2007 Annual Survey of violations of trade union rights - India
|Publisher||International Trade Union Confederation|
|Publication Date||9 June 2007|
|Cite as||International Trade Union Confederation, 2007 Annual Survey of violations of trade union rights - India, 9 June 2007, available at: http://www.refworld.org/docid/4c52ca2ac.html [accessed 21 November 2017]|
|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. Workers at two garment factories faced a systematic anti-union campaign, while Unilever closed down a factory to remove the union. A farm worker was killed when police attacked protestors. The government remains committed to a policy of creating greater flexibility in labour law which would be detrimental to workers and their unions.
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. However, the IDA does specifically prohibit employers from retaliating against workers for their participation in a legal strike.
Workers in the banking industry have to give six months' notice before going on strike. The industry has been declared a public utility under the IDA.
Strike bans: The Essential Services Maintenance Act (ESMA) enables the government to ban strikes 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 nonetheless exist for challenging a decision taken under the terms of this Act, if a dispute arises.
The Central Civil Services (Conduct) Rule, 1964, stipulates that no government servant shall resort to, or in any way abet, any form of a 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 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.
Increased threat of "reforms" to gut labour laws: The government has aimed for a number of years to create a more flexible labour market in which employers could hire and fire employees at will, and easily hire workers on contracts. The Ministry of Labour drafted amendments to the labour laws in 2003, and in 2005 developed a policy proposal entitled "Making Labour Markets Flexible" to explain its initiative.
Among the changes proposed were amendments to the Contract Labour (Regulation and Abolition) Act, 1970, which would open up huge swathes of the economy to contract labour arrangements by expanding exclusions to the Act for work of a year-round nature. Among the new sectors that the Ministry proposed to exclude are information technology and support services in establishments at ports and dockyards, airports, railway stations, interstate bus terminals, hospitals, educational and training institutions, and guesthouses and clubs. The Ministry also recommended that export oriented activities, including those in special economic zones, and support services for those zones, should be on the list, which would make contract labour available for these sectors. Another problematic proposal is raising the threshold (from 100 workers to 300 workers) of the size of enterprises that do not need government permission to lay off workers.
The strident opposition of India's trade unions has been critical in forcing the government to re-consider the wisdom of formally introducing the proposed changes to the law and policies. As a result, during 2006 there was no concrete legislative action taken on the government's proposed labour law reform agenda.
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. According to the State government, however, no such instance of objection by the public to the creation of a union had come to its notice.
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 (SEZs) as "public utilities", requiring a 45-day strike notice period. The Mahanagar Asangathit Mazdoor union reported that the government of Delhi State has exempted EPZs from most labour legislation and there is a ban on the formation of trade unions.
Trade union rights in practice
Only a small minority of workers protected: 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 belong to the agricultural and informal sectors where there is almost no union representation, and where it is difficult to enforce legislation. The growing use of contract labour also creates problems for organising, and weakens the unions. Even governments are turning to contract labour. In 2004, the government of the Tamil Nadu state ordered its health department to recruit personnel, other than doctors, on a contract basis through private agencies.
The Tamil Nadu state government also continued to refuse to recognise and bargain with unions of government employees and teachers, and continued to seal off the Tamil Nadu secretariat building, which served as the Tamil Nadu Government Employees' Union headquarters until a 2002 strike.
Hostile employers, poor law enforcement: The 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 costly. Unions report that some employers resort to intimidation, threats, demotion, beatings and, in extreme cases, death threats or even attempted murder against trade unionists. A more popular form of harassment, however, is the filing of false criminal charges.
One problem with such charges, in addition to unfair dismissal, is that the courts are excruciatingly slow. Legal charges brought by a police officer against 12 leaders of a tea workers' union, the Hind Khet Mazoor Panchayat (HKMP) took 13 years to come to court. Three of the accused had passed away in the interim. There was no concrete evidence to support the charges filed, but the legal battle effectively the officers from their union work for all that time.
Globalisation and economic liberalisation have created a climate in which there is further pressure to dilute labour standards, in particular labour inspections and the enforcement of labour legislation. For example, during the year the Haryana State Government created a "State Labour Policy 2006" to reform the way that the State Government enforces labour laws. The State now forbids more than one labour inspection per factory per year.
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.
Collective bargaining: In the absence of a statutory right to collective bargaining, employers are frequently reluctant to negotiate, and in particular, refuse to negotiate with the unions of the workers' choice.
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, who 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.
In May 2006, the government of Maharashtra State introduced a new policy applicable to EPZs in the state that allows industries and/or export oriented units to employ certain categories of services on a perpetual contract basis. The regulation supplants the law that currently prohibits industries from retaining employees under 'temporary' category beyond 240 days (after which such employees can claim the rights of permanent staffers) in the EPZs.
