Industrial Relations Code, 2020 in relation with ILO Standards


While the Industrial Relations Code, 2020 (‘ IR Code’) ensures that industries continue to work smoothly by adopting a range of flexible labour market practices and easing regulatory burden for employers, it fails to address some key issues that disempower the individual worker. India is a founder member of the International Labor Organization (ILO), and its approach regarding international labour standards has always been positive. Therefore, it becomes important that it addresses some key issues that highlight the need to protect workers. This article aims to shed light on some of them.

Provision on Strikes

The IR Code prohibits strikes in all industrial establishments without notice. No person or group of persons can go on a strike before giving a prior notice of 14 days. The validity of the notice lasts for 60 days. The Code further prohibits strikes i) during and up to 7 days after a conciliation proceeding, and ii) during and up to sixty days after proceedings before a tribunal.  This has an impact on the worker’s right to strike. The notice must be shared with the conciliation officer within 5 days, immediately after which conciliation proceedings will begin during which time the workers will be prohibited to strike. In case the conciliation is not successful, and there is an application to a Tribunal by either party, the period of prohibition of strikes will be further extended.

While similar provisions were laid under The Industrial Disputes Act, 1947 for public utility services, the rationale behind them was clear. As public utility services include the railways, airlines and establishments that provide water and telephone services, these industries needed to be treated differently owing to the nature of their work, upon which a vast majority of people’s daily lives depend. The rationale behind extending these provisions for all industrial establishments is, however, unclear.

The International Labor Organization’s (ILO) Committee on Freedom of Association from its inception has declared that to be able to strike is a right and has laid down the basic principle underlying this right, which recognizes the right to strike to be one of the most important means by which workers promote and defend their interests.[1] While the right to strike is not set out explicitly in ILO Conventions, the ILO Declaration on fundamental principles and rights at work “…declares that all Members, even if they have not ratified the Conventions in question, have an obligation to respect, promote and realize the principles concerning the fundamental rights which include freedom of association…”

Provision on Fixed Term Employment

The IR Code introduces fixed-term employment. Fixed-term employment is where workers are employed for a specified and fixed time based on a contract between the employer and the worker. It allows the employer flexibility in hiring workers according to their requirements. While it may also benefit the worker, considering the IR Code entitles fixed-term employees to the same benefits as permanent employees, it is pertinent to consider the unequal bargaining power between an employer and a fixed-term employee. As the power to renew the employment lies with the employer, fixed-term employees out of job insecurity may not raise issues regarding unfair work practices such as payment of less than minimum wages or being overworked beyond stipulated work hours. Another facet of this issue that needs to be addressed is how there is no restriction imposed on the employer in hiring fixed-term workers even for work that may be perennial in nature. The ILO states that adequate safeguards must be provided against recourse to contracts of employment for a specified period.[2] The 2nd National Commission on Labor had specifically recommended that no worker can be kept as a temporary worker continuously against a permanent worker for more than 2 years.[3]

In this regard, the ILO noted that countries restricted the use of fixed-term contracts in several ways. Such as

  1. limiting how many times employment contracts can be renewed; for instance, China and Brazil do not allow employment contracts to be renewed after two successive terms,
  2. limiting the duration of the contract- for instance, Philippines and Botswana limit it up to a year),
  3. limiting the number of fixed-term employees concerning the entire workforce- for instance, Italy limits it to 20% of the workforce.

Power of Government in Modifying or Rejecting Tribunal Awards

The IR Code lays down that the appropriate Government may constitute Industrial Tribunals and National Industrial Tribunals (for matters involving those of national importance or parties that may be concerned with more than more states) for adjudication of industrial disputes. According to Section 55 of the IR Code, an award made shall be enforceable on the expiry of thirty days from the date of its communication. However, the government can defer the enforceability of this award where it believes that passage of the same would be unfair on public grounds, affecting the national economy or social justice. The two circumstances in which it can do so are i) when the central or state government is a party to the dispute or ii) the award has been given by a National Tribunal. This raises a serious question regarding the principle of separation of powers and whether such a provision violates it.

Interestingly, the Madras High Court had struck down a similar provision in the Industrial Disputes Act on constitutional grounds and held that the power of declining enforceability of an award, or to modify it, allows it to sit in appeal over the decision of the Tribunal, thus violating the separation of powers between the executive and the judiciary.[4] A fundamental aspect that ILO emphasizes on is a tripartite system that aims to ensure that any dialogue involves three main stakeholders, namely employers, workers and States. Allowing the State powers over the enforceability of awards, where it is a party in an industrial dispute, makes the foundation of the tripartite system that the ILO envisions, shaky.

