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CHAPTER – 4
FREEDOM OF ASSOCIATION AND TRADE UNIONS
Kahn Fruend
1 expressed that freedom of organization involves two
aspects (1) absence of restraints and (2) presence of positive guarantees.
Absence of restraints means the state shall not impose any restrictions.
Previously there was an Act called Combinations Prohibition Act 1799,
which prohibited any organization of workers and there was no right to
form associations. With regard to second aspect, the presence of positive
guarantees mean that the state as well as employer should provide suitable
atmosphere to unions to grow in a healthy manner to work for the welfare
of the workers. In Britain after a long struggle workers achieved the right
to form organization.
It is only in the year 1824 the Britain government parliament the
workers to form organizations. But there were no civil immunity or
criminal immunity. There were several criminal cases lodged against
members of the trade unions. Huge damages have been claimed by
employers against unions as tortuous liability. The Trade Dispute Act,
1906 in England, was passed as a direct result of the case known as
Taffvale case2, where, 20,000 pounds were claimed against Amalgamated
Railway Servant’s Organization for the damages sustained by Employer
during the strike period.
After acquiring the right of forming union it needs support of the
government as well as employer. Presence of positive guarantees
presupposes not only providing civil and criminal immunities to the trade
unions but also providing certain encouragements such as recognition of union,
providing office within the premises of employer etc. We can conclude the
absence of restraints like giving birth to a child and presence of positive
1 Kahn Fruend, Labour and the Law, Stevens and sons, London (1983)
2 Tafvale Railways Vs. Amalgamated society of Railway Servants (1901) AC 426.
111
guarantees like providing suitable atmosphere to the child for its growth
and development. In Britain the growth of the trade unions is developed to
such an extent that they could form a political party and also the
government.
4.1 Freedom of Association and Constitution of India
Article 19(1)(c) of the Constitution of India guarantees to all its
citizens the right “to form associations and unions” Under clause (4) of
Article 19, the state may by law impose reasonable restrictions on this right
in the interest of public order or morality or the sovereignty and integrity of
India. The right to form associations or unions has a very wide and varied
scope including all sorts of associations viz., political parties, clubs,
societies, companies, organizations, entrepreneurships, trade unions etc. It
was held in Kulkarni’s3 case that the right of association pre-supposes
organization. It as an organization or permanent relationship between its
members in matters of common concern. It thus includes the right to form
companies, societies, partnership, and trade union.
The right to form trade unions should not lead to the conclusion that
trade unions have a guaranteed right to an effective collective bargaining or
to strike as a part of collective bargaining or otherwise. The right to strike
or to declare a lock-out may be controlled or restricted by various industrial
legislations such as Industrial Dispute Act or Trade Unions Act.
a) Right to form association does not carry the right to recognition
In Raja Kulkarni Vs State of Bombay4 the Supreme Court held that
the unions are classified as representative unions and qualified unions
3 Raja Kulkarni Vs State of Bombay (1954) SC 73
4 Ibid.
112
under the Bombay Industrial Relations Act, 1946 is according to the
percentage of membership. Giving the right to unions with membership of
15% alone to represent workers was a reasonable classification and there
was no infringement of the fundamental right of the workers to freedom of
speech and expression and to form association or unions under Article
19(a) and (c) of the Constitution.
In All-India Bank Employees Association v. National Industrial
Tribunal (Bank Disputes), Bombay5; Supreme Court of India again had
occasion to consider content and scope of the right, guaranteed under
Article 19(1)(c) of the Constitution. It was held that even a very liberal
interpretation of the said constitutional provision cannot lead to the
conclusion that the fundamental right to form unions carries with it a
concomitant guarantee that the trade unions so formed shall be enabled to
carry, effective collective bargaining or shall achieve the purpose for which
they were brought into existence. The court held:
“In our opinion, the right guaranteed under sub-clause (c) of clause
(1) of Article 19 extends to the formation of an association and insofar as
the activities of the association are concerned or as regards the steps which
the union might take to achieve the purpose of its creation, they are subject
to such laws as might be framed and the validity of such laws is to be
tested by reference to the criteria to be found in clause (4) of Article 19 of
the Constitution6”.
In Raghubar Dayal Jai Prakash v. Union of India7", wherein the S.C
had to deal with a challenge raised against Section 6 of the Forward
5 AIR 1962 SC 17
6 Ibid.
7 AIR 1950 SC 263
113
Contracts (Regulation) Act, 1952 on the ground of alleged violation. of
Article. 19(1)(c) of the Constitution. Upholding the validity of the Section
the Supreme Court held that the freedom of association guaranteed by
Article 19(1)(c) did not carry with it a guaranteed right to recognition of
the association.
