Industrial Relations Code, 2020 was introduced in Lok Sabha on 19th September 2020 vide Bill No. 120 of 2020. Industrial Relations Code, 2020 is expected to to consolidate and amend the laws relating to Trade Unions, conditions of employment in industrial establishment or undertaking, investigation and settlement of industrial disputes and for matters connected therewith or incidental thereto.
STATEMENT OF OBJECTS AND REASONS
The Second National Commission on Labour, which submitted its report in June 2002, had recommended that the existing set of labour laws should be broadly amalgamated into the following groups, namely:––
(a) industrial relations;
(b) wages;
(c) social security;
(d) safety; and
(e) welfare and working conditions.
2. In pursuance of the recommendations of the said Commission relating to industrial relations and the deliberations made in the tripartite meeting comprising of the Government, employers’ and industry representatives, it has been decided to bring the proposed legislation for amalgamating, simplifying and rationalising the relevant provisions of ––
(a) the Trade Unions Act, 1926;
(b) the Industrial Employment (Standing Orders) Act, 1946; and
(c) the Industrial Disputes Act, 1947.
3. Accordingly, the Industrial Relations Code, 2019 was introduced in Lok Sabha on the 28th November, 2019, which was referred to the Department-related Parliamentary Standing Committee on Labour for its examination and report. The said Committee submitted its Eighth Report on the 23rd April, 2020 recommending various modifications in the said Bill to give impetus to the economic activity in the country without compromising on the basic aspects of the benefit to workers. Considering the valuable recommendations of the said Parliamentary Standing Committee, the Government proposes to withdraw the Industrial Relations Code, 2019 pending in Parliament and introduce a new Bill, namely, the Industrial Relations Code, 2020 with certain modifications.
4. The proposed legislation provides for a broader framework to protect the rights of workers to form unions, to minimise the friction between the employers and workers and to provide provisions for investigation and settlement of industrial disputes. The object of the proposed legislation is to achieve industrial peace and harmony as the ultimate pursuit in resolving industrial disputes and to advance the progress of industry by bringing about the existence of harmony and cordial relationship between the employers and workers.
5. The salient features of the Industrial Relations Code, 2020, inter alia, are as follows:—
(i) to define “workers” which includes the persons in supervisory capacity getting wages up to eighteen thousand rupees per month or an amount as may be notified by the Central Government from time to time;
(ii) to provide for fixed term employment with the objective that the employee gets all the benefits like that of a permanent worker (including gratuity), except for notice period after conclusion of a fixed period, and retrenchment compensation. The employer has been provided with the flexibility to employ workers on fixed term basis on the basis of requirement and without restriction on any sector;
(iii) to revise the definition of “industry” that any systematic activity carried on by co-operation between the employer and workers for the production, supply or distribution of goods or services with a view to satisfy human wants or wishes (not being wants or wishes which are merely spiritual or religious in nature) with certain exceptions;
(iv) to bring concerted casual leave within the ambit of the definition of strike;
(v) to provide the maximum number of members in the Grievance Redressal Committee up to ten in an industrial establishment employing twenty or more workers. There shall be adequate representation of the women workers therein in the proportion of the women workers to the total workers employed in the industrial establishment;
(vi) to provide for a new feature of recognition of negotiating union and negotiating council in an industrial establishment by an employer for the purpose of negotiations. The criterion for recognition of negotiating union has been fixed at fifty-one per cent. or more workers on a muster roll of that industrial establishment. As regards negotiating council, a Trade Union having support of every twenty per cent. of workers will get one seat in the negotiating council and the fraction above twenty per cent. shall be disregarded;
(vii) to provide for appeal against non-registration or cancellation of registration of Trade Union before the Industrial Tribunal;
(viii) to empower the Central Government and the State Governments to recognise a Trade Union or a federation of Trade Unions as the Central Trade Union or State Trade Unions, respectively;
(ix) to provide for applicability of threshold of three hundred or more workers for an industrial establishment to obtain certification of standing orders, if the standing order differ from the model standing order made by the Central Government;
(x) to provide that if the employer prepares and adopts model standing order of the Central Government with respect to the matters relevant to the employer’s industrial establishment, then the model standing order would be deemed to be certified. Otherwise, the industrial establishment may seek certification of only those clauses which are different from the model standing orders;
(xi) to set up Industrial Tribunal consisting of a Judicial Member and an Administrative Member, in place of only Judicial Member who presently presides the Tribunal. For certain specified cases, the matters will be decided by the two-member Tribunal and the remaining shall be decided by single-member Tribunal as may be provided for in the rules;
(xii) to set up Industrial Tribunals in the place of existing multiple adjudicating bodies like the Court of Inquiry, Board of Conciliation and Labour Courts;
(xiii) to remove the reference system for adjudication of Industrial Disputes, except the reference to the National Industrial Tribunal for adjudication;
(xiv) to provide that the commencement of conciliation proceedings shall be deemed to have commenced on the date of the first meeting held by the conciliation officer in an industrial dispute after the receipt of the notice of strike or lock-out by the conciliation officer;
(xv) to prohibit strikes and lock-outs in all industrial establishments without giving notice of fourteen days;
(xvi) to provide for the obligation on the part of industrial establishments pertaining to mine, factories and plantation having three hundred or more workers to take prior permission of the appropriate Government before lay-off, retrenchment and closure with flexibility to the appropriate Government to increase the threshold to higher numbers, by notification;
(xvii) to set up a re-skilling fund for training of retrenched workers. The fund shall, inter alia, consist of the contribution of the employer of an amount equal to fifteen days wages last drawn by the worker immediately before the retrenchment or such other number of days, as may be notified by the Central Government, in case of retrenchment only. The fund shall be utilised by crediting fifteen days wages last drawn by the worker to his account who is retrenched, within forty-five days of the retrenchment as may be provided by rules;
(xviii) to provide for compounding of offences by a Gazetted Officer, as the appropriate Government may, by notification, specify, for a sum of fifty per cent. of the maximum fine provided for such offence punishable with fine only and for a sum of seventy-five per cent. provided for such offence punishable with imprisonment for a term which is not more than one year, or with fine;
(xix) to provide for penalties for different types of violations to rationalise with such offences and commensurate with the gravity of the violations;
(xx) to empower the appropriate Government to exempt any industrial establishment from any of the provisions of the Code in the public interest for the specified period.
