Tuesday, March 15, 2011

PROTECTED WORKMEN


Who is a protected workman?

A protected workman in relation to an establishment means a workman who, being an office bearer or member of the executive committee of a registered trade union connected with the establishment, is recognised as such in accordance with rules made in this behalf.

Rule 61(1) of Industrial Disputes (Central) Rules, 1957, provides that every registered trade union connected with an industrial establishment shall communicate to the employer before the 30th April every year, the names and addresses of the officers of the union who are employed in that establishment who should be recognised as protected workmen. Rule 61(2) makes it obligatory on the part of employer to recognise such number of workers as provided u/s 33 (4) of the Industrial Disputes Act, 1947, as ‘protected’ for a period of 12 months, within fifteen days of receipt of the proposal from the union.


However, management is entitled to decline recognition as protected workman to a person nominated by the union, if any disciplinary proceeding is pending against such workman. Union certainly cannot exercise their power under Rule 61(1) to give immunity to an employee against whom disciplinary proceedings initiated by the management are pending, by nominating his name for recognition as protected workman [HLL Lifecare Ltd Vs. Hindustan latex Labour Union (AITUC)]

How many protected workmen?

As per Section 33 (4) of the Industrial Disputes Act, 1947, the number of workmen to be recognised as protected workmen shall be one per cent of the total number of workmen employed therein subject to a minimum number of five protected workmen and a maximum number of one hundred protected workmen.

Where the total number of names received by the employer exceeds the maximum number of protected workmen, admissible for the establishment, u/s 33(4) of the Act, the employer shall recognise only such maximum number of workmen as “protected”.

Where there are more than one registered trade unions in the establishment, the maximum number of protected workmen shall be distributed among the unions in such a way that each union shall have representation as protected workmen in proportion to the membership of the unions. If the number of protected workmen allotted to a union is less than that proposed by the union, the union will have to select from the proposed list the names of such persons who should be recognised as protected workmen and intimate the names to the employer within five days.

Rights of Protected Workmen

Section 33 (3) of Industrial Disputes Act, 1947, provides that during the pendency of any conciliation procedure before a conciliation officer or a Board or of any proceeding before an arbitrator or a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, the employer should not initiate any action against any protected workman concerned in such dispute-

(a) by altering, to the prejudice of such protected workman, the conditions of service applicable to him immediately before the commencement of such proceedings; or

(b) by discharging or punishing, whether by dismissal or otherwise, such protected workman, save with the express permission in writing of the authority before which the proceeding is pending.

Remedy for employer

If an employer wants to take action against a protected workman during the pendency of a conciliation proceeding, before the Conciliation Officer, Board, Arbitrators, Labour Court, Tribunal or National Tribunal, he should get express permission from the conciliation Officer, Labour Court or Tribunal, as the case may be, by applying in form J. It may be remembered that application for approval should be made before the action for change in service conditions or discharge or dismissal, as the case may be, becomes effective [McKenzie & Co Vs Workmen(AIR 1959 SC 389)] At the same time, during the pendency of application for dismissal of a worker u/s 33, the employer can place him under suspension.

Conclusion

Right to get service conditions to be unchanged during pendency of dispute is available not only to protected workmen but to every workman on whose behalf the dispute has been raised and includes those who would be benefited by the award [New India Motors Vs. Morris (AIR 1960 SC 875)]. Therefore, the matter in respect of which the change in service conditions took place should have been connected with the dispute and that the workman affected by such change in service condition should have been concerned with the dispute pending [Premier Tyres Ltd Vs Bhaskaran Nair (1979 Lab.I.C.549.Ker)]   Section 33 gives a workman in pending dispute a protection against victimization. As observed in Sharma Vs SBI (AIR 1968 SC 985), it ensures a fair and satisfactory enquiry of an industrial dispute undisturbed by any action on the part of the employer which could create fresh cause for disharmony between him and his employees.

The termination of employment of a probationer at the end of the period of probation will not constitute any change in service conditions of employment and is not within the purview of section 33 [Stanley Mendez Vs Geovanol Binny Ltd (1968 KLT 623)]


MADHU.T.K





16 comments:

  1. Dear Sir,

    I want a clarification reg. Over time. In our company while computing over time amount Basic+D.A+V.D.A are considered.

    According to Factory act 1948 Sec-59, it explicittly states that "Basic wages plus such allowances , including the cash euivalent of the advantage accuring through concessaional sale to workers of foodgrains and other articles"

    My query is even though we are having HRA, Amenities allowance, Special Allowance etc as wage components, we are not considered the allowance for computing the OVer Time. whether is a contravention against factory act.

    Please brief me or send mail to sam_ben2005@yahoo.com

    Regards
    Benison

    ReplyDelete
  2. If a wage is fixed as remuneration for the work and then it is bifurcated into components like HRA, Special allowances etc, then it is deemed to be done for the convenience of the employer and if so, OT should be calculated on the total pay. Otherwise, basic + DA /VDA is sufficient. There will not be any objection.

    Madhu.T.K

    ReplyDelete
  3. Dear sir,

    I regularly follow your posts on Citehr. I really appreciate you sharing your knowlwdge. It is really helpful to freshers like me. I wish to see more postings on your blog.

    Regards,
    Swapnil

    ReplyDelete
  4. Is it true? that the protected workmen cannot work at their respective departments for whole day? during the period workmen declared by management as protected workmen.Subhash machare

    ReplyDelete
  5. Protection does not mean that he shall not work but it is only a protection from victimisation during the pendency of an industrial dispute. A protected is expected to be on the job for the entire office hours.

    Madhu.T.K

    ReplyDelete
  6. Hi Madhu,
    I really enjoy reading your blogs and will look forward for many more insightful sharings.
    Rgds
    Mahesh

    ReplyDelete
  7. Thank You Dr. Madhu.T.K.
    For your valuable sharing on Protected Workmen.

    ReplyDelete
  8. SIR,
    PLEASE ENLIGHTEN ME ON THE TOPIC OF SET ON AND SET OFF UNDER THE BONUS ACT,1965

    ReplyDelete
    Replies
    1. sir,

      i need some clear outline about protected workmen

      Delete
  9. A very nice presentation. Can you please comment on the possible legal outcome in a case wherein an unrecognized trade union's claim for the status of protected workman to its office bearers is simply rejected by the management on the ground of non-recognition of the union?

    ReplyDelete
  10. Protection is available to all registered trade unions whether recognised or not. It should also be noted that only a few states have enacted rules for recognition of trade unions and there is no central Act for that. In the absence of rules for recognition of trade unions, every registered trade union has a right to get protected workman status to its members subject to the percentage or proportions fixed for that.

    ReplyDelete
  11. Dear Madhu
    Can you please tell me if the number of workmen to be recognised as protected workmen shall be one per cent of THE TOTAL NUMBER of workmen employed therein OR TOTAL NUMBER OF MEMBERS WORKMAN OF THAT TRADE UNION subject to a minimum number of five protected workmen and a maximum number of one hundred protected workmen. As in our factory there is 350 is TU members and rest 150 are not the members of any TU .
    Regards
    Supti

    ReplyDelete
  12. As per Section 33 (4) of the Industrial Disputes Act, 1947, the number of workmen to be recognised as protected workmen shall be one per cent of the total number of workmen employed therein subject to a minimum number of five protected workmen and a maximum number of one hundred protected workmen.
    Thank You

    ReplyDelete
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    ReplyDelete