Report in which the committee requests to be kept informed of development - Report No 368, June 2013

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

Allegations: The complainant organization alleges the inaction of the authorities with regard to the registration of the union

1. 545. The complaint is contained in a communication from the Garment and Allied Workers’ Union (GAWU) dated 11 October 2012.
2. 546. The Government forwarded its response to the allegations in a communication dated 9 January 2013.
3. 547. India has neither ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 548. In a communication dated 11 October 2012, the complainant organization GAWU alleges the inaction of the authorities with regard to the registration of the union.
2. 549. The complainant states that GAWU is a trade union as per the definition of the term provided under section 2(h) of the Trade Union Act of 1926, and has, as members, workers from the garment and other allied industries in the Gurgaon district of Haryana State in India. The objective of GAWU is to improve the wages and working conditions of workers in the garment and other allied industries in Gurgaon, and this objective has been clearly outlined in the union’s Constitution. According to the complainant organization, GAWU has elected representatives and a membership of over 300 workers from various companies engaged in the production of garment and other allied activities in Gurgaon, who pay a membership fee of 5 rupees (INR) per month to the union’s fund. The complainant encloses for reference the Constitution of the union, details of GAWU membership, as well as the names and other details of elected GAWU representatives.
3. 550. The complainant organization indicates that, as per section 4 of the Trade Union Act 1926, GAWU applied for its registration to the Registrar of Trade Unions in Chandigarh on 21 December 2011. As per section 5 of the Act, GAWU furnished all documents necessary for the registration, as well as all additional documents required by the Registrar.
4. 551. According to information received by the complainant from the Registrar’s office, the registration file was submitted to the Deputy Labour Commissioner (DLC) in Gurgaon on 2 January 2012. Not hearing from the DLC on the registration file, the Registrar of Trade Unions sent, on 24 January 2012, a letter to the DLC, copied to GAWU, directing her to transmit the fact-finding report immediately to the Registrar, so that the matter could be finalized as soon as possible. The complainant encloses the abovementioned letter for reference. Thereafter, GAWU sent a reminder to the Registrar on 31 January 2012 and also to the Labour Officer, who was supposed to carry out the inspection based on the registration file of GAWU. The Registrar of Trade Unions in Chandigarh sent three more letters dated 9 April, 22 May and 12 June 2012 to the DLC, copying GAWU, urging her to submit the inspection report to the Registrar’s office as soon as possible. The complainant again encloses these letters for reference. Records obtained by GAWU, through the 2005 Right to Information Act (RTI), dated 17 and 29 May 2012, showed that there was no record of the inspection based on which the DLC was required to submit her report. The complainant states that, on 9 July 2012, GAWU sent a representation to the Labour Secretary of Haryana State urging him to inform the union about the status of its registration; but that, so far, it has not heard anything from the Labour Secretary in this regard.
5. 552. In the complainant organization’s view, this inaction from the State of Haryana, with regard to the registration of GAWU, is a deliberate unlawful attempt to deny garment workers their right to organize, in violation of the Trade Union Act 1926. By denying GAWU the registration, the Government is infringing GAWU members’ right to organize and bargain collectively for better pay and working conditions.
6. 553. According to the complainant, India, as a founding member of the ILO, is violating the fundamental principle that “freedom of association and of expression is essential to sustained progress”. Moreover, the registration of trade unions is the first step in the recognition of the principle of freedom of association that the Preamble of the ILO Constitution declares to be a means of improving conditions of labour and establishing peace. The complainant believes that the inaction from the State of Haryana is in violation of Article 8(2) of Convention No. 87, which stipulates that “the law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees” provided by the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). Moreover, the Government of India is morally bound by the 1998 ILO Declaration on Fundamental Principles and Rights at Work, which, in paragraph 2, states that “… all Members, even if they have not ratified the Conventions in question, have an obligation arising from the very fact of membership in the Organization to respect, to promote and to realize, in good faith and in accordance with the Constitution, the principles concerning the fundamental rights which are the subject of those Conventions, namely: (a) freedom of association and the effective recognition of the right to collective bargaining; ...”.
7. 554. The complainant stresses that the allegedly deliberate delay in registering GAWU by the State of Haryana facilitates the violation of ratified Conventions, such as the Hours of Work (Industry) Convention, 1919 (No. 1), ratified by India on 14 July 1921; the Weekly Rest (Industry) Convention, 1921 (No. 14), ratified by India on 11 May 1923; the Workmen’s Compensation (Occupational Diseases) Convention, 1925 (No. 18), ratified by India on 13 January 1964; and the Equal Remuneration Convention, 1951 (No. 100), ratified by India on 25 September 1958.
8. 555. The complainant organization, therefore, urges the Committee on Freedom of Association to direct the Government of India, in particular the Ministry of Labour and Employment, to enquire into the matter of non-registration of GAWU by the Labour Department of the State of Haryana. It also expresses its willingness to furnish any additional documents and evidence as may be required.

