2010 Annual Survey of violations of trade union rights – India

Population: 1,200,000,000
Capital: New Delhi
ILO Core Conventions Ratified: 29 – 100 – 105 – 111

Despite barriers to organising and the recognition of trade unions in law and practice, workers engaged in illegal strikes and protests to establish basic rights to bargain and union recognition. There were many incidents of police and company sponsored violence against trade union officials and workers. One worker died during protests in Gurgaon, Haryana. Thousands of workers were arrested or faced criminal charges for engaging in strikes and protests. Numerous trade union leaders were arrested and harassed for their activities.

Trade union rights in law

While basic trade union rights are guaranteed, many restrictions apply in particular in the various states. Workers may establish and join unions of their own choosing, however the Trade Unions Act does not apply in Sikkim. Consequently, workers there do not benefit from the same trade union rights, and union activities are very restricted. In all of India, a union must represent an inordinate 100 workers or 10% of the workforce in order to register, and the law limits the number of “outsiders” to sit on a union executive committee.

While the right to collective bargaining is guaranteed, there is no legal obligation on employers to recognise a union or engage in collective bargaining. Public service workers enjoy very limited rights to organise and bargain. Furthermore, no government servant may resort to any form of strike, and the government may also demand conciliation or arbitration in certain “essential” industries. As the law does not specify which these industries are, the interpretation varies from one state to another.

While strikes are permitted in the special economic zones, a 45-day strike notice period is required. In the State of Kerala, general strikes are illegal and organisers of such a strike can be held financially liable for damages caused to an employer, while in Tamul Nadu, the Essential Services Maintenance Act prescribes imprisonment of up to three years for strikes in “essential services”, and defines a strike as including a refusal to work overtime.

Trade union rights in practice and violations in 2009

Background: The prime minister Congress-led coalition won the general elections in April and May, coming within 11 seats of winning an absolute majority in parliament. The global financial crisis has resulted in a sharp slow-down in India’s growth momentum from 9% in 2007 to 6.7% in 2008. However, there are indications that the various fiscal and monetary stimulus measures announced by the previous UPA Government have begun to yield some results. However, the gender disparity on the economic front is reflected in the low female work participation rate of 25.7% as compared to 51.0% for males.

Union protection restricted to a small minority of workers: In practice, workers’ rights are only legally protected for the small minority who work in the organised industrial sector. Over 90% of workers are employed in the agricultural sector and the informal economy, where there is little union representation and it is difficult to enforce legislation. The growing use of contract labour is also creating problems for organising workers.

Hostile employers, poor law enforcement: The generally hostile attitude of employers towards trade unions is clearly a deterrent to organising. Employers tend to either ignore the law making it illegal to dismiss a worker for their trade union activities or circumvent it by transferring workers to other locations to disrupt union activities or discourage union formation. Seeking justice through the judicial process is time consuming and very costly. Employers also establish and recognize “worker committees” or company dominated unions to avoid genuine trade union representation.

Death amid protests in the auto industry: About 1,300 workers from Rico Auto Industries Ltd. (Rico) in Gurgaon, Haryana, went on strike on 21 September after the company suspended 16 of their co-workers. The workers also demanded the recognition of their trade union formed by the All India Trade Union Congress (AITUC). Pushpinder Singh, Secretary of the RICO employees union, said that Rico locked out the workers and suspended the 16 workers right after he filed the registration of the union at the labour department in Chandigarh. On 22 September, at least 35 workers were injured when police lathi-charged 3,500 demonstrating workers off the Delhi-Gurgaon expressway near Hero Honda Chowk, Haryana, where the workers were protesting the dismissal of their 16 co-workers.

On 20 October, over 100,000 workers from 70 auto companies at the Gurgaon-Manesar belt stopped work in support of the striking Rico workers. Police invoked Section 144 of criminal penal code that bans assembly of over five persons to counter the demonstration. The incident that sparked the mass protest occurred on 18 October when a Rico employee Ajit Kumar Yadav, 28, died during a continuing strike by workers against the company’s suspension of their co-workers. Kuldeep Singh, AITUC Vice-president for Gurgaon District, said the worker was beaten to death by men carrying iron rods who were believed to be associated with Rico. Singh also said that about 40 other workers were injured. On 22 October, Rico Auto said it was ready to recognise the labour union and take back some of the suspended workers.

