Labour

Work is central to peoples wellbeing

Providing income, access to amenities, leading a productive and healthy life
Paves way for broader social and economic advancement
All is intricately related to employment and as such on the labour laws
About 45 labour legislations exists for 7% of the organized sector workers
The majority i.e. 93% of the workers are unorganized and remains unprotected and vulnerable
as these laws may not be applicable

Need for Labour Law

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Weak bargaining power of employees. Need to protect them from exploitation.

to protect employees from accidents and health hazards
To guarantee relief to the accident victims or their families
To enable the employees to form association of their own to remove fear of insecurity.
To resolve disputes
To minimize discrimination of women and abuse of children
Establishment of Justice social political and economic
Protection of weaker sections in community.
Maintenance of industrial peace
Protection and improvement of Labour standards.
Ensure human rights and human dignity

Principles of Labour Laws

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Social justice :
Social Equity
Principle of Uniformity
National Economy
Fundamental Rights
Directive Principles of State policy

Fundamental rights

Art. 13: Laws inconsistent with or in derogation of the Fundamental rights

Art. 14: Equality before law
Art. 15: Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
Art. 16: Equality in the matters of public employment
Art. 19: Protection of certain rights regarding freedom of speech etc.- to assemble peacefully, to
form associations or unions, to practice profession etc..
Art. 20: Protection in respect of conviction for offences
Art. 21: Protection of Life and Personal liberty
Art. 21A: Education for Children
Art. 22: Protection against arrest and detention in certain cases
Art. 23: Prohibition of traffic in human beings and forced labour.
Art. 24: Prohibition of employment of children in factories, etc.

Directive Principles of State Policy

Art 39: The state shall, in particular , direct its policy towards securing

adequate means of livelihood for both men and women.

Ownership and control of material resources are distributed for common good

reorganizing the economic system in a way to avoid concentration of wealth in few

hands.
securing equal pay for equal work for both men and women.
securing suitable employment and healthy working conditions for men, women and
children.
guarding the children against exploitation and moral degradation.

Art. 41: Right to work, to education and to public assistance in certain cases
Art. 42: Provision for just and humane conditions of work and maternity relief
Art. 43: Living wage, etc., for workers
Art.43A: Participation of workers in management of industries
Art. 45: Provision for free and compulsory education for children
Labour Legislations;
About 145 labour legislations exists for organised sector workers
They can be categorised as under:

Industrial Relations
Wages
Working Hours, Conditions of Services and Employment
Equality and Empowerment of Women
Deprived and Disadvantaged Sections of the Society
Social Security

Collective Bargaining
It is a process by which the terms of employment and conditions of service are determined by
agreement between management and union.
Can be termed as a business deal
A technique by which disputes as to conditions of employment are resolved amicably, by agreement,
rather than by coercion, The dispute is settled peacefully and voluntarily, although reluctantly, between
labour and management
Right to collective bargaining is a fundamental right endorsed by the members of he ILO.
Negotiations about working conditions and terms of employment between an employer , a group of
employers or one or more employer organization on the one hand and one or more representative
workers originations on the other, with a view to reaching agreement ILO Manual
collective bargaining in India could not make much headway due to various reasons such as
lack of strong trade unions and employers organisations to represent the national interests.

increasing inclination to compulsory adjudication for the settlement of industrial disputes.