The legal position being thus well-settled that Article 19(1)(c) does
not confer on a trade union a right to claim the grant of recognition by the
employer, it is not possible to accept the petitioner's contention that the
denial of recognition to it by the Board constitutes a violation of the
petitioner's fundamental right under the said article of the Constitution.
There being no other statutory provision in force in this State which
confers on every trade union, irrespective of the state of its membership, a
right to be recognised by the employer, or imposes a corresponding
obligation on the employer to grant such recognition to all trade unions, it
must be held that the petitioner-union has no legal or enforceable right for
the grant of recognition to it by the Board.
Withdrawal of recognition of a trade union to represent workmen in
certain categories, consequent upon recognition of another union, which
had a membership of the majority of such workmen, as their sole
bargaining agent does not violate Article 19(1)(c)8.
b) Right to form association does not carry the right to strike
In T.K.Rangarajan Vs State of Tamil Nadu, (AIR 2003 SC 3032)
the Supreme Court delivering its final verdict on August 6, 2003 made it
amply clear that “Government employees have no fundamental, legal,
moral or equitable right to go on strike”, thus holding the state machinery
and citizens to ransom. 8 A.C.Mukherjee Vs Union of India, (1972) Lab IC 929: (1972) 2 LLJ 297 (Cal) (DB)
114
Although the Tamil Nadu Government had initially dismissed
1,70,241 employees, the government in response to the wishes of the
Supreme Court agreed to take back those employees who had not resorted
to violence on ‘compassionate grounds’, yet still 6,072 employees remain
dismissed. The Supreme Court had recommended the establishment an
effective redressal machinery to take care of the grievances and demands
of employees.
c) Right to form association does not carry the right to inform rival
union
In K.R.W Union Vs. Registrar, it was held that an order under
Section 8 of the Trade Unions Act, 1926 without informing to the existing
rival union was not violative of Art 19(1)(c). The right to be recognized by
government or the right to represent workmen was not absolute. Article
19(1)(c) did not confer on any individual or association the right to carry
on trade union activities free of competition from rivals, therefore state
action which introduced new competitors could not be challenged as
contravening Article 19(1)(c). Since an order of the Registrar under
Section 8 granting recognition to a rival union did not place any restrictions
on the fundamental rights of the existing union, that union had no locus
standi to file a writ petition under Article 226”9.
d) The right not to join an association is not a fundamental right
In Tika Ramji Vs U.P10
the contention of the petitioner was that
right to form an association implied the right not to form or join it, he
further contented that both rights were one integral right guaranteed by
Article 19(1)(c). The facts of the above case are under provisions of the
U.P. Sugarcane (Regulation of Supply and Purchase) Act, 1953, two
9 H.M.Seervai, Constitutional Law of India, Vol.I (2007) Universal Publications, p.805.
10 Tika Ramji Vs U.P (1956) SCR 393
115
notifications issued by the U.P. Government were impuned, inter alia, as
violating Article 19(1)(c). The petitioner urged that the provision relating
to the supply of sugarcane by a co-operative society to factories
manufacturing sugar would in substance compel him to join such a society,
thus violating his fundamental right under Article 19(1)(c) not to form, or
join, an association. Bhagwati J held that assuming that the right to form an
association implies a right not to form an association, it does not follow
that the negative right must also be regarded as a fundamental right. The
citizens of India have many rights which have not been given the sanctity
of fundamental rights and there is nothing absurd or uncommon if the
positive right alone is made a fundamental right. The whole fallacy in the
argument urged on behalf of the petitioners lies in this that it ignores that
there is no compulsion at all on any cane grower to become a member of
the cane growers co-operative society11
.
Here the author H.M.Seeravai submits that the observations of
Bhagwati. J that the negative right was not a fundamental right are not
correct. Besides the contention the petitioner urged that he was compelled
to join in cane growers co-operative society failing which he could not
supply sugarcane to factories, was rejected by saying that he was not
compelled.
