UNIT- II NOTES OF ILO AND LABOUR LAWS

COLLECTIVE BARGAINING
What is collective bargaining?

• Collective bargaining is the formal process of negotiation between an employer and a group of
employees – often with their union representative – that sets the terms and conditions of work.

• Collective bargaining results in a collective bargaining agreement (CBA), a legally binding

agreement that lays out policies agreed to by management and labor. Because of its role in
governing the actions of both management and labour, a CBA is often referred to as the “law” of
the workplace. While each agreement is unique to a given labour management relationship, most
CBAs include provisions that address compensation, scheduling, promotions, discipline and job
standards. CBAs also usually contain a grievance procedure, which provides a process for
resolving disputes between management and labor over interpretation of the contract and in the
event of employee discipline or termination.

When does collective bargaining occur?

• Employees and employers engage in collective bargaining to negotiate new contracts and
renegotiate existing contracts that have expired. In 2015 alone, an estimated five million men and
women are engaged in the collective bargaining process.1 By one measure, more than 21,000
labor-management relationships engaged in collective bargaining during the 2014 fiscal year.2
Despite the amount of bargaining that occurs every year, only 7.4 percent of private sector
employees and 39.2 percent of public sector employees are covered by a contract.3

Who can collectively bargain?

• The National Labour Relations Act (NLRA) grants most private sector employees the right to
organize unions and collectively bargain. The Railway Labour Act (RLA) provides railway and
airline employees the right to form unions and engage in collective bargaining. Between the
NLRA and RLA, approximately 85 percent of all private sector employees hold collective
bargaining rights. Some members of the private sector, including employees of very small
businesses, agricultural workers, domestic workers, supervisors and independent contractors, do
not have the right to engage in collective bargaining.

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• Public sector collective bargaining rights are established by a patchwork of laws. Federal law
offers many federal employees the right to engage in collective bargaining over a limited set of
issues, and state laws govern the right of state and local government employees to engage in
collective bargaining. As of 2014, three states expressly prohibit collective bargaining for all
public sector employees. The prohibition of bargaining is considered by Human Rights Watch to
be in direct violation of international human rights law.

What topics can employees bargain over?

• While the NLRA – the law that applies to most private sector employees – does not include a
list of bargaining topics, the National Labor Relations Board (NLRB) and courts determine
which subjects are covered by the NLRA. They divide bargaining subjects into three categories:
mandatory, permissive, and illegal.

 Mandatory subjects, broadly speaking, relate to wages, hours, pensions, healthcare and
working conditions. Employers cannot refuse to bargain over these subjects, and
negotiations may continue to the point of mediation or strike.
 Permissive subjects are non-mandatory subjects of bargaining, meaning employers are
not required to bargain over them. Use of union labels is an example of a permissive
bargaining subject.
 finally, illegal bargaining subjects are those that violate the NLRA, such as a closed-
shop provision in a rightto-work state.8

The collective bargaining process

• Though more formal in nature, the collective bargaining process is not much different from
everyday negotiations between parties, like the process of buying a car. Bargaining commonly
begins with employees coming together with their union to determine and prioritize a set of
demands they have for their employer. A bargaining committee, comprised of employees and
union representatives, then meets with management at the “bargaining table,” presenting a series
of proposals and explaining the intention behind them. Management will then respond with its
own proposals and counteroffers. The sides will begin to reach agreement on some proposals and

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continue trading counteroffers over unresolved issues. The length of bargaining and amount of
counteroffers varies depending on the complexity and number of bargaining proposals.

• Collective bargaining in the United States is typically a decentralized process, occurring

between a single employer and its employees. However, in industries like hospitality and
trucking, employers and unions sometimes engage in regional or industry-wide bargaining,
where a CBA covers employers in a specific city or across an entire industry.9

• In the construction sector, a project labor agreement (PLA) serves as a pre-hire collective
bargaining agreement establishing the terms and conditions of employment for a particular
construction project. PLAs are negotiated between a coalition of building trades unions and a
general contractor. Typically, they require all the contractors on the project to pay fair wages and
to contribute to joint labor-management health, pension and training funds.

Types of Collective Bargaining

Definition: The Collective Bargaining is the process wherein the unions (representatives of
employees or workers), and the employer (or their representative) meet to discuss the issues
related to wage, the number of working hours, work environment and the other terms of the
employment.

There are four types of Collective Bargaining classified on the basis of their nature and the
objectives, and can be practiced depending on the different situation requirements.

Types of Collective Bargaining

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1. Conjunctive or Distributive Bargaining: In this form of collective bargaining, both the parties
viz. The employee and the employer try to maximize their respective gains. It is based on the
principle, “my gain is your loss, and your gain is my loss” i.e. one party wins over the other.

The economic issues such as wages, bonus, other benefits are discussed, where the employee
wishes to have an increased wage or bonus for his work done, whereas the employer wishes to
increase the workload and reduce the wages.

2. Co-operative or Integrative Bargaining: Both the employee and the employer sit together and
try to resolve the problems of their common interest and reach to an amicable solution. In the
case of economic crisis, such as recession, which is beyond the control of either party, may enter
into a mutual agreement with respect to the working terms.

For example, the workers may agree for the low wages or the management may agree to adopt
the modernized methods, so as to have an increased production.

