Is Our Standing Order Valid Without Union Concurrence? Seeking HR Insights on Handling Union Objections

Hi, I have recently joined a company in Karnataka as an HR manager. My doubt is regarding the standing order. Much before the union formation, the company had a standing order certified by the authority. In that document, only the Labour Department seal and sign are available (no union concurrence, as the union did not exist at that time). My doubt is as follows:

- Since this does not have union concurrence, is it valid? Though the Labour Department says it is valid because you have certified the same. As long as the management/union did not ask for an amendment with the concerned authority, it is still valid. Only when both sides request an amendment does it need to be amended.
- Recently, when we took disciplinary action based on the standing order, the union objected, stating that the standing order does not have their concurrence and is not valid.
- We do not want to take this up with the authority to amend at this juncture as we intended to do so during MOS/LTS.

Looking forward to expert opinion.

Certified Standing Orders

Certified Standing Orders are lawful, valid orders that apply to the establishment irrespective of any office-bearers of any unions. Certified Standing Orders may be amended as needed, not based on the whims and fancies of either the employer or the employees or their representative union. Your employer (punishing authority) has the legal locus standi to proceed with disciplinary action in accordance with existing certified standing orders, and the employer's prerogative is non-negotiable.

Please, as an HR functionary, you may, in consultation with your employer, explain to the union's office bearers the provisions of the Industrial Employment (Standing Orders) Act 1946 with relevant amendments thereto.

Kritarth Team of IR Consultants

Bengaluru

29 Nov 2019

Understanding Standing Orders under the Industrial Employment Act, 1946

Simply put, Standing Orders under the Industrial Employment (Standing Orders) Act, 1946, is a document of statutory force precisely setting down the conditions of employment in an industrial establishment. Once certified, it is fully valid until it is amended partially or replaced by a freshly certified one. A trade union coming into existence or any employee joining later after its certification cannot raise any plea against such orders on the ground of non-consultation. If they have any objection about any clause of the already certified Standing Orders, they are entitled to initiate a suitable amendment process. Certification of amendments depends upon many factors like a change in circumstances, modifications necessitated by statutory amendments to existing provisions of applicable labor laws, and the like. Therefore, either the employer or the employees, or both can apply for an amendment. Till such time, already certified standing orders will apply.

Validity of Standing Orders

The standing order certified by the authority shall remain valid until any amendment is proposed to the certifying authority. As per Section 10, Sub-section 1 of the Standing Order Act 1946, an approved Standing Order cannot be changed within 6 months of the certification or the last amendment unless both parties, i.e., the employer and workmen or a trade union or other representative body of the workmen, give consent through an agreement to do such an amendment. As mentioned in Subsection 2, the employer, or any workman, or a trade union, or another representative body of the workmen may apply to the certifying officer for an amendment of the pre-certified standing order with a proper application.

Union Objections and Management Actions

The union cannot object to the certified standing orders in force; you should act/punish according to your standing order in force. Let the union challenge the management action before the authority or court of law, asserting that the present Standing Order is an invalid document.

Once an authority certifies it, it shall be valid. The union cannot question its validity with the employer. If the union has any grievance with the certification, they need to approach the certifying authority and not the employer, since the employer also cannot make any changes without approval from the certifying officer.

You can reject the claim of the union on the validity of SOs and proceed as per the procedure laid down in your SOs.

Dear All,

Thank you for providing your valuable comments. I have the following queries:

1. Without the consent of the workers, can standing orders be approved by the Labor Commissioner? Is it valid?

2. Until the standing orders are approved, the Model Standing Orders apply to the company. Therefore, it does not matter if the standing orders are approved or not. You can also take action under the Model Standing Orders if necessary.

Please share your inputs.

Regards,
Arun Chaudhary

The process of certification under the Industrial Employment (Standing Orders) Act, 1946 is essentially a consultative process. Therefore, the Certifying Officer cannot exclude the participation of employees or their trade unions. Upon receiving the draft standing orders, the certifying officer will invite all unions mentioned in the application for discussions. If no union is present, the certifying officer will organize an election. Only the five representatives elected by the employees in such an election will be allowed to participate in the discussions before certification.

YES.

Certification Process Without Union

The Act laid down a procedure where there is no union, and the certifying officer would follow. If there is no union at the time of certification, it is not valid to nullify certification. Once the certifying officer followed the process and certified it, it cannot be challenged on the grounds of no union consent. Union existence is not a must for S Os certification.

Following Certified or Model Standing Orders

Regarding the second point, if certified standing orders are in place, you need to follow the same. If you do not have certified standing orders, then you can follow model standing orders. Please understand that model standing orders are to provide guidelines and may not cover all your requirements or service conditions.

Hope it is clear.

For certification of standing orders, it is not mandatory that there should be a union; any five representatives of workers may also sign the standing order. Once certified by the authority, the standing order is valid until any further amendments are filed by the workers or by the management.

Dear All,

Could any of you provide clarification on who the certifying authority is for the standing order and offer guidance on the standing order?

Thank you.

Dear all,

Only five members are required to sign the Standing Orders who are selected by the Labour Inspector through a voting process or with his consultation. No trade union member is required in this regard. If an establishment has more than 100 employees, a certified standing order is mandatory.

Regards,
Sunil