India, a developing country with a population of 1.2 billion people has the potential of turning into a superpower before the end of the 21st century. However, this goal can only be achieved if the industries and citizens of the country strive for efficiency and effectiveness by working smarter and harder. In order to regulate the functioning of the relationship between employers and employees, every country has laid down certain legislations which helps in achieving harmony between these two groups. The need for legislation which governs labour relations in industries is of utmost importance as such legislations specify the role, duties and authority of every individual employed under the particular industry.
There is a noticeable difference between the laws laid down in the USA when compared to India, however the objective of the law makers in both countries is Similar which is basically to ensure that harmony is maintained between employers and employees and that government intervention will also play a crucial role in achieving productivity and increase in output.
With the dream of changing from a developing nation to a superpower, a lot of pressure is put on employees by their employers which may result in the occurrence of Unfair Labour Practice, however the Indian constitution ( which is the supreme law of the land) along with various other Labour legislations regulate the functioning of the industry and ensure that everyone contributes equally to the growth of the nation. The aim of constitution is to provide welfare to all its citizens and ensure guarantee of their fundamental rights. Labour being an integral part of the society found prominent position in the constitutional provisions with regard to their protection of rights.
Unfair Labour Practices are practices, performed by either employers or unions, which have been banned by law. Unfair Labour Practices is discussed within the ambit of Schedule 5 of the Industrial Disputes Act,1947. In the United States of America, Unfair labour practices come within the ambit of National Labor Relations Act, 1935.
Unfair Labour Practice in India
In India when the Industrial Disputes Act,1947 was enacted there was no clear provision as to the definition of what exactly is an ‘Unfair Labour Practice’ nor were there any provisions preventing it. Later on, by the amending act 46 of 1982 (brought into force with effect from 21st August,1984) clause (ra) was inserted in section 2 defining ‘unfair labour practice’ to mean the ‘practices specified in the fifth schedule’.
Section 25T prohibits the commission of the Unfair trade practices by the employers as well as the workmen and section 25U prescribes stringent penalties for commission of unfair labour practices. The Fifth schedule was also inserted by the same amending act which clearly categorises unfair labour practices into two categories which are:
(a) Unfair Labour practices on part of employer or trade union of employers, which are:
An employer has no right to interfere, restrain or coerce an employee from exercising their right to organise, form, join or assist a trade union or to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. The act bestows on all employees that they are free to join any trade union they wish to and the employer has to respect their decision rather than challenging it. The employer cannot threaten the workmen with discharge or dismissal from the job on the grounds that the employee has joined a trade union, if this takes place then the employer will be be held liable for unfair trade practices. The reason unions are formed is so that all employees in an organisation can come together and put forth their problems and through negotiation and interaction with employers , a sutiable and amicable solution can be reached. However if an employee is denied the right to join a union either by threat of dismissal or through a promise of wage increase if the employee refrains from joining a union, the employer will be held liable.
Employers will be held liable if they offer any support to trade unions either financially or by taking an active interest in the issues of the trade union. This was laid down in order to create a clear distinction between the interest of the employer and the employees and to ensure that the employer does not use his influence and professional position to influence trade unions in taking certain decisions. This provision was also laid down in order to do away with favouritism among trade unions by employers and to ensure that all trade unions are treated equally and that they function independently without the influence of employer.
An employer cannot encourage or discourage a workman from joining a particular trade union. An employer has no relation with any employee trade unions and should not influence his employees to join or leave a trade union, these decisions need to be taken by the employees themselves on their own accord. The employer also has to evaluate the employee based on his performance at work and not due to his interference with any trade union, professional work needs to be separated from trade union work and the employee is expected to not let his professional work get affected due to his work performed on behalf of the trade union.
Employers are expected to treat all workers equally and should give appraisals and promotions to employees based on their merit and not because they are part of a trade union. If employers give promotions to employees based on involvement with trade unions, this will create dissatisfaction among the employees and will lead to unrest in the work place. Employers are not allowed to show favouritism to a set of employees regardless of merit.
Employers have the right to terminate the service of workmen on grounds of impunctuality, laziness, non-efficient, etc; however, if an employer terminates the service of an employee based on untrue and malefice grounds then the employer will be liable for performing ‘Unfair Trade Practice’. Employers cannot discharge or transfer employees based on any reason other than professional and work-related reasons. The employee has the right to know the reason for being discharged or transferred from a particular job and cannot be victimised by the employer.
Employers are not allowed to make any workmen who were on a legal strike to sign any bond of conduct before resuming work. As long as the strike is legal the employer has to allow the workmen to resume work.
Employers will be said to be performing unfair trade practices if he recruits a worker during a legal strike or if he uses force against any worker or if a worker is supposed to testify against the employer and the employer discharges him from his job before such testimony is made.
An employer cannot hire workers permanently and treat them as ‘badli workers’ (temporary workers) just so that they do not get entitled to any of the privileges that permanent employees are supposed to get.
An Employer cannot refuse to collectively bargain with a recognised trade union nor can he fail to implement any settlement, award or agreement between employer and employees.
(b) Unfair labour practices on part of workmen or trade union of workmen:
Workmen too have certain restrictions with respect to Unfair labour practices and hence need to ensure that they do not indulge In such activities lest they become liable under Unfair practices.
Workmen are not allowed to conduct, participate or instigate any strike that is deemed to be illegal under the Industrial Disputes Act,1947. Participation in such illegal strikes can even lead to termination of services of employee by employer.
Workmen are not allowed to coerce any other workmen in joining a trade union or supporting a trade union for a particular cause. Every employee has the right to choose whether he wants to be part of a particular union or not, and cannot be forced or threatened into joining any union.
