legislations concerning settlement of industrial disputes prof. hiteshwari jadeja

Legislations concerning settlement of Industrial

Disputes

Prof. Hiteshwari Jadeja

Industrial dispute

A dispute is basically a difference of opinion between the employer and the employees over one or more issues.

INDUSTRIAL DISPUTES ACT, 1947Definitions (From Book or Soft copy)Authorities under the Act (From Book or

Soft copy)Provisions related to Strike & Lockout (From

Book or Soft copy)Provisions related to Lay-off &

Retrenchment (From Book or Soft copy)

Meaning According to industrial disputes Act

1947,

“Industrial dispute is any dispute or difference between the employers and employees or between employers and workmen or workmen and workmen, which is concerned with the employment or the terms of employment or with conditions of labour or any person.”

Characteristics of industrial dispute

Industrial dispute is a collective dispute between employer and employees.

The relationship existing between the parties to the industrial dispute must be that of employer and employee or co-workers.

The dispute may arise out of disagreements between employers and employees over the terms of employment.

It could also be connected to the conditions of labour.

The industrial dispute may even relate to non-employment causes of workmen.

Causes of industrial disputes Demand for pay and benefits hike. Demand for hygienic and safer working

conditions. Demand for better labour welfare and social

security measures. Demand for recognition and appreciation. Demand for justice to an individual or a group

of employees. One-upmanship among the unions. External interference. Numerous labour legislations.

Types of industrial disputes

Interest disputes- These refer to the disputes relating to the economic interest of the employees.

Rights disputes- These involve disputes over the understanding, interpretation, and application of the rules and regulations which protect the rights of the employees.

Outcomes of disputes The outcomes of disputes are StrikePicketing GheraoLock-out

Strike A cessation of work by a body of

persons employed in any industry acting in combination or a concerted refusal, or a refusal under a common understanding, of any number of persons who are or have been so employed to continue to work or to accept employment .

-Industrial disputes act, 1947

Types of strike

General strikePen-downTools-down and sit-in strikesWild-cat strikeGo-slow and work-to-rule strikesSick leave and mass casual leave strikesHunger strike Sympathy strike

General strike

It normally refers to a large-scale strike organized by the employees belonging to an industry, a region or an entire country.

Since these strikes are organized on a mass basis, they create a huge impact and often put a lot of pressure on the employers.

General strikes are normally not intended against any individual employer.

Pen-down, tools-down and sit-in strikes In pen-down, tools-down and sit-in strikes,

employees report for duty but do no work. In these forms of protest, the employees

just refuse to leave their place after entering the work premises and remain idle.

Wild-cat strike When employees resort to an unauthorized

strike in violation of the labour contract or agreements, it is called a wild-cat strike.

Wild-cat strikes are illegal and the striking employees are not protected legally against the consequences of these strikes.

Go-slow (slow down) and work-to-rule strikes Go-slow and work-to-rule strikes are forms

of strike in which employees work but not up to their usual levels or capacity.

Striking employees reduce their output deliberately to show their protest to the employers.

Here, the employees strictly follow the rules and just refuse to deviate from them.

Sick leave and mass casual leave strikes

The purpose of mass casual or sick leave is to bring the work to a halt in order to achieve their demands.

The employees may opt for this method even to forewarn the employers of the consequences of a strike planned in the future.

In this form of strike, the striking employees are legally right and safe as they exercise their right to avail leave.

Hunger strike In a hunger strike, the employees

undertake fasting by abstaining from both food and work as a means of protest.

The purpose of such a strike is to embarrass the employers and get the attention of the government and the general public to the cause of the strike.

Sympathy strike The purpose of a sympathy strike is to

express sympathy and solidarity with another group of striking employees belonging to a different category of employment in the same organization.

Incidentally, the sympathy strike may also be conducted for the striking employees in other organizations in the same or a different industry.

