INDUSTRIAL LABOUR LAW

1. Whether it is necessary to notify the employer before forming a trade union? 2. Should the employer have given an opportunity to the union to discuss these matters with the management? Is it a legal requirement? 3. Was the employer under a legal obligation to deduct union member ship fees from the salaries of member employees? 4. What are the demands which the employer was bound to grant under the law? What are the situations where the employer had acted contrary to law as alleged by the union? 5. Are there any demands in the list submitted by the union which you consider as unreasonable? 6. Is it lawful for the employer to have sent Vacation of Post (VOP) letters to the striking employee? 7. Was the final letter sent to the union by the HR Manager legal? 8. What do you think are those two offences the employer would have committed under the Industrial Dispute Act for the commissioner to have institute legal action against the Directors of the Company? 9. As the Company was an independent institution registered under the Companies Act is it lawful to have institute action against the Directors without instituting action against the Company? 10. Was there a possibility of avoiding this unfortunate situation if the Employer had been more flexible with the union? If so what do you think the Company should have done? 11. Sudden decision of the Union officials to call off the strike which was carried on for long time was considered by certain members as a betrayal of the union struggle. What is your opinion?

Whether it is necessary to notify the employer before forming a trade union? No, According to Trade Union Ordinance No. 14 of 1935 was introduced, as its preamble states, to provide for the registration and control of trade unions whichconsists of eleven parts. Part 1 contains the definitions of importance words used in trade union law; Part 11 contains the powers, functions and duties of the Register of Trade Unions and other officers: Part 111 is on the registration of Trade Unions and Part 1V deals with the special provision applicable to trade unions of public servants; Part V to V111 are on the rights and liabilities of trade unions; their constitutions, property and funds and accounts; Parts 1X to X1 deals with offences. In these 11 Parts of the Trade Union Ordinance there is no any statement indicating that it is necessary to notify the employer before forming a trade union.

1. Should the employer have given an opportunity to the union to discuss these matters with the management? Is it a legal requirement? The Trade Union Ordinance has not made specific provision that all registered trade unions should be recognized for trade union or bargaining purposes. However government Departments, Public Corporation and similar bodies and Local Authorities in general recognized all trade unions and allow such union s to make representation on behalf of their members and to negotiate in regard to terms and conditions of employment. Many of the large

scale private sector organizations also follow the same procedure; but many of the medium and small scale employers do not allow trade unions to function within their work places. However the government being keen to allow trade union rights for carrying on legitimate trade union activity recently amended the Industrial Dispute Act to make provision for the acceptance of trade unions having a minimum of 40% membership of employees working in a work place for the purpose of bargaining with such employers.Here in the company the total number of employee who joined the union is nearly 75%. So it is legal and Management should have given an opportunity to the union, but management disobeyed the Law.

2. Was the employer under a legal obligation to deduct union member ship fees from the salaries of member employees? According to Trade Union Act the statement the employer under a legal obligation to deduct union member ship fees from the salaries of member employees not mention anything regards to Membership fees, which talks about membership of a Trade Union where any employee wishing to be a member of trade union should be over 16 years of age. To join a trade union no permission or approval of an employer or anybody else is necessary. More over an employee or employer can be a member of more than one trade union if required. In the case of members under 21 years of age they cannot hold any office in a trade union. A member should be also allowed. On request, to examine the books of accounts of the trade union and be supplied with a copy of constitution, if asked for. They are also entitled to peruse the membership list of the union.But it a practice in the industry and it can be practiced

but it not a legal obligation. But in the Wages Board Ordinance it is mentioned the Authorized deduction from salary is possible through the approval of Commissioner of Labor. The Wages Board Ordinance mentioned the follows

Advance of money made by the employer. Payments made at the request of the worker, by the employer, to a third party. Any contribution to be made through the employer to any pension fund, Provident fund, Insurance scheme, Saving scheme or medical scheme.

Any contribution or subscription to any welfare scheme, Trade Union or temple fund. The deposits of security. Recovery of loan from the approved loan fund.

3. What are the demands which the employer was bound to grant under the law? What are the situations where the employer had acted contrary to law as alleged by the union?

