. Discuss the procedure for the registration of a Trade Union. How many members are required for the registration of a Trade Union?
10. Who are disqualified to be office bearer of a registered Trade Union? Can a minor be a member of a registered Trade Union?
11. Lockout is a weapon in the hands of employer and strike in the hand of workers. Discuss under Industrial Dispute Act 1947.
12. Define and discuss 'Industrial Dispute' under Industrial Dispute Act 1947.
13. Discuss procedures, powers and functions of National Industrial Tribunal under Industrial Dispute Act 1947.
Ansawers->
In labor law, a "workman" is defined as any person employed in an industry to perform manual, unskilled, skilled, technical, operational, clerical, or supervisory work for hire or reward. This definition includes apprentices and individuals who have been dismissed, discharged, or retrenched in connection with an industrial dispute.
The person must be working in a business, trade, undertaking, manufacture, or calling of an employer. The work must be manual, unskilled, skilled, technical, operational, clerical, or supervisory. The person must be working for payment or some form of remuneration, whether expressly stated or implied in the employment contract.
Exclusions:
The definition generally excludes those employed in the military, police, or prison services, those in managerial or administrative positions, and supervisory personnel earning over a certain amount per month, according to the Industrial Disputes Act, 1947 (ID Act)
In Indian labor law, a Works Committee, mandated by the Industrial Disputes Act, 1947, is a joint committee composed of representatives from both employers and employees in an industrial establishment with 100 or more workers, aiming to promote good relations, address common interests, and resolve disputes.
Applicability:
The Industrial Disputes Act, 1947, mandates the formation of a Works Committee in any industrial establishment employing 100 or more workmen or having employed them on any day in the preceding twelve months.
Key Objectives:
Promote harmonious workplace relations
Resolve issues related to work conditions and benefits
Prevent and resolve day-to-day disputes
Negotiate matters of common interest
Maintain industrial peace
Provide ideas to managemen
In Indian labor law, the "appropriate government" is the governing authority with the power to administer and enforce specific labor laws. Generally, it's the Central Government for matters of national importance or industries under their control, while the State Government handles matters within their respective states.
Elaboration:
Central Government:
The Central Government is typically the appropriate government for matters like:
Industries carried on by or under the authority of the Central Government.
Railway industries.
Banking and insurance companies.
Major ports and mines.
Oil fields.
Industries specified as controlled industries by the Central Government.
Trade unions whose objects are not confined to one state.
State Government:
The State Government is generally the appropriate government for:
Industries and establishments within their state.
Trade unions whose objects are confined to a single state.
In labor law, an "award" refers to a legally binding decision made by a Labour Court, Industrial Tribunal, or National Industrial Tribunal to resolve an industrial dispute. This determination can be either interim or final, and it also includes arbitration awards made under section 10-A of the Industrial Disputes Act, 1947.
Collective bargaining is a negotiation process between workers and employers to determine employment terms and conditions. It's a fundamental right that helps establish fair wages and working conditions.
How it works
Representatives of the workers and employers meet to negotiate
They exchange proposals, share ideas, and solve problems
They reach an agreement, which is documented in a collective bargaining agreement
Both parties sign the agreement
What's negotiated
Pay, benefits, and perks
Working hours, leave, and job security
Training, occupational health and safety, and equal treatment
Hiring practices, layoffs, promotions, and job functions
Worker discipline and termination
Liabilities of Registered Trade Unions
The Trade Unions Act outlines various responsibilities and obligations imposed on registered trade unions. These include:
Obligation to Incorporate Specific Matters in Rules
The constitution of a Trade Union must include provisions for the matters listed in Section 6 of the Trade Unions Act, 1926. Some of these matters include defining the union’s objectives, specifying the purposes for which the general funds can be utilised, establishing criteria for admitting members and outlining the process for dissolving the Trade Union.
Requirement to Form an Executive Committee
Registered Trade Unions must establish their executive committee in accordance with the provisions outlined in Sections 21-A and 22 of the Act. These sections lay down specific requirements for the constitution of the executive committee.
Compliance with these duties is a prerequisite for the registration process, as failure to adhere to them may result in the Registrar refusing to register the proposed Trade Union.
Mandatory Utilisation of General Funds
Trade Unions are legally obligated to use their general funds in accordance with the guidelines set forth in Section 15 of the Act. This section delineates specific objectives for which the general funds can be expended and any expenditure outside these parameters is not permitted.
Establishment of a Distinct Political Fund
In the event that a Trade Union decides to promote the civil and political interests of its members, it must establish a separate fund, commonly known as a political fund, as per Section 16. This fund can then be utilised for the purposes specified within the Act.
Provision of Access to Union Books
Registered Trade Unions are required to grant access to their account books and membership lists for inspection by office bearers or members of the Trade Union, in accordance with the rules specified by the union.