Picketing

It is a form of protest by employees in which the primary intention is to prevent or dissuade the non-striking employees from attending to their work during the strike period.

Picketing may be held at the workplace or even at some other prominent places to attract the attention of the public and the government.

Gherao It is a form of protest in which employees

encircle their employers or top managers at the workplace with a view to restricting their movements.

The purpose of a gherao is to force the employer or managers to concede the demands of the workers.

The wrongful confinement of any person is not legally tenable.

Lock-out A lock-out is the employer’s response to the

employees’ continued protest in the form of strike. In a lock-out, the employer closes the workplace

with the aim of preventing the employees from entering the factory premises and performing their job.

The temporary closing of a place of employment or the suspension of work, or the refusal by an employer to continue to employ any number of persons employed by him.

-Industrial disputes act, 1947

Authorities under the Act/ Machineries for settlement of Dispute

A. Works CommitteeB. Conciliation OfficersC. Board of ConciliationD. Courts of InquiryE. Labour CourtF. Industrial TribunalG. National Tribunal

Provisions related to Strike & Lockout(Learn From Book or Soft copy or Notes

given in class)

Provisions related to Lay-off & Retrenchment (Learn From Book or Soft copy or Notes

given in class)

METHODS OF SETTLING INDUSTRIAL DISPUTES

Machinery for the settlement

of industrial dispute

WITHOUT STATE INTERVENTION

1).Collective Bargaining

2). Voluntary Arbitration

WITH STATE INTERVENTION

1).Compulsory establishment of bipartite committees2).Establishment of compulsory Collective Bargaining3).Compulsory Investigation4).Compulsory conciliation and mediation5).Compulsory arbitration or adjudication

Settlement Without State Intervention

There are two ways in which the basic parties to an industrial dispute- the employer and the employees- can settle their disputes.

1.Collective bargaining2.Voluntary arbitration

Collective bargaining

It is a forum for reaching an agreement between the employer and the union after negotiations and bargaining.

Collective bargaining provides for resolution of disputes through compromises or concessions made by both the parties.

Collective bargaining implies the following main steps:

a. Presentation in a collective manner, to the employer, their demands and grievances by the employees;

b. Discussions and negotiations on the basis of mutual give and take for settling the grievances and fulfilling the demands;

Collective bargaining (contd.)

C. Signing of a formal agreement or an informal understanding when negotiations result in mutual satisfaction; and

d.In the event of failure of negotiations, a likely resort to strike or lock-out to force therecalcitrant party to come to terms..

Voluntary Arbitration

In many cases an argument simply cannot be settled as both parties disagree on their own grounds.

They therefore enter into Voluntary Arbitration, which involves appointing an independent party to assess the situation and then make a decision based on the facts presented to them.

It is commonly viewed as less expensive and faster than resolving a dispute in court.

An arbitrator may be a single person or a panel.

Voluntary ArbitrationAt the time of submitting a dispute to

arbitration, the parties may agree in advance, to abide by the award of the arbitrator and thus industrial peace is maintained and the dispute is resolved.

•Sometimes, however, the parties may agree to submit the dispute to an arbitrator but at the same time, reserve their right to accept or reject the award when it comes.

Settlement Under theInfluence of the StateCompulsory establishment of bipartitecommittees;Establishment of compulsory collectivebargaining;Conciliation and mediation (voluntary andcompulsory);Compulsory investigation; andCompulsory arbitration or adjudication.        

Settlement Under the Influence of the State

Compulsory establishment of bipartite committees;

Establishment of compulsory collective bargaining;

Conciliation and mediation (voluntary and compulsory);

Compulsory investigation; andCompulsory arbitration or adjudication.

Compulsory Establishment of Bipartite Committees•The state has passed enactments requiring the

establishment of bipartite committees consisting of the representatives of workers and their employer at the plant or industrial level.

•These bipartite committees are given the power to settle differences between the workers and the employers as soon as they appear, and thereby they prevent them from growing into big conflagrations

In India the Industrial Disputes Act, 1947provides for the compulsory formation of works committees in industrial establishments employing 100 or more employees.

