Speech by senior lawyer Balan Haridas at meeting organized by New Democratic Labour Front – IT Employees Wing on 10-01-2015 in Chennai. In this speech Mr. Balan explains the salient points of Industrial Dispute Act and other laws related to rights of workmen including IT/ITES employees.
- How does ID Act look at individual grievances and collective grievances?
- The importance of Trade Union under this act.
- The role of trade unions in proper development of an industry.
- What role does the Shops and Establishments Act play?
- Will joining a Trade Union lead to job loss?
- Will an agreement signed with the company take away my legal rights?
- What does the law say about layoffs, terminations and retrenchments?
- Can we approach the court to stop mass layoffs by a company?
- When can an employee’s services be terminated? Under what conditions?
- What about the rights of managers?
- Can we fight for regulating working hours and other work conditions inside the company? How?
- Can a company blacklist an employee?
Video Courtesy : Vinavu.com
Transcript of the speech
When the General Secretary of this union approached me and said that employees of IT sector wanted to form an union, I was really astonished, because IT industry was there for long and they have been exploited. He also told me that I can clarify doubts they may have.
As far as legislation is concerned, two legislations which concern us today are Industrial Disputes act 1947 and Trade Union Act 1926. The other legislation is Tamil Nadu Shops and Establishments act 1947.
As far as ID is concerned we can split it into 2 kinds of disputes. One is collective dispute, the other is individual dispute. A collective dispute is one concerning working condition – pay scale, working hours, increments, benefits, how it should be, how long wage scale should remain. As far as the ID act is concerned only Trade Union can expose collective dispute.
Only with regards to non employment or retrenchment individual can approach court directly. Individual grievances like pay scale, increment, discrimination all can be addressed only by Trade Union only.
As far as Trade Union act is concerned if 7 of you are there, you can form a Trade Union. If you are not organizing yourself, there are chances of victimization. Trade Unions are well trained on how to raise a problem, it is called collective bargaining in law. Forming a trade union is not a sin. After all you are exercising your democratic right. You work for better living conditions, not merely getting wages. That can be achieved only by forming a Trade Union under the Trade Union Act.
There will be some difficulties in law, certain employees to raise a dispute under ID act. For that there is protection under Tamil Nadu Shops and Establishments Act. When a person is dismissed from service, he can file a grievance under section 41/2 and redress his grievance. When certain employees are not covered under ID action they can take recourse under the TNSEA.
As far as queries are concerned,
1. Whether on joining union I lose my employment.
Simple answer, joining a trade union, employer can not terminate service. You are fully protected. It can not be an offense at all. Right to expression and Right to form an union are fundamental rights. Right to strike is a statutory right, it is protected under the ID act.
You need not feel afraid to join a Trade Union. There is a law protecting your right. Your rights are fully protected. If you want to express against employer, there is no disciplinary action. Honest criticism is welcome. Joining a Trade Union can not be sin, can not be a misconduct.
2.Whether company can prohibit joining a trade union
If joining trade union listed as misconduct by IT company, it is certainly ultra vires of the constitution. Such a rule or such an agreement can be set at naught by the court as contrary to fundamental right enshrined in the constitution. It can be never be an offense, even if you entered into, it is void ab initio (from inception). You can not be apprehensive about such an agreement.
3. If I lose a job, how to get redressal?
25,000 employees are going to be retrenched. A large body of workmen are going to be retrenched. Under the ID act there is a provision called section 25F, an employee who has completed 240 days of continuous service in an organization, can not be retrenched without complying with section 25F.
There is a provision called chapter 5B, in an industry more than 100 employees are employed, you can not retrench without getting prior permission from the government. Chapter 5B is debatable, because certain courts have said that chapter 5B may not be applicable.
4. Can we prevent it?
In any event, when a large body of workmen are sought to be displaced, there is a provision for preventing it by approaching appropriate forum, you can prevent an employer from discharging a large body of workmen. 25,000 families being uprooted, will be a monstrous situation as the courts say. When there is monstrous situation, high court will give a helping hand.
For Individual disputes, as far as Tamil Nadu is concerned, if an employee is dismissed from service it can only for misconduct. Even then they have to conduct an enquiry prove the charge and then only dismiss an employee.
The law says, an employee can not be dismissed from service without reasonable cause. If you are dismissed from service for misconduct also you can raise a dispute or for retrenchment also you can raise an Industrial Dispute. The appropriate forum is conciliation officer created by the government.
5. It is a 3 party process.
In a labour dispute, there is Employer, employee, government. Initially you have to approach government under section 2A-2 and conciliation officer will initiate a conciliation proceeding. You will have an opportunity to discuss and arrive at a settlement amicably. If the settlement is not forthcoming he has to give a failure report.
As far as non-employment is concerned in the state of Tamil Nadu, after getting failure report in labour court you can straight away approach labour court. Labour court will adjudicate. Your rights are protected under ID act.
6. What about supervisors and managers?
Certain persons supervisory managerial person, there is an exemption only for working hours.
Whereas under 41-2 there is a protection even for persons who are discharging supervisory, managerial work, you can file a case. A person who has put in 6 months of service can not be dispensed with without a reasonable cause. A person who is dismissed even a supervisory or managerial cadre can approach appropriate forum that is the Deputy Commissioner form and he can get a redressal.
7. How to improve working conditions?
For working conditions, only solution is raising a charter of demands. You can tell a union, union will formulate them and industrial dispute can be raised under section 2k.
A person working till 2 am and again asked to come at 8 am. You have to set right these things. Self respect is important. We are not machines, we have heart and soul. That is why trade unions are there to extend a helping hand.
If no conciliation is reached, labour courts are there to adjudicate and pass an award.
8. Black listing by employers
The question, if you join a Trade Union, they will black list you? That is thoroughly illegal. That is totally unconstitutional. Trade Union can challenge in court. That is curtailing democratic right of an individual. Every person has to assert their rights, they have a bundle of right.
9. Can we fight this individually?
You can not do individually, you can be vicitimized. If you form an union employer will also be guarded. You can not ask people who have given their life and blood to suddenly to go out. It is a inhuman behaviour.
You have to think aloud and take collective action, to prevent this.
10. If you file a case, how long it will take?
That should not deter a person. If you do not approach court, you will be continued to be exploited. But when a large body of workmen are terminated suddenly, you need to something. In labour laws can be expedited compared to civil case. Sometimes it gets over in one month.
We call upon IT employees not to put in their papers even when threatened by management. We call upon all of them to join us in our effort to organize a trade union in this sector.
New Democratic Labour Front
I.T Employees Wing
Phone : 90031 98576