In All-India Bank Employees Association Vs. National Industries
Tribunal12
, the Supreme Court held that freedom to form unions does not
carry with it the concomitant right that such unions should be able to
achieve the objects for which they were formed. The contention of the
appellants was that section 34-A of the Banking Companies Act, 1949
contravened the fundamental right guaranteed to trade unions by Article
11
H.M.Seervai, Constitutional Law of India, Volume 1, Universal Law Pub (2007) p.806. 12
All-India Bank employees association Vs. National Industries Tribunal AIR 1962 SC 171
116
19(1)(c) as it prevented them from effectively exercising the right of
collective bargaining in respect of wages, bonus etc. Before industrial
tribunals by shutting out important and relevant evidence, Section 34-A
provided that no banking company shall be compelled to produce or give
its books of account or other documents for inspection or furnish or
disclose any statement or information which the company claims to be of
confidential nature. If a dispute was pending and a question was raised
whether any amount from the reserves or other provisions should be taken
into account by a tribunal, the tribunal could refer the matter to the (RBI)
Reserve Bank of India whose certificate as to the amount which could be
taken into account, was made final and conclusive.
The Supreme Court held that 34-A was constitutionally valid and
did not offend either Article 19(1)(c) or Article 14 of the Constitution. It
was held that Article 19(1)(c) should not be read literally and that the right
to form unions carried with it the guarantee of their effective functioning.
4.2 Freedom of association and government employees
In O.K Ghosh Vs E.X.Joseph13
the respondent, a government
servant was the secretary of the civil accounts association. The appellant
was the accountant general of Maharashtra. A memo was served on the
respondent intimating him that it was proposed to hold an enquiry against
him for having deliberately contravened the provisions of Rule 4-A of the
Central Civil Services (Conduct) Rules 1955 in so far as he participated
actively in various demonstrations organized in connection with the strike
of the central government employees and had taken active part in the
preparations made for the strike. The respondent filed a writ petition in the
High Court of Bombay with a prayer that a writ of certiorari be issued to
quash the charge sheet issued against him. He also prayed for a writ of 13
O.K Ghosh Vs E.X.Joseph AIR 1963 SC 812
117
prohibition against the appellant prohibiting him from proceeding further
with the departmental proceedings against him. The respondent Joseph also
contended that Rules 4-A and 4-B were invalid as they contravened the
fundamental right guaranteed to him under 19(1)(a)(b)(c) and (g). The
High Court held that Rule 4-A was wholly valid but Rule 4-B was invalid.
Rule 4-A provided that no government servant shall participate in any
demonstration or resort to any form of strike in connection with any matter
pertaining to his conditions of service. Rule B provided that no government
servant shall join or continue to be a member of any service association
which the government did not recognize or in respect of which the
recognition had been refused or withdrawn by it. As both parties were not
satisfied with the judgement given in the High court they preferred appeal
to the Supreme Court.
The Supreme Court held that Rule 4-A in so far as it prohibited the
demonstration of employees was violative of fundamental rights
guaranteed by Article 19(1) a and (b), that the High Court was wrong in its
conclusion. The Supreme Court further held that participation in
demonstration organized for a strike and taking active part in preparations
for it cannot mean participation in the strike. The respondent could not be
said to have taken part in the strike and the proceedings against him under
Rule 4-A were invalid. The Supreme Court also held that Rule 4-B
imposed restrictions on the undoubted right of the government servants
under Article 19 which were neither reasonable in the interest of public
order under Article 19(4) in granting or withdrawing recognition, the
government might be actuated by considerations other than those of
efficiency or discipline amongst the services or public order. The
restrictions imposed by Rule 4-B infringed Article 19(1)(c) and must be
held to be invalid.
118
In P.Balakotaiah Vs Union of India14
raised the question whether
Rules 3 and 7, Railway Service (Safeguarding of National Security) Rules,
1949 violated Article 19(1)(c). The appellants contended that their services
were terminated because they were communists and trade unionists and
consequently the orders terminating their services under Rule 3 amounted
in substance to denial to them of the freedom to form associations. The
appellants were informed that they had carried on agitation among the
Railway workers for a general strike with a view to paralyse
communications and the movement of essential supplies and thereby create
disorder and confusion in the country. As their services were terminated
the appellant’s fist moved the High Court under Article 226 of the
Constitution. Their contention was that Railway Services (Safeguarding
National Security) Rules, 1949 contravened Articles 14, 19(1)(c) and 311
of the Constitution and as such the orders terminating their services were
void.
Their petitions were dismissed by the High Court. Their appeals
were also dismissed by the Supreme Court which held that the charge
shows that action was taken against the appellants not because they were
communists or trade unionists but because they were engaged in subversive
activities. The orders terminating their services did not contravene Article
19(1)(c) as they did not infringe any of the rights of the appellants
guaranteed by that Article which remained precisely what they were
before. The appellants had a fundamental right to form association but they
had no fundamental right to be continued in Government service. The order
did not prevent from continuing to be in the Communist Party or being
trade unionists.
