Different Laws

one should
know
Laws which one should
Know
 Indian Electricity Act
 Different Environmental Norms and Laws
 Company Laws
 Apprentice Act, 1961
 Bonded Labour System (Abolition) Act
1976
 Child Labour (Prohibition & Regulation) Act
1986
Laws which one should
Know….Contd
 The Contract Labour (Regulation &
Abolition) Act 1970
 The Employees’ Provident Funds and
Miscellaneous Provisions Act, 1952
 The Employee State Insurance Act 1948
 The Employment Exchange (Compulsory
Notification of Vacancy) Act, 1959
 Factories Act 1948
Laws which one should
Know….Contd
 The Industrial Dispute Act , 1947
 The Industrial Employment (Standing
Orders) Act , 1946
 Labour Law (Exemption from Furnishing
Returns & Maintaining Registers by Certain
Establishment) Act, 1988
 The Maternity Benefit Act 1961
 Mines Act 1952
Laws which one should
Know….Contd
 Inter State Migrant Workmen (Regulation
of Employment and Condition of Service)
Act, 1979
 The Minimum Wages Act 1948
 The Payment of Bonus Act, 1965
 The Payment of Gratuity Act, 1972
 The Payment of Wages Act, 1936
 The Trade Union Act 1926
Laws which one should
Know….Contd
 The Shops And Establishment Act 1948
 The Workmen Compensation Act, 1923
 Knowledge of Domestic Enquiry/
Misconduct/ Dismissal/ Discharge
New Trends: Labour Laws
 1st National Commission on Labour: To
review changes in conditions of Labour
 Ramanujam Commission
 VV Giri Committee
 Central Pay Commissions
 Committee on Fair wages
 Indian Labour Conferences
 2nd National Commission on Labour:
Rationalization of existing Laws; Umbrella
legislation.
Clubbing of various
legislation
 Common law for I.D. Act, TU Act, Standing
order Act.
 Common law for social security (Terminal
benefits, i.e. PF, Gratuity, Workmen
Compensation, ESI, Maternity Benefit.
 One law for wages i.e. Minimum wages,
Payment of wages, Compensation for
extra work, Sec 33 of I.D. Act.,Contract
Labour Act,Migrant Labour Act,Building
Construction Workers’ Act,Contract Labour
related provisions in PF Act,ESI Act,etc.
 Industrial Disputes
Act
 Preamble:

 Anact to make provisions for the

investigation and settlement of
Industrial Disputes and for
certain purposes (job security)
 INDUSTRY
 “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.
 Industry means
 - systematic activity
 - co-operation between an employer
and his workmen for the production, supply
of distribution of goods and services with a
view to satisfy human wants or wishes.
 Definitions
 INDUSTRY :- Amended definition (1982)
to be made applicable .
Exclude Hospital, Research Institutions,
Educational Institutions.
 WORKMAN:- Getting wages more than
10,000/- per month to be excluded.
 WAGES:- To include Pay plus dearness
Allowance only. Excluding Allowances.
 STRIKE:-Go slow,disobeying instruction in
garb of work to rule be included as strike.
 Exclusion
 Industry does not include:
-- Any agricultural operation;
 Charitable, social or philanthropic services; or
 Sovereign functions; or
 Domestic services; or
 Profession practiced by an individual or body
of individuals (no. less than ten); or
 Cooperative society or a club (no. less than
ten). …. Contd.
 WORKMAN
 Any person employed for hire or reward
in industry;
 To do any skilled, manual or clerical work
 Exclude military personnel.
 Subsequent Additions:
 Whether terms of employment express or
implied.
 Manual, unskilled, skilled, technical,
operational clerical or supervisory work.
 Exclude supervisors with wages above
Rs.1600/- or engaged in managerial
capacity.
 Scope
•The basic test of Master Servant relationship to be
clearly spelt out in the Act itself as has now been
established through various legal pronouncements.
•To fix a clearly defined set of Remunerative limit for
such definition of Worker. E.g. Rs. 25000/- as
suggested by 2nd NCL.
•Minimum level of Protection only against unfair
termination and removal from service to be provided
to such worker only.
•Supervisors and Executives/Manager to kept out of
such provision of worker.
•No protection to be provided to such category of
employees who could be regulated purely from the
standpoint of Employers’ requirements.
 RETRENCHMENT

