Employee rights to freedom of expression and organization


In March 2021, the United States House of Representatives passed a pro-union bill called Protecting the Right to Organize Act of 2021 (PRO Act). If enacted, the PRO Act will amend several provisions of the National Industrial Relations Act (NLRA) to grant new rights to unions and restrict some existing rights for employers.[1]

In India, the new labor codes are awaiting notification on their effective date. Once in force, labor codes introduce certain essential provisions relating to trade unions (called trade unions in India).

India Trade Union Act

Section 19 (1) (c) of the 1950 Indian Constitution (Constitution) contemplates the fundamental right to “freedom of speech and expression” and guarantees the right “to form associations or unions”, including unions.

In accordance with the Constitution, labor laws in India enumerate the right of employees to form and join a trade union and to engage in collective bargaining in national laws, including the Trade Unions Act of 1926 (Act TU) and the Labor Disputes Act 1947 (ID Act), in addition to some state-specific legislation. Indian courts have already upheld the right of workers to form or join a trade union in India.[2]

Union recognition

The concept of “recognition” of a union is currently absent from our federal laws. Some Indian states such as Maharashtra and Kerala have implemented trade union recognition laws, namely the Trade Union Recognition and Prevention of Unfair Labor Practices Act 1971 in Maharashtra and the Trade Union Recognition Act 2010. recognition of unions in Kerala.

Recognizing a trade union means that the employer accepts a particular trade union as having a representative character and, therefore, will be willing to enter into discussions with the trade union with regard to the interests of the workers.[3] The unions believe that union recognition is necessary to ensure collective bargaining and the stability of industrial relations.

In fact, the proposed PRO law states that employers can no longer withdraw recognition from a union without a recall election.[4]

Bargaining union under the Industrial Relations Code, 2020

On September 29, 2020, India’s Industrial Relations Code, 2020 (IR Code) was enacted, which subsumes and replaces certain laws, including the TU Act. Although it has not yet entered into force, the IR Code introduces the concept of a “bargaining union” in an industrial establishment with one or more registered unions.

A union or a negotiating council is a union which is recognized to negotiate with the employer of the industrial establishment, on certain prescribed matters.[5] The IR Code provides that once a trade union is recognized by the employer, this recognition remains valid for up to three years from the date of recognition or constitution or an additional period of up to five years, in total, which can be decided by mutual agreement by the employer. and the union (s).

If there is only one union registered in an industrial establishment, the employer is obliged to recognize this union as the only bargaining union for workers. In the event that there are several unions registered under the IR Code, the union which has at least 51% of members on the industrial establishment’s appeal list must be recognized as the bargaining union by the employer. However, in the event that there are several unions none of which meet the 51% membership criteria above, the employer must establish a negotiating board, made up of representatives of those registered unions who have the support of at least one. minus 20% of the total workers registered on the call list of this industrial establishment and this representation should be of one representative for every 20% and for the rest after calculation of membership on every 20%.

In accordance with the IR Code, if the central government considers it necessary for a trade union or federation of trade unions to be recognized as a central trade union at the central level, it may recognize this trade union as such, as may be prescribed in the rule.

Proposal for central rules on the recognition of the negotiating union and the settlement of disputes relating to unions (draft)[6]

On May 4, 2021, the central government released the proposed central regulation draft entitled Regulation on the Recognition of (Central) Industrial Relations of the Union or Negotiating Board and Dispute Resolution of Trade Unions, 2021 (“Union regulations“) under the IR Code.

The union rules provide a list of issues relating to workers that the union or the bargaining board will negotiate with the establishment’s employer. This includes the classification of categories of workers, their wages and other allowances, leave rights, disciplinary procedures and the safety, health and working conditions of workers. It also provides that the criteria for recognizing a single registered union as the only bargaining union of workers is that the only registered union must have at least 30% per cent of the total workers employed in the industrial establishment as members. In addition, it provides for the mechanism for verifying union membership and recognizing the union as the sole union or negotiating council.

What awaits us?

India’s new labor codes have yet to be enacted, although it currently only seems a matter of time. The proposed reforms to the Trade Union Act suggest the Indian government’s intention to empower unions, some of which have large membership. It remains to be seen whether any of these developments will drive more workers in India to unionize. Only time will tell.

[1] https://www.jdsupra.com/legalnews/why-employers-need-to-pay-special-7392319/

[2] Damyanti Naranga and Ors. vs Union of India (UOI) and Ors. AIR 1971 SC 966

[3] Singh et al., Managing Employee Relations, p. 110, Available at https://books.google.co.in/books?id=vkQ7BAAAQBAJ&printsec=frontcover

[4] Article 104 (g) of the PRO Law

[5] Section 14 of the IR and Industrial Relations (Central) Code Recognition of the bargaining union or the Negotiating Council and dispute resolution of labor unions, 2021

[6] https://egazette.nic.in/WriteReadData/2021/226832.pdf

Nishith Desai Associates 2021. All rights reserved.Revue nationale de droit, volume XI, number 182


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