14
P.Balakotaiah Vs Union AIR 1958, SC 232
119
4.3 Right of Association and Armed Forces
In O.K.A. Nair v. Union of India15
an important question arose
whether "civilian" employees. designated as non-combatants such as
cooks, chowkidars, laskers, barbers, mechanics, boot-makers, tailors, etc.,
attached to the Defence Establishments have a right to form associations or
unions. The appellants were members of the civil employees unions in the
various centres of the Defence Establishment. The Commandant declared
their unions as unlawful associations. They challenged that the impugned
action was violative of their fundamental right to form associations or
unions under Article 19(1)(c) of the Constitution. They contended that the
members of the unions, though attached to the Defence Establishments
were civilians and their service conditions were regulated by Civil Service
Rules and therefore they could not be called "members of the Armed
Forces" within the meaning of Article 33 of the Constitution. The Supreme
Court rejected the plea of appellants and held that the civilian employees of
the Defence Establishments answer the description of the members of the
Armed Forces within the meaning of Article 33 and therefore, were not
entitled to form trade unions. It is their duty to follow or accompany the
Armed Personnel on active service or in camp or on march. Although they
are non-combatants and in some matters governed by the Civil Service
Rules, yet they are integral to Armed Forces. Consequently, under Army
Act the Central Government was competent to make rules restricting or
curtailing their fundamental right under Article 19(1)(c).
In Delhi Police Non-Gazetted Karmchari Sangh vs Union of India16
,
the validity of a statutory rule which empowered the Government to revoke
the recognition granted to the appellants Delhi Police Non-Gazetted
Karmchari Sangh to form association was challenged on the ground that it
15
AIR 1976 SC 1179 16
(1987) 1 SCC 115
120
was violative of Article 19(1)(c) of the Constitution. It was argued that
recognition once granted to the Sangh could not subsequently be revoked.
Recognition carried with it the right to continue the association as such. To
derecognise the association offends against the freedom of association. The
Supreme Court, however, held the statutory rules regarding recognition and
revocation of association were not violative of Article 19(1)(c) and they
impose reasonable restriction on the right to form association under
Articles 33 and 19(4) as the Sangh and its members come within the ambit
of Article 33 and thus they stand on a different footing. It was held that the
right to form association is fundamental right but recognition 'of
association is not a fundamental right and Parliament can therefore, by law
impose restrictions on such right.
4.4 Restrictions on the Freedom of Association
The right of association like other individual freedom is not
unrestricted. Clause (4) of Article 19 empowers the State to impose
reasonable restrictions on the right of freedom of association and union in
the interest of "public order" or "morality" or "sovereignty or integrity" of
India. It saves existing laws in so far as they are not inconsistent with
fundamental right of association.
The Criminal Law (Amendment) Act, 1908, as amended by the
Madras Act, 1950, provides that if the State Government is of opinion that
any association interferes with the administration of law or with the
maintenance of law and order or that it constitutes a danger to the public
peace it may, by notification in the Official Gazette declare such
association to be unlawful. Such a notification was to be placed before an
Advisory Board. Representation against such a notification could be made.
If the Advisory Board was of opinion that the association was not unlawful
the Government was to cancel the notification.
121
The validity of the above Act was challenged in the case of State of
Madras v. V.G. Rao17
, The Supreme Court held that the restrictions
imposed by Section 16(2)(b) of the Act were unreasonable, The test under
it was subjective satisfaction of the Government and the factual existence
of the grounds was not a justiciable issue. Therefore, the vesting of power
in the Government to impose restriction on this right, without allowing the
grounds tested in a judicial enquiry, was a strong element to be taken into
consideration in judging the reasonableness of the restrictions on the right
to form association or union. The existence of an Advisory Board could not
be a substitute for judicial inquiry.
But a Government order requiring municipal teachers not to join
unions other than those officially approved was held to impose prior
restraint on the right to form association and union, which was in the nature
of administrative censorship, and hence invalid18
.
