A WRITE - UP ON TRADE UNION ACTIVITIES - FROM MY OWN EXPERIENCE

SOME REFLECTIONS IN INDUSTRIAL JURISPRUDENCE:TRADE UNIONS, COLLECTIVE BARGAINING, PRIVILEGES,DISCIPLINE AND LEGAL PERSPECTIVE. 

      AJAY KUMAR SAMANTARAY,CENTRAL LABOUR SERVICE 

Prelude :      Before going to discuss the legal frame-work of trade union I, think it would be in fairness and fitness of the subject to give a simple definition of “trade union” in an ordinary parlance. In a layman’s language a trade union may be defined as follows: 

           “A trade union is a continuous and voluntary association of persons in any grade or industry, who are wage earners. A trade union is formed for safeguarding the interest of the members by whom it is formed. 

From the above simple definition we can bring out certain characteristics with reference to Navy. The characteristics are: 

·                    A trade union is an association of workers. 

·                    It is a relatively permanent combination of workers. 

·                    It is an association of workers viz. wage/salary earners engaged in securing economic benefits for the members. 

·                    The character of trade union has been constantly changing with the changing course of time. 

·                    The origin and growth of trade union movement in being and also has been influenced by a number of ideological issues. 

On the basis of the above analysis, it can be summed up as follows: 

A trade union is a device/mechanism which enables a group/class in trade/industry/services to bargain/negotiate with any other class or group on equal footing. Such union/association is : 

 Economically Oriented 

 A mechanism or let us a system of defence against exploitation of workers. 

 An outcome of industrialization that implies class distinction. 

Trade Unionism: The Guiding Principles 

(i)        The guiding principles of trade unionism is “unity is strength”. While referring to this maxim, I remember a couplet of a poem written by William Longfellow in his poetry titled “Hinwatha” 

 “All your strength is in your union,

 All your danger is in your discord;

 Therefore, be at peace henceforward

  And, as bothers, live together. 

 (ii)      Equal pay for equal work or for the same job: This Principle, in fact, has been enunciated in Article 39(d) of Constitution of India under Directive Principles of State Policy. If this has a bearing on the fundamental rights part, this Article can be made enforceable in Court of Law. 

(iii)      Security of Service: This principle enjoins upon trade unions that they ensure social and economic security for their members. 

THE OBJECTS AND FUNCTIONS OF A TRADE UNION 

The objects and functions, can basically, be divided in to two broader categories as follows : 

A.      Militant or Protective: Under this division, a trade union is primarily concerned with obtaining better conditions of works and of employment for its members through such militant activities as strikes and boycotts, which are generally resorted to when efforts at collective bargaining fail to bear results. 

B.       Fraternal, Ministrant or positive : This relates to the provision of such benefits as sickness and accident payments, A trade union, may, at times, offer financial support to its members during strikes and lockouts and during period of temporary unemployment. 

THE LEGAL PERSPECTIVE : RIGHT TO FORM A TRADE UNION 

It flows from Article 19 (1) (c), of Constitution of India viz. Protection of certain rights regarding freedom of speech etc. Clause(c) of the Article provides to form associations or unions.

 UNDER ARTICLE 19(1 )(c), Trade Unions Act, 1926 has been enacted

WHAT IS A TRADE UNION ? 

·        Any combination of persons. 

·        The Combination may be temporary or permanent 

·        Formed primarily for the purpose of regulating the relations between workmen and employers. 

·        ‘may also be formed to regulate the relations between workmen and workmen. 

·        ‘may also be formed to regulate the relations between employers and employers. 

·        Aims to imposing restrictive conditions on the conduct of any trade or business 

·        Includes any federation of two or more trade unions. 

TRADE/INDUSTRIAL DISPUTE-WHAT IS ? 

Any dispute : 

(a)      between employers or workmen 

(b)      between workmen or workmen 

(c)       between employers or employers 

(d)      Connected with the employment or non-employment 

(e)      Connected with terms of employment or the conditions of labour 

WHY TRADE UNIONS ARE FORMED? 

(i)        To protect the service interest of the workers(members) 

(ii)       To prevent Unfair Labour Practice. 

(iii)      To represent an individual worker or a group of workers in matters pertaining to industrial  disputes. 

(iv)      To represent the workers before the management to further their service interest. 

(v)       To participate in the process of collective bargaining 

COLLECTIVE BARGAINING-WHAT IT IS ? 

