LABOUR LAW I

SEMINAR PAPER

CAT V

THE EFFICACY OF ILO CONVENTIONS: A REFERENCE TO

NATIONAL LABOUR LEGISLATION IN INDIA
[RIGHT TO STRIKE]

Submitted By: KAMENDRA RAY Submitted To: Mrs. Mita Poddar

Semester: VIIth Asst. Prof. Labour Law

Section: B NUSRL, Ranchi.

Roll No.: 328

National University of Study and Research in Law, Ranchi

INTRODUCTION
India became the member of the I.L.O in the year 1919 which is from its inception. Though
India had was not won independence by that year i.e. 1919, it was admitted to the membership
of the I.L.O. However its membership, of the League of Nations and the I.L.O had not gone
unchallenged. For it was argued that it would give an additional vote to the United Kingdom.
The British Government gave an assurance that British India was democratically administered
and upon this India along with China, Iran, Japan and Thailand were few Asian countries to be
admitted to the I.L.O membership of the 24 States. Out of 40 States represented, India was one
which sent a full delegation to the first session of the International Labour Conference held in
the year 1919 at Washington. It is to be mentioned here that the Indian delegation comprised
of Government representatives, Sir Atul Chaterjee, and Sir Louis ker Sha. Employers delegate
Sir Alexander Murry, and working delegate Sri.N.M.Joshi. Thus Indian Membership of the
League of Nations and the International Labour Organisation was indeed a first step in
elevating the status of assemblies in the states in spite of being a British Colony. The I.L.O and
India have common aims, goals and destiny, for, both of them are committed to world peace
freedom and social justice. Both are striving for the socio economic betterment of the long
suffering, long forgotten people, the people who are underprivileged and under nourished with
the fullest realization that any further delay would fatal for themselves and the whole world.
LITERATURE REVIEW

RATIFICATION OF I.L.O STANDARDS BY INDIA

The I.L.O Conventions and Recommendations have been greatly honoured by the working
class all over the world for their benefice ring humanitarian and missionary zeal. These I.L.O
standards are considered the embodiment of social justice by the underprivileged, a Magna
Carta of their liberty and proclamation of their freedom and dignity against tyranny, whether
social or economic or political. It can be mentioned here that the I.L.O standards have been
ratified by all the countries irrespective of their political complexions or economic
development and also varying forms and number depending upon many factors. India is also
greatly benefited by the I.L.O standards for the welfare of the workers. There is a detailed
procedure for ratification of the Conventions and Recommendations and the Conventions
analogues to International Treaties

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With required ratification by competent authority within a period of 18 months at the latest
from the closing session of the conference. The time limit is intended to induce quicker action
by the members state. In India the treaty making power is regarded as Executive Act with in
the competency of the Government of India. However the power to exact implementation of
legislation lies in hands of Parliament, in contrast to the situation obtaining in the U.S.A.,
Canada and Australia. Article 253 of the Indian Constitution expressly provides that
notwithstanding anything in the foregoing provisions of this chapter. Parliament has power to
make any law for the whole or any part of the territory of India for implementing any treaty,
agreement or convention with any other decisions made at any international conference
association or other body. According the scope of implementing legislation in India not
limited to subjects with in the legislative jurisdiction of the union parliament. Therefore the
making of the treaty in India is unlimited. As regards the subject matter perhaps the only
limitation is that legislation to give effect to treaties and agreements or decision cannot be
violate the fundamental rights mentioned in part III of the Constitution of India. Under Article
13 of the Constitution, any law which violates rights guaranteed under part-III of the
Constitution of India is void to the extent of repugnancy. In other words, there are no
constitutional limitations upon the powers of the Union Government to enter into treaties with
other States or international organizations except those provided in part III of the constitution.
The treaty enables the parliament to override the federal distribution of the powers under the
Constitution of India. This concept has been borrowed from the American constitution. The
scope of the treaty power was considered by the Supreme Court of the United States.1

