Unfair Labour Practices

Mala fide, item I(7), means in bad faith.

Go-slow is defined by Explanation 1 to item II(5), set out below.

Picketing is standing at or near a workplace during a dispute to persuade others not to work or not to deal with the employer. It is lawful in itself; item II(2)(a) catches only picketing done so that non-striking workers are physically debarred from entering.

Section 84: the prohibition

No employer or worker or a Trade Union, whether registered under this Code, or not, shall commit any unfair labour practice specified in the Second Schedule.

Four features of that single sentence.

It binds three classes: employers, workers, and Trade Unions.

It binds unregistered unions. The words "whether registered under this Code, or not" are deliberate and they are unusual. Everything else in Chapter III, corporate personality, the funds, the three immunities, is confined to a registered Trade Union. Here the duty is imposed on any union at all. An unregistered combination gets none of Chapter III's protections and all of Chapter XII's duties.

It operates by reference to the Schedule, so the content of the prohibition is entirely in the Second Schedule.

And it is backed by a penalty. Section 86(5) makes the commission of an unfair labour practice an offence, which is the subject of [Offences and Penalties Under the Code]. Section 44(7)(e) separately sends Trade Union disputes to a two-member bench, and a claim of victimisation will commonly arise in a discharge or dismissal case under section 44(7)(b), which also requires both members.

The Second Schedule, Part I: on the part of employers and trade unions of employers

Sixteen items. They fall into groups, and grouping them is the only realistic way to carry them.

Group one: attacking the right to organise, items 1 to 4

Item 1: to interfere with, restrain from, or coerce workers in the exercise of their right to organise, form, join or assist a Trade Union, or to engage in concerted activities for collective bargaining or other mutual aid or protection, that is to say:

• (a) threatening workers with discharge or dismissal if they join a Trade Union;
• (b) threatening a lock-out or closure if a Trade Union is organised;
• (c) granting a wage increase at crucial periods of Trade Union organisation, with a view to undermining the union's efforts.

Clause (c) is the one students find surprising and it is the most instructive item in the Schedule. Giving workers more money is an unfair labour practice when it is timed to defeat the organisation of a union. The wrong is not the increase; it is the purpose.

Item 2: to dominate, interfere with, or contribute support, financial or otherwise, to any Trade Union, that is to say:

• (a) an employer taking an active interest in organising a Trade Union of his workers;
• (b) an employer showing partiality or granting favour to one of several Trade Unions attempting to organise his workers, or to its members, where that union is not a recognised Trade Union.

Item 3: to establish employer sponsored Trade Unions of workers.

Items 2 and 3 together outlaw the company union. A body that looks like a union, is called a union, and is in truth the employer's creature is worse for the workers than no union at all, because it occupies the ground a real union would hold. Note the qualification in item 2(b): partiality to a union that is the recognised Trade Union under section 14 is not caught, because recognition is precisely the status that entitles a union to be dealt with.

Item 4: to encourage or discourage membership in any Trade Union by discriminating against any worker, that is to say:

• (a) discharging or punishing a worker because he urged others to join or organise a union;
• (b) discharging or dismissing a worker for taking part in any strike, not being a strike deemed illegal under the Code;
• (c) changing seniority rating because of union activities;
• (d) refusing promotion on account of union activities;
• (e) giving unmerited promotions to create discord or undermine the union;
• (f) discharging office-bearers or active members on account of their union activities.

Item 4(b) carries an important qualification. Dismissal for taking part in a strike is an unfair labour practice unless the strike is one deemed illegal under the Code. So the legality of the strike, decided under section 63 and worked in ['Strike': Concept, Legality and Justification], governs here too.

Group two: abuse of the power to dismiss, item 5

Item 5: to discharge or dismiss workers:

• (a) by way of victimisation;
• (b) not in good faith, but in the colourable exercise of the employer's rights;
• (c) by falsely implicating a worker in a criminal case on false or concocted evidence;
• (d) for patently false reasons;
• (e) on untrue or trumped up allegations of absence without leave;
• (f) in utter disregard of the principles of natural justice in the conduct of the domestic enquiry, or with undue haste;
• (g) for misconduct of a minor or technical character, without regard to the nature of the misconduct or the worker's past record and service, thereby leading to a disproportionate punishment.

