Name of the Author: N.

Thisho Nanth

Title of the Paper: Labour and Employment

Name of Institution: Saveetha School of Law, Chennai

Email: [email protected]

Phone no:9894032714

Contact Address:
INTRODUCTION

Social security programs square measure typically delineated because the most
successful programme of the trendy welfare states. However its future
future is currently in doubt. International social insurance Association2 ​finds
that, whereas globalisation is probably going to erode the pension financial gain of the older
persons, it'll enhance their wealth and financial gain from capital, deed their
overall disbursal power slightly improved. The operating age population,
which earns lower wages as a results of having less capital to figure, is an
unambiguous loser from the globalisation process matters is
different from country to country. As a results of these dire predictions,
there square measure proposals to reshape the social insurance system
abound. AN examination of the various styles of social insurance systems perform in
three countries, viz., U.S.A. U.K. and Sweden and the way way they created
changes to cope up with the changes within the new economic order is
essential to the current a part of the study. Indian position is additionally in short explained
for the sake of a comparative study

OBJECTIVES

● To learn about the state of employees in Indian Factories.

● To learn the about the legislations passed to make their lives better.

LIMITATIONS

• The man of science wasn't ready to faucet or refers the first documents as they're
archived.

• The man of science was unable to conduct interviews on field surveys as a result of
lack of your time.
CHAPTERISATION

This is paper is divided into two main chapters:

Chapter 1 deals with Conditions of Labourers in Indian Factories.

Chapter 2 deals with the Legislations Present for Their Betterment.

 CHAPTER 1

CONDITION OF LABOURERS IN INDIAN FACTORIES

The law relating to labour and employment in India is primarily known under the broad
category of "Industrial Law". Industrial law in this country is of recent vintage and has
developed in respect to the vastly increased awakening of the workers of their rights,
particularly after the advent of Independence. Industrial relations embrace a complex of
relationships between the workers, employers and government, basically concerned with the
determination of the terms of employment and conditions of labour of the workers. Escalating
expectations of the workers, the hopes extended by Welfare State, uncertainties caused by
tremendous structural developments in industry, the decline of authority, the waning
attraction of the work ethics and political activism in the industrial field, all seem to have
played some role.

The history of labour legislation in India is naturally interwoven with the history of British
colonialism. The industrial/labour legislations enacted by the British were primarily intended
to protect the interests of the British employers. Considerations of British political economy
were naturally paramount in shaping some of these early laws. The earliest Indian statute to
regulate the relationship between employer and his workmen was the Trade Dispute Act,
1929 (Act 7 of 1929). Provisions were made in this Act for restraining the rights of strike and
lock out but no machinery was provided to take care of disputes.

The original colonial legislation underwent substantial modifications in the post-colonial era
because independent India called for a clear partnership between labour and capital. The
content of this partnership was unanimously approved in a tripartite conference in December
1947 in which it was agreed that labour would be given a fair wage and fair working
conditions and in return capital would receive the fullest co-operation of labour for
uninterrupted production and higher productivity as part of the strategy for national economic
development and that all concerned would observe a truce period of three years free from
strikes and lockouts.

Ultimately the Industrial Disputes Act (the Act) brought into force on 01.04.1947 repealing
the Trade Disputes Act 1929 has since remained on statute book. ​The Industrial Disputes Act,
1947, is, therefore, the matrix, the charter, as it were, to the industrial law. The Act and other
analogous State statutes provide the machinery for regulating the rights of the employers and
employees for investigation and settlement of industrial disputes in peaceful and harmonious
atmosphere by providing scope for collective bargaining by negotiations and mediation and,
failing that, by voluntary arbitration or compulsory adjudication by the authorities created
under these statutes with the active participation of the trade unions. With the aid of this
machinery, industrial law covers a comprehensive canvas of state intervention of social
control through law to protect directly the claims of workers to wages, bonus, retiral benefits
such as gratuity, provident fund and pension, claims, social security measures such as
workmen’s compensation, insurance, maternity benefits, safety welfare and protection of
minimum of economic well-being. Job security has been particularly protected by providing
industrial adjudication of unfair discharges and dismissals and ensuring reinstatement of
illegally discharged or dismissed workmen. Protection has gone still further by laying down
conditions of service in specified industries and establishments and limiting the hours of
work. By and large, all these subjects are "connected with employment or non-employment
or terms of employment or with the conditions of labour" of industrial employees. In other
words, these matters are the subject matter of industrial disputes, which can be investigated
and settled with the aid of the machinery provided under the Act or analogous State statutes.
The principal techniques of dispute settlement provided in the I.D. Act are collective
bargaining, mediation and conciliation, investigation, arbitration, adjudication and other
purposes.
Collective bargaining