B. The Government’s reply

1. 556. In a communication received on 9 January 2013, the Government indicates that, as per the information received from the State Government of Haryana, the request of GAWU for registration under the Trade Union Act, 1926, was considered but rejected due to the following reasons: (i) keeping in view the provisions contained in section 4(2) of the Trade Union Act, 1926, the request for registration of the union is not maintainable when half of the total number of persons who made the application have ceased to be the members of the proposed union; and (ii) the strength of the total membership of the union does not even fulfil the membership requirement of at least 100 workers, as contained in section 4(1) of the Act.
2. 557. The Government encloses a communication dated 1 January 2013, sent by the Registrar to the union with the subject “Application of Garment and Allied Workers Union, Gurgaon, for its registration under the Trade Union Act, 1926”, making reference to the union’s application for registration dated 23 December 2011. According to the communication, the matter has been considered and examined along with the report received from the field offices. It has been observed that the General Body of the union, via its resolution dated 30 October 2011, had authorized the following eight applicants to submit the application for registration of the union in question: Anannya Bhattacharjeee, President; Nagender Singh, General Secretary; Ashok Singh, Organizing Secretary; Ram Karan, Publicity Secretary; Mantun Giri, Joint Secretary; Parmod Kumar, Joint Secretary; Khushboo, Joint Secretary; and Ritu Singh, Treasurer. From a perusal of the application submitted by the union, it has been found that the application does not contain the signature of Ritu Singh, Treasurer. However, one Anwar Ansari, Executive Member, has signed the application, without authorization by the General Body. It has further been noted that the status of the remaining seven applicants who have signed the application is as follows: (i) the applicant appearing at Signature No. 1 is a social activist and not a workman; (ii) the services of Nagender Singh and Khushboo whose names are appearing at Signatures Nos 2 and 7 already stand dispensed with, on account of closure of the relevant industrial establishment with effect from 16 April 2012; and (iii) Ram Karan, whose name appears at Signature No. 4, has already resigned from service. According to the communication, it has, therefore, been concluded that the union’s request for registration is not maintainable, keeping in view the provisions contained in section 4(2) of the Trade Union Act, 1926, which so provides when half of the total number of persons who made the application have ceased to be the members of the proposed union. In the present case, out of seven applicants, only three applicants remain. Moreover, during the inquiry, it has been found that some of the industrial establishments with whom some members were working already stand closed; that some workers are not interested in the formation of the union; that various workers are not in the rolls of the company; and, thus, that the strength of the total membership of the union does not even fulfil the condition of requirement of at least 100 workers, as contained in section 4(1) of the Trade Union Act, 1926. In view of the reasons given above, the Registrar of Trade Unions has, therefore, concluded that the application of the union is not maintainable and is hence rejected.

