MID TERM PROJECT
Labour Law
PROJECT ON
ILO Conventions relating to trade unions
Submitted to: Submitted by:
Prof. Mahendra Soni Aparajita
Marwah
2017BALLB80
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TABLE OF CONTENTS
Contents
TABLE OF CONTENTS............................................................................................................................2
TABLE OF CASES.....................................................................................................................................3
STATEMENT OF PROBLEM....................................................................................................................4
OBJECTIVE................................................................................................................................................4
HYPOTHESIS.............................................................................................................................................4
RESEARCH QUESTION...........................................................................................................................4
INTRODUCTION.......................................................................................................................................5
THE CONVENTIONS................................................................................................................................6
INDIAN LABOUR LAWS.........................................................................................................................8
ANALYSIS...............................................................................................................................................11
CONCLUSION.........................................................................................................................................14
BIBLIOGRAPHY.....................................................................................................................................15
ACKNOWLEDGEMENTS.......................................................................................................................17
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TABLE OF CASES
All India Bank Employees’ Association v. The National Industrial Tribunal (Bank
Disputes), Bombay and others AIR 1962 SC 171
Bangalore Water Supply and Sewerage Board v. Rajappa, (1978) 2 SCC 78
Kameshwar Prasad and another v. State of Bihar and others AIR 1963 SC 1166, 1168
Himatlal K. Shah v. Commissioner of Police, (1973) 1 SCC 227
Hospital Employees Union v. Union of India (2002) 10 SCC 224
State of U.P v. Jai Bir Singh, (2005) 5 SCC 1
T.K. Rangarajan v. Government of Tamil Nadu (2003) 6 SCC 581
Vishaka v. State of Rajasthan (1997) 6 SCC 241
Committee on Freedom of Association cases
Case No. 420 (India), 93rd Report
Case Nos. 589 (India), 118th Report
Case no. 720 (India), 139th Report
Case No. 881 (India), 181st Report
Case No. 1091 (India), 217th Report
Case No. 1100 (India), 218th Report
Case No. 1113 (India), 226th Report
Case No. 1346 (India), 246th Report
Case No. 1471 (India), 270th Report
Case No. 1479 (India), 278th Report
Case No. 1514 (India), 283rd Report, 302nd Report
Case No. 1517 (India), 278th Report,
Case No. 1591(India), 284th Report
Case No. 1651 (India), 292nd Report, 295th Report
Case No. 1817 (India), 302nd Report
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STATEMENT OF PROBLEM
Despite being a founding member, India hasn’t yet ratified all 8 conventions of the ILO. The 2
main conventions, number 87 (freedom of association) and 98 (collective bargaining) remain
unratified. As the largest democracy in the world, we have left a lot of people open to misuse and
violation of their human rights. This impedes not only their standards of life individually but also
our growth and development as an economy.
OBJECTIVE
The aim of this project is to highlight the disparity between the International Standards
(established in the ILO Conventions) and shed light as to how the situation can be improved.
Moreover, it is also important to understand the nuances of conventions 87 and 98 and how they
can be imbibed in India.
HYPOTHESIS
The protection conferred in Indian law is subpar when compared with the ILO standard, however
it can be reconciled if the government were to ratify. This would also be beneficial for the
economy in the long run.
RESEARCH QUESTION
The following questions will be answered in the course of this project:
1. What are conventions 87 and 98?
2. How does Indian law offer protection?
3. How is the protection in Indian law different from these conventions?
4. How can these differences be reconciled?
5. What are the effects of ratifying and non-ratifying these conventions?
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INTRODUCTION
Despite being a founding member of the ILO, India hasn’t ratified either of the fundamental
conventions on freedom of association, i.e. the Freedom of Association and Protection of the
Right to Organize Convention, 1948 (No. 87) and the Right to Organize and Collective
Bargaining Convention, 1949 (No. 98).
However, simply by virtue of membership, India is obliged to adhere to these conventions
(despite non-ratification). Even so, the ratification of these conventions would ensure legal
protection conferred to the principles and provisions of these conventions. Over the last few
years, there have been multiple efforts by ILO to get these conventions ratified.
The non-ratification is concerning because of India’s extremely large labour force and the fact
that these conventions are basically a mechanism to solidify the protections of basic human
rights for them.
We will look at the difficulties, opportunities and effects of the ratification of these conventions.
After a brief discussion on contents, we will examine the current standard of laws in India in
context of the standards of the conventions.
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THE CONVENTIONS
CONVENTIONS ON FREEDOM OF ASSOCIATION AND COLLECTIVE BARGAINING
This is an integral part of a person’s inherent dignity and is guaranteed to almost all individuals.
