Labour laws continued: The Industrial Disputes Act
The definition of industry
includes any trade, business, undertakings, manufacture carried on by an
employer and includes any handicraft , industrial occupation or handicrafts or
avocations of a workman.
The supreme court laid down
the triple test for the definition of an industry in the B.W.S.S.B case :
Test 1:
1)
There must be systematic activity carried ,
such activity must be carried on by cooperation between employees and employer
for the production of goods or service , and such goods or service satisfy
human wants and wishes, which means they do not satisfy spiritual wants or
wishes.
2)
The absence of profit motive doesn’t remove a
sector from the definition of industry.
3)
The main focus must be on the functional
relationship between the employer and the employees.
4)
A philanthropic activity does not stop the
industry from being one.
Test 2:
1)
All features of an industry while compared to
another might be dissimilar, what matters is the systematic cooperation between
employers and employee.
2)
It does not even matter if the terms of
employment are dissimilar.
Test 3:
Application of the above,
must not fall short of logical application of mind.
Let us see if the following
category of activities are industries or not :
1)
Sovereign function : if the industrial
function is severable from the other function then yes, it can be called and
industry. This was laid down in the b.w.w.s.b case. And if the predominance of
industrial activity of a government department shall be the criterion for
determining if it comes within the ambit of industry or not.
2)
Municipalities: The tax dept, public
conveyance, fire brigade, lighting, water works, city engineers,
enforcement,sewerage, health ,market, gardens, education, printing were held to
be industry. Again the pre dominance of industrial activity is applied here to judge if a department is
an industry or not.
3)
Hospital and charitable institutions:
Depending on the relationship between employee and employer we can construe if
the institution is an industry or not. Eg: a person working in a charitable
institution out of sheer commitment and for the work satisfaction derived from
it then such activity shall not be an industry.
4)
Clubs: a certain categories may be exempt
from the definition of industry. But the larger ones if they do come within the
ambit of the BWSSB case then they would be and industry.
5)
Professional firms would come under industry
if they employ a large number of people .it has to be noted there must be
minimum 10 members to form and industry.
When does an individual
dispute become and industrial dispute? :
The following are the
essential ingredients for and individual dispute to become an industrial
dispute :
1)
Sponsorship i.e who has sponsored the
dispute.
2)
Membership of trade union antecedent to the
dispute.
3)
Community of interest( most important aspect)
4)
Proof of support.
Strike:
Strike is the weapon of the
workers. Workers are in a position where they can be dominated or exploited by
employrs, strike is a weapon which enables them to cease working , so that they
can reach an understanding between themselves and the employers or they can
sort out any dispute.
Strike can be defined as
cessation of work by employees who are acting in a combination, or a concerted
refusal to accept or take up any employment given by the employer.
Precautions:
1)
A strike cannot be decalared before issuing a
6 weeks notice.
2)
A strike cannot be called in when there are
conciliation proceedings pending before a industrial tribunal, national industrial
tribunal or a labour court and also during a period when an award or settlement
is in operation.
3)
Strike cannot be entered into when there are
proceeding pending before an arbitrator.
Types of strike:
1)
Pen down strike.
2)
Tool down strike.
3)
General strike.
4)
Hunger strike.
5)
Gherao.
6)
Slow down strike.
7)
Speed up strike.
Based on legality:
1)
Legal strike and illegal strike.
2)
Justified strike and unjustified strike.
A strike cannot be rendered
illegal based on the fact that it was with a malicious intent or whether the reason
for the strike was not justified. A strike is legal if it is declared legally
following all precautions. A legal strike too can be malicious, a malicious
intent exists in mind and is very difficult to prove.
A justified strike is where
the cause of strike is for getting justice for an employee or the whole class
of employees. Such a situation occurs when the employer does some act which
causes damage to the employees and justice has to be done. Payment
of wages during a period of strike depends on wether the strike was justified
or unjustified.
Lock out:
When the employer prevents
the employees from entering the premises, he’s said to lockout.
A lockout is the anti-thesis
to a strike. A lockout is the weapon of the employer.
By doing a lockout the
employer stops providing any form of work to all employees and suspends work
temporarily.
The same precautions that
apply to a strike also apply to lockout. If these precautions are not followed
then the lockout becomes illegal lockout.
Financial aid to illegal
lockout is not allowed under the act.
Award :
1)
It is an interim or final determination .
2)
Determination shall be regards to a dispute.
3)
It shall be made by an industrial tribunal,
national industrial tribunal or any labour court.
4)
It also includes an award made by an
arbitrator.
An award shall be binding on
all the employees and the employer.
Settlement:
A settlemet is “a settlement
reached through conciliation proceedings between employer and employees in the
presence of a conciliation officer. It also includes an agreement entered into
between the employee and employer other than in conciliation proceedings”
A settlement represents a
gentlemans agreements. It is not binding on all the employees, it binds only on
employees who were present in the proceedings and agreed to the terms and
conditions. It is like a contract, those who do not have consensus ad idem they
would not be a part of the agreement.
There shall be settlement deed, which shall be called the
memorandum of settlement, this document shall be forwarded by the conciliation officer
to the appropriate government, otherwise the settlement becomes invalid