Multiplicity of trade unions
Union-rivalry in solving labour problems.
Government attitude towards promotion of collective bargaining culture in the country.
International Labour Organisation
set up in 1919
Purpose: adopting international standards to cope with the problem of labour
promotion of social justice and internationally recognised human and labour rights
Create international minimum standards of Labour in the form of conventions and recommendations.
This constitute the International Labour code covering wages, hours of work, holidays, minimum
wage, maternity protection, medical examination, industrial safety and health, social security, industrial
relations, employment of women etc..
Adopted 189 conventions, 203 Recommendations, and 6 protocols so far.
The ILO's Governing Body has identified eight conventions as "fundamental.
considered as fundamental principles and rights at work
Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)
Right to Organise and Collective Bargaining Convention, 1949 (No. 98)
Forced Labour Convention, 1930 (No. 29)
Abolition of Forced Labour Convention 1957 (No. 105)
Minimum Age Convention, 1973 (No. 138)
Worst Forms of Child Labour Convention, 1999 (No. 182)
Equal Remuneration Convention, 1951 (No. 100)
Discrimination (Employment and Occupation) Convention, 1958 (No.111)
India has ratified 4 out of 8 Fundamental conventions 29, 105, 100 and 111
Protocol
procedural device for adding extra flexibility to a Convention or for extending a Conventions obligations.
also international treaties, but which, do not exist independently since they are always linked to a
Convention.
Like Conventions, they are subject to ratification.
The ILC has adopted five Protocols to date.
Recommendation
international instruments adopted by the ILC but are not legally binding and serve as guidelines to help
member States formulate their policy at a national level.
Often, they supplement an existing convention by providing detailed guidelines for its implementation
but they can also be adopted autonomously.
THE INDUSTRIAL DISPUTES ACT, 1947
IDA - is an Act to make provision and settlement of Industrial Disputes with the objective to maintain
industrial peace and economic justice.
Industry:
Section 2(j), The Industrial Disputes Act:

industry means any business, trade, undertaking, or calling of employers and includes
any calling, service, employment, handicraft, or industrial occupation or avocation of
workmen.

Generally, industry or business is an undertaking where capital and labour co-operate with each other
for the purpose of producing wealth and for making profits.
Judicial Interpretation
Judicial interpretation has widened the definition of Industry
Upto 1962, the courts gave wider meaning
D.N.Banerji v P.R. Mukherjee [AIR 1953 SC 58] The SC held that though municipal activity could not be regarded as business or trade it would fall
with in the scope of the expression undertaking and it is an industry.
In Hospital Mazdoor Sabha v State of Bombay The SC held that Hospital comes under undertaking
hence Industry
Industry includes even activities which have no commercial implications.
Activities carried on by Govt. or charitable organizations will also be industry.
The SC in this case laid down a working principle:
an activity systematically or habitually undertaken for the production and or distribution of
goods or for rendering of material services to the community with the help of employees is an
undertaking
It was also held that:

an undertaking to be an Industry must be analogous to trade or business.

Sovereign or Regal activities are out side the scope of Industry.

During 1963 to 1978: The trend was narrowing down the meaning of the term industry.
University of Delhi-v-Ramanath AIR1963 SC 1873 the SC held that University is not an industrybecause:

Main scheme of an educational institution is imparting education

Teaching is not with in the purview of industry as there is no commercial motive
The subordinate staff play a minor or insignificant role in the process of imparting
education
Permitting the insignificant role of the subordinate staff to lend the colour of industry is
unreasonable.

Cricket Club of India-v-Bombay Labour union AIR 1969 SC 276 The SC held that Cricket Club is not an
Industry.
The Clubs activity is basically promotion of the game of Cricket.
It is a self serving institution

It is not carrying any trade or business.

In the course of promoting the game it has incidentally earned some profits.
It is not set up for earning profits.
In the Management of Sardarjung Hospital-v-Kuldipsingh Sethi AIR 1970 SC 1407, the SC held that
Hospital is not an industry.
They overruled the earlier Hospital mazdoor sabha case
Hospitals run by the Government or Charitable institutions are not run on commercial lines.
If it is run on commercial basis then it may be an industry.
The hospitals in question are not industry as they are not run on terms analogous to trade or business.
In Bangalore Water supply Sewerage Board-v-A.Rajappa AIR 1978 SC 548, a seven judge bench
revived the pre 1962 cases, over ruled the earlier decisions and developed a working principle to
determine whether an activity is an industry :

Systematic activity organised by

Co-operation between employer and employee

For the production and /or distribution of goods or services

profit motive is irrelevant.
If the organization is trade or business it does not cease to be an Industry because of
philanthropy animating the undertaking

A restricted Category of professions, Clubs, co operatives and little research labs , if no employees are
entertained

but in minimal matters, marginal employees are hired without destroying its non
employee character.