3. Productivity Bargaining: This type of bargaining is done by the management, where the
workers are given the incentives or the bonus for the increased productivity. The workers get

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encouraged and work very hard to reach beyond the standard level of productivity to gain the
additional benefits. Through this form of collective bargaining, both the employer and the
employee enjoy the benefits in the form of increased production and the increased pay
respectively.
4. Composite Bargaining: In this type of collective bargaining, along with the demand for
increased wages the workers also express their concern over the working conditions, recruitment
and training policies, environmental issues, mergers and amalgamations with other firms, pricing
policies, etc. with the intention to safeguard their interest and protect the dilution of their powers.
Thus, the purpose of the Collective Bargaining is to reach a mutual agreement between the
employee and the employer with respect to the employment terms and enjoy a long term
relationship with each other.

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Factors affecting the Collective Bargaining

The success of collective bargaining machinery largely depends on the respective attitudes of
workers, in general, and the union, in particular on one hand and the attitude of management of
employer on the other.

However, if collective bargaining is to exist in a country successfully the following factors

are essential:
[Link] is necessary for the management to recognize the union and to bargain in more good faith.
This also puts pressure on the union to formulate plans and demands in a systematic manner.

2. There should be a change in the attitude of employers and employees. They must realize that
collective bargaining approach does not imply litigation as it does under adjudication. Both the
parties should keep this in mind that they have to resolve their differences on their respective
claims quietly and calmly, with their own resources, reducing their dependence on the third-party
intervention.

3. For the purpose of collective bargaining, employers should be represented by the

management and workers by their union representatives. Careful thought and selection of
the negotiating team is very much essential. For management team, it is better to have a mixed
composition, such as production, finance, industrial relation experts and headed by a personnel
expert.

4. It is also appreciable to have open minds; each party should listen to others’ concern and
point of views and should have some flexibility in making adjustments to the demands.

5. To ensure collective bargaining, unfair labour practices should be avoided and abandoned
by both; otherwise, atmosphere and confidence will be vitiated by malpractice if either side takes
advantage of the other by resorting to unfair practices.

6. Either side should avoid putting any irrational or unreasonable demand.

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7. Negotiations can be successful only when the parties rely on facts and figures to support
their points of view. That is why trade union should be assisted by specialists, viz., economists,
productivity experts, etc.

8. Trade union should encourage the internal union democracy and periodic consultation with
the general rank and file of the union members.

9. The terms of contract and the results of the negotiation should be in writing and should be
embodied in a document. If no agreement is reached the parties should proceed to conciliation,
mediation or arbitration.

.If no settlement is arrived, then the workers should be free to go in for strike and the employers
for lockout. However, utmost care should be taken to resolve difference mutually.

10. Strikes and lockouts should be the last resort. Periodic discussions may be necessary
between management and unions to interpret the provisions of the contract and clarify doubts.

11. Trade unions should be equally concerned with quality of work that leads up to a
consistent concern for the viability of the firm and its products and services.

12. Once the agreement is reached, it must be honoured and fairly implemented.

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Collective Bargaining in India

*Suggested reading- Book of Prof. Meenu Paul

Industrial harmony is essential for economic progress and the concept of Industrial harmony
wants the existence of undertaking, cooperation and sense of partnership between employers and
employees. There may be conflicting interests between employer and workmen but this attitude
leads to an understanding for achieving common goals, such as production and prosperity.

The phrase “collective bargaining was first coined by Sidney and Beatrice Webb. This was
widely accepted, particularly in the developed countries.

Generally by collective bargaining we mean, an essential element of economic democracy, is a

‘two party’ procedure for arriving at a commonly agreed solution. The term is thus used to
describe the procedure, whereby employers must attempt to reach agreement about wage-rates
and basic conditions of labour with trade unions, instead of with individual workers. In other
words, it is the process of discussion and negotiation between an employer and a union
culminating in a written agreement or contract and the adjustment of problems arising under the
agreement.

“Collective bargaining” writes Harbison 1 “is a process of accommodation between two

institutions which have both common and conflicting interests”. Its aim is not to seek industrial
peace at any price. Constructive bargaining should seek “to promote the attainment of the
commonly held goals of a free society.”

1 Goals and Strategy in Collective Bargaining by F.H. Harbison, Harper &Bros. USA.195

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In the context of the present day egalitarian society, with its fast changing social norms, a
concept like ‘collective bargaining’ is not capable of a precise definition. The content and scope
of ‘collective bargaining’ is a process of bargaining between the employers and their workers, by
which they settle their disputes relating to employment or non-employment, terms of
employment or conditions of labour of the workmen, among themselves, on the strength of the
sanctions available to each side.

Collective bargaining is a technique by which disputes as to conditions of employment, are

resolved amicably, by agreement, rather than by coercion. The dispute is settled peacefully and
voluntarily, although reluctantly, between labour and management, seeks to achieve social
justice on the basis of collective bargaining2.

Meaning of Collective Bargaining

As put by Louis E. Howard, collective bargaining means “……. To get together (right of
meeting), to enter a common organization (right of association), to determine that whatever
conditions of work are allotted shall be the same for all workers and to make a bargain with
employers to that effect (rights of combinations and bargaining) and eventually in case the
employers should refuse to enter on such a bargain or fail to honour it when entered upon, to
confront them with a united refusal to go to work or to continue at work (right of strike).

Collective bargaining as a technique for the fulfilment of the needs and objectives of workers
and employers is an integral part of industrial society. It is, in fact, an extension of the principles
and practices of democracy to industry. It is a dynamic process and is constantly expanding.