Item 5 is the most used provision in the Schedule and clause (g) is why. It converts a question of proportion into a statutory wrong. An employer who dismisses for a trivial breach, ignoring twenty unblemished years, has committed an unfair labour practice even if the breach is proved. Read it with section 50(1), which lets the Tribunal substitute a lesser punishment: the Schedule names the wrong and section 50 supplies the remedy.

Group three: undermining collective action, items 6 to 12

Item 6: to abolish work of a regular nature done by workers and give it to contractors as a measure of breaking a strike.

Item 7: to transfer a worker mala fide from one place to another, under the guise of following management policy.

Item 8: to insist that individual workers who are on a legal strike sign a good conduct bond as a precondition to resuming work.

Item 9: to show favouritism or partiality to one set of workers regardless of merit.

Item 10: to employ workers as badli workers, casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workers.

Item 11: to discharge or discriminate against a worker for filing charges or testifying against an employer in any enquiry or proceeding relating to an industrial dispute.

Item 12: to recruit workers during a strike which is not an illegal strike.

Item 10 deserves a note because it names a practice that is widespread. Keeping people on badli, casual or temporary terms for years, with the object of denying them permanent status, is an unfair labour practice in its own right. Read it with the Explanation to section 67, under which a badli worker ceases to be a badli after one year of continuous service.

Items 12 and 6 are the two strike-breaking items and both are qualified: recruiting during a strike is caught only where the strike is not illegal, and giving work to contractors is caught where it is done as a measure of breaking a strike.

Group four: refusing to play, items 13 to 16

Item 13: failure to implement an award, settlement or agreement.

Item 14: to indulge in acts of force or violence.

Item 15: to refuse to bargain collectively, in good faith, with the recognised Trade Unions.

Item 16: proposing or continuing a lock-out deemed to be illegal under this Code.

Item 15 is the provision that partly answers a gap left by section 14. As [Collective Bargaining] explains, section 14 requires that there be a negotiating union or council but imposes no duty to bargain in good faith. Item 15 of the Second Schedule supplies one, at least against a recognised union, and makes its breach an unfair labour practice punishable under section 86(5).

The Second Schedule, Part II: on the part of workers and trade unions of workers

Eight items.

Item 1: to advise or actively support or instigate any strike deemed to be illegal under this Code.

Item 2: to coerce workers in the exercise of their right to self-organisation, or to join or refrain from joining a Trade Union, that is to say:

• (a) for a Trade Union or its members to picket in such a manner that non-striking workers are physically debarred from entering the work places;
• (b) to indulge in acts of force or violence, or to hold out threats of intimidation in connection with a strike, against non-striking workers or against managerial staff.

Item 2(a) draws the line at physical obstruction. Picketing is not prohibited; picketing that physically bars entry is.

Item 3: for a recognised union to refuse to bargain collectively in good faith with the employer.

This is the mirror of item I(15), and the symmetry is worth pointing out: the duty to bargain in good faith runs both ways, and on the workers' side it attaches to the recognised union.

Item 4: to indulge in coercive activities against certification of a bargaining representative.

Item 5: to stage, encourage or instigate such forms of coercive action as wilful go-slow, squatting on the work premises after working hours, or gherao of any of the members of the managerial or other staff.

The definition of go-slow, which is new

Explanation 1: "go-slow" means an occasion when more than one worker in an establishment conjointly work more slowly and with less effort than usual, to try to persuade the employer to agree to higher pay or better service conditions or such other demand.

Explanation 2: "usual" means:

• (i) where a standard has been specified for a worker for his work, daily, weekly or monthly, that standard; and
• (ii) where no such standard has been specified, the rate of work which is the average of the work in the previous three months, calculated on a daily, weekly or monthly basis.

This is genuinely new and it repays a paragraph. The repealed Industrial Disputes Act 1947 never defined a go-slow, and the difficulty was always evidential: how does an employer prove that work is slower than it should be, when there is no agreed measure of what it should be? Explanation 2 answers exactly that. Where the establishment has fixed a standard, the standard is the benchmark. Where it has not, the benchmark is the average of the previous three months.

Three elements must still be established. More than one worker, so an individual working slowly is not a go-slow. Acting conjointly. And doing so to persuade the employer to agree to a demand, so slower work from tiredness, poor material or bad supervision is outside it.

Note also where a go-slow sits in the scheme. It is not a strike, because section 2(zk) requires a cessation of work or a refusal to work, and a go-slow is neither. It is an unfair labour practice under item II(5), and it will ordinarily also be misconduct under the certified standing orders made under item 9 of the First Schedule.