 Termination for any reason except:

 For misconduct,
 Retirement
 Continued ill health
 As per service termination clause contained
in offer of appointment.
 Retrenchment
 Misconduct
 Misconduct has to be established following
principles of natural justice.
 Retirement
 Retirement age must be specified in Rules.
 Health
- Temporary sickness/disablement
cannot amount to continued ill health.
 Retrenchment
 Specific cases decided by Supreme
Court
 Tribunal has right to ascertain real intention
behind termination.
 All cases of termination except specifically
excluded in act amount to Retrenchment
 After 1984 amendment – discharge
Simplisitor not amount to retrenchment.
 PROCEDURE OF RETRENCHMENT

 Last come – First out, unless valid reasons for

deviation.
 In case of workmen completed one year of
continuous service – notice or notice pay.
 Retrenchment compensation.
(Gratuity has to be paid independently).
 Subsequently notice to appropriate Govt.
 Yardstick for mis-conduct,medical unfitness to be laid
down.
 Brief procedure to be defined.
 Procedure for service of communication be defined.
 Scope
•Retrenchment to be precisely defined so as to allow
termination on grounds as defined earlier.
•Other forms of termination to be kept out of the
purview of Higher courts.
•Validity and dispute or otherwise to kept only in the
purview of Arbitration whose decisions on the basis
of evidences could be made binding.
•Time frame to be laid down for such hearings.
Exceeding the time limit could attract stiffer penalties
including the holding or allowing the validity of such
actions.
•Terminations on the grounds of Misconduct to be
within the purview of Arbitrators only.
 RETRENCHMENT-Condition
of
 Prior permission be not there instead
higher compensation say 45 days per
year.
 Option to employer to pay higher
compensation even in case of defective
enquiry.
 In case of excessive punishment of
termination,lower punishment to be
decided by employer.
 No right to interfere if termination on
Theft,Fraud,rioting or grave action of
moral turpitude.
 APPLICATION OF
CHAPTER V-B
 3 months notice or pay in lieu.
 Prior permission of Government.
 Permission deemed if no reply received
in 60 days of date of application.
 Applicable to Establishments (Mine,
Factory, Plantation only) employing 100
or more workmen.
Continuous Service of 1
year
 Continuously in service including interruptions on
account of:
 Sickness;
 Disability due to accident;
 Authorised leave;
 Lockout or strike which is not illegal.
 If not continuously employed then in last one
year:
 Actually worked for 240 days including lay off period.
 Leave with wages availed.
 Disablement period due to accident while on duty.
 Maternity leave not exceeding 12 weeks.
 POWERS OF TRIBUNAL/LABOUR
COURT TO ORDER
REINSTATEMENT
 BACKGROUND
 In 1958, Supreme Court held that if there is fair
enquiry and no malafide intention on part of employer
in termination of workmen for mis-conduct, the
tribunal has no authority to act as appellate court.
 I.L.O. felt that workmen should have right of appeal to
Neutral Body.
 Such Neutral Body if feels, termination is too harsh
should have right to order reinstatement or adequate
compensation.
•Hence insertion of Sec.11 A providing
………. Direct reinstatement ……… or
give such other relief including award
of lesser punishment.
Context: Termination:
SUPREME COURT HELD:
 Application of Sec. 11 A prospective.
 Only applicable in case of termination for
misconduct.
 No power to reduce punishment like
demotion, increment, stoppage etc.
 No application in Arbitration.
 Compensation need not be limited to
retrenchment compensation.
 In nutshell Tribunal can order
reinstatement on:

 Victimisation, unfair labour practice,

malafide intention on part of employer.
 Violation of procedure laid for
retrenchment.
 Punishment for misconduct found to be
excessive or enquiry is defective.
 INDUSTRIAL DISPUTE
• Dispute or difference between
– Employers & Employers, or
– Employers & Workmen, or
– Workmen & Workmen.
• In an Industry.
• Connected with
– Employment or non employment or
– Terms of employment, or
– Condition of labour of any person.
 Protected
Workmen
 No protection against termination in case of
misconduct such as theft,fraud,sabotage,violence
or other act involving moral turpitude.
 Moral turpitude to be defined.
 Period of Limitation:-
 In case of disputes,consequence to any specific
actions of employer ,dispute can be raised only
within one year .Similar limitation in case of
proceedings under Sec.33.
 SETTLEMENT OF INDUSTRIAL
DISPUTES

• Conciliation;

• Voluntary arbitration;

• Adjudication – Powers of Industrial

Courts/ Tribunals
 ADJUDICATION
• Almost like compulsory arbitration. Once dispute is
referred procedure in both the cases is same.

Common features:
- Award final & binding.
- Award not bound by ordinary principles of law/
- Bonus awarded by Tribunal even where there was no
payment of Bonus Act.
- Wage hike more than minimum wages granted by
tribunals.
 OPTION IN CIVIL COURT/VS.
TRIBUNAL OR LABOUR COURT
• If the dispute is not an industrial dispute nor
does it relate to enforcement of any other right
under the Act the remedy lies only in the Civil
Court.
• If the dispute is an industrial dispute arising
out of a right or liability under the general or
common law and not under the Act, the
jurisdiction of the Civil Court is alternative,
leaving it to the choice of the suitor concerned
to choose his remedy
• If the Industrial Dispute relates to the
enforcement of a right or an obligation
created under the Act than the only remedy
available to the the suitor is to get an
adjudication under the Act.
• If the right which is sought to be enforced is a
right created under the act such as Chapter
V-A than the remedy for its enforcement is
either Section 33-C or the raising of an
industrial dispute, as the case may be.
– Government not bound to refer each failure
for adjudication.
– Disputes must exist/apprehended at the
time of reference.
 REPRESENTATION OF PARTIES
A workman who is a party to dispute shall be
entitled to be represented in any proceedings
under this Act by –
• Any member of the executive or other office
bearer of a registered trade union of which he is
a member;
• Any member of the executive or other office
bearer of a federation of trade unions to which
the trade union referred to in clause (a) is
affiliated.
 Scope
•Method of laying down clear modalities for recognition to be laid
down.
•Strike to be called by only recognized negotiating agent.
•Such agent to call for strike only after collecting a Strike ballot of
at least 51%.
•A worker going on illegal Strike to lose 3 days of wages for every
day of such illegal strike.
•The Union leading an illegal Strike to immediately lose
recognition and registration for a period of two years.
•Essential Services to be banned from all forms of work stoppage.
•Law and Order machinery to get extra Powers as available in
ESMA.
•Compulsory adjudication in such cases on failure of conciliation.
Bar jurisdiction of Civil
Courts
In respect of right created under this act no
jurisdiction of any other court
 Settlement with Recognised union(s) binding on all.
 Right of settlement with minority union also if some
workmen specifically authorise such union
 Compulsory provision for recognised union/unions.
 Only Unions with at least 10% membership have the
right to raise dispute of general nature.
 Constitution of Industrial Relations Commission.
 Such commission to discharge function of App.Govt.
for resolution of Disputes.
CONCEPT OF SOLE BARGANING
AGENT – WHETHER DESIRBALE

METHOD OF IDENTIFICATION OF SOLE

BARGANING AGENT:

• Secret Ballot;

• Check off system; and

• Verification
 CONCEPT OF SOLE BARGANING
AGENT – WHETHER DESIRBALE
• Generally felt that it is desirable, provisions exists in
- MP;
- Chhatisgarh;
- Maharashtra;
- Gujarat;
- West Bengal;
- Orissa;
- Andhra Pradesh;
- Karnataka; and
- Rajasthan.
Notice of change:-Voluntary retirement,Manpower
norms,automation,change of practice to be beyond
the scope of Section 9A .
CONTRACT LABOUR
REGULATION &
ABOLITION ACT
PREAMBLE:
To Regulate the Employment (In
certain establishments) and to
provide for it’s abolition in certain
circumstances & connected
matters
• Test to decide whether Employee or
independent contractor:
– Extent of control & supervision on manner
of doing the job.
– Location of work – working hours.
– Power of dismissal/withholding of payment
or reward.
– Who supplies tools and tackles etc.
– Payment linked with completion of job.
Tests only illustrative. Each case on its own
merit.
 YARDSTICKS

• Amount of direct control.

