MACHINERIES FOR RESOLUTION OF DISPUTES UNDER INDUSTRIAL RELATIONS CODE, 2020

One of the major objectives of the IR Code is resolution of industrial disputes between employer and workers.  Several machineries for settlement of disputes have evolved over time.  

Trade Disputes Act, 1929  had provisions of Court of Inquiry and Board of Conciliation. Court of Inquiry was a fact finding machinery and used to submit a report to the Government while Board of Conciliation aimed at settlement of disputes. Both the mechanisms were advisory and non-binding in nature.  Rule 81A of Defense of India Rules, 1939 introduced compulsory adjudication of disputes as emergency measures in the background of Second World War. Industrial Disputes Act, 1947 retained Court of Inquiry and Board of Conciliation. It also institutionalized compulsory adjudication in form of Labour Court and Industrial Tribunal. It also introduced Conciliation Officer and mechanism of arbitration.

The IR Code had done away with Court of Inquiry and Board of Conciliation. Provisions for conciliation officers and voluntary arbitration have been retained. Distinction of Labour Court and Industrial Tribunal has been done away with and replaced with Industrial Tribunal.

VOLUNTARY ARBITRATION

Arbitration is one of the alternative modes of resolution of industrial disputes. There was provision for resolution of industrial disputes through arbitration under Industrial Disputes Act, 1947 which has been continued under the Code also.

Section 42(1) provides for voluntary reference to arbitration. In cases where industrial dispute exists or is apprehended and employers and workers agree to refer the dispute to arbitration, they can refer the same to arbitration by written agreement.

Section 42 (2) provides that if the arbitration agreement has provision  for reference to even number of arbitrators, the agreement has also to provide for appointment of another person as umpire. If arbitrators are equally divided in their opinion and the award of the umpire shall prevail and shall be deemed to be the arbitration award for the purposes of the code. A copy of the arbitration agreement has to be forwarded to the conciliation officer and appropriate government.

Section 42(3) provides that an arbitration agreement shall be in such form and shall be signed by the parties in such manner as may be prescribed.

Draft IR (Central) Rules prescribes procedure for reference to arbitration. The employer and workers may agree to refer any industrial dispute to arbitration by entering into an arbitration agreement  in Form V. The arbitration agreement has to be signed by the parties and it has to be accompanied by the consent, either in writing or electronically, of arbitrator or arbitrators.  The arbitration agreement has to be signed- (i) in case of an employer, by the employer himself, or when the employer is an incorporated company or other body corporate, by the agent, manager or other officer of the company or corporation authorized for such purpose  (ii) in the case of workers, by the officer of the registered Trade Union authorized in this behalf or by five representatives of the workers duly authorized in this behalf at a meeting of the concerned workers held for such purpose, and (iii) in the case of an individual worker, by such worker himself or by an officer of the registered Trade Union, of which the worker is a member, or by another worker in the same establishment duly authorized by him in this behalf.

Section 42 (5) provides that where reference has been made to arbitrator and appropriate government is satisfied that person making the reference  represent the majority of each party, it may issue notification in this regard. If such notification is issued, employer and workers who are not parties to arbitration agreement but concerned with the dispute, has to be given opportunity of presenting their case before the arbitrator or arbitrators. Draft IR (Central) Rules prescribes further procedure. Where an industrial dispute has been referred to arbitration and the Central Government is satisfied that the persons making the reference represent the majority of each party, it has to  publish a notification in this behalf in the Official Gazette and upload it on the website of the Ministry of Labour and Employment, for the information of the employers and workers who are not parties to the arbitration agreement but are concerned in the dispute so that they may present their case before the arbitrator or arbitrators appointed for such purpose

Where such industrial dispute is the industrial dispute other than  termination of individual worker by way of discharge, dismissal, retrenchment or otherwise, the workers are represented before the arbitrator by  – (i) negotiating union or negotiating council, where such negotiating union or negotiating council exists, (ii) by trade union , where  there is no negotiating union or negotiating council, (iii) by such representatives of the workers chosen in such manner as may be prescribed if there is no trade union. Draft IR (Central) Rules prescribes that  where there is no Trade Union, the representative of workers to present their case before the arbitrator or arbitrators shall be chosen by a resolution passed by the majority of concerned workers in Form- VI authorizing therein to represent the case and the workers shall be bound by the acts of their representatives who have been so chosen to represent before the arbitrator or arbitrators, as the case may be.

Where such industrial dispute relates to termination of individual worker by way of discharge, dismissal, retrenchment or otherwise the concerned workers shall be represented in person or through a representative authorized by him.

Section 42 (6) provides that the arbitrator or arbitrators shall investigate the dispute and submit to the appropriate government the arbitration award signed by the arbitrator or all the arbitrators.

Section 42 (7) provides that where an industrial dispute has been referred to arbitration and notification has been issued, the appropriate government may by order prohibit the continuation of any strike or lock-out in connection with such dispute which may in existence on the date of the reference.