Protesting workers charged by police: Police cane-charged about 200 teachers who were protesting outside the Vidhan Sabha in Hazaratganj police circle on 12 February in support of their demand for pay equity. Police also arrested teacher leader and president, Lal Bihari Yadav along with four other teachers on charges of creating a public disturbance. More than 24 teachers were also injured on 13 September when Sitapur police in Uttar Pradesh launched a lathi-charge against primary school teachers who were protesting against the brutal murder of a female teacher, Aradhana Tiwari, on 10 September.

At least five persons, including a boy, were injured in Srinagar, Jammu and Kashmir when police lathi-charged, fired teargas shells, and used water cannons to disperse a rally of striking employees of State Road Transport Corporation on 1 September. The striking employees demanded the payment of their salaries that had not been paid for last five months. In addition, on 15 September, police lathi-charged workers of the unorganised sector affiliated with the Congress of Indian Trade Unions (CITU) who were picketing the Vikasa Soudha complex demanding an increase in minimum wages and regularisation of services of daily-wage workers. Several leaders, including leaders from the CITU and the Communist Party of India, were injured in the lathi-charge.

About 20,000 almond processing workers in Karawal Nagar, Northeast Delhi, who are members of the ‘Badaam Mazdoor Union’ (BMU) went on strike on 15 December to demand their statutory rights. Two days later, almond contractor goons attacked a peaceful procession of women workers, their children and union leaders with rods and sticks. Two BMU leaders and several workers were seriously injured.T Police arrested three BMU leaders. Also, the International Transport Workers’ Federation claimed that shipping company Møller-Maersk’s contractor SC Thakur was responsible for attacks on three members from the Transport and Dock Workers’ Union on 23 October. The members say they were beaten by SC Thakur supervisors who forced their way into their home. They were also told to leave the union. All the victims had made court depositions regarding the SC Thakur’s failure to pay their provident fund (social security/pension) contributions.

Workers arrested and charged with criminal offences: Mundra police officials in Gujarat State filed a charge against 5,000 workers at the Siracha power plant for demonstrating on 7 May after a worker died in an accident. On 19 June, police arrested 70 contractual teachers who protested near Matka Chowk to demand regularisation of their teaching position by the Chandigarh Union Territory Administration. The teachers were charged for allegedly violating orders imposed under Section 144, CrPC. Then, on 29 June, police arrested the Jeeva Oppantha Thozhilalar Sangham (affiliated to the All India Trade Union Congress AITUC) vice-president and two executive members who had lead a strike by a section of the contract workers at the Neyveli Lignite Corporation in Chennai, Tamil Nadu.

On 15 September, Kothrud police in Maharashtra State charged Kirloskar Cummins Employees’ Union President Mahendra Balwadkar and 800 to 1,000 employees of Cummins India Limited at Dahanukar colony in Kothrud for alleged destruction of company property following a demonstration by the workers over the suspension of 11 union workers. In another event, police in Naupada, Andhra Pradesh, arrested and detained more than 12 protesting civil service workers who were members of the Municipal Labour Union for engaging in an unlawful assembly outside the municipal government headquarters on 1 December. The group was protesting against the imposition of the new biometric attendance system. Police also arrested Prashant, Pramod Kumar and Tapish Maindola of the Joint Workers’ Rights Struggle Forum of the Modern laminators Ltd. and Modern Packaging Ltd. factories at Gorakhpur in Uttar Pradesh on 15 October, and were held in detention for seven days.

On 1 October, thousands of workers from various factories blocked the Delhi-Gurgaon expressway near Hero Honda Chowk and the service lane of the expressway near Rajiv Chowk after they learned that Gurgaon police detained AITUC General Secretary Gurudas Dasgupta and AITUC leader H.L. Sachdeva. The two AITUC leaders were on their way to address striking workers in Gurgaon industrial area. In a similar incident on 4 November, Gurudas Dasgupta was taken into ‘preventive custody’ by Haryana police took when he was proceeding to address a workers’ rally in Gurgaon industrial area.

Anti-union tactics at Hyundai: More than 1,300 Hyundai Motor India Employees’ Union (HMIEU) workers at Hyundai Motor India Limited (HMIL), located in Chennai, Tamil Nadu, went on strike on 20 April after management refused to negotiate with the union. Since July 2007, HMIEU trade union leaders, members, and supporters have suffered from dismissals, suspensions, and transfers. They have also faced the company’s widespread use of threats, harassment, and intimidation for joining a union. The struggle intensified on 6 May when 900 strikers were arrested, which prompted letters of protest as well as meetings and demonstrations at Hyundai’s headquarters in Korea by International Metalworkers’ Federation affiliates. As of December 2009, 65 workers have been fired for their union activities and 34 more were in the process of being dismissed.

