Dear Seniors, I am working in a PSU Iron Mine. Last year, a Trade Union raised an ID case before the RLC(C) Office concerning some issues of contract laborers, and the conciliation proceedings are ongoing. In the meantime, the Registrar of Trade Union has canceled the Union's registration. Can we refuse to sit for any further conciliation proceedings before RLC(C) based on the fact that the union is deregistered?
From India, Calcutta
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3From India, Calcutta
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I think you are raising this question on behalf of the management. The answer is 'NO'. It is not necessary that an industrial dispute should be raised by a registered Trade Union only. The subsequent cancellation of its registration by the Registrar of the Trade Unions under the Trade Unions Act, 1926, therefore, will not alter the Union's representative character in a dispute already raised by it.
From India, Salem
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From India, Salem
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Thanks, Sir. Yes, you are right, I am representing Management on the referred ID case. However, Sir, I would like to refer to cl. 36(a) of the ID Act, wherein it is stated that: "A workman who is a party to a dispute shall be entitled to be represented in any proceeding by any member of the executive or other office bearer of a registered trade union." So, won't the deregistration of the union take away its right to represent the workmen in the conciliation proceedings?
From India, Calcutta
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From India, Calcutta
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Yours is a very intelligent question sprouting from a highly technical point of view. Let me attempt to answer it to the best of my ability. First and foremost, I would like to point out that the ultimate objective of the Industrial Disputes Act, 1947, is the speedy and peaceful resolution of disputes between the partners of production. The entire scheme of the Act is designed in a way that collective bargaining is the underlying principle in the modes of redressal.
In that perspective, I would suggest that Sec. 36, which deals with the representation of parties, should be read in conjunction with Sec. 2k, which defines what an industrial dispute is. Except for a dispute relating to the non-employment of an individual workman, all other disputes under the Industrial Disputes Act, 1947, can only be raised by the body of workmen or trade union based on the principle of espousal theory. Therefore, in a collective dispute u/s 2k, the trade union plays an inseparable dual role - one as a party to the dispute vis-a-vis the employer and the other as a representative of the workmen whose cause is espoused. This is the essence of my earlier answer.
Regarding the right to representation u/s 36(1), a workman has three choices as per clauses (a), (b), and (c) of the Section, and he can exercise any one of the choices according to its availability. In a situation like the one you have mentioned, the problem should be viewed from the perspective of the parties to the dispute and not solely from that of the representatives.
Thank you.
From India, Salem
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In that perspective, I would suggest that Sec. 36, which deals with the representation of parties, should be read in conjunction with Sec. 2k, which defines what an industrial dispute is. Except for a dispute relating to the non-employment of an individual workman, all other disputes under the Industrial Disputes Act, 1947, can only be raised by the body of workmen or trade union based on the principle of espousal theory. Therefore, in a collective dispute u/s 2k, the trade union plays an inseparable dual role - one as a party to the dispute vis-a-vis the employer and the other as a representative of the workmen whose cause is espoused. This is the essence of my earlier answer.
Regarding the right to representation u/s 36(1), a workman has three choices as per clauses (a), (b), and (c) of the Section, and he can exercise any one of the choices according to its availability. In a situation like the one you have mentioned, the problem should be viewed from the perspective of the parties to the dispute and not solely from that of the representatives.
Thank you.
From India, Salem
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Dear Baishali,
Yours is a very intelligent question, though it arises from a highly technical point of view. Anyway, let me try to answer as far as I can. Before addressing your latest question, first and foremost, I would like to point out that the ultimate objective of the Industrial Disputes Act, 1947, is the speedy and peaceful resolution of disputes between the partners in production. Hence, the entire scheme of the Act is designed in such a way that collective bargaining is the undercurrent in the modes of redressal.
In that perspective, I would suggest that Sec. 36, which deals with the representation of parties, should be read in conjunction with Sec. 2k, which defines what an industrial dispute is. Except for a dispute relating to the non-employment of an individual workman, all other disputes under the Industrial Disputes Act, 1947, can only be raised by the body of workmen or trade union based on the principle of espousal theory. Therefore, in a collective dispute u/s 2k, the trade union has an inseparable dual role - one as a party to the dispute vis-a-vis the employer and the other as a representative of the workmen whose cause is espoused. This is the essence of my earlier answer.