6. The notes on clauses explain in detail the various provisions contained in the Bill.
7. The Bill seeks to achieve the above objectives.
Notes on Clauses
Clause 2 of the Bill seeks to define certain expressions used in the proposed Code, which, inter alia, include ‘appropriate Government’, ‘arbitrator’, ‘banking company’, ‘controlled industry’, ‘Industry’, ‘lay-off’, ‘lock-out’, ‘metro railway’, ‘railway’, ‘Tribunal’, ‘unfair labour practice’, ‘unorganised sector’ and ‘wages’.
Clause 3 of the Bill seeks to provide for Works Committee. Works committee shall consist of representatives of employer and workers and the representatives of workers on the committee shall not be less than the number of representatives of the employer. The duty of the Works Committee inter alia shall be to promote measures for securing and preserving amity and good relations between the employer and workers.
Clause 4 of the Bill seeks to provide for Grievance Redressal Committee. The threshold limit for constituting Grievance Redressal Committee for the resolution of disputes arising out of grievances of individual workers is twenty or more workers employed in the concerned industrial establishment. The said clause contains provisions for filing application in respect of dispute by the aggrieved worker, the constitution of Grievance Redressal Committee including selection of its Chairpersons, the maximum number of the committee, the time limit for completing its proceedings, the manner of its decision, and the filing of the application for the adjudication against the decision of the Grievance Redressal Committee or the adjudication of grievance which is not resolved in the committee within thirty days.
Clause 5 of the Bill seeks to provide for Registrar of Trade Unions. The Registrar, Additional Registrar, Joint Registrar and Deputy Registrar of a trade union shall be appointed by the State Government by notification and their respective powers and duties shall be specified in the notification and the other officers shall be deemed to be Registrar subject to the order of the State Government in relation to the trade union, office of which exist within the area of jurisdiction.
Clause 6 of the Bill seeks to provide for the criteria for registration of a Trade Union. Seven or more members of a trade union may apply for its registration and the trade union connected with the establishment or industry shall be registered only at least ten per cent. of the workers or one hundred workers of the establishment or industry or the member of the trade union. It also provides that the application of registration shall not be invalid for the fact that after filing the application and before registration not exceeding half of the total number of persons who made the application have ceased to be members or dissociated from the application. It is further required that after registration not less than ten per cent. of the workers or one hundred workers, whichever is less of such establishment or industry subject to a minimum of seven shall at all time continue to be the members of the trade union.
Clause 7 of the Bill seeks to provide for provisions to be contained in constitution or rules of Trade Union. In case the matters specified in the said clause are not provided in the rules of the Trade Union and the executive of the Trade Union is not constituted in accordance with the provisions of the proposed Code, the Trade Union shall not be entitled for registration.
Clause 8 of the Bill seeks to provide for application for registration, alteration of name and procedure thereof. Every application for registration of a Trade Union shall be made to the Registrar in the manner as may be provided by rules.
Clause 9 of the Bill seeks to provide for registration and cancellation of Trade Union. Where the Registrar is satisfied that the application for registration is complete make an order within forty-five days for granting or refusing to grant registration and communicate the same to the applicant Trade Union electronically or otherwise. For refusing the registration he has to give reason. On registration the Registrar shall issue to the applicant trade union a certificate of registration which shall be the conclusive evidence of registration and enter the name and other particulars in the register. Trade Union registered under the Trade Unions Act, 1926 having valid registration immediately before the commencement of the proposed Code shall be deemed to have been registered under that Code. It also provide regarding the withdrawn or cancellation of the certificate of the registration.
Clause 10 of the Bill seeks to provide for appeal against non-registration or cancellation of registration. Any person aggrieved by the refusal to grant registration of a Trade Union, or cancellation of a certificate of registration of a Trade Union, by Registrar may within the period specified by rules prefer an appeal to the Tribunal. The Tribunal has power to condone the delay on its satisfaction in filing the appeal. The Tribunal may, after giving hearing to the parties dismiss the appeal or pass an order for registration of the Trade Union and to issue a certificate of registration or set aside the order of cancellation of the certificate of registration and forward a copy of order to the Registrar.
Clause 11 of the Bill seeks to provide for registered office of Trade Union. All communications and notices to a registered Trade Union shall be addressed to the head office of the Trade Union as entered in the register maintained by the Registrar.
Clause 12 of the Bill seeks to provide for incorporation of a registered Trade Union.
Clause 13 of the Bill seeks to provide for certain Acts not to apply to registered Trade Unions as mentioned in the said clause.
