Completing the Code

The Industrial Relations Code, 2020 (“Code”) consolidates various laws relating to trade unions, industrial disputes, and employment relations in India. Apart from the core provisions on dispute resolution and labour rights, the Code also contains miscellaneous provisions that support its effective implementation. These provisions deal with matters such as protection of workers during pending disputes, representation of parties, government powers, interpretation of awards and rule-making authority.

What happens to workers’ conditions of service during the pendency of an industrial dispute?

During the pendency of proceedings before a conciliation officer, arbitrator, Tribunal, or National Industrial Tribunal, the employer cannot alter the service conditions of workers concerned in the dispute to their prejudice or punish them for misconduct connected with the dispute without written permission of the authority before which the dispute is pending.

Can an employer change service conditions for matters not connected with the dispute during pending proceedings?

Yes. The employer may alter service conditions relating to matters not connected with the dispute or punish a worker for unrelated misconduct in accordance with standing orders or the contract of employment.

What conditions must be satisfied before dismissing or discharging a worker during pending proceedings?

The worker must be paid one month’s wages, and the employer must apply to the authority before which the dispute is pending for approval of the action taken.

What restrictions apply to action against protected workers during pending proceedings?

The employer cannot alter service conditions to the prejudice of a protected worker or discharge or punish such worker without express written permission of the authority before whom the dispute is pending.

Who is a protected worker?

A protected worker is a member of the executive or an office-bearer of a registered trade union connected with the establishment and recognized as such according to prescribed rules.

How many workers can be recognized as protected workers?

One percent of the total workers employed, subject to a minimum of five and a maximum of one hundred protected workers.

How quickly must the authority decide an employer’s application for approval of dismissal or discharge?

The authority should decide the application within three months, though the period may be extended with written reasons.

What remedy is available if an employer violates these restrictions during pending proceedings?

The aggrieved employee may file a written complaint to the conciliation officer, arbitrator, Tribunal, or National Industrial Tribunal, which will adjudicate the complaint as an industrial dispute.

What must an Industrial Adjudicator determine in such complaints?

The adjudicator must first determine whether the employer violated the restrictions and then decide whether the punishment imposed on the worker is legally justified.

When can a Tribunal re-examine findings of a domestic enquiry?

If the enquiry is fair and proper, the Tribunal will not re-examine the findings unless they are perverse.

Can the Government transfer proceedings pending before a Tribunal?

Yes. The appropriate Government may transfer proceedings from one Tribunal to another with written reasons, and the new Tribunal may proceed de novo or from the existing stage.

Can the Central Government transfer cases to a National Industrial Tribunal?

Yes. It may withdraw proceedings from any Tribunal and transfer them to a National Industrial Tribunal for disposal.

Can the Central Government empower a State Tribunal to hear certain cases?

Yes. The Central Government may authorise a State Tribunal to decide cases where the Central Government is the appropriate Government.

What protection is given to persons refusing to participate in an illegal strike or lock-out?

Such persons cannot be expelled from a trade union, fined, penalised, deprived of benefits, or placed at any disadvantage for refusing to participate.

Can union rules restrict enforcement of this protection?

No. Union rules requiring dispute settlement in a particular manner do not apply to proceedings enforcing these rights.

What remedy can a civil court grant if a person is expelled from a trade union for refusing to participate in an illegal strike?

The court may award compensation or damages from the funds of the trade union instead of restoring membership.

How can a worker be represented in proceedings under the Code?

A worker may be represented by:

An office-bearer of his trade union,

An office-bearer of a federation of trade unions, or

Another worker or trade union office-bearer if he is not a union member.

How can an employer be represented in such proceedings?

An employer may be represented by:

An officer of an employer association,

An officer of a federation of employer associations, or

Another employer or officer authorised in the prescribed manner.

Are legal practitioners allowed in conciliation proceedings?

No. Legal practitioners cannot represent parties in conciliation proceedings.

When can legal practitioners appear before a Tribunal or National Industrial Tribunal?

Only when all parties consent and the Tribunal grants permission.

What happens if there is doubt regarding interpretation of an award or settlement?

The appropriate Government may refer the question to a Tribunal or National Industrial Tribunal, whose decision will be final and binding.

Can the Government exempt establishments from provisions of the Code?

Yes. If adequate provisions exist to achieve the objectives of the Code, the Government may exempt establishments or classes of establishments by notification.

Can new industrial establishments be exempted from the Code?

Yes. In public interest, new establishments may be exempted from some or all provisions of the Code for a specified period.

Do civil courts have jurisdiction over matters covered by the Code?

No. Civil courts cannot entertain such matters or grant injunctions regarding actions taken under the Code.

Are persons protected for actions taken in good faith under the Code?

Yes. No legal proceedings can be initiated against a person for actions done in good faith under the Code or its rules.

Does the Government have the power to make rules under the Code?

Yes. The appropriate Government may make rules to implement the provisions of the Code, including matters relating to trade unions, grievance procedures, dispute resolution, strikes, retrenchment, tribunals, and other administrative matters.

What happens to rules made by the Government?

State Government rules must be laid before the State Legislature, and Central Government rules must be laid before both Houses of Parliament.

Can the Government delegate its powers under the Code?

Yes. The appropriate Government may delegate its powers to specified officers or authorities through notification.

Can the Central Government amend the Schedules of the Code?

Yes. The Central Government may amend the Schedules by notification, which must be placed before Parliament.

What change was made to the Finance Act, 2017?

References to the Industrial Tribunal under earlier law were replaced with references to the Industrial Tribunal constituted under the Industrial Relations Code, 2020.

Can the Central Government remove difficulties in implementing the Code?

Yes. It may issue orders to remove difficulties, but only within three years of the Code’s commencement.

Which earlier laws were repealed by the Code?

The Trade Unions Act, 1926, the Industrial Employment (Standing Orders) Act, 1946, and the Industrial Disputes Act, 1947.

What happens to tribunals functioning under the repealed laws?

They continue to function until corresponding tribunals are established under the Code.

What happens to actions taken under the repealed laws?

They remain valid and are deemed to have been taken under the corresponding provisions of the Code unless inconsistent with it.

Does the General Clauses Act apply to the repeal of the earlier enactments?

Yes. The provisions relating to repeal in the General Clauses Act apply.

Therefore, the miscellaneous provisions play an important role in ensuring the smooth functioning of the Code. They provide procedural safeguards, administrative clarity, and legal continuity, thereby supporting the effective enforcement and implementation of the Code’s broader objectives.

Muneeb Rashid Malik is an Advocate.

He tweets @muneebmalikrash.