INTERNATIONAL NORMS AND ILO CONVENTION AND

RECOMMENTATION ON RIGHT TO ORGANISE

ILO Conventions, Protocols and Recommendations (Annexure – 1

At a Glance

1 ILO Member States 187 .

2 ILO Instruments adopted 402

Conventions 190 b. Protocols 06 c. Recommendations 206

International labour standards

International Labour Standards are legal instruments drawn up by the ILO's
constituents (governments, employers and workers) setting out basic
principles and rights at work. They are either Conventions (or Protocols),
which are legally binding international treaties that may be ratified by
member states, or Recommendations, which serve as non-binding
guidelines.
In many cases, a Convention lays down the basic principles to be
implemented by ratifying countries, while a related Recommendation
supplements the Convention by providing more detailed guidelines on how
it could be applied. Recommendations can also be autonomous, i.e. not
linked to a Convention.
Fundamental Conventions
The ILO Governing Body has identified eight “fundamental” Conventions,
covering subjects that are considered to be fundamental principles and rights
at work. These eight fundamental Conventions are:
1. Freedom of Association and Protection of the Right to Organise
Convention, 1948 (No. 87)
2. Right to Organise and Collective Bargaining Convention, 1949 (No. 98)
3. Forced Labour Convention, 1930 (No. 29) (and its 2014 Protocol )
4. Abolition of Forced Labour Convention, 1957 (No. 105)
5. Minimum Age Convention, 1973 (No. 138)
6. Worst Forms of Child Labour Convention, 1999 (No. 182)
7. Equal Remuneration Convention, 1951 (No. 100)
 8. Discrimination (Employment and Occupation) Convention, 1958 (No.
111)

Governance (priority) Conventions

The ILO Governing Body has also designated another four Conventions as
governance (or priority) instruments, thereby encouraging member States to
ratify them because of their importance for the functioning of the
international labour standards system. These four governance Conventions
are:

1. Labour Inspection Convention, 1947 (No. 81)

2. Employment Policy Convention, 1964 (No. 122)
3. Labour Inspection (Agriculture) Convention, 1969 (No. 129)
4. Tripartite Consultation (International Labour Standards) Convention,
1976 (No. 144

India & ILO

India is a founder member of the International Labour Organization, which came

into existence in 1919. At present the ILO has 187 Members. A unique feature of
the ILO is its tripartite character. The membership of the ILO ensures the growth
of tripartite system in the Member countries. At every level in the Organization,
Governments are associated with the two other social partners, namely the workers
and employers. All the three groups are represented on almost all the deliberative
organs of the ILO and share responsibility in conducting its work. The three organs
of the ILO are:

International Labour Conferences: - General Assembly of the ILO – Meets every

year in the month of June.

Governing Body: - Executive Council of the ILO. Meets three times in a year in
the months of March, June and November.

International Labour Office: - A permanent secretariat.

The work of the Conference and the Governing Body is supplemented by Regional
Conferences, Regional Advisory Committees, Industrial and Analogous
Committees, Committee of Experts, Panels of Consultants, Special Conference and
meetings, etc.

https://labour.gov.in/lcandilasdivision/india-ilo
https://training.itcilo.org/actrav_cdrom2/en/osh/legis/ilomain.htm

International Labour Organization (ILO) – History

The ILO was established as an agency for the League of Nations following World
War I.

It was established by the Treaty of Versailles in 1919.

Its founders had made great strides in social thought and action before the
establishment of the organization itself.

It became the first specialised agency of the United Nations (UN) in the year 1946.

The ILO has played a significant role in promoting labour and human rights. It had
held a significant position during the Great Depression (1930s) for ensuring labour
rights.

It played a key role in the decolonization process and in the victory over apartheid
in South Africa.

The organization got the Nobel Peace Prize in 1969, for its efforts to improve
peace amongst the classes, and for promoting justice and fair work for the workers.

International Labour Organization (ILO) Objective

The ILO is the only tripartite U.N. agency. The ILO is a meeting point for
governments, workers and employers of ILO’s member States to set labour
standards, improve upon policies and create programs that promote decent work
for people. The four strategic objectives at the heart of the Decent Work agenda
are:
To develop and effectuate standards, fundamental principles, and fundamental
rights at work.

To ensure that men and women have equal access to decent work while enhancing
opportunities for the same.

To magnify the coverage and effectiveness of social protection for everyone.

To strengthen Tripartism and social dialogue.

International Labour Organization (ILO) – Structure

The basis of the ILO is the tripartite principle. The ILO comprises
the International Labour Conference, the Governing Body, and
the International Labour Office.

International Labour Conference:

The progressive policies of the ILO are set by the International Labour
Conference.

The Conference is an annual event, which happens in Geneva, Switzerland. The

conference brings together all the representatives of the ILO.

Function: It is a panel for the review of the important issues regarding labour.

Governing Body:

The Governing Body is the executive body of the International Labour

Organization.

The governing body meets in Geneva. It meets three times annually.

The Office is the secretariat of the Organization.

It is composed of 56 titular members, and 66 deputy members.

Functions:

Makes decisions regarding the agenda and the policies of the International Labour
Conference.
It adopts the draft Programme and Budget of the Organization for submission to
the Conference.

Election of the Director-General.

International Labour Office:

It is the permanent secretariat of the International Labour Organization.

Functions: It decides the activities for ILO and is supervised by the Governing
Body and the Director-General.

The ILO member States hold periodically regional meetings to discuss the
relevant issues of the concerned regions.

Each of the ILO’s 183 Member States has the right to send four delegates to the
Conference: two from government and one each representing workers and
employers, each of whom may speak and vote independently.

International Labour Organization (ILO) Objective

The ILO is the only tripartite U.N. agency. The ILO is a meeting point for
governments, workers and employers of ILO’s member States to set labour
standards, improve upon policies and create programs that promote decent work
for people. The four strategic objectives at the heart of the Decent Work agenda
are:

To develop and effectuate standards, fundamental principles, and fundamental

rights at work.

To ensure that men and women have equal access to decent work while enhancing
opportunities for the same.

To magnify the coverage and effectiveness of social protection for everyone.

To strengthen Tripartism and social dialogue.

International Labour Organization (ILO) – Structure

The basis of the ILO is the tripartite principle. The ILO comprises
the International Labour Conference, the Governing Body, and
the International Labour Office.

International Labour Conference:

The progressive policies of the ILO are set by the International Labour
Conference.

The Conference is an annual event, which happens in Geneva, Switzerland. The

conference brings together all the representatives of the ILO.

Function: It is a panel for the review of the important issues regarding labour.

Governing Body:

The Governing Body is the executive body of the International Labour

Organization.

The governing body meets in Geneva. It meets three times annually.

The Office is the secretariat of the Organization.

It is composed of 56 titular members, and 66 deputy members.

Functions:

Makes decisions regarding the agenda and the policies of the International Labour
Conference.

It adopts the draft Programme and Budget of the Organization for submission to
the Conference.

Election of the Director-General.

International Labour Office:

It is the permanent secretariat of the International Labour Organization.

Functions: It decides the activities for ILO and is supervised by the Governing
Body and the Director-General.
The ILO member States hold periodically regional meetings to discuss the
relevant issues of the concerned regions.

Each of the ILO’s 183 Member States has the right to send four delegates to the
Conference: two from government and one each representing workers and
employers, each of whom may speak and vote independently.

International Labour Organization (ILO) Functions

The ILO plays an important role in the formulation of policies which are focussed
on solving labour issues. The ILO also has other functions, such as:

It adopts international labour standards. They are adopted in the form of

conventions. It also controls the implementation of its conventions.

It aids the member states in resolving their social and labour problems.

It advocates and works for the protection of Human rights.

It is responsible for the research and publication of information regarding social

and labour issues.

The Trade Unions play a pivotal role in developing policies at the ILO, thus
the Bureau for Workers’ Activities at the secretariat is dedicated to strengthening
independent and democratic trade unions so they can better defend workers’ rights
and interests.

The ILO also assumes a supervisory role: it monitors the implementation of ILO
conventions ratified by member states.

The implementation is done through the Committee of Experts, the International

Labour Conference’s Tripartite Committee and the member-states.

Member states are obligated to send reports on the development of the

implementation of the conventions they have approved.

Registration of complaints: The ILO registers complaints against entities that are
violating international rules.

The ILO, however, does not impose any sanctions on the governments.
Complaints can also be filed against member states for not complying with ILO
conventions that have been ratified.

