Labour & Industrial Relations

Dear Sir,

The management has asked me to give my opinion on the following issues:

1. What is the difference between normal workmen and protected workmen? Where could I find the relevant provisions and commentary?

2. What is the difference between the wage settlement agreement under section 2 (p) and sections 18 (1) (2) (3) of the ID Act, 1947? What kinds of agreements can generally be executed under section 2 (p) and 18 (1) (2) (3)?

3. What is the meaning of an illegal strike (apart from the strike of a trade union)?

May I request you to please guide me on the aforementioned subjects with relevant provisions, case laws, and your valuable comments.

Thank you,
Manoj Pallod

Workmen are employees or workers who come under the definition of workmen in the Industrial Disputes Act. Protected workmen are also workmen but are recognized by the management as "protected" following the provisions of the Industrial Disputes Act. As per rule 61 of the Industrial Disputes (Central) Rules, every registered Trade Union shall communicate to the employer the names of employees who are members of the union to be recognized as protected workmen. This follows section 33(4) of the ID Act, which states that "the number of workmen to be recognized as protected workmen shall be one percent of the total number of workmen employed therein subject to a minimum number of five protected workmen and a maximum number of one hundred protected workmen. Where there are more than one union, then the number of protected workers shall be divided in proportion to the membership in the unions.

Section 2(p) only defines what is called "settlement," stating that settlement is an agreement by means of conciliation. It is different from an "award," which is a settlement arrived at by a Labour Court or Tribunal. Settlement can also be a bi-party settlement wherein an agreement is reached in direct conversation between the employees (with or without a union) and the employer, or it can be a tri-party settlement, usually referred to as a 12(3) settlement, which is reached with the intervention of a conciliation officer appointed by the government.

Section 18 is all about whom the settlement and awards are binding. Section 18(1) states that a settlement arrived at by agreement between the employer and the employees (a bi-party settlement) other than a conciliation settlement (i.e., a tri-party settlement or a 12(3) settlement) will be binding on the parties to the agreement.

Section 18(2) specifies that an arbitration award will be binding on the parties to the agreement who referred the dispute to arbitration.

Section 18(3) declares that a settlement reached in the course of conciliation proceedings will be binding on all parties to the industrial dispute.

Please note that there are some provisions annexed to the above.

A strike that commences without giving notice of strike or in contravention of section 22(1) of the ID Act is an illegal strike. According to section 22(1), a 14-days notice is mandatory in public utility services. Therefore, if your establishment is not declared a public utility service, the provision relating to notice will not apply to you. Please remember that the term "public utility" is not related to the public sector but to a firm in the private sector engaged in a business declared as public utility, such as transport, which must follow the above provisions. The same notice requirements apply to the employer who intends to lock out his establishment.

Regards,

Madhu.T.K

Respected Sir,

Kindly clarify for me how I can determine whether our company falls under the category of a public utility service or not. Are there any specific criteria for this? I am awaiting your prompt response.

Regards,

Madhu.T.K

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Workmen are employees or workers who come under the definition of workmen in the Industrial Disputes Act. Protected workmen are also workmen but are recognized by the management as "protected" following the provisions of the Industrial Disputes Act. As per rule 61 of the Industrial Disputes (Central) Rules, every registered Trade Union shall communicate to the employer the names of employees who are members of the union to be recognized as protected workmen. This follows section 33(4) of the ID Act, which states that "the number of workmen to be recognized as protected workmen shall be one percent of the total number of workmen employed therein, subject to a minimum of five protected workmen and a maximum of one hundred protected workmen. Where there are more than one union, then the number of protected workers shall be divided in proportion to the membership in the unions.

Section 2(p) defines what is called a "settlement" and states that settlement is an agreement by means of conciliation. It is different from an "award," which is a settlement arrived at by the Labor Court or Tribunal. A settlement can also be a biparty settlement wherein an agreement is reached in direct conversation between the employees (with or without union) and the employer, or it can be a tri-party settlement, usually referred to as a 12(3) settlement, which is arrived at with the intervention of a conciliation officer appointed by the government.

Section 18 pertains to whom the settlements and awards are binding. Section 18(1) states that a settlement arrived at by agreement between the employer and the employees (a biparty settlement) other than a conciliation settlement (i.e., a tri-party settlement or 12(3) settlement) will be binding on the parties to the agreement.

