2009 Annual Survey of violations of trade union rights - India
|Publisher||International Trade Union Confederation|
|Publication Date||11 June 2009|
|Cite as||International Trade Union Confederation, 2009 Annual Survey of violations of trade union rights - India, 11 June 2009, available at: http://www.refworld.org/docid/4c52cae637.html [accessed 28 October 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. Unilever and Maersk again stood out for their 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 committee 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 Tamil Nadu state, whose government had dismissed 350,000 striking employees. In December 2003, the Supreme 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 closedown 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 2008
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 is also creating problems for organising workers.
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 also that some employers resort to intimidation, threats, demotion, beatings and, in extreme cases, death threats or even attempted murder against trade unionists. Intimidations took place in particular in 2008 in Hyderabad and in 2007 in Bangalore, when store managers from the Metro Cash and Carry chain pressured their employees to quit their trade union, UNICOME.
Dismissals of trade unionists: On 2 April, five members of the Delhi State Electricity Workers' Union (DSEWU) were dismissed for supposedly "shouting slogans" criticising the management of their employer the Indraprastha Power Generation Company Ltd (IPGCL). Employees' protests followed the failure by IPGCL management and Delhi Transco Ltd to respect a tripartite agreement requiring consultation and negotiation with the trade union, despite a court decision upholding the validity of this agreement. The dismissed workers are Somi Chetterji, Krishan Chakroborty, Amarjeet, Rama Kant and N.C. Joshi.
The ITGLWF also reports that in April it contacted the company KMD Apparels in Bangalore to protest against the dismissal of two unionised workers. When workers began to organise, management repressed all trade union activities.
Maersk continues to tolerate violence against trade unions: In January 2008, SC Thakur (which transports containers for Global Terminals India (GTI), a subsidiary of the multinational Maersk, in the port of Mumbai) created a yellow trade union, Navi Mumbai General Kamgar Sanghatana Union. Various intimidation measures were also used to force workers to join. One driver, Sunil Kumar, was even attacked and had to be hospitalised. Despite several attempts at conciliation, in particular by the ITF, no lasting solution has been found until now, among other things because GTI is lobbying in favour of the yellow union, which has been unable to prove it has the number of members it says. SC Thakur had already been mentioned in the 2008 Annual Survey for violence against trade union militants.
Unilever continues fight against independent trade unions: Unilever management at Hindustan Unilever at the Doom Dooma industrial estate in the province of Assam, already mentioned in the 2008 Annual Survey, has continued its pressure on the HLWU trade union in 2008. The IUF also reports that, on 6 February, the heads of the puppet trade union HUSS attempted, on false pretences, to get workers to sign up to negotiating a new long-term agreement, as the present agreement (negotiated by HLWU) expired on 1 April (this would establish HUSS as the sole negotiating agent). Given the doubts and refusal of certain workers, Hindustan Unilever management threatened to close the factory! The IUF informed the OECD's National Contact Point for the UK in charge of monitoring compliance with the OECD Guidelines for Multinational Enterprises (which prohibit company managements from threatening product transfers in the context of a labour conflict).
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 "muqaddam", a kind of foreman responsible for hiring and supervising the workers, sides more with the ship-breaker than with the workers.
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.
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.