Jet Airways Pilots' Sick Leave Protest: Legal Implications and Industrial Relations Discussion

In the news, there is a report of pilots going on collective sick leave, demanding the reinstatement of two sacked pilots for forming a union called the Aviators' Guild. Since striking is illegal when conciliation is under proceeding, how will this action by Jet pilots be viewed under the ID Act and Trade Union Act? Is ESMA applicable in such a situation? Please discuss the issue in terms of industrial relations and legislation.

Dear Friend,

A very interesting scenario from the viewpoint of legal experts. All three legislations are independent of each other.

Trade Unions Act: Pilots have the right to form a union under the Act. This is not a statutory but a fundamental right to form an association or trade union.

ID Act: Going on mass sick leave will amount to misconduct under this Act.

ESMA: The government can invoke this Act when a strike affects the public at large.

The way out is settlement only; otherwise, it will be a legal tangle all the way.

Yes, I agree. But I seek to have some more observations and opinions on it. Could this have been averted if handled with empathy and openness? Can an empowered HR, good HR policies, and organizational culture prevent such incidences? Can HR be empowered enough to persuade the management to accept its advice?

If you remember, Jet Airways was the first to start the "Recession" scare in India, sometime last September, when it sacked ground staff and trainees en masse. It led to a massive floodgates of "recession"-led downsizing by companies in all sectors. Now that the "green shoots" of recovery are emerging, do you think the employees will forgive and forget Naresh Goyal's Jet Airways? What is your take on this 'event'?

Dear Rajkumar,

In my opinion, it starts with the organizational values. All HR initiatives are based on the same. Moreover, a proactive approach and foresightedness on the part of management, along with an empathetic view of the employees' issues, have the potential to avert such crises.

R. G. Ratnawat

One more question: do pilots come under the definition of "workmen"?

Under the ID Act, a WORKMAN [(Sn.2(s)], all employees in an establishment are not 'WORKMEN' under the ID Act. Only employees performing manual, unskilled, skilled, technical, operational, or clerical work are considered 'workmen.' However, managerial staff are totally excluded irrespective of their salary.

Hi Friends,

Yes, pilots come under the category of workmen. Time and again, the apex court has expanded the definition of workmen under the ID Act. Now, there is a debate going on as to whether the amendment of the ID Act should be made to exclude them.

Pilots in civil aviation are coming under the definition of a Workman under the ID Act. Any person employed in any industry in the aviation industry to do manual, unskilled, skilled, technical, and operational, clerical, or supervisory work are doing technical and skilled work. The term of employment expressed or implied should have clear terms expressed. They are not excluded because they have no managerial functions and are not in a supervisory capacity. Pilots in the Airforce do not come under the definition of a workman because they are excluded as they are subject to the Air Force Act of 1950.

Dear Sir,

There are so many rulings of the Honorable Supreme Court that who is a workman shall be decided by the nature of the job, not by the salary he is drawing. So, pilots come under the category of workmen under the Industrial Disputes Act, 197.

In the same way, a teacher is not a workman. The classification of who is a workman will be determined based on the nature of the job he/she is performing.

Thank you.

Best regards, [Your Name]

Salary or social status is not the criteria for deciding who is a workman or not. Though civil aviation pilots are getting hefty wages (as mentioned by you) and staying in Five-Star Hotels during their stay between duty, or having a better social status, they come under the definition of "Workman" under the ID Act 1947. At the same time, a Manager who may get a salary of Rs 10,000 per month comes to work by walking or cycling and lives in an ordinary house; he does not come under the definition of a workman. This is because he exercises managerial powers and performs managerial functions. He is a Manager and not a workman. The difference lies in the nature of work and nothing else.

Please carry on this discussion. It is very enlightening to discuss the HR angle of a big live event as it continues to unfold.

Dear Kumar,

To avoid any action for misconduct or an illegal strike, the pilots cleverly went on sick leave.

Thank you.

Hi All,

First of all, ESMA will not be applicable in this case, as this act can be invoked by the government when this kind of activity is hampering the essential services, affecting the general public at large. In this case, the public affected are the jet passengers who have chosen to avail themselves of the services of Jet Airways, and they have an alternate remedy.

Secondly, going on mass leave is not misconduct that can be handled under the ID Act. This needs to be addressed under the Industrial Employment standing orders applicable to the organization.

Requesting comments from senior members on the above views.

Regards,
Ajit

I am not aware of the provisions of ESMA. But under the ID Act, the action was an illegal strike.

Airlines are a public utility service

Airlines come under the definition of public utility service [Section 2(n)]
2(n)(i) public utility service means any railway service or any transport service for the carriage of passengers or goods by air.

Strike in a public utility service is prohibited

As per Section 22, no person employed in a public utility service shall go on strike in breach of a contract, (a) without giving the employer notice of strike, within six weeks before striking, within fourteen days of giving such notice, or before the expiry of the date of the strike specified in any such notice, during the pendency of conciliation proceedings, or within 7 days from the conclusion of such proceedings.