According to ILO, this is an essential for improving working conditions and ultimately achieving
peace and progress. The two main instruments of the ILO that protect the freedom of association
of workers are the Freedom of Association and Protection of the Right to Organize Convention,
1948 (Convention No. 87) and the Right to Organize and Collective Bargaining Convention,
1949. (Convention No. 98). On account of the importance of the principles contained in the two
Conventions, they have been categorised as ‘fundamental conventions’ requiring universal
observance.
A. Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.
87)
This applies to all except workers of armed forces and police. It guarantees the right to join and
form any organization without seeking employer’s authorization. It also allows them to function
as per their own rules, elect their own leaders and organize their administration. It also precludes
public authorities from undermining these bodies. While the right to strike hasn’t been
guaranteed explicitly, it is considered an inherent part. 150 nations have ratified this convention.
B. Right to Organise and Collective Bargaining Convention, 1949 (No. 98)
This guarantees protection against anti-union policies by employers and organization, as well as
against interference by organisations and employers. It provides that such protection shall apply
more particularly in respect of acts calculated to: “(a) make the employment of a worker subject
to the condition that he shall not join a union or shall relinquish trade union membership or (b)
cause the dismissal of or otherwise prejudice a worker by reason of union membership or
because of participation in union activities outside working hours or with the consent of the
employer, within working hours”. It also mandates the taking of proper measures to encourage
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collective bargaining and proper regulation. This convention has been ratified by 160 member-
states.
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INDIAN LABOUR LAWS
The non-ratification is concerning because of India’s extremely large labour force and the fact
that these conventions are basically a mechanism to solidify the protections of basic human
rights for them.
Indian Constitution
Article 19(1)(c) guarantees the right to join and form unions and associations as a fundamental
right. In the All India Bank Employees’ Association case, the Apex court dealt with the issue of
whether Article 19(1)(c) contains the right to collective bargaining and the right to strike. It was
stated that concomitant rights necessary to achieve the object could be included in fundamental
rights as this interpretation would be contrary to the drafter’s intention. Even a very liberal
interpretation cannot sustain the view that Article 19(1)(c) would include a guaranteed right to
effective collective bargaining or to strike.
Article 19(1)(a) is another important provision as it guarantees to all citizens of the country the
freedom of speech and expression. It also protects the right to information. Article 19(1)(b) is the
constitutional guarantee for the freedom to assemble in peace. The Supreme Court in the case of
Kameshwar Prasad and others v. State of Bihar and another, held that the right of workers to
protest and hold demonstrations flows from these fundamental guarantees. The court had ruled
that a provision imposing a blanket ban on participation of government employees in peaceful
rallies was a violation of Articles Articles 19(1)(a) and (b).
Article 19(1)(d) guarantees the freedom of movement throughout the territory of India. The
Supreme Court has held that the right of citizens to take out public processions and hold public
meetings flows from Article 19(1)(b) guaranteeing the freedom of assembly read together with
Article 19(1)(d). All of these freedoms are however subject to reasonable restrictions.
Central Laws
Labour Welfare and trade unions are subjects on the concurrent list which means that both state
governments and central government are empowered to make laws on these matters. The Trade
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Unions Act, 1926 and the Industrial Disputes Act, 1947 are the two principal pieces of central
legislation concerning the freedom of association and collective bargaining rights of workers in
India.
The Trade Unions Act, 1926 allows for the registrations of trade unions. It tells the particulars as
well as the objectives for these to function. It also provides protections against certain offences
for acts done in capacity. It also protects members in civil suits. There is a prescribed limit on
members and there are restrictions on those who are outsiders from holding office.
The supervisory bodies have considered such restrictions as being contrary to the principle of
free election of representatives. The CFA has observed: “For the purpose of bringing legislation
which restricts union office to persons actually employed in the occupation concerned into
conformity with the principle of free election of representatives, it is necessary at least to make
these provisions more flexible by admitting as candidates persons who have previously been
employed in the occupation concerned and by exempting from the occupational requirement a
reasonable proportion of the officers of an organization.”
The Industrial Disputes Act, 1947 protects trade unions from anti-union behavior and
interference by employers. The Act recognizes the collective bargaining rights of workers. It
recognizes the right to strike of workers and the corresponding right of employers to resort to
lock outs. There are rules prescribed to changing conditions of service, notice, lay-off and
retrenchment. In some cases there is mandatory provision for seeking government permit for the
same.
