INDUSTRIAL RELATION MACHINERY TO SOLVE INDUSTRIAL DISPUTE

In nutshell statutory preventive and settlement machinery can be summarized as under:

1) Works committee (for consultation)2) Conciliation officer (for conciliation )3) Board of Conciliation 4) Court of enquiry (for enquiry) 5.1) Labour Court 5.2) Industrial Tribunals (for Adjudication)5.3) National Tribunal 6) Voluntary Arbitration 7) Negotiation (settling individual or 8) Mediation group disputes)

WORKS COMMITTEE

BIPARTITE BODIES

JOINT MANAGEMENT

COUNCIL WORKS

COMMITTEE

The Bipartite consultative machinery comprises two important constituents, viz., the works committee and joint management council.

These are purely consultative, and not negotiating bodies. This consultative joint machinery- with equal representation of the employers and the workers– has been set exclusively for dealing with disputes affecting the plant and industry.

WORKS COMMITTEEThese committee have regarded as the most effective

social institution of industrial democracy and as a statutory body, established within the industrial units with representatives of the management and workmen, for preventing, and settling industrial dispute at the unit level.

The work committee can be formed by any enterprise, employing 100 or more workers. Its objectives are:

1) To remove cause of friction in the day to day work situation by providing an effective grievance resolving machinery;

2) To promote measures securing amity and good relationship. 3) To serve as a useful adjunct in establishing continuing

bargaining relationship; &4) To strengthen the spirit of voluntary settlement , rendering

recourse to conciliation, arbitration and adjudication rather infrequent.

COMPOSISTION OF THE WORKS COMMITTEEa) A works committee consists of representatives of employer

and workmen engaged in the establishment. b) The no. representative of workmen shall not be less than the

no. of representatives of the employee.c) The composition of the committee consist all categories,

groups and classes of workmen.

4) The total no. of members shall not exceed 20. 5) The representative of employer shall be nominated from

technical, managerial or supervisory category, who should be in direct touch with the working of the establishment.

6) If the workmen are from registered trade union , the employer shall ask the union to furnish detailed information on issues like:

a) the no. of workers who are members of union b) and the distribution of members among the sections, shops

or departments of the establishment .7) Where there is union, half of the representative would from

union and half from others. 8) If there is more than one union, central government rules

provide for the selection of representatives by secret ballot.

FUNCTIONS OF THE WORKS COMMITTEEAccording to section 3 (1) (2) of the Industrial Dispute Act, the

Works Committee “ Promote measures for securing and preserving amity and good relations between the employer and the workmen; and to that end, comment upon matters of their common interest or concern and endeavor to compose any material difference of opinion in respect of such matters.”

The scope of works committee includes: Lighting, ventilation, temperature, sanitation etc, amenities –

supply of drinking water, rest room, medical and health services, safe working conditions; administration of welfare funds, educational and recreational activities, encouragement of thrift and savings etc.

These committees deal with day-to-day questions of interest to both the mgt. and employees.

These questions cover a wide range, bear upon the daily life of the workers and usually include all matters relating to production and employment. Until these questions are dealt with satisfactorily at the initial stages, they may lead to disputes.

They provide opportunities to both the parties to discuss matters, and therefore they serve as an important machinery for both prevention and settlement of disputes.

OFFICERS OF THE COMMITTEE AND THEIR TERMS OF OFFICE

2) The term of office of the representatives of the committee shall be two years, except for a member chosen for filling a casual vacancy.

3) A member chosen to fill a casual vacancy shall hold office only for the unexpired term of his predecessor.

OFFICE BEARERS

Chairman Joint Secretary Secretary

Vice-Chairman

4) A member who, without the permission of the committee, fails to attend three consecutive meetings of the committee shall forfeit his membership.

MEETINGS AND SUBMISSION OF RETURNS 1) The committee may meet as often as necessary but not less

once in 3 months. 2) At its 1st meeting committee shall regulate its own

procedure.3) The employer shall submit half-yearly progress reports on

the constitution and functioning of the works committee in a prescribed form. These returns are to be submitted in triplicate to the concerned conciliation officer not later than the 20th day of the month following the half year.

DISSOLUTION OF THE WORKS COMMITTEEThe central government or an appropriate authority on its behalf

may, after making the necessary enquiry, dissolve any works committee at any time by an order in writing, provided that he or it is satisfied that:

1) The committee has not been constituted in accordance with the prescribed rules; or

2) Not less than 2/3rd of the members of representatives of workmen have, without reasonable justification, failed to attend three consecutive meetings of the committee

3) The committee has ceased to function for any other reason.

