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Originally Posted by anil kaushik Dear giri,
as soon as u receive the copy of the failure report from the conciliation officer(whosoever may be he by designation ) regarding the dispute , seven days after that conciliation proceedings are deemed to be concluded.when failure report is sent to Govt. it isfor deciding about reference.
hope ur querry is clear. u r welcome to ask anything.
regds
anil kaushik
chief editor, BUSINESS MANAGER
smriti sadan,28, raghu marg, alwar-301001(raj) india
mob;09829133699 |
Hi Anil Kausik
In this matter Conciliation proceeding is coplete and I agree with you, that State Government should decide about the reference.
But Querry ask by Mr Giri
[/quote]Dear IR experts,
We had a case of conciliation in 2005 over a collective wage agreement related dispute raised by a union, which was a rival to the recognised union. After few sittings, the Joint Commisioner of Labor (JCL) sent the failure report to the Chief Secretary of Govt., Labor & Employment, Tamil Nadu.
There is a view that to treat the conciliation as closed, our company should have a letter from the Chief Secretary of the Govt.Labor & Employment. The letter from the JCL is not adequate for treating the matter as closed. Unless the letter from the State Govt. is received, the conciliation is treated to be pending legally.
Your views, please.
Giri.
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Now Question is relates to
"We had a case of conciliation in 2005 over a collective wage agreement related dispute raised by a union, which was a rival to the recognised union. After few sittings, the Joint Commisioner of Labor (JCL) sent the failure report to the Chief Secretary of Govt., Labor & Employment, Tamil Nadu. "
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As per Law:
Section 2(k) of the Industrial Disputes Act reads as under :
“industrial dispute” means any dispute or difference 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 persons;
It is apparent from the above definition that I.D. Act envisaged a collective dispute only as an industrial dispute. The I.D. Act was amended in 1965 and section 2 A was added making individual dispute of a workman as an industrial dispute, if the dispute related to dismissal, discharge, retrenchment or termination of individual workman. Thus section 2A carved out an exception to the definition of individual dispute as given in Section 2(k) of the I.D. Act.
Section 10 of the Industrial Disputes Act authorizes the appropriate Government to refer to a Tribunal or Labour Court only an industrial dispute. If there is no industrial dispute, the same cannot be referred. As per Labour Jurisprudence, the dispute between an individual and the management cannot be an industrial dispute unless it is covered under Section 2A of the I.D. Act. Thus in order to be an industrial dispute, it must satisfy the definition of section 2(k) of the I.D. Act. In J. H. Jadhav v. Forbes Gokak Ltd. 2005 AIR(SC) 998, Supreme Court observed as under :
“The definition of “Industrial Dispute” in Section 2(k) of the Act shows that an Industrial Dispute means any dispute or difference between an employer 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 the employment or with the condition of labour, of any person. The definition has been the subject matter of several decisions of this Court and the law is well settled. The locus classicus is the decision in the Workman of M/s. Dharampal Premchand(Saughandhi) v. M/s. Dharampal Premchand(Saughandhi), 1965(3) SCR 394 where it was held that for the purposes of Section 2(K) it must be shown that (1) the dispute is connected with employment or non employment of a workman.(2) the dispute between a single workman and his employer was sponsored or espoused by the Union of workmen or by a number of workmen. The phrase “the union” merely indicates the Union to which the employee belongs even though it may be Union of a minority of the workmen, (3) the establishment had no union on its own and some of the employees had joined the Union of another establishment belonging to the same industry. In such a case it would be open to that Union to take up the cause of the workmen if it is sufficiently representative of those workmen, dispute the fact that such Union was not exclusively of the workmen working in the establishment concerned. An illustration of what had been anticipated in Dharam Pal's case is to be found in the Workmen of Indian Express Newspaper(Pvt.) Ltd. vs. Management of Indian Express Newspaper Private Ltd. AIR 1970 SC 737 where an 'outside' union was held to be sufficiently representative to espouse the cause.”[quote]
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Adjudication of disputes – The Act provides for ‘Works Committee’ in factories employing 100 or more workers. [section 3]. The committee will consist of equal number of representatives of employer and employees. Representatives of employees will be selected in consultation with Registered Trade Union. The Works Committee will first try to settle disputes. If dispute is not solved, it will be referred to ‘Conciliation Officer’. He is appointed by Government. [section 4]. The matter may also be referred to ‘Board of Conciliation’. [section 4]. He will try to arrive at fair and amicable settlement acceptable to both parties. If he is unable to do so, he will send report to appropriate Government. [section 12(4)]. The Government may then refer the industrial dispute to Board of conciliation, Labour Court or Industrial Tribunal. [section 12(5)].
