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Contents
1.
INTRODUCTION 01
2. HISTORY OF TRADE UNIONS IN INDIA
02
03
4.
COLLECTIVE BARGAINING IN INDIA 04
I. Stages of Collective Bargaining in India
04
05
III.
Collective Bargaining Agreements in India 06
5. LAWS GOVERNING TRADE UNIONS IN INDIA
08
I.
Constitution of India, 1950 08
II.
Trade Unions Act, 1926 08
III.
Industrial Disputes Act, 1947 10
6. LANDMARK CASES PERTAINING TO TRADE UNIONS
11
7.
RIGHT TO STRIKE 12
8. RECENT TRADE UNION ACTIVITIES IN INDIA
13
9.
CONCLUSION 15
ANNEXURE
Trade Unions Act and State Laws Provide Legal Protections to Trade Unions in India
16
ANNEXURE II
Code of Discipline 19
1. Introduction
Trade unions in India have come a long way since
the first organized trade union - the Madras Labour
Union, one of the earliest unions, was formed in
1918. India now has more than 84,642 registered
trade unions1 along with an unaccounted number
of unregistered trade unions scattered across a large
spectrum of industries in India.2 The potential for
growth in trade union represented workers is huge
given the fact that India is likely to have a working
population of more than 64% by the year 2021.3
1.
2. Ibid
3. http://articles.economictimes.indiatimes.com/2014-07-09/news/51248148_1_national-skill-development-corporation-india-october-economic-survey
(Accessed on January 22, 2015)
4.
See footnote 1
5. Ibid
6.
Vikram Shroff and Akshay Bhargav, Trade Unions Act And State Laws Provide Legal Protections To Trade Unions In India, SHRM Legal Report, March
2010. A copy of the article is annexed to this research paper as Annexure I.
7.
See footnote 1
8.
See footnote 6
S.No.
Political Affiliation
1.
2.
3.
4.
5.
6.
7.
8.
9.
None. Independent.
10.
11.
12.
Indian National Trinamool Trade Union Congress (INTTUC) All India Trinamool Congress Political Party
9.
International Labour Organization, The growth and decline of political unionism in India: the need for a paradigm shift at p. 9, online: <http://www.
ilo.org/wcmsp5/groups/public/---asia/---ro-bangkok/---sro-bangkok/documents/publication/wcms_143481.pdf>. See also Trade Unionism in India
online: < http://industrialrelations.naukrihub.com/trade-unionism.html> (Accessed on January 22, 2015)
B. Negotiation
As a next step, negotiations begin after the
submission of the charter of demands by the
representatives of the trade union. Prior to such
negotiations, both the employer and the trade unions
prepare for such negotiations by ensuring collection
of data, policy formulation and deciding the strategy
in the negotiations.13
After such preparation, the negotiations take place
wherein the trade unions and the employer engage
in debates and discussions pertaining to the demands
made by the trade unions.14 In the event that such
demands are rejected, the trade union may decide to
engage in strikes.
The collective bargaining process obviously takes
long where the employer has to engage with multiple
unions. In the public sector, it may take months or
even years. For example, the Joint Wage Negotiating
Committee for the Steel Industry, covering workers
in four large unions, took more than three years from
the date of the submission of the charter of demands
to the Steel Authority of India Ltd. (SAIL).15
A. Charter of Demands
D. Strikes
If both parties fail to reach a collective agreement,
the union(s) may go on strike. As per the IDA, public
utility sector employees must provide six weeks
notice of a strike, and may strike fourteen days
after providing such notice (a cooling off period).16
10. Karol Leather Karamchari Sangathan v. Liberty Footwear Company, (1989) 4 SCC 448
11. Section 18 of the IDA
12. See footnote 9 at p.60
13. R. Sivarethinamohan, Industrial Relations and Labour Welfare: Text and Cases, page 286, Available at https://books.google.co.in/books?id=OBuLapJUAcC&printsec=frontcover (Accessed on January 22, 2015)
14. Ibid
15. P.D. Shenoy, Voluntary bipartite approaches towards industrial peace: Indian experience (Bangkok, ILO, 1991), pp. 17-26
16. Section 22 of the IDA
E. Conciliation
A conciliation proceeding begins once the
conciliation officer receives a notice of strike or
lockout. During the cooling off period, the state
government may appoint a conciliation officer
to investigate the disputes, mediate and promote
settlement.18 On the other hand, it may also appoint
a Board of Conciliation which shall be appointed
in equal numbers on the recommendation of both
parties, and shall be composed of a chairman and
either two or four members.19 No strikes may be
conducted during the course of the conciliation
proceeding.20
Conciliation proceedings are concluded with one of
the following recommendations: (i) a settlement, (ii)
no settlement or (iii) reference to a labour court or an
industrial tribunal.21
F. Compulsory Arbitration or
Adjudication by Labour Courts,
Industrial Tribunals and National
Tribunals
When conciliation and mediation fails, parties may
either go for voluntary or compulsory arbitration. In
the case of voluntary arbitration, either the state or
central government appoints a Board of Arbitrators,
which consists of a representative from the trade
union and a representative from the employer. In
the case of compulsory arbitration, both parties
submit the dispute to a mutually-agreed third party
for arbitration, which is typically a government
officer. Arbitration may be compulsory because the
arbitrator makes recommendations to the parties
without their consent, and both parties must accept
the conditions recommended by the arbitrator.22
27. National Wage Boards for Working Journalists and Other Newspaper Employees online: < http://labour.gov.in/content/KNWageBoard/aboutus.