Item 6: to stage demonstrations at the residence of the employers or the managerial staff members.

Item 7: to incite or indulge in wilful damage to employer's property connected with the industry.

Item 8: to indulge in acts of force or violence, or to hold out threats of intimidation, against any worker with a view to preventing him from attending work.

Item 5's mention of gherao connects this Schedule to Module I. In Jay Engineering Works Ltd. v. State of West Bengal, AIR 1968 Cal 407, worked in [Immunity from Criminal Conspiracy], the Calcutta High Court defined a gherao as a physical blockade of a target by encirclement or forcible occupation, invariably accompanied by wrongful restraint or wrongful confinement, and held that the statutory immunity is "of a limited nature" and gives no immunity from any substantive offence. A gherao is therefore three things at once: a set of offences, an unfair labour practice under item II(5), and, ordinarily, misconduct under the standing orders.

The Maharashtra position, which a Mumbai student must know

Unfair labour practices are not new in this State. The Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act 1971 has dealt with them since 1971, and its very title names them.

In Balmer Lawrie Workers' Union v. Balmer Lawrie & Co. Ltd., AIR 1985 SC 311, worked in [Recognition: The Negotiating Union and Negotiating Council], the Supreme Court dismissed an unrecognised union's challenge to section 20 of that Act, which gives a recognised union the exclusive right to represent workmen. Reviewing the scheme, the Court explained that the multiplicity of unions in one undertaking had come from the multiplicity of political parties, that inter-union and intra-union rivalry threatened the peaceful working of undertakings, and that the need was therefore felt for a recognised union clothed with the powers of sole bargaining agent, the National Commission on Labour agreeing that the union with the largest membership should have that status.

What a student should say, and should not say. Say that Maharashtra has had a separate statutory regime for unfair labour practices since 1971, with its own machinery, that it is a State Act and is not among the three central Acts repealed by section 104(1), and that Balmer Lawrie upheld its recognition scheme. Do not assert how the two operate together in a given case: that raises a question of repugnancy under Article 254 of the Constitution which turns on the precise provisions and is not settled here.

A worked example

The facts. A packaging plant in Wada. Workers begin organising a union in March. Consider eight events.

One: the supervisor tells three workers they will be dismissed if they sign up. Item I(1)(a): threatening workers with discharge or dismissal if they join a Trade Union.

Two: the employer announces an unscheduled ten per cent. wage rise in the week the organisers are collecting signatures. Item I(1)(c): granting a wage increase at crucial periods of Trade Union organisation with a view to undermining the union's efforts. The increase is not the wrong; the timing and purpose are.

Three: the employer helps a group of loyal workers to form a rival union and gives it an office. Items I(2)(a), taking an active interest in organising a union of his workers; I(2)(b), showing partiality to one of several unions where it is not the recognised union; and I(3), establishing an employer sponsored union.

Four: the union's secretary, twenty years' unblemished service, is dismissed for arriving eight minutes late once. Item I(5)(g): discharge for misconduct of a minor or technical character, without regard to the nature of the misconduct or his past record and service, leading to a disproportionate punishment; and, on these facts, item I(5)(a) victimisation and item I(4)(f) discharging an office-bearer on account of his union activities. The Tribunal's remedy is section 50(1): set aside the dismissal and reinstate, or substitute a lesser punishment.

Five: the union serves proper notice and strikes lawfully; the employer advertises for replacement workers. Item I(12): to recruit workers during a strike which is not an illegal strike. Had the strike been illegal, the item would not bite.

Six: pickets link arms across the gate so that workers who want to go in cannot. Item II(2)(a): picketing in such a manner that non-striking workers are physically debarred from entering the workplace. Peaceful picketing is not caught; this is.

Seven: production falls to 60 per cent. of normal and the workers say they are simply being careful. Ask the Explanations. Is it more than one worker acting conjointly? Are they working more slowly and with less effort than usual? And is it to persuade the employer to agree to a demand? "Usual" is the specified standard if the plant has one, and otherwise the average of the previous three months. If all three elements are made out it is a go-slow and an unfair labour practice under item II(5). It is not a strike, because there is no cessation of work.

Eight: forty workers assemble outside the general manager's house in the evening. Item II(6): to stage demonstrations at the residence of the employers or the managerial staff members.

