2008 Annual Survey of violations of trade union rights - India
|Publisher||International Trade Union Confederation|
|Publication Date||20 November 2008|
|Cite as||International Trade Union Confederation, 2008 Annual Survey of violations of trade union rights - India, 20 November 2008, available at: http://www.refworld.org/docid/4c52ca8a32.html [accessed 30 August 2016]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
Capital: New Delhi
ILO Core Conventions Ratified: 29 – 100 – 105 – 111
Barriers to the organising of trade unions continued in law and practice, and the government maintained strong restrictions on the right to strike. In some states, violence was used against union activists. Unilever again stood out for its anti-union practices.
Trade union rights in law
Workers may establish and join unions of their own choosing without prior authorisation. However, there is no legal obligation on employers to recognise a union or engage in collective bargaining.
The legislation makes a very clear distinction between civil servants and other workers. Public service employees have very limited organising and collective bargaining rights.
Freedom of association limited: Under the 2001 Trade Unions Act, a union has to represent a minimum of 100 workers – which is excessive by international standards – or ten per cent of the workforce, whichever is less. The act also sets limits on the number of "outsiders" (those not employed at the enterprise) allowed to sit on a union executive and requires unions to submit their accounts for auditing.
Anti-union discrimination: The Trade Unions Act prohibits discrimination against union members and organisers, and employers can be punished if they discriminate against employees engaged in union activity.
Restrictions on the right to strike: Under the 1947 Industrial Disputes Act (IDA), industry workers in public utilities have to announce a strike at least 14 days in advance. In some states, the law demands that certain private sector unions must submit formal notification of a strike before it is considered legal.
Strike bans: The Essential Services Maintenance Act (ESMA) enables the government to ban strikes in public enterprises and demand conciliation or arbitration in certain "essential" industries. However, the Act does not define which these essential services are. Interpretation therefore varies from one state to another. Legal mechanisms exist for challenging a decision taken under the terms of this Act, if a dispute arises.
The Central Civil Services Rule (1964) stipulates that no government servant shall resort to, or in any way abet, any form of strike.
In August 2003 the Supreme Court ruled that government employees did not have the right to strike because it "inconvenienced citizens and cost the state money". The ruling came following a strike in the Tamil Nadu state, whose government had dismissed 350,000 striking employees. In December 2003, the Court ruled that lawyers had no right to go on strike, or to boycott the courts.
Sikkim – excluded from the law: The Trade Unions Act, even after its amendment in 2001, does not apply in Sikkim, a State annexed to India in 1975. Consequently, workers there do not benefit from trade union rights. Although there are some workers' associations, no one sector, as such, is organised. Registration of trade unions is subject to a police inquiry and then depends upon receiving the permission of the Land Revenue Department of the Government of Sikkim. One negative comment by the police about a member of the union's executive can be grounds for refusing registration. Furthermore, the public too has an opportunity to state its objections to the creation of a trade union, which can also prevent its registration.
Repressive legislation in Tamil Nadu State: The Tamil Nadu Essential Services Maintenance Act (ESMA) was passed in May 2002. Characterised by trade union leaders as one of the most repressive pieces of legislation enacted against workers in India since Independence, the Act prescribes a punishment of up to three years' imprisonment and a 5,000 rupee fine against participants in a strike involving "essential services". A large number of public services are included within the definition of "essential", such as those relating to the supply of water and electricity, passenger and goods transport, fire fighting and public health. Activists who call for a strike or instigate workers to go on strike, or anyone who provides financial assistance for the conduct of a strike, risks the same penalties. Under the Act, the word "strike" not only includes the refusal of employees connected with these "essential services" to "continue to work or to accept work assigned", but also a "refusal to work overtime" and "any other conduct which is likely to result in, or results in, cessation or substantial retardation of work in any essential service". The government has ignored ILO recommendations to amend the Act.
General strikes banned in Kerala: In 2002, the State of Kerala issued an order stating that all general strikes were illegal when they involved a complete close down of all activities. Furthermore, organisers of a general strike who cause a shutdown can also be held financially liable for damages caused to an employer. The Kerala state order was challenged, but it was upheld as legal by the Supreme Court.
