Unfair labour practice

INDEX

Sr. No. Particulars

1 Introduction
2 Circumstances which led to passing of the MRTU & PULP Act
3 Applicability
4 Features of the Act
5 Authorities under M.R.T.U. & P.U.L.P. Act, 1971
6 Definitions
7 Schedule II
8 Schedule III
9 Schedule IV
10 Vividh Kamgar Sabha v Kalyani Steels Ltd and Another, Supreme Court of
India
Unfair labour practice

Introduction:
The Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices
Act, 1971 was enacted for the recognition of trade unions to facilitate collective bargaining
for certain undertakings, to state their rights and obligations, to confer certain powers on
unrecognised unions and for declaring certain strikes and lock-outs as illegal strikes and lock-
outs. Also, to prevent certain unfair labour practices and constitute courts for the purpose of
the Act.

Circumstances which led to passing of the MRTU & PULP Act:

The Government of Maharashtra recognised that the development of strong, independent and
responsible unions and an orderly, rational environment free from unfair labour practices are
the two pre-requisites of effective collective bargaining. There was no effective legislation
providing for recognition of representative trade unions as exclusive bargaining agent except
the Bombay Industrial Relations Act, 1946, which applied only to a few industries. There was
also no systematic law to determine and penalise unfair labour practices. The Government of
Maharashtra therefore in February 1968 appointed a Tripartite Committee under the
Chairmanship of the President, Industrial Court, Bombay, for defining the activities on the
part of the employers and workers and their organisations which should be treated as unfair
labour practice and for suggesting action which should be taken against employers or workers
or, as the case may be, their organisations for engaging in such unfair labour practices. The
Committee after detailed deliberations submitted an unanimous report to the State
Government. The Committee noticed that the concept of unfair labour practice arose after a
long drawn out struggle waged by the trade unions in the West For establishing and
estabilising the practice of collective bargaining. The emergency of the practice of collective
bargaining marks a distinct mile-stone in the progress of the trade union movement. The rise
of the practice of collective bargaining has played an extremely important role in the history
of industrial relations.

Certain general principles of discipline in the industry were agreed upon by the participants at
the 15th Indian Labour Conference and a Tripartite Sub-committee was created to study
additional questions and develop the materials in the form of a Code. This effort also did not
succeed because the Code was merely based on moral sanctions and lacked legislative teeth.
The Committee noticed that in India the system of designating a representative union as a
sole bargaining agent has not been legally accepted, existing in some State legislations,
notably the Bombay Industrial Relations Act. The Government of Maharashtra after taking
into consideration the report of the Committee decided to provide for the recognition of trade
unions for facilitating collective bargaining for certain undertakings and to provide for
prevention for certain unfair labour practices. The Government also considered it necessary
to constitute an independent machinery For fulfilling the dual purpose of according
recognition to unions and of enforcing provisions relating to the unfair labour practices.
Unfair labour practice

Accordingly, the State Legislature passed an Act which came into force from February 1,
1972.

Applicability:
The Maharashtra Trade Union Prevention of Unfair Labour Practices Act, 1971 (MRTU &
PULP Act) is applicable to every industry to which the Bombay Industrial Relations Act and
the Industrial Disputes Act (in which the state government is the appropriate government) are
applicable. It covers every person defined as an “employee” under the Bombay Industrial
Relations Act and as worker under the Industrial Disputes Act.

Features of the Act:

It seeks to:
• provide for recognition of trade unions which will facilitate collective bargaining;
• formalize rights and obligations of unions; • confer powers on unrecognized unions;
• regulate strikes and lockouts by defining the illegality they involve;
• list unfair labour practices and provide for prevention of these;
• constitute relevant labour judiciary institutions to deal with matters arising out of the
provisions of the Act.

Authorities under M.R.T.U. & P.U.L.P. Act, 1971:

Divided into Labour Court and Industrial Court which is tabulated below for seamless
understanding:-

Labour Court:
• Constituted under Section 6 of the Act
• State Government shall by notification in the Official Gazette, constitute one or more
Labour Courts, having jurisdiction in such local areas
• State Government shall appoint persons having the prescribed qualifications to preside over
such Courts as prescribed under Article 234 of the Constitution for being eligible to enter the
judicial service of the State of Maharashtra • Person shall not be more than sixty years of age.

