LABOUR LAW 1

MODULE 1

Historical Perspective on

Labour

Concept and Growth of Labour Jurisprudence in India

The term Labor or Industrial Jurisprudence refers to a base of literature regarding

knowledge of Law with respect to labour and Industry, derived from Labor

legislation, constitutional framework, and the judicial lawmaking in the country.

Labour Jurisprudence involves the struggles of classes and social stress prevalent

within them and the role played by judiciary in resolving issues emerged in

context of the same. Issues likes bonded labour system, recognition of right to

strike, formation of trade union and others has been emerged before the courts

time and again and the decision of court helped in overall growth of labour

jurisprudence as a whole. Legislations and courts have both realized that it’s high
time to move toward the common goal of securing social justice and economic

justice for labour and other weaker sections of society.

The literature on Industrial Jurisprudence is exhaustive. It covers a plethora of

subjects relating to labour & management relations. The Supreme Court &

Industrial adjudication has over the time evolved several jural postulates which

now form the art of Industrial Jurisprudence such as

• The Doctrine of social welfare, public policy & social good.

• The Industrialists should not treat Labour as a commodity but as a real

partner in Industrial management.

• Labours should have the assurance of their Minimum wages.

• Labor law to be applied equally to both public & private sectors.

• Equal Pay for equal work – Constitutional Mandate.

Industrial Jurisprudence is based on the values of social justice which is integral

to our Constitution. It has been built around several labour legislations enacted

by the Parliament. Labour Law, however, is not exhausted by labour legislation.

It has therefore been replenished by judge- made law, drawing sustenance from

practice and precedent, custom and contract. The supreme Court has played a

pivotal role in the formulation of industrial jurisprudence for more than seven

decades.
Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank, AIR 1950, is the first

case of the Supreme Court on the making of Industrial jurisprudence in India. The

functions and role of the Industrial Tribunal was best described by Justice

Mukherjee which is as follows. “In settling the disputes between the employers

and the workmen, the function of the Tribunal is not confined to administration

of justice in accordance with law. It can confer rights and privileges on either

party which it considers reasonable and proper, though they may not be within

the terms of any existing agreement. It has not merely to interpret or give effect

to the contractual rights and obligations of the parties. It can create new rights

and obligations between them which it considers essential for keeping industrial

peace.”

Evolution of Labour law in India

The history of labour legislation in India is interwoven with the history of British

colonialism. The industrial/labour legislations enacted by the British were

primarily intended to protect the interests of the British employers.

Considerations of British political economy was naturally paramount in shaping

some of these early laws. Thus came the Factories Act. It is well known that

Indian textile goods offered stiff competition to British textiles in the export

market and hence in order to make India labour costlier the Factories Act was

first introduced in 1883 because of the pressure brought on the British parliament
by the textile magnates of Manchester and Lancashire. Thus, India received the

first stipulation of eight hours of work, the abolition of child labour, and the

restriction of women in night employment, and the introduction of overtime

wages for work beyond eight hours. While the impact of this measure was clearly

welfarist the real motivation was undoubtedly protectionist.

The earliest Indian statute to regulate the relationship between employer and his

workmen was the Trade Dispute Act, 1929 (Act 7 of 1929). Provisions were made

in this Act for restraining the rights of strike and lock out but no machinery was

provided to take care of disputes. The original colonial legislation underwent

substantial modifications in the post-colonial era because independent India

called for a clear partnership between labour and capital. The content of this

partnership was unanimously approved in a tripartite conference in December

1947 in which it was agreed that labour would be given a fair wage and fair

working conditions and in return capital would receive the fullest co-operation of

labour for uninterrupted production and higher productivity as part of the strategy

for national economic development and that all concerned would observe a truce

period of three years free from strikes and lockouts.

Ultimately the Industrial Disputes Act (the Act) brought into force on 01.04.1947

repealing the Trade Disputes Act 1929 has since remained on statute book.
Evolution and Development of Labour Legislations in

India in Pre-independence and Post-Independence

phase
Labour law arose due to the demands of workers for better conditions, the right

to organize, and the simultaneous demands of employers to restrict the powers of

workers in many organizations and to keep labour costs low. Employers' costs

can increase due to workers organizing to win higher wages, or by laws imposing

costly requirements, such as health and safety or equal opportunities conditions.