Clause 14 of the Bill seeks to provide for recognition of negotiating union or negotiating council for negotiating with the employer of the industrial establishment. The details of the recognition and the validity period of recognition are specified in the clause.
Clause 15 of the Bill seeks to provide for objects of general fund, composition of separate fund and membership fee of the Trade Union. The general funds of a registered Trade Union shall not be spent on any objects other than such as may be prescribed objects.
Clause 16 of the Bill seeks to provide for immunity from civil suit in certain cases. No suit or other legal proceeding shall be maintainable in any civil court against any registered Trade Union or any office-bearer or member thereof in certain cases as specified in the clause.
Clause 17 of the Bill seeks to provide for criminal conspiracy in furtherance of objects of Trade Union. No office-bearer or member of a registered Trade Union shall be liable to punishment under sub-section (2) of section 120B of the Indian Penal Code, unless such agreement is an agreement to commit an offence.
Clause 18 of the Bill seeks to provide for enforceability of agreements. Notwithstanding anything contained in any other law for the time being in force, an agreement between the members of a registered Trade Union shall not be void or voidable merely by reason of the fact that any of the objects of the agreement are in restraint of trade.
Clause 19 of the Bill seeks to provide for the right of an office-bearer or member of the Trade Union to inspect books of Trade Union.
Clause 20 of the Bill seeks to provide for rights of minor to membership of Trade Union. Any person who has attained the age of fourteen years, who is employed in a nonhazardous industry, may be a member of a registered Trade Union subject to any rules of the Trade Union.
Clause 21 of the Bill seeks to provide for disqualification of office-bearers of Trade Unions. A person shall be disqualified for being chosen as, and for being, a member of the executive or any other office-bearer of a registered Trade Union for the reasons as mentioned in the clause.
Clause 22 of the Bill seeks to provide for adjudication of disputes of Trade Unions. In case of a registered Trade Union, where a dispute arises between the parties as specified in the clause, an application may be made in such manner as may be provided by rules, to the Tribunal having jurisdiction.
Clause 23 of the Bill seeks to provide for proportion of office-bearers to be connected with industry. Not less than one-half of the total number of the office-bearers of every registered Trade Union in an unorganised sector shall be persons actually engaged or employed in an establishment or industry with which the Trade Union is connected.
Clause 24 of the Bill seeks to provide for change of name, amalgamation, notice of change and its effect as provided in the clause.
Clause 25 of the Bill seeks to provide for dissolution of a registered Trade Union in the manner as specified in the clause.
Clause 26 of the Bill seeks to provide for filing of annual returns by Trade Union.
Clause 27 of the Bill seeks to provide for recognition of Trade Unions at Central and State level in the manner as specified in the clause by the Central Government and State Government, respectively.
Clause 28 of the Bill seeks to provide for application of Chapter IV of the proposed Code. The provisions of said Chapter IV shall apply to every industrial establishment wherein three hundred or more than three hundred as may be notified by the appropriate Government, are employed, or were employed on any day of the preceding twelve months.
Clause 29 of the Bill seeks to provide for making of model standing orders by Central Government and temporary application. The Central Government shall make model standing orders relating to conditions of service and other matters incidental thereto or connected therewith.
Clause 30 of the Bill seeks to provide for preparation of draft standing orders by employer and procedure for certification in the manner as specified in the clause.
Clause 31 of the Bill seeks to provide for certifying officers to have powers of civil court. Every certifying officer shall have all the powers of a civil court for the purposes of receiving evidence, administering oath, enforcing the attendance of witnesses, and compelling the discovery and production of documents, and shall be deemed to be a civil court within the meaning of sections 345 and 346 of the Code of Criminal Procedure, 1973.
Clause 32 of the Bill seeks to provide for appeals as specified in the clause.
Clause 33 of the Bill seeks to provide for date of operation of standing orders and its availability as specified in the clause.
Clause 34 of the Bill seeks to provide for register of standing orders. A copy of all standing orders as finally certified under this Code shall be uploaded by the certifying officer in the electronic form or such other form as may be provided by rules and for the purpose as specified in the clause.
Clause 35 of the Bill seeks to provide for duration and modification of standing orders. An employer or worker or a Trade Union or other representative body of the workers may apply to the certifying officer to have the standing orders modified in such application as may be provided by rules subject to provision of sub-clause (1) of the said clause.
Clause 36 of the Bill seeks to provide for non-admissibility of oral evidence in contradiction of standing orders.
Clause 37 of the Bill seeks to provide for interpretation, etc., of standing orders as specified in the clause.
Clause 38 of the Bill seeks to provide for time limit for completing disciplinary proceedings and liability to pay subsistence allowance as specified in the clause.
Clause 39 of the Bill seeks to provide for power to exempt. Appropriate Government may, by notification, exempt, conditionally or unconditionally, any industrial establishment or class of industrial establishments from all or any of the provisions of Chapter IV.
Clause 40 of the Bill seeks to provide for notice of change. No employer, who proposes to effect any change in the conditions of service applicable to any worker in respect of any matter specified in the Third Schedule, shall effect such change as specified in the clause.
Clause 41 of the Bill seeks to provide for power of appropriate Government to exempt. Where the appropriate Government is of the opinion that the application of the provisions of clause 40 to any class of industrial establishments or to any class of worker employed in any industrial establishment affect the employers. Such Government may, by notification, direct that the provisions of the said clause shall not apply or shall apply, subject to such conditions as may be specified in the notification, to that class of industrial establishments or to that class of workers employed in any industrial establishment.
