The collective bargaining in India remained limited in its scope and restricted in its coverage by a well defined legal structure. Actually, the labour laws systematically promoted and perpetuated a duality of labour-formal sector workers enjoying better space for collective bargaining and informal ones with no scope for collective bargaining. To understand this, we can discuss in brief about the labour legislations in Indiaand their scope and coverage.
It is interesting to note that the applicability of different sections of labour laws is limited by number of workers engaged in an establishment. The limitations put in applicability of labour laws is haphazard and there is no logic behind it, but in overall terms it systematically denies any protection and any social security to those employed in smaller factories with less than ten workers. The Factories Act provides for the health, safety, welfare and other aspects of workers while at work in the factories. Under this Act, an establishment with power employing 10 workers and 20 workers in case of no power connection is a factory, but following provisions of the act are not applicable to all factories: Provision for crèche: applicable only if 30 or more women are employed; Provisions of a rest room: applicable only if there are 150 or more workers; Provisions of canteen: applicable only if there are 250 or more workers; Provisions for ambulance, dispensary, and medical and para-medical staff: applicable only if there are 500 or more workers.
Employees Provident and Miscellaneous provisions Act, Maternity Benefit Act and Payment of Gratuity Act apply to all establishments with 10 or more workers. But Employees State Insurance Act applies to only those establishments with 20 or more workers. Minimum Wages Act applies to all establishments and all workers, but the Payment of Wages Act applies only to those establishments with 10 or more workers, and also only to those workers getting wages less than Rs 1600 per month. On the other hand, the Payment of Bonus Act is applicable to only those enterprises employing 20 or more workers and only to those workers getting wages less than Rs 3500 per month.
Industrial Disputes Act, 1947 lays down the procedures for the settlement of industrial disputes. Its procedural aspects are applicable to all enterprises for the settlement of industrial disputes. However, really protective clauses for the workers pertaining to layoffs, retrenchments and closures are contained in ChapterVAand Chapter VB, which have limited applicability. Chapter V B does not apply to any establishment employing less than one hundred workers, and ChapterVAdoes not apply to any establishment employing less than 50 workers. Industrial Employment (Standing Orders) Act makes it compulsory to have Standing Orders in each enterprise to define misconducts and other service conditions, and also entails that for any misconduct no worker will be punished without due process of law using the principles of natural justice. But this law does not apply to those enterprises employing less than 100 workers (only in few states like Uttar Pradesh, it is made applicable to all factories (i.e. employing 10 or more workers). Trade Union Act applies to all establishments with 7 or more workers, since a minimum of 7 members are necessary in order to register a trade union.
To sum up, if we look at the general picture, only a tiny section of workforce is protected by the labour laws and has guaranteed space for collective bargaining in well defined legal boundaries. According to the Fifth Economic Census (1999) more than 97 percent of the enterprises employ less than ten workers, and most of these employ less than five workers. Therefore, protective labour laws apply to only less than three percent of the enterprises; and in rest of the 97 percent enterprises only Industrial Disputes Act (minus its protective sections like section V-A, V-B), Minimum Wages Act, the Workmen’s Compensation Act, Equal remuneration Act, and the Shops and Establishments Act (enacted by each state separately) and some pieces of labour legislation enacted for specific occupations are applicable. Generally these 97 percent enterprises are said to represent industrial informal sector (those not covered under Factories Act) and the three percent as formal sector (those covered under Factories Act). Total workforce employed in different sectors in India(principal plus subsidiary employment) is about 456 million, of which informal sector accounts for about 393.2 million (86 percent).
It is also to be noted that informalization of the workforce that was accelerated with the advent of liberalization, has transformed the formal sector also in terms of shifting the jobs from formal to informal sector and also by informalisation of jobs with in the formal sector units. Now, in the formal sector, number of formal workers is about 33.7 million and informal workers about 28.9 million (2004-05). Increase in the employment (in whatever amount) in the formal sector has largely been of informal in nature..
Indiahas neither ratified ILO convention on Freedom of Association and Protection of the Right to Organize 1948 (C. 87), nor the Right to Organize and Collective Bargaining Convention, 1949 (C. 98). Trade Union Act of Indiaprovides right to association only with a limited scope ad limited coverage. The Trade Union Act 1926 was amended in 2001 and after the amendment it became more difficult to form the trade unions. In the Act of 1926, only seven members were required to register a trade union, but after amendment at least 10% or 100, whichever is less, subject to a minimum of 7 workmen engaged or employed in the establishment are required to be the members of the union before its registration. The amendment also introduces a limitation on the number of outsiders among the office bearers. Collective bargaining is limited with in the scope provided in Industrial Disputes Act 1947.