Industrial Court:
• Constituted under Section 4 of the Act
• State Government shall by notification in the Official Gazette, constitute an Industrial Court
• Consist of not less than three members, one of whom shall be the President
Unfair labour practice

• Every member of the Industrial Court shall be a person who is or has been a judge of a High
Court or is eligible for being appointed a Judge of such Court

Definitions:
Unfair labour practices: Refers to any of the practices listed in Schedule II, III and IV of the
Act which includes threatening employees with dismissal if they join a trade union.

Member: As per the Act, it is a person who is an ordinary member of a union and has paid a
subscription to the union of not less than 50 paise per calendar month.

Illegal strike: A strike which is commenced –

 Without giving to the employer notice of strike in the prescribed form, or within
fourteen days of the giving of such notice.
 Where there is a recognized union, without obtaining the vote of the majority of
members of the union in favour of the strike before the notice of the strike is given.
 During the pendency of an arbitration or conciliation proceeding.
Includes further scenarios specified in Section 24 (1) of the Act.

Court: For the purposes of Chapters VI and VII, it means the Industrial Court, or as the case
may be, the Labour Court.

Employee: In relation to an industry to which the Bombay Act for the time being applies,
means an employee as defined in clause (13) of section 3 of the Bombay Act; and in any
other case, means a workman as defined in clause (s) of section 2 of the Central Act.

Employer: In relation to an industry to which the Bombay Act applies, means an employer as
defined in clause (14) of section 3 of the Bombay Act; and in any other case, means an
employer as defined in clause (g) of section 2 of the Central Act.

Union: a trade union of employees, which is registered under the Trade Unions Act, 1926

Recognised Union: A union which has been issued a certificate of recognition under Chapter
III.
Unfair labour practice

SCHEDULE II
Unfair Labour Practices on the part of employers

1. To interfere with, restrain or coerce employees in the exercise of their right to organise,
form, join or assist a trade union and to engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protection, that is to say—
(a) threatening employees with discharge or dismissal, if they join a union ;
(b) threatening a lock-out or closure, if a union should be organised ;
(c) granting wage increase to employees of crucial periods of union organisation, with a view
to undermining the efforts of the union at organisation.

2. To dominate, interfere with, or contribute, support—financial or otherwise— to any union,

that is to say—
(a) an employer taking an active interest in organising a union of his employees ; and
(b) an employer showing partiality or granting favour to one of several unions attempting to
organise his employees or to its members, where such a union is not a recognised union.

3. To establish employer sponsored unions.

4. To encourage or discourage membership in any union by discriminating against any

employee, that is to say—
(a) discharging or punishing an employee because he urged other employees to join or
organise a union ;
(b) discharging or dismissing an employee for taking part in any strike (not being a strike
which is deemed to be an illegal strike under this Act) ;
(c) changing seniority rating of employees because of union activities ;
(d) refusing to promote employees to higher posts on account of their union activities ;
(e) giving unmeritted promotions to certain employees, with a view to sow discord amongst
the other employees, or to undermine the strength of their union ;
(f ) discharging office-bearers or active union members, on account of their union activities.

5. To refuse to bargain collectivelly, in good faith, with the recognised union.

Unfair labour practice

6. Proposing or continuing a lock-out deemed to be illegal under this Act.

SCHEDULE III
Unfair Labour Practices on the part of Trade Unions

1. To advise or actively support or instigate any strike deemed to be illegal under this Act.

2. To coerce employees in the exercise of their right to selforganisation or to join unions or

refrain from joining any union, that is to say—
(a) for a union or its members to picketing in such a manner that non-striking employees are
physically debarred from entering the workplace ;
(b) to indulge in acts of force or violence or to hold out threats of intimidation in connection
with a strike against non-striking employees or against managerial staff.

3. For a recognised union to refuse to bargain collectively in good faith with the employer.

4. To indulge in coercive activities against certification of a bargaining representative.

5. To stage, encourage or instigate such forms of coercive actions as willful “ go slow ”

squatting on the work premises after working hours or “gherao ” of any of the members of
the managerial or other staff.

6. To stage demonstrations at the residences of the employers or the managerial staff

members.
Unfair labour practice

SCHEDULE IV
General Unfair Labour Practices on the part of employers

1. To discharge or dismiss employees—

(a) by way of victimisation ;
(b) not in good faith, but in colourable exercise of the employer’s rights ;
(c) by falsely implicating an employee in a criminal case on false evidence or on concocted
evidence ;
(d) for patently false reasons ;
(e) on untrue or trumped up allegation of absence without leave ;
(f ) in utter disregard of the principles of natural justice in the conduct of domestic enquiry or
with undue haste ;
(g) for misconduct of a minor or technical character, without having any regard to the nature
of the particular misconduct or the past record of service of the employee, so as to amount to
a shockingly dispraportionate punishment.