Conclusion

The Industrial Relations Code deviates from international labour standards in the following ways-

  1. By extending the provision on strikes for all industrial establishments, it impedes the workers’ ability to strike, which the ILO recognizes as an effective tool with which workers promote and defend their interests;
  2. By allowing the possibility of unfettered use of fixed-term contracts, it overlooks ILO’s desire to ensure a safeguard against recourse to fixed-term contracts; and
  3. By allowing the government to defer the enforceability of an award by the Industrial and National Tribunals, it goes against the principle upon which the ILO functions, which is the importance of cooperation between governments and employers’ and workers’ organizations. The very structure of the ILO demands the maintenance of a tripartite system where all three stakeholders have an equal voice.

The government must ensure all its people that they are entitled to the right to pursue their “material well-being in conditions of freedom and dignity, of economic security and equal opportunity”. In doing this, it must respect the spirit of the ILO Conventions and fulfil its obligations under ILO standards in good faith and consultation with social partners.

 

[1] ILO Principles Governing the Right to Strike, International Labour Law Review, Vol. 137, 1998, No. 4

[2] Article 2, Paragraph 3, Termination of Employment Convention, 1982

[3] Report of the 2nd National Commission on Labour, Ministry of Labour and Employment, 2002

[4] Union of India vs. Textile Technical Tradesmen Association (2014), Madras High Court, 2014 (6) CTC 427

– Sukanya Hosmani, Advocate and Associate

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B. Chandrashekar Shetty - Advocate

Mr. Chandrashekar Shetty is a Senior Labour Law Compliance Auditor at BCP Associates and has audited multiple client companies across India. He is also a member of our senior legal advisory practice. Previously he has worked as Deputy Controller, Manager-Industrial Relations and Industrial Relations Officer in KPTCL, Bangalore for more than 30 years. Prior to this, he has dealt with Legal, Personnel and IR matters including Wage Settlements, Grievance Machinery, Manpower Study and Social Security Compliances for about 10 years. He is a Faculty member of Labour Law, HRD Centre, KPTCL Bangalore.

Mr. Shetty holds a B.Com. and L.L.B. degree, Post-Graduate Diploma in Business Administration, Diploma in Public Relations from Bangalore University and PG Diploma in Industrial Relations & Personnel Management from Bharatiya Vidya Bhawan. He is enrolled as Advocate in Karnataka Bar Council and is a Govt. Arbitrator of Chit Funds in Karnataka.

S Venugopal Rao

S Venugopal Rao is an experienced labour law and service matters expert and is a member of the senior advisory team at BCP Associates. Having joined the chambers of Mr. B C Prabhakar in 2012, he is knowledgeable and well versed in multiple employment and labour law topics.

S Venugopal Rao holds a Bachelor’s degree in Science from Karnataka University, Dharwar and Bachelor of Law from Bangalore University. He enrolled as advocate in Karantaka State Bar Council in 1976. He joined the chamber of Sri. Kolachalam Srinivasa Rao a leading civil advocate. After practicing for 6 years at Ballari, he joined Orient Paper Mills, Orissa (of G P Birla Group). He was designated as Manager (Law) under the Factories Act in 1995. In 1999, he joined Andhra Pradesh Paper Mills Rajahmundry as Manager Legal and was subsequently elevated as Dy. General Manager (Legal). As Factory Manager & Legal Head, he oversaw compliance of Factories Act and Rules there under towards safety, health and welfare, including compliance under Pollutions and Environmental laws and Explosives Act, etc. Additionally, he is well acquainted with Environment Management System ISO 14001: 2004, Occupations, Health and Safety Series 18000:1999. As Legal head in APPM he has briefed and appeared along with Senior Advocate before Appellate Authority constituted under Water (Prevention & Control of Pollution) Act. He retired from the services of Andhra Pradesh Paper Mills in 2011.

As legal head he has handled important cases both in Labour and Civil and has experience in drafting and vetting Contracts, Agreements, Lease Agreement, Conveyance Deeds, , Affidavits and scrutiny of several legal and other documents, Preparing and settling Petitions, Appeals, Plaints, Written Statements, Rejoinders, Affidavits and Written Arguments etc. for submission/pleadings for various legal proceedings.

C K Devappa Gowda - Advocate

C.K. Devappa Gowda (CKD) is an Advocate and Labour Law expert. He holds a Bachelor’s Degree in Science from the University of Mysore and a Degree in Bachelor of Law from Bengaluru respectively. He also holds a Diploma in Social Service Administration from the National Institute of Social Science, Bengaluru. After completing his studies, he had enrolled as a Advocate and initially practiced in the Civil Code attached to the office of BCP. He then worked as Personnel Officer in Chemicals and Textile Manufacturing Industries for 5 years. Thereafter took up employment in one of the largest Public Sector Bank. He has worked in different parts of the country and has extensive experience in the cross country IR domain. The significant part of his service was at corporate level overseeing and implementing HR policies and practices and management of IR. He has been a member of personnel committee of Indian Bank Association.

