Principles of Labour Legislation and Industrial

Jurisprudence
• Industrialization is the modern trend in almost all developing
countries.
• The workers and employers are two pillars of our national
economy. It cannot be denied that labour has a vital role in
increasing productivity, and management has to create
conditions in which workers can make their maximum
contribution towards this objective.
• In this connection, the social and economic up-liftment of the
labour is very important for securing industrial peace.
 With the evolution and progress of industrial society, labour
legislation has become very dynamic and complex. Inclusion
of new labour enactments in the statute book, periodical
amendments in the existing labour laws, and voluminous
growth of case law have added new dimensions to industrial
jurisprudence.
 In order to understand different aspects of industrial
jurisprudence, it is necessary to have a general idea of what
jurisprudence is. The Oxford Dictionary defines
jurisprudence as the science or philosophy of human law. Its
Latin equivalent 'jurisprudentially' means either "knowledge
of law" or "skill in law". It deals with the structure, uses, and
functions of law and legal concepts. According to Holland,
jurisprudence is a formal science of positive law.
 Professor Allen views it as a scientific synthesis of the
essential principles of law. Markby defines jurisprudence as
"the elements of law". "Jurisprudence", according to
Salmond, "is the name given to a certain type of
investigation into law, an investigation of an abstract, general
and theoretical nature, which seeks to lay bare the essential
principles of law and legal systems."
 Industrial jurisprudence is a new branch of law. Professor Allen
observes that it is a science of industrial law. Salmond considers
it as "an instrument of society to do justice". Webb views it as
"a constitution in the industrial realm." Casselman's labour
dictionary defines it as "the code dealing with the employer and
employee relations established through various precedents."
According to L.J. Smit, "it is a code which consists of various
precedents established by decisions made in settling employees'
problems and grievances." Gagliardo considers it as "some
customs and rules by which relationships between the
employers and the employees, or the master and servant, are
governed.
 Sources of Industrial Jurisprudence
 Custom and Practice
 Statute
 The richest source of industrial jurisprudence is judicial
decisions. Industrial Courts, the erstwhile Labour Appellate
Tribunal, the High Courts and the Supreme Court have all
contributed in varying measure to the principles of industrial
jurisprudence
 Judicial Decision
 The richest source of industrial jurisprudence is judicial decisions.
Industrial Courts, the erstwhile Labour Appellate Tribunal, the High
Courts and the Supreme Court have all contributed in varying measure
to the principles of industrial jurisprudence.

 The role of the Supreme Court deserves special mention and comment;
first, because it is the apex court and, second, because the law laid
down by the Supreme Court is binding on all courts by virtue of the
Constitution. By a series of judgements, over a period of 40 years, the
Supreme Court in the Sub-Continent has produced a mass of legal
principles and rules, though not necessarily consistent. Industrial case
law, so developed, is the pillar of Industrial Jurisprudence.
 Labour legislation in Pakistan covers all aspects of labour,
more than labour legislation in any other country of the
world. Through a body of legal enactments and judicially
acknowledged principles, it covers industrial employment,
non-employment, wages, working conditions, industrial
relations, social security and welfare of industrial employees.
Indeed, labour legislation is a result of the evolution of the
concept of social justice, which aims at protecting those who
cannot protect themselves.
 Continue…..

