Strikes and Lockouts in Labor Law

Introduction

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 hid to their demands while lockouts happen when employers close down 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. However, strikes and lockouts cannot just take place whenever employers or employees feel like.

Strikes

Strike is an important part of the bargaining process because it tests the economic bargaining power of each side and forces both the parties to understand, realise, and evaluate the need it has for each other’s contribution. As the strike progresses, both side face losses- the savings of the worker continue to reduce, while the employer also faces losses as production stops. This economic pressure results in offers, counter-offers, and ultimately agreements and compromises. Even if a strike does not happen, it still plays a part in the bargaining process, because the very prospect of hardship which the strike will result in, will often force a party to compromise. Collective bargaining is a process of reaching agreement, and strikes are an integral and frequently necessary part of that process.

Kinds of Strikes:

There are following kinds of Strikes :

General Strike :

A General Strike is said to be a legal strike since it follows all the protocols as stated in the Act of Industrial Disputes. Employees begin by giving a strike notice to the management of the industry they work for. If the management fails to settle the dispute within the given time in the strike notice, the strike will be launched after the expiry of the notice. All trade unions linked to the demand at hand participate in the General Strike.
General strike usually of a longer period , and are resorted to when the employer does not accept demands of the employees by other means such as token strike . Token strike which is of short duration , such as few hours and whose main objective is to draw the attention of the employer by demonstrating the solidarity and cooperation of the employees.

KAMESHWAR PRASAD AND OTHERS 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 favor of the employees and petitioners saying that strike is the workers’ right though not fundamental.

Sit-down Strike:

This kind of strike involves employees reporting for duty in their workplaces normally, take their positions in their various areas of work but here comes the game changer; they simply sit and do nothing.
They might also choose to just hang around the industry’s premises. The objective of this strike is to cripple production. The industry ends up incurring huge losses due to no work being done at all.

Sadul Textile Mills Limited Vs. Their Workmen (1958) I| 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.

Pen/Tool down Strike

This type of strike shares some similarities with the sit down strike. For the pen down, it mostly takes place among people with white-collar jobs or rather people who work in offices. Tool down is for workers in production industries like factories to be specific.
This type of strike qualifies to be a strike since the members drop down their items of work in unison and refuse to work.

Go-slow Strike

The Go-slow Strike is aimed at showing the employers how offended the employees are.

The employees report for duty as usual and could even get to work but with only one distinction; they don’t actually do anything productive. The delay in all that they do and the outcome turns into little or no production at all.

The unique thing about this strike is that at the end of the day, the employees demand for their wages. This aspect makes the Go-slow Strike the most harmful strike compared to the total dissertation of work like in the General Strike. No production has been made but the workers have to be paid because they are demanding for it.

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

Case Laws

In TISCO Ltd v. Workmen it was held that if the employer substitutes the weekly rest day of Sunday by another rest day without giving a notice of change then it is an illegal change. Since refusal to give work in pursuance of illegal change amounts to a lock-out, therefore, the refusal to work on the substituted day did not amount to a strike.

T.K. Rangarajan v Government of Tamil Nadu it was held that the right to strike is not a fundamental right. Further, it is not even a legal or statutory right. A similar proposition had been recognised in B.R. Singh v Union of India as well.

Lockout:

Lockout is the antithesis of strike. Strike is a weapon in the hands of the labour to force the management to accept their demands. Similarly, lockout is a weapon in the hands of the management to coerce the labour to come down in their demands relating to the conditions of employment. As in the case of a strike so also in the case of a lockout, there is no severance of the relationship of employer and employee.

Section 2(l) of the ID Act defines lock-out as follows:

“Lock-out means the temporary closing of a place of employment, or the suspension of work, or the refusal by an employer to continue to employ any number of persons employed by him.”

Ingredients of lockouts :

This definition has the following three ingredients of a lockout:

1. Temporary closing of a place of employment; or
2. suspension of work, or
3. refusal to continue to employee any number of persons employed by the employer.

In Shri Ramchandra Spinning Mills v. State of Madras[11] it was observed that if the employer shuts down his place of business as a means of reprisal or as an instrument of coercion or as a mode of exerting pressure on employees or generally speaking when his act is what may be called an act of belligerency there will be a lock-out.

In Lord Krishna Sugar Mills Ltd., Saharanpur v. State of U.P  it was held that a lock-out may sometime be not at all connected with economic demands; it may be resorted to as a security measure.

Prohibition of Strikes and Lockouts

The cessation or stoppage of work whether by the employees or by the employer is detrimental to the production and economy and to the well-being of the society as a whole. It is for this reason the Industrial Disputes Act while not denying the right of workmen to strike has tried to regulate it along with the right of the employer to lock-out under Chapter V from Section 22 to Section 25.

Section 22 provides for specific prohibitions of strike and lock-out in public utility service. Whereas Section 23 provides for general prohibition that apply to strike and lock-out in all the industrial establishments whether they are public utility services or non-public utility services.

Public Utility Service.

According to Section 2(n), “public utility service” means-

1. any railway service or any transport service for the carriage of passengers or goods by air;
2. any service in, or in connection with the working of, any major port of dock;
3. any section of an industrial establishment, on the working of which the safety of the establishment or the workmen employed therein depends;
4. any postal, telegraph or telephone service;
5. any industry which supplies power, light or water to the public
6. any system of public conservancy or sanitation;
7. any industry specified in the first Schedule which the appropriate Government may, if satisfied that public emergency or public interest so requires, by notification in the Official Gazette, declare to be a public utility service for the purposes of the Act, for such period as may be specified in the notification :

Provided that the period so specified shall not, in the first instance, exceed six months but may, by a like notification, be extended from time to time, by any period not exceeding six months, at anyone time.