htm>
28. Livemint, SC upholds Majithia wage board recommendations 7 Feb 2014, online: <http://www.livemint.com/Consumer/
PMBDNjXi6e2ovpvss2SQoN/SC-upholds-validity-of-Majithia-wage-board.html>
29. Thomas Kochan et al. Employment Relations in the Growing Asian Economies online: <http://books.google.co.in/
books?id=K5MLn6k9N50C&pg=RA2-PT150&lpg=RA2-PT150&dq=industry+cum+regional+bargaining+india&source=bl&ots=nmZADkoE_7&
sig=05-EloHLJ4sgNgGOmgT5Tw4c-40&hl=en&sa=X&ei=fZNoU_K8Oszk8AWM7YK4BA&ved=0CCkQ6AEwAA#v=onepage&q=industry%20
cum%20regional%20bargaining%20india&f=false> (Accessed on January 22, 2015)
30. Nirmal Singh, Industrial Relations at p. 119, online: <http://books.google.co.in/books?id=gl0tzPYgko8C&pg=PA119&lpg=PA119&dq=India+three
+types+collective+bargaining+agreement,+settlement,+consent+award&source=bl&ots=loASB2mYdB&sig=jFY7BoPzB2Zcx9PuXzofK8OOXtU&hl=
en&sa=X&ei=0JRoU6CPH5Ck8AXdt4GwCw&ved=0CDAQ6AEwAQ#v=onepage&q=India%20three%20types%20collective%20bargaining%20agreement%2C%20settlement%2C%20consent%20award&f=false>
31. Section 18 of the IDA
32. As per section 2 (gg) (p) of IDA, a settlement means a settlement arrived at in the course of conciliation proceeding and includes a written agreement
between the employer and workmen arrived at otherwise than in the course of conciliation proceeding where such agreement has been signed by
the parties thereto in such manner as may be prescribed and a copy thereof has been sent to an officer authorised in this behalf by the appropriate
Government and the conciliation officer.
33. All India Bank Employees Association v. N.I.Tribunal, AIR 1962 SC 171
34. Ibid
35. Damyanti v. Union of India (AIR 1971 S.C. 966)
36. Article 19(4) of the Constitution
37. See footnote 33
38. Raghubar Dayal Jai Prakash v. Union of India, AIR 1950 SC 263
39. See footnote 33
40. Section 2, Trade Union Act, 1926
41. O.K.Ghosh v. Joseph, AIR 1963 SC 812
42. Tamil Nadu NGO Union v. Registrar, Trade Unions (AIR 1962 Mad High Court)
43. Singh et al., Employee Relations Management, p. 110, Available at https://books.google.co.in/books?id=vkQ7BAAAQBAJ&printsec=frontcover
(Accessed on January 22, 2015)
B. Registration Process
The TU Act provides for the registration of trade
unions with the Registrar of Trade Unions in the
concerned territory (Registrar) but such registration
is not compulsory.
It is possible for more than one trade union to
be registered in relation to the same employer.
Registration requires that at least seven members
subscribe to the union rules.49 In addition, at least
10% of the workforce or 100 workers, whichever
is less, engaged or employed in the establishment,
must be members of the trade union connected with
such establishment at the time of application.50
Registration of a trade union is subject to the
Registrars satisfaction that all primary requirements
of the TU Act have been complied with. The
Registrar, in deciding whether to grant registration,
must base its decision on whether the technical
requirements of registration are being fulfilled, and
10
11
7. Right to Strike
The IDA 66 defines a strike as a cessation of work by
a body of persons employed in any industry acting in
combination or a concerted refusal, or a refusal under
a common understanding, of any number of persons
who are or have been so employed to continue to
work or to accept employment.
In India, there is no specific right to strike. Instead
such right flows from the fundamental right to form
a trade union contained in Article 19(1)(c) of the
Constitution, which, like all fundamental rights, is
subject to reasonable restrictions. In All India Bank
Employees Association v. N.I. Tribunal 67, the SC
held, inter alia, that the right to strike or right to
declare lockout may be controlled or restricted by
appropriate industrial legislation and the validity
of such legislation would have to be tested not with
reference to the criteria laid down in clause (4) of
Article 19 of the Constitution but by totally different
considerations.