2 Karnal Leather Karamchari Sanghathan V Liberty Footwear Co 1990 Lab IC 301, 307 (SC), per Jagannatha
Shetty J.

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Collective bargaining is the principal factor behind formation of trade unions. While the
Common law did not recognize Collective bargaining, it became a norm only when large scale
industries developed and it became necessary to regulate the capital-labour relations with a view
to better the working conditions of labour and sustaining the industrial peace in the country. The
ILO conventions and the Constitution of India which the people of India have given to
themselves amply recognize the right of employees to form Unions to espouse their cause. The
Trade Unions Act, 1926 is one of the earliest labour legislations in India to recognize this
valuable and significant right of the labour. The Act besides providing for registration of trade
unions seeks to grant recognition to trade unions and provides a broad legislative parameter
within which the trade unions have to function.

The common law had recognised relations between individuals as master and servant. It did not
recognise collective bargaining or anybody that is entitled to represent the body of workmen in
negotiations relating to employment or the terms of employment or with the conditions of labour
of any person. In common law, if a number of employees in concert and combination withdraw
their labour and decide not to work, it would amount to a breach of contract, which was
actionable in common law.

In the UK the Industrial Relations Act, 1971 establishes a presumption in favour of the
collective agreements and in the US under the National Labour Relations Act, 1935 collective
bargaining by employers with chosen representatives of employees is compulsory. Collective
bargaining is put on statutory basis in Canada, Australia and other countries. In Sweden, The
Terms and Conditions of Employment Act, 1959 sanctions collective bargaining.

"The vital significance of collective bargaining for the law of contract thus lies in its following
aspects; first, it resembles a standard contract of business and industry in that standardized terms
regulate the conditions of employment of millions of individuals”.

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Secondly, it is a most important instance of a public law function delegated, by the permissive
or even imperative authority of the State, from government to social groups. Thirdly, the
freedom of the individual to bargain in his terms of employment is inevitably curtailed by the
prevalence of collective bargaining. It is even excluded where the 'closed shop' is recognised
either legally or de facto. Fourthly, this lack of freedom is compensated by a substantial
restoration of equality of bargaining power. It is not the individual employee who has regained
equality, but the trade union negotiating on his behalf. Although the trade union is not strictly
speaking the agent it has in effect absorbed and consolidated the bargaining power formerly
vested in the individual.

Collective bargaining could be an effective instrument in the settlement of disputes and

advancement of the cause of labour if certain basic conditions are fulfilled. Firstly, the primary
condition for the successful process of collective bargaining is the existence of wellorganized
and fully recognized trade unions with well-defined policies. It follows that collective bargaining
is not very useful in the early stages of development when unions are not well organized.
Secondly, collective bargaining can be an effective technique of settling industrial disputes when
there is a spirit of give and take between the employers and the workers. Thirdly, as there is no
legal sanction behind the terms and conditions voluntarily agreed upon, the parties concerned
must do things and act in good faith on the basis of mutual agreement. Fourthly, much depends
upon the moral fibre of the labour leaders as well as the employers. There should be a complete
and true understanding and appreciation of each other’s viewpoints. Face to face meetings
between the representatives of workers and employers can serve a useful purpose only when the
traditional prejudices are kept aside by both the parties. Finally, there should be no uncertainty
about the fields in which the parties are legally required to bargain collectively 3.

Subject Matter of Collective Bargaining -The International Labour Organisation has divided
the subject matter of collective bargaining

3 [Link], Economics of Labour and Social Welfare, Sahitya Bhavan Pub. Agra (1974) p.119

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into two categories: (i) Those which set out standards of employment which are directly
applicable to relations between an individual employer and worker; (ii) Those which regulate
the relations between the parties to the agreement themselves and have no bearing on individual
relations between employers and workers.

The first category includes subjects like wages, working hours (including overtime), holidays
with pay and period of notice for termination of contract. The second category according to ILO
includes eight items viz., (i) provisions for enforcement of collective bargaining; (ii) methods of
settling individual dispute; (iii) collective disputes including grievance procedure and reference
to conciliation and arbitration; (iv) recognition of a union as bargaining agent for the workers;
(v) giving of preference in recruitment to union members seeking employment; (vi) duration of
the agreement; (vii) undertaking not to resort to strike or lockout during the period; and (viii)
procedures for negotiation of new agreements4.

The ILO also states that: In collective bargaining, the object is to reach agreement on wages and
other conditions of employment about which the parties begin with divergent viewpoints but try
to reach a compromise. When a bargain is reached, the terms of the agreement are put into
effect5.

Prerequisites for Collective Bargaining

(a) Freedom of Association - In order to achieve collective bargaining, it is essential to ensure

that the denial of such freedom negates collective bargaining. In this respect it is significant to
note that the International Labour Organisation adopted the Convention No, 87 concerning
“Freedom of Association and Protection of the Right to-Organize" which seeks to provide for

[Link], Industrial Relations & Labour Law, Vikas Pub, New Delhi, (2003) p.116.
[Link] Labour office, Collective bargaining (A workers education manual, Geneva (1980) p.5

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freedom of association. India has, however, not, formally ratified that convention, perhaps due to
administrative and constitutional problems, However, Article 19 (l) (c) of the Constitution of
India guarantees "the right to form Associations or Unions" as a fundamental right.