Clause 42 of the Bill seeks to provide for voluntary reference of disputes to arbitration as specified in the clause.
Clause 43 of the Bill seeks to provide for conciliation officers. The appropriate Government may, by notification, appoint such number of persons, as it thinks fit to be conciliation officers, charged with the duty of mediating in and promoting the settlement of industrial disputes.
Clause 44 of the Bill seeks to provide for constitution of one or more Industrial Tribunal and other details for the purposes of such Tribunal as specified in the clause.
Clause 45 of the Bill seeks to provide for finality of constitution of Tribunal. No notification of Appropriate Government, act or proceeding before a tribunal shall be called in question in any manner mainly relating to existence of any vacancy in, or defect in constitution of Tribunal.
Clause 46 of the Bill seeks to provide for constitution of one or more National Industrial Tribunal.
Clause 47 of the Bill seeks to provide for decision of Tribunal or National Industrial Tribunal. The decision of a Tribunal or a National Industrial Tribunal, as the case may be, shall be by consensus of the members. In case of difference of opinion the reference is to be made to the appropriate Government in the manner as specified in the clause.
Clause 48 of the Bill seeks to provide for disqualifications for members of Tribunal, and National Industrial Tribunal on the ground of not being an independent person or has attained the age of sixty-five years.
Clause 49 of the Bill seeks to provide for procedure and powers of arbitrator, conciliation officer, Tribunal and National Industrial Tribunal.
Clause 50 of the Bill seeks to provide for powers of Tribunal and National Industrial Tribunal to give appropriate relief in case of discharge or dismissal of worker.
Clause 51 of the Bill seeks to provide for transfer of pending cases. On and from the date of commencement of the proposed Code, the cases pending immediately before such commencement in Labour Court, Tribunal, and National Tribunal constituted under Industrial Disputes Act, 1947 shall be transferred to Tribunal and National Industrial Tribunal, respectively having corresponding jurisdiction under the proposed Code.
Clause 52 of the Bill seeks to provide for adjustment of services of presiding officers under the repealed Act as specified under the clause.
Clause 53 of the Bill seeks to provide for conciliation and adjudication of dispute as specified in the clause.
Clause 54 of the Bill seeks to provide for functions of National Industrial Tribunal. The Central Government may refer an industrial dispute to a National Industrial Tribunal which in the opinion of such Government involves question of national importance or is of such nature that Industries situated in more than one State are interested or affected by such industrial dispute.
Clause 55 of the Bill seeks to provide for form of award its communication and commencement as specified in the clause.
Clause 56 of the Bill seeks to provide for payment of full wages to worker pending proceedings in higher Courts. In any case, where a Tribunal or a National Industrial Tribunal by its award directs reinstatement of any worker and the employer prefers any proceedings against such award in a High Court or the Supreme Court, the employer shall be liable to pay such worker, during the period of pendency of such proceedings in the High Court or the Supreme Court, full wages last drawn by him as specified in the clause.
Clause 57 of the Bill seeks to provide for persons on whom settlements and awards are binding. A settlement arrived at by agreement between the employer and worker otherwise than in the course of conciliation proceeding shall be binding on the parties to the agreement.
Clause 58 of the Bill seeks to provide for period of operation of settlements and awards. A settlement shall come into operation on such date as is agreed upon by the parties to the dispute, and if no date is agreed upon, on the date on which the memorandum of the settlement is signed by the parties to the dispute. An award shall, subject to the provisions of this clause, remain in operation for a period of one year from the date on which the award becomes enforceable under clause 53.
Clause 59 of the Bill seeks to provide for recovery of money due from employer in the manner a specified in the clause.
Clause 60 of the Bill seeks to provide for commencement and conclusion of proceedings. A conciliation proceeding shall be deemed to have commenced on the date on which the first meeting is held by the conciliation officer after the receipt of the notice of strike or lock-out by the conciliation officer. A conciliation proceeding shall be deemed to have concluded as specified in the clause.
Clause 61 of the Bill seeks to provide for certain matters to be kept confidential in the manner as specified in the clause.
Clause 62 of the Bill seeks to provide for prohibition of strikes and lock-outs. No person employed in industrial establishment shall go on strike in breach of contract for the reasons as specified in the sub-clause (1) of the said clause. No employer of an industrial establishment shall lock-out any of his workers for the reasons as specified in the sub-clause (2) of the said clause.
Clause 63 of the Bill seeks to provide for illegal strikes and lock-outs. A strike or lock-out shall be illegal if it is done in the manner as specified in the clause.
Clause 64 of the Bill seeks to provide for prohibition of financial aid to illegal strikes or lock-outs.
Clause 65 of the Bill provide for application of clauses 67 to 69. It, inter alia, provides that the provisions of clauses 67 to 69, relating to rights of workers laid off for compensation, etc., and duty of an employer to maintain muster roll of workers who are not entitled to compensation in certain cases, shall not apply to industrial establishments to which provisions of Chapter X of the proposed Code, which are special provisions relating to lay off, retrenchment and closure in certain establishments applies, and shall also not apply to industrial establishments in which less than fifty workers on average per working day have been employed in the presiding calendar month and to industrial establishments which are of seasonal character in which work is performed intermittently.
Clause 66 of the Bill seeks to provide for definition of continuous service. Continuous service in relation to a worker means the uninterrupted service of such worker, including his service which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal or a lock-out or a cessation of work which is not due to any fault on the part of the worker.