After retirement from service, Mr. Gowda has been working with Mr. BC Prabhakar’s firm for the last 12 years. He has expertise in all areas of people management, drafting of documents relating to service matter including the settlements under the ID Act. He has dealt with all employment laws including appearance before the Courts, Tribunal and Authorities under the different Labour Laws. Mr. Gowda is one of the senior Labour Law experts at BCP Associates.

Srijatha Ghosh - POSH Specialist & Advocate

Srijata Ghosh serves as external member on the Internal Committee of several Companies across various sectors. She handles all kinds of POSH related matters including investigations and inquiries. She provides Training on Sexual Harassment across all verticals for Managers and Senior Management, General Awareness for all employees and Internal Committee members on the legislation (The Sexual Harassment of Women at Workplace Prevention, Prohibition and Redressal Act, 2013). She also formulates Policies for Prevention of Sexual Harassment at Workplace (“POSH”) and advises Companies on setting up of their Internal Committees. Srijata is involved in providing Legal Advisory services on POSH and other labour law matters for various clients.

In her previous experience, she has extensively dealt with End-to-End Contract Management, Due Diligence, POSH Compliances, Legal Advisory, etc. Srijata worked with Companies like Accenture India Private Limited, Quess Corp., Capgemini Business Services (India) Limited and Pramata Knowledge Solutions Private Limited. Srijata has handled varied legal issues including drafting, vetting and negotiation of contracts, drafting policies of various organizations. She has resolved issues relating to employment laws and has worked closely with the HR teams. She has provided legal advisory services to senior management. She was also associated with Kolkata High Court in counselling clients with legal matters such as Property, Due Diligence etc. Srijata has worked in an LPO Service Firm, Manthan Legal Services Private Limited for Legal Research, depositions, medical summaries, demand drafting etc.

Srijata completed her B.A.LL.B from M. S. Ramaiah College of Law, Bangalore University in 2009. Srijata is a member of the Karnataka Bar Council since 2010. She is also a member of the Gender Sensitivity Sub Committee of Karnataka Employer Association (KEA).

Caroline Lobo - POSH Specialist & Advocate

Caroline Lobo has been with BCP Associates for the past 2+ years. She has been handling matters and Inquiries related to the POSH Act including conducting inquiries and trainings/awareness programmes for Senior Management, employees as well as members of the Internal Committee on the POSH Legislation (The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“Act”) to address Workplace Harassment of Women. She is a member of the Internal Committee for many varied companies and organisations and has reviewed and scrutinized numerous hearings and inquiries on matters relating to sexual harassment at workplace.

She has also handled matters relating to employer-employee related Enquiries, wherein she has reviewed and conducted hearings and enquired into the matters and has guided the Internal Committee and provided guidance in providing recommendations to the management. She is also a Member of the Gender Sensitivity Sub-committee of Karnataka Employer Association (KEA).

Prior to joining BCP Associates, Caroline has has a wide range of experience in corporate, commercial and contract law, mergers and acquisition and has undertaken drafting, vetting, negotiating and finalizing legal and commercial transactions. She started her career in litigation then moved onto the Corporate sector. In the span of 13 years, she has worked at Chambers of Advocate Jayashree Murali, Krishnamurthy and Co. Legal Consultants, Colt Technology Services and Oracle India Pvt. Ltd. She always had a keen interest in Women and Child related issues. She has worked with Child Welfare Committee and NGOS’s. In addition, she has worked with Swasthi Health Resource and Centre, where she was the External member to the Internal Committee (IC). She worked closely with the committee in strategizing, planning, reviewing and implementing the assigned tasks, which included building material to raise awareness against sexual harassment at workplace. Further, she has been involved in conducting inquiries into matters related to sexual harassment at workplace.

Caroline earned her Law degree from University Law College, Bangalore, from where she graduated in the year 2005.

Manoj Kumar – Senior Associate

At BCP Associates, Manoj Kumar is involved in managing and conducting labour law compliance audits of principal employer and contractors. He is also involved in client co-ordination and conducting labour law training programs for vendors. He has conducted on-ground labour law audit for factories. Manoj also provides support in advising vendor clients on labour law queries. He completed B.A., LL.B. from BMS College of Law, Bangalore in 2016

Rashmitha Venkatachalam Das - POSH Specialist & Advocate

Rashmitha Venkatachalam Das is the External Member of the Internal Committee of several reputed Organizations across various sectors. Handling complex inquiries has been her forte and she is extremely passionate about it. She is actively involved in providing Training on Sexual Harassment (Prevention, Prohibition and Redressal) Act, 2013 across all verticals for Managers and Senior Management, General Awareness for all employees and Internal Committee members. Rashmitha possesses capabilities in delivering sessions in Hindi and Kannada, in addition to English. She has formulated Policies for Prevention of Sexual Harassment at Workplace (“POSH”), advised companies on setting up of their Committee. Rashmitha is involved in providing Legal Advisory services on POSH for various clients spread across diverse sectors. She has also been handling domestic enquiries for various clients. 