An employer shall constitute a new committee in place of the dissolved committee and take steps to reconstitute the committee in accordance with the rules, if required to do so by appropriate authority

NEGOTIATIONS

Negotiation is a dialogue between two or more people or parties, intended to reach an understanding, resolve point of difference, or gain advantage in outcome of dialogue, to produce an agreement upon courses of action, to bargain for individual or collective advantage to craft outcomes to satisfy various interests of two people/parties involved in negotiation process.

Negotiation is a process where each party involved in negotiating tries to gain an advantage for themselves by the end of the process. Negotiation is intended to aim at compromise

Some truths about negotiation :1) Here there is no interference of 3rd party.2) Negotiation proceeding cannot be used as evidence,

anywhere.3) Here, there is compromise between the parties by mutual

understanding and has no binding effect.

Guidelines for Negotiation: The Do’s of Negotiations: 4) Do seek more( or offer less) than you plan to receive (or give)5) Do negotiate in private, not through the media. 6) Do let both sides win. Otherwise other will retaliate. 7) Do start with easy issues. 8) Do remember that negotiations are seldom over, when the

agreement is concluded. Eventually the issue will be re-negotiated.

6) Do enlist the support of the federal mediation and conciliation services if a strike seems likely.

The “Don’ts” of Negotiation 1) Do not make your best offer first; that is so uncommon that

the other side will expect more. 2) Do not seek unwanted changes, you may get them. 3) Do not violate the confidence. 4) Do not settle too quickly as union members may think a

quick settlement is not a good one. 5) Do not let other side bypass your team

MEDIATION

1) Mediation is most frequently adopted ADR technique. It contemplates the appointment and intervention of neutral 3rd person who helps the parties to reach a negotiated settlement.

2) Mediation is process by which a 3rd party brings together the opposing groups not only to iron out the differences between them but also to find an answer to problems or specified proposals and offer alternative suggestions.

3) It is conducted on confidential basis .4) The process may have to pass through several stages like

preparation, joint sessions, private meetings and final result.

At one end of the range, mediation means simply getting the parties to talk to each other until they reach a settlement.

At the other extreme, mediation means the deliberate effort to introduce and explore proposals which might lead to settlement.

MEDIATOR 1) The mediators has described as confidential adviser or

industrial diplomat. 2) He helps the two parties to come to a agreement to their

own accord rather than to render an award or decision of his own.

3) He suggest solutions based on his knowledge and experience, which both parties, if they have confidence in him, may agree to accept.

4) He only brings the parties together in his presence and by formulating substantive proposals for settlement, tries to iron out their differences. “ he does not exercise any compulsion; he cannot and should not undertake to decide what parties should do, he may advance various considerations, but certain evaluations and judgments should be left to the parties themselves

KINDS OF MEDIATORAccording to Prof. Pigou; namely1) The eminent outsider;2) The non-government board; and 3) The board connected with some part of the government

system of the country.

ESSENTIALS OF SUCCESS OF MEDIATION 4) Mediation can work only in climate of consent (approval). 5) Mediator must be an impartial and unprejudiced person. 6) Mediation should take in proper setting.

CONCILIATION Conciliation is the most important method for the prevention

and settlement of industrial disputes through third party intervention. It is an attempt to reconcile the views of the disputants and bring them to an agreement.

Conciliation is generally understood as the friendly intervention of a neutral person in a dispute to help parties to settle their differences peacefully.

It is a process by which representatives of workers and employers are brought together before a third person or a group of person with a view to persuading them to arrive at an agreement by mutual discussion between them.

The unique and essential characteristics of the conciliation process is its flexibility, informality and simplicity which sets it apart from other methods of settling industrial dispute.

So sometime its is said“ conciliation is an art and the conciliator, is a solitary artist

recognizing, at most, a few guiding stars and depending mainly on his personal power of. Divination( prediction)”

ROLE OF CONCILIATOR a) As a Discussion Leader b) As a Safety Valve (control device) c) As a communication Link d) As a Innovator e) As a Sounding Board – flying ambulancef) As a Stimulator g) As an Adviser h) As a Promoter of Collective Bargaining.

QUALITIES OF A CONCILIATOR 1) Independent and impartial 2) Physically and psychological fit 3) He must be honest, polite, tactful, self-confident, even-

tempered and patient. 4) Friendly personality 5) Should be well acquainted with the law and regulations 6) He must have ability and versatility to form judgments.

CONCILIATION MACHINERY

CONCILIATION MACHINERY

Conciliation officer Conciliation Board

a) In a large no. of countries, the conciliator is very often a government official functioning as a conciliator in an individual capacity; and the methods and techniques of conciliation in industrial disputes have been largely developed on the basis of the experiences of individual conciliators.

Often, conciliation has been regarded essentially as a one-man job.

In other countries, conciliation may also be undertaken by a body consisting of several members, called as board, a council, or a committee of conciliation, or simply referred to as a conciliation board.

In India, the government appoint a conciliation officer for a specific area or even for a specific industry. He may be appointed either permanently or for a limited period.