Right to Strike
It is duly covered in the fifth schedule of the Industrial Disputes Act, 1947. There are a few
restrictions, such as the requirement of a 14 days prior notice, for employees in public utility
services. Employees are also precluded from going on a strike during any pending conciliation
proceedings or during the pendency of adjudicatory proceedings before a Labour Court, Tribunal
or National Tribunal and arbitration proceedings and 2 months after the conclusion of such
proceedings. However, this does not apply to a lock-out. Section 23 also prohibits workers from
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going on strike during any period in which a settlement or award is in operation, in respect of
any of the matters covered by the settlement or award.
Moreover, government can issue orders prohibiting a strike connected with a dispute resolution.
Collective Bargaining
This right is also encapsulated in the fifth schedule of the act, it empowers unions and workers to
collectively bargain with employers and enter into collective agreements with them. The refusal
of a good faith collective bargain is tantamount to unfair labour practice, and likewise any refusal
on the part of a recognised trade union to bargain collectively in good faith with the employer is
an unfair labour practice. This act recognizes collective agreements and voluntary negotiations
between workmen and organisations, and gives them binding effect. And in either of these cases,
the refusal to bargain will lead to the filing of an industrial dispute by an aggrieved party.
Drawback
There is a vacuum in the law to the tune that there is no statutory recognition provided to trade
unions. Only a few states in India, namely, Andhra Pradesh, Gujarat, Madhya Pradesh,
Maharashtra, Rajasthan and West Bengal have statutory provisions relating to the recognition of
trade unions.
This anomaly results in most employers refusing to recognize trade unions and causing them to
therefore by-pass the representation system and undertake agreements on an individual basis.
These practices reduce the value of collective bargaining and create impediments in industrial
peace.
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ANALYSIS
Coverage of the laws
Both these laws do not apply to all categories of workers in the country. The Industrial disputes
act does apply to public sector and private sector employees, but the definition is restricted only
to “workmen”. This excludes employees in armed force, police and prisons. It also excludes
managerial and supervisory positions. The definition of “industry” was given in Supply and
Sewerage Board v. Rajappa where the supreme court stated that industry would mean “any
systematic activity organized by co-operation between the employer and employee for the
production and/or distribution of goods and services calculated to satisfy human wants and
wishes(not being wants or wishes which are merely spiritual or religious in nature).” Thus, all
organized activity possessing these three elements would be industry. However, this definition
has not yet been brought into force. And thus a very large part of our workforce is precluded
from being protected in this Act (for ex: agriculture, informal sector, teachers in institutions).
Similarly, due to anomalous definitions in the trade unions act, government employees are
excluded from it.
Implications
A large portion of the workforce is excluded from the protection because of the lack of tandem
between these 2 acts. For example, managers and supervisors can form trade unions, however
they are denied the protections of the industrial disputes act (such as the right to strike and
collective bargaining).
India’s position on ratification
It is quite evident that the need of the hour is for India to ratify these conventions, in order to
afford national protection to all members of our workforce, specifically with respect to the
freedom of association and collective bargaining. However, over the past 60 years the
government has denied the ratification of these conventions for multiple reasons. The first being
that they cannot do so unless they achieve the same level of protection in their own body of laws.
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This issue is a very small one, since tandem between both bodies of law can be achieved by due
consideration and seeking assistance from ILO, or forming committees. Moreover, ratification
will spearhead the way for the formulation of domestic laws. The second being that ratification
will lead to coverage of government employees, this will create issues of polity and neutrality.
The government is extremely against the unionization of government employees and believes
that collective bargaining rights will create issues.
This is a contradiction in itself because the fact of the matter remains that the protection for
rights of association and collective bargaining is enshrined in fundamental rights (Article 19) and
the exclusion of government employees is a derogation of that, which simply cannot be allowed
to sustain. The fear of the government that unionized government employees will be unable to
discharge their duties is only a presumption. They are already in close association with union
federations and that does not stop them from doing their duties.
So even if they are already allowed to form associations, they can’t strike or seek collective
bargaining. Granting them fair wages and good working conditions does not justify their rights
under the conventions being taken away.
Another reason why the government denies the ratification is the lack of harmony that would
occur, but again this is a very superficial reason, as such issues can be resolved by supervision
and making necessary recommendations for legal reforms.
At present, supervisory and managerial employees are not covered, and for the same reasons as
above, their inclusion is necessary.
Advantages of ratification
India’s ratification of the Conventions would indicate its commitment to the observance of
internationally recognized core labour standards and increase its influence and enhance its
standing in the international arena. It would also lead to economic benefits. It would mandate
better standards for labourers and thus lead to better working conditions. Studies on the
relationship between trade unions and productivity have indicated that trade unions can enhance
productivity and efficiency and that unionized workers are more likely to adopt productivity
raising innovations relating to technological change, changing product mix and reorganization of
work. It would also lead to lesser industrial conflicts between emplyers and workers, create
longterm stability which will aid in boosting the economy. This harmony will also create
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technological, legal, and scientific developments. It is also obvious that adherence to core labour
standards and the promotion of decent work would facilitate human capital development which
is necessary to achieve long term growth. Thus, ratification of the Conventions would be
beneficial to the country as such and also the workers and the employers in the country.
