Can anyone help me? I am in the process of drafting an appointment letter and I would like to inquire if it is acceptable to include a clause such as: "Employees engaging in unlawful activities or joining a union may be subject to termination from the company."
Please advise.
Regards,
Uzma
From India, Mumbai
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Please advise.
Regards,
Uzma
From India, Mumbai
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You cannot challenge this point in court as it goes against the principles of collective bargaining. According to the Factories Act, this is not applicable. It's important to understand that a union is a key component of collective bargaining.
Best regards,
From India, Mumbai
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3Best regards,
From India, Mumbai
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Including such a condition amounts to an unfair labor practice. It is absolutely illegal.
Regards
From India, Bangalore
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Regards
From India, Bangalore
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Dear Uzma,
I am shocked and surprised at your query. In fact, I wonder how an HR professional can pose such a question (unless you are not in India). It certainly seems to reinforce what others often derogatorily say about HRM as a profession. You need to understand what Unfair Labour Practices are, in addition to refreshing your knowledge of HRM. There can be no excuse for holding such opinions that could potentially lead the company into legal trouble the moment the clause is included in the appointment letter.
Warm regards.
From India, Delhi
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I am shocked and surprised at your query. In fact, I wonder how an HR professional can pose such a question (unless you are not in India). It certainly seems to reinforce what others often derogatorily say about HRM as a profession. You need to understand what Unfair Labour Practices are, in addition to refreshing your knowledge of HRM. There can be no excuse for holding such opinions that could potentially lead the company into legal trouble the moment the clause is included in the appointment letter.
Warm regards.
From India, Delhi
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Dear Uzma,
Thank God you checked before including such a clause. If you had done so, you would have landed in serious trouble. You can never prevent anyone from joining a union. But you can certainly prevent employees from joining a union by following fair practices such as payment of reasonable wages (certainly on par or above the stipulated minimum wages) and all other provisions laid down under the Factories Act (at least most of them if not all), counseling them, and handling their grievances on time. All these measures, if done at the right time, can certainly prevent employees from the thought of forming a union.
M.V. Kannan
From India, Madras
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Thank God you checked before including such a clause. If you had done so, you would have landed in serious trouble. You can never prevent anyone from joining a union. But you can certainly prevent employees from joining a union by following fair practices such as payment of reasonable wages (certainly on par or above the stipulated minimum wages) and all other provisions laid down under the Factories Act (at least most of them if not all), counseling them, and handling their grievances on time. All these measures, if done at the right time, can certainly prevent employees from the thought of forming a union.
M.V. Kannan
From India, Madras
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Uzama,
In my opinion, it depends on the "Unitarial theory" (Bipartism) whereby most developing countries are now adopting in the workplace. Union density is declining or not practicable at all because the belief is that they may compromise the strategic plans of the organization. Additionally, most of the employed individuals recruited are professionals and qualified personnel.
In some situations, some international corporate entities investing in underdeveloped or developing countries bring with them these ideologies, which may hinder the local labor laws of the host country. However, in some countries, mostly in the Commonwealth, they have strong labor laws that protect the interests of employees. It is the right of the employee to join the union, which the law deems supreme. However, in developing countries like the USA, some parts of the UK like Germany, Austria, and Australia, labor laws or union affiliations are reduced. Hence, there is no need to join a union because the work pattern in those countries differs, such as part-time, casual, or flexible work. Additionally, in some instances, the country has overqualified personnel that flood the market and increase economic status, speaking for itself.
If your country has strong labor laws that protect the interests of the employee and the right for union membership, then the contract will be contradictory and misleading to cite in the appointment letter (Corporatism theory) or (Tripartism).
Pita Tuiloma
Fiji
From Fiji
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In my opinion, it depends on the "Unitarial theory" (Bipartism) whereby most developing countries are now adopting in the workplace. Union density is declining or not practicable at all because the belief is that they may compromise the strategic plans of the organization. Additionally, most of the employed individuals recruited are professionals and qualified personnel.
In some situations, some international corporate entities investing in underdeveloped or developing countries bring with them these ideologies, which may hinder the local labor laws of the host country. However, in some countries, mostly in the Commonwealth, they have strong labor laws that protect the interests of employees. It is the right of the employee to join the union, which the law deems supreme. However, in developing countries like the USA, some parts of the UK like Germany, Austria, and Australia, labor laws or union affiliations are reduced. Hence, there is no need to join a union because the work pattern in those countries differs, such as part-time, casual, or flexible work. Additionally, in some instances, the country has overqualified personnel that flood the market and increase economic status, speaking for itself.
If your country has strong labor laws that protect the interests of the employee and the right for union membership, then the contract will be contradictory and misleading to cite in the appointment letter (Corporatism theory) or (Tripartism).
Pita Tuiloma
Fiji
From Fiji
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Dear All,
In India, the law rightly deems it an unfair labor practice on the part of the employer:
1. to encourage or discourage membership in any union;
2. by discriminating against any employee through discharge or punishment because they urged other employees to join or organize a union;
3. to discharge or dismiss an employee for participating in any strike that is not deemed illegal;
4. to alter the seniority rating of an employee due to union activities;
5. to deny promotion to employees for engaging in trade union activities;
6. to offer unwarranted promotions to certain employees with the intention of sowing discord among others and undermining the strength of their union, as well as dismissing office-bearers or active union members due to their union activities.