Section 18(2) states that an arbitration award will be binding on the parties to the agreement who referred the dispute to arbitration.

Section 18(3) states that a settlement arrived at in the course of conciliation proceedings will be binding on all parties to the industrial dispute. Please note that there are some provisions annexed to the above.

A strike that commences without giving notice of the strike or in contravention of section 22(1) of the ID Act is an illegal strike. As per section 22(1), a 14-day notice is mandatory in public utility services. Therefore, if your establishment is not declared as a public utility service, the provision relating to notice will not apply to you. Please remember that the term "public utility" is not related to the public sector, and a private sector firm engaged in a business declared as a public utility, such as transport, will have to follow the above provisions. The same notice requirements apply to the employer who wants to lock out his establishment.

Regards,

Madhu.T.K

An industry is declared as a public utility service by the government through notification when it becomes necessary to do so in the interest of the general public. Under section 2(n) of the ID Act, railway service, postal service industry engaged in the generation and distribution of power or water, and services of a system of sanitation are considered public utilities. Clause vi of subsection n to section 2 empowers the government to declare any other service or industry as a public utility service for a period of six months (which may be extended for a further period). The list of industries that may be declared as public utility services is available in the First Schedule of the ID Act. In that schedule, transport, banking, industries engaged in the manufacturing of foodstuffs, services in hospitals, services in the International Airports Authority of India, and services in Currency Note Press, etc., are included.

Regards, Madhu.T.K

An industry is declared as a public utility service by the government through notification when it becomes necessary in the interest of the general public. Under section 2(n) of the ID Act, railway service, postal service industry engaged in the generation and distribution of power or water, and services of a system of sanitation are considered public utilities. Clause vi of subsection n to section 2 empowers the government to declare any other service or industry as a public utility service for a period of six months (which may be extended further). The list of industries that may be declared as public utility services is available in the First Schedule of the ID Act. In that schedule, transport, banking, industries engaged in the manufacturing of foodstuffs, services in hospitals, services in the International Airports Authority of India, Services in Currency Note Press, etc., are included.

Regards,

Kamat V. P.

More at https://www.citehr.com/306195-labour...#ixzz19eITxnJx

Sir,

May I seek your assistance to understand the concept of "protected workmen" for an establishment and its purpose? What are the uses or benefits for an establishment to have "protected workmen"? Would a workman who completes 240 days in a calendar year be considered a "protected workman"?

Do "protected workmen" need to be members of a "trade union" only? Please guide me.

Thanks,
Manoj Pallod

Manoj, protected workmen are workmen who are members of registered trade unions. As already mentioned in my previous posts, the manner of recognizing the workmen as protected workmen is outlined in the ID Act. It does not mean that protected workmen can do anything and the management is unable to initiate any disciplinary action against them. However, the ID Act states that during any dispute or negotiation period, no action that may alter the service conditions of these workmen should be taken. It is evident that in the absence of a trade union, if workers present certain demands (which are legitimate), there is a possibility that the management may transfer or even discharge some of the workmen. The protection is intended to prevent such victimization.

Regards, Madhu.T.K

Dear Sir,

On what grounds can protected workmen be dismissed or discharged?

Regards,
Parvez Pasta

On any ground that, as per the company policy, constitutes misconduct, a protected workman can be dismissed or discharged. The only condition is that this should not occur while a dispute is being heard before a dispute settlement authority and on a charge related to the dispute.

Madhu.T.K

Dear Manoj,

Madhu sir has already elaborated the concept clearly.

I would still like to add that since you are working in Maharashtra, if your organization has more than one union and one of them, with the largest number of members, is a recognized union holding a certificate from the Industrial court, please also focus on the definition of an illegal strike as defined in the MRTU & PULP Act. Madhu sir, being from Kerala, may not be well acquainted with this act.

Protected workmen should be informed by the union to the management every year in September.

You can also question the names.

It is important to note that when dismissing protected workmen for misconduct with ongoing proceedings before the court/government, you must obtain permission from the court for their dismissal.

Protected workmen are immune from civil court cases that are related to industrial disputes. Such cases can only be pursued in labor/industrial/high court/supreme court and not in any civil court.

Mangesh Wakodkar
Aurangabad