Regarding the Right to Representation u/s 36(1)
A workman has three choices as per clauses (a), (b), and (c) of the Section, and he can exercise any one of the choices according to its availability. I think in a situation like the one you have mentioned, the problem should be viewed from the perspective of the parties to the dispute and not from that of the representatives.
In my opinion, according to Sec. 36 of the ID Act, outside representation is barred by the clause, and many judgments also favor that even ADVOCATES may not represent management and workmen in the labor court. Since there is a huge difference between both parties - one very strong and the other very poor - organizations have many resources. The ID Act aims to bring equality. Representation must be from the organization only, as provided by this clause. Sir, I would like to mention that in this particular case when trade union registration has been canceled, only the concerned workman can represent the case. No outside leader of the trade union may represent the case. Am I right? Please let me know.
Regards,
Manish Bali
From India, Delhi
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Yours is a very intelligent question, though it arises from a highly technical point of view. Anyway, let me try to answer as far as I can. Before addressing your latest question, first and foremost, I would like to point out that the ultimate objective of the Industrial Disputes Act, 1947, is the speedy and peaceful resolution of disputes between the partners in production. Hence, the entire scheme of the Act is designed in such a way that collective bargaining is the undercurrent in the modes of redressal.
In that perspective, I would suggest that Sec. 36, which deals with the representation of parties, should be read in conjunction with Sec. 2k, which defines what an industrial dispute is. Except for a dispute relating to the non-employment of an individual workman, all other disputes under the Industrial Disputes Act, 1947, can only be raised by the body of workmen or trade union based on the principle of espousal theory. Therefore, in a collective dispute u/s 2k, the trade union has an inseparable dual role - one as a party to the dispute vis-a-vis the employer and the other as a representative of the workmen whose cause is espoused. This is the essence of my earlier answer.
Regarding the Right to Representation u/s 36(1)
A workman has three choices as per clauses (a), (b), and (c) of the Section, and he can exercise any one of the choices according to its availability. I think in a situation like the one you have mentioned, the problem should be viewed from the perspective of the parties to the dispute and not from that of the representatives.
In my opinion, according to Sec. 36 of the ID Act, outside representation is barred by the clause, and many judgments also favor that even ADVOCATES may not represent management and workmen in the labor court. Since there is a huge difference between both parties - one very strong and the other very poor - organizations have many resources. The ID Act aims to bring equality. Representation must be from the organization only, as provided by this clause. Sir, I would like to mention that in this particular case when trade union registration has been canceled, only the concerned workman can represent the case. No outside leader of the trade union may represent the case. Am I right? Please let me know.
Regards,
Manish Bali
From India, Delhi
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The dispute concerns the issues of contract labour. If there is no union of regular workmen sponsoring it, then the conciliation proceedings cannot continue. Since there is no master-servant relationship with the contract labour, and moreover, the trade union of regular workers does not exist on this date, you can very well seek that the conciliation proceedings be closed. The question of outside representation as per Section 36 is subsidiary to the main issue and would arise only if the dispute persists.
Regards,
KK
From India, Bhopal
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Regards,
KK
From India, Bhopal
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What Mr. Umakantan said has substance, having regard to the spirit and objectives of the Industrial Disputes Act and on a conjoint reading of the relevant provisions of the ID Act, as he has so convincingly brought out. But I would like to put forward a different view.
Sec.36 of the ID Act
Sec.36 of the ID Act is a specific section with regard to the representation of workmen and employers in any proceeding under the ID Act, and no other section deals with the subject. Therefore, if any issue regarding representation arises, it needs to be resolved in accordance with the provisions of Sec.36 only.
Rationale for Registered Trade Union
The rationale for insisting on a registered trade union as the representative of workmen can be seen from the provisions of Sec.10 of the Trade Unions Act, which specifies the grounds on which the registration can be canceled. Some of the grounds are that the trade union ceases to exist, obtained registration by fraud, or the registered union ceases to have the requisite number of workmen. So, what if the grounds for cancellation are one of the above, and what becomes of the fate of the settlement if the management arrives with such a union assuming that it ceased to exist on the date of the settlement due to the cancellation of registration, especially when it is a collective dispute?
The proper course will be to bring to the notice of the Conciliation Officer the fact of the cancellation of registration and the probable consequences thereof and abide by his ruling. It is always possible to have two or more views on a legal issue, and this is one view that is possible.
