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1

Nature and Scope

of

Labour & Employment

Laws

2

Labour & IR LawsThis presentation deals with the following:

Nature of law and various parts of a statute

Labour law: Nature & components; contract & labour law

Labour law and Indian Constitution

Labour law and managers: Changing notions

Labour law standards & principles of labour law

Changing values to guide labour law in new era

Legislative powerSC/HCs power in labour law matters

Main IR laws in India: TUAIDAIESOACLA

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Managers Concern about Labour Laws

Qs. on general labour law that are of interest to mgrs.:

1. What precisely is the scope of labour law?

2. What guides legislature in enacting labour law?

3. What are generally different parts of a labour Act?

4. In what way does labour law attackmarket realities?

5. Do labour laws cover all employees of an organization?

6. What are the main sources of labour law in India?

7. Are there any new guideposts of labour law in new era?

4

Managers Concern about Labour Laws contdQs. on General labour law that are of interest to mgrs.:

8. In what way does the Constitution guide labour laws?

9. Do all fundamental rights favour employers only?

10. Do the existing labour laws face any crisis in new era?

11. Who enacts labour laws and who enforces them?

12. Are quasi-judicial bodies under these laws same as court?

13. What remedies does one have against decisions of these bodies?

14. Is there any relationship between PIL and labour law

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5

Law

and

Labour Law

6

What is Law: A General Notion? It is a body of rules

Created by the state

LegislationSubordinate Legislation by Exe. Wing

To administer justiceCriminalCivil

SubstantiveProcedural

To its subjects

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General Components of Any Act

Objects and Definitions

Main provisionsSubstantiveProcedural

Penalties

Administrative framework: e.g. Inspectorate

Quasi-judicialbody

Provided in some of the Acts e.g. Income tax, PF Act, ESI Act

General Procedures

8

Let us Clarify Some General Terms

State

Parliament

Government

Legislative power

Judicial law-making

Public interest litigation

Constitution & its basic structure

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What is Labour Law?

It is a body of law

That deals with the following matters:

Conditions of employment

Employees health & Safety

Fixation & payment of wages

Payment of bonus

Industrial relations

Social security

And related matters

10

Nature of Labour Law

Employment market has its own logic of operation

Terms set mostly as per demand and supply

Market: freedom to entrepreneur/managershire/fire

Labour law distrusts market: regulates hire/fire

Its focus is: Non-exploitation, welfare state, equitability

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Nature of Labour Law contd

Labour laws also insist on minimum conditions

Minimum conditions are expected to be improved upon:

Unilaterally by employer

Or by contract/ settlement/ court decisions

Labour laws set up a system of sharing gains of enterprise

Opting out of labour law is generally not allowed

12

Contract Law

And Labour Law

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Approaches to Employment Contract

Contract

Thesis

State abstention

Freedom

Primacy to Fundl. Rights

Reflects unequal society

Labour Law (Status)

Anti thesis

State involvement

Labour law restrictions

Primacy to DPSP

Egalitarian society

14

Labour Law

and Indian Constitution:

Preamble, Fundamental Rights

and DPSP

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Indian law has its

source in the

legislative scheme

as laid down in

Indian Constitution

16

Labour Laws are Rooted in Preamble & Directive

Principles of State Policy of the Constitution of India

Preamble:We, the people of India,

having solemnly resolved to constitute India

into a Sovereign, Socialist, Secular, Democratic Republic

and to secure to all its citizens:

Justice, social, economic and political;

Liberty ofthought, expression, belief, faith and worship;Equality ofstatus and of opportunity;

and to promote among them all

Fraternity assuring the dignity of the individual

and the unity and integrity of the Nation;

in our constituent assembly this 26th of November, 1949,

do hereby adopt, enact & give to ourselves this Constitution.

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The state shall not deny to any person

equality before law

or the equal protection of the laws

within the territory of India

1. Equality before law:

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(1) All citizens shall have the right to:

(a) freedom of speech and expression

(b) assemble peaceably and without arms

(c) form associations or unions

(d) to move freely throughout Indian territory

(e) to reside and settle in any part of India

***

(g) to practice any profession, or to carry on any occupation,trade or business

Provided State can make any law that imposes reasonablerestrictions on the exercise of the right conferred by aboveclauses in the interest of:

..

public order

Art. 19 Protection of certain rights freedom of speech, etc.