4.5 Freedom of Association and ILO
Workers' organizations had been demanding recognition of freedom
of association well before the establishment of the ILO. As an integral part
of basic human rights and as a cornerstone of the provisions intended to
ensure the defence of workers’ freedom of association is particularly
important for the ILO in view of the latter's tripartite structure. It is also of
undoubted interest to employers' organizations, which now make greater
use of the procedures which have been established for the purpose of
ensuring its application. The ILO could therefore not fail to include this
principle in its Constitution of 1919 as one of the objectives of its
programme of action. The Preamble to Part XIII" of the Treaty of
17
AIR (1952) SC 196 18
Rama Krishna Vs President, District Board, Nellore, AIR (1952) Mad 253
122
Versailles mentioned "recognition of the principle of freedom of
association" among the objectives to be promoted by the ILO, and the
general principles set forth in Article 427 of the Treaty contained a
provision concerning "the right of association for all lawful purposes by the
employed as well as by the employers19
".
Freedom of association having thus been proclaimed from the outset
as one of the fundamental principles of the Organization, the need was
rapidly felt to adopt provisions aimed at defining this general concept more
precisely and to set forth its essential elements in a formal ILO instrument
in order that its general application could effectively be promoted and
supervised. An initial attempt to do this failed in 192720
.
In 1944, the Constitution of the ILO was supplemented by the
inclusion of the Declaration of Philadelphia, which reaffirmed “the
fundamental principles on which the Organization is based and, in
particular, that freedom of expression and of association is essential to
sustained progress".
Special procedures for the protection of freedom of association were
envisaged during the discussion of Conventions Nos. 87 and 98 by the
International Labour Conference. The fact-finding and conciliation
commission on freedom of association was set up in 1950, followed by the
committee on freedom of association in 1951.
Established in 1961 as a tripartite body comprising nine members of
the Governing Body, and chaired since 1978 by an independent
personality, the Committee on Freedom of Association examines
19
Freedom of Association and Collective bargaining, ILO Pub. Geneva (1994) p.2. 20
The placing of this item on the agenda of the 1928 Session of the International Labour Conference was rejected, in particular by the workers group, mainly because of questions relating to the right not to organize and to the legal formalities to be observed by organizations.
123
complaints containing allegations of violations of the Conventions on
freedom of association, regardless of whether or not the countries
concerned have ratified those instruments.
The committee meets three times a year and has, since its
establishment, examined nearly 1,800 cases, which are often of a very
serious nature. In so doing, it has established a series of principles.
The declaration of Philadelphia, adopted in 1944 by the
International Labour Conference and incorporated in 1946 in the ILO
Constitution, officially acknowledged the relationship between civil
liberties and trade union rights by proclaiming in article 1(b) that freedom
of expression and of association are essential to sustained progress and
referring in article II(a) to the fundamental rights which are an inseparable
part of human dignity. Since then, this relationship has been repeatedly
affirmed and highlighted, both by the ILO’s supervisory bodies and in the
conventions, recommendations and resolutions adopted by the International
Labour Conference.
The information available, in particular on the nature of the
complaints submitted to the Committee on Freedom of Association, shows
that the main difficulties encountered by trade union organizations and
their leaders and members relate to basic rights, in particular to the right to
security of the person, freedom of assembly, freedom of opinion and
expression, as well as the right to protection of trade union property and
premises.
In its examination of such complaints, the committee on freedom of
association had stated that a climate of violence in which the murder and
disappearance of trade union leaders go unpunished constitutes a serious
124
obstacle to the exercise of trade union rights and that such acts require that
severe measures be taken by the authorities21
.
The arrest and detention, even for short periods, of trade union
leaders and members engaged in their legitimate trade union activities,
without any charges being brought and without a warrant, constitute a
grave violation of the principles of freedom of association22
.
Participation by trade unionists in international trade union meetings
is also a fundamental trade union right; governments should refrain from
any measure, such as withholding travel documents, which prevent
representatives of occupational organizations from exercising their
mandate in full freedom and independence23
.
The right to organize public meetings, including May Day
processions or demonstrations in support of social and economic demands,
constitutes an important aspect of trade union rights24
. The prohibition of
demonstrations or processions on public streets, in particular in the busiest
parts of a city, when it is feared that disturbance might occur, does not
necessarily constitute an infringement of trade union rights25
. But the
authorities should strive to reach agreement with organizers of the meeting
to enable it to be held in some other place where there would be no fear of
disturbances26
. While reasonable restrictions are acceptable, they should
not result in breaches of fundamental civil liberties.