Notification to the Registrar
Trade Unions have a duty to inform the Registrar in various circumstances, including changes in the union’s name, amalgamation with other unions, alterations to the head office’s address and the dissolution of the union.
Annual Reporting to the Registrar
Every Registered Trade Union must submit an annual general statement, duly audited as prescribed, to the Registrar. This statement should detail all income and expenditure incurred by the union during the year ending on December 31st, preceding the prescribed date.
Additionally, it should outline the assets and liabilities of the Trade Union as of the same date. The statement’s format and specific particulars to be included are determined by the applicable regulations.
A strike or lockout is considered illegal under Indian law if it's commenced or declared in violation of specific sections of the Industrial Disputes Act, 1947, such as Sections 22 or 23, or if it continues against an order from a relevant authority. Specifically, a strike or lockout is illegal if it violates Section 22 or 23, if it continues against an order from a Board, or if it is continued after a conciliation proceeding or arbitration.
• Commencement or Declaration in Violation: A strike or lockout is illegal if it starts or is declared in violation of Sections 22 or 23 of the Industrial Disputes Act, 1947.
• Continuation against an Order: A strike or lockout is also illegal if it is continued in contravention of an order made under Section 10 or 10A of the Act.
• Continuing after Conciliation/Arbitration: A strike or lockout is considered illegal if it continues after a Board has taken up the dispute or if it is continued during or after conciliation proceedings or arbitration.
• Penalties: Any workman who commences, continues, or acts in furtherance of an illegal strike can be punished with imprisonment or fine.
• Lockout in Consequence of Illegal Strike: A lockout declared as a result of an illegal strike is not considered illegal.
• Strikes and Lockouts are Treated Similarly: The Act treats strikes and lockouts as counterparts, and the same prohibitions and consequences apply to both.
When an Individual Dispute Becomes an Industrial Dispute
To declare an individual conflict as an industrial dispute, several key elements must be satisfied:
Support from Labour Body or Trade Union
It is crucial that a group of labourers, trade unions or a substantial number of workers align themselves with the individual workman who is raising the issue. As demonstrated in the case of Newspaper Ltd., Allahabad v. UP State Industrial Tribunal (1960), when a group of workers, either through their union or other means, back an individual worker’s complaint, it can be classified as an industrial dispute. However, this support or sponsorship must come from employees of the same employer against whom the complaint is made.
Representative Character
The dispute must be taken up or sponsored by workers as a collective body of a trade union or by a significant proportion of them before the reference date.
For instance, in the case of Workmen of Indian Express Newspapers Ltd. v. Management Indian Express Newspapers (1968), where there was no union among Indian Express journalists, the issue was taken up by the Delhi Union of Journalists, an external union. The court recognised the representative character of this union because it represented a substantial portion of Indian Express’s working journalists.
Conditions of Section 2A
Alternatively, for an individual dispute to be considered an industrial dispute, it must meet the conditions stipulated in Section 2A of the Industrial Disputes Act, 1947.
According to Section 2A, if an employer terminates the services of an employee due to a dispute or differences between the worker and their employer, even if no other worker or union of workers is involved, the resulting dispute is classified as an industrial dispute.
Resolution Process
After three months from the date of filing an application with the conciliation officer, any worker can directly apply to the labour court or industrial tribunal for the resolution of such a dispute. The government has the authority to appoint conciliation officers, who play a role in mediating and facilitating settlements in industrial disputes.
These officers may be appointed for specific regions, industries or periods to expedite the resolution process. However, the application for dispute resolution must be submitted within three years after the date of dismissal, discharge, retrenchment or termination of employment.
Once an application reaches the court, it proceeds as if it had been referred to it under Section 10 of the Industrial Disputes Act, 1947, ensuring that the dispute is addressed through the appropriate legal channels.
Relevant Cases for Industrial Dispute and Individual Dispute
In the case of Express Newspapers (Private) Ltd. v. First Labour Court, West Bengal and Others (1958), it was established that a dispute can be classified as an industrial dispute even if it is supported by an unregistered union. However, it is essential that the trade union be affiliated with the employer or the specific industry in question. This ruling highlights the importance of the union’s connection to the relevant employer or industry in determining whether a dispute qualifies as an industrial dispute.
Procedure for Registration of a Trade Union
The procedures for registering a trade union are given from section 3 to section 14 of the Trade Union Act, 1926.
1. Section 3
Section 3 of the Trade Union Act talks about the appointment of the registrar. It states that the government will appoint a registrar, who will be responsible for registering trade unions that meet the Act’s conditions.
2. Section 4
According to section 4 of the Trade Union Act, before the amendment of 2001, only seven members were required to form a trade union. After the 2001 amendment, 10% of the total workers or a minimum of 100 workers, whichever is less, is required to form a trade union.
