TU in India Revised BM

8/18/2019 TU in India Revised BM

http://slidepdf.com/reader/full/tu-in-india-revised-bm 1/46

Trade Unions –

Concept, Law, & Indian Context

Prof. K.R. Shyam Sundar

XLRI



Lecture Objectives Understand trade unionism in ILO perspective

Provide an understanding of Law in India

The problems or characteristics of TradeUnions in India

Discussion in terms of case studies (wherepossible and necessary by case laws)

Discuss the Recent Trends in Trade unions in

IndiaDiscussion of challenges in the context of LPG

Model



Basic Concepts – A Brief Recap• What are trade unions?

•Why Trade unions?

• Objectives & Functions of Trade Unions?

• Perspectives on Trade Unions

• Trade Unions, Collective Bargaining, Strikes

•

Role of Trade Unions• Should there be trade unions?

• Cant we just have some workers’ committees?

• Cant we deal with the workers on an individual basis?

• Should there be “voice” for the workers?

• Why should be equality between workers and employers?

• Is an employer a collective? (who pays the penalty for theemployer, recent Bill on IR?)



• CONSTITUTION OF INDIA, LABOUR &

TRADE UNIONS – A BRIEF DISCUSSION



Constitution of India & Labour

India is a sovereign, socialist, secular,democratic republic to secure to all its

citizens:

Justice (social, economic and political)

Liberty (of thought, expression, belief,

faith & worship)

Fraternity (dignity of individual & unity &

integrity of the Nation)



Normative aspects

• Social justice: the courts to uphold legislation

(a) to remove economic inequalities;

(b) to provide a decent standard of living to the working

people;

(c) to protect the interests of the weaker sections of thesociety

• Socialistic concept:

• Democratic socialism aims to end poverty and inequality

of opportunity.



Rights

Rights

FundamentalRights

DirectivePrinciples ofState Policy



Equality before Law (14)

Protection of certain rightsregarding freedom of speech,assembly, movement,profession, residence, OFASSOCIATION (19)

Protection of life and personalliberty (21)

Right to education (21-A)

Prohibition of traffic in humanbeings & forced labour (23)

Prohibition of employment ofchildren in factories,construction industry,hazardous employment

A social order for promotion of

welfare of people (38)

Principles of policy on child

labour, equal pay for equal

work (39)

Right to work (including old

age, unemployment), toeducation (41)

Just and humane conditions of

work & maternity relief (42)

Living wage for workers (43) Participation of workers in

management of industries (43-

A)

Fundamental Rights – Part - III DPSP – PART - IV



19 (1) F.R. in detail – NOT AN ABSOLUTE RIGHT

All citizens SHALL have the right –

(a) to freedom of speech and expression (b) to assemble peaceably and without arms

(c) to form associations or unions, etc.

(4) Nothing in the sub-clause (c) of 19 (1) SHALLaffect the operation of any existing law in so faras it imposes, or prevent the State from makingany law imposing, in the

interests of [sovereignty and integrity of India]or

public order or morality,

reasonable restrictions on the exercise of theright conferred by the said sub-clause



Concomitant right argument

(c) of cl. (1) of Art. 19 guarantees the right to formassociations,

The right to "form an union" in the sense of forming abody carries with it as a concomitant right a guaranteethat such unions shall achieve the object for which

they were formed. If this concomitant right were notconceded, the right guaranteed to form an unionwould be an idle right, an empty shadow lacking allsubstance

Collective bargaining in order to be effective must be

enforceable labour withdrawing its co-operation fromthe employer and there is consequently a fundamentalright to strike a right which is thus a natural deductionfrom the right to form unions guaranteed by sub-cl. (c)of cl.(1) of Art. 19.



S.C. Perspective

• Even a very liberal interpretation of sub-cl. (c)

of cl. (1) of Art. 19 cannot lead to the

conclusion that the trade unions have a

guaranteed right to an effective collective

bargaining or to strike, either as part ofcollective bargaining or otherwise.

• The right to strike or the right to declare a

look-out may be controlled or restricted byappropriate industrial legislation (All India

Bank Employees v. National Industrial

Tribunal & ... on 28 August, 1961)



The Right to Demonstration

• By a notification dated August 16, 1957, the Government ofBihar introduced r. 4-A into the Bihar Government Servants'

Conduct Rules, !956, which provided "No Government servantshall participate in any demonstration or resort to any form ofstrike in connection with any matter pertaining to hisconditions of service.

• The right to demonstration under the Constitution wasasserted

• A demonstration is “a visible manifestation of feelings orsentiments of an individual or a group”, which could bepeaceful or otherwise

• The Rule prohibits both; but some may fall within the ambit ofArt. 19 (1) (a) or (b) – say a peaceful assembly, wearing ofbadges, etc which do not incite or breach tranquility or affectpublic order

• The SC struck down the rule in so far as it relates todemonstration (Kameshwar Prasad And Others v. The State OfBihar And Another on 22 February, 1962)



Fundamental right to demo Art. 19

(1) (b) It CANNOT be held in the property of the employer or

another demonstration at the or within the workplace is not

allowed – property rights of the employers/workplacedisorder, etc.

