Labour Laws Applicable To Hospitals And Clinics By Advocate Shrikant Malegaonkar

1. Labour Laws Applicable To Hospitals And ClinicsByAdvocate Shrikant Malegaonkar

2. Is Hospital An Industry ?

3. Definition Of Industry Today • The definition of ‘Industry’ as it stands today in Sec:2(j) of The Industrial Disputes Act ‘1947 reads, • ‘Sec :2(j) : ‘ Industry’ means any business, trade undertaking, manufacture or calling of employers and includes any calling, service, employment, handikraft or industrial occupation or a vocation of workmen.’

4. Amendment To The DefinitionOf Industry • The definition of industry was amended by the Industrial Disputes Amendment Act, 1982, Act No.46 of 1982, but same has not been brought into force by the notification dated 21st August 1984.

5. Effect Of Bangalore Waterworks • This Act nullifies to a large extent the effect of the judgment of the Supreme Court in Bangalore Water Works case. However, the Central Government has introduced another Bill in parliament known as the Hospitals and other Institutions(settlements of Disputes) Bill, 1982 dealing with all establishments excluded from the purview of the Industrial Disputes Act, 1947, by virtue to some industries not to all.

6. The Amended Definition of Industry Sec :2(j) ‘Industry means any systematic activity carried on by co-operation between an employer and his workmen (whether such workmen are employed by such employer directly or by through any agency, including a contractor) for the production,supply or distribution of goods or services with a view to satisfy human wants or wishes (not being wants or wishes which which are merely spiritual or religious in nature) whether or not:- I) any capital has been invested for the purpose of carrying on such activity; or

7. Continued • Such activity is carried on with a motive to make any gain or profit, • and includes- • Any activity of the Dock Labor Board established under section 5-A of the Dock Workers (Regulation of Employment) Act, 1948;

8. Continued • Any activity relating to the promotion of sales or business or • both carried on by an establishment • but does not include:- • any agricultural operation • hospitals or dispensaries; or • educational,scientific,research or training institutions; or • institutions owned or managed by organisations wholly or • substantially engaged in any charitable,social or philanthropic service; or

9. Continued • Khadi or village industries;or • Sovereign functions of the government dealing with defense research,atomic energy and space; or • Any domestic services ;or • Any activity, being a profession practiced by an individual or body of individuals, if the number of persons employed by the individual or body of individual in relation to such profession is less than ten; or

10. Continued • Any activity, being an activity carried on by a co-operative society or a club or any other like body of individuals, if the number of persons employed by the co-operative society, club or other like body of individuals in relation to such activity is less than ten.

11. What Is the Definition Today? • The definition is enacted in 1947 itself. • In 1978 came Bangalore waterworks • In 1982 we had the amended definition. • The amended definition has not been notified • Thus, the definition today in the law books is the 1947 definition.

12. Dispensary – Whether Industry? A Doctor with an assistant and a menial servant may ply a profession but may not be said to run an Industry.The image of Industry is of plurality of workmen, not of an isolated or single person or attendant.The latter category is more or less of personal avocations for livelihood. Held In : Brijmohan Bagaria Vs N C Chatterjee

13. Are Hospital Employees Workmen ?

14. Hospital Whether Industry? • Justice Hidayatullah, in • Safdurjung Hospitals Vs. Sethi (1970) • “Hospital is not embarked on an economic activity which can be said to be analogus to trade or business.It is a place where people get treated..hence not an Industry” • Justice Krishna Iyer , in • Bangalore Waterworks Vs. Rajappa (1978) • “Hospital facility , research products and training are surely services and hence Industry”

15. The Definition Of Workman Sec.2(s) of the Industrial Disputes Act’1947 defines a workman ‘Workman means 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, Whether the terms of employment be express or implied, and for the purpose of any proceeding under this Act in relation to an industrial dispute, and includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute,

16. Continued • but does not include any such person- • Who is subject to the Air Force Act, 1950 or the Army Act, 1950, or the Navy Act, 1957; or • Who is employed in the police service or as an officer or other employee of a prison, or • Who is employed mainly in a managerial or administration capacity, or • Who, being employed in a supervisory capacity draws wages

17. Continued • exceeding one thousand six hundred rupees per mensem or • exercises, either by the nature of the duties attached to the office • or by reason of the powers vested in him, functions mainly of a managerial nature. • A Retainer Doctor is not a workman but an employed Doctor is a workman • A Medical representative is not a workman.

