Unfair Labour Practices: The List of Things an Employer Cannot Do

An unfair labour practice under the Industrial Relations Code, 2020 is not a general complaint about being treated badly. It is a defined term. Section 2(zo) says an unfair labour practice means any of the practices specified in the Second Schedule, and Section 84 prohibits every one of them, by an employer, a worker or a trade union, whether registered or not. The Second Schedule lists sixteen practices on the employer side and eight on the worker side.

Part of the employment and labour law practice at S Jain & Attorneys, Bangalore.

The list is worth knowing for a reason that has little to do with prosecution. It is the vocabulary a Tribunal already recognises. An employee who says the dismissal was unfair is making a plea the Tribunal must be persuaded to accept. An employee who says the dismissal was by way of victimisation, or in the colourable exercise of the employer's rights, or in utter disregard of the principles of natural justice in the conduct of the domestic enquiry, is quoting the statute back at it.

Where the Second Schedule sits in the Code

The Schedule is read with Sections 2(zo), 84, 86(5) and 101(1). Section 84 is the prohibition and it is worded flatly. No employer or worker or trade union, whether registered under the Code or not, shall commit any unfair labour practice specified in the Second Schedule. There is no threshold of establishment size in that section and no requirement that a union exist.

What Section 84 does not do is give an employee a private right to sue on the label alone. The practices are made offences by Section 86(5), and by Section 87 no court may take cognizance of an offence under the Code save on a complaint made by or under the authority of the appropriate Government. The realistic use of the Schedule for an individual is therefore inside an industrial dispute, not outside it.

The sixteen employer practices, grouped by what they are really about

Part I falls into three groups. The first ten items are about union organisation and about how workers who organise are treated. Items 5, 7, 9, 10 and 11 reach beyond union activity and are the ones an ordinary employee is most likely to need.

Key takeaway. Item 5 is the provision to read twice. It converts seven familiar complaints into statutory language, including the two that decide most cases in practice: dismissal in utter disregard of the principles of natural justice in the conduct of the domestic enquiry or with undue haste, and disproportionate punishment for misconduct of a minor or technical character having regard to the worker's past record.

Item 10, and why it matters in Bengaluru

Item 10 forbids employing workers as badli workers, casuals or temporaries and continuing them as such for years, with the object of depriving them of the status and privileges of permanent workers. The words that carry the weight are for years and with the object of. A genuinely short engagement is not caught. A pattern of rolling six month contracts for the same person doing the same core work, renewed for four or five years, is exactly what the item describes.

The item does not, by itself, convert a temporary worker into a permanent one. What it does is give a name to the pattern, and the finding that a practice is an unfair labour practice is a finding a Tribunal can take into account when it decides what relief to grant on the substantive dispute. It also sits alongside the separate and distinct route for fixed term employment, which the Code recognises as legitimate when it is genuine.

Item 7, transfers, and the limits of the argument

Transfer is where employees most often reach for this Schedule and most often fail. A transfer is ordinarily within the employer's power if the contract provides for it, and an inconvenient transfer is not a mala fide one. Item 7 catches a transfer made mala fide under the guise of following management policy, which means the employee has to show the bad faith, usually from timing and sequence rather than from the transfer order itself.

What makes those cases work is the record. A transfer issued eleven days after a written complaint, to a location where no vacancy had been advertised, replacing nobody, is a different document from the same order issued in a routine annual cycle alongside forty others. Building that record is discussed further in our guide on wrongful termination and employee remedies.

Common mistake. Pleading the label without the particulars. Writing that the dismissal was an unfair labour practice, and stopping there, is worth nothing. The item number, the sub-clause, and the facts that answer it have to appear in the same paragraph, because the Schedule describes conduct and conduct has to be proved by dates and documents.

The eight worker side practices, which cut the other way

Part II binds workers and their unions, and it is short. Advising, actively supporting or instigating a strike that is illegal under the Code. Coercing workers over union membership, including picketing that physically prevents non striking workers from entering, and force or intimidation against non strikers or managerial staff. A recognised union refusing to bargain collectively in good faith. Coercive activity against certification of a bargaining representative. Staging or instigating a wilful go slow, squatting on the premises after hours, or gherao of managerial or other staff. Demonstrations at the residence of the employer or managerial staff. Inciting or indulging in wilful damage to the employer's property. Force, violence or threats of intimidation to stop a worker attending work.

The Code defines go slow for this purpose. It means an occasion when more than one worker in an establishment conjointly work more slowly and with less effort than usual, to try to persuade the employer to agree to higher pay or better service conditions or some other demand. Usual is measured against the standard specified for the worker, or where none is specified, against the average of the previous three months.

Two of these are worth flagging because employees walk into them without realising. A demonstration outside a manager's home is named in the Schedule. So is squatting on the premises after working hours. Both are commonly organised in the belief that they are less serious than a strike, and in law they are separately listed.

What the penalty is, and why it is not the remedy

Section 86(5) makes an unfair labour practice punishable with a fine of not less than ten thousand rupees, which may extend to two lakh rupees. A repeat offence after conviction carries a fine of not less than fifty thousand rupees, up to five lakh rupees, or imprisonment up to three months, or both. Under Section 85 the appropriate Government may appoint an officer not below the rank of Under Secretary to hold an enquiry and impose the penalty for the Section 86(5) offence, and under Section 89 an offence punishable with fine only can be compounded on the application of the accused for fifty per cent of the maximum fine.

Put those together and the enforcement picture is honest rather than encouraging. The complaint has to come from the appropriate Government, the penalty can be imposed administratively, and it can be compounded. No part of it puts money in the affected worker's hands.

How the Schedule is actually used in a case

The sequence below is the ordinary one for an employee who believes the treatment falls within Part I.

1. Identify the item and sub-clause that fits, precisely. Item 5(f) is disregard of natural justice in the domestic enquiry. Item 5(g) is disproportionate punishment for minor misconduct. They are different arguments and they need different evidence.
2. Assemble the chronology before drafting anything. The complaint you made, the date, the response, the date of the adverse action, and what changed between them.
3. Raise it in the Grievance Redressal Committee where the establishment employs twenty or more workers, within one year of the cause of action.
4. Carry it into conciliation, and then into the reference to the Industrial Tribunal, as part of the substantive dispute about the dismissal, transfer or status. The Schedule supports the relief. It is not a freestanding claim.
5. Where a dispute is already pending and the employer acts against you during it, a separate and stronger provision applies, and it should be invoked at once rather than folded into the main case.

A note from practice. The employees who succeed on these grounds are usually the ones who wrote things down at the time and did not send angry emails. A calm two line record made on the day, asking why a step was taken, is worth more at the hearing than a long account written six months later, because the Schedule is about the employer's object and the contemporaneous record is the only reliable evidence of it. If the underlying question is whether the Code reaches you at all, start with our guide on worker status under the Industrial Relations Code.

Frequently Asked Questions

This article is for general informational purposes only and does not constitute legal advice. Consult a qualified advocate for advice on your specific situation.

Related Guides

If you are weighing whether conduct at your workplace falls within the Second Schedule, our employment and labour law practice and our corporate and commercial practice act for both employees and employers in Bengaluru. These guides go further on the points above.

• Are You a Worker Under the Industrial Relations Code?
• Wrongful Termination in India: Employee Rights and Remedies
• Asked to Resign? When a Resignation Is Really a Termination
• The Four Labour Codes: What Actually Changed for Employees
• Sales and Marketing Staff Are Now Workers
• POSH Act Complaint Procedure in India