• Contractor also workmen.
• Even outworker can be workmen.
• Economic control.
• Attendance – leave sanction, O.T.
sanction – deployment decision.
PROHIBITION OF EMPLOYMENT OF
CONTRACT LABOUR (SECTION-10)

The Appropriate Govt. may, after consultation with

the central/State Board, Prohibit employment of
Contract Labour in any Process operation or other
work in any Establishment keeping in view:
-Conditions Of Work.
-Benefits Provided to the Contract Labour.
-Whether the Work is incidental to or necessary for the
main function of the Establishment.
-Perennial Nature.
-Ordinarily done through regular workmen.
-Sufficient to employ considerable number of whole
time workmen.
CRITERIA OF SHAM CONTRACT

Sham Contracts are those contracts which indicate

no distinction between regular employees of Enterprises
and contract labour.
Indicators :
1. Direct supervision
2. Certification of satisfactory completion of work
3. Issue of Job Cards/Gate Passes
4. Maintaining attendance
5. Maintenance of Stock Register for materials and
tools of labour.
 Scope
•Exclude abolition
•Recommendation of NCL
•In case of licensed contractor no
entertainment of plea of Sham Contract.
•Prime responsibility of law enforcement
that of the contractor.
•No provision regarding wages under
Rule 25
INDUSTRIAL EMPLOYMENT
STANDING ORDERS ACT

PREAMBLE:

TO REQUIRE EMPLOYERS’ IN
INDUSTRIAL ESTABLISHMENTS
TO FORMALLY DEFINE
CONDITIONS OF EMPLOYMENT
 Scope
•No limits on issues on which Standing
orders can be framed
•Model Standing Orders to be made
applicable mandatory
•Preparation in consultation not be made
mandatory
•To be made applicable only on
establishments engaging more than 100
Employees
STANDING ORDER
 Applicable only to Industry with at least
100 workmen.
 Pending certification,employer authorised
to decide about the list of misconduct with
approval of certifying authority.
 Dispute on provision of Standing Order to
be decided by Adjudication or certifying
authority.Time frame be not released.
 Trade union act

Preamble:
To provide for registration of
trade unions & to define the
laws relating to such registered
trade unions
 Scope
•Desirable to have a ceiling on number of outsiders who
can be members of Executive bodies.
•Federations and centers to be covered within the
definition of Trade Unions.
•No recognition to Craft or Caste or Creed based Unions.
•A definitive method of Recognition of Unions to be
Mandatory.
•Determination of Recognition to be through a legally
defined agency.
•Defined Code of Conduct to be Statutorily laid down
implementation of such conduct to incorporate penalties
like de-recognition & monetary penalties.
 Trade Union Act
 Compulsory negotiation of Trade Unions.
 Minimum amount of membership fee say
Rs10 per month.
 Ban on unions based on
craft,creed,caste,Region,etc.
MINIMUM WAGES ACT

PREAMBLE:
To provide for fixing up
minimum wages in certain
establishments
 Scope
•A National Minimum Wages to be defined by the
Central Govt.
•No employment possible below this.
•Other than this restriction all other restrictions
like schedule of Employments to be removed.
•Abolition of present system of Schedule of
Employments.
•Six monthly system of Dearness Allowance
linked to a common system of Consumer Price
Index.
FACTORIES ACT

PREAMBLE:
To consolidate and amend the
law regulating labour in
Factories
 Scope
•Flexibility and Removal of limits/Ceilings on
working Hours.
•Payments for Overtime Hours to be
compensated alternatively with compensatory
Offs.instead of Double the rate of wages as
presently defined.
•Exemptions for Contingencies to be liberally
expanded.
•Night work for Women not to be restricted.
•Allow outsourcing of statutory provisions.
THANK YOU