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Labour Laws Notes based on previous year question papers Labour Laws (Karnataka State Law University) StuDocu is not sponsored or endorsed any college or university Downloaded Taizoon Shikari Labour Laws Notes Praveen Kumar 1 Downloaded Taizoon Shikari 29. How to determine the contribution towards p...

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Labour Laws - Notes based on previous year question papers Labour Laws (Karnataka State Law University)

StuDocu is not sponsored or endorsed by any college or university Downloaded by Taizoon Shikari ([email protected])

Labour Laws Notes by Praveen Kumar

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Contents UNIT 1 ..................................................................................................................................................... 4 1.

What is Industrial Dispute? Explain the essential requisites of an Industrial Dispute?.............. 4

2.

Causes/Essential requisites of industrial Disputes: .................................................................. 11

3. Explain the factors which were responsible for departure from the old theory of “Master and Servant”. ........................................................................................................................................... 13 4.

Outline the impact of industrial jurisprudence on labour welfare legislations. ....................... 16

5.

Explain the provisions of the Industrial Disputes Act, 1947 relating to award......................... 22

6.

Labour Policy in India ................................................................................................................ 30

7.

Labour Problems ....................................................................................................................... 32

8. “Industry is an organised or occupied activity carried on with the cooperation of employer and employee to meet its object”. Justify with aid of Bangalore water supply vs Rajappa case..... 34 9.

Principles of Labour Legislation ................................................................................................ 40

10.

Strike and Lockout................................................................................................................. 44

11.

Explain the term ‘workman’.................................................................................................. 48

12. Explain ‘Industrial Dispute’. When does an individual dispute become an Industrial Dispute? ............................................................................................................................................ 54 13.

Write a Note on Settlement.................................................................................................. 57

14.

Lay Off ................................................................................................................................... 58

15. Explain the provisions relating to recovery of money due from the employer under Industrial Dispute Act........................................................................................................................ 60 16. Explain the provisions relating to closure of an undertaking under Industrial Disputes Act, 1947 62 17.

Discuss briefly the Authorities set up for the investigation of Industrial Disputes. ............. 64

18.

Conditions of service, etc., to remain unchanged ................................................................ 71

19. Termination of service of workman by the employer for any reason whatsoever amounts to retrenchment. Explain with the help of decided cases. .............................................................. 76 20.

Unfair Labour Practice .......................................................................................................... 80

21.

Explain the role of arbitration in resolving industrial dispute. ............................................. 85

22.

Write note on notice of change. ........................................................................................... 87

23.

Registration of Trade Unions under the Trade Union Act 1926 ........................................... 91

24. Discuss the liability of the employer to pay compensation under the Workmen Compensation Act............................................................................................................................. 99 25.

Benefits under Employees State Insurance Act 1948 ......................................................... 108

26.

Contributions, Employees State Insurance Act................................................................... 116

27.

Pension................................................................................................................................ 124

28.

Discuss the mode of Recovery of Moneys due from the employer under the EPF Act, 1952 126 2

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29.

How to determine the contribution towards provident fund ? ......................................... 128

30. State the procedure of employees insurance claims under the Employees State Insurance Act, 1948. ........................................................................................................................................ 129 31. Discuss the salient features of the various schemes formulated under the Employees Provident Fund Act, 1952. .............................................................................................................. 140 32. “All workmen are employees but all employees are not work men”. Explain with the help of decided cases .............................................................................................................................. 146

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UNIT 1 1. What is Industrial Dispute? Explain the essential requisites of an Industrial Dispute? According to Sec. 2(k) of the Industrial Dispute Act, 1947, “Industrial dispute 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 employment or with the conditions of labour of any person” The above definition of industrial disputes brings out the following essential ingredients: 1) There should be a disputes or difference; 2) The disputes or difference may be between: a) employer and employer, or b) employer and workman, or c) workman and workman. 3) The disputes or difference may be connected with: a) employment, or b) non employment, or c) the terms of employment, or d) conditions of labour of any person, and 4) The disputes should relate to an industry. The definition further shows that certain type of disputes can never fall within its ambit. For e.g. disputes between a government and an industrial establishment or between workmen and nonworkmen. Definitions of industry (section 2) Section 2(J) of the act defines industry as follows: “industry” means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft or industrial occupation or vocation of workmen. From the above definition, industry appears to mean: 1) 2) 3) 4) 5) 6) 7)

A business, such as merchandising, A trade, such as cutler, A manufacture, such as flour milling An undertaking, such as an electricity company, A calling, such as architect, A services, such as transporter, or An employment, which is a general term covering. Perhaps, the rest of the vocations.