           The term “collective bargaining” has not been defined anywhere in Trade Unions Act, 1926 or Industrial Disputes Act, 1947. It cannot be said that “collective bargaining” is a legal term. It can best be called a colloquial term used in industry. But it should not be forgotten that “COLLECTIVE BARGAINING IS THE PRINCIPAL RAISON D’ETRE of trade unions”. The term “Collective Bargaining”, as an industrial relation concept, takes up the matter concerning service conditions of the workmen, truly represents, the employed in the industry, the trade union is first required to get itself registered under the provisions of Trade Unions Act, 1926. 

WHY SHOULD AN UNION BE REGISTERED ? 

*          Registration of the trade union gives it a stamp of due formation of the trade union and assures the mind of the employer that the trade union is an authenticated body. 

COLLECTIVE BARGAINING : A LITERAL DISSECTION 

           A trade union, for example by name “XYZ union” could be a proper noun but on legal dissection, we would certainly find that it is the collection/congregation of persons who have agreed to form an entity to further their service interest. From this angle, it would not be wrong to say that Trade Union is also simultaneously a collective noun. 

The Trade union office bearers like President, General Secretary, Organising Secretary, Treasurer and other office bearers sit in negotiation with the management on behalf of large number of workers. This mechanism is called collective bargaining. 

TRADE UNIONS AND INDUSTRIES 

           Trade Unions can be formed in industries, viz in Navy, we have got industrial establishments like Naval Dockyards in Mumbai, and Vishakhapatnam, Ship repair yards at Cochin and Karwar, Ship Building Centre at Vishakhapatnam and Naval Base at Goa. These establishments fall within the definition of “industry” as defined under section 2(j) of the Industrial Disputes Act, 1947. In Naval Dockyard, Mumbai we have in all 6 unions out of which 3 unions have been recognized by Ministry of Defence. “Recognized Unions” means those trade unions which can participate in collective bargaining as sole bargaining agents. The other 3 unions are not recognized and thus cannot officially participate in negotiations/collective bargaining. 

THE WEAPONS USED BY TRADE UNIONS 

           The trade unions, while pressing their demands, use certain weapons as follows: 

·                    Strikes

·                    Picketing

·                    Gherao

·                    Go slow 

Strike has been sub-divided to the following forms 

·                    Stay in strike

·                    Tool down Strike

·                    Wildcat strike

·                    Flash strike

·                    Hunger strike

·                    Relay Hunger strike 

But the Industrial Disputes Act, 1947 has only defined the term “Strike” in Section 2 (q) as follows: 

 “Strike” means a cessation of work by a body of persons employed in any industry acting in combination, or a concerted refusal, or a refusal under a common understanding, of any number of persons who are or have been so employed to continue to work or to accept employment. 

In Industrial Disputes Act, 1947; only the term “strike” has legally been defined. The other concepts like “Go Slow” “Hunger strike and “Gherao”etc. have not been defined. From this conclusion may be drawn that the other concepts are not recognized forum of industrial action. 

A strike could either be legal or illegal Whether a strike is legal or illegal, can only be decided by Labour Courts or Industrial Tribunals. 

The Defence establishments/installations have been notified to be Public Utility Services under Section 2(n) (vi) of Industrial Disputes Act, 1947 [First Schedule, entry 8]. In such establishments, trade unions cannot go on strike without serving notice. It would be quite pertinent to reproduce section 22 pertaining to strikes in public utility services, which is as follows : 

Prohibition of strikes- No person employed in a public utility service shall go on strike in breach of contract. 

(a)      Without giving to the employer notice of strike, as hereinafter provided, within six weeks before striking;

[Six weeks notice beforehand should be served on the employer] 

(b)      Within 14 days of giving such notice; or  

(c)       before the expiry of the date of strike specified in any such notice as aforesaid; or during pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings. 

Note: if any of the above proviso is violated, the strike may be declared to be illegal. 

STRIKE IN DEFENCE ESTABLISHMENTS 

           Any union or unions, proposing to go on strike in defence establishments, have to conduct a secret ballot. If at least 3/4th of the workers vote in favour of the strike, the union or unions can go on strike. All the registered trade unions have incorporated this proviso in their bye-laws. 

WHAT COULD BE THE CONSEQUENCE OF AN ILLEGAL STRIKE ? 

