ILLEGAL STRIKES AND LOCKOUTS

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This article is written by Vishwajeet Singh, Som Law College Prayagraj, UP, 4^th Semester (LL. B), intern under Legal Vidhiya.

Abstract

The strike is the weapon in the armoury of the working class to fight collectively and to pressurize the employer. It is a weapon which is made use of by the labour class to safeguard their interests both economic and cultural. While Lockout is an act of employer. Lock-out means to “to shut or to close” Prior 1860 Lockout was known as “turn off” Lockout is an effective and widely recognized weapon in the hands of employers. It is the antithesis of Strike. Strikes and lockouts are the last resort actions taken by employees and employers respectively to ensure that both get what they are demanding for. They are said to be the last resort after conciliation measures have deemed unfruitful.

Strikes happen when employees agree to stop working as a way of compelling the employer to hide to their demands while lockouts happen when employers close down the workplaces to bar employees from working with aim of getting employees to adjust to their demands as well.

The law gives room for strikes and lockouts to take place in industries on condition that they are peaceful; causing no harm to the society and no vandalism to public or industrial property by the Industrial Disputes Act, 1947.

Keywords – Strike, lock-out, labour, vandalism, weapon, armoury, pressurize, employee, turn off, antithesis, demands, compelling, industries, disputes.

Introduction

In any industry, the two main pillars are employee and employer. The industry is running when these two pillars coordinate with each other. But in some times, there are clashes of interest between employer and employee. For the benefit of the industry, it was necessary to resolve the conflict between employer and employee. because the work environment is affected due to conflicts. If we provide a healthy environment then it will provide the benefit of the employer as well as the employee. Strike used as a weapon by the workers and lockout used as weapon by employers when the conflict between employer and employee is not going to resolve. Strike and lockout used at that time when the situation is very critical and there is no hope of resolving the dispute.

Strike is legitimate and sometimes unavoidable weapon in the hands of labour and may be resorted to for securing demands of workmen to improve their working conditions. But this weapon when misused can lead to penal consequences. Section 24 of the Industrial Dispute Act, 1947 lays down grounds which make the Strike and Lockout illegal.

Meaning of Strike

As per Cambridge Dictionary “Strike is to refuse to continue working because of an argument with an employer about working conditions, pay levels, or job losses”.

A strike is a powerful weapon used by trade unions or other associations or workers to put across their demands or grievances by employers or management of industries. In another way, it is the stoppage of work caused by the mass refusal in response to grievances. Workers put pressure on the employers by refusal to work till fulfilment of their demands. Strikes may be fruitful for workers’ welfare or it may cause economic loss to the country.

Definition of strike

Section 2(Q) of the industrial dispute act, 1947 defines the “Strike is a temporary cessation of the work by the group of the employees of the industry with the same intention to stop the work.

The Strike means the refusal of work that is decided by the association of a group of employees or workers. It is done by the workers to get their necessary demands fulfilled by the employer of the company or industry. The strike includes:

Willingful suspension of work.
It is a temporary withdrawal of the workers from the work.
The workers can do the strike outside or inside of the workplace.
The common understanding for the suspension of work should be present for the strike.
It can be continued for any number of days.
The workers start working when the demands are fulfilled.

The strike can make a loss to the industry as the workers will not do any kind of work. The production or growth of the industry can take the loss.

Essentials of Strike

According to the above definition, the essential ingredients of strike are as follow:

Industry
Cessation of work or refusal to do work in industry by the workmen acting in a body or combination.
The industry must be an Industry within the meaning of section 2(J) of the industrial dispute act 1947.
Concerted refusal.
The strike must relate to employment, non-employment or terms of employment or with the conditions of labour of the workmen.

According to Ludwig Teller, the word strike in the broad significance has a reference to a dispute between an employer and his worker in the course of which there is a concerted suspension of work. He describes 4 essential ingredients of the strike in the modern times; which are as follows:

An established relationship between the Strikers and the person/persons against whom the strike is called;
The constituting of that relationship as one of the employers and the employee.
The exitance of a dispute between the parties and utilization by labour of the weapon of concerted her refusal to continue to work as the method of persuading or coercing compliance with the workers’ demand;
The contention advanced by the workers that although the work cases, the employment relationship is deemed to continue albeit in the state of belligerent suspension.

Causes of Strike

Dispute relating to minimum wages.
Salary and incentive issues.
Increment is not up to the performance.
Dissatisfaction with the policies of the company.
Hours of work and interval timings.
Holidays and leaves with pay.
Bonus, Provident Fund, and gratuity.
Withdrawal of any facility or allowance.
Wrongful dismissal of workmen.

The most obvious reason of strike is the non-payment of wages or salaries to the workers of the factory by the employers.

Types of Strike

Economic Strike

Strike in which the employees go on fasting, near the workplace or at the residence of the employer, to force him/her redress their grievances is called hunger strike.