In case of regal functions confined to legislative power, administration of law and judicial power, it is
outside ID Act.
If a department of a municipality discharges many functions, some pertaining to industry and other non
industrial activities, the predominant functions of he department shall be the criterion for the purposes of
he Act.
Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or
economic adventures undertaken by government or statutory bodies.
Strike
Definitions
Provisions of ID Act regarding Strike
General strike:

where the workmen join together

for common cause and stay away from work,
depriving the employer of their labour needed to run the factory.

Stay-in-strike also known as "total-dawn-strike" or 'pen-dawn-strike:

It is the form of strike where the workmen report to their duties, occupy the premises, but
do not work. The employer is
thus prevented from employing other labour to carryon
his business.

Go-slow strike:

the .workmen do not stay away from work, they do come to their work and work also, but
with a slow speed in order to lower down production, and thereby cause loss to the
employer.
Other forms of strike:
Sympathetic strike: resorted to in sympathy of other striking workmen. Its aim is
to encourage or to extend moral support to or indirectly to aid the striking
workmen. The sympathisers resorting to such strike have no demand of
grievance of their own.
Hunger strike: a group of workmen resort to fasting on or near the place of work
or the residence of the employer with a view to coerce the employer to accept
their demands.
Work to rule : The employees strictly adhere to rules while performing their
duties which ordinarily they do not observe. This causes the slowing down the
tempo of work. It is not a strike because there is no stoppage of work at all.

Buchingam & Carnatic Co Case:

Stoppage of work on 1st Nov 1948 against Management decision not to declare holiday for Solar
eclipse.
Some stopped work at 4 pm, some at 4.30, some at 5 pm and the strike ended at 8PM and completely
ended at 10PM
Treated as illegal strike by Management.
Industrial tribunal agreed with the Management
Labour appellate tribunal upheld the contention f the union that it did not amojnt o strike

Supreme court reversed the decision

Length of time has nothing to do with the meaning of strike
Workman:
As per ID Act, Employees are categorised into workman and non-workman.
Section 2 (s) :
Workman means any person employed in any industry to carry out manual, skilled and unskilled,
technical, operational, clerical or supervisory work for hire or reward.

The definition specifically excludes persons employed in managerial or administrative capacity and also
those persons (otherwise falling within the definition of workman) who are employed in supervisory
capacity at wages more than Rs.10,000/- per month and sales promotion employees.
"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 10,000 rupees per
mensem or exercises, either by nature of duties attached to the office or by reason of the powers
vested in him, functions mainly of a managerial nature.

An employee is not a workman under ID Act, when,

The person is not employed in an industry,
His work is be not for hire or reward and is free of charge,
He is not employed to do the type of work specified in the definition,
There is no contractual relationship of master and servant. Such relationship exist when the workman is
under supervision, direction and control of the master.
A person employed in a supervisory work and drawing wages in excess of Rs. 10,000/- p.m.
He is within the following category of employees:

who is subject to the Air Force Act, 1950, the Army Act 1950, or the Navy Act 1957

who is employed in the police service or as an officer or other employee of a prison,

who is employed mainly in managerial or administrative capacity,

who, being employed in a supervisory capacity draws wages exceeding Rs. 10,000/- per
month or exercises, functions mainly of a managerial nature

Justice Bhagawati in Dharangathra Chemicals Works Ltd held that relationship between employer and
employee or master and servant has to be determined. The test is the existence of a right of control in
respect of the manner in which the work is to be done.
Punjab national Bank V Gulam Dastagir, it was held that a driver employed by a Bank Manger and paid
out of allowance paid to him by the Bank, there was no nexus between the bank and driver and that there
was no direction and control of the bank over the driver.