Export processing zones (EPZs) : The right to join trade unions and bargain collectively exists in law for EPZs. In the 2001 Trade Union Act, the government designated the EPZs and Special Economic Zones as "public utilities", requiring a 45-day strike notice period.
Trade union rights in practice and Violations in 2007
Union protection restricted to a small minority of workers: In practice, workers' rights are only legally protected for the small minority who work in the organised industrial sector.
Over 90 per cent of workers are employed in the agricultural sector and the informal economy. In those sectors there is little union representation and it is difficult to enforce legislation. The growing use of contract labour (even by governments) is also creating problems for organising and weakening the unions.
In addition, the Tamil Nadu state government continued to refuse to recognise and bargain with unions of government employees and teachers.
Hostile employers, poor law enforcement: The generally hostile attitude of employers towards trade unions is clearly a deterrent to organising. Employers tend to either ignore the law making it illegal to dismiss a worker for their trade union activities or circumvent it by transferring workers to other locations to disrupt union activities or discourage union formation. Seeking justice through the judicial process is time consuming and very costly.
Another common form of harassment is the filing of false criminal charges. These lead to unfair dismissal and here too the slowness of the courts prevents workers from obtaining justice within a reasonable period.
Unions report that some employers resort to intimidation, threats, demotion, beatings and, in extreme cases, death threats or even attempted murder against trade unionists. One example of such practices occurred in April 2007, when lorry drivers from the companies Relogistics and SC Thakur Bros decided to join the Transport and Dock Workers Union (TDWU), an affiliate of the International Transport Workers' Federation (ITF). Those two firms transport containers for Global Terminals India (GTI), a subsidiary of the multinational Maersk, in the port of Mumbai. Five days later, a van carrying union activists was diverted onto a track where it was ambushed by a gang of thugs, whilst others turned up at the homes of two other trade unionists, beating them up, ransacking their property and threatening their families. Fourteen drivers went on strike to protest against these crimes and were sacked as a result. After months of campaigning by the TDWU and the ITF global network of unionised employees of Maersk, they were gradually reinstated (the last on 17 October).
Repression in the construction and ship-breaking industries: Contractors and sub-contractors in the construction industry are loathe to allow workers to exercise their right to trade union membership and are likely to threaten them with dismissal should they try. Since all work is project-based, the possibilities for engaging in collective bargaining are extremely limited.
Similarly, in the ship-breaking industry, employment is so precarious that workers do not try to enforce their right to organise trade unions. Anyone who even attempts to demand a wage increase is fired instantaneously. Intimidation is commonplace and the "muqadam", who is responsible for hiring and supervising the workers, sides more with the ship-breaker than with the workers.
Strikes: The procedures for holding a legal strike are so cumbersome that unions rarely fulfil them completely. Most private sector strikes are therefore technically illegal, although reprisals have been rare so far.
In the public utilities, unions tend to take strike action, despite the ban. Such strikes are declared illegal and, if the union is not strong enough, can lead to reprisals.
Export processing zones (EPZs): The government seeks to keep trade union activity in the country's EPZs to a minimum. Although the right to join trade unions and to bargain collectively exists in law, in reality entry to the zones is restricted to the workers, some of whom are transported in by their employers. Since trade unionists are not able to enter, organising is extremely difficult and union activity rare in the EPZs.
There are moves to exempt the zones from the application of labour laws. Some states, such as Andhra Pradesh, have even dissuaded labour departments from conducting inspections in the zones.
The majority of workers in the EPZs are women, employed in industries such as ready-made garments, electronics and software. In the Santacruz Electronics Export Processing Zone (SEEPZ) near Mumbai, 90 per cent of the workers are women who are generally young and too frightened to form unions. Often working conditions are bad and overtime is compulsory.
Workers fear victimisation by management, and those who protest are immediately sacked. It is common for workers to be employed by fictitious contractors on temporary contracts rather than directly by the company.