Cont….A works committee is entrusted with the

responsibility “to promote measures for securing and preserving amity and good relations between the employer and the 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 basic idea behind the establishment of such bipartite committees are:

a. Giving encouragement to the parties concerned to settle and compose their differences by themselves, to avoid the intervention of third party, and

b. Facilitating the composition of the differences at their embryonic stages without causing work –stoppages.

Establishment of Compulsory Collective Bargaining •State may encourage, and if necessary, force

workers and employers to enter into formal collective bargaining through their representatives.

•In India, refusal to bargain collectively in good faith by the employer and the recognised union, has been included in the list of unfair labour practices by an amendment of the Industrial Disputes Act in 1982

However, in absence of making recognition of representative union by the employer statutorily compulsory, this provision of the Industrial Disputes Act, 1947 does not have much significance.

Conciliation and Mediation

a)Voluntary conciliation and mediationb)Compulsory conciliation and mediation

•The only difference between conciliator and mediator is that conciliator is more active and more intervening than the mediator who is said to perform a “go messenger” service.

Conciliation can be defined as a procedure to achieve amicable settlement with the assistance of an independent third party.

Conciliation means different forms of mediation through which disputes can be settled without arbitration.

Voluntary conciliation and mediation:•The state sets up a conciliation and

mediation machinery, consisting of personnel trained in the art of conciliating disputes.

•The services of this machinery are always available to the disputants.

•The aim of the conciliator is to break the deadlock, if any, explain the stand and the view-points of one party to the other, convey messages and generally keep the negotiation going.

•Suggestions may come from the conciliator or the mediator, but the parties are free to accept or reject them.

Compulsory conciliation and mediation:•In many countries state goes a step

further after creation of conciliation service, it imposes an obligation on the parties to submit their dispute to the conciliation service and makes it a duty of the latter to seek to conciliate the dispute.

•Meanwhile, the state requires the parties to refrain from causing any work-stoppage for the purpose of resolving the dispute, so long as the conciliation proceeding is going on.

•Generally there is a time limit for the conciliators and mediators to conclude their efforts at conciliation.

Compulsory Investigation

•Many governments have assumed power under laws relating to industrial relations, to set up a machinery to investigate into any dispute.

•A Court of Inquiry is appointed which finds out the relevant facts and issues involved and give them wide publicity so that the pressure of public opinion may force the recalcitrant party to give up its obstinate attitude

Further, it provides a cooling off period to the parties concerned so that they could reconsider their respective stands, realise the implications of their steps and, if possible, settle their disputes peacefully.

Compulsory Arbitration or Adjudication

Adjudication is a court-based decision-making process that involves a third party and the judgements are binding on the parties.

Adjudication is usually a highly formal and time-consuming process.

It is normally an involuntary and adversarial process.

•The government under some conditions may decide to refer the dispute to adjudication and force the parties to abide by the award of the adjudicator and at the same time, prohibit the parties from causing work-stoppages.

There are two principal forms of compulsory arbitration based upon the nature of reference and nature of the award:

a)Compulsory reference but voluntary acceptance of the award

b)Compulsory reference and compulsory acceptance of the award.

•The parties are required to refrain from going on a strike or declaring a lock-out during the pendency of the adjudication proceedings and during the period when the award is in operation.

•An Arbitration Court may consist of one person only or a few persons with one member acting as the chairman.

•Usually the adjudicators are drawn from the judiciary.The qualifications and tenure of office ,powers and

functions of the adjudicators are, in general, prescribed under the law itself.

•Sometimes, representatives of employers and employees are also associated with the deliberations of the Court.

Adjudication in India

•The Industrial Disputes Act,1947, provides for three types of adjudication authorities for theadjudication of industrial disputes:

a.Labour Courtb.Tribunalc.National Tribunal

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