Regards,
B. Saikumar.
From India, Mumbai
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Sec.36 of the ID Act
Sec.36 of the ID Act is a specific section with regard to the representation of workmen and employers in any proceeding under the ID Act, and no other section deals with the subject. Therefore, if any issue regarding representation arises, it needs to be resolved in accordance with the provisions of Sec.36 only.
Rationale for Registered Trade Union
The rationale for insisting on a registered trade union as the representative of workmen can be seen from the provisions of Sec.10 of the Trade Unions Act, which specifies the grounds on which the registration can be canceled. Some of the grounds are that the trade union ceases to exist, obtained registration by fraud, or the registered union ceases to have the requisite number of workmen. So, what if the grounds for cancellation are one of the above, and what becomes of the fate of the settlement if the management arrives with such a union assuming that it ceased to exist on the date of the settlement due to the cancellation of registration, especially when it is a collective dispute?
The proper course will be to bring to the notice of the Conciliation Officer the fact of the cancellation of registration and the probable consequences thereof and abide by his ruling. It is always possible to have two or more views on a legal issue, and this is one view that is possible.
Regards,
B. Saikumar.
From India, Mumbai
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Thank you, Saikumar, for sharing your perspective on the long-standing issue that has been put on hold despite the recommendations from the higher judiciary for a necessary amendment to Sec. 36 of the Act. However, I have a different viewpoint based on the effective resolution of industrial disputes. If a union's registration is revoked due to fraud or similar reasons, it will indeed forfeit its right to representation as outlined in clause (a) of Sec. 36(1). Additionally, it will lose its status as a body corporate and immunity from civil suits in certain situations.
In my opinion, the deregistration of a union should not completely eliminate its right to representation in industrial disputes because unions are granted registration only after their establishment. Therefore, post-deregistration, the union's status transforms into that of an unregistered trade union. Consequently, I believe that the legitimacy of any agreement in which such a union is a signatory cannot solely be judged based on its deregistration status.
From India, Salem
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In my opinion, the deregistration of a union should not completely eliminate its right to representation in industrial disputes because unions are granted registration only after their establishment. Therefore, post-deregistration, the union's status transforms into that of an unregistered trade union. Consequently, I believe that the legitimacy of any agreement in which such a union is a signatory cannot solely be judged based on its deregistration status.
From India, Salem
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Thank you for your response, Mr. Umakantan. I have great regard for your views since they are always based on merit and substance. I have only provided a different perspective on the issue of non-registration of the trade union, considering the possible causes for the cancellation of registration and the prospect of a settlement being challenged by a rival union, if any. However, your view has substance since neither section 2(k) nor section 12 of the Industrial Disputes Act refers to a registered trade union. Therefore, I refrained from stating that such a union is totally barred from participating in conciliation but preferred to leave it to the Conciliation Officer to investigate the facts and effects of registration cancellation on the settlement before making a well-considered decision. A settlement reached in conciliation is presumed to be fair and just, carrying as much merit as that of an award, despite intervening issues like registration cancellation.
Regards,
B. Saikumar
HR & Labour Law Advisor
From India, Mumbai
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Regards,
B. Saikumar
HR & Labour Law Advisor
From India, Mumbai
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Dear Seniors,
Thank you for all your valuable comments. We had a long discussion with the RLC on this matter. The points raised by you were also presented for his perusal. As of today, the RLC has decided not to entertain any ID case raised by this de-registered Union.
Regards,
From India, Calcutta
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Thank you for all your valuable comments. We had a long discussion with the RLC on this matter. The points raised by you were also presented for his perusal. As of today, the RLC has decided not to entertain any ID case raised by this de-registered Union.
Regards,
From India, Calcutta
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It is nice of you to give the forum feedback about the final outcome of the conciliation proceedings, which very few members do. This feedback gives immense satisfaction to the learned senior members of the forum that their contributions are of help to the querist, either in clearing confusion, providing a correct direction to the thought process, or even directly adding to the substance of the subject under discussion. Thanks once again, and keep this habit alive.
Regards,
B. Saikumar
In-House HR & IR Advisor
From India, Mumbai
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Regards,
B. Saikumar
In-House HR & IR Advisor
From India, Mumbai
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