Trade unions can hold demonstrations including sit-indemo within a GIVEN RADIUS OF ------ METRES FROMTHE GATE OF THE ESTABLISHMENT

Without damage to property or prevention ofworkers’ entry to establishment or movement of

goods, etc.Even in the case of MRF the Madras HC allowed gate

meeting at certain hours subject to conditions ofpeace and non-obstruction



Right to Strike• “…TUs with sufficient membership strength are able

to bargain more effectively with the management.This bar power would be considerably reduced if it isnot permitted to demonstrate. Strike in a givensituation is only a form of demonstration. ….the rightto demonstrate and therefore the right to strike is an

important weapon in the armory of the workers… • Though not raised to the HIGH PEDASTAL of a

fundamental right, it is recognized as a mode ofredress for resolving the grievances of workers. Butthe right strike is NOT ABSOLUTE under our industrial

jurisprudence and restrictions have been placed onit.” (B. R. Singh and other….v. Union of India…SC,September 1989)



Distribution of Jurisdiction between the Centre & the State

Entry No. 55 – Regulation of

labour & safety in mines & oil

fields

No. 61 – Industrial Disputes

concerning Union employees

No. 65 - Union agencies &

institutions for – (a) professional,

vocational or technical training;

(b) promotion of special studies

or research(c) scientific or technical

assistance in the investigation or

detection of crime

22 – Trade unions, industrial and

labour disputes

NO. 23 – Social security and social

insurance; employment &

unemployment

No. 24 – Welfare of labour incl.

conditions of work, PF,

employers’ liability, workmen’s

compensation, invalidity & old

age pensions & MB

Nos. 36 & 37 – Factories & boilers

Union List Concurrent List



ILO – Some Basics

It was created in 1919 by Part XIII of the Versailles Peace

Treaty ending World War I Tripartite body of UN

• Originally 45 to presently 185 member countries

• Social Justice leads to global peace

• Whereas also the failure of any nation to adopt humane

conditions of labour is an obstacle in the way of other nations

which desire to improve the conditions in their own

countries;

2/11/2016 xlri.ac.in - lecture 16



Philadelphia Declaration & ILO Principles*

Labour is not a commodity (no commodification)

Freedom of Expression & Association are essential to

progress

Poverty constitutes a danger to prosperity

everywhereThe war against want requires to be carried on with

unrelenting vigor within each nation, and by

continuous and concerted international effort in

which the representatives of workers and

employees enjoying equal status with those of govts.

in free discussion and democratic decision with a

view to the promotion of the common welfare2/11/2016 xlri.ac.in - lecture 17



Structure of International Rules & Norms in Labour Field

International Rules & Norms

ILO Conventions ILO Recommendations

2/11/2016 xlri.ac.in - lecture 18



C. 87 – FoA & the Right to Organise Convention, 1948

Provides for the right of workers and employers

WITHOUT any distinction to establish and joinorganisations of their OWN CHOOSING and WITHOUTprior authorization

Their organisations have the right to form or joinfederations & confederations including at the

international level No arbitrary dissolution or suspension by an admin

agency

They have the right to draw up their own constitutions

and rules Elect their reps and org their activities without any

interference – subject to lawful exercise

The organisations should respect the laws of the land tosecure these rights



TU, collective bargaining, strikes & lockouts

• Free Collective Bargaining FRAMEWORK

•WHAT ARE TRADE UNIONS?

• A TU is a continuous association of wage-earnersfor the purpose of maintaining or improving theconditions of their working lives

• TU Act – any combination, whether temp orpermanent, formed primarily for the purpose ofregulating relations between workmen &employers or between workmen & workmen,

between employers & employers or for imposingany restrictive conditions on the conduct of anytrade or business….



TU Act, 1926

In practice, only a small group of workers,

employed in the organised industrial sector,enjoys protection of its rights. Over 90% of

workers are employed in informal

employment relationships or in agriculture,which are characterised by almost no union

representation due in large part to the non-

enforcement of the law.



Voluntary versus compulsory union registration

Registrar to regulate unions under the Act

• S. 4(1) Any seven or more members of a Trade Union

may, apply for registration of the Trade Union underthis Act:

• Provided that no Trade Union of workmen shall beregistered unless at least ten per cent or 100 of theworkmen, whichever is less, engaged or employed inthe establishment or industry with which it isconnected are the members of such Trade Union onthe date of making of application for registration

• S. 9-A – REGISTERED TU at all times SHALL continue to

have “not less than 10% or 100 (whichever is less)subject to a min of 7) as its members

• Criticism: Such a minimum requirement of 100 workersis very high by international standards.