Penalty for an illegal strike
Any workman who commences, continues, or otherwise acts in furtherance of a strike which is illegal under this Act shall be punishable with imprisonment for a term that may extend to one month or with a fine that may extend to Rs 50/- (Fifty) or with both.

What is a strike?

A strike means a cessation of work by a body of persons employed in any industry acting in combination, or a concerted refusal or a refusal under a common understanding of any number of persons who are or have been so employed to continue to work or to accept employment.

Hope this is sufficient to say the strike was illegal.

Hi Ajit,

I would like to add more on your second point. Once an organization takes action under the Standing Orders of the Company, if any dispute arises regarding the action taken by the organization, then the provisions of the ID Act will apply to that.

Regards,
Saquib
9272990869

Dear KCS Kutty,

I compliment you on your analytical views. They were excellent and pertinent. I look forward to others' opinions on this. It is an issue worth studying by HR professionals, and I feel sorry to find less participation on such issues and large participation on popular issues of personal conflict or dilemmas. Please contribute your valuable opinions to this thread.

Regards.

Friends, we discussed a lot about the pilots' strike. Now let's think about some ways to prevent their stomach upset or loose motion on duty in the future!

Dear All,

First of all, thank you for raising the issue for healthy discussion, which is, in fact, very important in this scenario.

The basic problem, or you can say the root of the problem, arose in Jet at the time when they laid off a huge number of staff, which, in fact, was not required at that point in time. A healthy HR policy was definitely needed.

Industrial relations became poor at that point, and the management and employees were left in a bitter environment.

I agree with the right of the pilot to form an association, and they are definitely free to do so.

Not only Jet, but in our country, no organization has the right to terminate its employees on the grounds of forming any association. Here also, the HR policy seems to be very poor.

The subject of reinstatement is absolutely right by the pilot, but going on sudden or a whole leave is ridiculous.

My observation on HR policy is that I feel HR professionals are normally being used by management in most companies only to avoid their legal liabilities, which should not happen.

It will take time to strengthen HR in an organization to intervene in the unilateral policy decisions of the management.

I would request the rich expertise of HR to guide us on how to strengthen HR in an organization or for the management to take the consent of HR in laying down policies that definitely affect the employees.

Regards,

Santosh

Dear Mr. Kumar,

The actions of the Labour Commissioner and cases pending in courts do not have any direct or indirect relationship. The Labour Commissioner is not part of the judiciary; according to our Constitution, the Labour Commissioner falls under the Executive branch.

Whenever an industrial dispute arises or is anticipated in public utility services, it is the responsibility of the officers in the Labour Department to conduct conciliation and resolve the dispute. The Labour Commissioner has fulfilled his duty as stipulated in Section 12 of the Industrial Disputes Act 1947. Regarding the rest of your comments, I have only one piece of advice: please don't read between the lines.

Regards,
KCS Kutty, Chennai

I agree with Santosh on the following point:

Employee relations and motivation became poor the day Jet decided to retrench staff en masse in the name of recession. HR professionals were only used for man-maintenance functions and felt tied hands. Why do other airlines have vibrant work cultures despite the recession?

I am sure that in the days to come, this event will turn out to be a great HRM case study. Is Harvard listening?

Regards.

Salary and perks are immaterial when it comes to determining whether an employee is a workman or not. If the salary mentioned in the ID is taken into consideration, then no one would fit within the definition of a workman.

Please let me know if you need any further assistance.

Hi, Air India has a pilots' union. There is not much of a difference between the salaries of the pilots of the two airlines. So there is no such thing that they cannot form a union.

Thank you, Mr. Kutty and Mr. Singh, who clarified my doubt that pilots are considered workmen under Industrial Disputes Act. My friend also referred to our apex court judgment. I request my friend to post the citation to view the detailed text of the apex court judgment.

Determining Workman Status

Now, to determine whether an individual is a workman or not, salary is not the criterion. It is the nature of duties that decides whether an individual is a workman. The Supreme Court has issued a judgment in which a pilot of Indian Airlines was granted the status of a workman despite drawing a salary in the lakhs per month.

Reference: https://www.citehr.com/156542-defini...#ixzz3BviIu82C

Hi, as someone mentioned above regarding the pilot being considered a workman as per the SC Judgment, could you please send me a copy of that judgment or provide the reference number at your earliest convenience? Also, kindly share the latest embedded IDA (especially the Workmen Definition).

Classification of Telecom Field Drive Test Engineer

Is a Telecom Field Drive Test Engineer classified under the workmen category? He has no supervisory or administrative roles, receives a salary around 25,000 lump sum (including all allowances), works independently with his hands in the field, and does not oversee any team.

Thank you very much.

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