18. What Is An Industrial Dispute? • Section (k) of the Industrial Disputes Act’`1947 defines Industrial Dispute. • ‘any dispute or difference between: • Employers and employers, or • Employers and workmen, or • Workmen and workmen , • Which is connected with the employment , non- employment, terms of employment or with the conditions of labor , of any person.

19. The Maharashtra Recognition of Trade Unions of Prevention of Unfair Labour Practices Act 1971. • The Act deals with Unfair Labor Practices on the part of trade unions and employers also. • Unfair Labour Practices are prohibited.

20. Unfair Labour Practices • General Unfair Labour Practices on the part of Employers. • (1) To discharge or dismiss employees; • (a) by way or victimization. • (b) not in good faith, but in the colourable exercise to the employer's rights; • (c) by falsely implicit an employee in a criminal case on false evidence or on concocted evidence; • (d) for patently false reasons; • (e) untrue or trumped allegations of absence without leave; • (f) in utter disregard of the principles of natural justice in the conduct of domestic enquiry or with undue haste; • (g) for misconduct ,of a minor or technical character without having any regard to the nature or the past record of service so as to amount to a shockingly disproportionate punishment.

21. Unfair Labour Practices • (2) To abolish the work of a regular nature, and to give work to contractors as measure of breaking a strike • (3) To transfer an employee malafide from one place to another, under the guise of following management policy. • (4) To insist upon individual employees, who were on legal strike, to sign a good conduct bond, as a precondition to allowing them to resume work. • (5) To show favouritism or partiality to one set of workers regardless of merits;. • (6) To emp1oy employees as 'badlis' casuals or temporaries and to continue them as'-such for years, with the object, of_ depriving them' to the status and privileges -of permanent employees.

22. Unfair Labour Practices • (7) To discharge or discriminate against any employee for filling charges or testifying against an employer in any enquiry;; or proceeding relating to any industrial dispute. • (8) To recruit employees during a strike which is not an illegal strike. • (9) Failure to implement award, settlement or agreement. • (10) To indulge in Act of force or violence.

23. The Industrial Employment (Standing Orders) Act 1946 • The Act speaks of service conditions. • The Act is applicable to an Industrial establishment which employees more than 50 employees. • The details of permanency and subsistence allowance and departmental enquiry are spelt out in the Act.

24. Domestic Enquiry • Preliminary Enquiry • Charge Sheet • Correct Procedure Of Enquiry • Enquiry Report • Proportionate Punishment

25. The Workmen’s Compensation Act’ 1923 • This is applicable to hospital employees but not the Employees State Insurance Act’1948 in view of the exemption to hospitals. • In granting Compensation the • Doctrine of Notional Extension and • Doctrine of Added Peril ..would apply

26. Payment of Gratuity Act 1972 • The Act applies to every shop and establishment in which 10 or more persons are employed. • Gratuity is payable after 5 years of continuous service at the rate of 15 days of average pay per completed year of service. • Gratuity can be forfeited if any loss is caused to the employer.

27. The Child Labour (Prohibition and Regulations) Act’ 1956 • The Act intended to prohibit child labor. • A child means a person who has not attained his 14th year of age. • Employing child labour is punishable with an imprisonment of 3 years and or fine of Rs.10,000/-

28. The Bombay Shops And Establishments Act’ 1948 • A dispensary or hospital is an Establishment under the above Act.

29. The Minimum Wages Act ‘ 1948 • Employees have to be paid Minimum Wages as per categories..Highly skilled, Skilled, Semi skilled, Unskilled and Part time. • Rates vary as per zones

30. The Maternity Relief Act’1961 • Women employees are entitled to the benefits of this Act. • A period of twelve weeks is the period of leave • Employer has to bear the burden as the ESI Act is not applicable to Hospitals.

31. Other Acts • The Bonded Labour System ( Abolition ) Act’ 1976 • Employees Provident Fund and Misc. Provisions Act’ 1952 • The Employers Liability Act’ 1938 • The Equal Remuneration Act’1976 • The Payment Of Bonus Act’1965 • The Payment Of Wages Act’ 1936

32. THANK YOUAdv. Shrikant Malegaonkar9422322225