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Unfair Labour Practices

The main concern of labor relations is on the relationships that exist between the employer and the employee, and the labor practices that arise from the interests of such relationships. Labor relations can be of both international and domestic firms. All deal with matters such as remuneration, job security, minimum wages, health and safety, social security, and working time. Therefore, any form of violation of such laws by employers or unions is termed unfair labor relations.

It has been codified under Schedule V of the Act, restraining the employer from:
  1. Interfering with the formation of trade union movement by the workmen and discouraging employers sponsored trade unions.
  2. Discharging workmen by way of victimization by putting up false cases.
  3. Conduct of the management in breaking strikes by engaging contract workmen.
  4. Indulging in malafide transfer
  5. Employing badly, casuals and temporaries for long years, etc.

Unfair Labour Practices
Section 25-T:
Prohibition of unfair labor practice:- No employer or workman or a trade union, whether registered under the Trade Unions Act, 1926, or not, shall commit any unfair labor practice.

Section 25-U:
Penalty for committing unfair labor practices:- Any person who commits any unfair labor practice shall be punishable with imprisonment for a term which may extend to six months or with a fine which may extend to one thousand rupees or with both.

A new schedule V has been added by the Industrial Disputes (Amendment) Act, 1982. In this Schedule, unfair labor practices have been defined. It contains a list of such practices as are treated unfairly on the part of the employers or their Trade Unions, or the part of workmen and their Trade Unions.
  1. Unfair labor practices on the part of employers and trade unions of employers.
    1. To interfere with, restrain from, or coerce, workmen in the exercise of their rights to organize, form, join, or assist a Trade Union or to engage in concerted activities for collective bargaining or other mutual aid or protection, that is to say:
      1. Threatening workmen with discharge or dismissal, if they join a trade union;
      2. Threatening a lock-out or closure, if a trade union is organized;
      3. Granting wage increases to workmen at crucial periods of the union organizations, undermines the efforts of the trade union at the organization.
    2. To dominate, interfere with or contribute support, financial, or otherwise, to any trade union, that is to say:
      1. An employer taking an active interest in organizing a trade union of his workmen; and
      2. An employer showing partiality or granting favor to one of several trade unions attempting to organize his workmen or to its members where such a trade union is not a recognized trade union.
    3. To establish employer-sponsored trade unions of workmen
    4. To encourage or discourage membership in any trade union by discriminating against any workman, that is to say:
      1. Discharging or punishing a workman, because he urged other workmen to join or organize a trade union;
      2. Discharging or dismissing a workman for taking part in the strike (not being a strike which is deemed to be an illegal strike under this act);
      3. Changing seniority rating of workmen because of trade union activities;
      4. Refusing to promote workmen to higher posts on account of their trade union activities;
      5. Giving unmerited promotions to certain workmen to create discord amongst other workmen, or to undermine the strength of their trade union;
      6. Discharging office-bearers or active members of the trade union on account of their trade union activities.
    5. To discharge or dismiss workmen:
      1. By way of victimization;
      2. Not in good faith, but the colorable exercise of the employer's rights;
      3. By falsely implicating a workman in a criminal case on false evidence or concocted evidence;
      4. For patently false reasons;
      5. On untrue or trumped-up allegations of absence without leave;
      6. In utter disregard of the principles of natural justice in the conduct of a domestic inquiry or with undue haste;
      7. For misconduct of a minor technical character, without having any regard to the nature of the particular misconduct or the record or service of the workman, thereby leading to disproportionate punishment.
    6. To abolish the work of a regular nature being done by workmen, and to give such work to contractors as a measure of breaking a strike.
    7. To transfer a workman mala fide from one place to another, under the guise of following management policy.
    8. To insist upon individual workmen, who are on a legal strike to sign a good conduct bond, as a precondition to allowing them to resume work.
    9. To show favoritism or partiality to one set of workers regardless of merit.
    10. To employ workmen as "badlis", casuals or temporaries, and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.
    11. To discharge or discriminate against any workman for filing charges or testifying against an employer in any inquiry or proceeding relating to any industrial dispute.
    12. To recruit workmen during a strike that is not illegal.
    13. Failure to implement award, settlement, or agreement.
    14. To indulge in acts of force or violence.
    15. To refuse to bargain collectively, in good faith with the recognized trade unions.
    16. Proposing or continuing a lock-out deemed to be illegal under this Act.
  2. Unfair labor practices on the part of workmen and trade unions of workmen.
    1. To advise or actively support or instigate any strike deemed to be illegal under this Act.
    2. To coerce workmen in the exercise of their right to self-organization or to join a trade union or refrain from, joining any trade union, that is to say:
      1. For a trade union or its members to picket in such a manner that non-striking workmen are physically debarred from entering the workplaces;
      2. To indulge in acts of force or violence or to hold out threats of intimidation in connection with a strike against non-striking workmen or managerial staff.
    3. For a recognized union to refuse to bargain collectively in good faith with the employer.
    4. To indulge in coercive activities against the certification of a bargaining representative.
    5. To stage, encourage, or instigate such forms of coercive actions as willful, "go-slow", squatting on the work premises after working hours, or "gherao" of any of the members of the managerial or other staff.
    6. To stage demonstrations at the residence of the employers or the managerial staff members.
    7. To incite or indulge in willful damage to employer's property connected with the industry.
    8. To indulge in acts of force or violence or to hold out threats of intimidation against any workman to prevent him from attending work.