(b) Strong and Stable Trade Unions - For the success of collective bargaining, it is also essential
that there should be strong, independent, democratic and well organized trade unions. The
unorganized labour is the hurdle in its success. In India, however, the unions are generally weak.
Rivalry on the basis of caste, creed, religion is another characteristic of Indian trade unions
which come in the way of successful collective bargaining. Division of unions on the basis of
political ideologies further retards the growth of trade unions. Moreover: most of the workers are
illiterate. Lastly, the financial-position of trade unions is weak, and some of them are even
unable to maintain a proper office.

(c) Recognition of Trade Unions - Recognition of Trade Unions as a bargaining agent is the
backbone of collective bargaining.

(d) Willingness to Give and Take - The mutual trust and appreciation of the viewpoints of the
management and union is also essential said the ILO. The fact of entering into negotiations
implies that the differences between two parties can be adjusted by compromise and concession
in the expectation that agreement can be reached. Obviously, if one or both sides merely make
demands when they meet, there can be no negotiation or agreement6.

6. [Link], Industrial relations & Labour Law, Vikas Publications (2003) p.119.

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Growth of Collective bargaining

It has now achieved significant maturity and widespread recognition and has travelled all the
way with difficulties trials and tribulations. It covers negotiations, administration, interpretation,
application and enforcement of written agreements between employers and unions representing
their employees settling for the joint understanding as to the policies and procedures governing
wages, rates of pay, hours of work and other conditions of employment.

The growth of collective bargaining is closely associated with growth of trade unionism. The
trade union movement revolves around collective bargaining. The important trend in collective
bargaining, however, is the expansion in the number and the type of subjects which it covers. Of
the reasons for the increase in the subject-matter of collective bargaining, the growth and
development of the trade unions which are organized stronger may be stated to be one factor, the
other significant factors in the extension of subjects for collective bargaining being the influence
of recent legislation and the liberal attitude taken by the State.

In India, as also in many other counties, collective bargaining got some movement from statutory
provisions which laid down general principles of negotiation, procedures for collective
agreements and the character of representation of the parties negotiating disputes.

Of late, the Code of Discipline which came into force in 1958 by voluntary agreement between
workers and employers aimed at avoiding work-stoppages as well as litigation, securing
settlement of disputes and grievances by negotiation, conciliation and arbitration facilitating free
growth of trade unions. While the Code attempted to establish faith of the parties in the voluntary
approach, it provided a suitable climate for the growth of collective bargaining in India.

Legal framework of Collective bargaining

Article 19(1)(c) of the Indian Constitution guarantees freedom of associations and unions as a
fundamental right. This was recognized in the Trade Unions Act, 1926, Industrial Disputes Act,
1947 and the Industrial Employment (Standing Orders) Act, 1948. India ratified ILO Convention
NO.11 concerning the Right of Association for Agricultural Workers during British rule in 1923.
It has, however, not ratified ILO Convention Nos. 87 and 98 due to 'technical difficulties'
involving trade union rights for civil servants. This is not a valid reason for non-ratification,

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because a ratifying country can exempt certain services. The real intention could be, as Surendra
Nath (1997), former Chief Labour Commissioner of India, observes, "to restrict freedom of
association to only manual workers (by defining them as workmen) and exclude supervisory and
managerial workers. The other interest of the government is not to allow the right of collective
bargaining even to industrial workers in government departmental undertakings like the
Railways, Post and Telecommunications, and Central Public Works Department. Their pay etc.
is decided by the government, on the basis of the Pay Commission's recommendations, and not
through collective bargaining. The labour laws at the national level do not mandate employers
either to recognise unions or to engage in collective bargaining. Some states (for instance,
Andhra Pradesh, Bihar, Gujarat, Karnataka, Madhya Pradesh, Maharashtra, Orissa, and West
Bengal) have provisions concerning recognition of trade unions7.

The National Commission on Labour (1969) left the matter to be decided on the basis of local
circumstances. The 1947 amendment to the Trade Unions Act, 1926 and the Trade Union Bill,
1950 provided for recognition of more than one union by an employer. The 1947 amendment
was never enforced and the 1950 bill was not passed. In 1956 the Second Five-Year Plan
document highlighted the importance of 'one-union one industry’. In 1958 the Indian Labour
Conference evolved a code of discipline in industry which did not and still does not have
statutory force which contained “Criteria for recognition of unions. It favoured workmen
belonging to non-recognised unions to operate through the representative union of the industry or
seek redressal of grievances directly”.

Under Section 2(p) of the Industrial Disputes Act, 1947 collective agreements to settle
disputes can be reached with or without the involvement of the conciliation machinery
established by legislation. A settlement (written agreement between the employer and the
workmen) arrived at in the course of conciliation proceedings is binding, under Section 18(3) of
the Act, not only on the actual parties to the industrial dispute but also on the heirs, successors or
assignees of the employer on one hand and all the workmen in the establishment, present or
future, on the other.

7. [Link] Ratnam, P.A. Naidu, Industrial Relations and Collective Bargaining in South Asia, ILO Pub. (1999)
p.51

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The conciliation officer is duty-bound to promote a right settlement and to do everything he can
to induce the parties to act towards a fair and amicable settlement of the dispute. A settlement
with one trade union is not binding on members of another or other unions unless arrived at
during conciliation proceedings; the other union(s) - including a minority union - can, therefore,
raise an industrial dispute. Section 36(1) of the Industrial Disputes Act deals with representation
of workmen. Any collective agreement would be binding on the workmen who negotiated and
individually signed the settlement. It would not, however, bind a workman who did not sign the
settlement or authorize any other workman to sign on his behalf.

