Concept of Unfair Labour Practices notes — Unit 5

Even with laws regulating strikes, retrenchment, and standing orders, both employers and unions sometimes resort to dirty tactics to gain leverage. These unethical, coercive, or discriminatory actions are termed 'Unfair Labour Practices'.

⇒Statutory Recognition

The concept was formally introduced into the Industrial Disputes Act, 1947 via an amendment in 1982.

• Section 2(ra): Defines Unfair Labour Practice as any of the practices specified in the Fifth Schedule.
• Section 25T: Prohibition of ULP. No employer or workman or a trade union shall commit any unfair labour practice.
• Section 25U: Penalty. Any person committing a ULP is punishable with imprisonment up to 6 months, or a fine up to ₹1000, or both.

The Fifth Schedule lists specific actions by employers that are illegal. They generally fall into three categories: Anti-Union activities, Victimization, and Bad Faith bargaining.

⇒1. Anti-Union Discrimination

Employers interfering with the workers' fundamental right to organize:

• Threatening workmen with discharge or dismissal if they join a trade union.
• Threatening a lockout or closure if a trade union is organized.
• Granting wage increases to workmen at crucial periods of trade union organization, with the sole object of undermining trade union efforts.

⇒2. Sponsoring 'Dummy' Unions

To dominate, interfere with, or contribute support (financial or otherwise) to any trade union. This is to prevent management from creating "puppet" unions to weaken genuine worker representation.

⇒3. Victimization (The most common ULP)

Punishing a worker not for genuine misconduct, but for being a union activist:

• Discharging or dismissing workmen for taking part in a legal strike.
• Transferring a workman mala fide (in bad faith) from one place to another, under the guise of management policy, just to break union activity.
• Showing favoritism or partiality to one set of workers regardless of merit (to divide the union).
• Abolishing the work of a regular nature being done by workmen, and giving it to contractors as a measure of breaking a strike.

⇒4. Abuse of Disciplinary Process

Discharging or dismissing a workman:

• By way of victimization.
• Not in good faith, but in the colorable exercise of the employer's rights.
• By falsely implicating a workman in a criminal case on false evidence.
• For a minor technical infraction (e.g., being 5 minutes late) where the punishment of dismissal is shockingly disproportionate to the offence.

⇒5. Bad Faith Bargaining

Refusing to bargain collectively, in good faith, with the recognized trade unions. (e.g., sending junior HR reps who have no authority to make decisions to negotiation meetings just to waste time).

⇒6. Force and Violence

• Recruiting goondas (thugs) or using private security to break a strike or physically intimidate workers.

⇒7. Exploitation of Status

• To employ workmen as 'badlis' (substitutes), casuals, or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.

Workers and their unions are also strictly prohibited from engaging in coercive or violent tactics. Part II of the Fifth Schedule details these.

⇒1. Illegal Strikes and Coercion

• To advise or actively support or instigate any strike that is deemed illegal under the Act (violating Sec 22 or 23).
• To coerce workmen in the exercise of their right to self-organization or to join a trade union (e.g., physically forcing a non-union worker to join a strike).

⇒2. Refusal to Bargain

For a recognized union to refuse to bargain collectively in good faith with the employer.

⇒3. Disruptive Tactics

Unions cannot use tactics that cross the line from peaceful protest into harassment or sabotage:

• Coercive acts: To indulge in coercive activities against certification of a bargaining agent.
• Go-Slow: To stage, encourage, or instigate such forms of coercive actions as wilful 'go-slow' (pretending to work but intentionally producing less).
• Squatting: Squatting on the work premises after working hours or during strike periods.
• Gherao: To indulge in 'gherao' of any of the members of the managerial or other staff (physically surrounding them and preventing them from moving).

⇒4. Intimidation and Violence

To stage demonstrations at the residences of the employers or the managerial staff members. (Protests must be at the factory gate, not at the manager's private home).

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

To indulge in acts of force or violence or to hold out threats of intimidation against any workman with a view to prevent him from attending work. (e.g., beating up a 'scab' or strike-breaker).

If an employer or union commits a ULP, what is the remedy?

⇒Raising an Industrial Dispute

A complaint of Unfair Labour Practice can be raised as an Industrial Dispute and referred by the Government to a Labour Court or Industrial Tribunal. If a worker is dismissed as a measure of victimization (a ULP), the Labour Court has the power to set aside the dismissal and order reinstatement with full back wages.

⇒Section 11A Power

If an employer dismisses a worker for a minor mistake, the Labour Court under Section 11A can rule that the punishment is "shockingly disproportionate" (which is a ULP under the Fifth Schedule) and substitute it with a lesser punishment (like stopping an increment).

⇒Summary of Master Concepts

• Concept: ULPs are unethical/coercive tactics used by either side, codified in the Fifth Schedule.
• Employer ULPs: Victimization of union leaders, forming dummy unions, keeping casual workers temporary for years to deny benefits, disproportionate punishments.
• Union ULPs: Gherao, Go-slow, illegal strikes, protesting at the manager's home, violence against non-striking workers.
• Penalty: Section 25U prescribes up to 6 months imprisonment for committing a ULP.

⇒University Exam Tips for this Unit (Premium Advice)

• The Categorization Question: You will often get a question asking you to list 5 ULPs by employers and 5 by Trade Unions. Memorize the lists provided on pages 2-7.
• Victimization: This is the most tested ULP. Explain that it means punishing a worker not for their work performance, but because they are an active union member. Courts heavily frown upon this.
• Go-Slow & Gherao: Always mention these two under Union ULPs. Examiners specifically look for these keywords to see if you know what tactics are legally prohibited.