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Industrial Arbitration: Framework under Section 10A of the Industrial Disputes Act
Industrial Arbitration: Framework under Section 10 A of the Industrial Disputes Act
The alternative dispute resolution mechanism of arbitration is recognised in industrial disputes for the maintenance of industrial peace. The structure of arbitration though is the same for industrial disputes, it does not stipulate the application of the Arbitration and Conciliation Act. The entire regime of arbitration of industrial disputes is governed by the provisions of section 10 A as well as through the rules issued by the government from time to time. The ground norms of arbitration like confidentiality, neutrality, personal autonomy etc play a huge role in industrial arbitration as well as for commercial arbitrations under the Industrial Disputes Act.
Generally, in case of an industrial dispute, the government can play a welfare role and they can refer the dispute in its inception or when apprehended to a works committee, labour court or tribunals. This system is not similarly applicable in the case of section 10 A. The wordings of the section emphasize the ‘party autonomy’ concept of arbitration to a reasonable extent. The government cannot, under any circumstance restrict the wish of the parties to appear for industrial arbitration by referring such cases to arbitration. Furthermore, the statute asks for the appointment of an arbitrator who will arbitrate the dispute among the parties in furtherance of an agreement that is agreed and signed between the parties. After the formulation of such an arbitration agreement, there will be government intervention. If found necessary, the government can even terminate and prohibit any strikes and lockouts that have any connection with the dispute[1].
According to sub-section 1 of section 10 A, the reference of an arbitration agreement can be made when an industrial dispute exists or is apprehended in that organisation. In these situations when there is an agreement between the parties for referring the disputes to arbitration and if it is seen that the government did not refer the same dispute to any adjudication mechanism under section 10 to a Labour Court or Tribunal or National Tribunal, then through a written agreement a reference can be made to the arbitrator[2]. The arbitrator to whom the dispute is referred will be mentioned so in the arbitration agreement arrived at between the parties. This agreement should be in the appropriate format and should be signed by the parties in the prescribed manner[3]. Thus the following conclusions can be made from section 10 A before a reference is made to the arbitrators
- There must be an industrial dispute or an apprehended industrial dispute;
- the agreement must be in writing;
- the reference must be made before a dispute has been referred to under section 10 to a labour court, tribunal or national tribunal; (
- According to the arbitration agreement between the parties, the names of arbitrators must be fixed.
- The requirement of appointment of an umpire – Arbitrators must be even in numbers. The same principle is seen also under the Arbitration and Conciliation Act. Similarly in the ID Act section 10 A (2), there is a provision in case of an even number of arbitrators. In such an instance the act asks for the appointment of an umpire and if the arbitrators' opinions are evenly split, the umpire's decision will prevail[4].
- Accommodation of third-party interest- The Industrial Dispute Act being a welfare legislation, accommodates the interests of the parties who are affected by the dispute. In those cases where it is found that the persons who are referring are of the majority party, then a notification will be issued by the appropriate government through which the employees who are not per se parties to the dispute can become members when they are concerned in the dispute [5]. This section was added with the 1956 amendment for the preservation of labour welfare.
- The procedure for arbitration under section 10A – There shall be primarily an agreement based upon which a reference is made before the arbitrators. This agreement must be in the format that is prescribed and a copy of such an agreement must be given to the appropriate government concerned. The appropriate government should publish it in the official gazette within 1 month from the day on which such a copy was received[6]. The arbitration agreement will be published then in the official gazette and the ones whose interests are affected will be added as parties by allowing them to present their issue before the arbitrators.
The arbitrator who is appointed under section 10 A should investigate the affairs of the dispute. After such an investigation is made, they are supposed to pass the award and such an award must be passed to the appropriate government and signed by the arbitrator who conducted the arbitration[7].
- Exclusion of Application of Arbitration and Conciliation Act – By the express provisions under section 10 A (5), the application of the Arbitration and Conciliation Act for any matter whatsoever will be barred by law. This is because the reason that arbitration and Conciliation Act is for commercial arbitration whereas the Industrial Disputes Act is a welfare-oriented legislation aiming at collective bargaining attached mechanisms for adjudication via arbitration.
References
[1] Industrial Disputes Act 1947, Section 10 A (4A), Act No. 14 of 1947, Acts of Parliament, 1947 (India).
[2] Industrial Disputes Act 1947, Section 10 A (1), Act No. 14 of 1947, Acts of Parliament, 1947 (India).
[3] Industrial Disputes Act 1947. Section 10 A (2), Act No. 14 of 1947, Acts of Parliament, 1947 (India).
[4] Industrial Disputes Act 1947. Section 10 A (1A), Act No. 14 of 1947, Acts of Parliament, 1947 (India).
[5] Industrial Disputes Act 1947. Section 10 A (3A), Act No. 14 of 1947, Acts of Parliament, 1947 (India).
[6] Industrial Disputes Act 1947, Section 10 A (3), Act No. 14 of 1947, Acts of Parliament, 1947 (India).
[7] Industrial Disputes Act 1947, Section 10 A (4), Act No. 14 of 1947, Acts of Parliament, 1947 (India).
- The entire regime of arbitration of industrial disputes is governed in accordance with the provisions of section 10 A as well as through the rules issued by the government from time to time.
- The statute asks for the appointment of an arbitrator who will arbitrate the dispute among the parties in furtherance of an agreement that is agreed and signed between the parties.
- According to the section, the reference of an arbitration agreement can be made when an industrial dispute is existed or is apprehended in that organization