           Whether a strike is legal or illegal can be declared so by a Labour Court of competent jurisdiction. If it is proved that a strike is illegal, apart from losing wages for the strike period, the strikers may even be subjected to disciplinary action. The days, during which the strikers went on strike, may be treated as “break in service” You are aware that now-a-days, the courts do not appreciate the employees /workers to go on strike. The Supreme Court, last year, came down heavily on the strikers. 

WHETHER STRIKE IS A FUNDAMENTAL RIGHT ? 

           Sometimes, some unions argue that since formation of unions or associations is a fundamental right they have got a fundamental right to strike. This conception is ill-conceived and misconceived. This is due to the fact that no government or authority would ever permit workers to go on strike Article 19(1) (c) of the Constitution provides for formation of unions/associations. That itself cannot be a permission to the workers to go on strike. In Trade Unions Act, 1926 and also in Industrial Disputes Act 1947; the workman have not been permitted to go on strike. The Industrial Disputes Act, 1947 only spells out the measures to be taken if the workers go on strike. Thus resorting to strike by the workers is neither a constitutional (Fundamental) right nor a legal right. Right to strike does not exist in any law in our country. 

THE EXTENT OF IMMUNITY TO TRADE UNION ACTION 

           Sometimes, some trade union leaders feel that being in trade union they can do whatever they like. They also feel that since they are the office bearers of an union, they have the licence not to work. At times it has been seen that they record their attendance at the main gate of the factory by punching/swiping the card but at the workplace they are not found. When disciplinary action is initiated, they complain of unfair labour practice and even sometimes they abuse their positions as trade union leaders. For example the workers, who are the office bearers of the union, use the union letter-head for their personal grievance and sign the complaint as office bearers and send the same directly to Ministry and Departments. This is blatantly wrong and at the same time outrageous. A trade union leader cannot abuse his position in this manner taking the administration to ransom. In my considered and well thought out views this is a blackmailing tactics adopted to coerce the management to toe the line of the union for which there is no legal backings for the union with reference to judicial pronouncements, which are as follows: 

1.        Industrial peace, harmony and optimum output : A learned Division Bench of the Honourable High Court of A.P. in the case of Indian Airlines Ltd Vrs. Indian Airlines Technical Assistants union (1998-III- LLJ-961) has stated as follows: 

           “ The Trade Union Act confer certain rights on the registered union to ventilate the grievances of the members of its union. The management is obliged to hear them and resolve its dispute as far as possible without resorting to conciliation and adjudication process “from the grant of right of hearing it is expected that there is industrial peace and harmony and consequently “optimum output” 

2.        No Concession on Unauthorised Absence: It has been seen that some trade union leaders, under the quise of Union’s work, absent themselves from the workplace without informing the Management. They think that it is their legitimate right to do so. There is a judicial answer to the same in the case of Burn and Company vrs. Their Workmen (1957-I-LLJ-450). In this case the General Secretary of the Union was dismissed for his continued unauthorized absence. The Honourable Supreme Court observed that the conduct of the General Secretary was highly irregular and he should have applied for leave and that he was not entitled from any relief from the order of dismissal passed by the management. 

3.        Trade Union Leaders cannot claim to be doing only union work: The Hon’ble High Court of Madras, in the case of Tamil Nadu Electricity Board Accounts Subordinate Union Vrs. TamilNadu Electricity Board and others (1984-II-LLJ-478), has handed down a judgment . The relevant position is reproduced below: 

“Trade Unionism is recognized all over the world but that does not mean that an office bearer of the union can claim as of right, that he can do union work during office hours. When the workmen were given a concession, dictated by the then prevailing circumstances, it should not be considered an inviolable right (underlined/italicized for emphasis). 

4.        Trade Unionism is not a licence not to do industry’s work: The Honourable High Court of Madras, in the year 1994, in the case of Tamilnadu Electricity Board Subordinate Union Vrs. Tamilnadu Electricity Board and others ( 1994-I-LLJ-1128) has handed down another judgment, the list of which is as follows:  

“………To say that a workmen on the simple ground that he happens to be an office bearer of the Union must be totally absolved from obligation to do any service to the employer, throughout while he happens to be an office bearer will certainly bring an anomaly with regard to the concept of condition of service and change in the condition of service….” 

