Population: 1,100,000,000 / Capital: New Delhi / ILO Core Conventions Ratified: 29 – 100 – 105 – 111
The savage beating by police of hundreds of unarmed Honda Motorcycle workers in Haryana put the plight of workers on the front pages of the newspapers, and at the centre of policy discussions, for months. Barriers to the creation of trade unions remain in law and practice, as do strong limitations on the right to strike. Government employees are barred from striking by a High Court ruling, and the government ignored comprehensive ILO recommendations to revise Tamil Nadu states' repressive laws and practices against public servant unions.
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
The 1926 Trade Unions Act was amended in 2001. Under the amended 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, compared with a minimum membership of seven workers previously. The amendment also reduced the number of "outsiders" (those not employed at the enterprise) allowed to sit on a union executive and requires unions to submit their accounts for auditing.
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.
Workers in the banking industry have to give six months' notice before going on strike. The industry has been declared a public utility under the Industrial Disputes Act.
The Essential Services Maintenance Act (ESMA) enables the government to ban strikes 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 nonetheless exist for challenging a decision taken under the terms of this Act, if a dispute arises.
The Central Civil Services (Conduct) Rule, 1964, stipulates that no government servant shall resort to, or in any way abet, any form of a 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 the Tamil Nadu state, whose government dismissed 350,000 striking employees. In December 2003, the Court ruled that lawyers had no right to go on strike, or to boycott the courts.
The Industrial Disputes Act prohibits retribution by employers against employees involved in legal strike action.
Increased threat of "reforms" to gut labour laws
The government finalised amendments to labour laws in 2003 which were aimed at empowering the employers to hire and fire at will, legalise contract work in a wide range of occupations and introduce unilateral changes in service conditions. In May 2004, however, following the general election which saw a change of government, the new governing coalition pledged to consult the trade unions in advance before tabling any amendments to labour law.
In October 2005, the Ministry of Labour followed up that pledge by sending a proposal on "Making Labour Markets Flexible" to the major trade union congresses. The proposal was met with outrage by trade union bodies across the political spectrum.
Among the changes proposed were amendments to the Contract Labour (Regulation and Abolition) Act, 1970, which would open up huge swathes of the economy to contract labour arrangements by expanding exclusions to the Act for work of a year-round nature. Among the new sectors that the Ministry proposed to exclude are information technology and support services in establishments at ports and dockyards, airports, railway stations, interstate bus terminals, hospitals, educational and training institutions, and guesthouses and clubs. The Ministry also recommended that export oriented activities, including those in special economic zones, and support services for those zones, should be on the list, which would make contract labour available for these sectors. Another problematic proposal is raising the threshold (from 100 workers to 300 workers) of the size of enterprises that do not need government permission to lay off workers.
At the end of the year, no concrete legislative action had been taken on the government's proposals.
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. According to the State government, however, no such instance of objection by the public to the creation of a union had come to its notice.
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 declared that all general strikes were illegal when they involved a complete close down of all activities. This was upheld in the courts.
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 (SEZs) as "public utilities", requiring a 45-day strike notice period.
The Mahanagar Asangathit Mazdoor union reported
that the government of Delhi State has exempted EPZs from most labour legislation and there is a ban on the formation of trade unions.
TRADE UNION RIGHTS IN PRACTICE
Only a small minority of workers protected
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 belong to the agricultural and informal sectors where there is almost no union representation, and where it is difficult to enforce legislation. The growing use of contract labour also creates problems for organising, and weakens the unions. Even governments are turning to contract labour. In 2004, the government of the Tamil Nadu state ordered its health department to recruit personnel, other than doctors, on a contract basis through private agencies.
The Tamil Nadu state government also continued to refuse to recognise and bargain with unions of government employees and teachers, and continued to seal off the Tamil Nadu secretariat building, which served as the Tamil Nadu Government Employees' Union headquarters until a 2002 strike. The ILO CFA called on the Government to immediately extend recognition to these unions, and cease to hold the building. Unfortunately, the government declined to send any communication to the ILO CFA regarding the case, indicating a continued unwillingness to seriously consider trade union rights for its public servants.
Hostile employers, poor law enforcement
The 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 costly. Unions report that some employers resort to intimidation, threats, demotion, beatings and, in extreme cases, death threats or even attempted murder against trade unionists. A more popular form of harassment, however, is the filing of false criminal charges.
One problem with such charges, in addition to unfair dismissal, is that the courts are excruciatingly slow. Legal charges were brought by a police officer against 12 leaders of a tea workers' union, the Hind Khet Mazoor Panchayat (HKMP) in 1995. They related to a peaceful demonstration in the Araria district in December 1993 attended by thousands of workers, which allegedly blocked the passage of the police officer. The case didn't come to court until 12 years later, in September 2005. Three of the accused had passed away in the interim. There is no concrete evidence to support the charges filed, but the legal battle has effectively distracted the officers from their union work for all that time.