Clause 67 of the Bill seeks to provide for rights of workers laid-off for compensation, etc. A worker (other than a badli worker or a casual worker) whose name is borne on the muster rolls of an industrial establishment and who has completed not less than one year of continuous service under an employer is laid-off, he shall be paid by the employer for all days during which he is so laid-off, except for such weekly holidays as may intervene, compensation which shall be equal to fifty per cent. of the total of the basic wages and dearness allowance that would have been payable to him, had he not been so laid-off.
Clause 68 of the Bill seeks to provide for duty of an employer to maintain muster rolls of workers.
Clause 69 of the Bill seeks to provide for workers not entitled for compensation in certain cases. No compensation shall be paid to a worker who has been laid-off for the reasons as specified in the clause.
Clause 70 of the Bill seeks to provide for conditions precedent to retrenchment of workers. No worker employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer except for reasons mentioned in the clause.
Clause 71 of the Bill seeks to provide for procedure for retrenchment as specified in the clause. The employer shall ordinarily retrench the worker who was the last person employed in that category subject to the agreement made between them in this behalf. For the reasons to be recorded the employer can retrench any other worker.
Clause 72 of the Bill seeks to provide for re-employment of retrenched worker. Any retrenched worker may be re-employed within one year of such retrenchment as may be provided by rules.
Clause 73 of the Bill seeks to provide for compensation to workers in case of transfer of establishment as specified in the clause.
Clause 74 of the Bill seeks to provide for sixty days’ notice to be given of intention to close down any undertaking. An employer who intends to close down an undertaking shall serve, at least sixty days to the appropriate Government before the date on which the intended closure is to become effective, a notice, in such manner as may be provided by rules.
Clause 75 of the Bill seeks to provide for compensation to workers in case of closing down of undertakings. Where an establishment is closed down for any reason whatsoever, every worker who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-clause (2), be entitled to notice and compensation in accordance with the provisions of clause 70, which provides for the conditions precedent to retrenchment of workers.
Clause 76 of the Bill seeks to provide for effect of laws inconsistent with Chapter IX of the proposed Code. The provisions of said Chapter IX shall have effect notwithstanding anything inconsistent therewith contained in any other law including standing orders made under Chapter IV of the proposed Code.
Clause 77 of the Bill seeks to provide for application of Chapter X of the proposed Code. The provisions of said Chapter X shall apply to an industrial establishment (not being an establishment of a seasonal character or in which work is performed only intermittently) in which not less than three hundred workers, or such higher number of workers as may be notified by the appropriate Government, were employed on an, average per working day in the preceding twelve months. For the purposes of said Chapter X Industrial establishment means a factory, a mine and a plantation.
Clause 78 of the Bill seeks to provide for prohibition of lay-off. No worker (other than a badli worker or a casual worker) whose name is borne on the muster rolls of an industrial establishment to which Chapter X of the proposed Code applies shall be laid-off by his employer except with the prior permission of the appropriate Government or such authority as may be specified by that Government by notification.
Clause 79 of the Bill seeks to provide for conditions precedent to retrenchment of workers to which Chapter X of the proposed Code applies. No worker employed in any industrial establishment who has been in continuous service for not less than one year under an employer shall be retrenched by that employer except for reasons mentioned in the clause.
Clause 80 of the Bill seeks to provide for procedure for closing down an undertaking of an industrial establishment. An employer who intends to close down an undertaking of an industrial establishment to which Chapter X of the proposed Code applies shall, in the manner provided by rules, apply, for prior permission at least ninety days before the date on which the intended closure is to become effective, to the appropriate Government.
Clause 81 of the Bill seeks to provide for duty of an employer to maintain muster rolls of workers and to provide for the making of entries therein by workers who may present themselves for work at the establishment at the appointed time during normal working hours.
Clause 82 of the Bill seeks to provide for certain provisions of Chapter IX of the proposed Code to be applied to industrial establishment to which the Chapter containing clause 82 applies. The provisions of clauses 66, 71, 72, 73 and clause 76 in said Chapter IX shall, so far as may be, apply also in relation to an industrial establishment to which the provisions of Chapter X of the Code apply.
Clause 83 of the Bill seeks to provide for worker re-skilling fund. The appropriate Government shall, by notification, set up a fund to be called the worker re-skilling fund, referred to in the clause as “fund”. The fund shall consist of contribution as mentioned in the clause.
Clause 84 of the Bill seeks to provide for prohibition of unfair labour practice. Employer or worker or a Trade Union, whether registered under proposed Code, or not, is prohibited from practicing unfair labour practice specified in the Second Schedule.
Clause 85 of the Bill seeks to provide for power of officers of appropriate Government to impose penalty in certain cases as specified in the clause.
Clause 86 of the Bill seeks to provide for penalties. Any person, employer, every office-bearer or other person bound by the rules of the Trade Union, worker shall be punished for the reasons as specified in the clause.
Clause 87 of the Bill seeks to provide for cognizance of offences. This provision bars the court to take cognizance of any offence punishable under the proposed Code, save on a complaint made by or under the authority of the appropriate Government.
Clause 88 of the Bill seeks to provide for offences by companies. If the person committing an offence under the proposed Code is a company, every person who, at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
Clause 89 of the Bill seeks to provide for composition of offences as provided under the clause.
Clause 90 of the Bill seeks to provide for conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings. Such conditions of service of the workers relates to the pending industrial dispute.
Clause 91 of the Bill seeks to provide for special provision for adjudication as to whether conditions of service, etc., changed during pendency of proceedings.