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CONCLUSION
It is very evident that there are many pros of ratification of conventions 87 and 98 and not that
many cons. A change of perspective is in order, instead of focusing on the miniscule
administrative hurdles, the government should focus on the longterm positive effects for the
workforce and the economy. The government needs to focus on the human rights affiliated with
the issue that “The failure of any nation to adopt humane conditions of labour is an obstacle in
the way of other nations which desire to improve conditions in their own countries”, i.e. the
adoption would help to achieve the global goal of worldwide humane treatment of workers.
Since India is a founding member, it should lead the way and ratify all 8 core conventions. As
the world’s largest democracy it would be a huge win to have these rights enshrined in the body
of our laws.
On the other hand, the failure to ratify these rights will create problems, since India is a fast
growing country and needs proper protection for its workforce. This reduces its credibility in the
international human rights arena. More than that, due to the sheer numbers in our workforce, it
creates an issue of mass neglect of human rights, which will no doubt impede our growth and
development.
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BIBLIOGRAPHY
Charnovitz, Steve, The ILO Convention on Freedom of Association and its Future in the
United States, American Journal of International Law, Vol. 102(1), 2008, p. 90 available
online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1136368
Committee on Legal Issues and International Labour Standards, Governing Body,
International Labour Office, Ratification and Promotion of Fundamental ILO
Conventions, GB297/LILS/6, 297th session, Geneva, November 2006 available online at
Http://www.ilo.org/wcmsp5/groups/public/---ed_norm/--
-Relconf/documents/meetingdocument/wcms_gb_297_lils_6_en.pdf
Government of India, Ministry of Labour and Employment, ‘Report of the Second
National Commission on Labour’, New Delhi, 2002
Hensman, Rohini, The Impact of Globalisation on Employment in India and Responses
from the Formal and Informal Sectors, CLARA Working Paper No. 15, Amsterdam,
2001 available online at www.iisg.nl/clara/publicat/clara15.pdf
International Labour Office, General Survey of the Reports on the Freedom of
Association and the Right to Organize Convention (No. 87), 1948 and the Right to
Organize and Collective Bargaining Convention (No. 98), 1949, Report III (Part 4B),
Geneva, 1994
International Labour Office, Freedom of Association in Practice, Lessons Learned,
Global Report under the Follow up to the ILO Declaration on Fundamental Principles
and Rights at Work, International Labour Conference, 97th Session 2008, Report I (B),
Geneva
International Labour Office, Freedom of Association, Digest of Principles and Decisions
of the Freedom of Association Committee of the Governing Body of the ILO, Fifth
(revised) edition, 2006
International Labour Office, Review of Annual Reports under the Follow up to the ILO
Declaration on Fundamental Principles and Rights at Work, 2001-2009
Kucera, D.; Sarna, R, Trade Union Rights, Democracy, and Exports: A Gravity Model
Approach, Review of International Economics, Vol. 14, No.5, p. 859, 2006.
Lim, Hoe, The Social Clause-Issues and Challenges, ILO, Bureau for Workers’ Activities
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available online at http://actrav.itcilo.org/actrav-
english/telearn/global/ilo/guide/hoelim.htm Neve, Geert De, Power, Inequality and
Corporate Social Responsibility: The Politics of Ethical
Compliance in South India’s Garment Industry, 44(22), Economic and Political Weekly,
30 May, 2009, p. 63
Raju, K.D, Social Clauses in WTO and Core ILO Labour Standards available online at
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Sankaran, Kamala, Freedom of Association and International Labour StandardsLexis
Nexis Butterworths Wadhwa, Nagpur, 2009
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CSLG/WP/09/01, Centre for the Study of Law and Governance,
Jawaharlal Nehru University, New Delhi, April 2009 available online at
http://www.jnu.ac.in/cslg/workingPaper/CSLG%20WP09-01Jaivir%20Singh.pdf
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ACKNOWLEDGEMENTS
I would like to express my heartfelt gratitude to my teacher,
Prof. Mahendra Soni
who gave me the golden opportunity to do this enriching project on the topic ‘ILO
Conventions relating to trade unions’ which has helped me enhance my knowledge
exponentially about the law; understand the scope in totem; analyse its development
throughout history as well its contribution to it; learn the applicable laws and correlate
the present state of affairs in our country.
His helpful insights in this subject have guided me to make this project.
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