Workers' organizations, such as trade unions, can also transcend purely industrial

disputes, and gain political power - which some employers may oppose. The state

of labour law at any one time is therefore both the product of, and a component

of, struggles between different interests in society.

International Labour Organisation (ILO) was one of the first organisations to deal

with labour issues. The ILO was established as an agency of the League of

Nations following the Treaty of Versailles, which ended World War I. Post-war

reconstruction and the protection of labour unions occupied the attention of many

nations during and immediately after World War I. In Great Britain, the Whitley

Commission, a subcommittee of the Reconstruction Commission, recommended

in its July 1918 Final Report that "industrial councils" be established throughout
the world. The British Labour Party had issued its own reconstruction programme

in the document titled Labour and the New Social Order. In February 1918, the

third Inter-Allied Labour and Socialist Conference (representing delegates from

Great Britain, France, Belgium and Italy) issued its report, advocating an

international labour rights body, an end to secret diplomacy, and other goals. And

in December 1918, the American Federation of Labor (AFL) issued its own

distinctively apolitical report, which called for the achievement of numerous

incremental improvements via the collective bargaining process. As the war drew

to a close, two competing visions for the post-war world emerged. The first was

offered by the International Federation of Trade Unions (IFTU), which called for

a meeting in Berne in July 1919. The Berne meeting would consider both the

future of the IFTU and the various proposals which had been made in the previous

few years. The IFTU also proposed including delegates from the Central Powers

as equals. Samuel Gompers, president of the AFL, boycotted the meeting,

wanting the Central Powers delegates in a subservient role as an admission of

guilt for their countries' role in the bringing about war. Instead, Gompers favored

a meeting in Paris which would only consider President Woodrow Wilson's

Fourteen Points as a platform. Despite the American boycott, the Berne meeting

went ahead as scheduled. In its final report, the Berne Conference demanded an

end to wage labour and the establishment of socialism. If these ends could not be

immediately achieved, then an international body attached to the League of

Nations should enact and enforce legislation to protect workers and trade unions.
The British proposed establishing an international parliament to enact labour laws

which each member of the League would be required to implement. Each nation

would have two delegates to the parliament, one each from labour and

management. An international labour office would collect statistics on labour

issues and enforce the new international laws. Philosophically opposed to the

concept of an international parliament and convinced that international standards

would lower the few protections achieved in the United States, Gompers

proposed that the international labour body be authorized only to make

recommendations, and that enforcement be left up to the League of Nations.

Despite vigorous opposition from the British, the American proposal was

adopted.

The Americans made 10 proposals. Three were adopted without change: That

labour should not be treated as a commodity; that all workers had the right to a

wage sufficient to live on; and that women should receive equal pay for equal

work. A proposal protecting the freedom of speech, press, assembly, and

association was amended to include only freedom of association. A proposed ban

on the international shipment of goods made by children under the age of 16 was

amended to 5 ban goods made by children under the age of 14. A proposal to

require an eight-hour work day was amended to require the eight-hour work day

or the 40-hour work week (an exception was made for countries where

productivity was low). Four other American proposals were rejected.

Meanwhile, international delegates proposed three additional clauses, which

were adopted: One or more days for weekly rest; equality of laws for foreign

workers; and regular and frequent inspection of factory conditions. The

Commission issued its final report on 4 March 1919, and the Peace Conference

adopted it without amendment on 11 April. The report became Part XIII of the

Treaty of Versailles. (The Treaty of Versailles was one of the peace treaties at the

end of World War I. It ended the state of war between Germany and the Allied

Powers. It was signed on 28 June 1919.) The first annual conference (referred to

as the International Labour Conference, or ILC) began on 29th October 1919 in

Washington DC and adopted the first six International Labour Conventions,

which dealt with hours of work in industry, unemployment, maternity protection,

night work for women, minimum age and night work for young persons in

industry. The prominent French socialist Albert Thomas became its first Director

General. The ILO became a member of the United Nations system after the

demise of the League in 1946.