The United States and the United Kingdom entered into a treaty in 1916 for the protection of
migratory bird, which in their annual migrations traversed certain parts of the United States
and Canada. Pursuant to this Conventions and Recommendations of I.L.O. in regard to Basic
Human Rights The Conventions and Recommendations of the International Labour
Organisation relate to verify the subject on basic Human Rights of working class having a
direct bearing on the cause of social justice and everlasting universal peace which is most
focused objectives of the

1
Missouri Vs. Holland, 1920, (252), U.S. 416.

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International Labour Organisation. The following Conventions/Recommendations of I.L.O. are
important in recurring to basic human rights.

(a) Freedom of association and protection of the right to organise

(b) Forced labour
(c) Equality of opportunity and treatment The Influence Of International Labour
Organisation Standards on Indian Labour legislation

The constitution of the Republic of India has been framed to fulfil the promises made to labour
during the Independence struggle in which they participated whole heartedly. A charter of
"Directive principles" was placed in part IV of the Constitution concerning labour welfare, but
it was made non-enforceable. The state, was however, under an obligation, subject to its
economic power, to realize the goals set out in Part IV of the Constitution of India. The
Supreme Court while interpreting the provisions of the constitution has played an activist role
to translate into reality "India's Bill of Rights" enshrined in Part IV of the Constitution.
However, now a plethora of confusing, sometimes contradictory system of labour laws has
spawned, which needs to be set right. Labour Law in India is a cluster of legislations enacted
and amended by the Government from time to time, covering the gamut of issues relating to
labour and its employment. The beginning of labour laws in India can be traced back to the
Fatal Accident Act, 1855, Factories Act, Mines Act, 1952 and a series of labour legislations.
Among the plethora of modern labour laws, the Workmen's Compensation Act, 1923 is the
oldest one. Some of the other significant labour legislations are the Trade Unions Act, 1926,
the Payment of Wages Act, 1936, the Industrial Disputes Act, 1947, The Minimum Wages Act,
1948, The Factories Act, 1948, The Employees State Insurance Act, 1948, The Employees
Provident Fund and Miscellaneous Provisions Act, 1952, The Payment of Bonus Act, 1965 and
the Payment of Gratuity Act, 1972. Job security to labour, and checking exploitation by the
employer is the essence of all these enactments. A number of obligations have been imposed
upon the employer, non-compliance of which entails penalty or prosecution also. On the other
side of the coin provisions have also been made to curb unfair labour practices, such as strikes,
go-slow etc., to resolve the industrial disputes and to harmonise the labour management
relations.2 India is the member of the International Labour Organisation since its inception in
the year 1919 and so far it has ratified 39 conventions, out of which two have been denounced.

2
Subrahmaya Swamy, Indian labour standards and the WTO frame work 2000, p.44

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The rest of the 37 conventions ratified by India pertaining to variety of subjects which are
enumerated below according to subject-wise categorization.

OBJECTIVE

The main objective of this article is to explore the impacts of ILO direction and guidelines on
Indian labor law for the welfare of Indian labor class.

METHODOLOGY

In present study researchers used the narrative literature review methods for describing the
impact of ILO guidelines and directions on India Labor Legislations.

CHAPTERISATION
CORE CONVENTIONS OF THE ILO

The eight Core Conventions of the ILO (also called fundamental human rights conventions)
are: Forced Labor Convention (No. 29), Abolition of Forced Labor Convention (No.105),
Equal Remuneration Convention (No.100), and Discrimination (Employment Occupation)
Convention (No.111) (The above four have been ratified by India). Freedom of Association
and Protection of Right to Organized Convention (No.87),Right to Organize and Collective
Bargaining Convention (No.98),Minimum Age Convention (No.138),Worst forms of Child
Labor Convention (No.182) (These four are yet to be ratified by India). Consequent to the
World Summit for Social Development in 1995, the above-mentioned Conventions (Sl.No.1 to
7) were categorized as the Fundamental Human Rights Conventions or Core Conventions by
the ILO. Later on, Convention No.182 (Sl. No.8) was added to the list. According to the
Declaration on Fundamental Principles and Rights at Work and its Supplement, each Member
country of the ILO is anticipated to give outcome to the principles restricted in the Core
Resolutions of the ILO, regardless of whether or not the Core Resolutions have been approved
by them. Under the reporting procedure of the ILO, detailed reports are due from the member
States that have ratified the priority Conventions and the Core Conventions every two years.
Under the Follow-