The law is well settled that it must be strictly construed, given the severe consequences that follow when an unfair labor practice is committed by an employer or, in some cases, a trade union.
With Regards,
E-mail: rajanassociateslawfirm@eth.net
Off: 044-42620864, 044-55874684
From India, Bangalore
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In India, the law rightly deems it an unfair labor practice on the part of the employer:
1. to encourage or discourage membership in any union;
2. by discriminating against any employee through discharge or punishment because they urged other employees to join or organize a union;
3. to discharge or dismiss an employee for participating in any strike that is not deemed illegal;
4. to alter the seniority rating of an employee due to union activities;
5. to deny promotion to employees for engaging in trade union activities;
6. to offer unwarranted promotions to certain employees with the intention of sowing discord among others and undermining the strength of their union, as well as dismissing office-bearers or active union members due to their union activities.
The law is well settled that it must be strictly construed, given the severe consequences that follow when an unfair labor practice is committed by an employer or, in some cases, a trade union.
With Regards,
E-mail: rajanassociateslawfirm@eth.net
Off: 044-42620864, 044-55874684
From India, Bangalore
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Dear Uzma,
There is a lot of difference between an "unlawful activity" and "getting into or participating as a union member."
You can terminate the services of an employee for their participation in any unlawful activities, as prescribed under the laws of the country or international laws, but their becoming a member and participating in a lawfully formed union is not an unlawful activity.
If you are representing an organization within India, restricting any staff member from associating with any union or association would mean an unconstitutional act on the part of the organization. You and your organization would be violating the fundamental rights of the employees as citizens of India, as these fundamental rights are considered to be the base of the Constitution of India.
So, no doubt, you can include the clause of termination on account of unlawful activity, but not for becoming a member of a lawfully formed union or association. However, you can include the clause of termination on account of becoming a member or participating in an organization banned by the Government of India.
PS Dhingra
Vigilance & Transformation Management Consultant
Dhingra Group of Management & Educational Consultants
New Delhi
uzma.quraishi,
Hi, can anyone help me? I am making an appointment letter and want to know if I can include a clause such as, "If anyone engaging in unlawful activities or joining a union can be terminated from the company."
Please reply.
Regards,
Uzma
From India, Delhi
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There is a lot of difference between an "unlawful activity" and "getting into or participating as a union member."
You can terminate the services of an employee for their participation in any unlawful activities, as prescribed under the laws of the country or international laws, but their becoming a member and participating in a lawfully formed union is not an unlawful activity.
If you are representing an organization within India, restricting any staff member from associating with any union or association would mean an unconstitutional act on the part of the organization. You and your organization would be violating the fundamental rights of the employees as citizens of India, as these fundamental rights are considered to be the base of the Constitution of India.
So, no doubt, you can include the clause of termination on account of unlawful activity, but not for becoming a member of a lawfully formed union or association. However, you can include the clause of termination on account of becoming a member or participating in an organization banned by the Government of India.
PS Dhingra
Vigilance & Transformation Management Consultant
Dhingra Group of Management & Educational Consultants
New Delhi
uzma.quraishi,
Hi, can anyone help me? I am making an appointment letter and want to know if I can include a clause such as, "If anyone engaging in unlawful activities or joining a union can be terminated from the company."
Please reply.
Regards,
Uzma
From India, Delhi
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Hi, friend.
Such a clause is unheard of in the history of HR. It amounts to Unfair Labour Practice as per Section 2(ra) read with Schedule V, Part I, Clause 1 and 4 of the Industrial Disputes Act of 1947. An employer engaging in such practices is liable for prosecution under sections 25(T) & 25(U) and punishable with imprisonment for a term of 6 months, a fine of Rs. 1000, or both.
Please refer to Schedule V of the ID Act for details.
Regards
From India, Hyderabad
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Such a clause is unheard of in the history of HR. It amounts to Unfair Labour Practice as per Section 2(ra) read with Schedule V, Part I, Clause 1 and 4 of the Industrial Disputes Act of 1947. An employer engaging in such practices is liable for prosecution under sections 25(T) & 25(U) and punishable with imprisonment for a term of 6 months, a fine of Rs. 1000, or both.
Please refer to Schedule V of the ID Act for details.
Regards
From India, Hyderabad
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Dear All,
Thank you all for the unanimous opinion, which was obvious and shows the understanding and expertise in HR matters and maturity as HR professionals. Such doubts amounting to 'blunders' need to be explained to the HR person concerned, strongly and precisely, driven like a peg, so as to remain in memory. It is time our member Uzma responds to the postings.
Warm regards.
From India, Delhi
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Thank you all for the unanimous opinion, which was obvious and shows the understanding and expertise in HR matters and maturity as HR professionals. Such doubts amounting to 'blunders' need to be explained to the HR person concerned, strongly and precisely, driven like a peg, so as to remain in memory. It is time our member Uzma responds to the postings.
Warm regards.
From India, Delhi
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Dear All,
Thank you very much for your valuable comments and for clearing my doubt. Now that I am aware of the legality, I will keep this in mind and always be here to clear my doubts and learn from highly knowledgeable and experienced individuals like you.
Thanking You
Regards,
Uzma Quraishi
From India, Mumbai
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Thank you very much for your valuable comments and for clearing my doubt. Now that I am aware of the legality, I will keep this in mind and always be here to clear my doubts and learn from highly knowledgeable and experienced individuals like you.
Thanking You
Regards,
Uzma Quraishi
From India, Mumbai
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