Employer and employees can voluntarily refer the matter to arbitration. [section 10A]. [This provision is very rarely used by employer and workmen. Generally, they prefer the Court route].
If no settlement is arrived at, there is three tier system of adjudication – Labour Court, Industrial Tribunal and National Tribunal. The order made by them is ‘award’.
‘Award’ means an interim or final determination of any industrial dispute or of any question relating thereto by any Labour Court, Industrial Tribunal or National Tribunal. It also includes arbitration award. [section 2(b)]. - - The ‘award’ is required to be published by State/Central Government within 30 days. [section 17]. The award becomes effective 30 days after its publication. [section 17A].
Labour Court – Labour Courts are constituted by State Governments u/s 7. It will be presided over by ‘Presiding Officer’. The Labour Court has powers in respect of * Interpretation of Standing Orders * Violation of Standing Orders * Discharge or dismissal of a workman * Withdrawal of any customary concession or privilege * Illegality or otherwise of a strike or lock-out * Other matters which are not under Industrial Tribunal. [Second Schedule to the Act]
Industrial tribunal – Industrial Tribunal is constituted by State Government u/s 7A. The tribunal will be presided over by ‘Presiding Officer. The Industrial Tribunal has powers in respect of * Wages, including period and mode of payment * Compensatory and other allowances * Hours of work and rest intervals * Leave with wages and holidays * Bonus, profit sharing, provident fund and gratuity * Shift working changes * Classification by grades * Rules of discipline * Ratinlanisation and retrenchment of workmen. [Third Schedule to Act].
National Tribunal – National Tribunal is formed by Central Government for adjudication of industrial disputes of national importance or where industrial establishments situated in more than one States are involved. [section 7B].
Reference of dispute – Appropriate Government can refer any dispute to Board of Conciliation, Court of Enquiry, Labour Court or Industrial Tribunal. [section 10(1)]. - - Appropriate Government means * Central Government in case of railways, docks, IFCI, ESIC, LIC, ONGC, UTI, Airport Authority, industry carried on by or under authority of Central Government * State Government in case of other industrial disputes [section 2(a)].
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Now Question is
1. Matter relates to 2005 we are in 2007, what is limitation period for Reference?
since
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Settlement - ‘Settlement’ means a settlement arrived at in the course of conciliation proceedings. It includes a written agreement between employer and workmen arrived at otherwise than in course of conciliation proceedings (i.e. outside the conciliation proceedings). - - The difference is that settlement arrived at in course of conciliation or an arbitration award or award of labour court or Tribunal binds all parties to industrial dispute including present and future workmen and all parties who were summoned to appear in the proceedings. [section 18(3)]. If settlement is arrived at by mutual agreement, it binds only those who were actually party to agreement. [section 18(1)]. - - The settlement is binding during the period it is in force. Even after that period is over, it continues to be binding, unless a 2 month notice of termination is given by one party to another. [section 19(2]. - - If no period has been specified, settlement is valid for 6 months and an award is valid for one year.
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I repeat the Question
1. Matter relates to 2005 we are in 2007, what is limitation period for Reference?
Regards
Arun K Mishra