Constitutional provisions with regard to labour laws

The relevance of the dignity of human labour and the need for protecting and

safeguarding the interest of labour as human beings has been enshrined in

Chapter-III (Articles 16, 19, 23 & 24) and 7 Chapter IV (Articles 39, 41, 42, 43,

43A & 54) of the Constitution of India keeping in line with Fundamental Rights
and Directive Principles of State Policy. Labour is a concurrent subject in the

Constitution of India implying that both the Union and the state governments are

competent to legislate on labour matters and administer the same. The bulk of

important legislative acts have been enacted by the Parliament. Constitutional

Status Union List Concurrent List The legislations can be categorized as follows:

1) Labour laws enacted by the Central Government, where the Central

Government has the sole responsibility for enforcement.

2) Labour laws enacted by Central Government and enforced both by Central and

State Governments.

3) Labour laws enacted by Central Government and enforced by the State

Governments.

4) Labour laws enacted and enforced by the various State Governments which

apply to respective States.

The Constitution of India provides detailed provisions for the rights of the citizens

and also lays down the Directive Principles of State Policy which set an aim to

which the activities of the state are to be guided. These Directive Principles

provide:

a. for securing the health and strength of employees, men and women;
b. that the tender age of children is not abused;

c. that citizens are not forced by economic necessity to enter avocations unsuited

to their age or strength;

d. just and humane conditions of work and maternity relief are provided; and

e. that the Government shall take steps, by suitable legislation or in any other

way, to secure the participation of employee in the management of undertakings,

establishments or other organisations engaged in any industry.

LABOUR LAWS IN INDIA

The term ‘labour’ means productive work especially physical work done for

wages. Labour law also known as employment law is the body of laws,

administrative rulings, and precedents which address the legal rights of, and

restrictions on, working people and their organizations. There are two broad

categories of labour law. First, collective labour law relates to the tripartite

relationship between employee, employer and union. Second, individual labour

law concerns employees' rights at work and through the contract for work. The

law relating to labour and employment in India is primarily known under the

broad category of "Industrial Law". The prevailing social and economic

conditions have been largely influential in shaping the Indian labour legislation,
which regulate various aspects of work such as the number of hours of work,

wages, social security and facilities provided.

The labour laws of independent India derive their origin, inspiration and strength

partly from the views expressed by important nationalist leaders during the days

of national freedom struggle, partly from the debates of the Constituent Assembly

and partly from the provisions of the Constitution and the International

Conventions and Recommendations. The relevance of the dignity of human

labour and the need for protecting and safeguarding the interest of labour as

human beings has been enshrined in Chapter-III (Articles 16, 19, 23 & 24) and

Chapter IV (Articles 39, 41, 42, 43, 43A & 54) of the Constitution of India

keeping in line with Fundamental Rights and Directive Principles of State Policy.

The Labour Laws were also influenced by important human rights and the

conventions and standards that have emerged from the United Nations. These

include right to work of one’s choice, right against discrimination, prohibition of

child labour, just and humane conditions of work, social security, protection of

wages, redress of grievances, right to organize and form trade unions, collective

bargaining and participation in management. The labour laws have also been

significantly influenced by the deliberations of the various Sessions of the Indian

Labour Conference and the International Labour Conference.

Labour legislations have also been shaped and influenced by the

recommendations of the various National Committees and Commissions such as

First National Commission on Labour (1969) under the Chairmanship of Justice

Gajendragadkar, National Commission on Rural Labour (1991), Second National

Commission on Labour (2002) under the Chairmanship of Shri Ravindra Varma

etc. and judicial pronouncements on labour related matters specifically pertaining

to minimum wages, bonded labour, child labour, contract labour etc.