It is difficult to define and lay down an exhaustive test of unfair labor practice, but it may be said that any practice, which violates the directive principles of state policy contained in Article 43 of the constitution and such other articles as deal with decent wages and living conditions for workmen amount to an unfair practice.

In Devendra Kumar C. Solanki v. State of Gujarat and Others, Gujarat High Court has held that the work done by the concerned workmen was the same as that of permanent workmen and they also worked for a similar number of hours. But, the discrepancy in payment of wages between permanent and non-permanent workmen is alarming, same to be construed as unfair labor practices as defined under section 2(ra) of the Act.

In Eveready Flash Light Company v. Labour Court Bareilly, the company appointed a workman on a daily rate basis on 18th January 1958 after trying him for four days. On 12th April 1958, he was appointed on probation for 6 months which could be further extended by the company at its discretion. He was elected as a member of the working committee of the union on September 9, 1958. On 10th September, the management served him with a notice of warning that despite repeated warnings he had shown no improvement in his work.

The warning was repeated on 11th October. On 21st November 1958, his services were terminated. The union raised an industrial dispute and the Labour Court found no justification for putting the workman on probation after he had been tried and that the condition of putting him on probation as communicated by letter of 12th April was just to delay making him a permanent employee.

The company preferred a petition in the Allahabad High Court. It was held that:
A condition of employment which is designed to invest the employer with arbitrary power to keep the workmen at his mercy as regards his chance of being made permanent and to eventually lead to depriving him of such chance would amount to unfair labor practice.

It was further observed that it is not necessary that there must be numerous transactions before the employer could be branded guilty of unfair labor practice and that he could be held guilty of such practice in respect of one contract of employment only.

In Hind Construction and Engineering Co. Ltd. v. Their Workmen, it was a custom that when a holiday fell on Sunday, the next day was declared a holiday. In 1961, 1st January fell on Sunday but the company refused to declare the 2nd January a holiday. 11 permanent employees refused to work on that day. They were suspended, charge-sheeted, and dismissed after the holiday a domestic inquiry.

The union raised an Industrial Tribunal held that the punishment of dismissal for one day's absence was unjustifiably severe and amounted to victimization. In a special leave to appeal the case was considered by the Supreme Court wherein it was observed that "where the punishment is shockingly disproportionate, regard being had to the particular conduct and the record or is such that no reasonable employer would ever impose it in like circumstances, the Tribunal may treat the imposition of such punishment as itself victimization or unfair labor practices".

In the present case, the punishment was such that no reasonable employer would have imposed it in like circumstances unless it served some other purpose. The absence of 11 workmen on a particular day was an act of misconduct for which a lesser punishment of warning, fine, or treating the same as leave without pay might be imposed.

If badli, casuals, or temporary workers are continued for long years, the object is manifestly to deprive them of the status of permanent employees and this amounts to unfair labor practice on the part of the employer.

In Gangadhar Pillai v. Siemens Ltd., the appellant served in the respondent company from 1978 as a helper and his service came to an end in the year 2000. He challenged it as an unfair labor practice under item 6 of schedule IV of M.R.T.V. and P.V.L.P. Act, 1971, and failed in his attempt to get a declaration that his ending of service was unfair labor practice. Ultimately he fought his case up to Supreme Court and finally lost thereto.

The Supreme Court observed that only because a person had intermittently been engaged as a casual or temporary employee for several years, the same by itself might not lead to the conclusion that such appointment had been made with the object of depriving him of the status and privilege of a permanent employee.

It was also pointed out that the burden to prove unfair labor practice was on the workman. There had been breaks in service but the same was rightly held as not artificial ones. Engagement of the appellant workman causing to end on completion of a period of contract was held retrenchment coming within the purview of Section 2(oo)(bb) of the Industrial Disputes Act, 1947. Expressing its satisfaction that the respondent was able to provide some succor to the appellant, the Supreme Court dismissed the appeal as without merit.

Victimization means one of two things. One is when the workman concerned is innocent and yet he is punished because he has in some way displeased the employer. For example, by being an active member of a Union of workmen who was acting prejudicially to the interest of the employer.

The second instance is where an employee has committed an offense but is given a punishment quite out of proportion to the gravity of the offense, simply because he has incurred the displeasure of the employer, or where the punishment is shockingly disproportioned to the misconduct or is such as no reasonable employer would impose under the circumstances. If an employer punishes an employee for a wrong that someone else has committed, it would be right to infer that the employee is victimized by being made a scapegoat to him.

It is difficult to define an exhaustive or conclusive test of Unfair Labour Practices, but it may be said that any practices which violate the directive principles of state policies contained in Article 43 of the constitution and also other provisions made under the delegated legislation.

  • Labour & Industrial Law, Prof. S. N. Mishra (28th Ed.)

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