C. The Committee’s conclusions

1. 558. The Committee notes that, in the present case, the complainant organization alleges the inaction of the authorities with regard to the union’s registration.
2. 559. The Committee notes that the complainant indicates that: (i) GAWU has elected its representatives and has a membership of over 300 workers from various companies engaged in the production of garments and other allied activities in the Gurgaon district of Haryana State in India, who pay a membership fee of INR5 per month to the union’s fund; (ii) as per sections 4 and 5 of the Trade Union Act, 1926, GAWU applied for its registration to the Registrar of Trade Unions in Chandigarh on 21 December 2011 and furnished all necessary documents, as well as all additional documents required; (iii) the registration file was submitted to the DLC in Gurgaon on 2 January 2012; (iv) the Registrar sent, on 24 January 2012, a letter to the DLC urging her to transmit the inspection report as soon as possible; (v) GAWU, sent on 31 January 2012, a reminder to the Registrar and to the Labour Officer in charge of carrying out the inspection based on the GAWU registration file; (vi) the Registrar subsequently sent to the DLC three more reminders (9 April, 22 May and 12 June 2012); (vii) records of May 2012 obtained through the RTI Act showed that the inspection based on which the DLC was required to submit her report had not yet taken place; (viii) on 9 July 2012, GAWU sent a representation to the Labour Secretary of Haryana State urging him to inform the union about the status of its registration but has not received a reply so far; and (ix) in its view, the inaction of the State of Haryana with regard to the registration of GAWU is a deliberate unlawful attempt to deny garment workers their right to organize, in violation of the Trade Union Act, 1926. The Committee also notes the documents enclosed by the complainant including the Constitution of the union, details of the GAWU membership, the names and other details of elected GAWU representatives, as well as the letters sent to the DLC by the Registrar.
3. 560. The Committee notes that the Government indicates that the request of GAWU for registration under the Trade Union Act, 1926, was considered but rejected. It notes, from the Government’s observations and the enclosed communication dated 1 January 2013 sent by the Registrar to the union, that the invoked reasons are as follows:
   • (i) The General Body of the union, via its resolution dated 30 October 2011, had authorized the following eight applicants to submit the application for registration: Anannya Bhattacharjeee, President; Nagender Singh, General Secretary; Ashok Singh, Organizing Secretary; Ram Karan, Publicity Secretary; Mantun Giri, Joint Secretary; Parmod Kumar, Joint Secretary; Khushboo, Joint Secretary; and Ritu Singh, Treasurer. The application does not contain the signature of Ritu Singh, Treasurer, but rather of Anwar Ansari, Executive Member, a person who was not authorized by the General Body. As regards the status of the remaining seven applicants who have signed the application, the applicant No. 1 (Anannya Bhattacharjeee) is a social activist and not a worker; the services of applicants No. 2 (Nagender Singh) and No. 7 (Khushboo) stand dispensed with on account of closure of the industrial establishment, with effect from 16 April 2012; and applicant No. 4 (Ram Karan) has resigned from service. The union’s request for registration is, therefore, not maintainable, keeping in view the provisions contained in section 4(2) of the Trade Union Act, 1926, which so provides when half of the total number of persons who made the application, have ceased to be the members of the proposed union; in the present case, only three out of seven applicants remain.
   • (ii) Furthermore, during the enquiry it was found that some of the relevant industrial establishments had been closed in the meantime, that some workers were no longer interested in the formation of the union, and that various workers were not in the rolls of the company. Thus, the strength of the total membership of GAWU did not fulfil the union membership requirement of at least 100 workers as contained in section 4(1) of the Trade Union Act, 1926, as amended in 2001.
4. 561. Firstly, the Committee observes that, while GAWU’s application for registration under the Trade Union Act, 1926, was submitted on 23 December 2011, the official decision in this respect was transmitted to the union only one year later (by letter of 1 January 2013), despite several reminders sent by the union and by the Registrar to the relevant authorities in Gurgaon. The Committee cannot but regret these circumstances and considers that a one-year period for treating a union’s application for registration is excessive and not conducive to harmonious industrial relations. It recalls that a long registration procedure constitutes a serious obstacle to the establishment of organizations and amounts to a denial of the right of workers to establish organizations without previous authorization, and that a period of one month envisaged by the legislation to register an organization is reasonable [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 307 and 308].
5. 562. As regards the decision to reject the union’s request for registration pursuant to section 4(2) of the Trade Union Act, 1926, because half of the total number of persons who made the application have ceased to be members of the proposed union, the Committee wishes to emphasize from the outset that, in view of the above, it generally considers that the registration procedure in the present case did not respect the principle of due process owing to its excessive length, and that, consequently, changes that have occurred within the one-year period with regard to the status of the applicant union members may indeed have had a detrimental impact on the application of the union.