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Traffic in human beings

andbegar and other similar forms offorced

labour are prohibited

and any contravention of this provision

shall be an offence

punishable in accordance with law

Nothing in this article shall prevent the State

from imposing compulsory service

for public purposes ..

Art. 23: Prohibition of traffic in human beings & forced labour:

20

No child below the age of14 years

shall be employed to work

in any factory or mine

or engaged in any other hazardous employment

Art. 24: Prohibition of employment of children in factories, etc.:

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1. The right to move the Supreme Court by appropriateproceedings for the enforcement of the rights conferredby this Part is guaranteed [Right to move SC]

2. The Supreme Court shall have power to issue directions ororders or writs, including writs in the nature ofhabeascorpus, mandamus, prohibition, quo warranto and certiorari,whichever may be appropriate, for the enforcement of anyof the rights conferred by this Part [Writs that SC Can Issue]

3. Without prejudice to the powers conferred on the SupremeCourt by Cl. (1) & (2), Parliament may by law empower

anyother court

to exercise within the local limits ofits

jurisdiction all or any of the powers exercisable by theSupreme Court under clause (2) [Special SC can be created]

4. The right guaranteed by this article shall not besuspended except as .. provided for by Constitution

Art. 32: Remedies for enforcemt. of rightsconferred by this Part:

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Directive Principles of State Policy of State policy

State to minimize inequality in income/status/opportunities (Art. 38)

Adequate means of livelihood, equal pay for equal work (Art 39)

Rights related to emplt., old age, sickness, disablement (Art. 40)

Just & humane conditions of work, & maternity relief(Art. 42)

Living wage (Art. 43) (Hence unionism & Collective bargaining)

Participation of workers in management (Art. 43-A)

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The provisions in this Part

not enforceable

but nevertheless fundamental

in the governance

the duty of the State to apply these

Art. 37: Application of the principles contained in this Part (IV):

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Directive Principles of State Policy contd Social order for promoting people welfare (Art. 38)

Justice: social, economic & political in national life

State to follow certain principles of policy (Art. 39)Right to adequate means of livelihood

(concentration of wealth be prevented)

Equal pay for equal work for men & women

Health & strength of workers not abused

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In cases ofunemployment,

old age,

sickness and

disablement,

and in other cases ofundeserved want

Art. 41: Right to work, to education and

to public assistance in certain cases:

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Provision forjust

and humane conditions

ofwork

and maternity relief

Art. 42: Just & Humane Conditions

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The state to secure,

by suitable legislation

or economic organization

to all workers, agricultural industrial

a living wage

Art. 43: Living wage, etc., for workers:

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The state shall take steps

to secure the participation of workers

in the mgt. of undertakings/organizations

engaged in any industry

43A. Participation of Workers in Management of Industrie

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Main Sources of

Labour Law

In India

30

Know: There are 4 Main Sources of Law in India

1. Acts of legislature: Pre- & post-independence Acts

2. Rules made under Acts

3. Cases decided by courts

4. Customs and Usages

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Labour Law Principles

and

Determinants of

Labour Law Standards

32

Principles of Labour Laws1. Social justice

Protection from work hazards

Equitable sharing of industrial gains

2. Social equity

Changing laws application as per situation

3. National Economy

4. International standards

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Labour law standards: Factors Determining

1. State of the economy

2. Societal ethos

3. Political compulsions

Countervailing power (of adversaries)Constitutional goals Ideological commitment of ruling party

4. Role/expectations of power groups

5. Power of Unions

6. Role/ rationality of the bureaucracy

7. Alliances in polity & society

8. International opinions

34

New Values

Guiding Labour Law

In the Era ofGlobalization

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35Labour law being reviewed globally

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Changing Values to Guide Labour Laws

