LEGISLATIVE COMMENT- LABOUR LAW-1

Submitted By
Ramasayi Gummadi
BC0180042

TREATY UNDER CONSIDERATION: 87th Convention of the International Labor

Organisation

FREEDOM OF ASSOCIATION IN INDIA AND REASON FOR NON-SIGNING

From the perspective of Indian Law it is imperative to note that Article 19(1)(c) talks about
the Right to form associations, unions and co-operative societies which inadvertently are
subject toa certain reasonable restrictions by the state which could include any restrictions on
the basis of- In the interest of sovereignty and territorial integrity of the Indian Government,
Public Order with special emphasis on the basic code of conduct pertaining to maintenance of
peace and non-violence and not to mention the morality which has to take into account any
moral wrong that could be committed under a mere formation of such an association thereby
giving rise to such a situation wherein the existence of such an association is a mere threat to
the moral obligations of the society. The first and the foremost question that pops up while
studying about the freedom of association and correlating the same with the Labor Law is to
determine if the same extends to the scope of Trade Unions as determined in the Indian Labor
Law Regime. Not to mention, based on the rough reading of the aforementioned provision in
the esteemed Constitution of India, I am of the opinion that it indeed extends to the same. But
however, I am of certain differences when it comes to the Definition of the Right to
Association as a whole. I would like to concur that the mere formation or grouping of a set of
individuals or in this case the laborers in the form of a union is not the mere heart of the Right
to Association but rather it Is the functioning of such a union that so is formed that
determines the crux of the Association at hand, because, what exactly is the purpose behind
the formation of such an association when the mere functioning of it is rather restricted and
are subject to arbitrary terms by the government? I would thus like to make it clear that the
Right to Association shouldn’t just extend to the Right to Form Such an association but rather
towards the proper uninterrupted functioning of such an association because, without the
freedom to carry out their activities the existence of such a trade union is more or less useless.
For Example the non-Recognition of the principle of Collective Bargaining as a whole and
not to mention the immunities that are granted to the trade unions especially with regards to
the Right to Strike go against the mere grounds under which the freedom of association can
be restricted as under the constitution. The mere non-recognition of the Right to Collective
Bargaining means that the spirit of the functioning of trade unions is lost.

Also, when a question is put forward so as to determine if such trade unions can be subject to
foreign company affiliations and collaborations as under the existing Indian Law, I am of the
opinion that there is nothing that talks about the same in the Trade Unions Act 1926 and Not
to mention Convention 87 talks about the concept of legal personality to trade unions and
when a question arises as to determine what exactly is the scope of the term ‘legal
personality’ I am of the opinion that based on the Trade Unions Act, the same has to be
determined as under the concept of Registration and Recognition respectively. While the
Registration was deemed to be of a nature such that it confers upon the respective union a
legal personality such that it can sue and can be sued as under the law and not to mention the
Right to Registration was also recognized under several precedents it is also imperative to
note that the Right to Recognition was not taken into account and in the mere process of not
determining the Right to Recognition it had inadvertently failed to consider the Principle of
Collective bargaining which is the heart and soul of a trade union and not to mention forms
the crux of the recognition of trade union. Thus, I am of the opinion that the situation calls for
a dire need to determine the scope of such a right assuming it exists, as under the Indian Law.
Not to mention it is also important to note that the scope of what exactly Is to be deemed as
lawful and reasonable interference has to be taken into consideration failure to do which the
freedom to association is pushed to a grave corner owing to the fact that such an intervention
would render such that the union that was formed exercising the freedom of association is
also in its functional state thereby evoking a sense of clarity in the same. Not to mention it is
important to see if the government workers have the right to form trade unions as such with
no exception owing to the mere fact that the government operations at the most of the cases
need not necessarily come under the scope of ‘trade’ and ‘industry’ as a result of which the
mere question as to what exactly comes is the position of trade unions in India that is formed
by the Central or State Government employees is still a grave question and the same can be
attributed to the case of O.K.A . Nair v. Union Of India where it was held that the civilian
employees of the Defence Establishments answer the description of the members of the
Armed Forces within the meaning of Art 33 and, therefore were not entitled to form trade
unions. Not to mention the restrictions on the Freedom of Associations are not ascertained
and only precedents like Haji Mohd.v. District Board and Ramkrishna v. President ,District
Board help us to lay down the standards as to what exactly constitutes such a reasonable
restriction as under the concept of Freedom of Association In the Indian Law.
As per my observations pertaining to the scope of Convention 87 of the International Labour
Organisation, I am of the opinion that the Indian Labour Law suffers from the following
Loopholes:

1. There is a lack of concrete set of rules for the Government Workers’ Unions and the
mere distinction between the defence personnel to others with special reference to the
power to form unions which in my opinion Is very ambiguous in nature
2. There is a lack of glorification with regards to the Right to Recognition as under the
law and the question pertaining to the same was raised in a very few cases as a result
of which the mere right of recognition Is often disregarded as a concept
3. Determination standards as to if a legal personality of a trade union is of the nature
such that the recognition as a whole confers it to such a union is still under question
4. There seems to be a concrete dispute between the law of land and the International
Obligations with a special emphasis on the concept of politicized trade unions. While
the International Conventions don’t seem to have any aversion towards the same, the
Indian Law rather looks at it differently
5. The Indian Law often fails to look at the functional aspect of the trade associations
that so are formed. It rather speaks strongly about the establishment of such a trade
association but it rather doesn’t talk about the restrictions that are unreasonably
inflicted upon the mere functioning of the unions which are ironically in violation of
the Freedom of Association in the Indian Constitution.

ANALYSIS AND IMPLICATIONS OF THE PROVISIONS OF 87TH CONVENTION

First and foremost as under Article 2, it talks about the rights of the employees to join
organizations of their own without any previous authorization. While the term “previous
authorization” is pretty unclear as to what exactly could it imply, I am of the opinion that
such a term would extend to a situation wherein there is no permission from the government
of that particular country say something on the lines of local government which is more or
less an enhancer of the scope of the Right to form associations. While putting the same into
Indian Perspective we could say that the previous authorization could also refer to the various
labor legislations that talk about the procedures involved in the mere process of keeping a
check on the formation and functioning of such unions. While such assumptions can be made
with regards to the scope of such a term alone, it is imperative to note down the fact that the
term ‘previous authorization’ is not really clear and the manner through which the scope of
this clause will extend to local authorities and the legislations that so are taken into
consideration is not well pronounced as under the literal understanding of the text. Article 3
of the Convention talks about the right to form their own constitution and the rules and
regulations that so are to be adduced in the due process of the same in order to formulate the
actionable plans of the unions that so are formed and extended to the scope of the convention
as such. It also evidently talks about the situation wherein the convention merely held that the
such a constitution that so is framed as under the convention must not hinder the
developmental goals at any juncture while also placing a strong reliance on the scope of
intervention from the public authorities where it states that the public authorities should
respect the sovereignty of such a trade union and must not influence the functioning or as a
matter of fact the rules and regulations of the trade union as a whole. While on a rough
understanding the convention is trying to establish a crux of sovereignty to the trade unions
as a whole in the countries which are party to the convention. The third article further
elaborates on the condition under which such an interference by the public authority cannot
be carried out, by stating that it cannot be carried out when an intervention Is against the
lawful exercise of the powers of trade unions that so is carried out in the due course of its
functioning thereby bringing out the elements of non-arbitrariness and non-absoluteness in
the way the powers can be exercised by the concerned union. This is important In order to
keep a check on the way these unions function as a part of the Law owing to the fact that if
the public authority finds it such that there is unlawful exercise of the powers of trade unions
then the public authority can intervene in order to uphold the best interests of the law.