Therefore, legislation can and does restrict the right
to strike by deeming certain strikes illegal. The
IDA restricts strikes and lockouts equally. Various
restrictions are contained in sections 22, 23, 24, 10(3)
and 10A(4A) of the IDA. Furthermore, the IDA also
lays down certain activities that may be deemed
as unfair labour practices of workers or workers
trade unions pertaining to strikes such as advising or
actively supporting or instigating any illegal strike
or staging demonstrations at the residence of the
employers or managerial staff members.68
12
73. Martin Murray, Industrial Action in the Indian Automotive Industry online: <http://logistics.about.com/od/industryfocus/a/Industrial-Action-InThe-Indian-Automotive-Industry.htm>
74. Maruti Manesar unrest: 100 arrested, plant shut down, July 9, 2012, Available at http://www.moneycontrol.com/news/business/maruti-manesarunrest-100-arrested-plant-shut-down_732607.html (Accessed on January 22, 2015)
75. Ronojoy Banerjee, All eyes on Maruti as Manesar plant sets to reopen today, August 21, 2012, Available at http://www.moneycontrol.com/news/cnbctv18-comments/all-eyesmaruti-as-manesar-plant-sets-to-reopen-today_747287.html (Accessed on January 22, 2015)
76. Trade unions slam coal, insurance ordinance; threaten strike, December 28, 2014, Available at http://economictimes.indiatimes.com/news/politicsand-nation/trade-unions-slam-coal-insurance-ordinance-threaten-strike/articleshow/45665291.cms (Accessed on January 22, 2015])
77. CIL trade unions caution against de-nationalisation of mines, October 24, 2014, Available at http://economictimes.indiatimes.com/industry/indlgoods/svs/metals-mining/cil-trade-unions-caution-against-de-nationalisation-of-mines/articleshow/44925847.cms (Accessed on January 22, 2015)
78. Coal India staff on five-day nationwide strike from today , January 6, 2015, Available at http://businesstoday.intoday.in/story/coal-india-staff-on-5-daynationwide-strike-from-tuesday/1/214249.html (Accessed on January 22, 2015)
79. Ibid
80. See footnote 71
81. Moulishree Srivastava, Are trade unions gaining a foothold in IT sector?, LIVEMINT, January 6, 2014, Available at http://www.livemint.com/Industry/
niEiLE4J9rb53vz3FVAQFP/Are-trade-unions-gaining-a-foothold-in-IT-sector.html (Accessed on January 22, 2015)
82. http://www.newindianexpress.com/states/kerala/TCS-Lay-off-Minister-Seeks-Report/2015/01/09/article2610864.ece (Accessed on January 22, 2015)
83. Vaidyanathan Iyer, Rajasthan shows way in labour reforms, INDIAN EXPRESS, June 8, 2014, Available at http://indianexpress.com/article/india/indiaothers/rajasthan-shows-way-in-labour-reforms/ (Accessed on January 22, 2015)
13
84. Trade Unions oppose Rajasthans Labour reforms, Business Standard, June 11, 2014, Available at http://www.business-standard.com/article/economypolicy/trade-unions-oppose-rajasthan-s-labour-reforms-114061001116_1.html (Accessed on January 22, 2015)
14
9. Conclusion
Historically, in India, the function of the trade
unions was limited largely to collective bargaining
for economic considerations. However, trade unions
now play a major role in employee welfare activities,
cultural programs and banking and medical facilities
and by creating awareness through training and
educating the members of the trade union. On the
other hand, the dominant managerial objectives
in collective bargaining in recent years owing to
heightened competition have been to reduce labour
costs, increase production or productivity, flexibility
in work organization (multi-skilling /multifunctioning, changes in worker grades etc.), increase
in work time, reduction in regular staff strength via
VRS, stress on quality and so on.85
85. Krishna Murthy, R. (2006), Negotiating Wage Settlements Experiences of Innovative Managements, Indian Industrial Relations Institute, Mumbai
and Venkata Ratnam, C.S. (2003), Negotiated Change: Collective Bargaining, Liberalization and Restructuring in India, Response Books, New Delhi
15
Annexure I
Trade Unions Act and State Laws Provide
Legal Protections to Trade Unions in India
By Vikram Shroff and Akshay Bhargav
state-specific Laws
In addition to the TU Act, certain state governments have
enacted legal provisions concerning the recognition of
trade unions. However, each state has its own set of criteria,
including minimum requisite membership. For instance, in
the State of Maharashtra, the Maharashtra Recognition of
Trade Unions and Prevention of Unfair Labor Practices Act,
1971, governs the aspects related to the recognition of trade
unions that have not been specifically covered by the TU Act.