Clause 92 of the Bill seeks to provide for power to transfer certain proceedings. Such transfer relate to the transfer of proceeding pending before a tribunal to another tribunal by the appropriate Government. The Central Government is empowered to withdraw a pending proceeding from a tribunal and to transfer the same to the National Industrial Tribunal as specified in the clause. The Central Government may empower a Tribunal constituted by the State Government to entertain and dispose of the cases arising within their respective jurisdiction under the provisions of the proposed Code, where the appropriate Government is the Central Government.
Clause 93 of the Bill seeks to provide for protection of persons. The persons refusing to take part or to continue to take part in any illegal strike or lock-out are protected under the Clause.
Clause 94 of the Bill seeks to provide for representation of parties. A worker and an employer who is a party to a dispute shall be entitled to be represented in any proceeding under the proposed Code by representations specified in the clause.
Clause 95 of the Bill seeks to provide for removal of doubts in interpretation of award or settlement. If, in the opinion of the appropriate Government, any difficulty or doubt arises as to the interpretation of any provision of an award or settlement, it may refer the question to such Tribunal or National Industrial Tribunal as it may think fit whose decision shall be final and binding on all such parties.
Clause 96 of the Bill seeks to provide for power to exempt as specified in the clause.
Clause 97 of the Bill seeks to provide for barring of jurisdiction of civil courts in respect of any matter to which any provision of the proposed Code applies and no injunction shall be granted by any civil court in respect of anything which is done or intended to be done by or under the proposed Code.
Clause 98 of the Bill seeks to provide for protection of a person from legal proceeding if action is taken in good faith in pursuance of the proposed Code.
Clause 99 of the Bill seeks to provide for power to make rules. The appropriate Government may, subject to the condition of previous publication, make rules for the purpose of giving effect to the provisions of the proposed Code. It is also provided for dispensing with or reducing the time period for previous publication in the public interest.
Clause 100 of the Bill seeks to provide for delegation of powers. The appropriate Government may, by notification, direct that any power exercisable by it under the proposed Code or rules made thereunder shall, in relation to such matters and subject to such conditions, if any, as may be specified in the direction as specified in the clause.
Clause 101 of the Bill seeks to provide for power to amend Schedules. The Central Government may, by notification, add to or alter or amend the First Schedule or the Second Schedule or the Third Schedule and on any such notification being issued, the First Schedule or the Second Schedule or the Third Schedule, as the case may be, shall be deemed to be amended accordingly.
Clause 102 of the Bill seeks to provide for amendment of Finance Act, 2017 as specified in the clause.
Clause 103 of the Bill seeks to provide for power of Central Government to remove difficulties by the order published in the Official Gazette. Such order shall not be made after the expiry of three years from the date on which the proposed Code comes into force.
Clause 104 of the Bill seeks to provide for repeal and savings. The enactments which are being repealed are enumerated in the clause.
FINANCIAL MEMORANDUM
Clause 44 of the Bill provides for the constitution of the Industrial Tribunal consisting of two members, namely, one Judicial Member and one Administrative Member. Similarly, clause 46 of the Bill provides for the National Industrial Tribunal consisting of two members, namely, one Judicial Member and one Administrative Member. At present, the Industrial Tribunal is comprised only of a Presiding Officer and similarly the National Industrial Tribunal is comprised of a Presiding Officer. In this way, the increase in the members of the both Industrial Tribunal and the National Industrial Tribunal will increase the expenditure from the Consolidated Fund of India, when the proposed Code will be enacted and brought into operation. Such expenditure is estimated to be twelve crore rupees as recurring and one crore rupees as non-recurring.
MEMORANDUM REGARDING DELEGATED LEGISLATION
Certain provisions of the Bill empower the Central Government or the State Government or the appropriate Government, as the case may be, to issue notification for various purposes.
2. Sub-clause (g) of clause 2 of the Bill empowers the appropriate Government to appoint a certifying officer by notification to perform the functions of a certifying officer under the provisions of Chapter IV.
3. Sub-clause (p) of clause 2 of the Bill empowers the Central Government to specify any other activity which could be excluded from the definition of “industry”.
4. Sub-clause (1) of clause 5 of the Bill empowers the State Government to appoint a person to be the Registrar of Trade Unions by notification, and other persons as Additional Registrar of Trade Unions, Joint Registrar of Trade Unions and Deputy Registrar of Trade Unions who shall exercise such powers and perform such duties of the Registrar as the State Government may, by notification, specify from time to time.
5. Explanation to sub-clause (1) of clause 23 of the Bill empowers the appropriate Government to specify any sector as “unorganised sector” by notification.
6. Clause 39 of the Bill empowers the appropriate Government to exempt by notification, conditionally or unconditionally, any industrial establishment or class of industrial establishments from all or any of the provisions of Chapter IV.
7. Clause 41 provides that where the appropriate Government is of the opinion that the application of the provisions of clause 40 to any class of industrial establishments or to any class of worker employed in any industrial establishment affect the employers in relation thereto so prejudicially that such application may cause serious repercussion on the industry concerned and that public interest so requires, the appropriate Government may, by notification, direct that the provisions of the said section shall not apply or shall apply, subject to such conditions as may be specified in the notification, to that class of industrial establishments or to that class of workers employed in any industrial establishment.
8. Sub-clause (1) of clause 43 of the Bill empowers the appropriate Government to appoint by notification such number of persons, as it thinks fit to be conciliation officers, charged with the duty of mediating in and promoting the settlement of industrial disputes.
