Protect the right to strike
Two bills, the Industrial Disputes (Amendment) Bill, 1982 and the Trade Unions (Amendment) Bill, 1982, were introduced in the final stage of the last budget session of the Lok Sabha. Another bill, the Hospitals and Other Institutions (Settlement of Disputes) Bill, was introduced in the Rajya Sabha on May 6, the last day of its session. The Industrial Disputes (Amendment) Bill was introduced in the Lok Sabha in the face of protest from the entire opposition except the DMK and the AIADMK, which are competing with each other for the favour of the Congress (I). In September 1981 the Essential Services Maintenance Bill was rushed through Parliament in the face of nationwide opposition from all workers' organisations except the INTUC, an unprecedented joint demonstration against the bill by more than five lakh workers in front of Parliament, and the strong united opposition of the whole opposition. These four bills, brought with the aim of completely neutralising the activities of workers' organisations that refuse to bow before the government, are the most severe attack on the working class. To understand the government's base intentions, we need to see the real picture of what the bills contain.
Going backwards
Together these bills push the Indian working class back to the England of centuries ago, when the Combination Law was passed. When workers began to organise into trade unions, the British Parliament passed this law making it illegal, turning any attempt by workers to organise into a criminal offence that could even carry the death penalty. The English working class won the right to freedom of association through struggles lasting decades, and many workers went to the gallows in that struggle.
The background of the Trade Unions Act
Industrialised countries such as Britain, France and the United States have no law like the Trade Unions Act and no registration for unions. There, trade unions are only voluntary organisations, and the government does not interfere in their internal affairs in any way.
The need for a Trade Unions Act in India arose from a notorious judgment of the Madras High Court in 1921 in a case filed by the management of the Buckingham and Carnatic Mills. At the end of the First World War the workers of these mills went on a heroic strike, led by the Madras Labour Union. Respected men who took a keen interest in workers' welfare, such as B Shiva Rao, B P Wadia, V Chakkarai Chettiar and V Kalyanasundara Mudaliar, took the initiative to form the Madras Labour Union. The strike was a long one, but in the end the British government of the day crushed it with brutal repression, including repeated firing.
The mill owner filed a suit in the Madras High Court against these leaders claiming damages, arguing that the leaders were responsible for the strike and that the company could have made a profit had there been no strike; the profit it would have made was lost because of the strike. The High Court accepted this argument and ruled that the leaders must pay the mill owner lakhs of rupees in damages.
As a result of this judgment, it became impossible to organise any strike in the country. A great struggle followed all over the country. It was because of this struggle, and the efforts of Com. N M Joshi in the Central Legislative Assembly of the day, that the Indian Trade Unions Act, 1926 was passed. This law nullified the effects of the Madras High Court judgment and gave the working class the right to organise and to strike.
Attempts to impose limits
The first limit on the right to strike was imposed when Shri H P Mody, who represented the Bombay mill owners' constituency in the Central Legislative Assembly, got his amendment to the Payment of Wages Act passed. He moved this amendment in 1934. It provided that if any group of workers, by common understanding, stayed away from a factory for any reason not connected with their conditions of service there, they would lose up to seven days' wages. The British government quickly accepted the amendment and introduced it as an official bill, but it is still known as the 'Mody' amendment.
The amendment was brought to frighten workers away from political strikes that might arise as part of the surging anti-imperialist movement and freedom struggle, and from strikes in sympathy with other workers. It is significant that the Congress party accepted such a law in the Central Legislative Assembly even under British rule. The Congress governments that came to power after independence have imposed one limit after another on workers' right to strike.
The first such law brought by the Congress governments was the 1947 amendment to the Industrial Disputes Act, the Congress government's first gift to the Indian working class after independence. Before this amendment became law, workers could go on strike at any time. The amendment gave the government the power to declare any industry a public utility service. Once an industry is so declared, workers in it who want to strike must give the government and the employers notice of the strike within the six weeks before the date it begins, and cannot strike until 14 days after giving notice. This is in addition to other restrictions; any strike that violates any of these conditions is illegal.
The declared aims are a mere fraud
The experience of the last 35 years shows that the claim, in the declared aims of these bills, that they are brought to protect workers' interests is nothing but a fraud.
A careful look at the Essential Services Maintenance Act and the present bills shows that, as in the past, their declared aims are only a trick to win consent and approval. In reality, the present Indira Congress government is trying, through these bills, to snatch away from the working class what it won from the British rulers through heroic struggles.
What does the Industrial Disputes (Amendment) Bill bring in?