As under Article 4 of the Convention it states that the organizations cannot be subject to any
administrative authority. In very simple terms based on my observation, the term
‘administrative authority’ could merely refer to the situation wherein the authority that is
conferred upon the union by the company should be of a nature such that the same should
respect the autonomy of the trade union. Under this article yet again the convention talks
about the need to recognize the independent sovereignty of the Trade Union. Not to mention
the existence of such an autonomy means that the trade union is looked upon as a competent
entity that is not working under the company but rather working alongside the company in
order to cater for the welfare of the workers. Thus, the company cannot look at the trade
union as its subsidiary unit or a mere functional unit of the company so that it becomes much
easier for the trade unions or as a matter of fact the labor unions in broader sense to question
the company just incase anything goes wrong. This clause establishes the importance of
company’s non-interference in the day to day affairs of the trade union. It is also important to
understand that the mere non-interference in the rules or as a matter of fact the constitution of
the company as a whole encompasses the spirit of the formation of trade union owing to the
autonomy it grants and not to mention it is under this case alone wherein the union is
represented as an entity and the problems of the same are put forward. Not to mention it is
imperative to note that the trade union acquires a separate legal entity that is not associated
with the company apart from the constitutent members’ employer-employee relation with the
heads of the company. Not to mention, this provision also means that the companies cannot
suspend or dismantle the trade unions just like that which is indeed a big plus point. Article 5
states that the workers’ and employers’ organizations will have the right to join in various
federations or represent the fraternity and represent in various conglomerates while also
having the inherent right to affiliate with International Organizations, in this case, the ILO in
itself. The concept of the Freedom of Association Is further strengthened under this concept
and in my opinion this glorifies the mere fact that the decision of the union to join or leave a
confederation of unions or to form the same representing the members of the trading
company or the decision of any union of the trading company to achieve the aforementioned
points is to be left with the respective entities and any unlawful interference must be avoided.
It is important to note that as under Article 5 it talks about the affiliation of the trade unions
with International Organizations thereby giving them a sense of Recognition and not to
mention upholding the sanctity of the Right to Recognition as under the International Law. It
is further important to note that such a direct affiliation would render such that the obligations
of the trade unions at this juncture are greater so as to satify the provisional measures or
protocols that are laid down by the International Affiliations as well as the Local government.
Not to mention the clause might also glorify the principle of Collective Bargaining on a
worldly platform. Article 6 talks about how exactly can Article 2,3 and 4 apply to the
confederations that so are formed. But however we ought to realize that the provision is more
or less hazy as to what the position of the legal status of such a confederation would be.
Would it be perceived as a mere conglomeration of two entities or would the confederations
also carry a mere force as a legal person is completely undetermined as under the convention.
The concept of legal person is very important owing to the fact that the liabilities and rights
are ascertained based on the aforementioned provision and looking at the nature of the same
the mere question of legal status of the parties to the federation and the federation as a whole
is not concrete enough.

Article 7 of the Convention states that the legal personality must be free and in compliance
with Articles 2,3,and 4 of the Convention. It is imperative to note that as under this provision
such a legal personality is rather puzzling when It comes to the practical application of the
same. Not to mention the guidelines as to how such a legal personality can be acquired in
itself is a question especially when we take into consideration the Indian Scenario pertaining
to the field of Labor Law. Assuming that the convention takes into consideration the legal
personality aspect and hands it over as a responsibility of the Local governments atleast in the
case of the scenario in India we are to ascertain the two basic concepts of Recognition and
Registration of the Trade Unions. While both of these concepts have been talked in the Indian
Law, it is the registration that more or less gets the status of a legal personality and can sue
and can be sued as under the law. While the recognition based on a rough reading also
confers a personality to the trade union under consideration based on the precedents a mere
recognition of trade unions wouldn’t give it a nature of a legal personality as under the law,
Not to mention the Right to Recognition in itself Is not well recognized as under the Indian
Law as we take a look at the precedents that were set earlier. While taking the same into
consideration the main aspects of recognition is the right of collective bargaining which is the
mere spirit of trade unions as a whole as a result of which failure to recognize the concept of
recognition is a grave injustice. As under Article 8 we see that the Rights provided pertaining
to the laborers and employers are to be in such a construction that it respects the law of the
land. The main issue behind the provision is that it acts as a mere loophole for the countries
which have signed the convention in order to evade the responsibilities that are provided as
under the convention. It further is important to note that the succeeding sub-clause merely
contradicts the previous point by stating that the law of the land shall not impair such a right
that is guaranteed as under the convention. It further is imperative to note that assuming that
the first and second sub-clauses are to be read together then in such a case the mere
convention places an obligation on the countries to take into consideration and probably
legalize the provisions that are listed in the convention while however the concepts that are
mentioned in the convention might not even make sense when read in accordance with the
existing labour law regime especially with regards to India. In very simple terms it is
imperative to note that the rights that are provided in the convention might sometimes be in
contravention to the pre-existing convention or as a matter of fact the same might not even
exist as under the Labor Law of that member nation and such an obligation forcing to include
the same would inadvertently mean that there is a slight breach in the sovereignty of the
Nation’s way of functioning. As far as Article 9 is concerned it talks about the possibility of
the application of convention to armed forces/ police etc although stating that the extent of
the same is to be determined by the Municipal laws. As under my observation I would like to
contend that under this provision although it talks about the determination of the extent of
such a right by the local government it doesn’t rule out the possibility of the concept of trade
unions extending to the government personnel. It further is important to understand that as
under this provision the mere fact that the work that is performed by the government officials
although coming under the scope of the definition of the ‘workmen’ will not always be able
to form a union that comes under the scope of a ‘trade union’ as under the Indian Law. It is
further imperative to note that as under this scenario countries like India argue against the
provision under this line of an argument and will be put to a great misery as to if they should
satisfy their obligation as under the International Law or go as per the pre-existing provisions