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 Bombay, 90 per cent of the workers are women who are generally young and too frightened to form unions. 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. In the Noida EPZ, workers have been sacked for demanding that labour laws should be implemented.
Associational rights debated for Information Technology workers: New employment sectors such as call centres, the visual media and telecommunications are not covered by any explicit employment regulations and employers obstruct the formation of unions. High levels of casual employment were built into the structure of the call centre/business process outsourcing (BPO) industry, affecting many of the approximately 400,000 of these workers in India, and making it difficult for them to organise.
During 2006, state and national governments, unions and employers held strenuous public and private debates over the right of workers in the IT sector to form unions. The public debate was caused by the decision of the CITU on 14 November to organise the West Bengal IT Staff Association (WBITSA) as a first step towards assisting IT workers to be represented by trade unions. IT employer associates immediately attacked the move as a "retrograde step" that they claimed would damage the international competitiveness of call centres in West Bengal. Buddhadeb Bhattacharjee, the West Bengal Chief Minister was reported to oppose the creation of unions in the IT sector but later he denied holding any such position when he met with a delegation of trade union leaders in late December. A mass strike across all economic sectors called by the CITU for 14 December did not exempt IT workers, and in response, the West Bengal Government declared it would not tolerate workers' pickets outside of the Salt Lake Electronics Complex, the hub of IT offices in the State. As the year ended, the issue was still undecided about whether IT work would be classified by the government as an "essential service" and therefore subject to restrictions on the right to strike.
Violations in 2006
Blocking the union at Fibre & Fabrics International (FFI) and Jeans Knit Pvt. Ltd (JKPL): Investigations in 2005 and 2006 by labour rights organisations based in Bangalore discovered a pattern of systematic and grave abuses of workers' rights at FFI and JKPL. Workers were not allowed to form unions, and were intimidated to prevent them from engaging in any collective activity to stand up for their rights. In clear contravention of the labour law, FFI workers were employed without written contracts. Moreover, credible worker interviews discovered that supervisors consistently intimidated and abused workers with threats of discipline and termination if they complained about wages (such as unpaid overtime), health and safety problems, or other poor working conditions. Supervisors also engaged in physical violence against workers, and, in some cases, sexual harassment.
In response to these abuses, international campaigners led by Clean Clothes Campaign and its Netherlands national affiliate, raised concerns with European and North American brands (G-Star, Ann Taylor, Tommy Hilfiger, GAP, Mexx, Guess, and Armani and RaRe). FFI set up a management-run grievance committee but refused to recognise the workers' rights to freely associate with unions or other groups to seek assistance.
The FFI then filed a legal petition with the Bangalore Civic Court, seeking a restraining "gag" order against the Clean Clothes Campaign and its partners, preventing them from circulating information abroad about FFI's company practices or the labour situation at factory. On 28 July, the Court issued the restraining order until such time as the FFI's allegations could be heard in court. FFI then immediately began a strategy of legal delay, pushing back the beginning of the trial from late August to December. As the year ended, the case was before the Bangalore Civic Court.
One worker dies as protesting farm workers are attacked in West Bengal: On September 25, more than 7,000 agriculture workers were carrying out a peaceful sit-down demonstration in front of a local government office when they were brutally attacked and severely beaten by police. The protest was over the seizure of their lands by the West Bengal Government for industrial use. One youthful protester, Rajkhumar Bul, was beaten to death and another 70 persons were injured by the police action. At the time of writing, no police official had been held accountable for the death. The entire leadership of the village Krishi Jama Raksha (Farmlands Protection Committee) was arrested and hauled off to jail, where they were detained for two days before being granted bail by the Kolkata State High Court. With the support of the International Union of Foodworkers-affiliated Paschim Banga Khet Majoor Samity (PBKMS) agricultural union, a lawyer's organisation filed a legal petition against the police actions on 25 September, and the case was accepted by the Supreme Court.
The West Bengal government organised a massive crack-down on the Singur villagers and their allies starting on November 30. The government issued an emergency ban on all assemblies in the area and sent in military police units to erect fences around the farmlands to be handed over to Tata Group. Protests by agricultural workers in the area were met by volleys of rubber bullets and tear gas, police beatings, and arrests. A solidarity and support delegation sent by the PBKMS was prevented from entering Singur by police, and on 4 December the PBKMS President Anuradha Talwar was arrested along with two other union activists. The PBKMS officials were held for over 48 hours in jail before being released.