Although the aims of the bill are described mainly as ensuring the speedy settlement of industrial disputes and making some other amendments, its real effect will be to drag out the settlement of disputes even longer than now. The bill adds a new Chapter II B to the Industrial Disputes Act. Under its sections, employers in industries employing 100 or more workers must appoint a Grievance Settlement Authority, which will examine disputes concerning individual workers. The government will not intervene in such disputes unless they have gone through this examination.
When such authorities are appointed by the management and so become its employees, one can easily guess what kind of justice can be had from them.
What the government wants is absolute power
Only after such examination by the Grievance Settlement Authority will the government decide whether or not to intervene in disputes of this kind.
Under the existing provisions of the Industrial Disputes Act, once the government has referred a dispute for conciliation or later for adjudication, strikes are illegal for as long as those proceedings are not complete. These proceedings can now drag on for months. The bill sets no time limit for concluding them. It does say that when a dispute is referred to a tribunal or labour court, a time limit for completing the proceedings will be specified. But under the exceptions to this section, if the parties apply jointly or separately, the tribunal or labour court may, after recording its reasons, extend the time limit for as long as it thinks fit. We know that managements will use these exceptions in the way most inconvenient to workers, and that the whole process may drag on indefinitely. For as long as these endless proceedings continue, workers cannot strike. Their hands and feet will be tied.
A new section included in the bill says that if the government with authority over an industrial establishment, or a similar institution, is satisfied that it has provisions for a detailed inquiry into the industrial disputes of the workers employed in it, the government concerned may exempt that establishment from the provisions of the Act by a notification in the gazette.
Far-reaching consequences
This section will have far-reaching consequences. Its plain meaning is that if any state government or the central government feels that the service conditions it has framed for the factories or other institutions under its control provide a satisfactory means of settling disputes, it can unilaterally exempt those institutions from some sections of the Act or from the Act itself. The government can decide to keep in force a provision banning strikes or a tribunal award. In other words, the government can make the decision of a person appointed by the management the final arbitration in any dispute in such institutions, and can make any strike illegal. It is a roundabout way of making strikes illegal in all public sector undertakings.
Unfair labour practices
In the same way, the new law adds a chapter, Chapter V (C), on unfair labour practices. These practices are described in a schedule. To make it appear that workers and employers are treated alike, the unfair practices of each are defined separately.
The employers will escape
Take, for example, the unfair practices on the part of employers. Some of them are as follows.
1. Threatening a worker with dismissal if he joins a union. Will any employer do this directly? How, then, will it be done? By bringing in a hired goon and putting on pressure through him. Even if it can be proved that someone made such a threat, it cannot be proved before a court that the employer made it.
2. Look at the second item in the schedule: (a) an employer taking an active interest in forming a trade union of his workers; (b) an employer favouring one of several unions.
3. An employer taking the initiative to organise a trade union. Will any employer do something like this openly? He will find someone suitable, hand him the job, and claim he had no part in forming the union.
4. Encouraging or discouraging membership of any trade union by discriminating against a worker. Can such discrimination be proved in any court? If a promotion or other benefit is given in a discriminatory way, the employer will argue that it was given after a strict assessment of merit and that nothing else lay behind it.
5. Dismissing a worker (a) as a disciplinary measure; (b) by abusing the employer's powers and not in good faith; (c) after falsely implicating him in a criminal case on the basis of false witnesses or fabricated evidence.
Employers are not fools enough to fabricate evidence themselves and implicate a worker in a false case.
As a measure to break a strike
Stopping work of a permanent nature done by workers and giving it to contractors (emphasis added).
Any employer who ends permanent work will do it step by step. When he sees discontent among the permanent workers, he will hand the work to a contractor before a strike breaks out. The question of whether it is a measure to break a strike will not even arise.
The rest are of the same kind. Not a single unfair practice in the schedule can be proved in any court.
Moreover, a trade union has no right to go to court against an employer's unfair practice; it is the government that must take action. All this is mere show, to throw dust in people's eyes.
The workers will be punished
But the unfair practices on the part of workers and trade unions are of another kind. The very first item is the strike: instigating or supporting any strike declared illegal under the new Act. It is now widely known that a strike in any industry can in effect be made illegal under the Essential Services Maintenance Act. So whatever a union organising a strike in any such industry does will automatically become an unfair practice.
In many cases even the Supreme Court has ruled that strikes declared illegal were fully justified, and has directed that workers be paid full wages for such strikes. But now just strikes can be banned with serious consequences.
Take the second item
Picketing by any trade union or its activists in a way that physically prevents non-striking workers from entering the workplace. By influencing the police, through management officials, and even through workers who have been bribed, employers can produce any number of statements that they stayed away from the factory because they were physically stopped by force.