On 23 July, Hyundai signed a wage settlement with a pay rise over a three-year period. However, a section of employees of the Hyundai Motors at its Sriperumbudur plant in Tamil Nadu began a sit-down strike protesting the wage agreement because management was forcing them to agree to settlement. The company also refused to recognise any established union in its plant at Irungattukottai in Tamil Nadu. HMIL Chairman and Managing Director H S Lheem said that the company would only negotiate with the Workers’ Committee set up by management, with which the company had recently entered into a wage settlement.

Leaders dismissed after union registration: On September 8, over 300 pilots of Jet Airways engaged in a sick-out over the dismissal of General Secretary D Balaraman and Joint Secretary Sam Thomas of the National Aviators’ Guild (NAG). The union was established in June and registered in July, and the two leaders received letters of dismissal shortly after. Guild President Girish Kaushik said that Jet management agreed to reinstate the two dismissed pilots on the condition that NAG is dissolved. On 9 September, Jet successfully applied to the Bombay High Court for a restraining order against the pilots sick-out. The sick-out ended on 13 September.

Rubber workers’ union finally vindicated: In a labour dispute that has its origins in ILO complaints filed in 2006 and 2007 by the Madras Rubber Factory United Workers Union (MRFUWU), on 9 May, hundreds of workers struck the Madras Rubber Factory (MRF) tyre company factories in Arakonam, Tamil Nadu, and in Puducherry. The workers demanded a pay increase and recognition of the MRFUWU as the legitimate representative of MRF workers. The MRF responded to the strike by locking out workers on 17 May. Then, on 20 May, police arrested and removed over 600 striking workers at the MRF plant in Arakonam, as well as those demonstrating outside the factory. Three days later, police arrested nearly 3,000 striking Arakonam MRF workers and family members and who were camping outside the labour commissioner’s office. Both the MRFUWU and MRF filed a number of court cases as a result of the 9 May strike. However, on 9 September the Madras High Court issued a decision that the MRFUWU has to be recognised by the MRF management and should agree to adhere to the ILO recommendations. On 14 September, MRFUWU ended its 125 day strike and resumed work.

Child workers died in cotton fields: Taking serious note of deaths of tribal child workers in Bt cotton fields of Gujarat, the National Commission of Women and National Commission of Protection of Child rights formed a committee to investigate the issue. The Times of India first reported the death of five tribal workers in the cotton fields in its report “Life is cheap in the killing Bt cotton fields of Gujarat” dated 28 August and the death of five more Bt cotton field workers in a second report dated 6 September. Around 150,000 tribal children from Dungarpur and Udaipur districts of Rajasthan go to work in Bt cotton fields in Bansakantha and Sabarkantha village of Gujarat. Around 75% of them are below 14 years of age and the rest below 18.

Nestlé coerced unionists, obtained injunctions: On 27 April, 750 workers at Nestlé’s factory in Pantnagar, Uttar Pradesh, went on strike demanding the reinstatement of unfairly dismissed workers, permanent jobs for over 400 “trainees” illegally denied job security, and an end to management interference in the registration of their trade union, the Nestlé Mazdoor Sangh (Nestle Workers Union – NWU). The union began the strike when management attempted to force four workers to “voluntarily” resign as part of an effort to prevent union organising. Three workers refused and were dismissed. After an agreement was made between the union and management on 1 May, the next day the company suspended four NWU leaders, including the union president. Workers attempted to resume their strike but police prevented them from protesting at the factory. In March, 55 workers officially formed the NWU when they submitted an application for registration with the local authorities. In response, Nestlé threatened 25 workers and forced them to sign a false statement claiming that they joined the union under “coercion”.

In January, Nestlé India also successfully filed injunctions in four courts in three states that banned all union meetings, gatherings, and rallies within 200 metres of its factories in Moga, Punjab State, Samalkha, Haryana State, and Ponda Goa and Bicholim in Goa State. In defiance of the injunction, on 16 April The Federation of All India Nestlé Employees, who represent the workers in these factories, launched protest actions and demanded that management immediately bargain on wages.

