Effect given to the recommendations of the committee and the Governing Body - Report No 388, March 2019

Case No 2991 (India) - Complaint date: 11-OCT-12 - Follow-up cases closed due to the absence of information from either the complainant or the Government in the last 18 months since the Committee examined the cases

Effect given to the recommendations of the committee and the Governing Body

1. 24. The Committee last examined this case, which concerns allegations of excessively long registration procedures, denial of registration due to imposition of restrictive conditions of eligibility (occupational requirement) for union office and union membership, and minimum membership requirement of 100 workers to establish a union, at its October 2015 meeting [see 376th Report, approved by the Governing Body at its 325th Session, paras 42–46]. On that occasion, the Committee requested the Government to: provide information as to the status of the appellate proceedings concerning the refusal to register the Garment and Allied Workers’ Union (GAWU); engage with the social partners to review section 4(1) of the Trade Unions Act, 1926, as amended in 2001 (TU Act), so as to ensure that the minimum membership requirement is fixed in a reasonable manner; and encourage Haryana State to review the implementation of its registration procedures so as to ensure that the period for registration of workers’ organizations in practice does not become excessively long.
2. 25. The Government provides its observations in communications dated 26 February 2016 and 14 November 2017. With regard to the appellate proceedings on the refusal to register the GAWU, the Government states that the appeal filed by the union is still pending before the Appellate Court in Gurugram and no interference can thus be made by the administrative authorities in these proceedings. It also states that a date was fixed in January 2018 for evidence and that both the trade union and the Registrar will be bound by the orders of the Court.
3. 26. Regarding the requirements of section 4(1) of the TU Act, pertaining to minimum union membership required for registration, the Government states that if the existing minimum criteria (an application for registration can be made by not less than seven trade union members with the support of at least 10 per cent or 100 workers, whichever is less, employed in the establishment or industry) were removed, it would result in total chaos giving rise to multiplicity of unions and adversely affecting the industrial peace and harmony. The Government further indicates that: (i) the 2001 amendment was adopted after exhaustive consultations with the social partners and aimed at reducing multiplicity of trade unions, orderly growth of trade unions and promoting internal democracy; (ii) the provisions of the TU Act only regulate registration under the Act and do not inhibit the existing and functioning of an unregistered trade union; (iii) registration of a trade union under the TU Act bestows certain rights, protection and responsibilities on trade unions, therefore the restrictions for registration provided by the Act were rightly imposed to prevent workers from being exploited by dummy unions without the support of a minimum reasonable number of workers; (iv) there is no need to amend section 4(1) of the TU Act as its provisions, as well as those of the Constitution, are very liberal and in line with various ILO Conventions; and (v) the complainant’s actions are apparently motivated to create extra-judicial pressures to circumvent the law.
4. 27. Concerning the registration procedure in Haryana State, the Government reiterates that administrative orders had been issued to restrict the time limit for disposal of applications for registration of trade unions to not more than four months and all applications are disposed in the prescribed time limit. In the present case, a delay had taken place as the trade union had proposed to include workers from different industrial establishments for whom the application had to be sent to different authorities for verification. The Government adds that in September 2016 the Ministry of Labour and Employment requested all state governments to make the necessary changes in the executive orders and amendments so as to stipulate the time limit of 45 days for disposal of applications for registration, which reflects the consensus reached with the Central Trade Union Organizations. The Ministry is also finalizing the Code on Industrial Relations, which contains a proposal to include provisions of deemed registration if the application for registration is not finalized within 45 days.
5. 28. The Committee takes note of the information provided by the Government. With regard to the appeal on the refusal to register the complainant union, the Committee observes that the complainant’s request for registration dates back to January 2012 and that the appeal now seems to have been pending for several years with no substantial information being provided on the developments. Recalling its previous conclusions that judges should be able to deal with the substance of a case concerning a refusal to register so that they can determine whether the provisions on which the administrative measures in question are based constitute a violation of the rights accorded to occupational organizations [see 376th Report, para. 44], the Committee requests the Government once again to provide updated information as to the progress made in the appellate proceedings and to transmit a copy of the decision once rendered. The Committee trusts that, if this is not yet the case, the Appellate Court will issue a decision on the appeal without further delay.
6. 29. Concerning the requirements of section 4(1) of the Trade Unions Act, 1926, as amended in 2001, pertaining to minimum union membership required for registration, the Committee notes that, according to the Government, there is no need to review the provision as it could give rise to multiplicity of trade unions and adversely affect industrial peace. However, the Committee recalls its previous conclusions in which it had repeatedly observed that while a minimum membership requirement is not in itself incompatible with the principles of freedom of association, the number should be fixed in a reasonable manner so that the establishment of organizations is not hindered [see 376th Report, para. 45]. What constitutes a reasonable number may vary according to the particular conditions in which a restriction is imposed. A minimum requirement of 100 workers to establish unions by branch of activity, occupation or for various occupations must be reduced in consultation with the workers’ and employers’ organizations [see Compilation, op. cit., para. 436]. In light of the foregoing, the Committee once again requests the Government to engage with the social partners to review section 4(1) of the Trade Unions Act, 1926, as amended in 2001, in line with the above so that the establishment of organizations is not unduly hindered and to keep it informed of the progress made in this regard.
7. 30. Finally, the Committee notes the information provided by the Government with regard to the registration procedure in Haryana State, in particular, the request of the Ministry of Labour and Employment for all state governments to make the necessary changes to stipulate the time limit of 45 days for disposal of applications for registration. The Committee trusts that the proposed reduction of the time limit for disposal of applications for registration, together with an efficient implementation of the registration procedure in Haryana State, will contribute to ensuring that the period for registration of workers’ organizations in practice does not become excessively long.