International Labour Standards: The ILO is also responsible for setting

International Labour Standards. The international labour conventions which are set
by the ILO are ratified by the member states. These are mostly non-binding in
nature.

But once a member state accepts conventions, it becomes legally binding. The
conventions are often used to bring national laws in alignment with international
standards.

ILO Global Commission on the Future of Work: The formation of an ILO

Global Commission on the Future of Work marks the second stage in the ILO
Future of Work Initiative.

The Commission outlines a vision for a human-centred agenda that is based on

investing in people’s capabilities, institutions of work and decent and sustainable
work.

It also describes the challenges caused by new technology, climate change and
demography and appeals for a collective global response to the disturbances being
caused in the world of work.

To know more about the World Confederation of Labour, visit the linked article

International Labour Organization – Mission

The ILO’s mission is to promote decent work for all workers. This is accomplished
by promoting social dialogue, protection, and employment generation.

The ILO provides technical support along with the support of development
partners to multiple countries in order to achieve this mission.

International Labour Organization – Declaration on Fundamental Principles

and Rights at Work

The Declaration was adopted in 1998, and it mandates the member states to
promote the eight fundamental principles and rights. The Fundamental Principles
and Rights are categorized into four classes. They are:
Freedom of Association and the Right to Collective Bargaining (Conventions 87
and 98)

Elimination of forced or compulsory labour (Conventions No. 29 and No. 105)

Abolition of child labour (Conventions No. 138 and No. 182)

Elimination of discrimination in respect of employment and occupation

(Conventions No. 100 and No. 111).

As part of the Follow-up to the Declaration, the ILO Director-General also submits
a Global Report on one of the four categories of fundamental principles and rights
at work to the tripartite International Labour Conference.

International Labour Organization – Core Conventions

The eight fundamental conventions form an indispensable part of the United

Nations Human Rights Framework, and their sanction is an important sign of
member States’ commitment to human rights. Overall, 135 member States have
ratified all eight fundamental conventions.

The eight-core conventions of the ILO are:

Forced Labour Convention (No. 29)

Abolition of Forced Labour Convention (No.105)

Equal Remuneration Convention (No.100)

Discrimination (Employment Occupation) Convention (No.111)

Minimum Age Convention (No.138)

Worst forms of Child Labour Convention (No.182)

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

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

The conventions are highly relevant due to the economic challenges faced by
workers all around the world.
International Labour Organization and India

India is a founding member of the ILO. It became a permanent member of the ILO
Governing Body in 1922. The first ILO Office in India was inaugurated in 1928.

India has ratified six fundamental conventions.

India has not ratified Freedom of Association and Protection of the Right to
Organise Convention, 1948 (No. 87) and Right to Organise and Collective
Bargaining Convention, 1949 (No. 98).

As the two conventions involve the granting of certain rights that are prohibited
under the statutory rules for government employees.

Labour Movement in India

The growth of the trade union movement in India was an organic process. It started
towards the tail end of the nineteenth century and has had a parallel development
to India’s industrial development. The difficulties of the workers’ lives came into
light during the 1850s. The labour movement in India can be categorized into two
phases: the first phase lasting from the 1850s -1918, and the second from 1918-
till Independence.

The origin of the labour movements in India can be traced back to the 1860s,
however, the first agitation occurred only in 1875.

The actions of the working class in the earliest stage were sporadic and
disorganized in nature and hence were mostly futile.

It was only from the second decade of the twentieth century in Bombay, that
serious attempts were made for the formation of associations that could lead an
organized form of protests.

The second phase witnessed the sporadic protests obtain an organized form.
During this phase, Trade Unions were formed on modern lines.

The first labour tumult occurred in Bombay, 1875 under the leadership of S.S
Bengalee.
It concentrated on the plight of workers, especially women and children.

This agitation led to the appointment of the first Factory Commission, 1875.

The first Factories Act was passed in 1881 consequently.

In 1890, M.N Lokhande established Bombay Mill Hands Association. This was
the first organized labour union in India.

The 1920s was significant in this regard. Congress and the Communists made
serious attempts to mobilize and establish a connection with the working class.

The first attempt to form an all-India organization was also made in the 1920s.

Features of the labour movements in this era:

Leadership was exemplified by social reformers and not by the workers

themselves.

The movements in this era mainly concentrated on the welfare of workers rather
than asserting their rights.

They were organized, but there was no pan India presence.

A strong intellectual foundation or agenda was missing.

Their demands revolved around issues like that of women and children workers.

what is the ILO’s Global Commission on the Future of Work?

The formation of an ILO Global Commission on the Future of Work marks the
second stage in the ILO Future of Work Initiative.

It was co-chaired by South African President Cyril Ramaphosa and Swedish

Prime Minister, Stefan Löfven.
The commission outlines a vision for a human-centred agenda that is based on
investing in people’s capabilities, institutions of work and decent and sustainable
work.

Its has undertaken an in-depth examination of the future of work that can provide
the analytical basis for the delivery of social justice in the 21 st century.

It outlines the challenges caused by new technology, climate change and

demography and calls for a collective global response to the disruptions they are
causing in the world of work.

Artificial intelligence, automation and robotics will lead to job losses, as skills
become obsolete.

The key recommendations are:

A universal labour guarantee that protects the fundamental rights of workers’, an

adequate living wage, limits on hours of work and safe and healthy workplaces.

Guaranteed social protection from birth to old age that supports people’s needs
over the life cycle.

A universal entitlement to lifelong learning that enables people to skill, reskill and
upskill.

Managing technological change to boost decent work, including an international

governance system for digital labour platforms.

Greater investments in the care, green and rural economies.

A transformative and measurable agenda for gender equality.

Reshaping business incentives to encourage long-term investments.

 RIGHT TO ASSOCIATION IN INDUSTRIAL LABOUR IN
INDIA ,UK ,USA

Freedom of association encompasses both an individual's right to join or leave

groups voluntarily, the right of the group to take collective action to pursue the
interests of its members, and the right of an association to accept or decline
membership based on certain criteria. It can be described as the right of a person
coming together with other individuals to collectively express, promote, pursue
and/or defend common interests.[1] Freedom of association is both an individual
right and a collective right, guaranteed by all modern and democratic legal
systems, including the United States Bill of Rights, article 11 of the European
Convention on Human Rights, section 2 of the Canadian Charter of Rights and
Freedoms, and international law, including articles 20 and 23 of the Universal
Declaration of Human Rights and article 22 of International Covenant on Civil and
Political Rights. The Declaration on Fundamental Principles and Rights at
Work by the International Labour Organization also ensures these rights.

Freedom of association is manifested through the right to join a trade union, to

engage in free speech or to participate in debating societies, political parties, or any
other club or association, including religious
denominations and organizations, fraternities, and sport clubs and not to be
compelled to belong to an association. [2] It is closely linked with freedom of
assembly, particularly under the U.S. Bill of Rights. Freedom of assembly is
typically associated with political contexts. However, (e.g. the U.S.
Constitution, human rights instruments, etc.) the right to freedom of association
may include the right to freedom of assembly.

The courts and delegated officers of local jurisdictions may impose restrictions on
any of the rights of a convicted criminal as a condition of a legal stipulation. Rights
to freedom of association and freedom of assembly are waived under certain
circumstances, such as a guilty plea or conviction, restraining orders and
probationer's search and seizure procedures.

History[edit]

The general freedom to associate with groups according to the choice of the
individual, and for the groups to take action to promote their interests, has been a
necessary feature of every democratic society. Because freedom of association
necessarily recognizes pluralistic sources of power and organisation, aside from the
government, it has been a primary target for repression by all dictatorial societies.
In the United Kingdom, all forms of "combination" were prohibited and criminal,
particularly worker organisations, until the Combination Act 1825. After this, it
was still not by the Companies Act 1856, the Trade Union Act 1871 and
the Criminal Conspiracy and Protection of Property Act 1875 that companies and
then trade unions became generally lawful. In Germany, a similar set of repressive
laws were put in place against both trade unions and social democrat organisations
by the Bismarck government under the Sozialistengesetze (the "Socialist Acts") in
1878. These remained in force until 1890. In 1933, trade unions were once again
prohibited by the Fascist dictatorship of Hitler's National Socialist party, and the
existing unions were nationalized and combined into a single government
controlled German Labor Front. In West Germany after World War II, free trade
unions were quickly resurrected and guaranteed by the German Grundgesetz. In
the United States, trade unions were classified by various state courts, at various
times, as being in restraint of trade. Under the Clayton Act of 1914, trade unions
were given a general freedom to organize and to act collectively to secure
collective agreements, however further hurdles were put in place until the National
Labor Relations Act 1935 created a comprehensive labor code.