And a ninth, on the union's own side. The recognised union refuses to attend any negotiation the employer calls. Item II(3): for a recognised union to refuse to bargain collectively in good faith with the employer. The mirror item, I(15), would catch the employer doing the same.

What this does NOT mean

It does not mean there is a general test of unfairness. Section 2(zo) defines an unfair labour practice as any of the practices specified in the Second Schedule. A practice not listed is not an unfair labour practice, however unfair.

It does not mean only registered unions are bound. Section 84 applies to a Trade Union whether registered under this Code or not.

It does not mean every dismissal of a union office-bearer is unfair. Item I(4)(f) requires that it be on account of his Trade Union activities, and item I(5) requires victimisation, bad faith, falsity, a breach of natural justice or disproportion.

It does not mean an employer may never recruit during a strike. Item I(12) is confined to a strike which is not an illegal strike.

It does not mean picketing is prohibited. Item II(2)(a) catches picketing conducted so that non-striking workers are physically debarred from entering.

It does not mean a go-slow is a strike. Section 2(zk) requires a cessation of work or a refusal to work. A go-slow is an unfair labour practice under item II(5) and ordinarily misconduct under the standing orders.

It does not mean the Maharashtra Act has gone. It is a State Act and is not among the three central Acts repealed by section 104(1).

Limits, criticism and amendments

Definition by list is the fundamental criticism and it cuts both ways. It gives certainty, because nobody argues about whether a listed practice is unfair. It gives rigidity, because a new form of pressure that nobody thought of in 2020 is outside the Schedule until it is amended. Section 101 gives a power to amend the Schedules, which is the answer, but it is an executive answer to a legislative gap.

The lists are not symmetrical, and the asymmetry is defended and attacked. Sixteen items bind employers and eight bind workers. Employers say that is evidence of tilt. Unions answer that the employer has far more ways of applying pressure, because he controls the wages, the promotions, the roster and the gate, and that a longer list simply reflects a longer catalogue of available abuses.

Item I(15)'s duty to bargain in good faith is confined to the recognised Trade Unions, so a union that has not achieved recognition under section 14 has no claim under it, and section 14 itself imposes no duty to bargain.

And enforcement is the standing weakness. The Schedule names the wrongs; the remedy is a prosecution under section 86(5) or a finding by the Tribunal in a proceeding brought for some other purpose, most often a dismissal case. The Code creates no dedicated, quick complaint procedure for an unfair labour practice as such, which is precisely what the Maharashtra Act of 1971 does provide in this State.

Quick revision

• Section 2(zo): an unfair labour practice is any of the practices specified in the Second Schedule. Section 84: no employer, worker or Trade Union, whether registered or not, shall commit one. Penalty: section 86(5).
• Part I, sixteen items on employers. Attacking organisation: (1) interference, restraint or coercion, including threats of dismissal, threats of lock-out or closure, and a wage increase timed to undermine organisation; (2) dominating or supporting a union, including taking an active interest in organising one and partiality to a non-recognised union; (3) employer sponsored unions; (4) discrimination, including dismissal for urging others to join, dismissal for taking part in a strike that is not illegal, changing seniority, refusing promotion, unmerited promotions, and discharging office-bearers. Abuse of dismissal: (5) victimisation, colourable exercise, false criminal case, patently false reasons, trumped up absence, disregard of natural justice or undue haste, and disproportionate punishment for minor or technical misconduct. Undermining action: (6) giving regular work to contractors to break a strike; (7) mala fide transfer; (8) good conduct bond as a precondition after a legal strike; (9) favouritism regardless of merit; (10) keeping workers badli, casual or temporary for years to deny permanency; (11) discharge for testifying; (12) recruiting during a strike that is not illegal. Refusing to play: (13) failure to implement an award, settlement or agreement; (14) force or violence; (15) refusal to bargain collectively in good faith with the recognised union; (16) proposing or continuing an illegal lock-out.
• Part II, eight items on workers and their unions. (1) supporting an illegal strike; (2) coercion, including picketing that physically debars entry and force, violence or intimidation against non-strikers or managerial staff; (3) a recognised union refusing to bargain in good faith; (4) coercion against certification of a bargaining representative; (5) wilful go-slow, squatting after hours, or gherao; (6) demonstrations at a residence; (7) wilful damage to property; (8) force, violence or intimidation to prevent a worker attending work.
• Go-slow defined, Explanations 1 and 2 to II(5): more than one worker conjointly working more slowly and with less effort than usual to press a demand; "usual" is the specified standard, or the average of the previous three months.
• Maharashtra: the MRTU and PULP Act 1971 deals separately with unfair labour practices and is not repealed by section 104(1). Balmer Lawrie, AIR 1985 SC 311, upheld its recognition scheme.