Recognised trade unions are supposed to act in good faith when collectively bargaining and cannot refuse to bargain based on irrelevant and petty grounds. The main aim of collective bargaining is to reach an appropriate solution and this can only be done if both parties, i.e. workers and employers come together and discuss the problem at hand.
No workers/trade unions are allowed to interfere with the employers or demonstrate their support at the residence of the employer. There needs to be a distinction drawn between personal and professional life and ones personal space needs to be respected
Inciting of violence in workplace and damage to property of the industry and workmen will come under the ambit of unfair trade practices.
No workmen shall prevent another from working by using physical force or intimidation.
Leading Case Laws in India with respect to Unfair trade Practices:
HD Singh vs Reserve Bank of India: In this case the Reserve Bank of India had issued a confidential cicrcular directing the officers that workmen like the appellants should not be engaged continuously but should as far as possible be offered work on rotation basis. The supreme Court in this case held that the bank indulged in methods amounting to unfair labour practice.
Kapurthala Central Co-op Bank Ltd vs Presiding officer, Labour court, Jullundur : A division bench of Punjab and Haryana High Court held that the termination of the service of the workmen on completing 230 days, despite that their work was satisfactory , disabling them from completing 240 days of service as required by Section 25B Industrial Disputes Act, 1947 with a view to deprive them of the protection of Section 25F amounts to unfair Labour practice particularly so when other persons were employed in their place.
Resident Engineer, Rajasthan SBCC ltd vs Om Prakash: A single judge of Rajasthan High Court held that if the work was not of a perennial nature and the project was likely to be finished after some time then it could not be held that giving repeated appointment letters for each tenure amounted to Unfair Labour Practices under section 25T of the Industrial Disputes Act, 1947.
Unfair Labour Practice in USA
The National Labour Relations Act, 1935 defines Unfair Labour Practices as actions taken by employers or unions that are illegal under the National Labor Relations Act (NLRA). The NLRA is similar to the Industrial Disputes act as it gives employees the right to act together to try to improve the terms and conditions of their employers, by forming a union, joining a union, or otherwise. To preserve these rights, the NLRA sets out the rules for union elections, collective bargaining, etc. The NLRA also prohibits employers and unions from taking certain actions that would interfere with these employee rights or with the delicate balance and harmony that the NLRA creates between unions and employers. These actions are called "unfair labor practices".
Under section 8 the law defines a set of prohibited actions by employers, employees, and unions, known as an unfair labor practice. The first five unfair labor practices aimed at employers are in section 8(a) and are as follows:
Employers are not allowed to Interfere with an employee's right to organize, join, or assist a union; engage in collective bargaining; or engage in protected, concerted activities. For example, employers must treat union-related conversations among employees like any other matter unrelated to work: They may not make special rules that single out communications relating to the union or to workplace grievances for disciplinary treatment.
Employers are not allowed to Dominate or provide illegal assistance of support to a labor union. Employers may not establish their own union (a company union or sham union), or dominate or interfere with any labor organization. To determine whether an employer unfairly controls a particular workplace group, the National Labor Relations Board (NLRB) looks at all of the facts, including who started the group, whether the employer played a role in organizing the group and deciding how it would function, whether management attends meetings or otherwise sets the group's agenda, the group's purpose, and how the group makes decisions.
Employers are not allowed to make a “hot cargo agreement” with a union. A hot cargo agreement is an arrangement between an employer and a union in which the employer promises to stop doing business with another employer, typically one with whom the union has a dispute. This will lead to conflict of interest and will hamper the efficiency of the industry.
Employers are not allowed to refuse to engage in good faith collective bargaining and employers cannot retaliate against an employee for filing a charge or giving a testimony against an employer.
There are additional unfair labour practices aimed at unions and employees, these practices are highlighted in the Labor Management Relations Act of 1947 (also known as the Taft- Hartley Act) which prevents unions from:
- Engaging in strikes, boycotts, or other coercive action for an illegal purpose.
- Charging excessive or discriminatory membership fees.
- Getting or trying to get an employer to agree to pay for work that is not performed. This is called "featherbedding." In most cases the employer creates fake profiles of people and enrols them in the company as employees and pockets the money which he has to pay them as salary.
- Making a hot cargo agreement as already explained above.
- Striking, picketing, or otherwise engaging in a collective work stoppage at any health care institution without giving required notice to the institution
Restraining or coercing employees in the free exercise of their right not to support a union (for example, by threatening employees who don't want a union or expelling members for crossing an illegal picket line.
Restraining or coercing an employer in its choice of a bargaining representative (by insisting on meeting only with a particularly manager or refusing to bargain with the representative the employer chooses).
Causing or trying to cause an employer to discriminate against an employee for the purpose of encouraging or discouraging union membership (for example, convincing an employer to penalize employees who engage in antiunion activities)
Refusing to engage in good-faith collective bargaining (for example, refusing to come to the bargaining table or listen to any of the employer's proposals).
On close perusal one can identify how both the Countries have very similar provisions with respect to tackling Unfair Labour Practices, the only difference is in the operation of each act and type of industries that come under the particular acts.
The Industrial Disputes Act, 1947 extends to the whole of India and regulates Indian labour law so far as that concerns trade unions as well as Individual workman employed in any Industry within the territory of Indian mainland.
While The National Labor Relations Act of 1935 guarantees the right of private sector employees to organize into trade unions, engage in collective bargaining, and take collective action such as strikes.
Unfair Labour practices are still prevalent in a lot of industries and in the researchers opinion the existing laws with respect to tackling such practice is appropriate however implementation needs to be focused on in both countries.
Name: Estevan Daniel Cardozo
Year: 4th year BBA LLB