Law

Canadian Charter of Rights and Freedoms[edit]

Section 2 of the Charter, under the heading of "Fundamental Freedoms", states:

Everyone has the following fundamental freedoms:

...

d) freedom of association.

Under Canadian jurisprudence, freedom of association has three dimensions: the

"constitutive" right to form associations with other people, a "derivative" right to
collectively invoke other constitutional rights, and the "purposive" right to
collectively bargain in order to be on equal footing with other groups and entities

European Convention[edit]

Main article: Article 11 ECHR

Italian Constitution[edit]

In Italy the freedom of association is established in Article 18 of the Constitution,

which states:[4]

Citizens have the right to form associations freely and without authorization for
those ends that are not forbidden by criminal law. Secret associations and
associations that, even indirectly, pursue political aims by means of organisations
having a military character shall be forbidden.

South African Bill of Rights[edit]

Main article: Constitution of South Africa Chapter 2: Bill of Rights

The South African Constitution's Bill of Rights establishes the right to freedom of
association in Section 18, which states "Everyone has the right to freedom of
association." Furthermore, Section 17 states "Everyone has the right, peacefully
and unarmed, to assemble, to demonstrate, to picket and to present petitions", thus
establishing the right to freedom of assembly. Workers' right to freedom of
association in terms of the right to form trade unions and collective bargaining is
recognized separately, in Section 23.[

US CONSTITUTION

While the United States Constitution's First Amendment identifies the rights to
assemble and to petition the government, the text of the First Amendment does not
make specific mention of a right to association. Nevertheless, the United States
Supreme Court held in NAACP v. Alabama (1958) that freedom of association is
an essential part of freedom of speech because, in many cases, people can engage
in effective speech only when they join with others. [6] Other Supreme Court cases
involving freedom of association issues include:[7]

Brotherhood of Railroad Trainmen v. Virginia, 377 U.S. 1 (1964)

United Mine Workers v. Illinois State Bar Association, 389 U.S. 217 (1967)

Healy v. James, 408 U.S. 169 (1972)

NAACP v. Claiborne Hardware Co., 458 U.S. 898 (1982)

Boy Scouts of America v. Dale, 530 U.S. 640 (2000)

Janus v. AFSCME, No. 16-1466, 585 U.S. ___ (2018)

ORGANISED LABOUR

The organization of labor was commonly resisted during the 19th century, with
even relatively liberal countries such as the United Kingdom banning it for various
periods (in the UK's case, between 1820 and 1824).[10]

In the international labour movement, the freedom of association is a right

identified under international labour standards as the right of workers to organize
and collectively bargain. Freedom of association, in this sense, is recognized as a
fundamental human right by a number of documents including the Universal
Declaration of Human Rights and International Labour Organization Convention
C87 and Convention C98 – two of the eight fundamental, core international labour
standards. 'Freedom of association' can also refer to legal bans on private contracts
negotiated between a private employer and their employees requiring workers at a
particular workplace to join a union as a term and condition of employment.
Supporters of this sort of private freedom of association claim that the right to join
a union incorporates a right not to join a union. In the United States, the term 'right
to work' is more common for this type of law.

"The Supreme Court today (1-21-1997) sharply limited the ability of labor union
organizers to go onto an employer's property to distribute literature or urge workers
to join the union. In a 6-to-3 opinion written by Justice Clarence Thomas, the
Court said that the National Labor Relations Board had failed to give adequate
protection to employers' property rights when it adopted a rule four years ago that
gave union organizers greater access to areas like the parking lots of shopping
centers or factories." -New York Times

https://api.fairwear.org/wp-content/uploads/2021/04/Fairwear-Freedom-of-
Association-Brand-Guide-2021.pdf
Historical development of labour law

The origins of labour law can be traced back to the remote past and the most varied
parts of the world. While European writers often attach importance to
the guilds and apprenticeship systems of the medieval world, some Asian scholars
have identified labour standards as far back as the Babylonian Code of
Hammurabi (18th century BCE) and the rules for labour-management relations in
the Hindu Laws of Manu (Manu-smriti; c. 100 CE); Latin American authors point
to the Laws of the Indies promulgated by Spain in the 17th century for its New
World territories. None of these can be regarded as more than anticipations, with
only limited influence on subsequent developments. Labour law as it is known
today is essentially the child of successive industrial revolutions from the 18th
century onward. It became necessary when customary restraints and the intimacy
of employment relationships in small communities ceased to provide adequate
protection against the abuses incidental to new forms
of mining and manufacture on a rapidly increasing scale at precisely the time when
the 18th-century Enlightenment, the French Revolution, and the political forces
that they set in motion were creating the elements of the modern social conscience.
It developed rather slowly, chiefly in the more industrialized countries of western
Europe, during the 19th century and attained its present importance, relative
maturity, and worldwide acceptance only during the 20th century.

The first landmark of modern labour law was the British Health and Morals of
Apprentices Act of 1802, sponsored by the elder Sir Robert Peel. Similar
legislation for the protection of the young was adopted in Zürich in 1815 and
in France in 1841. By 1848 the first legal limitation of the working hours of adults
was adopted by the Landsgemeinde (citizens’ assembly) of the Swiss canton of
Glarus. Sickness insurance and workers’ compensation were pioneered
by Germany in 1883 and 1884, and compulsory arbitration in industrial disputes
was introduced in New Zealand in the 1890s. The progress of labour legislation
outside western Europe, Australia, and New Zealand was slow until after World
War I. The more-industrialized states of the United States began to enact such
legislation toward the end of the 19th century, but the bulk of the present labour
legislation of the United States was not adopted until after the Great Depression of
the 1930s. There was virtually no labour legislation in Russia prior to the October
Revolution of 1917. In India children between the ages of 7 and 12 were limited to
nine hours of work per day in 1881 and adult males in textile mills to 10 hours per
day in 1911, but the first major advance was the amendment of the Factory Act in
1922 to give effect to conventions adopted at the first session of the International
Labour Conference at Washington, D.C., in 1919. In Japan rudimentary regulations
on work in mines were introduced in 1890, but a proposed factory act was
controversial for 30 years before it was adopted in 1911, and the decisive step was
the revision of this act in 1923 to give effect to the Washington Convention on
hours of work in industry. Labour legislation in Latin America began
in Argentina in the early years of the century and received a
powerful impetus from the Mexican Revolution, which ended in 1917, but, as
in North America, the trend became general only with the impact of the Great
Depression. In Africa the progress of labour legislation became significant only
from the 1940s onward.

The legal recognition of the right of association for trade union purposes has a
distinctive history. There is no other aspect of labour law in which successive
phases of progress and regression have been more decisively influenced by
political changes and considerations. The legal prohibition of such association was
repealed in the United Kingdom in 1824 and in France in 1884; there have been
many subsequent changes in the law and may well be further changes, but these
have related to matters of detail rather than to fundamental principles. In the
United States freedom of association for trade union purposes remained precarious
and subject to the unpredictable scope of the labour injunction, by means of which
the courts helped restrain trade union activity until the 1930s. The breakthrough
for trade unionism and collective bargaining was achieved by the National Labor
Relations Act (the Wagner Act) of 1935. In many other countries the record of
progress and regression with respect to freedom of association falls into clearly
distinguished periods separated by decisive political changes. This has certainly
been the case with Germany, Italy, Spain, Japan, and much of eastern Europe;
there have been many illustrations of it, and there may well be more in the
developing world.

Labour codes or other forms of comprehensive labour legislation and ministries of

labour were not introduced until the 20th century. The first labour code (which,
like many of its successors, was a consolidation rather than a codification) was
projected in France in 1901 and promulgated in stages from 1910 to 1927. Among
the more advanced formulations affecting the general condition of labour were
the Mexican Constitution of 1917 and the Weimar Constitution of Germany of
1919, both of which gave constitutional status to certain general principles of
social policy regarding economic rights. Provisions of this kind have become
increasingly common and are now widespread in all parts of the world.
Departments or ministries of labour responsible for the effective administration of
labour legislation and for promoting its future development were established in
Canada in 1900, in France in 1906, in the United States in 1913, in the United
Kingdom in 1916, and in Germany in 1918. They became general in Europe and
were established in India and Japan during the following years and became
common in Latin America in the 1930s. A labour office was established
in Egypt in 1930, but only in the 1940s and ’50s did similar arrangements begin to
take root elsewhere in Asia and Africa. Under differing political circumstances
there continue, of course, to be wide variations in the authority and effectiveness of
such administrative machinery.