Though employed in an industry , if he is not engaged in the following is not workman:

skilled and unskilled manual work

technical work,
clerical work
supervisory work

Manual work may be done by physical effort as distinguished from mental or intellectual effort. with
hand or with any other part of the body (Jute Mills, West Bengal V Their workmen)
Work of artiste, chemist carrying out chemical analysis in a sugar mill, doctor and his compounder are
held to be not workman
In the discharge of his official duties, Sales Representative has not come within the scope of manual,
skilled, unskilled, technical, operational, clerical or supervisory work for hire or reward, and if he has
performed any of such work then it is not part of his main avocation as sales representative.
Supervisory
Where the employee possess the power of assigning duties and distribution of work such authority of
employee may be indicative of his being supervisor doing supervision.
In a broad sense Supervisor is one who has authority over others, someone who superintends and
directs others.
Supervisors predominant function is to see that work is done by workers under him in accordance with
the norms laid down by the management(G. M. Pillai v. A.P. Lakhmikaf Judge, III Labour Court, 1998
LLR 310).
Test for determination of supervisory capacity as summarized in Union Carbide (India) Ltd v. D. Samuel
& Others:

Technical

Designation is not material, but the nature of work

It is the dominant purpose of the employment that is relevant and not some additional
duties which may be performed by the employee.
whether the employee can bind the company in the matter of some decisions taken on
behalf of the company.
Do the nature of the supervisory duties performed by the employee include directing the
subordinates to do their work and/or to oversee their performance?
Has he the power either to recommend or sanction leave.
Has he the power to take any disciplinary action against the workmen working under
him?
Does he have power to assign duties and distribute the work?

A work depending on the special training or scientific or technical knowledge of a person

Marugalli Estate V Ind Tribunal , Madras:

Purpose for which the employment is made, irrespective of whether the performance of the duties
may or may not occupy the entire time of the employee. This is because the employment is made
on the basis of he particular level of professional efficiency and technical qualifications.

Full Time or Part time

The definition of workmen doesnt make any distinction between fulltime or part time employee or
a person employed on contract basis.

Labour/Industrial Court must determine whether a person is employed in an industry for hire or
reward for doing manual/skilled/unskilled/operational/technical/or clerical work in an industry

(New India Assurance Co Ltd. v A Sankaralingam, (2008) 10 SCC 698).

In Standard Chartered Grindlays Bank Retired Employees Association v. Union of India 2007 II
LLJ 887 (Cal) it was held that a retired employee can be included in the term "workman" as
defined in section 2(s) of the Industrial Disputes Act, 1947 and can be a party to an industrial
dispute.

In Bhaskaram vs. Kerala state electricity board 1986 LLN 869 it was held that an apprentice
cannot claim any privilege as workman.

In Vimal kumar jain vs. labour court, Kanpur & anrs. , AIR 1988 SC 384 it was held that
maintenance engineer supervising the work of maintenance with the power to grant leave, to
initiate disciplinary proceedings and to make temporary appointments is not a workman.

In Puri Urban Cooperative Bank (m/s) vs. Madhusudan Saha & Anr. , (1992) 3 SCC 323, an
appraiser for weighing and testing gold ornaments brought to a bank as security for bank loan. It
was held that he cannot be regarded as a workman.

In M. M. Wadia Charitable Hospital Vs. Umakant Ramchandra Warekar (Dr.), 1997 (2) LLJ (Bom),
it was held that it was never the object of I D Act that highly qualified doctors or esteemed
surgeons would be entitled to claim the protection of this welfare legislation. In the case of
medical men rendering only professional service to various institutions and no relationship is
created between the parties which entitled them to claim the status of a workman.

In Singer Sewing Machine Co. (M/S) Vs. Presiding Officer Labour Court IV, Kanpur & Ors, 1998
(2) LLR 813 (ALL), driving car provided to him by the company will not make him come within the
definition of workman as under I.D. Act