Intensive anti-union repression by Unilever: The Anglo-Dutch multinational Unilever has again stood out for its stark anti-union practices in India. On 15 July, the management of the Hindustan Unilever company in the Doom Dooma industrial zone in Assam province brutally locked out 700 members of the union after a dispute concerning a breach of a provision in the collective agreement. The lockout turned into an attempt to break the union, with the management insisting that the workers give up their membership of the Hindustan Lever Workers Union (HLWU) and instead join a yellow union, the Hindustan Unilever Democratic Workers Union (HUDWU) that the company had hastily formed. After that attempt failed, the company hired people to pay visits to the workers in their homes, using vehicles supplied by the management, threatening that the company would shut down if the workers did not join the new yellow union. The company announced the ending of the lockout on 3 September, but when the workers turned up for work at the factory, members of the management and the yellow union were waiting for them, accompanied by security guards, to get them to sign a form stating that they were leaving the HLWU to join the HUDWU. The workers could only enter the factory once they had signed the form.
This was not the first time Unilever had used a lockout to break Indian unions. In 2005-2006, in Mumbai, after a lockout had failed to break the union in another of its factories, Hindustan Unilever had closed the factory under false pretences.
The All India Council of Unilever Unions (AICUU) sent out teams around India to raise awareness amongst staff in the new Unilever factories producing the most popular goods and tell them exactly what had happened in the factory in Mumbai. In all these factories the management reacted aggressively, warning the workers not to speak to the "Mumbai men", calling on the police to interrupt meetings at the factory gates and employing thugs to threaten the workers and prevent the meetings taking place.
The IUF denounced Unilever's abuses to the OECD, as the company had knowingly breached the OECD Guidelines for Multinational Enterprises.
Unjustified legal proceedings against defenders of workers' rights: Investigations in 2005 and 2006 by labour rights organisations based in Bangalore had discovered a pattern of systematic and grave abuses of workers' rights at FFI and JKPL. In response to these abuses, international campaigners led by Clean Clothes Campaign (CCC) and its Netherlands national affiliate (India Committee of the Netherlands, ICN), raised concerns with the European and North American brands involved. FFI then filed a legal petition with the Bangalore Civic Court against the CCC and its partners. This included a gagging order preventing them from circulating information abroad about FFI. In July 2006, the Court issued the restraining order until such time as the FFI's allegations could be heard in court.
In January 2007, the CCC and the ICN received a letter from the FFI's lawyers accusing them of systematic plotting to slander and damage the business, image and reputation of FFI. Accusations and threats were also made against the internet provider of ICN, the company XS4ALL, and Antenna, which houses its website. The CCC also received a letter in January from the Indian Embassy in The Hague asking it to withdraw information about FFI from the ICN website. In May the CCC, ICN, XS4ALL and Antenna were summoned before a judge in Bangalore to answer charges of defamation, cybercrime and acts of a racist and xenophobic nature. The judge then asked the FFI lawyers to begin the formalities for obtaining an international arrest warrant to force seven members of the staff of these organisations to appear before the Indian court.
It was not until January 2008 that a compromise was reached for solving the dispute, through the appointment of an ombudsman in Bangalore to whom the workers, the CCC, ICN or local organisations could send their complaints about working conditions. The workers were also allowed to join the union of their choice. FFI withdrew its legal petition and the CCC and ICN ended their campaign.
24 trade unionists sacked at MRF: In Tamil Nadu, members of the United Workers' Union at MRF Limited, a large tyre company, alleges acts of anti-union discrimination and interference in trade union affairs through the creation of puppet unions, dismissals, suspensions and transfers of trade union activists, arbitrary reduction of wages, physical violence and lodging of false criminal charges against its members. The first anti-union measures took place after the first attempt to form a union in the factory in 1978. No fewer than 24 members of MRF have been sacked in recent years. In 2007, Mr D. Christopher, a member of its executive committee, was dismissed on 25 February and its general secretary, Mr G. Shankar, was dismissed on 4 April. Other trade unionists were suspended in 2006 and 2007, some based on false accusations.
In February 2007, upon learning that the MRF United Workers' Union had lodged a complaint to the ILO Committee on Freedom of Association, the management of MRF Limited informed workers that making a complaint to the ILO was pointless, since it was not a court and its orders were not binding. Furthermore, it declared that the company's financial strength would ensure that the government would provide a favourable report. The management again threatened those workers who continued to support the MRF United Workers' Union with dismissal. Workers were told that those who signed any document in support of the union's complaint to the ILO would be dismissed. Moreover, one of the major shareholders of the company visited the houses of several workers and warned their families that workers would lose their jobs unless they stopped supporting the union.