Elements of labour law

The basic subject matter of labour law can be considered under nine broad heads:
employment; individual employment relationships; wages and remuneration;
conditions of work; health, safety, and welfare; social security; trade unions and
industrial relations; the administration of labour law; and special provisions for
particular occupational or other groups.

Trade unions and industrial relations

A number of complex legal relationships fall under the heading of industrial

relations, including the legal status, rights, and obligations of trade unions and
employers’ organizations, collective bargaining and collective agreements, the
representation of employees at plant and enterprise level (including joint
consultation and, where it exists, codetermination and other forms of workers’
participation in management, even to the extent of workers’ representation on
company boards), and the prevention and settlement of various types
of labour disputes in general and of strikes and lockouts in particular. Regarding
such matters as the representative character and capacity of trade unions, their legal
status, the obligation to recognize and bargain with them, the enforceability of
collective agreements, the scope of activities permitted to trade unions, and
their obligations in contract and tort, there are wide variations both in the extent to
which they are subject to legal rules and in the content of such rules.

In the United States, for instance, there is a considerable body of law on these
subjects, the most important enactments being the National Labor Relations
Act and the Labor Management Relations Act of 1947 (the Taft-Hartley Act). In
the United Kingdom the law has hitherto remained marginal to most of these trade
union issues, except for legislation of 1871, 1875, and 1906, which had provided
certain “immunities” (or “privileges,” as they are sometimes called) for trade
unions, particularly in connection with trade disputes. Legislation enacted in the
early 1980s restricted some of these immunities or privileges, the trend being to
expand the role of law in labour-management relations to reduce the increasing
disruption caused by industrial conflict in a complex society.

In the late 20th and early 21st centuries, industrial associations

and libertarian think tanks in the United States promoted legislation and
initiated court cases aimed at limiting the political and economic power of unions.
So-called right-to-work laws, eventually adopted in several states, prohibited
unions from charging agency fees to nonunion workers to defray the cost of
collective bargaining on their behalf. Several states also severely restricted or
prohibited collective bargaining by public (state) employees. Although the U.S.
Supreme Court, in Abood v. Detroit Board of Education (1977),
unanimously endorsed mandatory agency fees in the public sector (provided that
they were not used to support union political or ideological activities),
that precedent was later overturned in Janus v. American Federation of State,
County, and Municipal Employees (2018), in which the Court declared that
nonunion employees must affirmatively consent to paying agency fees.

The rules of different systems

Among the distinctive elements of labour law that reflect the political,
socioeconomic, and legal differences among countries are variations in the relative
importance of statutory regulation and collective agreements, the prevalence of
national or industrial collective agreements as opposed to company or plant
agreements, the importance in certain countries of arbitral awards, and the extent to
which labour law has been affected by a country’s constitutional structure,
especially with regard to judicial review of constitutionality of legislation and
judicial interpretation of constitutional powers, limitations, and guarantees.

In the United Kingdom, for instance, the tradition has been to allow a maximum
of initiative and freedom to employers’ and workers’ organizations in the
regulation of their mutual relations and the determination of conditions of work.
Most countries on the Continent, by contrast, have detailed legislative provisions
on these matters.

In the United Kingdom, however, the reluctance to legislate is becoming less

marked; there is now legislation concerning industrial training
and discrimination in employment, formerly matters for collective agreement; and
legislation concerning collective bargaining, safeguards against unfair dismissal,
and certain trade union practices was enacted in the late 1970s and early 1980s. In
virtually all the developing countries the absence of an established tradition of
collective bargaining and the importance of the part played by the state in
economic development have placed a premium on legislative action.

The coverage and scope, term of validity, and legal effect of collective agreements
vary widely. In Sweden there has been a practice of national negotiations covering
the whole of industry; in the United Kingdom agreements generally cover an
industry or occupation in the country as a whole or a particular industrial area; in
the United States and in Japan the unit of negotiation is generally the company or
plant. The contrast may be less significant in practice than in principle, since an
important company or plant agreement tends to set an industry-wide pattern of
negotiation (e.g., in the automobile industry of the United States); nevertheless, the
difference is important.

In Australia and New Zealand conciliation and arbitration tribunals determine

matters normally dealt with in other countries by legislation or collective
agreement, such as wages, hours, and conditions of work. The example has had
some influence on systems of arbitration courts established in developing
countries, notably in Asia and East Africa, but there is no tendency for it to be
widely imitated elsewhere except as a device for avoiding deadlocks in
negotiation, especially in essential public services.

In the United States and Canada the development of labour law has been affected
by questions of constitutionality, which not only influenced its ultimate form but
also retarded its development. In the United States the constitutionality of workers’
compensation laws was much debated until it was favourably settled by the
Supreme Court in 1917; child-labour and minimum-wage regulations
were delayed by judicial decisions holding them to be outside federal
competence and, in some cases, inconsistent with the constitutional guarantee
against deprivation by the state of life, liberty, and property without due process of
law (the guarantee here applying to the factory owner). The first attempt of
the Franklin D. Roosevelt administration to regulate hours and wages by codes of
fair competition during the Great Depression was also held to be unconstitutional
as an improper delegation of legislative power by Congress to the executive branch
(see National Industrial Recovery Act). But thereafter the temper of judicial review
changed, and the validity of federal legislation guaranteeing free collective
bargaining in private industry, regulating wages and hours, and establishing social
security was upheld. In Canada, a pioneer in establishing a labour department,
restrictive judicial interpretations of the powers of the federal government had a
similar effect, and only after World War II did federal-provincial cooperation
afford a basis for achieving greater uniformity and more rapid progress.

Unifying tendencies

The range of possible solutions for similar problems often consists of variations of
detail on a limited number of options, and certain common elements, often
expressed in identical or almost identical texts, recur in the law of different
countries. These elements derive partly from the legislation of other countries but
increasingly from the influence on the law of the international standards evolved
by the International Labour Organisation (ILO).

From the beginnings of modern labour legislation in the early 19th century, the law
of certain countries has been extensively used by other countries as a model. For
example, British factory legislation was widely copied at an early date, and
German social-insurance legislation provided a prototype from the time of
Bismarck’s reforms. British legislation has continued to serve as a model for the
basic legislation of many states that were formerly British dependencies and
remains in force subject to modifications made since independence. Much of
the French Labour Code became applicable through the 1952 Labour Code for
Overseas Territories to the states that were formerly French dependencies and
remains the basis of their labour law. The U.S. legislation of the period from the
1930s onward has been exported to Japan, the Philippines, Liberia, and other
countries. The Mexican Labour Law of 1931, varied by elements derived primarily
from European models, had considerable influence on the early development of
labour law in a number of Latin American countries. Through quite another
process, the labour law of the Soviet Union (until the country’s dissolution in
1991) reshaped without replacing some of the earlier elements in the labour law of
the other socialist states. On the whole, however, the national influences of
particular countries and legal systems are declining.

During the mid-20th century the standards evolved by the ILO became the leading
external influence upon the labour law of many countries. They had a far-reaching
impact in virtually all the advanced countries except the United States and
the erstwhile Soviet Union, where external influences were secondary. In much of
the developing world they were of great importance even before independence,
since much of the legislation sponsored there by the colonial powers was based on
ILO standards.
The ILO, created in 1919 as an autonomous partner of the League of Nations and
since 1946 a specialized agency associated with the United Nations, adopts
international standards in the form of conventions and recommendations.
Conventions when ratified become binding obligations of the member states
ratifying them; recommendations are designed as guides for legislation, collective
agreements, administrative measures, and so on. Elaborate follow-up
arrangements, including examination of regular reports and commissions of
inquiry into complaints, are provided to ensure that the obligations assumed are
fulfilled. These standards, which already cover, in varying degrees of detail and at
varied stages of development, virtually all of the more important branches of
labour law, are constantly amplified and revised at the annual sessions of the
International Labour Conference.

Unification, or, as the process is often called, harmonization, of labour law is one
of the professed purposes of a number of regional organizations in different parts
of the world, but only in the Council of Europe, the European Union, and
the Organization of American States have tangible measures been taken, largely
based on ILO standards. The more important instruments adopted are the European
Social Charter, the European Social Security Code, the Social Security Regulations
of the European Community, and the Central American Convention on Social
Security for Migrant Workers. The Conferences of American and African Labour
Ministers, sponsored by the Organization of American States and the African
Union (formerly the Organization of African Unity), respectively, and the
Conference of Asian Labour Ministers, which has developed without any
comparable sponsorship, discuss matters of general policy and the coordination of
action in the ILO rather than the formulation of specific standards. An Arab
Labour Organization was created in 1970.