Globalisation and economic liberalisation have created a climate in which there is further pressure to dilute labour standards, in particular labour inspections and the enforcement of labour legislation.
New employment sectors such as call centres, the visual media and telecommunications are not covered by any explicit employment regulations and employers obstruct the formation of unions. High levels of casual employment were built into the structure of the call centre/business process outsourcing (BPO) industry, affecting many of the approximately 400,000 of these workers in India, and making it difficult for them to organise.
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 "muqadam", who is responsible for hiring and supervising the workers, sides more with the ship-breaker than with the workers.
In the absence of a statutory right to collective bargaining, employers are frequently reluctant to negotiate, and in particular, refuse to negotiate with the unions of the workers' choice.
The procedures for holding a legal strike are so cumbersome that unions rarely fulfil them completely. Most private sector strikes are therefore technically illegal, although reprisals have been rare so far.
In the public utilities, unions tend to take strike action, despite the ban. Such strikes are declared illegal and, if the union is not strong enough, can lead to reprisals.
Export processing zones (EPZs)
The government seeks to keep trade union activity in the country's seven 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, who 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.
The majority of workers in the EPZs are women, employed in industries such as ready-made garments, electronics and software. In the Santacruz Electronics Export Processing Zone (SEEPZ) near Bombay, 90 per cent of the workers are women who are generally young and too frightened to form unions. Working conditions are bad and overtime is compulsory.
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. In the Noida EPZ, workers have been sacked for demanding that labour laws should be implemented.
VIOLATIONS IN 2005
The UPA (United Progressive Alliance) government of Prime Minister Manmohan Singh continued to promote economic reforms, but was unable to pass major labour legislation during the year. Southern India, especially the Tamil Nadu state, was struggling to recover from the Asian tsunami of 26 December 2004, which killed thousands and destroyed the economic livelihoods of the survivors.
Busting the union at Pepsi
Workers at PepsiCo's directly-owned bottling plant in Bajpur, Uttaranchai, formed a union in June 2005, and applied for official registration. Within days of this application, management transferred seven officials and activists (all of them production workers) to distant facilities. When the union responded by calling a strike on 8 June, PepsiCo suspended the transferred workers and followed this up by suspending seven more union activists for their activities during the strike. A month long strike ensued, with 87 permanent workers on the picket line. During this time, PepsiCo hired temporary workers to replace the strikers. PepsiCo maintained that the strike was illegal since statutory notice had not been provided, and they had no obligation to bargain with the strikers. Tripartite mediation by the Ministry of Labour was initiated to resolve the dispute, yet no solution was found. At the end of the year, the dispute was still unresolved.
Police violence against Honda workers in Haryana
Using lathis, which are heavy wooden clubs bound with iron, over 100 Haryna police and security officials surrounded and viciously attacked a group of protesting unionists from Honda Motorcycles and Scooters India (HMSI) Co. on 25 July. More than 250 workers
were seriously injured, one worker was killed and an undetermined number went missing after the attack, which drew national and international condemnation, and compelled the direct involvement of the Prime Minister, Manmohan Singh, and UPA leader, Sonia Gandhi, in seeking solutions. The incident confirmed Haryana's reputation as a state where there is close collaboration between the local government and employers in the violent suppression of workers' rights.
Over the six months leading up to the incident, HMSI engaged in a systematic campaign to prevent the formation of a union by employees unhappy with the poor treatment of workers, and sharp increases in workload without a commensurate wage rise. The union's application for registration was in its final stages when Honda began its anti-union tactics in February. In April, management decided to terminate four workers without notice, including union President, Suresh Gaur, and one other officer-holder in the nascent union. In May, Honda management suspended more union leaders and activists – first 13 workers, and subsequently another 37. The union continued to mobilise and seek supporters, and the conflict escalated. On 27 June, workers reporting to the factory found themselves illegally locked-out. Management required workers wanting to enter the factory to sign an anti-union "good conduct" letter, which most refused to do.
As the lock-out continued, police surrounded the factory, giving the first hint of the close relationship between factory management and authorities. Mediation by the Department of Labour in early July failed, as management reneged on an agreement to allow the return of workers to the factory, and refused outright to reinstate the four fired and 50 suspended union activists.
On 25 July, approximately 2,700 workers gathered peacefully in Kamla Nehru Park to protest the lock-out. Without provocation, Haryna police brandished lathis, and charged the rally in an unsuccessful attempt to disperse it. An undetermined number of workers and at least one policeman were injured when workers defended themselves. Approximately five hours later, leaders were invited to meet with the Deputy Commissioner of Police, Sudhir Rajpal, for talks at a local government office. A large group of unarmed workers accompanied the leaders, and sat peacefully outside the office, waiting for the outcome. Public security officers – who appear to have been organised in advance for this purpose, since the force included Haryana police, fire brigades, Rapid Action Force members, and police officials from neighboring police stations – then surrounded the protesters and brutally attacked to them. Eyewitnesses say that the attack started in the presence of the Deputy Commissioner. Claims by the Deputy Commissioner and police that the workers were armed, and that the police action was in self-defence, were exposed as lies by media videotapes and independent investigations into the incident.
