In India, the Industrial
Disputes Act, 1947 is the main legislation for investigation and settlement of
all industrial disputes.
The Industrial Disputes
(Amendment Act), 2010 have brought few significant changes to the Industrial
Disputes Act, which are produced under the following headings:
Dismissal, Discharge,
Termination and retrench of a workman/employee
By the Amendment Act,
2010, by inserting sub-section (2) to the section 2-A, a provision has been
made for the workman/employee to make an application direct to the Labour Court
or Tribunal for adjudication of the disputes relating to or arising out of discharge,
dismissal, retrenchment or termination, after the expiry of the forty-five days
from the date he has made the application to the conciliation officer of the
appropriate Government for conciliation of the dispute.
On receipt of the
application the Labour Court or Tribunal shall have powers and jurisdiction to
adjudicate upon the dispute, as if it were a dispute referred to it by the
appropriate Government in accordance with the provisions of the I.D Act (in
short for, Industrial Disputes Act, 1947) and all the provisions of the Act
shall apply in relation to such adjudication.
A new sub-section (3) has
been inserted to section 2-A, which clearly provides that the applications
referred above shall be made to the Labour Court or Tribunal before expiry of
three years from the date of discharge, dismissal, retrenchment or termination
as the case may be.
Effect
The amendment is a good
relief for employees to sue employers directly against indiscriminate and
illegal termination, discharge and dismissal.
Will increase number of
litigations from employees against the employers.
It is important to
mention here that few states had made such provisions even before the aforesaid
amendments, by making amendments to section 10 of the I.D Act. For Instance Karnataka
has a similar provision by inserting sub section 4-A after section 10 sub (4),
which provides that the disputes related to discharge, dismissal, retrenchment
or termination, the individual workman may, within six months for the date of
communication to him the order of discharge, dismissal, retrenchment or
termination, apply in prescribed manner, to the Labour Court for adjudication
of the dispute. Even Delhi state had similar amendments.
The employers in order to
protect and defend the unwanted litigations must have strong internal dispute
redressal mechanism, should have a good approach while recruiting and
pro-employee policies and strong Labour/H.R compliances.
Enhancement of wage
ceiling
The Industrial Disputes
(Amendment Act), 2010, brought amendment to section 2 sub-sections (s) by
enhancing the wage ceiling from rupees one thousand six hundred to ten
thousand.
The exclusion is where
the workmen employed in a supervisory capacity, draws wages exceeding ten
thousand 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.
Effect
Shall have the effect of
amending definition of workman, which 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, but for the purpose of
proceedings related to dismiss, discharge, or retrench, but does not include
the following person:
A. Persons subject to Air
force, Army and Navy Act.
B. Employed in police
service or of a prison.
C. Employed mainly in a
managerial or administrative capacity.
D. Employed in a
supervisory capacity and draws wages exceeding ten thousand rupees.
The amendment has the
effect of including more employees/workmen under the definition of “workman” of
the I.D Act.
Grievance Redressal
Machinery
The Industrial Disputes
(Amendment Act), 2010 had substituted a new chapter for chapter II-B.
The Amendment provides
that every industrial establishment employing twenty or more workmen shall have
one or more grievance redressal committed for the resolution of disputes
arising out of individual grievances.
2. The Grievance
Redressal Committee shall consist of equal number of members from the employer
and the workmen.
3. The chairperson of the
Grievance Redressal Committee shall be selected from the employer and from
among the workmen alternatively on rotation basis every year.
4. The total number of
members of the Grievance Redressal Committee shall not exceed more than six.
Provided that there shall
be, as far as practicable, one woman member if the Grievance Redressal
Committee has two members and in case the numbers of members are more than two,
the number of women members may be increased proportionately.
5. Notwithstanding
anything contained in this section, the setting up of Grievance Redressal
Committee shall not affect the right of the workman to arise industrial dispute
on the same matter under the provisions of this Act.
6. The Grievance
Redressal Committee may complete its proceedings within thirty days on receipt
of a written application by or on behalf of the aggrieved party.
7. The workman who is
aggrieved of the decision of the Grievance Redressal Committee may prefer an
appeal to the employer against the decision of Grievance Redressal Committee
and the employer shall, within one month from the date of receipt of such
appeal, dispose of the same and send a copy of his decision to the workman
concerned.
8. Nothing contained in
this section shall apply to the workmen for whom there is an established
Grievance Redressal Mechanism in the establishment concerned.
Effect
Grievance Redressal
Committee or the Grievance Redressal Mechanism is a great support in systematic
resolution of disputes.
To ensure a strong and
legally complied Grievance Redressal Committee or Mechanism is formed in the
organization or Company.
There is an appeal
provision to the employer, the employer decision, compliance, reasoning skill
and dispute resolution skill will be a great help for the Company in resolving
disputes and preventing litigations.
The Grievance
Redressal Committee or Mechanism can also be an effective tool or system to
resolve the workman/employee disputes.
The Grievance Redressal
Committee or Mechanism cannot prevent or affect the right of the workman to
arise industrial dispute on the same matter under the provisions of this I. D
Act.
Execution of the award,
decree or settlement
The Industrial Disputes
(Amendment Act), 2010, has inserted two new sub-sections (9) and (10) after
sub-section (8) of the Principal Act, which provides the following:
Every order, award or
settlement arrived before Labour Court or Tribunal or National Tribunal, as the
case may be, shall be executed by Civil Court having jurisdiction in accordance
with the procedure laid down for execution of orders and decree of a civil
Court under order 21 of the Code of Civil Procedure, 1908.
The Labour Court or
Tribunal or National Tribunal, as the case may be shall transmit any award,
order or settlement to a Civil Court having jurisdiction and the Civil Court
shall execute the award, order or settlement as if it were a decree passed by
it.
Effect
The amendment as brought
a clear and fast mechanism for execution of the award, order or settlement made
before Labour Court or Tribunal or National Tribunal.
Failing to comply with
the award, order or settlement will lead to attachment of property, sale,
warrants and other mode of execution from Civil Courts.
“Industry” and
“Industrial Dispute” as per the Industrial Disputes Act, 1947
It is important here to
mention the industry and industrial disputes the Act covers, namely:
“Industry” means any
business, trade, undertaking, manufacture or calling of employers and includes
any calling service, employment, handicraft or industrial occupation or
avocation of workmen. As defined in section 2 (j) of the I.D Act.
“Industrial disputes”
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, as defined in section 2 (k) of the I.D
Act.