Item 5
Instigating, pressuring or taking part in a deliberate go-slow, staying on at the workplace after working hours, or gheraoing management officials or their staff.
Item 6
Holding demonstrations at the residence of the employer or management officials.
No explanation is needed. These are only some examples; the other items are of the same kind. For these offences, not only will trade unions be punished and their registration cancelled, but under this bill union leaders, that is the office-bearers and committee members, will be removed from their posts and jailed for six months. A person convicted of an offence under this law can never in his life be an office-bearer of any union anywhere in the country. In short, the bill is meant to behead militant trade unions. The one good point in the whole bill is the provision that if an employer appeals to the High Court or the Supreme Court against a worker whom a tribunal has ordered to be reinstated and obtains a stay of the award, the employer must pay the worker full wages until the appeal is decided. But what use is this section once all militant trade unions have been made illegal and militant leaders have been prevented from leading them? The government is fully aware that this section will be of no use to workers. On the contrary, it can be used by unions that serve the employers to get rid of militant workers. Such unions cannot be expected to take up these disciplinary cases.
What does the Trade Unions (Amendment) Bill really offer?
The Trade Unions (Amendment) Bill declares its main aim to be discouraging the multiplicity of unions. It was the Congress that split the trade union movement, until then united, with the blessings of Sardar Vallabhbhai Patel, and organised a central trade union, the INTUC. And it is the Congress that has gone on splitting unions all these years by misusing state power to promote the INTUC. If this one fact is not forgotten, the meaning for the working class today becomes clear. The fact is that over the last few years trade unions have been coming closer through joint struggles, and if this process continues the working class will become more and more united. The basis of this unity is the joint struggle against the government's anti-worker policies. It is this unity that the government fears, and this attack in the name of the multiplicity of unions is meant to break it.
Recognition of unions only through verification
Trade unions will be recognised through membership verification by the Labour Commissioner or another officer appointed by the government. Experience has shown that the officers who conduct verification only dance to the government's tune. Moreover, many unions are able to inflate their membership with the help of the management. It is on this basis that INTUC unions have won recognition for many years.
Wherever a system of representation through a secret ballot of all the workers in an establishment has been introduced, even when government officials themselves conducted it, the claims of INTUC unions and the recognition based on them have been proved a fraud. The results of secret ballots show that some union other than the INTUC has greater representation among the workers.
Afraid of the secret ballot!
It is in this context that all the central trade union organisations except the INTUC have for years demanded that the representative character of a union be decided by secret ballot. The INTUC, however, fears the secret ballot.
During Janata rule, when the Congress (I) had lost power in most states, INTUC leaders went about saying publicly that they would not oppose the introduction of the secret ballot. But now that the Congress (I) is back in power, they have changed their tune and gone back to their old position of opposing it.
Many enlightened employers have realised that there is no point in signing agreements with unions that do not really represent the workers but have been certified by the government as representative. Recently Shri Naval Tata, who represents a section of big business, publicly came out strongly in support of the secret ballot. Experience has also shown that unions without real representation among workers cannot ensure industrial peace. The Andhra Pradesh state government has followed the secret ballot system for the last five years. During Janata rule the secret ballot was adopted in public sector undertakings such as Bharat Heavy Electricals and Hindustan Photo Films, with good results.
End this fraud
The greatest example of the fraud of recognising unions through verification is the strike of Bombay's textile mill workers, which has been going on for nearly five months. The leaders of the recognised INTUC unions there have not yet dared to hold even a single meeting. Rejecting their advice, the workers have rejected the INTUC leaders. In such a situation, any self-respecting trade unionist with even a trace of democratic values left would have accepted the workers' verdict and declared publicly that he does not represent them. But self-respect and democratic values have long been unknown to the INTUC leaders.
The most vicious aspect of this bill is that it invents a new thing called a trade union dispute, as an alternative to an industrial dispute. A trade union dispute is defined as a dispute within a trade union or between trade unions. If the Registrar of Trade Unions fears that such a dispute may arise, he is empowered to intervene and give a decision, which is final except for an appeal to the government. It is easy to guess why this new trade union dispute has been invented. Even with all the provisions against the militant workers' movement, there are sometimes situations where such organisations cannot be denied recognition as representative organisations. In such cases the government and the employer can get a few workers to raise a trade union dispute, which allows the Registrar to step in, hold an arbitration and give an award. Through such awards it can be declared that the elected office-bearers of a trade union were not really elected, and that some others who serve the employer were.
The workers are not so naive…