In such strike, the workers raise their voices to increase their pay, improve working conditions, facilitate them with allowances, perquisites, and add-on benefits.

Sympathetic Strike

When workers of one unit or industry go on strike in sympathy with workers of another unit or industry who are already on strike, it is called a sympathetic strike. The members of other unions involve themselves in a strike to support or express their sympathy with the members of unions who are on strike in other undertakings. The workers of sugar industry may go on strike in sympathy with their fellow workers of the textile industry who may already be on strike.

General Strike

It means a strike by members of all or most of the unions in a region or an industry. It may be a strike of all the workers in a particular region of industry to force demands common to all the workers. These strikes are usually intended to create political pressure on the ruling government, rather than on any one employer. It may also be an extension of the sympathetic strike to express generalized protest by the workers.

Case-

Kameshwar Prashad and other vs. State of Bihar and Union of India (AIR 1962 SC 1166 SCR 369)

Bihar Government Servants’ Conduct Rules, 1956 had a rule, Rule 4-A that prohibited workers from demonstrating or initiating any strike. The petitioners and other employees in the State of Bihar filed a case before the High Court concerning the rule. The High Court made a judgment in favour of the employees and petitioners saying that strike is the workers’ right though not fundamental.

Sit-down Strike

In this case, workers do not absent themselves from their place of work when they are on strike. They keep control over production facilities. But do not work. Such a strike is also known as ‘pen down’ or ‘tool down’ strike. Workers show up to their place of employment, but they refuse to work. They also refuse to leave, which makes it very difficult for employer to defy the union and take the workers’ places. In June 1998, all the Municipal Corporation employees in Punjab observed a pen down strike to protest against the non-acceptance of their demands by the state government.

Case-

Sadul Textile Mills Limited Vs. Their Workmen (1958) II L.L.J. 638 Raj.)

The Supreme Court ruled that a sit-down strike is not justified by any means even if it does not involve violence since it is an infringement of the employers’ rights.

Slow Down Strike

Otherwise called as a slow-down strike, is one in which the workers do not stop working, but slow down the entire process by deliberately delaying the production, which results in the reduction of output.

This amounts to a serious case of misconduct, whereby the workmen pretend to be engaged in the work and entitled to full wages.

Case-

The Supreme Court ruled that a go-slow strike is a major form of misconduct when it comes to labour in the case of “Bharat Sugar Mills Ltd. vs. Jai Singh (1961) II L.L.J. 644 SC”

Hunger Strike

Strike in which the employees go on fasting, near the workplace or at the residence of the employer, to force him/her redress their grievances is called hunger strike.

All-out Strike

It is not a strike; it is just to show the employer that what it would be like if the worker went on strike. In this, all workmen take the sick leave on the same day. They have not broken any rules because they just use the leave that was allotted to them.

Lock-outs

A strike that embraces all workers involved in a dispute and that will continue for ‘as long as it takes’ to secure a settlement. All-out strikes can be contrasted with selective strikes that involve only a proportion of the workforce and protest strikes that may last for only a day or two.

A lockout is a work stoppage or denial of employment initiated by the management of a company during a labour dispute.^[[1]] In contrast to a strike, in which employees refuse to work, a lockout is initiated by employers or industry owners.

Lockouts are usually implemented by simply refusing to admit employees onto company premises, and may include changing locks or hiring security guards for the premises. Other implementations include a fine for showing up, or a simple refusal of clocking in on the time clock. For these reasons, lockouts are referred to as the antithesis of strikes.

Lockouts are common in major league sports, many of which operate as legalized cartels. In the United States and Canada, the National Football League, Major League Baseball, the National Basketball Association, and the National Hockey League have all experienced lockouts.

Definition of Lock-out

Section 2(1) of the Industrial Dispute Act 1947 defines Lock- Out. Lock-out means temporary closing of the industry, or suspension of work, or the refusal of the work by the employer of the industry to continue employment to any number of workmen employed within the industry.

A lockout has to have the following in order to be counted as a lockout:

There has to be a temporal shut down of the area of employment. It could also be a temporary suspension of workers or holding back of work from the workers.
The employer has to have a demand that leads him to initiate the lockout.

The lockout touches any number of workers employed within the industry.

On the other hand, there are some actions that do not count as lockouts. For instance:

When an employer stops late-comers from working on that day.
Preventing employees whose services have been ceased from going to the place of work.

Essentials of Lock-out

To constitute Lockout, the Following conditions are to be satisfied.

(a) (i) Temporary closing of a place of employment by the employer or

(ii) The suspension of work by the employer, or

(iii) Refusal by an employer to continue to employ any number of persons employed by him.