Collective bargaining is​ ​a technique by which disputes of​ ​employment are resolved amicably,
peacefully and voluntarily by settlement between labour unions and managements. The
method of collective bargaining in resolving the Industrial dispute, while maintaining
industrial peace has been recognized as the bed rock of the Act. Under the provision of the
Act, the settlement arrived at by process of collective bargaining with the employer has been
given a statutory recognition under Section 18 of the Act. Under the Act two types of
settlement have been recognised:

1. Settlement arrived in the course of conciliation proceeding before the authority. Such
settlements not only bind the member of the signatory union but also non-members as
well as all the present and future employees of the management.
2. Settlement not arrived in the course of conciliation proceedings but signed
independently by the parties to the settlement binds only such members who are
signatory or party to the settlement.

Section 19 of the Act prescribes the period of operation inter alia of such a settlement and
envisage the continuation of the validity of such a settlement unless the same is not replaced
by another set of settlement, while Section 29 prescribes the penalty for the breach of such a
settlement.
 CHAPTER 2

LEGISLATIONS PRESENT FOR THE BETTERMENT OF THE EMPLOYEES

Mediation and Conciliation​ -

Under the Act, an effective conciliation machinery has been provided which can take
cognizance of the existing as well as apprehended dispute, either on its own or on being
approached by either of the parties to the dispute. The Act further makes conciliation
compulsory in majority of disputes.

Investigation

Section 6 of the Act empowers the government to constitute a court of inquiry, for inquiring
into any matter pertaining to an Industrial Dispute. The procedure of the court of inquiry has
also been prescribed by Section 11. While the report of the court is not binding on the parties,
many time it paves the way for an agreement.

Arbitration

Voluntary arbitration is a part of the infrastructure of resolving the Industrial Dispute in the
Industrial adjudication. Section 10 of the Act provides for the provision for resolving the
Industrial Dispute by way of arbitration, which leads to a final and binding award. However,
in India arbitration is not a preferred way of resolving Industrial Disputes.

Adjudication

Adjudication means a mandatory settlement of Industrial Disputes by labour courts, Industrial

Tribunals or National Tribunals under the Act or by any other corresponding authorities
under the analogous state statutes. By and large, the ultimate remedy of unsettled dispute is
by way of reference by the appropriate government to the adjudicatory machinery for
adjudication. The adjudicatory authority resolves the Industrial Dispute referred to it by
passing an award, which is binding on the parties to such reference.

There is no provision for appeal against such awards and the same can only be challenged by
way of writ under Articles 226 and 227 of the Constitution of India before the concerned
High Court or before the Supreme Court by way of appeal under special leave under Article
136 of the Constitution of India.

However before the provisions of the Act, 1947 may become applicable certain pre-requisite
conditions must exist.

1. The dispute must relate to an ‘Industry’;

2. Section 2(j) of the Industrial Dispute Act gives a comprehensive definition of ‘industry’.
The definition of industry in this clause is both exhaustive and inclusive and is quite
comprehensive in its scope. It is in two parts, the first part says that ‘it means any business,
trade, undertaking, manufacture or calling of employees and then goes on to say that it,
includes any calling, services employment, handicraft or industrial occupation or avocation or
workmen. Thus one part of the definition defines it from the standpoint of the employer; the
other from the standpoint of the employees.
This definition has undergone variegated judicial interpretation. In case of Bangalore Water
Supply and Sewage Board Vs. A. Rajagappa [(1978) 1 LLJ 349] a 7 judges bench of the
Supreme Court has given the widest possible meaning of the term ‘industry’ which virtually
covers almost all organized activities under the ambit of the term ‘industry’. After the
decision of the Supreme Court in Bangalore Water Supply and Sewage Board case the
question to be asked is not what is an industry, but what is not an industry. Further, even after
the Bangalore Water Supply and Sewage Board decision there is much left to be desired with
the interpretation of industry and the need for legislative reforms has been accentuated by all
concerned. A very sensible and pragmatic definition of the term ‘industry’ has been
attempted in the Industrial Relations Bill of 1978. With the dissolution of the Parliament in
1979 the Bill lapsed.