Contemporary tendencies

Labour law differs from the older branches of the law in that its history has been in
some cases so much influenced by the ebb and flow of political change, its
development so rapid, and its expansion on a world scale so recent that it is
difficult to predict its future. But the trend is clear. In no place is labour law losing
importance. While some types of protective legislation, notably special provision
for the protection of women workers, are losing their importance, the tendency is
toward more comprehensive legislation embracing a wider range of subjects and
often dealing with matters previously left to collective agreement,
individual contract, or the discretion of the employer.
The transition everywhere has been from a class law protecting the weakest
segment of society to a community law designed to serve the common interest.
This development is seen in the elimination of limitations and exceptions to the
law and in the increasing emphasis given to matters of general interest, including
full employment, equitable distribution of wealth, and community responsibility
for the incidence of misfortune in individual lives.

Labour law must also be said to serve the social interest in promoting
constructive industrial relations and reducing the occurrence of open conflict. This
evolution of labour law is an important contribution to the evolution of the law as a
whole, from a law for the propertied and trading classes with a special chapter for
the working class to a common law for the entire community.

The importance of a body of law that has a dynamic and progressive impact rather
than a restrictive influence is now widely understood, and the need for legal
flexibility to facilitate economic and social development and change is increasingly
appreciated. In addition, the value of delegated powers and procedures of
consultation with interested groups and organizations to achieve such flexibility is
more generally recognized. Social objectives remain the test of the validity
of economic policy, and labour law plays a major part in defining these objectives
and ensuring that economic policy respects them in the interest of the whole
community.

Acknowledgment.............................................................................................. 032.

Case List………………………………………………………………………..04

3.

Introduction…………………………………………………………………

....054.
Freedom to form association and union……………………………………….06

5.

Freedom of Association and Constitution of India…………………..………..09

6.

Restrictions on the Freedom of Association

…………………………..….10

7.

Right To Occupation Under Article 19(1)(G) with Reasonable Restriction Under

Article19(6)

…………………………………………………………………………….

128.

Bibliography........................................................................................................14

All India Bank Employees Association v. N.I. Tribunal 1962 AIR 171


All-India Bank Employees Association v. National Industrial Tribunal (Bank

Disputes),Bombay AIR 1962 SC 17

Chaitanya Prakash v. Board of Secondary Education Rajasthan 1960 Raj. L.W.

209.3

Fertilizer Corporation kamgar Union, Sindri v.UOI AIR 1981 SC 344.

Gujarat Steel Tubes Ltd v. Gujarat Steel Tubes Mazdoor Sabha 1980 AIR 1896

Mohd.Zahoor v. State of MP & Ors AIR 2010 MP 22.

Raja Kulkarni Vs State of Bombay (1954) SC 73

Rama Krishna v. President, District Board, Nellore, AIR 1952 Mad 253.


Rohtas industries ltd v. Rohtas industries staff union AIR 1976 SC 425

RS Ruikar v. emperor AIR 1934 Nag 149

State of Gujarat v.Dharamdass AIR 1982 SC 781.

State of Madras v. V.G. Rao AIR 1972 SC 196

State Of Madras v. V.G. Rao.Union Of India & State 1952 SCR 597

T.K. Rangarajan v. State of Tamil Nadu AIR 2003 SC 3032

Introduction

Constitution of India empowers us many rights, liabilities and duties. No provision

of the holyconstitution should be breached by any citizen of the country. The
constitution of India hascovered all basic and essential parts which the country
needs. India is a labor intensive country.The economy of country depend lot on the
work of laborer. If labor is not available at work
it puts hindrance to the working of economy as no production or other manual wor
k would bedone. Therefore, constitution also involves the rights, liabilities and
duty for the laborers,workers and for others also in form of the fundamental right
in Part III of constitution. Article 19of the constitution provides for rights
regarding freedom of speech and expression, etc. Article19(1)(c) provides for right
to form association or union or co-operative societies. It is one of the powerful
rights provided to the laborers with some reasonable restriction towards it under
Article19(4) of the constitution. This Article gives power to state to make law to
impose or preventthings in interest of sovereignty and integrity of India or public
order or morality. The article19(1)(c) is very much being used by laborers to avail
their demands from their employee. Thelaborers by doing strike get their demands
fulfill. This power is many a times being misused bythe workers which ultimately
affects the production and financial position of industry andultimately loss to the
economy of the country. The laborers right to strike is also controlledthrough other
legislations like Trade unions Act, 1926 and Industrial Disputes Act, 1947.Further,
this right to form association or to do strike many a times violates right to trade
and profession of the industries. These both right of laborers and industrialist many
a times createconflict between them. The Supreme Court of India in its various
judgments has tried to clear
the position according to facts and circumstances of the case. The courts via interpr
eting lawmentioned in different statutes that which kind of strikes are illegal and as
upheld right to tradeand profession of industrialist, etc. the courts always tries to
maintain balance between the boththe parties and do take care of fundamental right
of the both provided in article 19(1).Further, the laborers right of association is also
being provided in international labororganization

’s convention. Convention no. 87 of ILO provided for Freedom of Association and

Protection of the Right to Organize Convention, 1948 and 98 provides Right to

Organize andCollective Bargaining Convention, 1949. Even though the convention
does not refer to the rightof strike, the ILO committee on experts has been
regarding it as an essential part of the basic right to organize. India has ratified
neither of these two conventions. The main reason for our notratifying these two
Conventions is the inability of the Government to promote unionization of
theGovernment servants in a highly politicized trade union system of the country.
Freedom ofexpression, Freedom of association and functional democracy are
guaranteed by our constitution.The Government has promoted and implemented
the principles and rights envisaged under thesetwo Conventions in India and the
workers are exercising these rights in a free and democraticsociety. Our
Constitution guarantees job security, social security and fair working conditions
andfair wages to the Government servants. They have also been provided with
alternative grievanceredressal mechanisms like Joint Consultative Machinery,
Central Administrative Tribunal etc .Even though, these conventions were not
ratified, the requirement was not felt prior to theSupreme Court judgment banning
the right to strike.

Freedom to Form Association and Unions

For the proper working of the society we need multiple association and
organization and nodemocracy can function without freedom to form association
and unions like for example- tradeunions, political parties, organizations are part of
democratic functioning of the government andsociety. Article 19(1)(c) of the
constitution guaranteed freedom to form association and unionsand upon this
reasonable restrictions on the freedom may be imposed in the interest of
integrityand sovereignty of India.The right to form associations or unions can be
restricted only in the interests of public order ormorality. There can be no
association or union for an illegal or conspiratorial purpose. Nor canthere be an
association to further immorality. Interpreting the scope of the right the
SupremeCourt held in the case of

State of Madras v. V.G. Rao

2
"The right to form associations or unionshas such wide and varied scope for its
exercise and its curtailment is fraught with such potentialreactions in the religious,
political and economic fields.That the vesting of authority in the executive
government to impose restrictions on such right,without allowing the grounds of
such imposition, both in their factual and legal aspects, to be

duly tested in a judicial enquiry, is a strong element which, in our opinion, must be
taken intoaccount in judging the reasonableness of the restrictions imposed on the
exercise of thefundamental right under Article 19 (1) (c)."Accordingly this include
the matter of strike well in India right to strike is not expresslyrecognized by law
and for the first time in the Trade Union Act, 1926 provide limit to strike
bylegalizing certain activities of a registered trade union in trade dispute. The act
also recognizedthe right to strike under section 18 and 19 of the act which states
immunity upon trade unions onstrike from civil liability right to strike is
recognized only to limited extent that means whenstrike is held illegal when it
involve criminal aspects.In case of