This 2001 amendment applies to the trade union of the workers only. For the trade union of the employer, the old rule is applicable, i.e., seven or more members.
This new rule has a proviso that says that the total number of members (for both worker and employer trade unions) can never be less than seven. Subsection 2 says that while making the registration to the registrar, a minimum seven-member subject to 10% member or a minimum of 100, whichever is less, is required.
For example, suppose an industry (say X) has 60 workers and 10 employers. The workers of industry X cannot form a trade union because the 10% of 60 = 6 workers do not fulfil the minimum criteria, that is, 7 workers. On the other hand, employers can form a trade union because employers are more than 7.
Further, at the time of registration, the registrar will check if the trade union has the support of a minimum of 50% of the total members working in that industry at the time of registration. If it is not, he will not register the trade union.
3. Section 5
Section 5 of the Trade Union Act, talks about registration applications. It says every application under section 4(1) shall contain:
The name of the trade union and the address of its head office;
The occupations and addresses of the members making the application;
Information about the title, name, age, address, and occupation of the union’s officers. The titles, names, ages, addresses and occupations of the office-bearers of the trade union.
Section 5(2) further says that if the trade union has been in existence for more than one year before making the application, then it also submit a general statement of the assets and liabilities of the trade union.
4. Section 6
Section 6 of the Trade Union Act, covers the essential requirements of the trade union’s rules, such as:
The name of the trade union;
The objective of the trade union;
The general fund;
Maintenance of a list of members;
Rules for the admission of ordinary members;
How a member of the executive shall be appointed or removed;
The annual audit reports, etc.
5. Section 7
Under section 7 of the Trade Union Act, the registrar will see the name of the trade union. If it resembles any other pre-existing trade union, the registrar shall refuse to register such union and ask the persons applying for registration to alter the name of such trade union.
6. Section 8
After sections 5, 6, 7, the registrar under section 8 of the Trade Union Act, shall register the name of such union as the registered trade union and enter the name of the trade union in a register maintained in such form as may be prescribed by the appropriate government and issue a certificate of registration.
7. Section 9
According to section 9 of the Trade Union Act, the registered trade union under section 8 shall be a piece of conclusive evidence and, no question will be asked whether it is a registered trade union or not for this Act.
Section 9A says that, if after the registration of trade unions under section 8, the members of such trade unions decrease below 10% of the total members, or below 100 as the case may be, the registrar shall revoke the certificate. The provisions of section 9A apply only to trade unions of workers.
8. Section 10
Section 10 of the Trade Union Act, relates to the cancellation of registration. It talks about the grounds for cancellation of the certificate of registration:
At the request of the trade union;
When the register finds the certificate was obtained by fraud, error or deliberate violation of a provision of this Act;
A registered trade union of workers loses the necessary number of members.
Before the certificate may be withdrawn or revoked, the registrar shall provide to the trade union a minimum of two-month advance written notice setting forth the reasons for the cancellation.
9. Section 11
Section 11 of the Trade Union Act talks about appeals. It states that anyone who has been harmed by a registrar’s decision can seek an appeal. It is important to remember that an appeal can only be available against a registrar’s negative ruling, such as a rejection of registration, withdrawal, or cancellation of registration. No appeal may be made against the registrar’s affirmative order. For example, if the registrar gives the certificate of registration and any other trade union is aggrieved by such order then, that trade union cannot file an appeal against such order. Section 11 also talks about where the appeals lie. It says that:
If the headquarter of the trade union is within the presidency town’s jurisdiction, an appeal lies within the High Court.
If the trade union’s headquarters are within the jurisdiction of a labour court or labour tribunal, the appeal lies to that court or tribunal.
If the headquarter of the trade union is within the jurisdiction of the principal civil court, an appeal will lie to such civil court.
10. Section 13
Section 13 of the Trade Union Act, says that every registered trade union:
Shall be a body corporate by its name;
Has perpetual succession;
Has a common seal;
Has the power to acquire or hold both movable and immovable properties;
Can sue or be sued by others.
11. Section 14
According to section 14 of the Trade Union Act, the registration of a union is only possible through the Trade Union Act, 1926 and registration under any other law shall be void.
A person can be disqualified from being an office bearer or executive of a registered trade union under Section 21A of the Trade Unions Act, 1926 if they are under 18 years old or have been convicted of an offense involving moral turpitude and sentenced to imprisonment. Additionally, the Tribunal may also disqualify an individual.
Key Disqualifications:
Age: Individuals must be at least 18 years old to hold office within a trade union.
Criminal Conviction: A person cannot be an office bearer or executive if they have been convicted by a court in India of any offense
involving moral turpitude and sentenced to imprisonment, unless a period of five years has elapsed since their release.
Tribunal Order: The Tribunal may also disqualify individuals for other reasons.
