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 Trade
Unions in India
Discussion in terms of case studies (where
possible and necessary by case laws)
Discuss the Recent Trends in Trade unions in
India
Discussion 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 the
employer, 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 the
society
Socialistic concept:
Democratic socialism aims to end poverty and inequality
of opportunity.

Rights

Rights

Fundamental
Rights

Directive
Principles of
State Policy

Fundamental Rights Part - III

DPSP PART - IV

Equality before Law (14)

Protection of certain rights
regarding freedom of speech,
assembly, movement,
profession, residence, OF
ASSOCIATION (19)
Protection of life and personal
liberty (21)
Right to education (21-A)
Prohibition of traffic in human
beings & forced labour (23)
Prohibition of employment of
children 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), to
education (41)
Just and humane conditions of
work & maternity relief (42)
Living wage for workers (43)
Participation of workers in
management of industries (43A)

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) SHALL
affect the operation of any existing law in so far
as it imposes, or prevent the State from making
any law imposing, in the
interests of [sovereignty and integrity of India]or
public order or morality,
reasonable restrictions on the exercise of the
right conferred by the said sub-clause

Concomitant right argument

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

associations,
The right to "form an union" in the sense of forming a
body carries with it as a concomitant right a guarantee
that such unions shall achieve the object for which
they were formed. If this concomitant right were not
conceded, the right guaranteed to form an union
would be an idle right, an empty shadow lacking all
substance
Collective bargaining in order to be effective must be
enforceable labour withdrawing its co-operation from
the employer and there is consequently a fundamental
right to strike a right which is thus a natural deduction
from 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 of
collective bargaining or otherwise.
The right to strike or the right to declare a
look-out may be controlled or restricted by
appropriate 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 of

Bihar introduced r. 4-A into the Bihar Government Servants'
Conduct Rules, !956, which provided "No Government servant
shall participate in any demonstration or resort to any form of
strike in connection with any matter pertaining to his
conditions of service.
The right to demonstration under the Constitution was
asserted
A demonstration is a visible manifestation of feelings or
sentiments of an individual or a group, which could be
peaceful or otherwise
The Rule prohibits both; but some may fall within the ambit of
Art. 19 (1) (a) or (b) say a peaceful assembly, wearing of
badges, etc which do not incite or breach tranquility or affect
public order
The SC struck down the rule in so far as it relates to
demonstration (Kameshwar Prasad And Others v. The State Of
Bihar 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/workplace
disorder, etc.
Trade unions can hold demonstrations including sit-in
demo within a GIVEN RADIUS OF ------ METRES FROM
THE GATE OF THE ESTABLISHMENT
Without damage to property or prevention of
workers 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 of
peace 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 is
not permitted to demonstrate. Strike in a given
situation is only a form of demonstration. .the right
to 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 of
redress for resolving the grievances of workers. But
the right strike is NOT ABSOLUTE under our industrial
jurisprudence and restrictions have been placed on
it. (B. R. Singh and other.v. Union of IndiaSC,
September 1989)

Distribution of Jurisdiction between the Centre & the State

Union List

Concurrent List

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, workmens
compensation, invalidity & old
age pensions & MB
Nos. 36 & 37 Factories & boilers

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;

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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
everywhere
The 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 welfare
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Structure of International Rules & Norms in Labour Field

International Rules & Norms

ILO Conventions

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ILO Recommendations

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

Provides for the right of workers and employers
WITHOUT any distinction to establish and join
organisations of their OWN CHOOSING and WITHOUT
prior authorization
Their organisations have the right to form or join
federations & 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 to
secure these rights

TU, collective bargaining, strikes & lockouts

Free Collective Bargaining FRAMEWORK

WHAT ARE TRADE UNIONS?
A TU is a continuous association of wage-earners
for the purpose of maintaining or improving the
conditions of their working lives
TU Act any combination, whether temp or
permanent, formed primarily for the purpose of
regulating relations between workmen &
employers or between workmen & workmen,
between employers & employers or for imposing
any restrictive conditions on the conduct of any
trade 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 nonenforcement 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 under
this Act:
Provided that no Trade Union of workmen shall be
registered unless at least ten per cent or 100 of the
workmen, whichever is less, engaged or employed in
the establishment or industry with which it is
connected are the members of such Trade Union on
the 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 workers
is very high by international standards.

