Labour Law in India

What is unfair labour practice in Industrial Disputes Act

Section 2(ra) of Industrial Disputes Act 1947 “unfair labour practice ”means any of the practices specified in the Fifth Schedule;

[CHAPTER V-C ]

Unfair Labour Practices

25-T. Prohibition of unfair labour practice .—No employer or workman or a trade union, whether registered under the Trade Unions Act, 1926 (18 of 1926), or not, shall commit any unfair labour practice.

25-U. Penalty for committing unfair labour practices .—Any person who commits any unfair labour practice shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees or with both.

Unfair labour practice, for the first time, was defined and codified in the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices act, 1971 . But in so far as the industrial disputes act, Central Law, is concerned, unfair labour practice was codified and brought into force by the Amending act, 46 of 1982 with effect from 21st August 1984.

Clause (ra) of Section 2 of the Industrial disputes act defines unfair labour practice to mean the practices specified in the fifth schedule and the fifth schedule was also inserted by the said Amending act. The fifth schedule has two parts. The first part refers to unfair labour practices on the part of the employers and trade union of employers and the second part refers to unfair labour practices on the part of the workmen and trade union of workmen. However, there is some difference between the provisions relating to unfair labour practices in the Maharashtra act and those in Central act i.e. industrial disputes act. The industrial disputes act prohibits an employer or workmen or a trade union from committing any unfair labour practice while the Maharashtra act prohibits an employer or union or an employee from engaging in any unfair labour practice. The prohibition under the industrial disputes act is aimed at preventing the commission of an unfair labour practice while the Maharashtra act mandates that the concerned parties cannot be engaged in any unfair labour practice.

Any unfair labour practice within its very concept must have some elements of arbitrariness and unreasonableness and if unfair labour practice is established the same would bring about a violation of guarantee under Article 14 of the Constitution. Therefore, it is axiomatic that anyone who alleges unfair labour practice must plead it specifically and such allegations must be established properly before any forum can pronounce on the same. It is also to be kept in mind that in the changed economic scenario, the concept of unfair labour practice is also required to be understood in the changed context. Today every State, which has to don the mantle of a welfare state, must keep in mind that twin objectives of industrial peace and economic justice and the courts and statutory bodies while deciding what unfair labour practice is must also be cognizant of the aforesaid twin objects.

The following practices are considered as unfare labour Practice under the Industrial Disputes Act 1947

[THE FIFTH SCHEDULE

[See section 2(ra)]

UNFAIR LABOUR PRACTICES

I. On the part of employers and trade unions of employers

1- To interfere with, restrain from, or coerce, workmen in the exercise of their right to organise, form, join or assist a trade union or to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, that is to say–
(a) threatening workmen with discharge or dismissal, if they join a trade union,

(b) threatening a lock-out or closure, if a trade union is organised,

(c) granting wage increase to workmen at crucial periods of trade union organisation, with a view to undermining the efforts of the trade union organisation.

2.  To dominate, interfere with or contribute support, financial or otherwise, to any trade union, that is to say-

(a) an employer taking an active interest in organising a trade union of his workmen; and

(b) an employer showing partiality or granting favour to one of several trade unions attempting to organise his workmen or to its members, where such a trade union is not a recognised trade union.

3.  To establish employer sponsored trade unions of workmen.

4.  To encourage or discourage membership in any trade union by discriminating against any workman, that is to say-
(a) discharging or punishing a workman, because he urged other workmen to join or organise a trade union,

(b) discharging or dismissing a workman for taking part in any strike (not being a strike which is deemed to be an illegal strike under this Act),

(c) changing seniority rating of workmen because of trade union activities,

(d) refusing to promote workmen to higher posts on account of their trade union activities,

(e) giving unmerited promotions to certain workmen with a view to creating discord amongst other workmen, or to undermine the strength of their trade union,

(f) discharging office-bearers or active members of the trade union on account of their trade union activities.