Demands which the employer was bound to grantunder the law Although workers work 48 hours a week employer denied over time payment. Overtime (Employees are entitled to overtime payments for work done in excess of 8 hours a day / 45 hours a week Shop and Office Employees Act) Placing employee on no pay even when they had not exhausted their legal entitlement of leave Leaves: Weekly holidays any employee who had worked 28 hours in a week exclusive of overtime work shall be entitled to 1 days weekly leave (Shop and Office Employees Act) Casual leave 7 days for a year (Shop and Office Employees Act) Annual leave total for a year 14 days (Shop and Office Employees Act) Public holidays 8 days are declared as Mercantile holidays (Shop and Office Employees Act)

Non Payment of ETF and EPF contributions in respect of casual and temporary employees. Employees Provident Fund Act (EPF) Employees Trust Fund Act (ETF)

Failure to provide separate conveniences for female employees and suitable place for the employees to take their meals. Factory Ordinance First Aid facilities but Ambulance not be mentioned in the law Factory Ordinance (Safety, Health, and Welfare Facilities of workers)

The practice of deducting a months salary from the gratuity entitlement of the workman when employees fail to give one months notice on resignation and deducting unpaid loans from the gratuity entitle of the employee. Payment of Gratuity Act Compelling probationary and casual employees who are members of the union to resign from the unions stating that they do not have trade union rights and terminating the service of those employees who fail to resign. Trade Union Ordinance Industrial Dispute Act section 32A (Amendment 56 of 1999)

The practice of setting off days of absence due to accidents against available leave without granting special accident leave.

Denying Maternity leave benefits to those female employees with less than one year service. Maternity benefits (Maternity benefits Ordinance 31 of 1924) Failure to reckon the Poya holiday as a holiday with remuneration for both office and factory employees. Failure of the Management to recognize the union and discuss matters relating to their members. Trade Union Ordinance

The employer had acted contrary to law as alleged by the union as follows All striking employees treated as Vacated of Post. They have considered members of the union also Vacated of Post. Even though minister Award to the dispute by ordering employees to report to the work but they were refused to enter the factory.

4. Are there any demands in the list submitted by the union which you consider as unreasonable? A Salary increase of 50% Here the percentage of salary increment is very high and generally any employers never accept the increment rate more than 5% - 10%. To grant a half days leave with pay daily for the union secretary to attend to union activities. All employees should be given at least two hours overtime daily as a matter of Policy. The overtime may be required in certain division and not in other division due to the work processes have been conducted by the division. So asking overtime at least daily two hours for all employees as a matter of policy is unreasonable.

5. Is it lawful for the employer to have sent Vacation of Post (VOP) letters to the striking employee? According to Industrial Dispute Act striking is a legal action that can be conducted by employees for any dispute against them under certain conditions. So in this case the employee trade union informed the management advance regarding strikes, but management didnt take in to consider and went against the law by sending Vacation of Post

6. Was the final letter sent to the union by the HR Manager legal? No, According to Industrial Dispute Act there are several legal ways to settle disputes which are

Conciliation and Mediation Voluntary Arbitration Compulsory Arbitration Collective Agreements

To settle the dispute the way called Compulsory Arbitration was taken by the Minister and an award was given by an arbitrator appointed by the Minister. But the management and the HR Manager refused to obey the award, which is unlawful.

7. What do you think are those two offences the employer would have committed under the Industrial Dispute Act for the commissioner to have institute legal action against the Directors of the Company? Yes. Section 40 of the principal enactment is hereby amended in subsection (1) of that section, by the insertion immediately after paragraph (S) of that subsection of the Following new paragraph: (ss) Being an employer, contravenes the provisions of section 32A;

Section 43 of the principal enactment is hereby amended as follows : (1) In subsection (1) of that section, by the substitution, for the words commits any offence under this Act shall, ofthe words commits any offence under this Act, other than an offence under section (40) (1) (ss), shall; and(2) by the insertion, immediately after subsection (1) of that section, of the following subsection: (1A) every person who commits an offence under section 40 (1) (ss) shall be liable on conviction after summary trail before a magistrate to a fine not exceeding twenty Thousand rupees.

In the event of any inconsistency between the Sinhala and Tamil texts of this Act, the Sinhala Text shall prevail.

8. As the Company was an independent institution registered under the Companies Act is it lawful to have institute action against the Directors without instituting action against the Company?