TU registration for both WORKERS ANDEMPLOYERS

A TU shall not be registered UNLESS the

Executive Committee is constituted according toAct & the RULES SHOULD be as per the Act

Rules and regulations of a trade union – dictatedby the Act (objects, use of general funds, list of

Union Members, subscription, ExecutiveCommittee formation, TU funds, annual audit,etc.)

Provisions deregistration (fraud/mistake, no TU

existence, wilful contravention even after notice,ceases to have minimum union membership)

Appeal against deregistration



% of outside leaders – Not < ½ of the officebearers in the unorganised sector

In other sectors – not more than 1/3rd or 5whichever is less

An employee who has retired or has been

retrenched shall not be considered asOUTSIDER for the purpose of holding office inthe TU

A member of Council of Ministers or a person

holding an office of profit in the Union orState shall not be a part of the ExecutiveCommittee



DEBATES

concept of an outsider?

Political leaders?

Complete ban on non-employees? – Art 19 ofthe Constitution?

Curtailment of % of outsiders?How many unions can the outsider hold

positions? – Some say there should be no

ceiling; some call for a ceilingTU activity during Office Hours – as a right?

(NO)



Privileges of REGISTERED TU (RTU) No office-bearer or member of a REGD TU shall be liable for

punishment under sub-sec (2) of S. 120 B of the IPC in

respect of any agreement made between the members forthe PURPOSE OF FURTHERING ANY SUCH OBJECT of the TUas is specified in S.15

Criminal conspiracy means – an agreement to commit anoffence, an overt act done in pursuance of an agreement

between 2 or more persons to do an illegal act by illegalmeans

No suit or legal proceeding in any civil court against RTU foracts in furtherance of a trade dispute – on grounds of breakof contract, interferes with business, or employer of other

persons Acts of coercion by TU affect employer’s property rights and

breach of contract

Immunity Available to office-bearers and members of RTU



TRADE UNION Recognition At the NATIONAL level – NO LAW

Code of Discipline: – voluntary basis

– 15% of membership in an establishmentminimum for recognition (for a firm) and 25% atthe industry level

Trade union should have at least one year ofregistered life;

membership subscription not < 3 monthsAt several states like Maharashtra, Gujarat, West

Bengal, etc. – RECOGNITION LAWS EXIST



Rights of Recognised Union to collect membership fee during pay-day

Put up a notice boardHold discussion with employees in connection

with prevention of Industrial Dispute

Meet & discuss grievances with employers

Inspect an undertaking any place whereemployee is working

Appoint nominees in the Work Committees

Appear before any proceedings

Make all employees bound by an agreement towhich it is a party



Rights of un-recognised TU

• To meet & discuss with employer the

grievances relating to its members relating to

non-employment

• Appear on behalf its members in the

undertaking in any domestic or departmental

inquiry held by the employer



THREE METHODS OF TU RECOGNITION

• VERIFICATION OF UNION MEMBERSHIP

METHOD

• CHECK OFF METHOD

• SECRET BALLOT METHOD



Trade Union Recognition – Problem of

Absence of Central Law

• Case Study

• MRF United Workers’ Union Case:

Ramapriya Gopalakrishnan



TU leaders doing full time work – CASE LAWS

The case: In TNEB, two workers were allowed to do FTunion work initially. After 4 years this privilege waswithdrawn.The TU filed a case in the LC, which ruled that it wasmerely a concession extended by the management andwas not a part of the service condition.

Case Taken to Madras High CourtThe issues: Whether the workman had the legal right todo TU work on Full Time basis without attending to officeduties?

Whether the withdrawal of permission earlier affect theservice conditions?

The Court held that a worker cannot claim as a right todo trade union activity during office hours



IMPACT OF GLOBALIZATION ON TRADE UNIONS?



HR/IR POLICIES

• UNION RECOGNITION

• ALTERNATIVES TO UNIONS

• UNION AVOIDANCE – RELOCATION

• UNION RESISTANCE

• ANTI-UNIONISM – AGGRESSION

•NO UNION – BOTH DEMAND / SUPPLY



Union Identity & Security Struggles

Refusal to recognize

Refusal to recognize outsider-led TU – Maruti

Refusal to recognize unacceptable political affiliation – Pricol

Political reasons – ruling party (political patronage) - Foxconn

Negotiations with Workers’ Committee and not with Union

(Comstar Automotive Technologies, Chennai (Aug. 2011),Hyundai Motors (now company union formed)

Refusal to negotiate with any union – Nestle

Wage Nego. with company union to lure workers and defeat

independent and free unionism – Doom Duma, GM De-recognition – Air India/Indian Airlines (countless!)

Harassment Strategies – Managerial/State - DELAYS IN UNIONREGISTRATION & OBJECTIONS – STATE-EMP. NEXUS???????