Article 10 merely talks about what exactly comes under the scope of an ‘organisation’. The
organization is any conglomeration or a union of workers or the employees furthering and
defending the interests of their constituent members. Under such a case, there exists a
possibility wherein the unions without the ‘trade’ aspect but under the ambit of the functions
of the trade unions can exist which is not usually the concept that is seen as under the Indian
Law. Not to mention as under such a condition it is imperative to note that India is pretty
unprepared with regards to its competence in dealing with such a situation owing to the fact
that the worker population is heterogeneous and the worker unions rights and liabilities are to
be determined in such a case and it would call for an enforcement of a separate legislation as
under the law

REASONS BEHIND NON-SIGNING

1. Firstly it is imperative to note that the scope of the workers unions as under this
convention is large and signing the same would render such that the trade union
concept as a whole has to be rather diversified and the legislation will have to be
elaborated as a result of which giving rise to a lot of suits and complexities in the
interpretation
2. Second of all, the Defense personnel are not allowed to form unions as under the
Indian Law for they come under the Ambit of article 33 of the Indian Constitution and
 their rights as under Article 19 (1) (c) are not granted. Considering the fact that the
convention aims to provide union formation rights to such individuals too. Not to
mention the unions formed by such individuals need not necessarily come under the
scope of trade unions as under the Indian Law and as mentioned under the previous
point this calls for a broader approach and interpretation. Signing of such a
convention would inadvertently lead to a lot of confusion.
3. Thirdly, the Indian employee population is more or less fragmented, say in the case of
government jobs, there are various posts that differ in hierarchies and one common
union will not be an accurate representation of the population of workers. Not to
mention the Indian Labor scenario is more or less at times oriented towards political
ideologies which aggravates the situation if the rights that are provided in the
convention are read in accordance with the principles of theirs.

CONCLUSION
Based on the aforementioned analysis I am of the opinion that India should have signed the
convention. It is imperative to note that the convention has a couple of loopholes too, but
going by the experience of the Indian legislature and judiciary in law making and law
upholding capacities the Indian Labor Law regime can very well overcome such a paucity.
Not to mention the signing calls for a very needed change in the already outdated Trade
Unions Act which had not recognized the Right to Collective Bargaining or the Right to
Recognition. It is important to note that with the changing times, the member nations also
will have to evolve and I am of the opinion that India should’ve signed the treaty. Not to
mention it is also important that the Indian Government takes into consideration the various
non-conformities pertaining to the municipal law and the International Obligation and solve
the save, upholding the standards of the rights of the employees as well as the employers in
compliance with the globally accepted standards thereby also glorifying the right to
association that so is universal in this context unlike its mere restriction to the constitution
alone.