5.  To discharge or dismiss workmen-

(a) by way of victimisation;

(b) not in good faith, but in the colourable exercise of the employer’s rights;

(c) by falsely implicating a workman in a criminal case on false evidence or on concocted evidence;

(d) for patently false reasons;

(e) on untrue or trumped up allegation of absence without leave;

(f) in utter disregard of the principles of natural justice in the conduct of domestic enquiry or with undue halt;

(g) for misconduct of a minor or technical character, without having any regard to the nature of the particular misconduct or the past record or service of the workman, thereby leading to a disproportionate punishment.

6.  To abolish the work of a regular nature being done by workmen, and to give such work to contractors as a measure of breaking a strike.

7.  To transfer a workmen main fide from one place to another, under the guise of following management policy.

8.  To insist upon individual workmen, who are on a legal strike to sign a good conduct bond, as a pre-condition to allowing them to resume work.

9.  To show favouritism or partiality to one set of workers regardless of merit.

10.  To employ workmen as “badlis”, casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.

11.  To discharge or discriminate against any workman for filing charges or testifying against an employer in any enquiry or proceeding relating to any industrial dispute.

12.  To recruit workmen during a strike which is not an illegal strike.

13.  Failure to implement award, settlement or agreement.

14.  To indulge in acts of force or violence.

15.  To refuse to bargain collectively, in good faith with the recognised trade unions.

16.  Proposing or continuing a lock-out deemed to be illegal under this Act.

II-On the part of workmen and trade unions of workmen.

1.   To advise or actively support or instigate any strike deemed to be illegal under this Act.
2.   To coerce workmen in the exercise of their right to self-organisation or to join a trade union or refrain from joining any trade union, that is to say :-
(a) for a trade union or its members to picketing in such a manner that non-striking workmen are physically debarred from entering the work places;

(b) to indulge in acts of force or violence or to hold out threats of intimidation in connection with a strike against non-striking workmen or against managerial staff.

3.   For a recognised union to refuse to bargain collectively in good faith with the employer.
4.    To indulge in coercive activities against certification of a bargaining representative.

5.   To stage, encourage or instigate such forms of coercive actions as willful “go slow”, squatting on the work premises after working hours or “gherao” of any of the members of the managerial or other staff.

6.  To stage demonstrations at the residences of the employers or the managerial staff members.

7.  To incite or indulge in wilful damage to employer’s property connected with the industry.

8.   To indulge in acts of force or violence or to hold out threats of intimidation against any workman with a view to prevent him from attending work.


Ref: Siemens Ltd. and Another Versus Siemens Employees Union and Another-JT 2011 (12) SC 151 : (2011) 11 SCALE 502


Maharashtra Recognition of Trade Unions and Prevention of unfair labour practices Act, 1971

The Maharashtra Act was the first enactment of its kind in the country to have been legislated by a State for the prevention of unfair labour practices and consequent victimization. It was a comprehensive legislative device to weed out unfair labour practices, not only on the part of the employers, but also on the part of trade unions and the workmen. Chapter VI of the Act is titled ‘unfair labour practices’. Section 26, the first section of this chapter, defines an unfair labour practice for the purposes of the Act.

It reads as under:

26. unfair labour practices: In this Act, unless the context requires otherwise, ‘unfair labour practices’ mean any of the practices listed in Schedules II, III and IV.

12. Section 27 prohibits ‘unfair trade practices’.

The said Section is as follows:

27. Prohibition on engaging in unfair labour practices: No employer or union and no employees shall engage in any unfair labour practice.

13. Section 28 deals with the procedure for preferring a complaint against an unfair labour practice. Clause (1) of this section reads as follows:

28. Procedure for dealing with complaints relating to unfair labour practices:

(1)Where any person has engaged in or is engaging in any unfair labour practice, then any union or any employee or any employer or any Investigating Officer may, within ninety days of the occurrence of such unfair labour practice, file a complaint before the Court competent to deal with such complaint either under Section 5, or as the case may be, under Section 7, of this Act:

Provided that, the Court may entertaina complaint after the period of ninety days from the date of the alleged occurrence, if good and sufficient reasons are shown by the complainant for the late filing of the complaint.