Other potential disqualifications (not explicitly mentioned in Section 21A but commonly considered):
Insolvency:
Individuals who have been declared insolvent or bankrupt may be disqualified.
Non-Citizenship:
Non-citizens or individuals who are not Indian citizens may be disqualified.
Employer-Employee Conflicts:
Some trade unions may have rules disqualifying individuals who are simultaneously employed by an employer or have a financial stake in the business.
The minimum age to be a member of a trade union in India is 15 years, as stated in the Trade Unions Act, 1926. However, to hold office within the trade union, a person must be above 18 years of age. This is further clarified in Section 21 of the Act, which grants minors who have attained 15 years the right to be members of a trade union.
A strike is a temporary cessation of work by employees acting collectively to enforce their demands, while a lockout is a temporary closing of a workplace or suspension of work by an employer. Strikes are initiated by employees, while lockouts are initiated by employers. Both are tools used in collective bargaining, but strikes are a weapon of the workers, while lockouts are a weapon of management.
• Strike:
• Employees collectively refuse to work to protest or gain concessions from their employer.
• Strikes are used to address grievances, disputes, or demands related to wages, benefits, working conditions, or other employment terms.
• The responsibility of ensuring compliance with labor laws and regulations rests with the employees or their labor union.
• Lockout:
• Employers prevent employees from working or entering the workplace.
• Lockouts are used to pressure employees to accept the employer's terms, often to gain an upper hand in negotiations.
• The employer is responsible for justifying the lockout's necessity and ensuring compliance with labor laws.
Both strikes and lockouts are subject to labor laws and regulations. An illegal strike can make a subsequent lockout legal, and vice versa. The Industrial Disputes Act, 1947, treats them as counterparts in collective bargaining.
An "industrial dispute" under the Industrial Disputes Act, 1947 (IDA) refers to any conflict or difference between employers and employees, or between employers and workers, or between workers themselves, that is connected with the employment or non-employment, the terms of employment, or the conditions of labor of any person. Essentially, it's a dispute arising from a labor-management relationship within an industrial context.
Key elements of an industrial dispute:
1. Existence of a dispute or difference: There must be a genuine disagreement or conflict between parties involved.
2. Connected to employment: The dispute must relate to matters like employment status (hiring, firing, promotion, etc.), terms of employment (wages, hours, benefits, etc.), or working conditions.
3. Involves industrial establishment: The dispute must occur within an industrial setting, where any industry is carried on.
4. Involves a group of employees: While disputes involving a single employee can be considered, they often have implications for a wider group of workers.
Examples of what constitutes an industrial dispute:
• Wage disputes.
• Disputes related to bonus or incentives.
• Disputes about working hours or overtime.
• Disputes over job security, termination, or layoffs.
• Disputes about safety conditions or working environment.
• Disputes related to recognition of trade unions.
Examples of what is NOT an industrial dispute:
• Individual grievances that do not involve broader issues or collective action.
• Disputes that are purely personal and do not affect the terms of employment.
Importance of the IDA and industrial disputes:
• Provides a framework for peaceful settlement: The IDA aims to establish mechanisms for resolving disputes through conciliation, arbitration, or adjudication, preventing strikes and lockouts.
• Promotes industrial peace: By addressing labor-management issues, the IDA helps maintain a stable and productive industrial environment.
• Protecting the rights of workers: The IDA provides safeguards against unfair labor practices and ensures that workers are not discriminated against.
• Facilitates collective bargaining: The IDA promotes the principle of collective bargaining, where workers can negotiate with employers on their terms of employment.
National Tribunal
National Tribunal [Sec. 7 (B)]: The Central Government may, by notification in the Official Gazette, constitute one or more National Industrial Tribunals. Its main function is the adjudication of industrial disputes which involve questions of national importance or affecting the interest of two or more States.
According to [Sec 10 (1-A)] dispute involves any question of national importance or is of such a nature that industrial establishments situated in more than one State, whether it relates to any matter specified in the Second Schedule or the Third Schedule, the government will order in writing refer to National Tribunal for adjudication.
According to [Sec 10 (2)] when parties in the industrial dispute apply to the government to refer dispute to the National Tribunal and if government satisfies it shall make the reference to the National Tribunal.
The Central Government shall appoint a National Tribunal consisting of one person only.
# A person to be appointed a presiding officer of a National Tribunal must be, or
# must have been, a judge of a High Court or
# must have held the office of the chairman or
# any other member of the Labour Appellate Tribunal for a period of not less than two years.
The Central Government may appoint two persons as assessors to advise the National Tribunal.
Role of National Tribunal
Central government may, by notification in the official Gazette, constitute one or more National Tribunals for the adjudication of Industrial Disputes in:
# National matters.
# Matters in which industries are more than one state, or are affected by the outcome of the dispute.
# The duty of the National Tribunal to hold its proceedings fast and submit its report to the central government within the specified time given
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