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| As member of ILO, India has to recognise unions |
| Kumkum Sen / Jun 07, 2010, 00:59 IST |
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The wildcat strike by the Air India Employees last month, ostensibly over a gag order imposed by the management, followed by derecognition of the two staff unions, was reminiscent of the ’70s and ’80s, when militant trade unions wiped out industries from Bengal and Maharashtra. Massive legal battles were waged between unions and management, but in recent years, these have lost media prominence to matters like IPL wars. From the legal perspective, on being faced with queries on legality of recognition of trade unions, I delved into the Trade Unions Act, 1926 to find no statutory provisions to that effect. Fortunately, having more than a nodding acquaintance with certain state laws proved to be productive, and recent cases provided interesting insights on the different positions taken by the Courts.
Maharashtra, Madhya Pradesh, Gujarat and West Bengal, have enacted special laws regulating this. The Bombay Industrial Relations Act, 1946, (BIR), applicable to specific industries as textile, sugar, transport, provides for classification of registered unions into three categories — “Representative”, representing at least 15 per cent of workers in an establishment in an area, qualified and primary unions, eligible on meeting certain criteria, if there is no qualified representative union in the area. Representative unions are vested with wide powers, with right to approach Labour Courts to hold enquiries on strikes/lockouts, and afforded opportunity for hearing in cases involving agreements and awards.
The subsequent law, Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act 1971, is wider in its ambit and covers the industries under the purview of the BIR, but not in relation to recognition. Other states such as Bihar and Orissa have caused administrative bodies to pass resolutions or framed rules for recognition of registered unions. There is also a Code of Discipline of Voluntary Recognition of Unions (‘Code’) dating back to 1958, having its genesis in Annexure A of a Committee Report of the International Law Organisation (ILO) which establishments in some states follow. The Code provides for a criteria for recognition quite similar to the BIR.
The Fifth Schedule to the Industrial Disputes Act provides for certain obligations of employers in restraining from interfering with or preventing workmen in their right to engage in or join a trade union, not to sponsor or finance a trade union, or victimise any workmen for engaging in any union related activity. Likewise, workmen and trade unions are required not to support or instigate illegal strikes, acts of violence, gheraos, etc., But the Schedule is silent on recognition.
The Court decisions in States which have not introduced any specific legislations, or a rule / agreement having statutory force, also do not provide a complete answer on the legality of recognition. The Karnataka High Court in determining a writ petition seeking to enforce the right of recognition, upheld the submission that the grant of recognition to a trade union in Karnataka to be a voluntary act, and an order of de-recognition does violate any fundamental and/or legal right of a union. This is in line with an earlier Kerala High Court judgement, which held no such rights are created in favour of a Union merely by reason of its recognition, unless otherwise regulated by law.
In a 2009 ruling, the Madras High Court in the MRF Ltd Workers Union case against the Tamil Nadu government, took a contrary view, directing the state government to follow the Code and frame rules to recognise Trade Unions. Though Tamil Nadu does not have any special law or regulations on recognition of trade unions the Madras High Court in entertaining the writ relied on Article 19(1)© of the Constitution which recognises the right of persons to form associations, to hold that this includes a recognised union of a Company. Further Article 51-C requires the State to respect international law and treaty obligations. India being a founding member of the ILO and having espoused the Code, a basic norm of which requires employers to recognise an independent and representative workers body, the same amounts to a binding requirement. The Court also refers to the mandate under the Industrial Disputes Act- possibly Schedule V, but that does not take it any further. However, this judgement is currently stayed in appeal by the Supreme Court, and while the outcome cannot be predicated, this issue is bound to be determined by a Constitution Bench.
Kumkum Sen is a Partner in Rajinder Narain & Co. and can be reached at Kumkumsen@rnclegal.com
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