The  Maharashtra Act was enacted not only for recognition of trade unions but also prevention of unfair labour practices. What is an unfair labour practice has been defined in Section 26 of the Act to mean all the practices listed in Schedules II, III and IV. Section 27 of the Act prohibits engagement of an employee by any employer or union in any unfair labour practice. Section 28 provides for procedure for dealing with complaints relating thereto. Schedule IV of the Act enumerates general unfair labour practices on the part of the employers. Clause 6 of Schedule IV of the Act reads as under :

6. To employ employee as badlis”, casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent employees.” – can be exemplified- is an example of unfair labour practice.


Comment

Any unfair labour practice within its very concept must have some elements of arbitrariness and unreasonableness and if unfair labour practice is established the same would bring about a violation of guarantee under Article 14 of the Constitution. Therefore, it is axiomatic that anyone who alleges unfair labour practice must plead it specifically and such allegations must be established properly before any forum can pronounce on the same. It is also to be kept in mind that in the changed economic scenario, the concept of unfair labour practice is also required to be understood in the changed context. Today every State, which has to don the mantle of a welfare state, must keep in mind that twin objectives of industrial peace and economic justice and the courts and statutory bodies while deciding what unfair labour practice is must also be cognizant of the aforesaid twin objects.

Unfair labour practice, for the first time, was defined and codified in the Maharashtra Act referred to hereinabove. But in so far as the Industrial Disputes Act, Central Law, is concerned, unfair labour practice was codified and brought into force by the Amending Act, 46 of 1982 with effect from 21st August 1984.

Clause (ra) of Section 2 of Industrial Disputes Act defines unfair labour practice to mean the practices specified in the fifth schedule and the fifth schedule was also inserted by the said Amending Act. The fifth schedule has two parts. The first part refers to unfair labour practices on the part of the employers and trade union of employers and the second part refers to unfair labour practices on the part of the workmen and trade union of workmen. However, there is some difference between the provisions relating to unfair labour practices in the Maharashtra Act and those in Central Act i.e. Industrial Disputes Act. The Industrial Disputes Act prohibits an employer or workmen or a trade union from committing any unfair labour practice while the Maharashtra Act prohibits an employer or union or an employee from engaging in any unfair labour practice. The prohibition under the Industrial Disputes Act is aimed at preventing the commission of an unfair labour practice while the Maharashtra Act mandates that the concerned parties cannot be engaged in any unfair labour practice. The word ‘engage’ is more comprehensive in nature as compared to the word ‘commit’ ( Hindustan Lever Ltd. v. Ashok Vishnu Kate and Ors. reported in, (1995) 6 SCC 326 at para 37, page 345 of the report).


National Labor Relations Act (NLRA) 1935 of USA [Title 29, Chapter 7, Subchapter II, United States Code

Unfair labor practices are actions taken by employers or unions that are illegal under the National Labor Relations Act (NLRA)

UNFAIR LABOR PRACTICES [ Extract of the Law]

Sec. 8. [§ 158.] (a) [Unfair labor practices by employer] It shall be an unfair labor practice for an employer–

(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 [section 157 of this title];

(2) to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it: Provided, That subject to rules and regulations made and published by the Board pursuant to section 6 [section 156 of this title], an employer shall not be prohibited from permitting employees to confer with him during working hours without loss of time or pay;

(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: Provided, That nothing in this Act [subchapter], or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in section 8(a) of this Act [in this subsection] as an unfair labor practice) to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later, (i) if such labor organization is the representative of the employees as provided in section 9(a) [section 159(a) of this title], in the appropriate collective-bargaining unit covered by such agreement when made, and (ii) unless following an election held as provided in section 9(e) [section 159(e) of this title] within one year preceding the effective date of such agreement, the Board shall have certified that at least a majority of the employees eligible to vote in such election have voted to rescind the authority of such labor organization to make such an agreement: Provided further, That no employer shall justify any discrimination against an employee for non-membership in a labor organization (A) if he has reasonable grounds for believing that such membership was not available to the employee on the same terms and conditions generally applicable to other members, or (B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership;

(4) to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this Act [subchapter];

(5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a) [section 159(a) of this title].

[Full list is not given here]


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