Among the approximately 400 workers arrested, 340 were released after being held overnight, while 63 were kept locked up and charged with offences ranging from assault to attempted murder. Union sources reported that only two of the 63 held were spared grievous injuries to the head, arms, or legs, and that many had single or multiple bone fractures from the beating.
National outrage prompted the Haryana Chief Minister to accuse the media of engaging in a "conspiracy to defame" his government by reporting the incidents. Haryana police alleged they were acting in retaliation for attacks earlier in the day, further eroding the credibility of those responsible for this police riot. After five independent inquiries and a debate in the national Parliament, the Haryana Chief Minister finalised a "settlement" between the local union (national labor leaders were excluded by the government) and the HMSI management on 26 July. HMSI agreed to take back the 54 fired and suspended workers, but only provided that these workers could be shifted off the line where the majority of workers are. Recognising the lock-out had been illegal, the HMSI also agreed to back-pay to all locked out workers for May and June. The union in turn was required to forego a wage hike for one year, withdraw its collective bargaining demands, and "maintain discipline" at the factory. Both the Deputy Commissioner of Police and the Police Superintendent were transferred out of the area.
Protesting workers beaten in Haryana
On 14 August, in Rohtak, Haryana, a large group of police, armed with lathi, charged a group of 70 protesting workers who were former members of the disbanded Haryana Industrial Security Force. The former security guards were seeking an audience with the Chief Minister of Haryana. Eight workers, including two women, were injured seriously enough to be hospitalised, while another 30 were treated at private clinics and released. The police arrested 40 workers, of which 19 were women, in connection with the incident.
Protesting teachers attacked by police
On 26 December, police armed with lathi used water cannons and then charged and beat hundreds of contractual, temporary teachers who were protesting in front of the Birla Institute of Technology in Patna. The attack sent 25 educators to the hospital. The teachers were seeking to meet the Chief Minister to press demands about about pay and conditions.
Tamil Nadu arrests picketing Electricity Board workers
Members of the Tamil Nadu Electricity Board Employees' Union conducted non-violent pickets to pressure Board to consider regularising field staff. The protests occurred in early and mid-November, and on 12 November, public pickets in prominent areas prompted police to make mass arrests. They included 301 arrested in Dindigul, 197 in Tiruchi, 273 in Pudukottai, 80 in Perambular, 137 in Karur, and several thousand in Chennai. The workers were released soon after their arrests.
Self-Employed Women's Association (SEWA) under attack
SEWA, a dynamic trade union of 700,000 informal sector women workers operating in Ahmedabad and surrounding areas, reported that it was facing a campaign of systematic harassment from the conservative BJP-led government of Gujarat state. Using its power as an intermediary to the international community, the Gurajat government halted funding from the UN's International Fund for Agricultural Development (IFAD) to SEWA for the support of 14,000 families impacted by a devastating 2001 earthquake. Government allegations that there were "financial irregularities" were belied by the fact that its own auditors had examined SEWA's accounts, and already approved the audits. The Government also sought the return of other monies given for previous programmes completed (and audited successfully) as long as five years ago. The government's activities effectively paralysed SEWA and prevented it from carrying out a range of its representation activities. Over 11 months of effort by SEWA to negotiate with government officials was frustrated by an unwillingness to resolve matters in good faith. This brought SEWA to publicly state in October 2005 that the government's campaign seeks "to destroy our credibility, our solidarity, and our reputation." Support from three Global Union Federations to which SEWA is affiliated, and letters endorsing SEWA's integrity from IFAD, have fallen on deaf ears. SEWA has been given no option but to end all cooperation with any government agencies, and as the year ended, the campaign of financial harassment and slander against SEWA continued unabated.
Stallion Garments – bringing union activity to a standstill
Stallion Garments, a leading member of the Tirupur Exporters' Association, engaged in a systematic campaign to harass unionists, fire workers, and threaten labour support organisations. The problems began in June 2004, when workers held demonstrations seeking pay raises in line with a reg
ional wage accord. Management responded by firing 20 worker activists in the factory. This in turn sparked further demonstrations, and the company sought (and received) interim stays from three district courts. The three courts' overlapping rulings prevented unions from entering the factory area, from raising banners or chanting slogans within 100 meters of the factory, from holding meetings within 300 meters of the factory, and from holding any sort of assembly at all. Management then alleged violations of these orders and filed court cases against the six labour unions involved in the struggle. International solidarity support from the NGOs in the Clean Clothes Campaign brought pressure on the factory, and resulted in threats of violence being made by the locally influential factory owner against a labour NGO involved in the campaign. At the end of 2005, the workers had not been reinstated, the unions were fighting legal cases in the courts, and the campaign for better wages and union representation was stalled.
The International Confederation of Free Trade Unions (ICFTU)
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