RS Ruikar v. emperor in this there was strike held by president of nagpur textile
unionwas convicted under section 7 of the criminal law amendment act 1932 for
criminal conspiracyThe aforesaid union called for the strike on the ground that
certain terms of the settlement hadnot been honored by employer and the decided
to go for picketing and the members of the unionon orders on president started
picketing which became violent and members on behalf ofapplicant that facts
found against him are no offence and it was their valuable right to declare astrike
and their immunity as per section 17 and 18 of the trade unions act further court
observedthat trade union have right to go for strike and to do certain acts in
furtherance of the tradedispute they are not liable civilly for such act as trade union
permits but there is nothing in theact which apart from immunity from criminal
conspiracy allows immunity from any criminaloffence Now as per the matters
of strike under industrial dispute act implies right to strike in industriesand there is
wide interpretation of term industry which includes hospitals, education
institutions,clubs and governmental departments under section 2(q) of the
industrial disputes act defines theterm strike, section 22, 23, 24 all recognize the
right to strike and section 24 says about all thelegal as well as illegal strike. All the
strike which are in contravention to the procedure laid downsection 22 and 23 of
the act will be termed as illegal strike and all the strike which are inconformity of
the procedure laid down will be legal strike .the statutory provisions make a

istinction between the legality and illegality of the strike it is for the judiciary to
examinewhether the strike id legal or illegal according to cases put before them.As
stated by Justice Krishna Iyer in case of

Gujarat steel tubes v. GST mazoor sabha,that ‘a strike could be legal or illegal
and an illegal strike could be a justified one.Every fundamental is subject to
reasonable restrictions the same in the case to form trade unionto give a call to
the workers to go on strike and the state can impose reasonable restrictions.Further,
in

All India Bank Employees Association v. N.I. Tribunal , the SC held, inter alia,
that

“the right to strike or right to declare lockout may be controlled or restricted by

appropriateindustrial legislation and the validity of such legislation would have to
be tested not withreference to the criteria laid down in clause (4) of Article 19 of
the Constitution but by totally

different considerations.”

A worker who is involved in an illegal strike may be penalized with imprisonment

of up to amonth and/ or fine. As per the Industrial Disputes Act, no person shall
provide any sort offinancial aid to any illegal strike. Any person who knowingly
provides such a help in support ofany illegal strike is punishable with
imprisonment up to six months and/or fine.In T.K. Rangarajan v. State of Tamil
Nadu, the Supreme Court in its verdict made it amply clear

that “Government employees have no fundamental, legal, moral or equitable right

to go onstrike”, thus holding the state machinery and citizens to ransom

.Also, in the case of

Rohtas Industries ltd v. Rohtas Industries Staff Union in this case the issuewas in
relation with right to form association under article 19(1)(c) and right to trade
underarticle 19(1)(g) and the immunity in civil proceeding specific immunity on
specific facts andactions in this case there was a dispute between management and
union regarding wages becauseof which trade union went for strike now the
question arise here was in respect of two right theywent for arbitration and said
that the employers should get compensation due to strike because ofloss in
business which leads to conflicting things and the matter went before supreme
court andquestion arise was whether the employers have any right to claim
damages against an illegalstrike and thereby causing loss to the production and
business. Purpose of strike was to protecttheir interest. Court said that
predominance to section 18 of the trade unions act the immunityunder section 18
will be applicable and no compensation will be given.Further, the court have also
dealt recognition issue with Article 19(1)(c) of the constitution. In

Raja Kulkarni v. State of Bombay

8
the Supreme Court held that the unions are classified asrepresentative unions and
qualified unions under the Bombay Industrial Relations Act, 1946 isaccording 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 thefundamental right of the workers to freedom of speech and
expression and to form association orunions under Article 19(a) and (c) of
the Constitution.In
All-India Bank Employees Association v. National Industrial Tribunal (Bank Disp
utes), Bombay
9
; 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 liberalinterpretation of the said constitutional provision cannot lead to the
conclusion that thefundamental right to form unions carries with it a concomitant
guarantee that the trade unions soformed shall be enabled to carry, effective
collective bargaining or shall achieve the purpose forwhich 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 tothe formation of an association and
insofar as the activities of the association are concerned or asregards the steps
which the union might take to achieve the purpose of its creation, they aresubject
to such laws as might be framed and the validity of such laws is to be tested by
referenceto the criteria to be found in clause (4) of Article 19 of the Constitution
10
”.
Freedom of Association and Constitution of India
Article 19(1)(c) of the Constitution of India guarantees to all its citizens the right
“to formassociations 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 integrityof India
The right to form associations or unions has a very wide and varied scope
including all sorts ofassociations viz., political parties, clubs, societies, companies,
organizations, entrepreneurships,trade unions etc.It was held in
Kulkarni’s , case that the right of association pre-supposes organization. It is
anorganization or permanent relationship between its members in matters of
common concern. Itthus includes the right to form companies, societies,
partnership, and trade union. The right toform trade unions should not lead to the
conclusion that trade unions have a guaranteed right toan effective collective
bargaining or to strike as a part of collective bargaining or otherwise.The right to
strike or to declare a lock-out are controlled or restricted by various
industriallegislations such as Industrial Dispute Act or Trade Unions Act.In
All-India Bank Employees Association v. National Industrial Tribunal (Bank Disp
utes), Bombay, the Supreme Court of India again had occasion to consider content
and scope of the
right, guaranteed under Article 19(1)(c) of the Constitution. The court held that ‘
In our opinion,the right guaranteed under sub-clause (c) of clause (1) of Article
19 extends to the formation ofan 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 suchlaws as might be
framed and the validity of such laws is to be tested by reference to the criteriato be
found in clause (4) of Article 19 of the Constitution
’.

Restrictions on the Freedom of Association

The right of association like other individual freedom is not unrestricted. Article 19
(4)empowers the State to impose reasonable restrictions on the right to 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 thatif the State Government is of opinion that any association
interferes with the administration oflaw or with the maintenance of law and order
or that it constitutes a danger to the public peace itmay, by notification in the
Official Gazette declare such association to be unlawful. Such anotification was to
be placed before an Advisory Board. If the Advisory Board was of opinion that the
association was not unlawful the Government wasto cancel the notification. The
validity of the above Act was challenged in the case of

State of Madras v. V.G. Rao,

13
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 thegrounds was not a justifiable issue.
Therefore, the vesting of power in the Government to imposerestriction on this
right, without allowing the grounds tested in a judicial enquiry, was a
strongelement to be taken into consideration in judging the reasonableness of the
restrictions on theright to form association or union.The existence of an Advisory
Board could not be a substitute for judicial inquiry. But aGovernment order
requiring municipal teachers not to join unions other than those officiallyapproved
was held to impose prior restraint on the right to form association and union,
whichwas in the nature of administrative censorship, and hence invalid.
14
From a reading of the two decisions, namely,
Smt. Maneka Gandhi's case
15
(seven-JudgesBench) and All India Bank Employees Association's case, (five-
Judges Bench), the following principles emerge:
i.a right to form associations or unions does not include within its ken as a
fundamentalright a right to form associations or unions for achieving a particular
object or running a particular institution, the same being a concomitant or
concomitant to a concomitant of afundamental right, but not the fundamental right
itself. The associations or unions ofcitizens cannot further claim as a fundamental
right that it must also be able to achievethe purpose for which it has come into
existence so that any interference with suchachievement by law shall be
unconstitutional.
ii.A right to form associations guaranteed Under Article 19(1)(c) does not imply
thefulfillment of every object of an association as it would be contradictory to the
schemeunderlying the text and the frame of the several fundamental rights
guaranteed by Part IIIand particularly by the scheme of the guarantees conferred
by Sub-clauses (a) to (g) ofClause (1) of Article 19.
iii. while right to form an association to ne tested by reference to Article 19(1)(c)
and the validity of restriction thereon by reference to Article 19(4),once the
individual citizen have formed an association and carry on some activity the
validity of legislation restriction the activities of the association shall have to be
judged by reference to Article 19(1)g read with 19(6).

InFertilizer Corporation v. Union of India

the workmen challenged the validityof sale of certain plants and equipments on
the ground that they will be deprived of theiremployment and their constitutional
right under Article 19 (1) (g) will be violated. The courtheld that Article 19 (1) (g)
does not protect the right to work in a particular post under a contractor
employment as such Article 19 (1) (g) cannot be invoked against the loss of a job
or removalfrom service. But this does not confer the right to do anything
considered illegal in the eyes oflaw or to hold a particular job or to occupy a
particular post of the choice of any particular person.
20
Further Article 19 (1) (g) does not mean that conditions be created by the State or
anystatutory body to make any trade lucrative or to procure customers to the
business/ businessman.

