By | Ramesh Ranjan | Editor & Founder www.humanengineers.com
There has been recent news of Cognizant Technologies India reportedly laying off 6,000-10,000 “ redundant and non-performing” employees and in some cases offering a Voluntary Exit package for senior executives of the company.
The government of Tamil Nadu in India issued a circular last year clarifying that employees of the IT Sector are covered under the ID Act, 1947 and have the right to form trade unions. This development has caused consternation in industry circles which believed that the IT Sector was outside the ambit of this Act.
The question of IT employees possessing the right to form trade unions arose after Tamil Nadu Labour and Employment Department Principal Secretary Kumar Jayant clarified the New Democratic Labour Front – IT Employees Wing (NDLF) that workforce is free to form unions.
In January 2015, a TCS employee in Chennai appealed to Madras High Court and got her termination stayed invoking Industrial Dispute Act 1947.
India has myriad employment and labor laws emanating out of its socialist policies. Chief among them is the ID Act, which, inter alia, makes provisions for the investigation and settlement of industrial disputes. When any employer discharges, dismisses, retrenches or otherwise terminates the services of a workman without complying with the conditions of retrenchment provided in the ID Act, the dispute or difference that can arise as a result between the workman and the employer is deemed to be an industrial dispute. (Section 2A of the ID Act)
IT companies have been tightlipped on this issue of employees right to form labour unions to redress their grievances invoking the provisions of Industrial Disputes Act 1947.
Many a employee in the Private Sector is subject to unfair labour practices and being terminated at will by unfair & unscrupulous employees. I have known cases where Managers have terminated women employees because they were pregnant and would not be available for work over the next 6-9 months under the garb of performance issues. Employees being called to office at 4 pm on a Friday and told that they are relieved from services. Employees reporting for work on a Monday and find that their ID Cards can no longer swipe the attendance machine and have been asked to talk to the HR Person to collect their relieving letters. In most cases no notices are provided and hardly even a months compensation or notice pay is given as Separation compensation, while Senior Executives negotiate fat Separation Compensation packages.
Employees are being terminated at will under the garb of Unsatisfactory Performance without any notice, without giving them an opportunity to be heard, without any sustenance/ separation package except the standard notice period, in most cases 1 months pay.
The axe invariably falls on the junior employees and rarely on the Top Executives. They continue to bask in eternity, much like the Politicians who continue to Lead their Party despite string of failures & losses. It is this duality of treatment and the double standards that cause heart burn amongst employees.
All this was possible because there were no Unions to fall back for the affected employees. They are hapless and suffer in private.
“Most IT employees do not come forward to form unions or question the Organisation because they are afraid that the whole industry will single them out and blacklist them for life”.
When Bank Officers, Government Officers, Public Sector Officers can form Unions to protect the welfare of their employees, why not in the Private Sector and across all levels in the organisation.
Forum for IT Employees (FITE)(http://fite.org.in/) has already started a Forum for the IT employees and is trying to don the role of a Union for the employees in the IT Sector. It has Chapters in Delhi, Chennai, Bangalore, Bhubaneswar, Hyderabad, Kochi, Kolkatta, Mumbai & Pune. It is taking up legal cases on behalf of IT employees and filing petitions in the Labour Courts and Civil Courts. It has taken up the current case of Cognizant Layoffs and filed a petition before the Labour Commissioner Chennai. Earlier it had taken up the case of TCS employee and Helios & Matheson.
It is this unfair treatment of employees in the Private Sector, that begs for applying the provisions of the Industrial Disputes Act and other provisions of the Labour Laws to all Sectors to ensure fairness, transparency and justice is meted out to all sections & levels of employees in the Organisation.
The question being raised is “ Can the employees of electronic data processing and computer software development units in India claim protection under the Industrial Disputes Act, 1947 (“ID Act”), in the event of a dispute with the management?”
The concept of WORKMAN is central to the concept of an Industrial dispute as an industrial dispute can be raised either by a “workman” or an “employer” Since the Industrial Disputes Act, 1947 (“ID Act”) is a piece of beneficial legislation, the courts have enlarged the scope and applicability of this Act by giving wide interpretation to the term “workman.”
Section 2(s) defines workman as any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work, for hire or reward, terms of employment be express or implied and includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of dispute. It excludes persons employed in army/Navy/Air Force/Police and those employed in mainly managerial or administrative, supervisory capacity and drawing wages of more than INR 6500.
The Courts have interpreted this definition and have identified various determining factors to know whether a person is “workman” or not. The factors which should be considered are
i. whether there is a Master-Servant relationship;
ii. when a person is performing various functions which overlap in their characteristics, the nature of main function for which the claimant is employed should be considered;
iii. work is either manual, skilled, unskilled, technical operational, clerical or supervisory in nature, the mere fact that it does not fall within the exception would not render a person to be workman; and that the exceptions are not applicable.
iv. Further, designation, source of employment, method of recruitment, terms and conditions of employment/contract of service, the quantum of wages/pay and the mode of payment should not be considered while determining whether a person can be termed as “workman.”
Over a period of time, courts have interpreted specific points of contention in the definition under the ID Act which has enlarged the scope of the legislation.
This Act was formulated in 1947 and is 70 years old. The circumstances under which this law for formulated then and the circumstances prevailing now is vastly different. The nature of industries, the nature of work, the social status of employees, the standard of living, the globalisation, the rise of Social Media and the maturity levels of the Government, the Employers, the Employees and the society at large has evolved over period of time.
The question is one of parity. When one section of employees can be covered under the Industrial Disputes Act of 1947, why not another set of employees. Why deny the rights to a section of the employees (sizable section) when others enjoy it. And even in an organisation the definition of WORKMAN is so vague and interpreted arbitrarily. One set of employees within an organisation is covered under the Act because they are defined as a WORKMAN and another set of employees are denied coverage under the garb of SUPERVISOR. Each one of them is an employee working for the benefit of the organisation and enjoying the same fruits of labour.
There is lot of ambiguity and confusion in the applicability & interpretation of the Law. No doubt the Lawyers are laughing their way to the banks. One State declares IT Employees also to be declared a WORKMAN. One Court declares the same. In a age of globalisation and when organisations operate in multiple locations, it becomes very difficult to govern.
Its about time that the Government, the Judiciary, the Employers Association and the Employees Union, sit together, debate this vexed topic and frame up a new policy on Industrial Disputes Act irrespective of Domain, Status & Location of Employer/Employee .
The reforms in the Labour Laws is an urgent need of the hour and cannot be postponed any longer or any further.