A collective agreement presupposes the participation and consent of all the interested parties.
When workmen are members of different unions, every union, without regard to whether or not
it represents a majority, cannot but are considered an interested party. Also, a few workmen may
not choose to be members of any union, and one or more unions may, for reasons of their own,
not like to reach a settlement. Sections 2(p), 4 and 18(3) of the Industrial Disputes Act, 1947 deal
with such practical difficulties by making collective agreements binding even on indifferent or
unwilling workmen as the conciliation officer's presence is supposed to ensure that the
agreement is bonafide.

The process of collective bargaining, though in a vague and limited form, has been introduced in
the year 1956, by amending the definition of ‘settlement’ in s 2(p) of the Industrial Disputes Act
19478. The pertinent purpose of collective bargaining is that the workers must be involved in it.
There cannot be a collective bargaining without involving the workers. The union only helps the
workers in resolving their dispute with the management, but ultimately, it would be for the
workers to take the decision and suggest remedies.

In the present definition of a ‘settlement’, a written agreement ‘between the employer and the
workmen, arrived at otherwise than in the course of conciliation proceedings’ has been included.
Rule 58 of the Industrial Disputes (Central) Rules 1957, prescribes the memorandum of
settlement in Form H and also lays down the procedure for signing the settlement. Section 18(I)

8. By s 3 of the Act 36 of 1956, the present cl (p) was substituted for the previous one. 13 Civil appeal No. 4852 of
1989, decided by the Supreme Court on 9 December 1997

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makes such a settlement binding on the parties to the agreement of settlement. Section 19
prescribes the periods of operation, inter alia, of such a settlement, while S 29 prescribes the
penalty for the breach of such a settlement. It would thus appear that the process of collective
bargaining, yet, rests on statutory limits.

In Virudhachalam v Management of Lotus Mills 09, the Supreme Court observed that collective
bargaining for resolving industrial disputes, while maintaining industrial peace, is the bed-rock
of the Act. Therefore, the employer or the class of employers on the one hand, and accredited
representatives of the workmen on the other, are expected to resolve the disputes amicably, either
by direct negotiations or through the conciliatory machinery of the Act. In collective bargaining,
the individual workman necessarily recedes in the background and the reigns of bargaining on
his behalf are handed over to the union representing such workman. The unions espouse the
common cause, on behalf of all their members. Hence, a settlement arrived at by them, with the
employer, would bind at least their members and if such settlement is arrived at during the
conciliation proceedings; it would bind even the non-members. Settlements, therefore, are the
'live wires' of the Act, for ensuring industrial peace and prosperity.

Collective bargaining, by voluntary agreement has been adopted as the standard system in the
United States of America. But in India, the tradition of free collective bargaining has always
been weak. Hence, with respect to the merits and demerits of collective bargaining, vis-a-vis
compulsory industrial adjudication, there is a serious conflict and overlapping of views.

Trade Unions (Amendment) Act, 1947 and Recognition

In India, it has been observed earlier, that there is no Central enactment governing recognition
of "trade unions. The Trade Unions (Amendment) Act, 1947, however, provided for recognition
of unions, (i) by agreements, and. (ii) by order of the Court on satisfying the conditions laid
down in relevant sections of the Act. But the Act, as stated earlier, has not been enforced

09. Civil appeal No. 4852 of 1989, decided by the Supreme Court on 9 December 1997

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(a) Machinery for Determination of Representative Unions - Section 28E of the Trade
Unions (Amendment) Act, 1947; empowers the Labour Court to grant recognition where a
registered trade union having applied for recognition to an employer fail to obtain the same
within a period of three months.

(b) Conditions for Recognition- Section 25 D provides that a Trade Union shall not be
entitled for recognition by order of a Labour Court under Section 25 E unless it fulfills the
following conditions, namely:

 (a)that all its ordinary members are workmen employed in the same industry-or in
industries closely allied to or connected with another.
 b) that it is representative of all the workmen employed by the employer in that,
industry or those industries;
 c) that its rules do not provide for the exclusion' from membership of any class of the
workmen referred to in clause (b);
 d) that its rules provide for the procedure for declaring a- strike;
 e) that its rules provide that a meeting of its executive shall be held at least once in
every six months;
 f) that it is a registered Trade Union, and that it has complied with all provisions of this
Act.

The aforesaid provisions of the Act raise various problems (i) Can an employer voluntarily
recognise a union which- is not registered under the Act and which is in fact a majority union?
(ii) Can an employer be compelled to recognise more than one union? Notwithstanding the
relative importance of these questions and rather unsatisfactory answer that we get from the
statute, the significance of Trade Unions (Amendment) Act, 1947, must not be overlooked. But,
even this could not be put into force.

(c) Rights of Recognized Trade Unions - The recognized trade unions have been conferred the
right to negotiate with employers in respect of matters connected with employment, non-
employment, the terms of employment or the conditions of labour of all or any of its members,
and the employer is under an obligation to receive and send replies to letters sent by the
executive and grant interviews to them regarding such matter.
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(d) Withdrawal of Recognition of Trade Unions - Under Section 28 G of the Trade Unions·
(Amendment) Act, 1947, the Registrar or the employer is entitled to apply to the Labour Court in
writing for the withdrawal of the recognition on anyone of the following grounds:

a) that the executive or the members of the trade union have committed any unfair labour
practice set- out in Section 28 J within three months prior to the date of the application;

b) that the trade union has failed to submit any return referred to in Section 28 I;

c) That the trade union has ceased to be representative of the workmen referred to in Clause (b)
of Section 28 D.

