Labour laws

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