5.        No change in status: If some of the employees of an industry become the office bearers of an union that itself cannot (and also does not) bring any change in their status viz. they remain workmen only, not any extra-legal or extra-constitutional body. The High Court of Madras, in the case of Federation of Indian Bank Employees Union Vrs. Management of Indian Bank (1994-II-LLJ-497) in the year 1994, has delivered a judgment, the substance of which is as follows: 

“The status of the employees does not change even if they become office-bearers of the recognized union. Their terms of employment are governed by the contract of service or by such statutory rules which determine the conditions of service of employees. Therefore, no office bearer employee could claim as a condition of service, freedom to indulge in trade union activities………” 

The subject of Trade union is very vast. But due to constraints of space and time it is not possible to elaborate the subject further. At the light of what have been discussed herein before, I, now proceed to outline certain assumptions, which are as follows; 

1.        Right to form unions or Associations is a fundamental right. 

2.        Right to strike is neither a constitutional right nor a legal right. 

3.        Trade unionism may be termed as a conventional/traditional right which is likely to change in the course of change of time and circumstance. This maxim can be called “Law in a Changing Society” as convention or custom is considered as law, It is quite pertinent to know that 2 or 3 stray incidents can not be considered to be a custom, which could be treated as law. 

4.        Unions survive only if industry survives or alternatively, the industry can survive without the union/s but no union can survive without industry(the macro concept) 

5.        The Trade Unions should not forget that production, productivity and optimum production are the key parameters for the survival of industries, without industries, there could be no trade union. 

6.        The trade union office bearers are paid for doing the industry’s work not for trade union activities. They should not think that they have got a license not to do the industry’s work under the guise of trade unionism, 

7.        Trade union office bearers do not become extra-legal or extra-constitutional bodies once they occupy certain post in the union. Their status remain as workers. 

SOME CONTEMPORARY HAPPENINGS 

           It has been noticed that in certain Govt establishments Trade Unions are resorting to untoward behaviour which is not in good taste. Probably, the Unions have started thinking that they have become extra constitutional authorities/bodies and can do, speak, propagate and write whatever they like. Certain examples are as follows : 

(a)      In a Workshop, some 2 months back a trade union leader shouted and kicked the machine resisting the policies of the management on identity cards. Their grievance being that introduction of identity cards of certain type should not be resorted to as it violates human rights. Have you ever heard such ridiculous arguments? 

(b)      In the month of February 2011, before presentation of budget in the Parliament, one union pasted a poster at prominent places (gates) wherein it was written “PARLIAMENT PER HALLA BOL”. It interesting to note that some office bearers of the said union were granted special leave to go to Delhi on the pretext of union’s work. Whether “Parliament Per Halla Bol” is an union’s work and whether special casual leave can be granted for Parliament Per Hall Bol? 

(c)       In the month of April 2011 one Union pasted posters at prominent places of an establishment wherein it was mentioned “Mazdoor Virodhi Congress Government”……..Have you ever heard Govt employees writing slogans against Govt!!! According to Conduct Rules a Govt employee should not criticize govt policies or law made by Parliament. If done, such employee can even be dismissed from services. 

(d)      On 31 March 2011, in a Defence establishment in Mumbai , at prominent places 2 unions jointly pasted a poster “Paresan Kamgar Ko Aur Paresan Mutt Karo”. Some workers were asked by the employer to vacate some dangerous buildings so that such buildings can be repaired. If an employee vacates the building he/she gets house rent. But unions, in order to derive cheap popularity and to show lip sympathy, paste posters citing derogatory slogans. Is it Trade Unionism? Or Moral Bankruptcy?  

           Day by day the Government’s Economic Policy is changing and it will keep changing to keep pace with the World Economic Order. It must not be forgotton that the work of the Govt is to govern, not to run industry. Trade Unions, at this juncture, should wake up to the ground reality and try to protect/safeguard the industry so that both industry as well as workers survive. By writing cheap slogans or sentimental lines, welfare of the workers cannot be ensured. It is high time we should think of survival of industry so that the workers also survive.  

           For the untoward behaviour as described hereinbefore, the concerned persons can be charge-sheeted and even dismissed from services; criticizing one’s own result and consequence could be devastating and disastrous. 

References:

Personnel Management- CB Mamoria

Trade Union Act – Kharbanda 

Disclaimer  : The ideas/opinion expressed in this article are of Author’s own and should not be substituted for professional advice. The Author had prepared this write-up on the basis of his own experience while working in Naval Dockyard, Mumbai from June  2005 to November 2014.