It is worth mentioning that only when the unions are recognized by the management then only they have the full-fledged rights as bargaining agent on behalf of workers. But there is no legal obligation on employers to recognize a union or engage in collective bargaining.The statutes of only few states of Indialike Maharashtra, Gujarat, Madhya Pradesh and Rajasthan have made some provisions for recognition of unions with a specific percentage of the workforce.
In India, right to protest is a fundamental right under Article 19 of the Constitution of India; but right to strike is not a fundamental right. Right to strike as also the right to lock-out is a legal right governed by Industrial Disputes Act 1947. Under the law, all strikes needed due notices and in this period if management requests for a conciliation, then strike is not legal until the conciliation continues. Even if conciliation fails, the government mayrefer the dispute for compulsory arbitration or to a labor court for a final decision, and during this period the strike is considered to be illegal. The State Governments, mayalso for securing the public safety or convenience or the maintenance of public order or supplies and services essential to the life of the community or for maintaining employment or maintaining industrial peace, make provisions for prohibiting strikes or lock-outs. Large number of special economic zones (SEZs) and proposed National Manufacturing Investment Zones are already declared public utility services and therefore the legal strike becomes almost impossible in the zones.
Moreover, in recent decades, a number of judgments came from the Supreme Court setting precedents against the right to strike.
The trade union movement in Indiacomprises of over 70,000 registered unions (politically affiliated and independent) and an unaccountable number of non-registered organizations engaged on the issue of promoting and protecting workers' interests. Trade unions in Indialargely represent only formal sector workers. There are now 12 Central Trade Unions in India:
- BMS- Bharatiya Mazdoor Sangh (linked with far right political party BJP)-members: 6 million
- INTUC - Indian National Trade Union Congress (linked with centrist Congress Party), members: 3.8 million
- AITUC - All India Trade Union Congress (linked with Communist party of India)- members: 3.3 million
- HMS - Hind Mazdoor Sabha (independent-socialist) -members: 3.2 million
- CITU - Centre of Indian Trade Unions (linked with Communist Party of India (Marxist) –members: 2.6 million
- UTUC (LS) - United Trade Union Congress (Lenin Sarani) (linked with the party named Socialist Unity Center of India)
- UTUC - United Trade Union Congress (linked with political party-Revolutionary Socialist Party)
- TUCC - Trade Unions Co-ordination Centre (linked with political party-All India Forward Bloc)
- SEWA-Self-Employed Women's Association (independent)—recently included in the list
- LPF-Labour Progressive Front (linked with political party-Dravida Munnetra Kazhagam)---recently included in the list
- ICCTU- All-India Central Council of Trade Unions (linked with Communist Party of India (Marxist-Leninist)-Liberationgroup)- recently included in the list
- INTTUC-Indian National Trinamool Trade Union Congress (linked to the political party-All India Trinamool Congress)- recently included in the list
Union density in Indiais only 8 percent and in this regard it ranks at 48th position in the world. In the new verification of membership in 2001, the growth in trade union membership is very visible, but largely this growth is from informal sector or most importantly from rural labour.
Recent Trends in Collective Bargaining
1. Decentralised and Individualized Bargaining
The collective bargaining in Indiaremained largely decentralized, i.e. company or unit level bargaining rather than Industry level bargaining. But in some sectors (mostly public sector industries) the industry level bargaining was dominant. However, privatization of public sector transformed the industry level bargaining to company level bargaining. On the other hand, due to drastic infomalisation of workforce and downsizing in the industries, the strength and power of the trade unions is heavily reduced. The trade unions mainly represented the interests of formal workers. Increasing number of informal workers in the companies soon transformed the structure of the workforce in such a way that the formal workers became a minority. Moreover, in some sectors like garment, there is almost complete informalisation of the work force with only a tiny section of formal workers. It happened in almost all sectors. Due to various reasons informal workers are not able to form their own trade unions, and on the other hand they are not represented by the trade unions of the formal workers. These situations resulted in spurt of individualized bargaining.
High level of informalisation of workforce combined with the individualized bargaining actually changed the character of the trade unions also. In relevant sectors and industrial regions, it converted many trade unions (particularly in sector dominated by informal workers) in to legal consultants (pursuing individual cases and charging fees for their services) rather than collective bargaining agents.