21
Digest, para. 76. CFA, 281st
Report, Case No. 1273 (El Salvador), para. 279; 283rd
Report. Case No. 1538 (Honduras), para. 254. 22
Digest, paras. 87-89. CFA, 279th
Report, Case No. 1556 (Iraq) para.61; 281st
Report Case No. 1593 (Central African Republic). Para 262. 23
283rd
Report, Case No. 1590 (Lesotho), para. 346. 24
Digest, paras, 154-156. CFA, 283rd
Report, Case No.1590 (Lesotho), para. 349. 25
Digest para. 163 26
Digest para. 164. CFA, 280th
Report, Case No.997, 999 and 1029 (Turkey), para.34.
125
The committee considers that the guarantees set out in the
international labour conventions, in particular those relating to freedom of
associations, can only be effective if the civil and political rights enshrined
in the Universal Declaration of Human Rights and other international
instruments, notably the International Covenant on Civil and Political
Rights, are genuinely recognized and protected.
During the preparatory work on Convention No.87, it was
emphasized that freedom of association was to be guaranteed not only to
employees and workers in private industry, but also to public employees
and workers in public industry.
It has been considered that it would be inequitable to draw any
distinction, as regards freedom of association, between wage earners in
private industry and officials in the public services, since persons in either
category should be permitted to defend their interests by becoming
organized… However, the recognition of the right of association of public
servants in no way prejudges the question of the right of such officials to
strike27
. The committee has always considered that the exclusion of public
servants from this fundamental rights is contrary to the Convention.
Given the very broad wording of Article 2 of Convention No.87, all
public servants and officials should have the right to establish occupational
organizations, irrespective of whether they are engaged in the state
administration at the central, regional or local level, or officials of bodies
which provide important public services are employed in state owned
economic undertakings. In some countries the legislation itself draws
distinctions as to the status and the rights of the various categories of
27
ILO, 30th
Session, 1947, Report VII Freedom of association and industrial relations p.109.
126
public servants. The committee considers that all workers in this category
are covered by the convention, whatever the term used.
In a number of countries, the legislation explicitly or indirectly
denies public servants the right to organize into trade unions. In some
countries the legislation although recognizing in principle the right of
public servants to organize, may deny this right to certain categories of
public servants or subject them to particular restrictions on account of their
level of responsibility (senior officials) or the nature of their functions,
where these are perceived as being incompatible with the right to organize
(for instance fire service personnel and prison staff).
The only exceptions authorized by Convention No.87 are the
members of the police and armed forces (Article 9), such exceptions being
justified on the basis of their responsibility for the external and internal
security of the state. Most countries deny the armed forces the right to
organize, although in some cases they may have the right to group together
with or without certain restrictions, to defend their occupational interests.
Although Article 9 of Convention No.87 is quite explicit, it is not
always easy in practice to determine whether workers belonging to the
military installations or in the service of the army and who should, as such
have the right to form trade unions. In view of the committee, since Article
9 of the Convention provides only for exceptions to the general principle,
workers should be considered as civilians in case of doubt.
4.6 Definition of Trade Union
A trade union for an average man signifies an association of
workers which is engaged in securing certain economic benefits for its
members and a trade union is commonly regarded as an association to help
127
its members in getting collectively better terms of employment, wages etc.
The statutory definition of trade union, however permits even employers’
organizations to get themselves registered as a trade union.
According to chambers “Encyclopedia” “A trade union is an
association of wage earners or salary earners, formed primarily for the
purpose of collective action for the forwarding or defence of its
professional interests”
Sidney and Beatrice Webbs have defined a trade union:
“A continuous association of wage earners for the purpose of maintaining
or improving the conditions of their working lives”. Webb’s definition of
trade union does not include the association of employers and of white
collar employees which are generally regarded by English and Indian law
as trade unions. But in the popular sense of the term the definition of trade
union given by Webbs is still valid.
Trade unions, as generally, understood, are combinations of
workmen of some trade or of several allied trades for the purpose of
securing by united action, the most favourable conditions as regards wages,
hour’s of labour etc. for its members. The essence of trade union is found
in the solidarity among its rank and file as a security against the right of
hire and fire of the employee28
.
According to V.V.Giri the trade unions are voluntary organizations
of workers formed to promote and protect their interest by collective
action. Once the workers join trade union, they must be welded together in
a united front for the good of the whole group rather than for promotion of
any selfish individual motive or interest. In fact strength lies in the unity it 28
Dr.V.G.Goswami, Labour Industrial Laws, Central Law Agency (2008) pp.205.
128
functions effectively on the solemn belief that “united we stand divided we
fall”.
One can understand that trade union as commonly understood is a
voluntary organization of workers constituted for promoting, advancing
and protecting their interests by means of united action formed with a view
to secure maximum benefits, rights, privileges and welfare of the working
class.
