Unfair labour practices

Unfair Labour Practices

Concept of Fairness
‘Fairness’ can be used as a synonym for equitable, reasonable, impartial, just, honest,
balanced, according to the rules, right1. All these synonyms contain a high degree of ethical
and moral notions and consequently so do the notion of fairness. 2 As such the notion of
fairness is not only difficult to define but is also flexible. 3 Different people from different
cultures and backgrounds also might have different views as to exactly what constitutes
fairness. As Baxter points out, fairness is a concept that is ambiguous and difficult to
ascertain. Consequently its meaning must be deduced with reference to surrounding
circumstances.

Background of labour practices4
The main concern of labour relations is on the relationships that exist between the employer
and the employee, and the labour practices that arise from the interests of such relationships
(Cooper, 2005). Labour relations can be of both international and domestic form and all deal
with matters such as remuneration, job security, minimum wages, health and safety, social
security and working time amongst others (Holley, Jennings, and Wolters, 2011). Any form
of violations of such laws by employers or unions is therefore termed as unfair labour
relations.

Any employment relationship has three stages:
1. a beginning: when the employee applies for employment
2. a middle: as long as the employment relationship continues
3. an end: when the employee is dismissed, resigns or retires

Unfair conduct of an employer during the course of employment
1. refusal to promote or demotion
2. unfair conduct during the course of the probation period
3. refusal to provide benefits or training
4. unfair suspension
5. disciplinary action short of dismissal such as warnings or suspension without pay or
transfers

H.D. Singh vs Reserve Bank Of India & Ors5
The 5th Schedule to the Industrial Disputes Act contains a list of unfair labour practices as
defined in Section 2(ra). Item 10 reads as follows:
"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
1
See Poolman Principles of Unfair Labour Practices (1985) 42,and SADWV v Master Diamond Cutters
Association of SA 1982 ILJ 87 (IC)
2
In The Press Corporation 1992 ILJ 391 (A) at 400 C Grosskopf JA in referring to the determination of unfair
labour practices stated: ‘In my view a decision of the court pursuant to these provisions is not a decision on a
question of law in the strict sense of the term. It is the passing of a moral judgment on a combination of
findings of fact and opinions
3
See Cameron, Cheadle and Thompson The New Labour Relations Act (1989) at 139
4
http://customwritingtips.com/component/k2/item/12016-research-paper-on-unfair-labor-practice.html?
tmpl=component&print=1
5
1986 AIR SC 132, 1985 SCR Supl. (2) 842

workmen." We have no option but to observe that the bank, in this case, has indulged in
methods amounting to unfair labour practice. The plea that the appellant was a badli worker
also has to fail.

Haryana State Electronics Development Corporation Ltd. v. Mamni6
Therein the action on the part of the employer to terminate the services of an employee on
regular basis and reappoint after a gap of one or two days was found to be infringing the
provisions of Section 25-F of the Industrial Disputes Act. This Court held: In this case the
services of the respondent had been terminated on a regular basis and she had been
reappointed after a gap of one or two days. Such a course of action was adopted by the
Appellant with a view to defeat the object of the Act.

Union of India and Ors. v. Ramchander and Anr. (2005) 9 SCC 365
Wherein again engagement of the workman on a regular basis for a period of 89 days on
each occasion was held to be impermissible in law stating:
The respondents were appointed against casual labourers but nevertheless they continued in
service for four spells and that too their reappointments were made immediately within a
few days of termination on completion of 89 days. It shows that sufficient work was
available with the employer and had there been no termination on completion of 89 days,
they would have completed 240 days of continuous employment. In that view of the matter
the appellants had violated Section 25-G of the Industrial Disputes Act. We do not find any
error or illegality in the decision rendered by the Division Bench. We direct the appellants
to re-employ the respondents as daily-wagers. In that case, this Court did not lay down any
law having universal application. Directions were issued in the facts and circumstances of
the case. It is worthwhile to note that this Court did not direct regularization of services of
the workman but merely directed Appellants therein to reemploy Respondents as daily
wagers. The said decision, therefore, does not have any application in the instant case .

[THE MAHARASHTRA RECOGNITION OF TRADE UNIONS AND
PREVENTION OF UNFAIR LABOUR PRACTICES Act, 1971]
An Act to provide for the recognition' of trade unions for facilitating collective 'bargaining
for certain undertakings; to state, their rights and obligations; to confer certain powers on,
unrecognised unions; to provide for declaring certain strikes and lock-outs, as illegal strikes
and lock outs; to define and .provide for the prevention of certain unfair labour practices;
to constitute courts, (as, independent machinery) for carrying, out the' purposes of , "
according 'recognition to trade unions and .for enforcing the provisions relating to unfair
practice to 'provide for matters' connected with the purposes aforesaid.'.