On receipt of the application the Labour Court is required to serve a show cause notice in the
prescribed manner on the trade union as to why its recognition should not be withdrawn. If the
Court is satisfied that trade union did not satisfy conditions for the grant of recognition it shall
make an order declaring the withdrawal of recognition. The aforesaid provisions raise a
question as to whether recognition of trade union can be withdrawn on the ground that
recognized trade union has lost its status as a representative union.

(e) Re-Recognition of Trade Unions - Section 28H of the Trade Union (Amendment) Act,
1947, permits the registered trade union whose recognition is withdrawn under subsection (3) of
Section 28G to make an application for re-recognition after six months from the date of
withdrawal of recognition.

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Right to Organise and Collective Bargaining Convention (No. 98)

Adopted: 1 July 1949

Entered into force: 18 July 1951

The General Conference of the International Labour Organisation, Having been convened at
Geneva by the Governing Body of the International Labour Office, and having met in its Thirty
second Session on 8 June 1949, and Having decided upon the adoption of certain proposals
concerning the application of the principles of the right to organise and to bargain collectively,
which is the fourth item on the agenda of the session, and Having determined that these
proposals shall take the form of an international Convention, adopts this first day of July of the
year one thousand nine hundred and forty-nine the following Convention, which may be cited as
the Right to Organise and Collective Bargaining Convention, 1949:

Article 1

1. Workers shall enjoy adequate protection against acts of antiunion discrimination in respect of
their employment.

2. 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; (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.

Article 2

1. Workers’ and employers’ organisations shall enjoy adequate protection against any acts of
interference by each other or each other’s agents or members in their establishment, functioning
or administration. 2. In particular, acts which are designed to promote the establishment of
workers’ organisations under the domination of employers or employers’ organisations, or to
support workers’ organisations by financial or other means, with the object of placing such

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UNIT- II NOTES OF ILO AND LABOUR LAWS

organisations under the control of employers or employers’ organisations, shall be deemed to

constitute acts of interference within the meaning of this Article.

Article 3

Machinery appropriate to national conditions shall be established, where necessary, for the
purpose of ensuring respect for the right to organise as defined in the preceding Articles.

Article 4

Measures appropriate to national conditions shall be taken, where necessary, to encourage and
promote the full development and utilisation of machinery for voluntary negotiation between
employers or employers’ organisations and workers’ organisations, with a view to the regulation
of terms and conditions of employment by means of collective agreements.

Article 5

1. The extent to which the guarantees provided for in this Convention shall apply to the armed
forces and the police shall be determined by national laws or regulations.

2. In accordance with the principle set forth in paragraph 8 of Article 19 of the Constitution of
the International Labour Organisation the ratification of this Convention by any Member shall
not be deemed to affect any existing law,award,custom or agreement in virtue of which members
of the armed forces or the police enjoy any right guaranteed by this Convention.

Article 6

This Convention does not deal with the position of public servants engaged in the
administrationof the State, nor shall it be construed as prejudicing their rights or status in any
way.

Article 7

The formal ratifications of this Convention shall be communicated to the Director-General of

the International Labour Office for registration.

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UNIT- II NOTES OF ILO AND LABOUR LAWS

Article 8

1. This Convention shall be binding only upon those Members of the International Labour
Organisation whose ratifications have been registered with the Director-General.
2. It shall come into force twelve months after the date on which the ratifications of two
Members have been registered with the Director-General.
3. Thereafter, this Convention shall come into force for any Member twelve months after the
date on which its ratification has been registered.

Article 9

1. Declarations communicated to the Director-General of the International Labour Office in

accordance with paragraph 2 of Article 35 of the Constitution of the International Labour
Organisation shall indicate:

(a) the territories in respect of which the Member concerned undertakes that the provisions of the
Convention shall be applied without modification;

(b) the territories in respect of which it undertakes that the provisions of the Convention shall be
applied subject to modifications, together with details of the said modifications;

(c) the territories in respect of which the Convention is inapplicable and in such cases the
grounds on which it is inapplicable;

(d) the territories in respect of which it reserves its decision pending further consideration of the
position.

2. The undertakings referred to in subparagraphs (a) and (b) of paragraph 1 of this Article shall
be deemed to be an integral part of the ratification and shall have the force of ratification.

3. Any Member may at any time by a subsequent declaration cancel in whole or in part any
reservation made in its original declaration in virtue of subparagraph (b), (c) or (d) of paragraph
1 of this Article.

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UNIT- II NOTES OF ILO AND LABOUR LAWS

4. Any Member may, at any time at which the Convention is subject to denunciation in
accordance with the provisions of Article 11, communicate to the Director-General a declaration
modifying in any other respect the terms of any former declaration and stating the present
position in respect of such territories as it may specify.

Article 10

1. Declarations communicated to the Director-General of the International Labour Office in

accordance with paragraph 4 or 5 of Article 35 of the Constitution of the International Labour
Organisation shall indicate whether the provisions of the Convention will be applied in the
territory concerned without modification or subject to modifications; when the declaration
indicates that the provisions of the Convention will be applied subject to modifications, it shall
give details of the said modifications.