Two Struggles TU RecognitionRico

In Gurgaon since 1994

August 4 2009 – submittedregistration of TU under AITUC

Management resistance – tense shop floor

Suspension, lockout citing go-

slow AITUC leader stopped entry

into Gurgaon

Violence on both sides

Death of Ajit Yadav - worker

City-wide strike – spontaneous Govt mediation -

reinstatement of 3 suspendedworkers & formation of AITUC

Hyundai Hyundai in TN since 1997

1700 PW out of 6000 In June 2007 – HMI Employees’ Union

Management refused to holdnegotiation

Alleged harassment

Dismissal, suspension, pay cuts

several strikes since 2009

Management formed WORKERS’COMMITTEE to hold negotiation

settlement with WORKERS’COMMITTEE stopped because ofstrike and med

But refusal to recognize TU – nooutside union with political affiliation

It recognised a non-political tradeunion - the United Union of HyundaiEmployees in Nov 2011



• ARE TUs REQUIRED IN IT INDUSTRY?



• Issues faced by it Employees in the IT industry:

Long working hours

Work loadParameters for PBP – no transparency

Appraisal & promotion issues

Job insecurityHigh stress levels

No transparency & no equity

READ: “Trade unions in Indian IT Industry? AnEmployees’ Perspective”, IJIR, Vol.46, NO.2, Oct2010



Major TU/Associations

• Union for Information Technology and

Enabled Services (UNITES) Professionals

• West Bengal Information Technology Services

Association (WBITSA)–

CITU

• Centre for BPO Professionals (CBPOP)

(Hybad/Bangalore)

• New Trade Union Initiative (NTUI) in the BPO

sector



TU VIEW

• "Employers want powerneutralization and strongly

oppose unions.• Agreed, they offer favorable

working environment, butthat's not enough.

• Several issues, be it promotionor differential treatment by co-

workers on caste andcommunity basis can occur.Who will employees turn towhen in need?" questions,Karthik Shekhar, GeneralSecretary, UNITES,

• Employees prefer to live withthe prevailing conditions

• or move out in search of other jobs instead of fighting fortheir own cause.

HR VIEW

•

"We interact withemployees across

all levels. I don’t

see the need for aunion. Anyone can

contact the CEO

directly," said HRhead of a city-

based IT services

company.



TRADE UNIONS IN INDIA - BRIEF HISTORY



TU Structure• The term structure refers to the different types of union

based on their recruitment patterns and the work areasfrom which membership is drawn.

• Four typical structures of a trade union

• the craft union, which was either based on a single craft oron multiple crafts, or one that was spread across an entire

industry relating to similar crafts. It became known as anindustrial union in a horizontal arrangement;

• the industrial union, which was vertically structured in asingle industry and existed across a geographical area;

• General unions evolved as a result of dilution of craft trade

unions• the white collar union which existed mainly for public

sector workers, many of which started as associations.



• Independent union versus company union(pros and cons)

• Politically affiliated union versusindependent or enterprise union (pros andcons) – Why the latter?

•

Reasons for the rise of independent unions(read Prof. Sarkars’ article)

• Altruistic and selfish?

• Responsible unions?

• Loyal to whom – dual or multiplecommitment?



Features or problems of tus

• Uneven growth

• Small size

• Financial weakness

• Multiplicity

• Rivalry

• Leadership

• Political association

• Recognition



Actors in IRS – TUs & Employers’ Organizations

CTUOs Employers’ Organizations

AITUC AIOE (industrial Employers)

CITU EFI

INTUC AIMO

BMS Standing Committee on Public Entepeises

(Scope)

HMS, HMP Council of Indian Employers (AIOE, EFI,

SCOPE)

UTUC, UTUC (L-S) CII

TUCC, AIU(NITED)TUC

NTUI

SEWA, LPF, etc.



Nature of Union

Organization

Comments Level

CTUOs Mostly political, affiliated to central

political parties

National

Regional TUOs Political or non-political affiliated toregional political parties

Regional

Industry/Sector

organizations/federatio

ns

Mostly in public sector like banks,

insurance, railways, aviation, electricity,

affiliated to political parties, or

independent, e.g. All India Stock Exchange

Employees Federation).

National/regional

Caste ethnic or gender

based organizations

Organizations by scheduled caste and

tribes, tribals, and women employees

Enterprise/regional/industry

Craft organizations Railways, textiles, coal, aviation Industry/national/regional

White-collar

organizations

Clerical/managerial/professional Enterprise/sectoral/national

Enterprise Unions Mostly Non-affiliated Enterprise

Firm level federations

of enterprise unions

Non-affiliated National

Unity organizations Political or non-political National/regional/enterprise

Informal sector Trade unions (political/non-political), National/regional/industry

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TU in India Revised BM

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