Section 42 (8) provides that provisions of Arbitration and Conciliation Act, 1996 shall not apply to arbitrations under this section.

CONCILIATION OFFICERS

The Industrial Disputes Act, 1947 has also provision for conciliation officer. The provision  of conciliation officer has also been continued under the Industrial Disputes Act, 1947.

Section 43 empowers the appropriate government to appoint conciliation officers charged with duty of mediating and promoting settlement of industrial disputes. Such conciliation officers may be appointed for a specified area or specified industry in specified area or one or more specified industries. Appointments can be made permanently or for a limited period.

ADJUDICATORY BODIES

Under Industrial Disputes Act, 1947, there were three adjudicatory machineries for adjudication of disputes – (i) Labour Court (ii) Industrial Tribunal and (iii) National Tribunal. Under the IR Code, classification of Labour Court and Industrial Tribunal has been done away with and replaced with Industrial Tribunal. IR Code has also provision for National Industrial Tribunal.

INDUSTRIAL TRIBUNAL

Section 44 (1) empowers the appropriate government to constitute one or more Industrial Tribunals for adjudication of industrial disputes and for performing such other functions as may be assigned.  Such Tribunals constituted by the Central Government also has also been empowered to exercise the jurisdiction, powers and authority conferred on the Tribunal as defined in clause (m) of Section 2 of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952.

Section 44 (2) provides for constitution of the bench. Every Industrial Tribunal has to consist of two members appointed by appropriate government. One of the members has to be judicial member and the other one has to be administrative member. A bench of the Tribunal for adjudication purposes can consist of a Judicial Member and an Administrative Member or a single Judicial Member or single Administrative Member.

Section 44 (3) provides that qualifications for appointment, method of recruitment, term of office, salaries and allowances, resignation, removal and the other terms of conditions of service of the Judicial Member and the Administrative Member of the Tribunal constituted by the Central Government shall be in accordance with the rules made under Section 184 of the Finance Act, 2017. A person who has held rank below Joint Secretary to the Government of India or an equivalent rank in the Central Government or a State Government shall not be eligible to be appointed as Administrative Member.

Section 44 (5) provides that the term of office of the Judicial Member and the Administrative Member of a Tribunal constituted by the State Government, their salaries and allowances, resignation, removal and other terms and conditions of service shall be such as may be prescribed by the State Government.

Section 44 (6) provides that the salary and allowances and terms and conditions of service of the Judicial Member and the Administrative Member shall not be varied to their disadvantage after their appointment.

Section 44 (7) provides for procedure adopted by Industrial Tribunal. The following matters have to be entertained and decided by Bench Consisting of Judicial and Administrative Members – (i) The application and interpretation of standing order, (ii) Discharge or dismissal or workmen including reinstatement of, or grant of relief to  workmen dismissed, (iii) Illegality or otherwise of a strike or lockout, (iv) Retrenchment of workmen and closure of establishment, and (v) Trade Union Disputes.  Other matters can be entertained and decided by Judicial Member or Administrative Member sitting singly.

Section 44(8) provides that the Judicial Member will preside over the Tribunal where Bench consists of one Judicial Member and one Administrative Member.

Section 44 (9) provides that if there occurs any vacancy in Industrial Tribunal or National Industrial Tribunal, the same shall be filled as per rules prescribed. Proceedings will continue from the stage when vacancy was filled.

Section 44 (10) provides that appropriate government has to provide such number of officers and other staff as it thinks fit in consultation with judicial officer which may be required for due discharge of the functioning of the Tribunal.

Section 45 provides that notification of appointment of any person as a Judicial Member or Administrative Member shall not be questioned in any manner on the ground mainly of the existence of any vacancy in or defect in the constitution of such Tribunal.

NATIONAL INDUSTRIAL TRIBUNAL

Section 46 (1)  empowers the Central Government to constitute one or more National Industrial Tribunals for adjudication of Industrial Disputes which in the opinion of Central Government involve questions of national importance or are of such a nature that industrial establishments situated in more than one State are likely to be interested in, or affected by, such disputes.

Section 46 (2) provides for constitution of bench of National Industrial Tribunal. A National Industrial Tribunal shall consist of two members to be appointed by the Central Government out of whom one shall be a Judicial Member and the other an Administrative Member.

Section 46 (3) provides that a  person who is a judge of High Court or has been judge of High Court is only eligible to become judicial member of the National Industrial Tribunal.

Section 46 (4) provides for qualification of administrative member. A person who has been secretary of Government of India or State Government and has adequate experience of handling labour related matters is eligible to be appointed as administrative member.

Section 46 (5) provides that the Judicial Member shall preside over a National Industrial Tribunal.

Section 46 (6) provides that the Procedure of selection of Judicial Member and Administrative Member of National Industrial Tribunal and salaries, allowances and other terms and conditions of service has to be decided as per rules prescribed.

Section 46 (7) provides that the Central Government has to provide such number of officers and other staff as it thinks fit in consultation with judicial member of the National Industrial Tribunal which may be required for due discharge of the functioning of the National Industrial Tribunal.

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