According to my view if the company registered under the companies act it is not lawful instituted action against the directors, but they can institute an action against the company. 9. Was there a possibility of avoiding this unfortunate situation if the Employer had been more flexible with the union? If so what do you think the Company should have done? Here the Human Resource Manager should play a big role to make the employees happy and satisfied and make things happen. Should obey legal procedures Keep a good relationship with employees Make safe and healthy work place to the staff

Management should make the employee understand that management care on employee welfare and employee are treated fairly. And explain the demands that cannot be provided by the management with fair reasons why the management unable to provide.

10. Sudden decision of the Union officials to call off the strike which was carried on for long time was considered by certain members as a betrayal of the union struggle. What is your opinion?

According to Office and Professional Employee International Union (OPEIU) [Ref Url: http://www.opeiu.org/NeedAUnion/StepstoCreatingaUnionWorkplace/tabid/71/Default.aspx ]

it says how to create and maintain a union in smooth way to avoid unwanted issues rising inside union. Which is give follows

A union is simply an employee organizationprotected by lawwhere a group of workers joins together to improve and guarantee their wages, benefits and working conditions. A union also gives employees a way to achieve respect and fairness on the job and a stronger voice to impact employer decisions. Without a union, employers have 100% control. By joining together you will have far more power to make positive changes and gain protections in your workplace than you would alone or with a just a few co-workers. Although work settings and issues vary, you can count on these 5 Basic Steps to create a union where you work.

STEP 1: Know Your Legal Rights

Before getting started you should learn about your legal rights to form a union. The National Labour Relations Act gives workers the right to:

Attend meetings during non-work time to discuss joining a union Talk about the union whenever other non-work talk is allowed Read and distribute union literature as long as you do this in non-work areas during non-work times such as breaks, lunch hours or before or after work

Sign a card or petition to show support for a union Ask other employees to support the union, to sign cards or petitions requesting your employer to recognize and bargain with your union

STEP 2: Gather Information

Next youll want to gather information about where you work. What are the issues facing your co-workers? Any common themes? For example, is there a need for pay equity or to end unfair treatment? Do other co-workers share your interest in exploring the idea of a union? How much do you know about your employers structure, industry and competition? Are there other unionized workers in your industry? How will you contact your fellow workers? Who will be your friends and allies in the community or political arena? These are just some of the questions youll need to answer. An OPEIU organizer can help provide the resources youll need to lay a good foundation to build a strong union.

STEP 3: Build Your Own Union

Efforts to form a union vary depending on the workplace but OPEIU believes the most successful way to create a union workplace is for employees to take charge of the process themselves. The OPEIU organizing staff will help you create a plan that makes sense for you and your co-workers. Youll want to create a representative group of co-workers, usually called an Organizing Committee to make sure your efforts to form a union succeed. The Organizing Committee educates fellow workers about the benefits of unionizing and your rights under the law, motivates co-workers to take action with confidence, and helps plan a winning strategy.

STEP 4: Make Your Union Official

Once youre able to show strong majority support for creating a union, usually through the signing of authorization cards or a petition, the next step is to make your union official. There are different ways to do this depending on your type of workplace. One common way is to request the National Labor Relations Board (NLRB), which is a neutral government agency, to hold a secret ballot election. Depending on the state, public employees may have their own state agency conduct an election. Another way to gain official union recognition is to have your employer voluntarily recognize your union. OPEIU organizing staff can help you decide which method might be best for your situation. At this point, you may be asking, What will my employer say to workers forming a union? The typical employer will say you dont need a union because he/she will not want to give up

any control or power. You and your co-workers need to be prepared for what to expect when your employer learns about your steps to form a union.

STEP 5: Win a Strong Union Contract

Efforts to create a union dont stop after you win recognition. The next stepwinning a fair contract is just as important. Once your union is officially certified, your employer will be legally required to negotiate in good faith with your union to obtain a written, legally binding contract covering all aspects of your employment. You and your co-workers will elect a negotiating team and decide what changes and improvements you want to propose to your employer. Acceptance of the final agreement will be voted on by you. You can count on OPEIU staff to provide support every step of the way.

In this way the union have to be created and maintained, but in this case the union obey the award of the Compulsory Arbitration , so the trade union practice in proper way which legally a good practice.

This is one of the important case study when I dealing with the issues, that I felt Ive got vast area of knowledge in the field of Industrial Law. The group discussion helps to create lots new ideas and opinions.