1. Flexibility & supremacy ofcontract/market

2. Need for greater supremacy ofmanagers rights

That is why, greater incidence of hire and fire

3. Productivity first; social justice later

4. Promote cooperation rather than hostility

Need to reduce we-they feelings

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Changing values to Guide Labour Laws contd

5. Focus on individual employees needs than unions

6. Decent work rather than adversarial relations

7. Focus on minimum standards/attack union power

8. New IR has wider focus, not just employee class:

Consumer/women/safety/child labour

ILOs mantra is: Decent Work to all

38

Distribution of

Legislative Power

and

Its Implications on

Labour Laws

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Distribution of Legislative Power in India

Three Lists in Indian Constitution

List I: Central List

List II: State List

List III: Concurrent List

40

How to Reconcile Clash of Legislative Power

If a State Legislature Enacts a law and later on

Parliament enacts a different law on that subject:

Central law will prevail over state law

State legislature wants to pass a different law--which is repugnant to the central law

In that case State law to go for Presidents assent

--If yes; it prevails over the Central law

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41

Labour Law

and Appeals

to Higher Courts

42

Appeals from Labour Laws Most labour laws create a quasi-judicial body

Its decisions are seen as final

But two avenues to higher courts still remain

Article 136 (SLP)Article 266 & 227 of the Constitution

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Appeals in Labour Law Matters

Article 136: Special leave to appeal by the Sup. Court

(1) the Supreme Court may, in its discretion,

grant special leave to appeal from any judgment,

decree, determination, sentence or order in any

cause or matter passed or made by any court or

tribunal in the territory of India.

(2) clause (1) shall apply to any judgment court or

tribunal constituted by law to the Armed Forces..

44

Appeals in Labour Laws MattersArt. 226: Power of High Courts to issue certain writ

(1) Notwithstanding anything in article 32

every High Court shall have power, to issue to

any person or authority, including any Govt. directions,orders or writs,

including writs in the nature of

habeas corpus, mandamus, prohibition, quo warranto and

certiorari, or any of them,for the enforcement of any of the rights

conferred by Part III and for any other purpose.

(2) .

(3) .

(4) .

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Appeals in Labour Laws Matters

Art. 227: Power of superintendence over all courts by High Court:

(1) Every High Court shall have superintendence

over all courts and tribunals

throughout the territories in relation to which

it exercises jurisdiction.

(2) the High Court may

(a) call for returns from such courts;

(b) make and issue general rules and prescribe forms forregulating the practice and proceedings of such courts;and

(c) .

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Classification of

Various

Indian Labour Laws

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I. Law ofworking conditions

II. Law ofwages & monetary benefits

III. Law ofindustrial relations

IV. Law ofsocial security

V. Law related to Miscellaneous matters

Five Broad Classifications:

48

Lays down a framework

In which

the Game of IRis Conducted

by the Actors in IR

IR Law:

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Three Principal Laws Affecting IR

1. Trade Unions Act 1926:Registn. of TUs/ facilitates CB

2. ID Act 1947: Lays down framework for ID resolution

3. Industrial Employment (Standing Orders) Act, 1946Promotes uniformity in employment conditions

Also in a way

4. Contract Labour (Reg. & Abolition) Act, 1970

50

The Trade Unions Act 1926 ??

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51The Industrial Disputes Act 1947

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Industrial Employment (St. Orders) Act 1946 ??

The Industrial Employment

(Standing Orders) Act, 1946

Workplace Rules

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The Contract Labour

( Regulation & Abolition) Act 1970

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Managers

and Labour Laws

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Managing Labour Laws in India

Many labour laws/Cases: variable definitions; no simple frame

Legacy ofWelfare State era: Import-substitution model

Managers expected to manage within framework of law

They have to demonstrate lawyers knowledge/skills as well

Learn to manage people having powers under these laws

e.g. Conciliators; Labour officers; Politician union leaders

Need for a course on general/labour laws for all mgrs.

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Managing Labour Laws in India contd

Obsolete labour laws obstruct good management

Debate on labour law reform for last 15 years

Problem ofdelay in executive/judicial decision-making

But, managers have found ways to deal with them:

Managing the administrators of law

Finding the loopholes in law

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Thank

You

For Your

KindAttention