G.D.H.Cole went further and said that the objects of trade unions
are ultimate control of industry.
In the Soviet Union, trade union was defined as “association of
producers, in which citizens employed for remuneration in state,
cooperative and private undertakings, institutions and business are
organized. The union acts for its members in all negotiations with the
various state institutions and represents them at a conclusion of agreements
and contracts and in all discussions of questions relating to labour and
social welfare29
. To Karl Marx in Germany, a trade union was first and
foremost an “organizing centre. It provides focus for collecting the forces
of working classes. The trade unions developed out of spontaneous
attempts of the workers to do away with this competition, or at least to
restrict it for the purpose of obtaining at least such contractual conditions
as would raise them above the status of bare slaves”. Lenin characterized a
trade union as “an educational organization, a school of administration, a
school of economic management and a school of communism”30
.
29
Soviet Labour Code. Article (5) 30
S.N.Mehratra, Labour problem in India, S.Chand Pub. (1964) pp.226
129
4.7 Statutory definition of trade union
The statutory definition of the term ‘trade union’ in India is
borrowed from the British Trade Union Acts of 1871, 1875 and 1913.
According to section 2(h) of the Indian Trade Unions Act 1926,
trade union means any combination whether temporary or permanent,
formed primarily for the purpose of regulating the relations between
workmen and employers or between workmen and workmen or between
employers and employers or for imposing restrictive conditions on the
conduct of any trade or business and includes any federation of two or
more trade unions. Provided this Act shall not affect
(i) Any agreement between partners as to their own business
(ii) Any agreement between an employer and those employed by him as
to such employment
(iii) Any agreement in consideration of the sale of the goodwill of a
business for instruction in any profession, trade or handicraft.
The analysis of the definition of the trade union clearly shows that
the purpose of trade union is to maintain balance, harmony in the relations
of the persons involved in industrial activity such as process and
production. The purpose of the trade union is not only to secure harmony
between employers and workmen but also it is intended to improve
peaceful relations between employers and employees.
The definition indicates that it is an association of workmen or
employers based on mutual confidence, understanding and co-operation for
safeguarding common interests. It need not be permanent combination, it
can be formed for a shorter period.
130
The definition further indicates that the trade union is formed
primarily for the following two purposes.
Firstly for regulating the relations between
(a) workmen and employers, or
(b) workmen and workmen, or
(c) employers and employers.
Secondly, for imposing restrictive conditions on the conduct of any
trade or business of its members.
The word ‘impose’ connotes an agreement and not compulsion31
.
Restrictive conditions would mean to enter into a contract restricting the
manner in which one can earn a living. Any regulation of relations in
employment would amount to imposing restrictive conditions. However, it
is to be treated separately from restrictive conditions on the conduct of
trade or business32
.
The Act confers civil and criminal immunities to the workers under
sections 17, 18 of Trade Unions Act. No employer can sue for damages on
the basis of conspiracy on the part of a trade union, even though damage is
caused, provided the means adopted are not unlawful. The law relating to
civil conspiracy will have no application and it will not be necessary to
prove that their acts are justified in the same manner. It was perfectly legal
for the employer to seek a monopoly and to employ such tactics as boycott
or black list etc. but the same were branded as unlawful if they were
adopted by union. After a protected struggle the interests of trade unions
have today been placed on par with those employers in trade. The courts
31
Britley and Distt. Cooperative Society Ltd., Vs Windy Nook and Distt. Co-operative Society Ltd., (1959) All ER 43 and 623. 32
K.D.Srivastava, Law relating to Trade Unions and unfair labour practices in India, Eastern Pub. Lucknow. pp.215
131
are no more required to investigate if the trade dispute exists or is
apprehended that the acts were done in furtherance of their purpose or to
injure the other party.
The use of the word ‘primarily’ in the Trade Unions Act suggests
that trade union can have secondary objectives as well. A trade union may
provide for other objectives also and it cannot be refused registration
simply on this ground. But the secondary objectives should not be
inconsistent with the primary objects. These ancillary objects must not be
opposed to any law or opposed to public policy.
We can distinguish three classes of objectives which a trade union
can have. The first may be classified as purely economic objectives i.e.,
those which relate to questions concerning wages, hours of work, working
and living conditions. The second one viz. benefit purpose, which includes
dispensation of various benefits like sickness and unemployment. The third
group consists of social and political objectives33
.