TRADE UNIONISM IN INDIA

ntroduction
Collective bargaining is a fundamental right of every citizen and trade unions have
a crucial role to play in ensuring that the rights of the workers are upheld. Towards
this end, the trade unions have been vested with several rights as well as
obligations. This article throws light on the rights of trade unions in India.
However, it is important to discuss the importance of trade unions in a developing
country like India. It can be done by looking at its history of origin and the role
that it plays in a particular industry. The relevance of trade unions will also be
discussed in the light of legal provisions and case laws which highlight both the
rights as well as the obligations of trade unions. At last, a clear demarcation is
made between the rights of recognised unions and unregistered unions.
Trade unions : introduction and a brief history
The industrial revolution began in Europe in the early 1700s, which continued well
into the 1900s. The economy was shifting from being agrarian towards one
dominated by machines and manufacturing. It was during this time that the concept
of industry emerged, various forms of technologies were being created, it was also
a time in history that was filled with scientific discoveries and inventions. All of
this led to a standardisation of processes of manufacture and the goods produced.
This large-scale manufacturing is what is known as “industry” in modern parlance.
Massive economic and technological changes naturally brought in huge shifts in
the socio-cultural aspects as well and in the initial phase, it led to abject poverty
among people. Their employment and job security were in question as labour was
being replaced by technology. Moreover, they were being paid paltry wages for
long hours of work, and were subjected to abuse and often worked in unhygienic
conditions.

Trade unions : introduction and a brief history

The industrial revolution began in Europe in the early 1700s, which continued well
into the 1900s. The economy was shifting from being agrarian towards one
dominated by machines and manufacturing. It was during this time that the concept
of industry emerged, various forms of technologies were being created, it was also
a time in history that was filled with scientific discoveries and inventions. All of
this led to a standardisation of processes of manufacture and the goods produced.
This large-scale manufacturing is what is known as “industry” in modern parlance.
Massive economic and technological changes naturally brought in huge shifts in
the socio-cultural aspects as well and in the initial phase, it led to abject poverty
among people. Their employment and job security were in question as labour was
being replaced by technology. Moreover, they were being paid paltry wages for
long hours of work, and were subjected to abuse and often worked in unhygienic
conditions.
Role of trade unions
The very purpose of unions in the labour market is to voice the issues faced by the
workers in their employment, hence the role played by trade unions is critical. This
is called collective bargaining; it is the process by which the employees/workers
put forth their issues before the management or the employer. This is usually done
through the unions by placing the charter of demands before the employers. The
issues are then negotiated for and an agreement is reached which then becomes
binding on the employer as well as all the workers.

Some of the functions they perform and the matters that are negotiated upon most
often are:

 Securing better wages and benefits to workers,

 Improving their bargaining power in order to create a level playing field

for the workers,

 Supporting workers in disputes with the management through

negotiations and strikes,

 Securing better working conditions for workers,

 Availing of better wages, compensation packages and social security

benefits,

 Regularisation of employment.

Laws regulating trade unions and rights of registered unions

The critical role played by the unions is backed by several prominent legislations;
there are 3 major laws that govern the functioning of trade unions in India. The
legislation and the rights bestowed upon the unions under the various provisions
are explained below:
1. The Constitution of India

The essence of unionism and bargaining is laid down in Article 19(1) of the
Constitution of India which provides to all its citizens the fundamental right of
freedom of speech. Clause (c) of Article 19(1) includes the right to form
associations or unions. The Supreme Court has extended the meaning of this right
to also include the right of the members to conduct meetings and the right to
discuss their problems and put-forth their views in the case of All India Bank
Employees vs National Industrial Tribunal.

2. The Trade Unions Act, 1926

The Trade Unions Act, 1926 (the “TU Act”) regulates the constitution and
governance of trade unions. Section 2(h) of the Act defines the term trade unions
under to mean any combination which is formed for the purpose of regulating the
relations between

 workmen and employers

 workmen and workmen

 employers and employers or

 for imposing restrictive conditions on the conduct of any business or

trade.
Trade unions can be temporary or permanent and registered or unregistered.
However, registration is recommended as it enables better rights and bargaining
power. The process of registration involves the submission of applications by 7 or
more persons, who are engaged or employed in the establishment or industry; such
persons need to subscribe their names to the rules of the trade union. The
registration can be made only if atleast 10% or 100 workers are members of the
union at the time of registration. The application has to be submitted with the
names, addresses and occupations of the members, name of the trade union and its
objects etc.; which needs to be drawn up in accordance with the rules.

Registered trade unions enjoy a variety of rights with respect to their operations,
these are briefly explained below:

a. Rights associated with a body corporate – By virtue of Section 13 of the

TU Act, a registered trade union is a body corporate; and as such, it
shall have a perpetual succession and common seal and shall have a
right to:

 hold and acquire properties, both movable and immovable, under its
own name,

 right to enter into contracts, and

 the right to sue and be sued.

b. Right to provide funds for political purposes – Section 16 of the TU Act permits
a trade union to constitute a separate fund to provide contributions to political
parties. The provision also lists the objects for which the funds may be provided.
However, it has to be noted that the members cannot be compelled to contribute
funds towards these activities.

c. Immunity from certain criminal and civil proceedings

 Section 17 provides immunity against criminal proceedings initiated

under Section 120B(2) of the Indian Penal Code to the office bearers
and members for any actions undertaken by them pursuant to an
agreement entered into to further the objectives of the trade union, as
provided in Section 15, some of which includes payment of salaries,
compensation, allowances etc. to office bearers, payment of expenses of
the union, conduct of trade disputes and other objects permitted by the
appropriate government. However, no immunity shall lie in cases where
an offence has been committed.

 Section 18 provides immunity to the office bearers and members of the

trade union against any act done in continuance or furtherance of a trade
 dispute, only on the ground that such acts induce another person to
breach an employment contract or interfere with the trade or business of
the other person. The immunity also extends to any tortuous acts done
in contemplation or furtherance of a trade dispute by an agent of the
trade union. In such a case, it is required to be proven that such an act
was done without the knowledge of or contrary to the instructions given
by the executives of the union. The provision, however, does not
provide any protection against acts of violence by the member/office
bearer.
d. Right to enforce agreements in restraint of trade – Section 19 makes it valid for a
registered trade union to enter into agreements that are otherwise invalid on
account of being in restraint of trade.

e. Right to change of name, right to amalgamation and dissolution – A trade union

has a right to change its name under Section 23 of the TU Act. Additionally, the
trade union can also amalgamate with another union under Section 24 and also
apply for dissolution under Section 27.

Along with the abovementioned rights, trade unions are also vested with certain
obligations, such as:

 Spending the funds of the union only towards activities permitted under
Section 15.

 The statutory duty is to keep the books of accounts available for

inspection to the public. [Section 20]

 Provide notices of change of name, amalgamation and

dissolution [Section 25]

 Submission of annual returns/ general statement to the registrar of trade

unions [Section 28]
3. The Industrial Disputes Act, 1947

The Industrial Disputes Act, 1947 (the “ID Act”) essentially provides mechanisms
for settlement of disputes of workmen and employers and other such related
activities. Though the ID Act does not specifically provide the rights, trade unions
play a significant role in resolving industrial disputes; hence they are inherently
vested with inherent rights in these matters. Some of them are:

1. Right to represent the workers in the Works Committee constituted

under Section 3 of the ID Act and before the dispute resolution forums
such as the Conciliation, Labour Courts, Industrial Dispute Tribunal,
National Industrial Tribunal etc. [Section 36],

2. Right to represent the individual worker, who is a member, before the

grievance settlement authorities constituted under Section 9C,

3. Right to strikes as per the procedure mentioned in Sections 22 and 23,

4. Right to negotiate on behalf of the workers regarding lay-off,

retrenchment, dismissal, compensation, compensation in case of
transfer/ closure of undertakings, working conditions etc.,

5. The draft standing orders have to be reviewed and approved by the trade
unions as per the Industrial Employment (Standing Orders) Act,
1946 prior to certification by the certifying officer [Section 3]. The
same applies in the case of modification of standing orders as well
[Section 10]. The trade unions also have a right to appeal if they are
aggrieved by the order of the certifying officer with regard to any of the
matters/terms of employment or working conditions specified in the
standing orders [Section 6].
The ID Act also casts a duty on the unions to not indulge in unfair trade practices
[Section 25T, read with Schedule V]. Some unfair practices include advising or
instigating illegal strikes, coerce workmen to join or refrain from joining the trade
union, refuse collective bargaining, instigating coercive actions such as willful ‘go
slow’, ‘gherao’ of managerial staff, indulging or inciting violence or intimidation
etc. It is thus essential for unions to follow the procedures laid down in the
legislation while exercising their rights.
Rights of unregistered trade unions
While the registered trade unions enjoy several rights, the same cannot be said for
unregistered unions. The unregistered trade unions, per se, have no rights except to
represent their members. In cases where the union has a considerable number of
workmen as its members, they can raise industrial disputes and put forth their
negotiations. Since such a union would have support from the workers, it would be
necessary for the employer to maintain good relations with them.