Sec- 3(16) “unfair labour practices" means unfair labour practices as defined in section 26

CHAPTER VI (UNFAIR LABOUR PRACTICES)
Sec-26: In this Act, unless the context requires otherwise, 'unfair labour practices' mean
any of the practices listed in Schedules II, III and IV.7

6
MANU/SC/8137/2006 : (2006)IILLJ744SC

7
[THE MAHARASHTRA RECOGNITION OF TRADE UNIONS AND PREVENTION OF UNFAIR LABOUR
PRACTICES Act, 1971]

[THE MAHARASHTRA RECOGNITION THE INDUSTRIAL DISPUTES ACT 1947
OF TRADE UNIONS AND PREVENTION
OF UNFAIR LABOUR PRACTICES Act,
1971]
SCHEDULE II THE FIFTH SCHEDULE
See Section 2(ra)
Unfair Labour Practices

Unfair Labour Practices on the part of I. On the part of employers and
employers trade unions of employers
.. .
1. To interfere with, restrain or coerce 1. To interfere with, restrain from, or coerce,
employees in the' exercise, of their right to workmen in the exercise of their right to organise,
organise, form, join or assist a trade union and form, join or assist a trade union or to engage in
to engage in concerned activities for the concerted activities for the purposes of collective
purposes of collective bargaining or other bargaining or other mutual aid or protection, that
mutual aid or protection, that is to say- is to say:
(a) Threatening employees with discharge or (a) Threatening workmen with discharge or
dismissal, if they join a union; dismissal, if they join a trade union;
(b) Threatening a "lock out or closure, if a union (b) Threatening a lock-out or closure, if a trade
should be organised; union is organised;
(c) Granting wage increase to employees of (c) Granting wage increase to workmen at crucial
crucial period of union organisation, with view to periods of trade union organisation, with a view to
undermining the efforts of the union at undermining the efforts of the trade union
organisation. organisation.
2. To dominate, interfere" with, or contribute, 2. To dominate, interfere with or contribute
support-financial or otherwise- to any union, that support, financial or otherwise, to any trade union,
is to say- that is to say:
(a) an employer taking an active interest in (a) an employer taking an active interest in
organising a union of his employees; and organising a trade union of his workmen; &
(b) An employer showing partiality or granting (b) An employer showing partiality or granting
favour to one of several unions attempting to favour to one of several trade unions attempting
organise his employees or to its members, to organise his workmen or to its members, where
where such a union is not a recognised union. such a trade union is not a recognised trade
3. To establish employer sponsored unions. union.
3. To establish employer sponsored trade unions
4. To encourage or discourage membership in of workmen.
any union by discriminating, against any 4. To encourage or discourage membership in
employee, that is to say- any trade union by discriminating against any

(a) Discharging or punishing an employee workman, that is to say:
because he urged other employees to join or (a) discharging or punishing a workman, because
organise a union; , he urged other workmen to join or organise a
(b) Discharging or dismissing an employee for trade union;
taking part in any strike (not being a strike which (b) discharging or dismissing a workman for
is deemed to be an illegal strike under this Act) ; taking part in any strike (not being a strike which
(c) Changing seniority rating of employees is deemed to be an illegal strike under this Act);
because of union activities; (c) changing seniority rating of workmen because
(d) Refusing to promote employees to higher of trade union activities;
posts on account of their union activities; (d) refusing to promote workmen to higher posts
(e) Giving unmerited promotions to certain on account of their trade union activities;
employees, with a view to show discord (e) giving unmerited promotions to certain
amongst the other employees,-or to undermine workmen with a view to creating discord amongst
the strength of their union; other workmen, or to undermine the strength of
(j) Discharging office-bearers or active union their trade union;
members, on account of their union activities. (f) Discharging office-bearers or active members
5. To refuse to bargain collectively, in good of the trade union on account of their trade union
faith, with the recognised union. activities.
6. Proposing or continuing a lock-out deemed to
be illegal under this Act.

