HOW WORKER HAS BEEN DEFINED UNDER INDUSTRIAL RELATIONS CODE, 2020 ?

Industrial Disputes Act, 1947 has used the term “workman” which has been replaced with the gender neutral term “worker” under the code. The scope of the definition “worker” has also been expanded and now more persons have been explicitly included under the definition of worker.  “Worker”  has been defined under 2 (zr) of the Code which is as under-

(zr) “worker” means any person (except an apprentice as defined under clause (aa) of  Section 2 of Apprentice Act, 1961 ) (52 of 1961) employed in any industry to do any manual, unskilled, skilled technical, operational, clerical or supervisory work for hire or reward[m1] , whether the terms of employment be expressed or implied and includes working journalists as defined in clause (f) of Section 2 of the Working Journalists and other Newspaper Employees (Conditions Service) and Miscellaneous Provisions Act, 1955 (45 of 1955) and sales promotion employees as defined in clause (d) of section 2 of the Sales Promotion Employees  (Conditions of Service) At 1976 (11 of 1976) and for the purposes of  any proceedings under this Code in relation to an industrial dispute, includes any such person who has been dismissed , discharged, or retrenched  or otherwise terminated in connection with or as a consequence of, that dispute , or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person –

(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or

(ii) who is employed in the police service or an officer or other employee of prison; or

(iii) who is employed mainly in a managerial or administrative capacity; or

(iv) who is employed in a supervisory capacity drawing wage of exceeding eighteen thousand rupees per month or an amount as may be notified by Central Government from time to time.

PROVIDED that for the purposes of Chapter III, “worker” –

(a) means all persons employed in trade or industry, and

(b) includes the worker as defined in clause (m) of section 2 of the Unorganized Workers’ Social Security Act, 2008 (33 of 2008)

A person must be employed in an industry for being covered under definition of “worker”. Further such worker must be engaged in manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward. An apprentice defined under Apprentice Act, 1961 is not covered under definition of worker. 

Working journalists and sales promotion employees have also been covered explicitly under the definition of worker. The Supreme Court in R Adhyanthaya & Ors Vs Sandoz (India) Limited 1994 SCC (4) 164 has held that sales promotion employees are not covered under the definition of “workman”. In light of inclusion of sales promotion employee under definition of “worker” the findings of the Supreme Court in R Adhyanthya has become irrelevant.

Such persons have also been included under definition of “worker”, who has been dismissed, discharged, or retrenched or otherwise terminated in connection with or a consequence of industrial dispute or whose dismissal, discharge of retrenchment has caused dispute.

Following category of persons are not covered under definition of “worker”- (i) Persons who are subject to the Air Force Act, 1950, Army Act, 1950 and the Navy Act, 1957; (ii) Persons employed in the police service or as an officer or other employee of a prison; or (iii) Persons who are employed in managerial or administrative capacity; and (iv) Person who is employed in supervisory capacity drawing wages exceeding eighteen thousand rupees per month.

Test of employer-worker relationship

The relationship of employer and worker is in nature of contract of service where a worker works under control and supervision of the employer. The Supreme Court in Dharangadhara Chemical Works Ltd. Vs State of Saurastra  (1952 SCR 152) has interpreted definition of  “workman” under Industrial Disputes Act, 1947. The said interpretation is relevant also for definition of  “worker” under the code .

8. The principles according to which the relationship as between employer and employee or master and servant has got to be determined are well settled. The test which is uniformly applied in order to determine the relationship is the existence of a right of control in respect of the manner in which the work is to be done. A distinction is also drawn between a contract for services and a contract of service and that distinction is put in this way: “In the one case the master can order or require what is to be done while in the other case he can not only order or require what is to be done but how itself it shall be done”. [Per Hilbery, J. in Collins v. Hertfordshire County Council (1947) KB 598, 615].

Dominant Nature Test

There can be situations when a person may be doing several types of work. In such a scenario the person will fall in that category, which is his main work. The Supreme Court observed in Burma Shell Oil Storage & Distribution Vs Burma Shell Management Staff that the principle is well settled that a workman must be held to be employed to do that work which is the main work he is required to do, even though he may be incidentally doing other type of work.

The Supreme Court held in S. K Maini Vs Carona Sahu Co. Ltd.  1994 SCC (3) 510 held that whether an employee is a workman or not has to be decided in reference to his principal nature of duties.  Relevant para is as under:

After giving our careful consideration to the facts and circumstances of the case and the submissions made by the learned counsel for the parties, it appears to us that whether or not an employee is a workman under  Section 2 (s) of the Industrial Disputes Act is required to be determined with reference to his principal nature of duties and functions. Such question is required to be determined with reference to the facts and circumstances of the case and materials on record and it is not possible to lay down any straitjacket formula which can decide the dispute as to the real nature of duties and functions being performed by an employee in all cases. When an employee is employed to do the types of work enumerated in the definition of workman under Section 2 (s), there is hardly any difficulty in treating him as a workman under the appropriate classification but in the complexity of industrial or commercial organisations quite a large number of employees are often required to do more than one kind of work. In such cases, it becomes necessary to determine under which classification the employee will fall for the purpose of deciding whether he comes within the definition of workman or goes out of it.

The Supreme Court again reiterated in Lenin Kumar Ray Vs. Express Publications (Madurai) Ltd  2024 SCC Online SC 2987 that determinative factor for “workman” is the principal duties and functions performed by an employee in the establishment and not merely the designation of his post.

15. The law is well settled that the determinative factor for “workman” covered under section 2(s) of the I.D. Act, is the principal duties and functions performed by an employee in the establishment and not merely the designation of his post. Further, the onus of proving the nature of employment rests on the person claiming to be a “workman” within the definition of section 2(s) of the I.D. Act. 

Is pilot a worker ?

Although pilot is generally paid much more in comparison to an average worker, pilot has been held to be covered under definition of “worker”.  The  Delhi High Court in King Airways Vs Pritam Singh LPA 142/2013 has held that pilot falls under definition of  “workman”. The Delhi High Court held that primary function of a pilot is flying. The Delhi High Court further held that salary of an employee is immaterial for determination of  workman. The relevant para is as under :

32. We are of the clear view that the salary component that is being raised is simply a red herring, since it can only be taken into consideration for the purpose of the determination in respect of someone who performs supervisory functions. It cannot, however, be relied upon to determine whether a person is, in the first instance, a “workman” under Section 2 (s) of the ID Act. Thus, the salary aspect is wholly immaterial in the present adjudication.

---