The definition has been amended by the Parliament in the Industrial Disputes (Amendment)
Act, 1982 with new definition of industry in Section 2(j). However the amendment has yet to
be brought into force. There is an urgent need for a comprehensive and practical definition of
the ‘industry’.

3. Under this Act an Industrial Dispute can be raised only by ‘workman’ employed in an
‘industry’. Section 2(s) of the Act defines ‘workman’, which means any person employed
including an apprentice, in any industry to do any skilled, unskilled, manual, clerical,
supervisory or technical work for hire or reward, whether the terms of employment be
expressed or implied. The definition of workman under the Act also includes any person who
has been dismissed, discharged or retrenched in connection with or as a consequence of any
dispute. However, it excludes inter alia any person who has been employed mostly in
managerial or administrative capacity or in supervisory capacity drawing wages exceeding
1600/- per month or exercises either by the nature of the duty attached to the office or by
reason of the powers vested in him, functions mainly of a managerial nature. However, in this
regard it is not the nomenclature or designation of the employee but the actual nature of
duties performed by him/her that will determine the status of such employees. Furthermore,
before an Industrial Dispute can be referred for adjudication, it is necessary that their exists a
relationship of employer and employee between the workman and the management.

One of the short-comings of the present definition of the workman, as the experience has
shown is its over emphasis on the criteria of nature of duties performed by an employee
irrespective of the status, position and wage of such an employee in the hierarchy of the
management in determining whether such employee will come under the category of
workman. For example, in India even the Pilots and Engineers of aircraft have been covered
under the definition of workman although in terms of their salary and wages and authority
they exercise, by no stretch of imagination, they can be equated with labour and working
force of the industry. In some cases, even doctors have been recognized as workman as they
perform technical or skilled job. This area of the definition of workman requires an urgent
legislative modification.

CONCLUSION

Space does not allow a detailed discussion of all the provisions of the Act, but provisions that
deal with job losses must be noted. Under the present law any Industrial Establishment
employing more than 100 workers must make an application to the Government seeking
permission before resorting to lay-off, retrenchment, or closure of undertaking. Employers
resorting to any of the said forms of creating job losses without seeking prior permission as
aforesaid act illegally and workers are entitled to receive wages for the period of illegality.
However, an Industrial Establishment employing less than 100 workers can retrench its
surplus employees in accordance with the provisions provided under Section 25F, 25G &
25H of the Act without seeking the permission of the appropriate government. Under Section
25 F of the Act the retrenchment compensation to be offered to a retrenched workman has to
be 15 days salary for every completed year of service and an amount equivalent to one month
salary. However, it has been felt that the present retrenchment compensation provided under
the Act is wholly inadequate and there is an urgent need for enhancing the compensation to a
realistic standard.

However, the service of an employee can be terminated by an order of discharge simplicitor

without complying with the provisions contained in Section 25 F of the Act if such an
employee has been appointed for a fixed period under the contract of fixed term appointment
and his/her services is terminated either on the ground of expiry of the fixed period or in
stipulation of the provision contained therein.

The Reserve Bank of India commissioned a study into the causes of sickness in Indian
industry and they reported cryptically, ‘Sickness in India is a profitable business’. This
chapter (V-B) in the Act, which has been identified as offering high rigidity in the area of
labour redundancy, has been targeted for change under globalisation and liberalisation.

A feature of the Act is the stipulation that existing service conditions cannot be unilaterally
altered without giving a notice of 21 days to the workers and the trade union.