up to the ILO Declaration on Fundamental Principles and Rights at Work, a report is to be

made by each Member State every year on those Core Conventions that it has not yet ratified.
One of the foremost reforms introduced recently is the introduction of the Active Partnership

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Policy whose main objective is to bring ILO nearer to its constituent countries. The key
instrument for execution of the ILO policy is the multi-disciplinary team, which will help in
providing support and identify special areas of concern to member States. For South-Asia the
multi-disciplinary team is in New Delhi. It consists of specialists on industrial relations,
employment, labors and employers activity, small-scale industries and International Labor
Ethics. Also ILOs interest in child labor, young persons and their problems is well known. It
has adopted a number of Conventions and Recommendations in this regard. In India, within a
framework of the Child Labor (Prohibition and Regulations) Act, 1986 and through the
National Policy on Child Labor, ILO has funded the preparation of certain local and industry
specific projects. In two projects, viz. Child Labor Action and Support Programmes (CLASP)
and International Programme on Elimination of Child Labor (IPEC), the ILO is playing a vital
role created a very positive impact towards understanding the problem of child labor and in
highlighting the need to elimination child labor as expeditiously as possible. A major
contribution of the IPEC programme in India is that it has generated a critical consciousness
among all the 3 social partners for taking corrective measures to eliminate child labor.

MAJOR IMPACT OF ILO ON LABOR LEGISLATIONS IN INDIA

With the evolution and expansion of small plants, factories and industries in the Indian
subcontinent starting in the mid of the nineteenth century, new possibilities for employment
were generated, resulting in a ongoing migration of the labor from poor rural areas to factories
and mills located basically in urban areas. During time, in the lack of any control on
organizations labor by the state, the employers were very less concerned for the needs of their
workers; wages were very low, very long working hours, and unsatisfactory the employees
employment conditions. The situation led to the depiction of a large number of labor
legislations beginning since the year of 1881. These labor legislations includes, The Factories
Act 1881, Workmens Compensation Act -1923, Mines Act 1923, Trade Unions Act-1926,
Trade Disputes Act -1929, Payment of Wages Act -1936, Employment of children act- 1938
and Maternity Benefit Act in 1939.

The Factories Act 1881

This act is the basis of all industrial and labor laws in India. It contained requirements for
working hours of women and workers with the minimum age of children for employment.
When International Labor Organization was established in 1919, this Act was amended and
subsequently retracted, resulting in the declaration of the Factories Act 1934. It makes

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provision for health, safety, and hygienic condition of the workers, special provision for women
and young workers. It also forbids child labor. It provides limits of work for a child in factories,
including seasonal factories.

Mines Act 1923

This Act make provisions for labors working in Indian mines. The working hours for labor
employed on surface were limited fifty per week and ten per day. According to Mines Act
periods of work shall not be more than 12 hours in any day, this also include rest period. For
workers who are employed underground, the daily limit for them is nine hours per day. The
Act does not cover provisions related to overtime work. No worker can work more than six
days in a week. The Act does not make any provision for wages during the day of rest.

Trade Union Act and Payment of Wages Act

The Indian government under British set up an enquiry committee in 1926 to determine the
shortcomings for anomaly of payment of wages to industrial labors. As the result Trade union
act of 1926 come up. The Royal Commission on Labor was appointed in 1929, the commission
considered the reports and suggestions of the enquiry committee and recommended for
implementing prevention of disorders relating to payment of wages. The Payment of Wages
Act 1936 was passed to regulate the payment of wages to definite classes of people employed
in industry. The object of the Act obviously was to offer a low-priced and quick therapy for
employees to whom the Act applied and to recover wages due to these employees. For this
purpose, a special tribunal was created, but due to some integral imperfections in the statute
the repossession of judgmental wages remained difficult.