Rashmitha possesses experience both at Law Firms and Corporates in various capacities. She started her career at Krishnamurthy and Co, Legal Consultants and then moved on to work as an In- House Legal Counsel with Companies such as Biocon Limited, Columbia Asia Hospitals Private Limited, Adecco India Private Limited. With a long stint in the Corporate side, Rashmitha decided to pursue further education in Law with a specialization in Labour and Employment Laws. She has rich experience in drafting, vetting and negotiation of various types of contracts, providing legal opinions and has driven the team in formulating process and procedures and their implementation. She has drafted several employment related policies in Corporates. Rashmitha has been a part of various key committees in Organizations and assisted committees in scrutiny of documents pertaining to human organ transplant as well as clinical trials.

Rashmitha holds an LL.M. in Labour and Employment Laws from University Law College, Bangalore, which she completed in the year 2018 with Two Gold Medals. She is also a Rank Holder at the University. She has completed BA, LL.B. from Bangalore Institute of Legal Studies, Bangalore University in the year 2009. Rashmitha is a member of the Karnataka Bar Council since 2009 and also a member of the Gender Sensitivity Sub Committee of Karnataka Employer Association (KEA).

Manisha Vidyadhar – Senior Associate

At BCP Associates, Manisha Vidyadhar is involved in managing and conducting labour law compliance audits of principal employer and contractors. She is also involved in client co-ordination and conducting labour law training programs for vendors. She has conducted on-ground labour law audit for factories. Manisha also provides support in advising vendor clients on labour law queries.  She completed B.A., LL.B. from BMS College of Law, Bangalore in 2016.

Amrutha Ananth – Senior Associate

At BCP Associates, Amrutha Ananth is involved in managing and conducting labour law compliance audits of principal employer and contractors. She is also involved in client co-ordination and conducting labour law training programs for vendors. She has conducted on-ground labour law audit for factories. She also provides support in advising vendor clients on labour law queries.

Amrutha is also part of the labour law advisory and HR Policy practice and is actively involved in drafting opinions on various aspects of labour laws and formulate and review employment policies and procedure.

Amrutha completed B.A., LL.B. from Christ University, Bangalore in 2015. She is also a semi-qualified Company Secretary.

Sunil Arya – Principle Associate

At BCP Associates, Sunil Arya is part of the labour and employment law advisory and HR Policy practice and is actively involved in drafting and reviewing of employment contracts, opinions, HR policies, employee handbook, show cause notice, etc. for various clients spread across diverse sectors. He conducts training on labour and employment laws. Sunil is also involved in labour law compliance audits of principal employer and contractors and has conducted on-ground labour law audit for factories. In addition, he is engaged in knowledge creation and management of the firm and keenly writes on developments in labour and employment laws.

Prior to joining BCP Associates, Sunil has 10 years of post-qualification experience in diversified portfolios of advisory, drafting, policy analysis and dispute in the domains of contracts, general civil matters, employment law, competition law and construction arbitration matters. Sunil started his career as a Law Researcher in Delhi High Court. He moved on to be part of regulatory analysis team of CIRC, a unit of CUTS International. In addition, Sunil has been part of legal team of Jindal India Thermal Power Limited. He has also taught competition law, tax law and investment law at VIPS, Delhi.

Sunil holds LL.M. from The Indian Law Institute, Delhi. He is First Rank Holder in his thesis. He completed B.A, L.L.B. (Hons.) from I.P. University, Delhi. He also holds First Rank in P.G. Diploma in Competition Policy and Laws from The National Law University, Delhi.

Chandrakala K A – Principle Associate

At BCP Associates, Chandrakala has 12+ years of experience in conducting and managing labour law compliance audits of principal employer and contractors. She is also involved in co-ordination with many clients. She has conducted on-ground labour law audit for factories. She also provides support in advising vendors on labour law queries. Chandrakala is actively involved in research and providing valuable inputs to the firm pertaining to updation in labour law audit function.

Chandrakala started her career in litigation in chamber of Sri. Ashok where she was involved in drafting, pleading and appearance before Karnataka High Courts and lower courts on the criminal side.

Chandrakala completed B.A in Arts from Kuvempu University, Shimoga in 2003 and LL.B. from Mangalore University in 2006.

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