The government may also, as occasion arises, appoint Board of Conciliation, consisting of Chairman, and two to four other members to promote the settlement of dispute.

Conciliation as a method of settling disputes appears to be effective when it is carried on by means of a permanent machinery.

Prof. Pigou has rightly observed: “ Unless there is some machinery, already established, it will be necessary to appoint negotiators at a moment of heated controversy, and the attempt to do so may not only delay but also afford opportunity for further irritation and friction.

SEQUENTIAL PATTREN OF CONCILIATION1) The Hard Posture Phase 2) Search for Accommodation 3) Emergence of Appropriate Mood for Settlement of compromise:

conciliator encourages- symptoms-conciliation is an art- techniques most frequently used: a) Listening attentively to the parties so that information/facts be

gathered. b) Asking questions to obtain information c) Persuade the parties

Conciliator face various pressures: 4) Personal 5) Social and Political 6) Economic

CONCILIATION PROCEEDINGS AND PRACTICES IN INDIA

1) Conciliation Officer: (i) according to the Industrial Dispute Act 1947, the Central and

State Government can appoint conciliation officer by a notification in the Official Gazette to that effect.

(ii) he may be appointed for a specified area or for specified industries in any area or for one or more specified industries.

(iii) he can be appointed permanently or for a limited period.

Conciliation Proceedings: a) In case of public utility service b) In case of other industries. c) The conciliation officer has wide powers of investigation into an

industrial dispute, but all matters affecting the merits and the right settlement thereof. For the purpose of bringing about a settlement, he must without delay, hold the meeting of the representatives of the parties, jointly or separately.

d) If settlement occurs- conciliation officer must send report, together with a memorandum of settlement signed by the parties to the dispute, to the appropriate government.

e) If no settlement is reached- the conciliation officer is required to send immediately a full report to the appropriate government setting forth the steps taken by him and probable reasons for failure.

f) The report shall contain a full statement of the facts and circumstances of the dispute.

g) The conciliation officer can only send a report but has no authority to pass a final order.

i) He must submit the report of the settlement or non-settlement of the dispute within 14days of the commencement of the conciliation proceedings, or within shorter period as may be fixed by the appropriate

government. j) A conciliation proceeding is deemed to have commenced on

the date on which a notice of strike or lockout is received by the conciliation officer.

k) In other cases it deemed to start from the conciliating officer holds proceedings.

A conciliation proceedings is not concluded and is deemed to be pending until any of the following conditions is fulfilled.

a) where a settlement is arrived at, a memorandum of the settlement is signed by the parties to the dispute.

b) where no settlement is arrived at, the report of the conciliation officer is received by the appropriate government.

c) A reference is made to the court of enquiry, labour court, tribunal or national tribunal during the pendency of the conciliation proceedings.

BOARD OF CONCILIATION 1) It is an Adhoc-body appointed by appropriate government. 2) Its purpose is to mediate and to induce the parties to come

to a fair and amicable statement.3) It cannot thrust upon the contending parties its own terms

and conditions of settlement. It can take action only when a dispute has been referred to it by the appropriate government.

4) It consists of: Chairman- an independent person two or four members (as per government)

DUTIES OF THE BOARD 1) The board shall Endeavour to bring about settlement

between the parties, and for this, without delay investigate the matter and accordingly come to fair and amicable settlement of dispute.

2) If a settlement is arrived at in the course of conciliation proceedings, the Board shall send a report thereof to the appropriate government with a memorandum of settlement signed by the parties.

3) If no settlement is arrived at…4) A board can only try to bring settlement it has no power to

impose a settlement upon the parties. 5) The board must submit its report with in 2 months of the

date a dispute was referred to .

6) In case no settlement is arrived at , the government may refer the matter to labour court, industrial tribunal or national tribunal.

ARBITRATION

1) Arbitration is a means of securing an award on a conflict issue by reference to a 3rd party.

2) It is process in which dispute is submitted to an impartial outsider who makes a decision which is usually binding on both the parties.

3) Arbitration is to be distinguished from conciliation not only by the fact that its decision is binding on the parties but also by its different approach and spirit.

4) The main objective of arbitration is adjudication and hence there is no place for compromise in awards though the parties are at liberty to do so.

APPROACHES TO ARBITRATION 1) The Judicial approach- it emphasis that arbitration should

not be confused with conciliation and mediation. The parties submit a dispute for arbitration, not for reaching a compromise solution but the vindication (justification/ evidence) of the stand taken by them.

2) The non-judicial approach- arbitrator cannot isolate himself from the reality of the need for a workable solution.

ARGUMENTS FOR AND ADVANTAGES OF ARBITRATION 3) Established by the parties themselves 4) It is more expeditious 5) Less expensive in nature 6) Awards are capable of implementation without any grudge

4) Arbitration is based on consent of both parties 5) This procedure is operated at the closest level of parties, this

gives more familiarity about the industry or undertaking then most courts and tribunals.