Harassment of Self-Employed Workers Association (SEWA) by Gujarat State Government continues: SEWA, a dynamic trade union of 700,000 informal sector workers operating in Ahmedabad and surrounding areas, continued to face difficulties as a result of a campaign of systematic harassment from the conservative BJP-led government of Gujarat state. The problems started when the Gujarat government halted funding from the UN's International Fund for Agricultural Development (IFAD) to SEWA for the support of 14,000 families impacted by a devastating 2001 earthquake. Government allegations that there were "financial irregularities" were belied by the fact that its own auditors had examined SEWA's accounts, and already approved the audits. This brought SEWA to publicly state in October 2005 that the government's campaign seeks "to destroy our credibility, our solidarity, and our reputation." SEWA announced it had no option but to end all cooperation with any Gujarat government agencies. The Gujarat government further retaliated by cutting off all support and funds for a network of SEWA-established cooperatives and day care centres. The Government even went so far as to cut off food aid projects for children. Meanwhile, SEWA publicly disclosed all the organisation's financial accounts and hired an independent CPA to review and audit the accounts. The auditor's report on SEWA received the central Indian government's official approval, providing further evidence of the baseless nature of the Gujarat government's allegations. Despite these actions, the Government of Gujarat refused to acknowledge the auditor's findings, and continued its campaign of harassment of SEWA – thereby indicating the essentially political nature of the Gujarat government's attacks against SEWA.
Unilever continues anti-union tactics, closes factory to get rid of union: Hindustan Unilever Limited (HUL), a subsidiary of the Anglo-Dutch multinational Unilever, sought to rid itself of the IUF-affiliated Hindustan Lever Employees Union (HLEU), a member of the IUF-affiliated All-India Council
of Unilever Unions, by arranging the sale of its Mumbai-based plant to a HUL-created proxy company, Bon Ltd. At the time of the sale, the two principals of Bon Ltd were both full-time employees of HUL, operating under the supervision of M.K. Sharma, the head of HUL, with whom Bon Ltd signed the purchase agreement. More tellingly, Bon Ltd reportedly had a capitalization of only $10,800 and had to borrow over $2 million from HUL to conclude the purchase. The HLEU challenged the sale in the courts. Not surprisingly, Bon Ltd lacked the wherewithal or resources to manage the factory, and on July 26, 2006, announced it was closing down – thereby laying off all 911 HLEU members. HUL explicitly supported the closure in court documents filed by Bon Ltd to seek permission to close the factory.
According to the IUF, this unlawful behaviour is not a new trend for the Mumbai factory management of HUL. In fact, the sale of the factory to a HUL proxy company and its subsequent shuttering are just the final steps in a long anti-union campaign. Management's practice of refusing to bargain in good faith and reach agreements with the union, dating back to 1986, forced the union to repeatedly rely on court intervention to secure wage increases in line with inflation. In December 2005, the Supreme Court of India ended the company's ten year battle in the courts by conclusively deciding that the company had engaged in unfair labour practices under the Industrial Disputes Act. In March 2006, the factory's Vice-Chairman and three other senior managers were cited for contempt of court for failing to obey the court's order to rectify the identified labour abuses – and all four were arrested and then released on bail. In October, the IUF filed a complaint at the OECD, alleging Unilever and its subsidiary HUL had consistently violated the OECD Guidelines for Multinational Enterprises, and at the end of the year, the case was under joint consideration of by the British and Netherlands OECD contact points.
Toyota fires union leaders, locks striking workers: On 6 January, management of the carmaker Toyota Kirloskar Motor Private Ltd (89% owned by Toyota) fired three union leaders of the Toyota Kirloskar Motor Employees' Union, affiliated to the Centre for Indian Trade Unions, for alleged 'disciplinary' reasons. Union members at the factory in Bidadi (on the outskirts of Bangalore) countered that the factory-level leaders had in fact been terminated because of their active role in the union, and 1,550 workers promptly went out on a wild-cat strike to demand reinstatement of their leaders. Management responded with a lock-out of the strikers, starting on 8 January, and suspended another 27 union members. Three separate efforts by government regulators to mediate a resolution to the impasse failed, as management repeatedly refused to meet with the union for joint talks, and insisted that all strikers sign a pledge to "maintain discipline and ensure full production" before allowing them to return to work. Finally, at the prompting of the company, the Karnataka State Labour Secretary issued an order on 21 January, prohibiting the workers' strike from continuing. On the same day, 1,300 striking workers were arrested by police for unlawful assembly as they marched to petition the State Labour Secretary. Most of the workers were released the same day.
Deprived of their right to strike, union members were compelled to return to work on 24 January and to sign a modified written pledge before entering the factory. The dismissal of the three union leaders and suspensions of 27 workers were appealed by the union to the Labour Court.
Mass arrest of CITU protesters in Madras: Factory shut-downs in the Madras EPZ prompted a series of mass protests by unions affiliated with the Centre for Indian Trade Unions (CITU), demanding that employers pay outstanding wage demands for laid-off workers. On 21 March, police attacked a rally near the entrance to the EPZ, and arrested over 300 union members on charges of illegal assembly.