Migrant workers detained: On 26 September, the Bihar State Chief Minister ordered a high-level probe into the case involving the abduction and detention of migrant workers from Bihar by the owners of a textile factory in Coimbatore. As reported, 22 workers from Bihar were illegally detained in a small facility where they were denied food and drinking water.

source: http://www.unhcr.org/refworld/country,,ITUC,,IND,,4c4fec75c,0.html

2009 Annual Survey of violations of trade union rights – India

Population: 1,100,000,000
Capital: New Delhi
ILO Core Conventions Ratified: 29 – 100 – 105 – 111

Barriers to the organising of trade unions continued in law and practice, and the government maintained strong restrictions on the right to strike. Unilever and Maersk again stood out for their anti-union practices.

Trade union rights in law

Workers may establish and join unions of their own choosing without prior authorisation. However, there is no legal obligation on employers to recognise a union or engage in collective bargaining.

The legislation makes a very clear distinction between civil servants and other workers. Public service employees have very limited organising and collective bargaining rights.

Freedom of association limited: Under the 2001 Trade Unions Act, a union has to represent a minimum of 100 workers – which is excessive by international standards – or ten per cent of the workforce, whichever is less. The act also sets limits on the number of “outsiders” (those not employed at the enterprise) allowed to sit on a union executive committee and requires unions to submit their accounts for auditing.

Anti-union discrimination: The Trade Unions Act prohibits discrimination against union members and organisers, and employers can be punished if they discriminate against employees engaged in union activity.

Restrictions on the right to strike: Under the 1947 Industrial Disputes Act (IDA), industry workers in public utilities have to announce a strike at least 14 days in advance. In some states, the law demands that certain private sector unions must submit formal notification of a strike before it is considered legal.

Strike bans: The Essential Services Maintenance Act (ESMA) enables the government to ban strikes in public enterprises and demand conciliation or arbitration in certain “essential” industries. However, the Act does not define which these essential services are. Interpretation therefore varies from one state to another. Legal mechanisms exist for challenging a decision taken under the terms of this Act, if a dispute arises.

The Central Civil Services Rule (1964) stipulates that no government servant shall resort to, or in any way abet, any form of strike.

In August 2003 the Supreme Court ruled that government employees did not have the right to strike because it “inconvenienced citizens and cost the state money”. The ruling came following a strike in Tamil Nadu state, whose government had dismissed 350,000 striking employees. In December 2003, the Supreme Court ruled that lawyers had no right to go on strike, or to boycott the courts.

Sikkim – excluded from the law: The Trade Unions Act, even after its amendment in 2001, does not apply in Sikkim, a State annexed to India in 1975. Consequently, workers there do not benefit from trade union rights. Although there are some workers’ associations, no one sector, as such, is organised. Registration of trade unions is subject to a police inquiry and then depends upon receiving the permission of the Land Revenue Department of the Government of Sikkim. One negative comment by the police about a member of the union’s executive can be grounds for refusing registration. Furthermore, the public too has an opportunity to state its objections to the creation of a trade union, which can also prevent its registration.

Repressive legislation in Tamil Nadu State: The Tamil Nadu Essential Services Maintenance Act (ESMA) was passed in May 2002. Characterised by trade union leaders as one of the most repressive pieces of legislation enacted against workers in India since independence, the Act prescribes a punishment of up to three years’ imprisonment and a 5,000 rupee fine against participants in a strike involving “essential services”. A large number of public services are included within the definition of “essential”, such as those relating to the supply of water and electricity, passenger and goods transport, fire fighting and public health. Activists who call for a strike or instigate workers to go on strike, or anyone who provides financial assistance for the conduct of a strike, risks the same penalties. Under the Act, the word “strike” not only includes the refusal of employees connected with these “essential services” to “continue to work or to accept work assigned”, but also a “refusal to work overtime” and “any other conduct which is likely to result in, or results in, cessation or substantial retardation of work in any essential service”. The government has ignored ILO recommendations to amend the Act.

General strikes banned in Kerala: In 2002, the State of Kerala issued an order stating that all general strikes were illegal when they involved a complete closedown of all activities. Furthermore, organisers of a general strike who cause a shutdown can also be held financially liable for damages caused to an employer. The Kerala state order was challenged, but it was upheld as legal by the Supreme Court.

Export processing zones (EPZs): The right to join trade unions and bargain collectively exists in law for EPZs. In the 2001 Trade Union Act, the government designated the EPZs and special economic zones as “public utilities”, requiring a 45-day strike notice period.

Trade union rights in practice and violations in 2008

Union protection restricted to a small minority of workers: In practice, workers’ rights are only legally protected for the small minority who work in the organised industrial sector. Over 90 per cent of workers are employed in the agricultural sector and the informal economy. In those sectors there is little union representation and it is difficult to enforce legislation. The growing use of contract labour is also creating problems for organising workers.