The words ‘trade or business’ are not defined in the Trade Unions
Act. However these words can have a wide variety of meaning, indeed
trade is not only in the etymological or dictionary sense, but as legal usage,
a term of widest scope. It is connected originally with the word trade and
indicates a way of life or an occupation. Persons belonging to a number of
trades or to no trade at all may constitute a trade union whose members
may not be members of any one trade. There may be trade union which is
composed neither of workmen nor masters although it may be a
combination to regulate the relations between workmen and workmen or
workmen and employers or employers and employers. What matters is the
33
Dr.V.G.Goswami, Labour Industrial Laws, Central Law Pub. Alahabad, (2008) p.206.
132
object of the union and not its composition. A union may consist of both
workmen and employers.
In ordinary usage it may mean the occupation of small keeper
equally with that of a commercial magnate. Trade includes generally
speaking, any gainful occupation. Any one from a dustman to highly
skilled professional worker may enter into contract in restraint of trade
restricting the manner in which he can earn a living.
However wide the term ‘trade’ might be, the Supreme Court
approved the dictum that those activities of the government which should
be properly described as legal or sovereign activities are outside the scope
of industry34
.
In the same manner when Madras Raj Bhavan Workers Union
applied for registration under Trade Unions Act the Registrar rejected on
the ground that the members were not connected with a trade or industry or
business of the employer.
With regard to word ‘workmen’ it has not been independently
defined in the Trade Unions Act. But in the definition of the term “trade
dispute” in section 2(g) the definition of the ‘workmen’ is found which
runs.
All persons employed in any trade or industry, whether or not in the
employment of the employer with whom the trade disputes arise.
Another term ‘employer’ also was not defined in Trade Union Act
1926, However section 2(g) of the Industrial Disputes Act, 1947 defines an
‘employer’ to mean (i) in relation to an industry carried on by or under the
34
State of Bombay Vs Hospital Mazdoor Sabha (1960) ILLJ 251 SC
133
authority of any department of the central government or a state
government the authority prescribed in this behalf or where no authority is
prescribed the head of the department (ii) in relation to an industry carried
on by or on behalf of a local authority, the Chief Executive Officer of that
authority.
4.8 The Trade Unions Amendment Act, 2001
The Trade Union Act was amended in 2001 with a view to reducing
multiplicity of the trade unions promoting internal democracy and facilitate
in the ordinary growth and regulation of trade unions. In the principle act
under section 4 it is provided any seven members are needed for making
application for registration. Whereas under amendment act 2001, that the
seven persons applying for registration must be workmen engaged or
employed in the establishment or an industry.
Another change that has brought by the amendment act is that no
trade union shall be registered unless at least 10 per cent, or one hundred
whichever is less, of workmen engaged or employed in establishment or
industry with which it is connected are on the date of filing application for
registration and the members of such union must have minimum strength
of seven members.
With regard to subscription of membership previously it was not
less than 25 paise per month per member. Now a new clause (f) in section
6 is inserted which classified the workers into three classes for the payment
of subscription. The subscription rates are as follows
(i) not less than one rupee per annum for rural workers,
(ii) not less than three rupees per annum for workers in the un-
organized sector,
(iii) not less than twelve rupees per annum for workers in any other case.
134
Section 9-A has also been inserted to provide that a registered Trade
Union of workmen shall at all times continue to have not less than ten per
cent, or one hundred of the workmen, whichever is less, subject to a
minimum of seven, engaged or employed in an establishment or industry
with which it is concerned, as its members;
Another change that has brought by the Amendment Act 2001, that
a registered trade union except not more than one third of the total number
of office bearers or five, whichever is less, shall be persons actually
engaged or employed in the establishments or industry with which the
trade union is connected. The employees who have retired or have been
retrenched shall not be considered as outsiders for the purpose of holding
an office in a trade union. In case of unorganized sector however the
present provision of section 22 of the act would continue to be applicable.
Therefore with regard to office bearers in the principle act, half of the
office bearers shall be persons actually engaged or employed in the
establishment with which the trade union is connected. Now the
amendment act substituted under section 22 that the office bearers of the
registered trade unions, except not more than one third of the total member
of office bearers shall be persons actually engaged in an industry.
It is submitted that the attempt made by the legislature to reduce the
multiplicity of the trade unions is a step towards promoting internal
democracy. But by reducing the number of outside leaders under section 22
not encouraging because it makes no much difference to permit 50 per cent
of outsiders or one third of outsiders as office bearers. Therefore the legal
ban permitting one third of office bearers further minimized so as to
promote true internal democracy.