Test yourself

1. Define an unfair labour practice and state who is bound. Section 2(zo) defines it as any of the practices specified in the Second Schedule to the Code, so the definition is entirely by reference and there is no general test. Section 84 provides that no employer or worker or Trade Union, whether registered under the Code or not, shall commit any unfair labour practice specified in that Schedule. The inclusion of unregistered unions is notable, since every other provision of Chapter III turns on registration.

2. List the unfair labour practices on the part of employers relating to the right to organise. Item I(1): interfering with, restraining from or coercing workers in the exercise of their right to organise, form, join or assist a Trade Union or to engage in concerted activities for collective bargaining or other mutual aid or protection, namely threatening workers with discharge or dismissal if they join a union, threatening a lock-out or closure if a union is organised, and granting a wage increase at crucial periods of union organisation with a view to undermining the union's efforts. Item I(2): dominating, interfering with or contributing support to any union, namely an employer taking an active interest in organising a union of his workers, and showing partiality or granting favour to one of several unions where that union is not the recognised union. Item I(3): establishing employer sponsored unions. Item I(4): encouraging or discouraging membership by discrimination, namely discharging or punishing a worker for urging others to join, discharging for taking part in a strike that is not deemed illegal, changing seniority ratings, refusing promotion, giving unmerited promotions to create discord, and discharging office-bearers or active members on account of union activities.

3. A worker with twenty years' unblemished service is dismissed for being eight minutes late once. What provisions apply? Item I(5)(g) of the Second Schedule: to discharge or dismiss for misconduct of a minor or technical character, without having any regard to the nature of the particular misconduct or the past record or service of the worker, thereby leading to a disproportionate punishment. If the real reason was his union activity, item I(5)(a) victimisation and item I(4)(f) discharging an office-bearer on account of union activities also apply. Section 84 prohibits the practice and section 86(5) penalises it; and under section 50(1) the Tribunal, if satisfied that the order of dismissal was not justified, may set it aside and direct reinstatement on such terms as it thinks fit, or give other relief including the award of a lesser punishment.

4. What is a go-slow under the Code, and how is it proved? By Explanation 1 to item II(5) of the Second Schedule, a go-slow is an occasion when more than one worker in an establishment conjointly work more slowly and with less effort than usual, to try to persuade the employer to agree to higher pay or better service conditions or such other demand. By Explanation 2, "usual" means, where a standard has been specified for the worker's work on a daily, weekly or monthly basis, that standard; and where no such standard has been specified, the rate of work which is the average of the work in the previous three months, calculated on a daily, weekly or monthly basis. The definition is new: the repealed Industrial Disputes Act 1947 contained none, and the difficulty had always been the absence of an agreed benchmark, which Explanation 2 supplies.

5. Is a go-slow a strike? No. Section 2(zk) requires a cessation of work by a body of persons acting in combination, or a concerted refusal or a refusal under a common understanding to continue to work or to accept employment, and includes concerted casual leave by fifty per cent. or more workers. A go-slow is none of those, because the workers continue working. It is an unfair labour practice under item II(5) of the Second Schedule, and it will ordinarily also be misconduct under the certified standing orders, item 9 of the First Schedule requiring the acts constituting misconduct to be specified.

6. Comment on the technique of defining unfair labour practices by a list. Its strength is certainty: the Schedule names twenty-four specific practices, sixteen on the employers' side and eight on the workers', so no argument is needed about whether a listed practice is unfair. Its weakness is rigidity: section 2(zo) confines the concept to the practices specified, so a form of pressure that Parliament did not anticipate is outside the prohibition until the Schedule is amended under section 101, which is an executive answer to a legislative gap. The asymmetry of the lists is also debated: employers point to sixteen items against eight as evidence of tilt, while unions answer that the employer controls wages, promotions, rosters and access to the workplace and therefore has a longer catalogue of available abuses. The deeper weakness is enforcement, since the Code provides no dedicated complaint procedure for an unfair labour practice as such, leaving prosecution under section 86(5) or a finding made in a proceeding brought for another purpose; in Maharashtra the Act of 1971 supplies exactly that machinery.