1-2. Labour & Empl
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Transcript of 1-2. Labour & Empl
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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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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:
18
(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:
22
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):
24
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:
26
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:
28
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
36
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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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) .
46
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
52
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
54
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.
56
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