Under the Constitution of India, Labour is a subject in the concurrent list where

both the Central and State Governments are competent to enact legislations. As a

result , a large number of labour laws have been enacted catering to different

aspects of labour namely, occupational health, safety, employment, training of

apprentices, fixation, review and revision of minimum wages, mode of payment

of wages, payment of compensation to workmen who suffer injuries as a result of

accidents or causing death or disablement, bonded labour, contract labour,

women labour and child labour, resolution and adjudication of industrial disputes,

provision of social security such as provident fund, employees’ state insurance,

gratuity, provision for payment of bonus, regulating the working conditions of

certain specific categories of workmen such as plantation labour, beedi workers

etc.

The legislations can be categorized as follows:

1) Labour laws enacted by the Central Government, where the Central

Government has the sole responsibility for enforcement.

2) Labour laws enacted by Central Government and enforced both by Central and

State Governments.

3) Labour laws enacted by Central Government and enforced by the State

Governments.

4) Labour laws enacted and enforced by the various State Governments which

apply to respective States.

(a) Labour laws enacted by the Central Government, where the Central

Government has the sole responsibility for enforcement

1. The Employees’ State Insurance Act, 1948

2. The Employees’ Provident Fund and Miscellaneous Provisions Act,1952

3. The Dock Workers (Safety, Health and Welfare) Act, 1986

4. The Mines Act, 1952

5. The Iron Ore Mines, Manganese Ore Mines and Chrome Ore Mines Labour

Welfare (Cess) Act, 1976

6. The Iron Ore Mines, Manganese Ore Mines and Chrome Ore Mines Labor

Welfare Fund Act, 1976

7. The Mica Mines Labour Welfare Fund Act, 1946

8. The Beedi Workers Welfare Cess Act, 1976

9. The Limestone and Dolomite Mines Labour Welfare Fund Act, 1972

10. The Cine Workers Welfare (Cess) Act, 1981

11. The Beedi Workers Welfare Fund Act, 1976

12. The Cine Workers Welfare Fund Act, 1981

(b) Labour laws enacted by Central Government and enforced both by Central

and State Governments

13. The Child Labour (Prohibition and Regulation) Act, 1986.

14. The Building and Other Constructions Workers’ (Regulation of Employment

and Conditions of Service) Act, 1996.

15. The Contract Labour (Regulation and Abolition) Act, 1970.

16. The Equal Remuneration Act, 1976.

17. The Industrial Disputes Act, 1947.

18. The Industrial Employment (Standing Orders) Act, 1946.

19. The Inter-State Migrant Workmen (Regulation of Employment and

Conditions of Service) Act, 1979.

20. The Labour Laws (Exemption from Furnishing Returns and Maintaining

Registers by Certain Establishments) Act, 1988

21. The Maternity Benefit Act, 1961

22. The Minimum Wages Act, 1948

23. The Payment of Bonus Act, 1965

24. The Payment of Gratuity Act, 1972

25. The Payment of Wages Act, 1936

26. The Cine Workers and Cinema Theatre Workers (Regulation of Employment)

Act, 1981

27. The Building and Other Construction Workers Cess Act, 1996

28. The Apprentices Act, 1961

29. Unorganized Workers Social Security Act, 2008

30. Working Journalists (Fixation of Rates of Wages Act, 1958

31. Merchant Shipping Act, 1958

32. Sales Promotion Employees Act, 1976

33. Dangerous Machines (Regulation) Act, 1983

34. Dock Workers (Regulation of Employment) Act, 1948

35. Dock Workers (Regulation of Employment) (Inapplicability to Major Ports)

Act, 1997

36. Private Security Agencies (Regulation) Act, 2005

(c) Labour laws enacted by Central Government and enforced by the State

Governments

37. The Employers’ Liability Act, 1938

38. The Factories Act, 1948

39. The Motor Transport Workers Act, 1961

40. The Personal Injuries (Compensation Insurance) Act, 1963

41. The Personal Injuries (Emergency Provisions) Act, 1962

42. The Plantation Labour Act, 1951

43. The Sales Promotion Employees (Conditions of Service) Act, 1976

44. The Trade Unions Act, 1926

45. The Weekly Holidays Act, 1942 13

46. The Working Journalists and Other Newspapers Employees (Conditions of

Service) and Miscellaneous Provisions Act, 1955

47. The Workmen’s Compensation Act, 1923

48. The Employment Exchange (Compulsory Notification of Vacancies) Act,

1959

49. The Children (Pledging of Labour) Act 1938

50. The Bonded Labour System (Abolition) Act, 1976

51. The Beedi and Cigar Workers (Conditions of Employment) Act, 1966

3. Classification of LABOUR LAWS in India Labour Laws may be classified

under the following heads:

I. Laws related to Industrial Relations such as:

1. Trade Unions Act, 1926

2. Industrial Employment Standing Order Act, 1946.

3. Industrial Disputes Act, 1947.

II. Laws related to Wages such as:

4. Payment of Wages Act, 1936

5. Minimum Wages Act, 1948

6. Payment of Bonus Act, 1965.

7. Working Journalists (Fixation of Rates of Wages Act, 1958

III. Laws related to Working Hours, Conditions of Service and Employment

such as:

8. Factories Act, 1948.

9. Plantation Labour Act, 1951.

10. Mines Act, 1952.

11. Working Journalists and other Newspaper Employees’ (Conditions of Service

and Misc. Provisions) Act, 1955.

12. Merchant Shipping Act, 1958.

13. Motor Transport Workers Act, 1961.

14. Beedi & Cigar Workers (Conditions of Employment) Act, 1966.

15. Contract Labour (Regulation & Abolition) Act, 1970.

16. Sales Promotion Employees Act, 1976.

17. Inter-State Migrant Workmen (Regulation of Employment and Conditions of

Service) Act, 1979.

18. Dock Workers (Safety, Health & Welfare) Act, 1986.

19. Building & Other Construction Workers (Regulation of Employment &

Conditions of Service) Act, 1996.

20. Building and Other Construction Workers Welfare Cess Act, 1996

21. Cine-Workers and Cinema Theatre Workers (Regulation of Employment)

Act, 1981

22. Dangerous Machines (Regulation) Act, 1983

23. Dock Workers (Regulation of Employment) Act, 1948

24. Dock Workers (Regulation of Employment) (Inapplicability to Major Ports)

Act, 1997

25. Employment of Manual Scavengers and Construction of Dry Latrines

(Prohibition) Act, 1993

26. Industrial Employment (Standing Orders) Act, 1946

27. Mines and Mineral (Development and Regulation Act, 1957

28. Plantation Labour Act, 1951

29. Private Security Agencies (Regulation) Act, 2005

IV. Laws related to Equality and Empowerment of Women such as:

30. Maternity Benefit Act, 1961

31. Equal Remuneration Act, 1976.

V. Laws related to Deprived and Disadvantaged Sections of the Society such

as:

32. Bonded Labour System (Abolition) Act, 1976

33. Child Labour (Prohibition & Regulation) Act, 1986

34. Children (Pledging of Labour) Act, 1933

VI. Laws related to Social Security such as:

35. Workmen’s Compensation Act, 1923.

36. Employees’ State Insurance Act, 1948.

37. Employees’ Provident Fund & Miscellaneous Provisions Act, 1952.

38. Payment of Gratuity Act, 1972.

39. Employers’ Liability Act, 1938

40. Beedi Workers Welfare Cess Act, 1976

41. Beedi Workers Welfare Fund Act, 1976

42. Cine workers Welfare Cess Act, 1981

43. Cine Workers Welfare Fund Act, 1981

44. Fatal Accidents Act, 1855

45. Iron Ore Mines, Manganese Ore Mines and Chrome Ore Mines Labour

Welfare Cess Act, 1976

46. Iron Ore Mines, Manganese Ore Mines and Chrome Ore Mines Labour

Welfare Fund Act, 1976

47. Limestone and Dolomite Mines Labour Welfare Fund Act, 1972

48. Mica Mines Labour Welfare Fund Act, 1946

49. Personal Injuries (Compensation Insurance) Act, 1963

50. Personal Injuries (Emergency Provisions) Act, 1962

51. Unorganised Workers’ Social Security Act, 2008

Meaning of International Labour Standard

It is necessary to understand its exact meaning to understand the role of the ILS.