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Definition of workman section 2(s) “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.] The definition of workman has three essential parts: 1. Statutory meaning of workman; 2. Legal fiction, and 3. Categories of persons excluded. Broadly speaking, the definition of “Industrial Dispute” may be analysed under four heads: 1. Factum of Industrial dispute 2. Parties to the dispute 3. Subject matter of the dispute 4. Origin of the dispute Factum of Industrial Disputes The expression ‘dispute or difference’ connotes a real and substantial difference having some elements of persistency and likely, if not adjusted, to endanger the industrial peace of the community. In Workmen of Hindustan Lever Ltd v. Hindustan Lever Ltd (1984), the Court observed: The expression “Industrial Dispute” has been so widely defined as not to leave anything out of its comprehension and purview involving the area of conflict that may develop between employer and the workmen and in respect of which a compulsory adjudication may not be possible. When does an Industrial Dispute come into existence? When parties are at a variance, and the dispute or difference is connected with the employment or non-employment or the terms of the employment or with the conditions of labour, there comes into existence an Industrial Dispute. There is divergence of opinion on the issue whether a mere demand to the appropriate government or to the Conciliation Officer without a dispute being raised by the workmen with the employer regarding such demand can be called an industrial dispute?

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1963: In Bombay Union of Journalists v. The Hindu (1963) it was held that the Industrial dispute must be in existence or apprehended on the date of reference. The net effect of the principle is that even if the demand was not made earlier before the management and rejected by them and is raised at the time of reference or during conciliation proceedings, the dispute may be an “industrial dispute”. 1968: In Sindhu Resettlement Corporation Ltd v. Industrial Tribunal (1968) the SC said that if there is no dispute raised by the workmen with the management, any request sent by them to the government would only be a demand. A mere demand to the government without a dispute being raised cannot become an industrial dispute. 1978: In Shambhunath Goel v. Bank of Baroda(1978), The court observed: ….to read into the definition the requirement of a written demand for bringing into existence an industrial dispute would be tantamount to rewriting the section.

Summary: 1993: In M/s Village Paper Pvt. Ltd v State of Himachal Pradesh (1993), the court made the following observations: 1. A mere demand made to the Government cannot become an Industrial dispute without it being raised by the workmen with their employer. 2. If such a demand is made to the Government, it can be forwarded to the management and if rejected, becomes an Industrial dispute. 3. Though it is apparent for a dispute to exist, there must be a demand by the workmen or the employer, this demand need not be in writing, unless the matter pertains to a public utility service, in view of the provisions of section 22 of the Industrial Dispute Act 1947. 4. The demand need not be sent directly to the employer nor is it essential for it to be made expressly. It can even be implied or constructive e.g., by way of filing an appeal or refusal of an opportunity to work when demanded, by the workmen. A demand can be made through the conciliation officer, who can forward it to the management and seek its reaction. If the reaction is negative or not forthcoming and the parties remain at loggerheads, a dispute exists and a reference can be made. 5. Whether a dispute exists has to be decided in each case and is dependent on the facts and circumstances of that case. The critical time for this examination is the date of making this reference; material which comes into existence after the reference has been made is not relevant. 6. Only that dispute which exists or is apprehended can be referred. If there is a different kind of demand made before the management and the reference pertains to some other demand, then the reference is incompetent, e.g., reference pertains to reinstatement whereas the demand pertains to retrenchment compensation.