 With the growth of industrial jurisprudence the concept of master

and servant has been abolished and in that place the employer and
employee concept came out, where the former may hire the latter
but he can no more fire them at his will. The interest of an
employee is now in many respects protected by legislations
 Democratic ideas have also been grown simultaneously with the
growth of industrialization in our country which have pleaded for
and also helped in mass awakening and consciousness for greater
power amongst the working class.
 Therefore labour legislation and industrial jurisprudence are
based on certain fundamental principles, like Social Justice,
Social Equity, International Uniformity and National Economy.
 SOCIAL JUSTICE
 The concept of social justice has become an integral part of
industrial law. It is founded on the basic idea of socio-
economic equality
 In an industrial set-up social justice implies two things;
 first an equitable distribution of profits and other benefits
accruing from industry between the owner of the industry
and workers; and
 secondly, providing or affording protection to the workers
against harmful effects to their health, safety and morality.
 Constitution Provision for Social Justice
 The Constitution of Nepal has affirmed social and economic
justice to all its citizens. The fundamental rights and the
directive principles of state policy enshrined in our
Constitution need a special mention in view of their supreme
importance in directing and influencing the labour
legislations in the country. These provisions provide
sufficient guarantee against exploitation.
 In this regard Article 33 of the Constitution specially provides
that every citizen shall have the right to employment. The
terms and conditions of employment, and unemployment
benefit shall be as provided for in the Federal law. And every
citizen shall have the right to choose employment.
 Constitution Provision continued…
 The constitution also has provision which say that “no child
below the age of 14 years shall be employed to work in any
factory or mine or engaged in any other hazardous
employment.”
 Likewise Article 34 recognized the right of Labor. It says that
 i) every labourer shall have the right to practice
appropriate labour.
 ii) Every labour shall have the right to appropriate
remuneration, facilities and contributory social
security.
 iii) every labourer shall have the right to form and join
trade unions and to engage in collective
bargaining, in accordance with law.
 Constitution Provision continued…
 Article 42 of the Constitution provide for social justice to
every citizen and it further says that each citizens with
disabilities shall have the right to live with dignity and
honor, with the identity of their diversity, and have equal
access to public services and facilities.
 Article 43 provides for social security to every citizen, Its
says that the indigent citizens, incapacitated and helpless
citizens, helpless single women, citizens with disabilities,
children, citizens who cannot take care themselves and
citizens belonging to the tribes on the verge of extinction
shall have the right to social security, in accordance with law.
 Constitutional Policies
Article 51 (i) contain the policies of the states. It ordains that it shall persue the policy relating to
labour and employment: Polices relating to labor and employment are as follows:

(1) to make competent and professional the labour force that has remained as the main socio-
economic strength of the country and enhance employment within the country, while ensuring
a situation enabling all to work,

(2)  to guarantee social security, while ensuring the basic rights of all labours, in consonance with
the concept of decent labour,

(3)  to abolish all forms of labour exploitation including child

labour,

(4)   to encourage participation of labours in management, while

maintain cordial relations between the labours and
entrepreneurs,

(5)   to regulate and manage the sector in order to make foreign

employment free from exploitation, safe and systematic and to
guarantee employment and rights of the labours,
(6) to encourage mobilize the capital, skills, technology and experience gained from foreign
employment in productive
(7) sectors in the country.
 Constitutional Obligation of State
Article 52 again makes it the obligation of State to
make Nepal a prosperous and affluent country by
protecting and promoting fundamental rights and
human rights, pursuing directive principles of the
State and gradually implementing policies of the
State, while keeping intact the freedom, sovereignty,
territorial integrity and independence of Nepal.
 Social Security
 The concept of social security has become an integral part of social
justice. It is based on ideas of human dignity and social justice. The
underlying idea behind social security measures is that a citizen who
has contributed or likely to contribute to his means a guarantee
provided by the State through appropriate agencies, against certain
risks to which the members of the society may be exposed.
 Its measures are significant from two view points, i.e. they constitute
an important step towards the goal of a welfare state; and secondly,
they enable workers to become more efficient and thus reduce
wastage arising from industrial disputes.
 Lack of social security impedes production and prevents formation of
stable and efficient labour force. Therefore, social security measures
are not a burden but a wise investment which yields good dividends.
Adoption of Social Security measures in Nepal
 Adoption of Social Security measures in Nepal
 In 1952, International Labour Organisation has adopted the
Social Security (Minimum Standards) Convention, which
embodies universally accepted basic principles and common
standards of social security. The application of these
principles has guarded developmet of this field throught out
this world
 The Workmen’s Compensation
 The Workmen’s Compensation law is enacted to benefit the
labourers. Nepal does nto separate worker's compensation
but Labot Act 2074 has included this provision in it. This
provision in the Act provides compensation for death,
permanent total disablement, permanent partial disablement
and temporary disablement caused either by accident or by
occupational diseases, in the course of and arising out of
employment. It laid down compensation according to the
degree of injury sustained while on duty. The employers are
responsible for paying such compensation in accordance
with the provisions of the Act and rules made thereunder.
 The Trade Union Act 2048
 A trade union, in common parlance, means an association of workers in a
particular craft or industry for the purpose of maintaining the conditions of their
lives. In legal sense, it means a combination whether permanent or temporary,
formed primarily for the purpose of regulating the relations between workmen
and employers; or between workmen and workmen; or between employers and
employers; or imposing restrictive conditions on the conduct of any trade or
business.

