Replacement to Striking workers and their continuity after withdrawal of strike - CiteHR
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Mr.Nagarkar
De-recognition union is correct word. I shall mention it to union, labour commissioner and check response. Also ask my HR to submit our request to labour commissioner with all supporting proofs of unfair labour practices undertaken by union members.
Shall get in touch with you after our planned meeting with union on 22nd October at labour commissioner's office.
Mr.Kumar,
I understand your warning and appreciate. We have possible options to keep supplies to our clients alive. Advisory notes from experienced persons has added solid dots in our thought process which shall connect as and when situation demands.
We being facing such dynamic scenario first time and we donot have much idea about legal status of few issues... Your advises have surely came very handy to take negotiation and our action plan forward.
Thanks
Dr.Shrikant Karwa
9422258944
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Dear Dr Karwa,
Thanks. Your objective at this crucial time , in my view , should be to get matters of both illegality of strike and COD referred to the legal Authorities ( Industrial Tribunal/Labour Court under the ID Act. Once the reference is made , no strike can be continued and workers will have to resume work. So, make this your top priority.
The issue of reengaging replacement workers ( As you find them far better qualified and capable as compared to the oldies) can be taken up after VRS is successfully implemented. If and when present workers resume work,the replacement workers will have to go but for the time being their issue and VRS has to be kept at back burner.
Once the courts are seized with the strike and COD , you hopefully get a breather to make preparations to make your case stronger in mustering all data and facts on total business scenario in terms of SC judgements. In both the matters your side appears to me more convincing on merits. But it again decidedly depends on how our labour lawyers effectively present it and how are they effectively briefed by the HR.
After reference and during the pendency of matters before Courts, hopefully normalcy in production and work flow will be restored and you can coolly work out your further strategies to continue to confront or compromise and buy long lasting peace through amicable settlement.
Wish you good luck and success.
Regards,
Vinayak Nagarkar
HR- Consultant
Dear Dr Karwa,
Please post further developments in this matter as I am keen to know .
Regards,
Vinayak Nagarkar
HR- Consultant
Dear Dr.Karwa,
Here are attached few judgments and Notes on 'Strikes' , 'de-recognition' which I hope might help you in understanding the provisions of law & its application.

Attached Files
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File Type: docx Labour law-An analysis of illegal strikes.docx (26.2 KB, 27 views)
File Type: docx Trade Union-De-recognition-Delhi High Court.docx (22.9 KB, 19 views)
File Type: docx Trade Union-Derognition-Bombay High Court.docx (23.3 KB, 15 views)

Dear friend,
This is in response w.r.t. your 17th post.
As far as I know there is no enactment to govern VRS package, excepting in govt/semi govt. entities where the general guidelines on the package size is -
15 days wages (basic + DA) for every completed years or estimated emoluments for the individual's remaining service computed based on current rates, whichever is lower. There is no hard and fast rule as to the quantum of compensation. This is in addition to gratuity, leave encashment full, EPF accumulation (both subscription + employer's contribution). This could be minimum which can be defended, on the higher side-anybody's guess, sky is the limit.
But you mentioned,your VRS package is to the extent of 70% ("1. Unsuceesful VRS possibility was tried once. We had offered 70% of wages (at current rate of wages) for balance service period of each worker." your post dt.16th.). Did I read correctly "@ 70% of wages for balance service", I think you should have meant to say 70% of wages (of the current month, for every year) or notionally computed for the entire period till superannuation? If I read the later is correct, either they all must be nearing superannuation or you can afford to the hefty cash outgo. That's your call.
In any case, VRS package, if and when implemented, need not be accounted in the very same year of payment i.e. 2018-19 as there is an option to accounts it as "Deferred Revenue Expenditure" under which the sum can be distributed/apportioned over a longer period, say 10 to 20,25 yrs. also. By this your bottom line can be taken care of to reflect healthy results. Also, if there is cash crunch to meet the VRS commitments, banks can be approached for cash credit facilities/WC loan also which, if need arises, can be explored. And if your's is MSME regd. you'll have some more concessions in RoI & prepayment tenure and other advantages.
In contrast, 'Termination" under whatsoever circumstances which you could successfully implement, would cost you less. This will have support from the 'Termination clause of the appointment orders issued to your present employees, which would attract only notice pay with terminal package i.e. 15 days wages per year of past service only.
Hi
Thanks for your concern about our ongoing strike.
We could demonstrate to labour commissioner that Union's demands are unjustified on the basis of Supreme court judgement given by Mr.S Kumar.
However, Union got new objection. As per MRTU Act, Schedule IV for unfair labour practices by employer, point 8 says that "To recruit new employees till strike is not declared illegal"
Now, this is going against us since we had to recruit new employees to run plant.
We are once again in a fix.
I wonder how others run production by employing when most of their employees are on strike.
I shall appreciate if you can throw light.... whether it is possible to legally employ new recruits or not? If not, we have no option but to stop our this plant and go for another set-up.
In such situation, union can always blackmail management in India while in US, it is allowed to employ replacement workers if they are available at lower cost.
I still believe that there must be a way out to such funny limitation on employer in India also.
Await your opinion.
Dr.Karwa
Dr.Karwa,
Things are narrowing down to some clarity. I was somewhat skeptical about recruiting new employees as against striking lot to run the plant. It's not practically possible to employ new ones in replacement of existing employees unless & until they are relieved/settled. As you know this is going to be opening up another front to tackle if and when the strike is called off. Ofcourse it's a vexed problem facing shutters down for the plant. But 'hire & fire' policies of US has no place in India. If the striking employees are amenable to situations next is 'lock out'. Will any temporary stoppage of production/shut down cause irreparable damage to the work-in-process and other installations? If it works, in case, if you could find a contractor who could employ his own men to run the plant (on somewhat lease basis) temporarily without any commitment either to continue the arrangement to retain the men on a fixed % of share in the surpluses. Or to find any labour contractor to supply men for a limited period for a fixed value contract. Meantime explore possibilities for declaration of 'illegal strike' and enforce 'lockout' if it fails.
Since Agency law has been ammended, handover manufacturing to third party is not possible.
Our lawyer has take stand that strike is called by Union and Company has declared it as illegal. Hence, Union has responsibility to get their strike declared legal by court to attract Sch IV (8) clause of MRTU & PULP (which says that recruiting new employees during legal strike is unfair labour practice". Hence, there is no legal breach in appointing new employees which can be retrenched once striking employees return to work.
We are taking this stand before authorities.
Please comment.
1.Pl.assess what could be the time frame over all, prepare a PERT chart and a CPM in consultation with your advocate.
2.Could the recruitment of new ones will work, are you confident you'll get right candidate with proper mix of talent/skill?. What if they are also blocked by striking workers with force. I presume these new ones must be from outside the local area and there is a possibility of chaos local vs outsiders.
3.Do you have intelligence report who (possibly some local leaders, politician) are behind them providing strategic support. Even local police might be among them. Your counter action should multi pronged approach to tackle these fronts.
4.Wrought,Pushing towards employ new ones with a conscious plan of retrenching them in a short span, it may be appropriate to include a clause showing definite duration & purely temporary, subject to retrenchment by end of tenure, and if need arises extendable with mutual consent for further duration with same or modified terms & conditions. Also define what could be retrenchment compensation.
More or less, we have done homework. Whatever you said about politicians and police has happened. We approached highest police authorities in district who are aware of union maniac and is in favour of stopping striking members to take law in hand.
It seems administration is also worried about bad effects of union blackmailing tacties on industry and want them to play by rulebook.
We are giving fixed term employment (as introduced) by govt in recent amendments.
We shall keep you updated.
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