 TU registration for both WORKERS AND

EMPLOYERS
A TU shall not be registered UNLESS the
Executive Committee is constituted according to
Act & the RULES SHOULD be as per the Act
Rules and regulations of a trade union dictated
by the Act (objects, use of general funds, list of
Union Members, subscription, Executive
Committee 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 < of the office

bearers in the unorganised sector
In other sectors not more than 1/3rd or 5
whichever is less
An employee who has retired or has been
retrenched shall not be considered as
OUTSIDER for the purpose of holding office in
the TU
A member of Council of Ministers or a person
holding an office of profit in the Union or
State shall not be a part of the Executive
Committee

DEBATES
concept of an outsider?
Political leaders?
Complete ban on non-employees? Art 19 of
the Constitution?
Curtailment of % of outsiders?
How many unions can the outsider hold
positions? Some say there should be no
ceiling; some call for a ceiling
TU 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 for
the PURPOSE OF FURTHERING ANY SUCH OBJECT of the TU
as is specified in S.15
Criminal conspiracy means an agreement to commit an
offence, an overt act done in pursuance of an agreement
between 2 or more persons to do an illegal act by illegal
means
No suit or legal proceeding in any civil court against RTU for
acts in furtherance of a trade dispute on grounds of break
of contract, interferes with business, or employer of other
persons
Acts of coercion by TU affect employers 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 establishment
minimum for recognition (for a firm) and 25% at
the industry level
Trade union should have at least one year of
registered life;
membership subscription not < 3 months
At 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 board
Hold discussion with employees in connection
with prevention of Industrial Dispute
Meet & discuss grievances with employers
Inspect an undertaking any place where
employee is working
Appoint nominees in the Work Committees
Appear before any proceedings
Make all employees bound by an agreement to
which 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 FT
union work initially. After 4 years this privilege was
withdrawn.
The TU filed a case in the LC, which ruled that it was
merely a concession extended by the management and
was not a part of the service condition.
Case Taken to Madras High Court
The issues: Whether the workman had the legal right to
do TU work on Full Time basis without attending to office
duties?
Whether the withdrawal of permission earlier affect the
service conditions?
The Court held that a worker cannot claim as a right to
do 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 UNION
REGISTRATION & OBJECTIONS STATE-EMP. NEXUS???????

Two Struggles TU Recognition

Rico
In Gurgaon since 1994
August 4 2009 submitted
registration of TU under AITUC
Management resistance
tense shop floor
Suspension, lockout citing goslow
AITUC leader stopped entry
into Gurgaon
Violence on both sides
Death of Ajit Yadav - worker
City-wide strike spontaneous
Govt mediation reinstatement of 3 suspended
workers & formation of AITUC

Hyundai

Hyundai in TN since 1997

1700 PW out of 6000
In June 2007 HMI Employees Union
Management refused to hold
negotiation
Alleged harassment
Dismissal, suspension, pay cuts
several strikes since 2009
Management formed WORKERS
COMMITTEE to hold negotiation
settlement with WORKERS
COMMITTEE stopped because of
strike and med
But refusal to recognize TU no
outside union with political affiliation
It recognised a non-political trade
union - the United Union of Hyundai
Employees in Nov 2011

 ARE TUs REQUIRED IN IT INDUSTRY?

 Issues faced by it Employees in the IT industry:

Long working hours
Work load
Parameters for PBP no transparency
Appraisal & promotion issues
Job insecurity
High stress levels
No transparency & no equity
READ: Trade unions in Indian IT Industry? An
Employees Perspective, IJIR, Vol.46, NO.2, Oct
2010

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 power
neutralization and strongly
oppose unions.
Agreed, they offer favorable
working environment, but
that's not enough.
Several issues, be it promotion
or differential treatment by coworkers on caste and
community basis can occur.
Who will employees turn to
when in need?" questions,
Karthik Shekhar, General
Secretary, UNITES,
Employees prefer to live with
the prevailing conditions
or move out in search of other
jobs instead of fighting for
their own cause.

HR VIEW

"We interact with

employees across
all levels. I dont
see the need for a
union. Anyone can
contact the CEO
directly," said HR
head of a citybased 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 areas
from which membership is drawn.
Four typical structures of a trade union
the craft union, which was either based on a single craft or
on multiple crafts, or one that was spread across an entire
industry relating to similar crafts. It became known as an
industrial union in a horizontal arrangement;
the industrial union, which was vertically structured in a
single 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 versus
independent or enterprise union (pros and
cons) Why the latter?
Reasons for the rise of independent unions
(read Prof. Sarkars article)
Altruistic and selfish?
Responsible unions?
Loyal to whom dual or multiple
commitment?

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
Organization
CTUOs

Union Comments

Level

Mostly political, affiliated to central National

political parties
Regional TUOs
Political or non-political affiliated to Regional
regional political parties
Industry/Sector
Mostly in public sector like banks, National/regional
organizations/federatio insurance, railways, aviation, electricity,
ns
affiliated
to
political
parties,
or
independent, e.g. All India Stock Exchange
Employees Federation).
Caste ethnic or gender Organizations by scheduled caste and Enterprise/regional/industry
based organizations
tribes, tribals, and women employees

Craft organizations
White-collar
organizations
Enterprise Unions
Firm level federations
of enterprise unions

Railways, textiles, coal, aviation

Clerical/managerial/professional

Industry/national/regional
Enterprise/sectoral/national

Mostly Non-affiliated
Non-affiliated

Enterprise
National

Unity organizations
Political or non-political
National/regional/enterprise
Informal
sector Trade unions (political/non-political), National/regional/industry
organizations
NGOs