2. The Member, Members or international authority concerned may at any time by a subsequent
declaration renounce in whole or in part the right to have recourse to any modification indicated
in any former declaration.

3. The Member, Members or international authority concerned may, at any time at which the
Convention is subject to denunciation in accordance with the provisions of Article 11,
communicate to the Director-General a declaration modifying in any other respect the terms of
any former declaration and stating the present position in respect of the application of the
Convention.

Article 11

1. A Member which has ratified this Convention may denounce it after the expiration of ten
years from the date on which the Convention first comes into force, by an act communicated to
the Director-General of the International Labour Office for registration. Such denunciation shall
not take effect until one year after the date on which it is registered.

2. Each Member which has ratified this Convention and which does not, within the year
following the expiration of the period of ten years mentioned in the preceding paragraph,
exercise the right of denunciation provided for in this Article, will be bound for another period of

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UNIT- II NOTES OF ILO AND LABOUR LAWS

ten years and, thereafter, may denounce this Convention at the expiration of each period of ten
years under the terms provided for in this Article.

Article 12

1. The Director-General of the International Labour Office shall notify all Members of the
International Labour Organisation of the registration of all ratifications, declarations and
denunciations communicated to him by the Members of the Organisation.

2. When notifying the Members of the Organisation of the registration of the second ratification
communicated to him, the DirectorGeneral shall draw the attention of the Members of the
Organisation to the date upon which the Convention will come into force.

Article 13

The Director-General of the International Labour Office shall communicate to the Secretary-
General of the United Nations for registration in accordance with Article 102 of the Charter of
the United Nations full particulars of all ratifications, declarations and acts of denunciation
registered by him in accordance with the provisions of the preceding Articles.

Article 14

At such times as it may consider necessary the Governing Body of the International Labour
Office shall present to the General Conference a report on the working of this Convention and
shall examine the desirability of placing on the agenda of the Conference the question of its
revision in whole or in part.

Article 15

1. Should the Conference adopt a new Convention revising this Convention in whole or in part,
then, unless the new Convention otherwise provides:

(a) the ratification by a Member of the new revising Convention shall ipso jure involve the
immediate denunciation of this Convention, notwithstanding the provisions of Article 11 above,
if and when the new revising Convention shall have come into force;

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UNIT- II NOTES OF ILO AND LABOUR LAWS

(b) as from the date when the new revising Convention comes into force, this Convention shall
cease to be open to ratification by the Members.

2. This Convention shall in any case remain in force in its actual form and content for those
Members which have ratified it but have not ratified the revising Convention.

Article 16

The English and French versions of the text of this Convention are equally authoritative.

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UNIT- II NOTES OF ILO AND LABOUR LAWS

FREEDOM OF ASSOCIATION AND TRADE UNIONS

Kahn Fruend1 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 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.

1 Kahn Fruend, Labour and the Law, Stevens and sons, London (1983)
2 Tafvale Railways Vs. Amalgamated society of Railway Servants (1901) AC 426.

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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’s 3 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 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

3 Raja Kulkarni Vs State of Bombay (1954) SC 73

4 Ibid.
5 AIR 1962 SC 17

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UNIT- II NOTES OF ILO AND LABOUR LAWS

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 Constitution 6”. 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
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 [Link] 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,

6 Ibid.
7 AIR 1950 SC 263
8 [Link] Vs Union of India, (1972) Lab IC 929: (1972) 2 LLJ 297 (Cal) (DB)

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UNIT- II NOTES OF ILO AND LABOUR LAWS

moral or equitable right to go on strike”, thus holding the state machinery and citizens to ransom.

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.P 10 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 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

9 [Link], Constitutional Law of India, Vol.I (2007) Universal Publications, p.805.

10 Tika Ramji Vs U.P (1956) SCR 393

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UNIT- II NOTES OF ILO AND LABOUR LAWS

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 [Link] 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 Tribunal 12, 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 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.

11 [Link], 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

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Freedom of association and government employees -

In O.K Ghosh Vs E.X. Joseph AIR 1963 SC 812 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 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

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UNIT- II NOTES OF ILO AND LABOUR LAWS

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.

In .Balakotaiah Vs P Union of India13 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.

Right of Association and Armed Forces

In O.K.A. Nair v. Union of India 14 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.

13 [Link] Vs Union AIR 1958, SC 232

14 AIR 1976 SC 1179 16 (1987) 1 SCC 115

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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).

15
In Delhi Police Non-Gazetted Karmchari Sangh vs Union of India , 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 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.

15.(1987) 1 SCC 115

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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.

The validity of the above Act was challenged in the case of State of Madras v. V.G. Rao16, 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 invalid17.

16 AIR (1952) SC 196

17 Rama Krishna Vs President, District Board, Nellore, AIR (1952) Mad 253

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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
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 employers 18".

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 192719.

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.

18. Freedom of Association and Collective bargaining, ILO Pub. Geneva (1994) p.2.

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UNIT- II NOTES OF ILO AND LABOUR LAWS

19. 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.
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 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 obstacle to
the exercise of trade union rights and that such acts require that severe measures be taken by the
authorities 20.

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 association21.

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20. Digest, para. 76. CFA, 281st Report, Case No. 1273 (El Salvador), para. 279; 283rd Report. Case No. 1538
(Honduras), para. 254.
21 Digest, paras. 87-89. CFA, 279th Report, Case No. 1556 (Iraq) para.61; 281st Report Case No. 1593 (Central
African Republic). Para 262.
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 independence22.