2. Declining Wage Share
Declining strength of collective bargaining is also reflected in sharply increasing share of profit and drastically declining the wage share (since 2001-02), resulting in depressing purchasing power. Approximately 73 million out of 173 million wage earners throughout Indiado not receive minimum wages. About 30–40 per cent of these low-paid wage earners belong to poor families.
We call look in to following figure provided by the ILO’s World of Work Report to get an idea about how seriously the conditions are worsening:
Declining Wage Share in India, 1993–2007
Source: World of Work Report, ILO 2010.
3. New Wave of Labour Movement for Unionisation
A new wave of workers struggle for unionization is emerging from below by and large independent from the central trade unions. This is mainly emerging in the formal sector. The workers are realizing by their own experiences that they can not change their fate without organizing themselves in a trade union. In many cases the workers do not get even the legal benefits like minimum wages, premium rate of overtime and holidays and casual leaves. Once the union is formed, at least the minimum benefits guaranteed by law are easily available to all workers. Actually large numbers of informal workers are illegally put in the category of informal, and they can convert their status in to formal workers only by organizing themselves in a trade union. It is in this background that even when the workers are facing unimaginable repression for their attempts to form a union, they are fighting for it and more and more workers in new factories are also choosing the same.
In 2009-10, most of the well known workers struggles were on the issue of formation or for recognition of the trade union for collective bargaining, e.g. Hyundai Workers Struggle for Recognition of the Union, Nokia Workers Struggle for Wage Hike and Against Victimization, MRF Workers Struggle for Recognition of Union, Pricol Workers Struggle for Recognition of Union, Graziano Workers struggle for Unionization, The Case of Trade Union Repression in Nestle, Vivva Global Workers Struggle for Minimum Wages and Unionization, Rico Auto Workers Struggle for Unionization and Sunbeam Workers Struggle for Democratisation of the union.
It is also interesting to note that in almost all the above cases both formal and informal workers came together in these struggles. It explains that the conditions have already entered in a new phase when the numbers of informal workers in factories are either equal to or more than formal workers and generally with same competence levels. Therefore the enmity of formal workers with informal workers has gone. Now rather than trying to oust informal workers, the formals are uniting with informals and demanding regularization of their jobs so that they get the same status and benefits as formal workers. Unionizing all the formal and informal workers under the same union is actually one major step in this direction.
On the other hand, the industrialists are not ready to accept trade unions in their factories at any cost. They are unleashing unimaginable repression on workers and trade union leaders when there are efforts to form trade unions in their factories. Even after the trade unions are formed, managements are not ready to recognize them and therefore deny them space for collective bargaining.
According the data of Government of India on strikes and lockouts (Indian Labour Statistics 2010), causal factor of 34.8 percent cases of industrial disputes is recorded as indiscipline. 22 percent cases of industrial disputes are around demands for wages and allowances (in many cases demanding only minimum wages fixed by the government). Actually these two categories of industrial disputes largely reflect on the sufferings of informal workers and repression unleashed by factory managements on unionization efforts of the workers. Moreover, after the liberalization, man days lost in the lockouts are far more than the strikes by the workers. This is a consistent trend.
In the meantime, the central trade unions are also increasingly realizing the importance of unity among trade unions. This is reflected in formation of a Coordination Committee of eight Central Trade Unions on the other. First joint action of this coordination committee was the one day All India General Strike on 7th Nov 2010, which is said to be the biggest strike in India since independence with participation of about 100 million workers from all over the country.
There are also new initiatives to organize informal sector workers particularly the agriculture workers. After the implementation of National Rural Employment Guarantee Act, the new possibilities emerged to unionize the rural workers around the NREGA. Many local level unions of rural workers and also regional platforms of rural workers have started emerging. However, the system of collective bargaining in this sector is very different; it is mostly on general issues like proper implementation of the act itself, ensuring minimum wages, employment guarantee and workplace facilities. Since the wages (minimum wages) and facilities are fixed by law, the struggle is actually for implementation of the NREGA. There are also initiatives to organize other informal sector workers also like forest workers, fish workers and other self employed categories. But the movement is still very weak and informal sector workers are by and large not able to realize the right of collective bargaining.
Any federation of trade unions, with at least 500,000 members spread over at least four states and in four industries is eligible to be considered as a National Federation or Central Trade Union Organization. But it does not mean that there are only these national level federations. There are some more national level federations but because they do not have required membership and therefore they do not qualify to be put in the list
Minimum wage is fixed by the government and it is different in different regions and sectors of the economy. Presently it is around Rs 100 (USD 2) per day.
Surendra Pratap, Trade Union Repression in India, AMRC Working Paper 2011