6. 563. As to the concretely invoked changes in the status of the applicants, the Committee, observing that the Government refers to the fact that two applicants had been dismissed and one applicant had resigned in the meantime, wishes to recall that, given that workers’ organizations are entitled to elect their representatives in full freedom, the dismissal of a trade union leader, or simply the fact that a trade union leader leaves the work that he or she was carrying out in a given undertaking, should not affect his or her trade union status or functions unless stipulated otherwise by the Constitution of the trade union in question. In fact, in such cases, the laying off of a worker who is a trade union official can, as well as making him forfeit his position as a trade union official, affect the freedom of action of the organization and its right to elect its representatives in full freedom, and even encourage acts of interference by employers [see Digest, op. cit., paras 408 and 411]. With respect to the Government’s statement that one applicant was rather a social activist than a worker, the Committee highlights that the requirement of membership of an occupation or establishment as a condition of eligibility for union office are not consistent with the right of workers to elect their representatives in full freedom. For the purpose of bringing legislation which restricts union office to persons actually employed in the occupation or establishment concerned into conformity with the principle of the free election of representatives, it is necessary to, at least, make these provisions more flexible by admitting as candidates persons who have previously been employed in the occupation concerned and by exempting from the occupational requirement a reasonable proportion of the officers of an organization [see Digest, op. cit., paras 407 and 409]. In this context, the Committee observes that section 22 of the Trade Union Act, 1926, as amended in 2001, provides for a certain proportion or number of office bearers to be exempt from the requirement of being actually employed in the industry concerned. The Committee, therefore, cannot ascertain why the changes in the status of the applicants, as invoked by the Government, triggered the loss of their status as union members or officials and gave rise to the denial of the union’s registration.
7. 564. As regards the decision to reject the union’s request for registration because the strength of the total membership of GAWU did not fulfil the union membership requirement of at least 100 workers contained in section 4(1) of the Trade Union Act, 1926, as amended in 2001, the Committee takes due note of the divergent views of the parties concerning the size of the membership of the complainant organization. It further observes that, pursuant to the relevant legal provision, no trade union of workmen shall be registered unless at least 10 per cent or 100 workmen, whichever is less, engaged or employed in the establishment or industry with which it is connected, are members of such a trade union on the date of the making of application for registration. The Committee recalls that it has always considered that 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; and that the legal requirement for a minimum of 30 workers to establish a trade union at enterprise level should be reduced in order not to hinder the establishment of trade unions at enterprises, especially taking into account the very significant proportion of small enterprises in the country [see Digest, op. cit., paras 283 and 286]. The Committee, therefore, believes that section 4(1) of the Trade Union Act, 1926, as amended in 2001, imposes an excessively high minimum number of members for the formation of unions, at both enterprise level and industry level. Bearing in mind that the failure to meet the minimum membership requirement can only give rise to the refusal of a union’s registration, if such a requirement is itself in conformity with the principles of freedom of association, the Committee considers that the refusal of GAWU’s registration cannot be justified on the purported ground of the union membership having fallen below 100 workers (which is being disputed by the complainant).
8. 565. In view of its above considerations, the Committee requests the Government to register GAWU without delay. It also requests the Government to take the necessary measures to modify the minimum union membership requirement in section 4(1) of the Trade Union Act, 1926, as amended in 2001, so that the establishment of organizations is not unduly hindered. Lastly, recalling that a long registration procedure constitutes a serious obstacle to the establishment of organizations and amounts to a denial of the right of workers to establish organizations without previous authorization [see Digest, op. cit., para. 307], the Committee requests the Government to take steps to ensure that the period necessary for registration of workers’ organizations is not excessively long.

The Committee’s recommendations

1. 566. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to register GAWU without delay.
   • (b) The Committee requests the Government to take the necessary measures to modify the minimum union membership requirement in section 4(1) of the Trade Union Act, 1926, as amended in 2001, so that the establishment of organizations is not unduly hindered.
   • (c) The Committee requests the Government to take steps to ensure that the period necessary for registration of workers’ organizations is not excessively long.