A curated and categorised database of common questions regarding the law.
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|1||Are there different types of employee representatives (work councils, unions)?
The most common form of employee representation in India is the trade union. Trade Unions are organizations representing workers in a particular section of industry. Trade Unions in India are organized at three levels: a) The National Federation level with political affiliations, b) The Industry/Region Level affiliated to the federations and c) The individual employer level. There is no legal requirement (except in some states) to recognize a trade union although individual employees have a statutory right to belong to the trade union of their choice. Many employers therefore prefer not to deal with any form of employee representative
|2||How are employee representatives designated (nomination/election)?
The nomination of union representatives for a particular workplace depends on the rules and constitution of the union body. They are normally elected.
|3||What is the role and powers of the employees representative?
The role of the representatives in relation to the employer is determined by the form in which the employer recognizes the trade union (by agreement or otherwise). The representatives power in relation to the union members is governed by the union rules. The only powers guaranteed to the representative under the Trade Unions Act 1926 are a) exemption from civil suits and criminal liability in case of any act done in furtherance of a trade dispute b) The right to bargain in good faith and be a party to contracts with the employer on behalf of the members of the trade union and c) The right to set up a political fund for furtherance of civic and political interests of its members.
|4||What are the employer's obligations with respect to the employees' representatives?
The employer's obligation with respect to the employees' representative largely depends upon the extent to which the employer has agreed to recognize the trade union which is set out in the union agreement. Some obligations are also set out in the fifth schedule of the Industrial Disputes Act as unfair labor practices as summarized below: - (a) The employer cannot interfere with the formation of a trade union by threatening workmen with discharge or dismissal & threatening a lock out if a trade union is formed or undermine the efforts of the trade union at organization. (b) The employer cannot establish employer sponsored trade unions or encourage or discourage membership in a particular trade union by discriminatory acts against such employees and c) To refuse to bargain collectively and in good faith
|5||Are there special considerations/burdens where the representative is discharged or laid off?
While it is an unfair labor practice to discharge an employee representative by virtue of his trade union activities, no other special considerations/burdens exist although the employee can always contend that the act was performed with mala fide intentions.
|6||. What should an organisation do in case of a geographical or sectoral strike?
The law relating to industrial action is very complex and Indian law does not prohibit a trade union from calling strike action and only marginally restricts this right in the case of
a) public utility services where the union is required to give 14 days notice and cannot go on strike during the pendency of conciliation proceedings and 7 days after their conclusion, and
b) in other organizations, during the pendency of conciliation and 7 days after their conclusion, during the pendency of adjudication or arbitration proceedings and 2 months after their conclusion and during the period of a settlement or award on any matter contained in such settlement or award.
During the pendency of a strike, recruitment of workmen or outsourcing such work as a tactic to break a strike is also an unfair labor practice. Thus an employer's courses of action post a strike are very limited.
It is therefore critical for all locations who are in a position to be affected by strike action to have in place a contingency plan which assigns responsibilities to all non-unionized staff to take up unionized staff activities and attempt to keep the show running even in case of strike action. Managers should also try to anticipate such strike action to keep alternate temporary or contractual manpower in place prior to the strike being called.
Post a union call for a strike, the organisation should, after obtaining appropriate legal advice, attempt to seek an prohibition by notification for the union to stop unlawful strike action. An application to the court should be made as a matter of urgency. An injunction can also be obtained from the court to prevent the union from demonstrating or carrying out other protest activities within 100 yards of the factory/establishment if the employer can contend that such action would disrupt normal flow of business.
The principle of no-work no-pay should apply in such cases and after seeking appropriate legal opinions on this front, the organisationshould take steps to reduce or revoke employees pay depending on the kind of industrial action taken.
As a principle, the organisation should also take strong disciplinary action against the instigators of such action in order to create a deterrent to similar activities in the future. Such action can only be taken in case of an illegal strike or if the acts so committed are contrary to work rules and hence, it is critical to take appropriate and urgent legal advice before taking disciplinary action.
|7||What types of disciplinary actions are possible? Can employees have their employment and salary suspended for disciplinary reasons?
For non-workmen staff, disciplinary action is largely based on the contract of employment and such action including punishment is the employers prerogative. Under Indian law, disciplinary action agianst workmen for various misconducts are laid down in the model standing orders under the Industrial Employment (Standing Orders) Act 1946 for industrial establishments alongwith the various acts and omissions that can generally be regarded as misconducts. Types of disciplinary action possible as stipulated in clause 25 of the Model Standing orders are as follows:
a) Warning or censure
c) suspension for a period not exceeding 4 days
d) dismissal without notice
All establishments whether they have certified standing orders or follow model standing orders/published work rules are necessarily required to follow certain procedures before punishment is awarded. Though there are no legal provisions laid down in regard to such procedures, these are generally governed by common law and an organization needs to follow the procedure with due diligence especially in cases leading to dismissal to avoid the dismissal order being set aside on technical grounds.
An employer may suspend an employee pending an enquiry for a serious misconduct. However, the employee in lieu of wages is entitled to a subsistence allowance at the rate of half the wages for the first 90 days, 3/4th of wages for the next 90 days and full wages beyond. If no action is taken after the enquiry, the employee is deemed to have been on duty and is entitled to full wages.
|8||Must the employer publish work rules in order to be in a position to take disciplinary action?
The employer must publish work rules in the form of model standing orders/work rules or certified standing orders to be in a position to take disciplinary action against workmen under the Industrial Employment (Standing Orders) Act 1946. Such procedure, though not necessary is advisable even in case of non-workmen.
|9||What are Industrial Disputes?
Industrial Dispute means any dispute or differences 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.
|10||Who can raise an Industrial Dispute?
Any person who is a workman employed in an industry can raise an industrial dispute. A workman includes any person (including an apprentice) employed in an industry to do manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward. It excludes those employed in the Army, Navy, Air Force and in the police service, in managerial or administrative capacity. 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.
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