The fact that unregistered trade unions or unions whose registration has been
cancelled have no rights either under the ID Act or the TU Act was established by
the Supreme Court in the B. Sreenivasa Reddy vs. Karnataka Urban Water Supply
& Drainage Board Employees Association & Others.

Rights of recognised trade unions

While the trade union may be registered, to make the bargaining process more
effective, it is also necessary that the concerned establishment/ employer
recognizes the union for the purpose of negotiation and settlement. There is no
specific central law that provides for recognition of unions, however, many states
have enacted such laws, for eg, the Kerala Recognition of Trade Union Act,
2010, the West Bengal Trade Unions Rules, 1998, the Maharashtra Recognition of
Trade Unions and Prevention of Unfair Labour Practices Act, 1971 etc. provide
specific rules and procedure for recognition of unions as the sole bargaining agent
for its workers. Additionally, the Code of Discipline, adopted by the 15th Indian
Labour Congress provides the procedure for recognition.

As per Clause VIII of the Code of Discipline, recognized trade unions enjoy the
following rights vis-à-vis the unrecognised unions:

1. Right to raise issues and enter into collective agreements with

employers,
 2. Right to collect membership fees and subscriptions,

3. Right to put up notices and make announcements at prominent places in

the premises of the undertaking,

4. Right to hold discussions with employees and employers for the

purpose of either prevention or settlement of disputes,

5. Right to representation on the grievance committee, joint management

councils, and other non-statutory bipartite committees like the welfare
committee, canteen committee etc.
With the implementation of the Industrial Relations Code, 2020 round the corner,
the Central Government has also tabled the Industrial Relations (Central)
Recognition of Negotiating Union or Negotiating Council and Adjudication of
Disputes of Trade Unions Rules, 2021. Once this becomes effective, there will be a
central framework for the recognition of trade unions.

Some important judgments

There are some very important case laws that help in better understanding the role
and rights of trade unions, some of them are briefly given below:

1. In the Workmen of Indian Bank vs. Indian Bank, the Supreme Court
noted that every trade union is a body corporate, and as such, has all
rights inherent to body corporates. It was also laid down those office
bearers and executives of trade unions had every right to indulge in
union activities both during and after office hours and that the
management/ employer is obliged to provide their co-operation to
legitimate union activities being carried on by them.

2. In Balmer Lawrie Workers’ Union, Bombay and Another vs. Balmer

Lawrie & Co. Ltd. and Others, the Supreme Court decided on the
existence of a multiplicity of trade unions, and while taking note of the
differences between the rights of recognized and unrecognized unions,
held that recognition of a trade union aids in effective bargaining.
 3. In the case of RML Hospital vs. Wellington Hospital Workers’ Union,
the Supreme Court held that the workers and unions have a right to
peacefully ventilate their grievances but have no right to agitational
resources that put other’s lives and hospital services in peril.

4. In B. R. Singh vs. Union of India, a strike was recognised by the

Supreme Court as a valid mode of dispute redressal.

5. In the West India Steel Company Ltd. vs. Azeez, the Kerala High Court
the trade union can espouse the cause of workers, however, an
individual executive or union leader does not have a right to stop a
worker from attending to work or otherwise obstruct the work of an
establishment.

Conclusion
The growth of an economy depends on the growth of corporations, which in turn
depends on its workers and employees. This is possible only in the presence of an
environment that allows the workers to voice their grievances and opinions on
matters that directly or indirectly concern their employment. Most often, power
vests in favour of the employers, so balancing that with providing equal, if not
more, powers to the workers is absolutely necessary. This is where the importance
of trade unions comes in.

Though political interference, a multiplicity of unions, lack of unity amongst

unions, low membership, non-recognition or non-registration pose problems in the
effective functioning of unions, largely they have been successful, especially in the
unorganized sector. Moreover, with unions growing in the technology sector in
states like Karnataka, Tamil Nadu, West Bengal, Kerala and Maharashtra, the trade
union movement is certainly growing. With changes such as negotiating union and
their recognition, streamlining of the process of grievance redressal in the newly
introduced Industrial Relations Code, 2020, the significance and role of trade
unions is sure to continue.

https://blog.ipleaders.in/trade-unions-act-1926/
Multiplicity of Trade Unions and Inter Union Rivalry in India

https://www.scribd.com/doc/52510442/MULTIPLICITY-OF-TRADE-
UNIONS-AND-INTER-UNION-RIVALRY-IN-INDIA#:~:text=There
%20are%20currently%2013%20major,and%20weakens%20collective
%20bargaining%20power.

PROBLEMS
OF TRADE
UNION
1 .Small size of
trade unions:
Most of the
trade unions in
India are having
small
membership.
So, it is not a
healthy
development
because small
unions cannot
carry on
collective
bargaining and
maintaining
discipline
among their
members.
2. Limited
membership:
The total
membership of
trade unions in
India form a
small
percentage of
the total workers
and unions are
limited to urban
areas. Even
if the trade
unions are
strong a good
number of
workers do not
join in any
union.
3. Outside
leadership: In
India trade
unions are
controlled by
the political
parties.
They have no
industrial
concern and of
the problem
they faced and
may not pay
attention to the
union work.
4. Low income
of worker merge
fund: Poverty
and low saving
capacity of the
members hinder
the growth of
trade unions.
5. Illiteracy:
Due to the
illiteracy,
workers fail to
understand the
trade unionism.
They are not
able to
understand the
implication of
laws and
procedures.
6. Ineffective
leadership:
There may be
lack of ability,
capacity and
courage in
leaders of trade
union. These
persons may be
rude, selfish and
self-seeking.
They
do not have any
knowledge
about the labour
problems. They
may be
indifferent
to the true
interests of
workers.
7. Lack of unity:
Lack of unity
among the
members and
leaders of trade
union
PROBLEMS
OF TRADE
UNION
1 .Small size of
trade unions:
Most of the
trade unions in
India are having
small
membership.
So, it is not a
healthy
development
because small
unions cannot
carry on
collective
bargaining and
maintaining
discipline
among their
members.
2. Limited
membership:
The total
membership of
trade unions in
India form a
small
percentage of
the total workers
and unions are
limited to urban
areas. Even
if the trade
unions are
strong a good
number of
workers do not
join in any
union.
3. Outside
leadership: In
India trade
unions are
controlled by
the political
parties.
They have no
industrial
concern and of
the problem
they faced and
may not pay
attention to the
union work.
4. Low income
of worker merge
fund: Poverty
and low saving
capacity of the
members hinder
the growth of
trade unions.
5. Illiteracy:
Due to the
illiteracy,
workers fail to
understand the
trade unionism.
They are not
able to
understand the
implication of
laws and
procedures.
6. Ineffective
leadership:
There may be
lack of ability,
capacity and
courage in
leaders of trade
union. These
persons may be
rude, selfish and
self-seeking.
They
do not have any
knowledge
about the labour
problems. They
may be
indifferent
to the true
interests of
workers.
7. Lack of unity:
Lack of unity
among the
members and
leaders of trade
union
PROBLEMS
OF TRADE
UNION
1 .Small size of
trade unions:
Most of the
trade unions in
India are having
small
membership.
So, it is not a
healthy
development
because small
unions cannot
carry on
collective
bargaining and
maintaining
discipline
among their
members.
2. Limited
membership:
The total
membership of
trade unions in
India form a
small
percentage of
the total workers
and unions are
limited to urban
areas. Even
if the trade
unions are
strong a good
number of
workers do not
join in any
union.
3. Outside
leadership: In
India trade
unions are
controlled by
the political
parties.
They have no
industrial
concern and of
the problem
they faced and
may not pay
attention to the
union work.
4. Low income
of worker merge
fund: Poverty
and low saving
capacity of the
members hinder
the growth of
trade unions.
5. Illiteracy:
Due to the
illiteracy,
workers fail to
understand the
trade unionism.
They are not
able to
understand the
implication of
laws and
procedures.
6. Ineffective
leadership:
There may be
lack of ability,
capacity and
courage in
leaders of trade
union. These
persons may be
rude, selfish and
self-seeking.
They
do not have any
knowledge
about the labour
problems. They
may be
indifferent
to the true
interests of
workers.
7. Lack of unity:
Lack of unity
among the
members and
leaders of trade
union
https://www.studocu.com/in/document/mahatma-gandhi-university/
labour-law-and-industrial-law/problems-of-trade-union/22809572

fd