9. Sub-clause (1) of clause 44 of the Bill empowers the appropriate Government to constitute by notification one or more Industrial Tribunals for the adjudication of industrial disputes and for performing such other functions as may be assigned to them under this Bill.
10. Sub-clause (1) of clause 46 of the Bill empowers the Central Government to constitute by notification one or more National Industrial Tribunals for the adjudication of industrial disputes which, in the opinion of that 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.
11. Clause 70 of the Bill, inter alia, provides that no worker employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until notice in such manner as may be provided by rules is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification.
12. Clause 77 of the Bill, inter alia, provides that the provisions of Chapter X shall apply to an industrial establishment (not being an establishment of a seasonal character or in which work is performed only intermittently) in which not less than three hundred workers, or such number of workers as may be notified by the appropriate Government, were employed on an, average per working day in the preceding twelve months.
13. Sub-clause (1) of clause 83 empowers the appropriate Government to set up by notification a fund to be called the worker re-skilling fund.
14. Sub-clause (1) of clause 89 of the Bill empowers the appropriate Government to specify a Gazetted Officer for the purpose of compounding offences in accordance with the provisions of the said clause.
15. Sub-clause (3) of clause 92 of the Bill provides that the Central Government may, by notification, and for reasons to be stated therein, empower a Tribunal constituted by the State Government to entertain and dispose of the cases arising within their respective jurisdiction under the provisions of the Bill where the appropriate Government is the Central Government.
16. Sub-clause (1) of clause 96 of the Bill provides that where the appropriate Government is satisfied in relation to any industrial establishment or undertaking or any class of industrial establishments or undertakings carried on by a department of that Government that adequate provisions exist to fulfil the objects of any provision of this Bill, it may, by notification, exempt, conditionally or unconditionally such establishment or undertaking or, class of establishments or undertakings from that provision of this Code. Further, sub-clause (2) of the said clause provides that notwithstanding anything contained in sub-clause (1), where the appropriate Government is satisfied that it is necessary in the public interest so to do, it may, by notification, exempt, conditionally or unconditionally, any new establishment or new undertaking or class of new establishments or new undertakings from all or any of the provisions of this Code for such period from the date of establishment of such new industrial establishment or new undertaking or class of new establishments or new undertakings, as the case may be, as may be specified in the notification.
17. Sub-clause (1) of clause 101 empowers the Central Government to add to or alter or amend by notification the First Schedule or the Second Schedule or the Third Schedule and sub-clause (2) of the said clause provides that every such notification issued by the Central Government is required to be laid before each House of Parliament.
18. Sub-clause (1) of clause 99 empowers the appropriate Government, subject to the condition of previous publication, to make rules for carrying out the provisions of the proposed legislation. Sub-clause (2) specifies the matters in respect of which such rules may be made. These matters, inter alia, include: (a) written agreement between the employer and worker arrived at otherwise than in the course of conciliation proceeding to arrive at a settlement under sub-clause (zf) of clause 2; (b) constitution of Works Committee and choosing of representatives of employer and workers engaged in the establishment under clause 3; (c) manner of choosing members from the employer and the workers for Grievance Redressal Committee under sub-clause (2) of clause 4; (d) application in respect of any dispute to be filed before the Grievance Redressal Committee by any aggrieved worker under sub-clause (5) of clause 4; (e) manner of filing application for the conciliation of grievance as against the decision of the Grievance Redressal Committee to the conciliation officer under sub-clause (8) of clause 4; (f) the payment of a subscription by members of the Trade Union and donation from such members and others under sub-clause (f) of clause 7; (g) manner of annual audit under sub-clause (j) of clause 7; (h) form of declaration to be made by an affidavit and the manner of making the same under sub-clause (1) of clause 8; (i) general statement of the assets and liabilities of the Trade Union prepared in such form and containing such particulars under sub-clause (2) of clause 8; (j) the form of application for registration under sub-clause (1), and the form of issuing certificate of registration to be issued by the Registrar to the applicant Trade Union under sub-clause (2), of clause 9; (k) the form of entering the name and other particulars of Trade Union in a register maintained by the Registrar in this behalf under sub-clause (3) of clause 9; (l) verification of application of the Trade Union under sub-clause (5) of clause 9; (m) period within which appeal is to be preferred by Trade Union to Tribunal under sub-clause (1) of clause 10; (n) sending of communication and notices under sub-clause (1) and the manner to inform the Registrar under sub-clause (3) of clause 11; (o) matters on which negotiating union or negotiating council, as the case may be, in an industrial establishment may negotiate with the employer of the industrial establishment under sub-clause (1) and the criteria to be followed by the employer of industrial establishment under sub-clause (2), of clause 14; (p) manner of verification of workers on the muster roll of the industrial establishment, under sub-clauses (3) and (4) and the facilities to be provided by industrial establishment to a negotiating union or negotiating council under sub-clause (7), of clause 14; (q) the objects under sub-clause (1) and sub-clause (2) and the subscription payable under sub-clause (4), of clause 15; (r) manner of making application for adjudication before the Tribunal under sub-clause (1) of clause 22; (s) the manner of amalgamation under sub-clause (2), and the manner of sending signed amalgamation to the Registrar of different State under sub-clause (3), of clause 24; (t) distribution of funds of the Trade Union on dissolution by Registrar under sub-clause (2) of clause 25; (u) the date before which a general statement shall be forwarded annually to