SCHEDULE IV

General Unfair Labour Practices on the
Part of employer
1. To discharge or dismiss employees-
(a) by way of victimisation ;
(b) not in good faith, but in colourable exercise 5. To discharge or dismiss workmen
of the employer's rights; (a) by way of victimisation;
(c) by falsely implicating an employee in a (b) not in good faith, but in the colourable exercise
criminal case on false evidence or on concocted of the employer's rights;
evidence; (c) by falsely implicating a workman in a criminal
(d) for patently false reasons; case on false evidence or on concocted evidence;
(e) on untrue or trumped up allegation of (d) for patently false reasons;
absence without leave; (e) on untrue or trumped up allegations of
(f) in utter disregard of the principles of natural absence without leave;
justice in the conduct of domestic enquiry or (f) in utter disregard of the principles of natural
with undue haste; justice in the conduct of domestic enquiry or with
(g) for misconduct of a minor or technical undue haste;

character, without having any regard to the (g) for misconduct of a minor or technical
nature of the particular misconduct or the past character, without having any regard to the nature
record of service of the employee, so as to of the particular misconduct or the past record or
amount to a shockingly disportionate service of the workman, thereby leading to a
punishment. disproportionate punishment.
2. To abolish the work of a regular nature being
done by employees, and to give such work to 6. To abolish the work of a regular nature being
contractors as a measure of breaking a strike. done by workmen, and to give such work to
3. To transfer an employee’s mala fide from one contractors as a measure of breaking a strike.
place to another, under the guise of following 7. To transfer a workman mala fide from one
management policy. place to another, under the guise of following
4. To insist upon individual employees, who management policy.
were on legal strike, to sign a good conduct- 8. To insist upon individual workmen, who are on
bond, as a pre-condition to allowing them to a legal strike to sign a good conduct bond, as a
resume work.. pre-condition to allowing them to resume work.
5. To show favouritism or partiality to one set of
workers, regardless of merits. ' 9. To show favouritism or partiality to one set of
6. To employ employee as "badlis ", workers regardless of merit.
casuals or temporaries and to continue 10. To employ workmen as "badlis",
them as such for years, with the object casuals or temporaries and to continue
of depriving them of the status and them as such for years, with the object of
privileges of permanent employees. depriving them of the status and
7. To discharge or discriminate against any privileges of permanent workmen.
employee for filing charges or testifying against 11. To discharge or discriminate against any
an employer in any enquiry or proceeding workman for filing charges or testifying against an
relating to any industrial dispute. employer in any enquiry or proceeding relating to
8. to recruit employee during a strike which is any industrial dispute.
not an illegal strike 12. To recruit workmen during a strike which is
9. Failure of award, settlement or agreement not an illegal strike.
10. To indulge in illegal strike, force or violence. 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 recognised trade unions.
16. Proposing or continuing a lock-out deemed to
be illegal under this Act.

SCHEDULE III THE FIFTH SCHEDULE
Unfair Labour Practices on the part of II. On the part of workmen and
Trade Unions trade unions of workmen

1. To advise or actively support or instigate any 1. To advise or actively support or instigate any
strike deemed to be illegal under this Act. " strike deemed to be illegal under this Act.

2. To coerce employees in the exercise of their 2. To coerce workmen in the exercise of their right
right to self-organisation or to join unions or to self-organisation or to join a trade union or
refrain from joining any union, that' is to say- refrain from joining any trade union, that is to say :
(a) For a union or its members to picketing in (a) for a trade union or its members to picketing in
such a manner that non striking employee are such a manner that non-striking workmen are
physically debarred from entering the work physically debarred from entering the work
place. places;
(b) to indulge, in acts of force or violence or to (b) to indulge in acts of force or violence or to hold
hold out threats of intimidation in connection out threats of intimidation in connection with a
with a strike against non-striking employees or strike against non-striking workmen or against
managerial staff managerial staff.
3. for a recognised union to refuse to bargain 3. For a recognised union to refuse to bargain
collectively in good faith with the employer. collectively in good faith with the employer.
4. To indulge in coercive activities against 4. To indulge in coercive activities against
certification of a bargaining representative. certification of a bargaining representative.
5. To stage, encourage or instigate such forms 5. To stage, encourage or instigate such forms of
of coercive actions as wilful " go slow" squatting coercive actions as wilful "go slow", squatting on
on the work premises after working hours or " the work premises after working hours or "gherao"
gherao " of any of the members of the of any of the members of the managerial or other
managerial or other staff. staff.
6. To stage demonstration at the residences of 6. To stage demonstrations at the residences of
the employers or the managerial staff members. the employers or the managerial staff members.
7. To incite or indulge in wilful 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
with a view to prevent him from attending work.

Unfair labour practices

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