2. To abolish the work of a regular nature being done by employees, and to give such work to
contractors as a measure of breaking a strike.
3. To transfer an employee mala fide from one place to another, under the guise of following
management policy.
4. To insist upon individual employees, who were on legal strike, to sign a good conduct-
bond, as a pre-condition to allowing them to resume work.
5. To show favouritism or partiality to one set of workers, regardless of merits.
6. To employ employee as “ badlis ”, casuals or temporaries and to continue them as such for
years, with the object of depriving them of the status and privileges of permanent employees.
7. To discharge or discriminate against any employee for filing charges or testifying against
an employer in any enquiry or proceeding relating to any industrial dispute.
8. To recruit employees during a strike which is not an illegal strike.
9. Failure to implement award, settlement or agreement.
10. To indulge in act of force or violence.
Unfair labour practice

Vividh Kamgar Sabha v Kalyani Steels Ltd and Another,

Supreme Court of India
Case No.: Appeal (civil) 3375 of 1998
Petitioner: Vividh Kamgar Sabha Vs.
Respondent: Kalyani Steels Ltd. & ANR.
Date Of Judgment: 09/01/2001
Bench: S. N. Variava, S. R. Babu
Judgment: S. N. Variava
This Appeal is against an Order passed by the Industrial Court on 20th August, 1996. Briefly
stated the facts are as follows: The Appellants claim to be a Union representing the workmen
of a Canteen run by the Respondents. The Appellant Union claimed that even though the
Appellants are actually the employees of the Respondents, the Respondents are not treating
them at par with other employees and have notionally engaged contractors to run the canteen.
As the Respondents were not accepting the Appellants’ claim to treat them as their
employees, the Appellant filed a Complaint under Section 28(1) of the Maharashtra
Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971 (hereinafter
called the MRTU & PULP Act) alleging that the Respondents had engaged in unfair labour
practices under Item Nos. 1, 1(a), 1(b), 4, 4(a) of Schedule II and Items 3, 5, 6, 7, 9 and 10 of
Schedule IV of the MRTU & PULP Act. This Complaint came to be dismissed by the
impugned Order dated 20th August, 1996.
The Appellant Union has filed an SLP directly in this Court against this Order as the High
Court of Bombay, in the case of Krantikari Suraksha Rakshak Sangathana v. S. V. Naik
reported in (1993) 1 CLR Page 1002, has already held that the Industrial Court cannot in a
complaint under MRTU & PULP Act abolish contract labour and treat employees as direct
employees of the company. At this stage it must be mentioned that this Court has also in the
case of Central Labour Union (Red Flag) Bombay v. Ahmedabad Mfg. & Calico Printing Co.
Ltd. and Ors. reported in (1995) 2 LLJ 765, held that where the workmen have not been
accepted by the Company to be its employees, then no complaint would lie under the MRTU
& PULP Act. We are in full agreement with the above mentioned view. The provisions of
MRTU & PULP Act can only be enforced by persons who admittedly are workmen. If there
is dispute as to whether the employees are employees of the Company, then that dispute must
first be got resolved by raising a dispute before the appropriate forum. It is only after the
status as a workmen is established in an appropriate Forum that a complaint could be made
under the provisions of MRTU & PULP Act. Faced with this situation it was submitted that
the Respondent Company had always recognised the members of the Appellant Union to be
their own workmen. It is submitted that a formal denial was taken only to defeat the claim.
We see no substance in this submission. In the written statement it has been categorically
denied that the members of the Appellant Union were employees of the Respondent
Company. The question has been agitated before the Industrial Court. The Industrial Court
Unfair labour practice

has given a finding, on facts, that the members of the Appellant Union were not employees of
the Respondent Company. Thus, the complaint was not maintainable.

GOVERNMENT LAW COLLEGE

CHURCHGATE, MUMBAI

[APPROVED BY THE BAR COUNCIL OF INDIA (BCI)

GOVT. OF INDIA & AFFILIATED TO THE UNIVERSITY OF
MUMBAI]

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STUDENT OF III - I - B ROLL NO. 062 HAS
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DATE:
Unfair labour practice