the Registrar, the particulars to be contained in general statement and its form, the person by whom and the manner in which such general statement shall be audited under sub-clause (1) of clause 26; (v) manner of recognition of a Trade Union or a federation of Trade Unions by the State Government as a State Trade Union at the State level and the authority and the manner of deciding dispute by it under sub-clause (2) of clause 27; (w) the manner of forwarding information to the certifying officer under sub-section (2) of section 30 and the period within which the amendment of standing order is to be done as observed by the certifying officer under the proviso thereof; (x) manner of choosing representatives of the workers of the industrial establishment or undertaking for issuing notice by certifying officer, where there is no Trade Union operating, under sub-clause (5) and the manner of authentication of certified standing orders under sub-clause (8), of clause 30; (y) statement to be accompanied with draft standing orders under sub-clause (9) of clause 30; (z) conditions for submission of draft standing orders by group of employers in similar establishment under sub-clause (10) of clause 30; (za) manner of disposal of appeal by the appellate authority under clause 32; (zb) the manner of sending copies of the order of the appellate authority under sub-clause (1) and the language and the manner of maintaining standing order under sub-clause (2) of clause 33; (zc) form of register for filing finally certified standing orders by the certifying officer and fee for furnishing certified copy of such orders under clause 34; (zd) application for modification of standing orders to be made before certifying officer under sub-clause (2) of clause 35; (ze) the manner of giving of notice of the nature of the change proposed to be effected under sub-clause (i) of clause 40; (zf) form of arbitration agreement and the manner to be signed by the parties thereto under sub-clause (3) of clause 42; (zg) manner of issuance of notification where an industrial dispute has been referred to arbitration under sub-clause (5) of clause 42; (zh) manner of choosing representatives of the workers where there is no Trade Union under the proviso to sub-clause (5) of clause 42; (zi) manner of filling up the vacancy under sub-clause (9) of clause 44; (zj) the procedure for selection, salaries and allowances and other terms and conditions of Judicial and Administrative Members of the National Industrial Tribunal under sub-clause (6) of clause 46; (zk) such other matters in respect of which a conciliation officer, Tribunal and National Industrial Tribunal shall have the same powers as are vested in a civil court under the Code of Civil Procedure,1908 under sub-clause (3) of clause 49; (zl) manner of holding conciliation proceedings under sub-clause (1), form of full report under sub-clause (4), and the form of application and the manner of deciding such application under sub-clause (6), of clause 53; (zm) the number of persons by whom the notice of strike shall be given, the person or persons to whom such notice shall be given, and the manner of giving such notice, under sub-clause (4) of clause 62; (zn) manner of giving notice of lock-out under sub-clause (5) and the authority under sub-clause (6) of clause 62; (zo) manner of serving notice before retrenchment of a worker employed in the industry who has been in continuous service for not less than one year by an employer on the appropriate Government or such authority as may be specified by the appropriate Government by notification under sub-clause (c) of clause 70; (zp) manner in which the employer shall give an opportunity to the retrenched workers who are citizens of India to offer themselves for re-employment under clause 72; (zq) manner in which the employer shall serve notice on the appropriate Government stating clearly the reasons for the intended closure of the undertaking under sub-clause (1) of clause 74; (zr) manner of making application by the employer stating clearly the reasons for the intended lay-off and the manner of serving copy of such application to workers under sub-clause (2) of clause 78; (zs) manner of applying to the appropriate Government or the specified authority for permission to continue the lay-off by the employer under sub-clause (3) of clause 78; (zt) time limit for review under sub-clause (7) of clause 78; (zu) manner of making application by the employer stating clearly the reasons for the intended retrenchment and the manner of serving copy of such application to workers under sub-clause (2) of clause 79; (zv) time limit for review under sub-clause (6) of clause 79; (zw) manner of making application by the employer stating clearly the reasons for the intended closing down of an undertaking of an industrial establishment and the manner of serving copy of such application to the representatives of workers under sub-clause (1) of clause 80; (zx) time limit for review under sub-clause (5) of clause 80; (zy) contribution from such other sources to be made to the worker re-skilling fund under sub-clause (2) of clause 83; (zz) manner of utilisation of fund under sub-clause (3) of clause 83; (zza) manner of composition of offence by a Gazetted Officer specified under sub-clause (1) of clause 89; (zzb) manner of making application for the compounding of an offence specified under sub-clause (4) of clause 89; (zzc) manner of making complaint by an aggrieved employee under clause 91; (zzd) manner of authorisation of worker for representing in any proceeding under sub-clause (1) of clause 94; (zze) manner of authorisation of employer for representing in any proceeding under sub-clause (2) of clause 94; and (zzf) any other matter which is required to be, or may be, provided by rules under the provisions of this Code.
19. Sub-clause (3) of clause 99 of the Bill empowers the Central Government to make rules for the manner of recognition of a Trade Union or federation of Trade Unions by the Central Government as a Central Trade Union at the Central level and the authority and the manner of deciding dispute by it under sub-clause (1) of clause 27 and the manner of holding an enquiry under sub-clause (1) of clause 85.
20. Sub-clause (4) of clause 99 provides that every rule made under the said clause is required to be laid before State Legislature and sub-clause (5) of the said clause provides that every rule made by the Central Government is required to be laid before each House of Parliament.
21. The matters in respect of which rules may be made are matters of procedure or administrative detail and it is not practicable to provide for them in the Bill itself. The delegation of legislative power is, therefore, of a normal character.
Download Industrial Relations Code, 2020 as introduced in Lok Sabha on 19th September 2020.