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7. The jurisdiction of the labour court/Industrial Tribunal is limited to the points specifically referred and matters incidental thereto. Since the scope of its jurisdiction and power is circumscribed by the order of reference, it is not permissible for it to go beyond the terms of reference. 8. Thus, if a reference is made without any demand having been made on the employer either expressly or impliedly, there is no occasion for the employer to point out the nature of the dispute so as to facilitate the government for making an appropriate reference of the dispute. Parties to Dispute S.2 (k) of the Act considered a dispute to be an industrial dispute only if it takes place betweenEmployers and Employers Employers and Workmen Workmen and Workmen Employers and Employers The term ‘employers and employers’ have been included in the definition in the Industrial Disputes Act 1947 to widen its scope and ambit. The disputes between employers and employers may arise in respect of wage matters in an area where labour is scarce or disputes of similar character. Employers and Workmen Bangalore WC and Mills Co v Their workmen (1968) Trade unions as such are not mentioned in the definition of Industrial Dispute because they act on behalf of the workmen and therefore, when a trade union raises a dispute, the workmen are deemed to be parties to the dispute. Due to the absence of an employer-employee relationship between a contract worker and principal employer, a dispute between them regarding the regularization of the service of contract workers cannot be called an industrial dispute. In Rajaji Nagar Co-op Bank Ltd v. PO, LC a Division Bench of Karnataka High Court held that a dispute between the employees of a Co-operative Society and the management of the society relating to their employment is clearly excluded from the purview of the definition of industrial dispute u/s 2(k). Workmen and Workmen This includes the disputes between them directly or through their trade unions. Such a dispute may be a demarcation dispute for example. Subject-matter of Disputes A dispute or difference must relate either to: Employment or Non-employment or Terms of employment or The conditions of labour of any person.

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The legislature used these phrases in the definition of Industrial Dispute so that all aspects of labour problems may be resolved through the industrial relations machinery provided under the Industrial Disputes Act 1947. Employment Employment brings in the contract of service between the Employer and Employed. The concept of employment involves three ingredients: 1. The employer 2. The employee and 3. The contract of employment The employer is one who employs, i.e., one who engages the services of other persons. The employee is one who works on hire basis. The employment is the contract of service between the employer where under the employee agrees to serve the employer, subject to control or supervisions. Unemployment Unemployment is the opposite of employment. It is the positive or negative act of the employer that leads to unemployment. It may relate to an existing fact of unemployment or a contemplated unemployment. Four illustrations cited by the federal court in Western Indian Automobiles Association v Industrial Tribunal are: With respect to Employment: 1. An employer has already employed a person and a trade union says “Please do not employ him”. 2. An employer gives notice to a union saying that he wishes two particular persons. The union says “No” With respect to Unemployment: 1. An Employer may dismiss a man, or decline to employ him. 2. An Employer contemplates turning out those who are already in his employment. The expression unemployment is sufficiently elastic to include all cases of 1. Termination of service either voluntarily or by act of parties. The instances of this kind are dismissal, discharge, retrenchment, compulsory retirement etc. It also includes temporary unemployment, e.g., suspension, layoff, compulsory leave, lockout, strike etc. Further, it would include within its scope the words arising out of unemployment, e.g., reinstatement, reemployment, compensation, and back wages for wrongful termination of service. Terms of employment The expression Terms of employment generally cover basic wages, Dearness Allowances and other allowances, wages on promotion, wages on demotion, wages on transfer out of town, wages for overtime work, wages for work on holiday, payment of wages, recovery of wages, bonus, retiral benefits, e.g., pension, provident fund, gratuity, pension etc. 8

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Conditions of Labour The expression conditions of Labour is much wider in scope and refers to the conditions of service under which they work and the amenities provided or to be provided to them. This expression may include hours of work, holidays, leave, health, safety and welfare of labour. Apart from above, the following are also included based on decided cases: 1. Alteration of conditions of service of employees 2. Demand for modification of standing orders 3. Disputes regarding Contract Labour 4. Dispute on Lockout in disguise of Closure 5. Dispute of workmen whose cases are left unsettled 6. Transfer of workmen from one place to another Origin of Industrial Dispute /Meaning: “Any Person" The scope of the expression “Any Person” occurring in the last part of the definition of Industrial Dispute has been a subject matter of Controversy. If construed literally, it may mean and include both natural and artificial persons. On the contrary, if interpreted narrowly, the expression of any person may be equated with workmen. Prior to the Supreme court decision in Dimakuchi Tea estate (1958), there was no unanimity of opinion with regards to the scope of the expression “Any Person”. Three views were discernible: 1. The first view emphasised the literal meaning and held that employment or nonemployment or terms of employment or conditions of labour of any person whether that person is a workman or not could form the subject matter of Industrial Dispute. According to them, if the intention of the legislature was to restrict the scope of the expression of Industrial Dispute as a dispute between employers and workmen relating to the terms of employment of workmen alone, there was no need to use the wider expression of “Any Person”. 2. The second view equated the word person with that of workman. According to the supporters of this view, unless the person was a workman within the meaning of section 2(s) of the Industrial Dispute Act 1947, a dispute concerning him could not be an Industrial Dispute under section 2(k). 3. The third view adopted a middle course namely that the concerned person n...