TYPES OF ARBITRATION

VOLUNTARY ARBITRATION COMPULSORY ARBITRATION

SUBMISSION OF AWARDThe arbitrator, after investigating the dispute, has to submit his

award to the government. The award will have the same legal force as the judgment of a labour court or tribunal. The award must be signed by the arbitrators.

While writing his award, the arbitrator has to ensure that:a) The award is in line with the terms of reference b) It must be precise and definite c) It should be capable of being enforced or implemented d) The award should contain a date or a specific period for its

implementation e) The award should not violate any provision of any existing law. f) The award should contain sufficient reasons for the settlement

arrived at by arbitrator

COURT OF INQUIRY

a) A court of inquiry is constituted as an adhoc body, by the appropriate government.

b) The constitution of the court has to be notified in the Official Gazette

c) It can inquire into any matter connected with or relevant to industrial dispute, but not resolve dispute.

d) It may consists of an independent person or some no. of persons as the government may think fit.

e) The formation of court together with the name of persons constituting it requires to be notified in the official gazette.

f) Its duty is to inquire into the matter referred to it by the appropriate government and to make a report on it on the inquiry held on matters referred to it within a period of six months from the commencement of the inquiry.

g) It must be signed by all members.h) A member can submit a note of dissent i) The report together with the dissenting notes must be

published by the appropriate government within 30 days from its receipt.

The section 22, 23 and 33 lays down that during the pendency of the proceedings before a court of enquiry:

a) The right of worker to go on strikeb) The right of employer to resort to lockout; and c) The right of employer to dismiss or otherwise to punish the

worker.

THREE-TIER SYSTEM OF ADJUDICATION

The industrial dispute act 1947, provides for a three tier system of adjudication.

1) Labour Court2) Industrial Tribunal3) National Tribunals

LABOUR COURTS

One or more labour courts may be constituted by the appropriate government for adjudicating on industrial disputes relating to any matter specified in the Second Schedule to the Act.

Constitution:A labour court shall consist of one person only, who:a) Is or has been judge of High Court; orb) Has been, for a period of time of not less than 3years, a

District Judge; orc) Has held any judicial office in India not less than 7 years

The duties of labour court are:a) To hold adjudication proceedings expeditiously b) Submit its award to the appropriate government

The labour court usually deals with matters which arise out of the day to day working of an undertaking

Jurisdiction: Matters specified in the 2nd Schedule 1) Application and interpretation of standing orders2) Discharge or dismissal of workers (wrongfully)

3) Withdrawal of any customary concession or privilege. 4) Illegality of strike or lockout

Labour court does not supervisory jurisdiction i.e. it cannot act as guardian of an industrial establishment.

INDUSTRIAL TRIBUNAL

a) The appropriate government may appoint one or more industrial tribunal for adjudication of industrial disputes relating to any matter, whether specified in 2nd schedule or 3rd schedule.

b) The matters which are in form of new demands and give rise to industrial dispute which affect the working of a co. or industry are usually referred to an industrial tribunal.

c) The industrial tribunal may be appointed for a limited period on an ad hoc basis or permanently.

Constitution:A tribunal shall consist of one or more persons such asa) Are or have been judge(s) of High court b) Are or have been District judge(s) for a period of not less

than 3years. c) Hold or have held the office of the chairman or any other

member of any other tribunal for a period of not less than two years.

The government may, if it thinks fit, also appoint two persons as

assessors to advice the tribunal in the proceedings before it.

Jurisdiction:It have wider jurisdiction than labour courts. It covers any

matters specified in 2nd and 3rd schedule:The matters specified in 3rd schedule:1) Wages, including the period and mode of payment2) Compensatory and other allowances 3) Hours of work and rest interval 4) Leave with wages and holidays5) Bonus, profit sharing, provident fund and gratuity6) Rules of discipline 7) Retrenchment of workmen and closure of establishment 8) Any other matter that may be prescribed.

The industrial tribunal has to hold judicial proceedings expeditiously and submit its award to the appropriate government .

In the country there are 12 Central Government Industrial tribunals- cum- labour courts.

NATIONAL TRIBUNAL

The central government may, by notification in the Official Gazette, constitute one or more National Tribunals for adjudication on industrial disputes.

It considers:a) Involving questions of national importance, orb) Which are of such nature that industries in more than one

state are likely to be interested in, or affected by, such disputes /

Constitution: 1) One person only who has been or was judge of High court and

is below 65 years of age

b) or, held the office of Chairman in any other tribunal for not less than 2years.

When National Tribunal has been referred to, no Labour court or industrial tribunal shall have jurisdiction to adjudicate upon such matter.

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