(b) All above mentioned acts of the employer should be motivated by coercion;

(c) An Industry as defined in the Act (Section 2(j) of The Industrial Dispute Act 1947 defines Industry – “Industry” means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen); and

(d) A Dispute in such industry

Causes of Lock-out

Disputes or clashes in between workers and the management.
Unrest, disputes or clashes in between workers and workers.
Illegal strikes, regular strikes or continuous strikes by workers may lead to lockout of factory or industry.
External environmental disturbance due to unstable governments, may lead to lockouts of factories or industries.
Continuous or accumulated financial losses of factory or industry, may lead to opt lockout by the management.
Maybe lockout, if any company involves in any fraudulent or illegal activities.
Failure in maintaining proper industrial relations, industrial peace and harmony.

Lockout of the factory is regarded as major issue which affects both management of the factory and their employees. Management should always monitor employees behaviour and relationship between employees and relationship in between management and employees To avoid disputes which leads to lockouts.

Prohibition of Strike and Lockout

The stopping or cessation of work whether by the workmen or by the employer of the industry is harmful to the production and economy of the society. For this, the industrial dispute act is providing some prohibition of strikes and lockout.

Prohibition Of Strikes

The strike is not allowed by the persons employed in public utility services:

Without giving the 6 weeks prior notice to the employer before striking,
Within 14 days of giving such notice,
Before the expiry date of the strike which was given in the notice,
During the pendency of any proceedings under conciliation,
Before the seven days of the decision of the conciliation officer.

Prohibition of Lock-Out

The lock-out shall not allow the employer to carry on any public utility service:

Without giving the 6 weeks prior notice to the employees before lock-out,
Within 14 days of giving such notice,
Before the expiry date of a lock-out which was given in the notice,
During the pendency of any proceedings under conciliation,
Before the seven days of the decision of the conciliation officer.

Illegal Strikes and Lock-Out

Section 24 of the act defines the illegal strikes and lockouts that a strike and lock-out is illegal if it is:

Declared without the prior notice of 6 weeks,
Declared during the pendency of conciliation proceeding,
If it is continuingly contravention the boundaries of strikes and lockouts

Conditions where the Strike and Lock-Out is not deemed to be Illegal:

The strike or lock-out which is already commenced before the reference of the dispute.
A lock-out declared by the employer in the consequences of an illegal strike.
Strike declared by employees in the consequences of an illegal lock-out

Penalties for Illegal Strike and Lock-Out

There are various penalties that have been given in the act for illegal strikes and illegal lock-outs,

Penalty for commencing:

Imprisonment for one month,
Fine up to fifty rupees
Both

Penalty for instigation

Imprisonment for 6 months,
Fine up to one thousand rupees,
Both.

Penalty for giving financial aid

Imprisonment for 6 months,
Fine up to one thousand rupees,
Both

Cases-

In Ramnagar Cane & Sugar Co. v. Jatin Chakravarty AIR 1960 SC 1012, it was said that in the process of an ongoing conciliation between the public utility and its union, another union went on a strike of the same issue, deemed, illegal.

In India General Navigation & Railway Co. V. Workmen, AIR 1960 Supreme Court, It was ruled by the Supreme Court the lockout was not illegal since it was as a result of an illegal strike which had already begun.

Justified and unjustified strikes

A strike is said to be justified when the strike is legal and the reasons leading to the strike are open and realistic. Reasons can vary from better wages to better working conditions and so forth.

Where as an unjustified strike is a strike that has been commenced by the employees with the aim of intimidating the employer. It should be noted that some circumstances may render a render a legal strike unjustified.

Conclusion

India in the present context of economic development programmes cannot afford the unqualified right to the workers to strike or to the employer to lock-out. Compulsory arbitration as an alternative of collective bargaining has come to stay. The adoption of compulsory arbitration does not, however, necessarily mean denial of the right to strike or stifling of trade union movement. If the benefits of legislation, settlements and awards are to reach the individual worker, not only the trade union movement has to be encouraged and its outlook broadened but the laws have also be suitably tailored. The existing legislation and Judicial pronouncements lack breadth of vision. Indeed, the statutory definitions of strike and lock-out have been rendered worse by a system of interpretation which is devoid of policy-oriented approach and which lays undue stress on semantics. The discussion of the concepts and definition of strike has sought to establish

That legalistic consideration has frequently weighed with the court in interpreting and expounding the said statutory definition: We believe that emphasis on literal interpretation resulted in ignoring the ordinarily understood connotation of the term strike and in encouraging undesirable activity. We now pass on to acts which constitute strike. Unlike the Industrial Relations Bill, 1978 the three phrases used in the definition of “strike” in IDA are not qualified by the expression total or partial. Further, they do not specifically take into account go-slow. The Courts have accordingly excluded go-slow from the purview of strike. However, the exclusion of go-slow from the ambit of “strike” throws them open to the third-party suits for damages.

References