 The main function of trade unions is to enable the workers to act together. An
individual, by himself being in a weak bargaining position to negotiate with
employers, the strike being the weapons of last resort to be used by the Trade
Union only after negotiations have broken down.

 The Act contains detailed provisions for formation, procedure, registration,

including conditions of registration, advantages of registration and the immunities
available to the union leaders both from civil and criminal laws while engaging
themselves in the union activities of a registered Trade Union.

 
 The Minimum Wages
 The Minimum Wages is necessary for the welfare of the
labourers. For this prupsoes many country has enacted
separate law dealing with minimum wages. But Nepal does
not have separate legistlation dealing with minimum wages.
But Labor Act has separate provision in it about fixing the
minimum wages and formation of committee for setting
minimum wages. This provision aims at securin the welfare
of the workers in a competitive market by providing for a
minimum limit of wages in certain employment. The main
object of this provision is the statutory fixation of minimum
wages with a view to obviate the chance of exploitation of
labour.
 Minimum Wages continue
 The Labor Act provides for the fixation of a minimum rate
of wages for time work; a minimum rate of wages for piece
work; a guaranteed time rate; and an overtime rate, for
different occupations, localities or classes of work and for
adults, adolescents, children and apprentices.
 However, like other branches of labour legislations the
security of industrial peace and efficiency may be kept in
view when giving effect to the provisions of this Act. It may
also be observed that this Act is in consonance with
Constitution provision providing for living wage, conditions
of work ensuring a decent standard of life etc.
 Social Equity
 Another principle on which labour legislation is based is
social equity. Any legislation which is based on social justice
prescribes a definite standard for adoption in future, taking
into consideration the events and circumstances of the past
and the present.
 Once a standard is so fixed by legislation it remains in force
until it is changed or modified by another legislation passed
in conformity with the legislative procedure. The
Government is only empowered to make such changes and
the rules may be modified or amended by the government to
suit the changed situation. Such legislation is therefore said
to be based on the principles of social equity
 International Uniformity
 This is another principle on which labour laws are based.
The pivotal role played by the International Labour
Organization in this connection is praiseworthy. It has
produced a large number of International Conventions and
Recommendations covering unemployment, general
conditions of employment, wages, hours of work, weekly
rest periods, holidays, employment of children, young
persons, women, industrial health, safety, social security,
industrial relations and many other allied subjects.
 NATIONAL ECONOMY
 In enacting a labour legislation, the general economic
situation of the country has always to be taken into account.
Because in any country the state of national economy is a
key factor in influencing labour legislation.
 CONCLUSION
 Workers are the dominant partners in the industrial
undertakings and without their co- operation, effort,
discipline, integrity and character the industry cannot
survive. Therefore, there should always be a good
relationship between the employer and employee which is
very important. The profits of the industry must also be
shared between the employers, workers and the community.
At the same time, as mentioned above, the workers must be
safe, secured and they should be provided with sufficient
welfare measures, healthy working conditions so that not
only the employers will be benefited but the society and the
nation shall also get the positive result.