Similar laws have been enacted in the states of West Bengal,
Rajasthan, Andhra Pradesh and Madhya Pradesh. The states of
Bihar and Orissa have specific nonstatutory provisions setting
forth rules and principles for the recognition of trade unions.
6 LegaL RepoRt
16
MaRCH 2010
Trade Unions Act and State Laws Provide Legal Protections to Trade Unions in India
continued from page 6
MaRCH 2010
LegaL RepoRt 7
17
Annexure I
Provided upon request only
Introduction To
Mexican Labor Law
By Ernesto Velarde-Danache
Currency of Tu
Act Questioned
Trade unions in India have
provided a powerful mechanism
for collective bargaining and
proactive communication between
an employer and its employees. At
the same time, disputes between
employers and trade unions
continue to be litigated. The cost
of disruption in production is
constantly rising, raising questions
about the role of trade unions and
the efficacy of the TU Act.
Some relatively new sectors in
Indiafor example, the software
services sectorattribute their
success partly to the absence of
large-scale trade union movements
having vested interests.
Mexico is our neighbor to the south, one of our two North American Free Trade
Agreement (NAFTA) partners. Mexico also now is the United States third most
important trade partnerright after Canada and China.
We enjoy Mexican food, and many of us are familiar with Mexicos main
tourist destinations. The U.S. president, no matter what his political affiliation,
celebrates on the White House grounds el Cinco de Mayo. In these and other
ways, we appear to be close to Mexicans. But in many aspects, we remain
distantdespite our proximityand different. One significant difference is our
employment laws.
Mexicos current Federal Labor Law was enacted in 1970 and has not undergone
a major reform since then. Ideally, the labor laws of any country should be
drafted with the unequivocal intention of regulating employer-employee relations,
establishing fair rights and obligations for all parties, and identifying sensible
disciplinary measures for those that choose not to comply. Most business
leaders and owners, however, believe that the Federal Labor Law overprotects
the Mexican labor force and makes it difficult for employers to control operations,
production and even management. This is particularly true when a collective
bargaining agreement has been executed with a local or national labor union.
None of the rights recognized or granted by the Federal Labor Law may
effectively be waived. In most instances, when recognizing or granting rights
the Federal Labor Law establishes the minimum amount for every benefit
allowed. Employers may voluntarily choose, or be forced by union or individual
employees to agree to, compensation that is higher than the statutory minimums.
8 LegaL RepoRt
MaRCH 2010
18
Annexure II
Code of Discipline
i. To maintain Discipline in the Industry (both in
public and private sectors) there has to be (i) a
just recognition by employers and workers of
the rights and responsibilities of either party, as
defined by the laws and agreements (including
bipartite and tripartite agreements arrived at all
levels from time to time) and (ii) a proper and
willing discharge by either party of its obligations
consequent on such recognition.
The Central and State Governments, on their
part, will arrange to examine and set right any
shortcomings in the machinery they constitute for
the administration of labour laws.
To ensure better Discipline in Industry
ii. The Management and Union(s) agree a. that no unilateral action will be taken with
any company matter and that disputes will be
settled at appropriate level;
b. that the existing machinery for settlement of
disputes would be utilized with the utmost
expedition;
c. that there would be no strike or lockout
without notice;
d. that affirming their faith in democratic
principles, they bind themselves to all future
differences, disputes and grievances by mutual
negotiations, conciliation and voluntary
arbitration;
e. that neither party will have recourse to (a)
coercion, (b) intimidation, (c) victimization or
(d) go-slow;
f. that they will avoid, (a) litigation, (b) sit down
and stay in strikes and (c) lock outs;
g. that they will promote constructive cooperation between their representatives at all
levels and as between workers themselves and
abide by the spirit of agreements mutually
entered into;
h. that they will establish upon a mutually agreed
basis, a grievance procedure which will ensure
a speedy and full investigation leading to
settlement;
i. that they will abide by various stages in the
grievance procedure and to take no arbitrary
action which would bypass this procedure; and
19
Annexure II
Provided upon request only
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MUMBAI BKC
3, North Avenue, Maker Maxity
Bandra Kurla Complex,
Mumbai 400 051, India
Tel: +91 - 22 - 6159 5000
Fax: +91 - 22 - 6159 5001
BANGALORE
Prestige Loka, G01, 7/1 Brunton Rd,
Bangalore 560 025, India
Tel: +91 - 80 - 6693 5000
Fax: +91 - 80 - 6693 5001
NEW DELHI
C-5, Defence Colony
New Delhi - 110024, India
Tel: +91 - 11 - 4906 5000
Fax: +91 - 11- 4906 5001
MUNICH
Maximilianstrae 13
80539 Munich, Germany
Tel: +49 - 89 - 203006 - 268
Fax: +49 - 89 - 203006 - 450
www.nishithdesai.com