Hostile employers, poor law enforcement: The generally hostile attitude of employers towards trade unions is clearly a deterrent to organising. Employers tend to either ignore the law making it illegal to dismiss a worker for their trade union activities or circumvent it by transferring workers to other locations to disrupt union activities or discourage union formation. Seeking justice through the judicial process is time consuming and very costly.

Another common form of harassment is the filing of false criminal charges. These lead to unfair dismissal, and here too the slowness of the courts prevents workers from obtaining justice within a reasonable period. Unions report also that some employers resort to intimidation, threats, demotion, beatings and, in extreme cases, death threats or even attempted murder against trade unionists. Intimidations took place in particular in 2008 in Hyderabad and in 2007 in Bangalore, when store managers from the Metro Cash and Carry chain pressured their employees to quit their trade union, UNICOME.

Dismissals of trade unionists: On 2 April, five members of the Delhi State Electricity Workers’ Union (DSEWU) were dismissed for supposedly “shouting slogans” criticising the management of their employer the Indraprastha Power Generation Company Ltd (IPGCL). Employees’ protests followed the failure by IPGCL management and Delhi Transco Ltd to respect a tripartite agreement requiring consultation and negotiation with the trade union, despite a court decision upholding the validity of this agreement. The dismissed workers are Somi Chetterji, Krishan Chakroborty, Amarjeet, Rama Kant and N.C. Joshi.

The ITGLWF also reports that in April it contacted the company KMD Apparels in Bangalore to protest against the dismissal of two unionised workers. When workers began to organise, management repressed all trade union activities.

Maersk continues to tolerate violence against trade unions: In January 2008, SC Thakur (which transports containers for Global Terminals India (GTI), a subsidiary of the multinational Maersk, in the port of Mumbai) created a yellow trade union, Navi Mumbai General Kamgar Sanghatana Union. Various intimidation measures were also used to force workers to join. One driver, Sunil Kumar, was even attacked and had to be hospitalised. Despite several attempts at conciliation, in particular by the ITF, no lasting solution has been found until now, among other things because GTI is lobbying in favour of the yellow union, which has been unable to prove it has the number of members it says. SC Thakur had already been mentioned in the 2008 Annual Survey for violence against trade union militants.

Unilever continues fight against independent trade unions: Unilever management at Hindustan Unilever at the Doom Dooma industrial estate in the province of Assam, already mentioned in the 2008 Annual Survey, has continued its pressure on the HLWU trade union in 2008. The IUF also reports that, on 6 February, the heads of the puppet trade union HUSS attempted, on false pretences, to get workers to sign up to negotiating a new long-term agreement, as the present agreement (negotiated by HLWU) expired on 1 April (this would establish HUSS as the sole negotiating agent). Given the doubts and refusal of certain workers, Hindustan Unilever management threatened to close the factory! The IUF informed the OECD’s National Contact Point for the UK in charge of monitoring compliance with the OECD Guidelines for Multinational Enterprises (which prohibit company managements from threatening product transfers in the context of a labour conflict).

Repression in the construction and ship-breaking industries: Contractors and sub-contractors in the construction industry are loathe to allow workers to exercise their right to trade union membership and are likely to threaten them with dismissal should they try. Since all work is project-based, the possibilities for engaging in collective bargaining are extremely limited.

Similarly, in the ship-breaking industry, employment is so precarious that workers do not try to enforce their right to organise trade unions. Anyone who even attempts to demand a wage increase is fired instantaneously. Intimidation is commonplace and the “muqaddam”, a kind of foreman responsible for hiring and supervising the workers, sides more with the ship-breaker than with the workers.

Export processing zones (EPZs): The government seeks to keep trade union activity in the country’s EPZs to a minimum. Although the right to join trade unions and to bargain collectively exists in law, in reality entry to the zones is restricted to the workers, some of whom are transported in by their employers. Since trade unionists are not able to enter, organising is extremely difficult and union activity rare in the EPZs.

There are moves to exempt the zones from the application of labour laws. Some states, such as Andhra Pradesh, have even dissuaded labour departments from conducting inspections in the zones.

Workers fear victimisation by management and those who protest are immediately sacked. It is common for workers to be employed by fictitious contractors on temporary contracts rather than directly by the company.

source: http://www.unhcr.org/refworld/country,,ITUC,,IND,,4c52cae637,0.html