The word “labour standard” has two separate definitions, according to

Sengenberger. The meaning of labour standards is normative or prescriptive and

refers to the conditions of “work” and specifies fundamental working rights and

basic social rights. These rules are set at both international and national level and

are thus known as the International Labour Standards. Their terms and conditions

of employment are defined in the same way. Their meaning refers to the situation

of “what is.” ILS is laid down in the ILO conventions and recommendations and

forms the ‘international labour code,’ which other sources of international

agreements supplement these ILO instruments.

Functions of International Labour Standards

ILS roles are to redress and mitigate systemic shortcomings resulting from the

particular characteristics of labour and labour relations, such as the fundamental

asymmetry of power between the workers and the employers and the high

potential for exclusion and exclusion Involvement, security and promotion are

main functions that can be summarized as:

• To prevent disruptive competition through the defence of particular

workers’ groups and setting minimum wage and working conditions;

 • To promote constructive competition through guaranteed collective rights,

for example, involvement in decision-making, improvements in

productivity and motivation of workers, increasing aggregate demand, and

promoting the creation of jobs, active labour market policies and ways of

adjusting socially desirable measures.

The ILO has been formed since 1942 and has produced enormous numbers of

Conventions and advice, given long-standing concerns about the importance and

role of ILS. In the following section, its efficiency will be examined.

International Labour Standards implementation and

promotion

International labour standards are supported by an internationally unique

supervisory system that ensures that countries implement the conventions

ratified. The ILO evaluates and defines areas in which norms can be best enforced

annually in member states. If the application of standards does not present

problems, the ILO seeks to help nations by means of social dialogue and technical

assistance.

Following its adoption by the International Labour Conference and its ratification

by the States, the ILO developed numerous ways to track the implementation of
conventions and guidelines in law and practice. The supervisory mechanism

exists in two kinds:

• Regular supervisory system:

Review by the Member States of the periodic reports on measures taken to

implement the provisions of the Conventions ratified.

• Special procedures:

The proceedings for representations and the general application procedure for

complaints and particular freedom of association procedure.

The framework for supervising the application of

standards

Two ILO bodies analyze the reports on implementation in law and practice

submitted by the Member States and make recommendations in this regard from

workers’ and employer organisations, on the basis of the normal framework of

supervision.

• Expert Committee on the application of conventions and

recommendations.
 • The Tripartite Committee on Conventions and Recommendations of

the International Labour Conference.

Special Procedures

The three following procedures are focused on the presentation of representation

or complaint in comparison to the normal supervisory system:

Representations procedure for the application of the Conventions ratified.

Application procedure for ratified conventions complaints.

Special procedure for complaints concerning freedom of association by the

Committee on Freedom of Association.

Considering the efficiency of international labour norms, it should also be

remembered that ILO regulatory actions include voluntary adoption of global

labour standards which creates binding obligations for States in turn. This

approach was preferred to the approach initially intended by founders of the ILO

who would have given the International Labor Conference the power, subject to

the right to “opt-off” within certain time limits, to adopt binding international
labour legislation directly. The retained solution is a realistic approach to labour

legislation, but it means that actions related to standard ILO depend in large

measure on Member States’ willingness and capacity to meet standard

commitments. As Member States experience economic crises, successful

enforcement of the universal labour standards can be affected. Generally

speaking, globalization has affected the willingness of States to assume their

position under the ILO Constitution under the pressure of international

competition.

It is a priority for ILO in these circumstances to ensure that it has the institutional

capacity to: establish substantive standards; retain them up-to-date, including

adaptation to evolving needs, expectations, activities and technical conditions as

appropriate; use all the diverse and complementary mechanisms available in its

Constitution in line with their effectiveness, and ensure that they are effective. In

the framework of the Social Justice Declaration, the governing board is currently

discussing a process for updating standards to reinvigorate and reinforce the ILO

body of standards, ensuring that they adequately protect all workers in today’s

workplace, suggesting an efficient implementation. That method, if implemented,

would provide the Office as a whole with an ongoing work plan with respect to

standards.