Prohibition of Strike and Lockouts Can be categorized in two ways:

Conditions of Specific Prohibition  (Section 22)

1. Strike would take place within that six week
2. But no strike within 14 days of giving such notice it will be only after the expiry of 14 days.
3. Intention of giving 14 days duration is so that employer / government has reasonable time to avert (stop) the strike or find out some compromise formula.

Conditions of General Prohibition : Section 23

1. During the pendency of conciliation proceedings before a Board and seven days after the conclusion of such proceedings;
2. during the pendency of proceedings before a Labour Court, Tribunal or National Tribunal and two months after the conclusion of such proceedings;
3.  during the pendency of arbitration proceedings before an arbitrator and two months after the conclusion of such proceedings, where a notification has been issued under Section 10-A (3-A); or
4. during any period in which a settlement or award is in operation in respect of any of the matters covered by the settlement or award.

In H.M.T. Ltd. v. H.M.T. Head Office Employees Association, the strike commenced during the pendency of conciliation proceedings has been held illegal by the Supreme Court.

Illegal strikes and lock-outs (Section 24)

A strike or lock-out is illegal if it is:

1. Declared without prior notice in public utility service;
2. Declared during the pendency of any proceedings before the authorities;
3. Continued in contravention of an order made under Section 10(3) under sub-section 4-A of Section 10-A.

1. Strike or lock-out is illegal if it is declared without prior notice in public utility service

According to sub-clause (i) of Section 24(1), a strike is illegal, if it commenced in a public utility service without prior notice as required under Section 22(1) of the Act.

Similarly, sub-clause (i) of Section 24(1) provides that a lock-out is illegal if it is declared in a public utility service without prior notice as required under Section 22(2) of the Act.

1. Strike or lock-out is illegal if it is declared during the pendency of any proceedings before the authorities under the Industrial Disputes Act, 1947

According to sub-clause (i) of Section 24(1), a strike or lock-out is illegal if it is declared in any industrial establishment in contravention of Section 23.

Strike and lock-out during the pendency of proceedings before the authorities in contravention of Section 23

Section 24(1)(i) states that a strike or lock-out is illegal if it is commenced or declared in any industrial establishment in contravention of Section 23:

(a) during the pendency of conciliation proceedings before a Board and seven days after the conclusion of such proceedings;

(b) during the pendency of proceedings before a Labour Court, Tribunal or National Tribunal and two months after the conclusion of such proceedings;

(c) during pendency of arbitration proceedings before an arbitrator and two months after the conclusion of such proceedings, where a notification has been issued under sub-section (3-A) of Section 10-A of the Act.

1. Continuation of strike and lock-out is illegal if it is in contravention of an order made under Section 10(3) under sub-section (4-A) of Section 10.

According to Section 24(1)(in), a strike or lock-out is illegal if it is continued in contravention of an order made under Section 10(3) or sub-section (4-A) of Section 10-A.

Section 10(3) provides as follows :

10(3). “Where an industrial dispute has been referred to a Board, Labour Court, Tribunal or National Tribunal under Section 10, the appropriate Government may, by order, prohibit the continuance of any strike or lock-out in connection with such dispute which may be in existence on the date of the reference.”

 Sub-section (4-A) of Section 10-A reads as under :

“Where an industrial dispute has been referred to arbitration and a notification has been issued under sub-section (3-A), the appropriate Government may, by order, prohibit the continuance of any strike or lock-out in connection with such dispute which may be in existence on the date of reference.”

Legal strikes and lock-outs (Section 24):

1. A strike or lock-out already commenced before the reference of disputes under Section 10.

Section 24(2) provides that where a strike or lock-out in pursuance of an industrial dispute has already been commenced and is in existence at the time of the reference of the dispute to a Board, an arbitrator, a Labour Court, Tribunal or National Tribunal. The continuance of such strike or lock out shall not be deemed to be illegal, if such illegal, if such strike or lock-out was not at its commencement in contravention of the provisions of the Act or the continuance thereof was not prohibited under sub-section (3) of Section 10 or sub-section (4-A) of Section 10-A

1. A strike declared in consequence of illegal lock-out and a lock-out declared in consequence of an illegal strike [Section 24(3)]

According to Section 24(3), a lock-out declared in consequence of an illegal strike is not deemed to be illegal.

Similarly, Section 24(3) provides that a strike declared in consequence of illegal lock-out shall not be deemed to be illegal.

For example, in H.M.T. Ltd. v H.M.T. Head Office Employees Association,the workmen went on illegal strike. In consequence of this illegal strike the employer declared lock-out. The lock-out declared by the employer in this case was held to be legal even though the employer did not comply with the provisions of Section 22(2) and had not given notice to the workmen.

Penalty for illegal strikes and lock-outs (section 26)

26. (1) Any workman who commences, continues or otherwise acts in furtherance of, a strike which is illegal under this Act, shall be punishable with imprisonment for a term which may extend to one month, or with fine which may extend to fifty rupees, or with both.

26 (2) Any employer who commences, continues, or otherwise acts in furtherance of a lock-out which is illegal under this Act, shall be punishable with imprisonment for a term which may extend to one month, or with fine which may extend to one thousand rupees, or with both.

Penalty for instigation Section 27

Penalty for instigation, etc. Any person who instigates or incites others to take part in, or otherwise acts in furtherance of, a strike or lock- out which is illegal under this Act, shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

Giving Financial Aid for Illegal Strike and lock outs Section 28

Penalty for giving financial aid to illegal strikes and lock- outs. – Any person who knowingly expends or applies any money in direct furtherance or support of any illegal strike or lock- out shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

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