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 rights 23.
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 rights24. 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 disturbances25. While reasonable restrictions are acceptable, they should not result in
breaches of fundamental civil liberties. 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 strike 26. The committee has always considered that the
exclusion of public servants from this fundamental rights is contrary to the Convention.

22 283rd Report, Case No. 1590 (Lesotho), para. 346.

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23 Digest, paras, 154-156. CFA, 283rd Report, Case No.1590 (Lesotho), para. 349.
24 Digest para. 163
25 Digest para. 164. CFA, 280th Report, Case No.997, 999 and 1029 (Turkey), para.34.
26 ILO, 30th Session, 1947, Report VII Freedom of association and industrial relations p.109.

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 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.

Definition of Trade Union

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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 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
employee27.

According to [Link] 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
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.

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27 [Link], Labour Industrial Laws, Central Law Agency (2008) pp.205.

[Link] 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 welfare 28. 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”29.

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

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28 Soviet Labour Code. Article (5)

29 [Link], Labour problem in India, [Link] Pub. (1964) pp.226

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.

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 compulsion 30. 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 business31.

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 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.

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30. Britley and Distt. Cooperative Society Ltd., Vs Windy Nook and Distt. Co-operative Society Ltd., (1959) All
ER 43 and 623.
31. [Link], Law relating to Trade Unions and unfair labour practices in India, Eastern Pub. Lucknow.
pp.215

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 objectives32.

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 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.

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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 industry 33.

32. [Link], Labour Industrial Laws, Central Law Pub. Alahabad, (2008) p.206.
33. State of Bombay Vs Hospital Mazdoor Sabha (1960) ILLJ 251 SC

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 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.

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.

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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 unorganized sector, (iii) not less than twelve rupees per annum for workers in any other case.

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

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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.

Freedom of Association and Protection of the Right to Organise Convention (No. 87)

Adopted: 9 July 1948

Entered into force: 4 July 1950

The General Conference of the International Labour Organisation, Having been convened at San
Francisco by the Governing Body of the International Labour Office,and having met in its Thirty
first Session on 17 June 1948, Having decided to adopt,in the form of a Convention, certain
proposals concerning freedom of association and protection of the right to organise, which is the
seventh item on the agenda of the session, Considering that the Preamble to the Constitution of
the International Labour Organisation declares “recognition of the principle of freedom of
association” to be a means of improving conditions of labour and of establishing peace,
Considering that the Declaration of Philadelphia reaffirms that “freedom of expression and of
association are essential to sustained progress”, Considering that the International Labour
Conference, at its Thirtieth Session, unanimously adopted the principles which should form the
basis for international regulation, Considering that the General Assembly of the United Nations,
at its Second Session, endorsed these principles and requested the International Labour
Organisation to continue every effort in order that it may be possible to adopt one or several
international Conventions, adopts this ninth day of July of the year one thousand nine hundred
and forty-eight the following Convention, which may be cited as the Freedom of Association and
Protection of the Right to Organise Convention, 1948:

PART I. FREEDOM OF ASSOCIATION

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Article 1 - Each Member of the International Labour Organisation for which this Convention is
in force undertakes to give effect to the following provisions.

Article 2- Workers and employers, without distinction whatsoever, shall have the right to
establish and, subject only to the rules of the organisation concerned, to join organisations of
their own choosing without previous authorisation.

Article 3 - 1. Workers’ and employers’ organisations shall have the right to draw up their
constitutions and rules, to elect their representatives in full freedom, to organise their
administration and activities and to formulate their programmes.

2. The public authorities shall refrain from any interference which would restrict this right or
impede the lawful exercise thereof.

Article 4 - Workers’ and employers’ organisations shall not be liable to be dissolved or

suspended by administrative authority.

Article 5 - Workers’and employers’organisations shall have the right to establish and join
federations and confederations and any such organisation, federation or confederation shall have
the right to affiliate with international organisations of workers and employers.

Article 6 - The provisions of Articles 2, 3 and 4 hereof apply to federations and confederations
of workers’ and employers’ organisations.

Article 7 - The acquisition of legal personality by workers’ and employers’ organisations,

federations and confederations shall not be made The International Labour Organization’s
Fundamental Conventions subject to conditions of such a character as to restrict the application
of the provisions of Articles 2, 3 and 4 hereof.

Article 8 - 1. In exercising the rights provided for in this Convention workers and employers and
their respective organisations, like other persons or organised collectivities, shall respect the law
of the land.

2. The law of the land shall not be such as to impair, nor shall it be so applied as to impair, the
guarantees provided for in this Convention.

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Article 9 -1. The extent to which the guarantees provided for in this Convention shall apply to
the armed forces and the police shall be determined by national laws or regulations.

2. In accordance with the principle set forth in paragraph 8 of article 19 of the Constitution of the
International Labour Organisation the ratification of this Convention by any Member shall not be
deemed to affect any existing law,award,custom or agreement in virtue of which members of the
armed forces or the police enjoy any right guaranteed by this Convention.

Article 10- In this Convention the term “organisation” means any organisation of workers or of
employers for furthering and defending the interests of workers or of employers.

PART II. PROTECTION OF THE RIGHT TO ORGANISE

Article 11- Each Member of the International Labour Organisation for which this Convention is
in force undertakes to take all necessary and appropriate measures to ensure that workers and
employers may exercise freely the right to organise.

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