The Weekly Holidays Act of 1942

This act recommends one paid holiday in a week for people working in any restaurant, shop,
or theatre excluding position of management, and confidential positions. The government is
authorized to award additional paid half-day holiday in a week.

The Industrial Disputes Act, 1947

This act came into being on the 1st day of April 1947. The Act provided for establishment of
industrial tribunals by the appropriate government in British India. It established a full-fledged
industrial tribunal for adjudication of industrial disputes for the first time

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The Industrial Employment (Standing Orders) Act, 1946

This act came into force for the first time to employers in industrial establishments which are
employing hundred or more workers. This act provides the way to define the terms and
conditions of employment of worker in the form of standing orders. The Merchant Shipping
Act, 1923 provided for an agreement between the master of the ship and seaman concerning
their terms of service.

CONCLUSION

Most of the labor legislations in India are before independence. The Fundamental Rights of
the Constitution for providing safeguards to labors. Although most of the pre constitutional
labor legislations have been revoked or curtailed following the Doctrine of Severability and
Doctrine of Eclipse, but not a lot of changes had been made to the labor legislation which were
came before the adoption of Constitution. The achievement of these labor laws must be credited
to the ILO. The ILO guidelines provided basic principles on which most of labor legislations
were drawn. By observation on various amendments and enactments in labor laws it can be
easily seen that the ILO have a countless impact on the Indian Labor Laws. A large number of
laws were passed to incorporate the guidelines of the resolutions of the ILO. All these revised
and ratified legislations create provisions for the common welfare and protection of importance
of the Indian labors. The constructive effect of ILO is seen in form of appreciation of many
new kinds of rights that were previously not available for the Indian labor class, but were made
available after creation of ILO.

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REFERENCES

1. Alcock, A. History of the International Labour Organization (London, 1971)

2. Dufty, N.F. Organizational Growth and Goal Structure: The Case of the ILO,
International Organization 1972 Vol. 26, pp 479498.
3. Endres, A.; Fleming, G. International Organizations and the Analysis of Economic
Policy, 19191950 (Cambridge, 2002)
4. Evans, A.A. My Life as an International Civil Servant in the International Labour
Organization (Geneva, 1995)
5. Ewing, K. Britain and the ILO (London, 1994)
6. Fried, John H. E. Relations Between the United Nations and the International Labor
Organization, American Political Science Review, Vol. 41, No. 5 (October, 1947), pp.
963977 .
7. Galenson, Walter. The International Labor Organization: An American View
(Madison, 1981)
8. Heldal, H. Norway in the International Labour Organization, 19191939
Scandinavian Journal of History 1996 Vol. 21, pp 255283,
9. Imber, M.F. The USA, ILO, UNESCO and IAEA: politicization and withdrawal in the
Specialized Agencies (1989)
10. Johnston, G.A. The International Labour Organization: Its Work for Social and
Economic Progress (London, 1970)
11. Manwaring, J. International Labour Organization: A Canadian View (Ottawa, 1986)
12. Morse, D. The Origin and Evolution of the ILO and its Role in the World Community
(Ithaca, 1969)
13. Schlossberg, S. United States Participation in the International Labour Organization:
Redefining the Role, Comparative Labor Law Journal 1989, Vol. 11, pp 4880
14. VanDaele, Jasmien. Engineering Social Peace: Networks, Ideas, And the Founding of
the International Labour Organization, International Review of Social History 2005
50(3): 435466
15. Van Daele, Jasmien. The International Labour Organization (ILO) In Past and Present
Research, International Review of Social History 2008 53(3): 485511, historiography