STRIKES HELD BY TRADE UNIONS AND THE NECESSARY REQUIREMENTS OF THE LAW
Author: Sudhanva Siddhant Holla,
3rd Year, BBA LLB,
CHRIST (Deemed to be University), Bangalore.
Abstract:
The term ‘strike’ basically moves to define the practice that employees and workers take to demand their rights from their employers. In practice, these demands are taken up through the unions of each organization/Industry. And the militant functions of a union refer to the struggle they make against their employers for higher wages or for getting their grievances redressed. The use of strike is the weapon that the unions hold, however as a weapon of last resort. In most cases, the employers turn to be unreasonable in their dutybound response to their workers, and exercise a very uncompromising attitude, which results in the inevitable strike. The ultimate use of a strike further comes into complications by way of permission that is subsequent to other tripartite consultations, if any. In most cases, these issues lie in the lack of growth in the efficiency levels of the industry that is further coupled by the growing competition in the market, basically where the employer demands more but provides lesser to the employees. This invariably results in the backlash of the employees/workmen of the industry. The use of militant unionism follows the principle of opposing the employer in order to increase their wages and provide the workers with better working conditions inevitable increasing their standard of living. The disharmony caused in the functioning of the business and the Employee-Employer relation are the consequential end to these conflicts. This paper shall focus on bridging the information gap related to the concept of militant unionism in India. This paper shall further follow a doctrinal method of research.
Key Words:
Militant Unionism, Strike, Complication, Wages, Employer-Employee relations.
INTRODUCTION
Employees working in the primary sector of employment largely are citizens who belong to the lower class and the lower-middle class of the society. They are able to meet with survival based on the amount of wage or salary and the working conditions and facilities that they receive in their employment and thus are in grave danger when there are any discrepancies that occur in the same. Further, due to their societal classification, in most circumstances, an individual workman hesitates to disobey the employer if there is an occurrence of a particular grievance, which is beaten down and silenced. This is where the trade unions enter; as a conglomerate of workmen, there is a sense of unity and togetherness amongst themselves and thus, in any grievance, they are able to voice themselves in the appropriate forum. The trade unions use an ultimate weapon known as strike if the employer absolutely denies to meet the demands of the employees/workmen.
Strikes are currently a widely used mechanism for the employees/workmen of any industry to claim or demand their rights from their employers. A strike basically means the stoppage of work in any establishment. It acts as the final weapon held by the employees against the employer and is well supported by the labour laws in India, by way of the Industrial Disputes Act, 1947 although with a catch that the strike should be held in accordance with the provisions of the Act.
However, the strike is further held to be illegal if it does not fulfill the procedures of the said Act. Further, according to the Constitution of India, the employees do not hold a fundamental right to hold a strike in obtaining their rights from the employers.
In many cases, the strike is led by an established Union that should be registered under the Trade Unions Act, 1926 otherwise; the strike shall yet again be held to be invalid. This paper shall explain the necessities that are required by the Employee unions while carrying out a strike against the employer along with their limitations.
TRADE UNIONS AND STRIKES
The formation of Unions in the country has f
ollowed from the British era wherein large amount of trade and commerce was practiced between the two countries. However, the movement of statutorily codifying the formation of Unions began after the inception of the International labour Organization (ILO) in 1919[1], that is an agency of the United Nations. The ILO mainly focused on standardizing the rights held by the employees/workmen employed in Industries. Under the said standard, the ILO provides that every state that has ratified it shall provide the employees of the state with all freedom to form an association or Union.[2] The formation of such unions and associations in the industry allows the employees to voice their opinions jointly. This means that the employees shall be able to demand their rights as a whole being represented as one unit by way of a union rather than individual persons begging for their rights.
ollowed from the British era wherein large amount of trade and commerce was practiced between the two countries. However, the movement of statutorily codifying the formation of Unions began after the inception of the International labour Organization (ILO) in 1919[1], that is an agency of the United Nations. The ILO mainly focused on standardizing the rights held by the employees/workmen employed in Industries. Under the said standard, the ILO provides that every state that has ratified it shall provide the employees of the state with all freedom to form an association or Union.[2] The formation of such unions and associations in the industry allows the employees to voice their opinions jointly. This means that the employees shall be able to demand their rights as a whole being represented as one unit by way of a union rather than individual persons begging for their rights.
The unions act as a representative of the employees of the industry, wherein there is always a prior meeting that would be held by the members of the Union towards their demand that would further be posed to the employer. The ILO is an international convention that provides for the formation of such Unions. The Constitution of India, 1950 also provides for the same under Article 19(1) (c), wherein every citizen of the country has the right to form associations or Unions [or co-operative societies].[3] This is further enumerated by way of the trade Unions Act, 1926 wherein every employee of an industry can register a Union under the Act subject to the provisions of Section 4 of the Act. [4] Wherein it states that there should be a minimum of seven members during the application for registration of a trade union under the act. The act further does not hold a limitation on the maximum number of employees that could be part of a trade union.
It is of notice that for the Union to hold any significance in the industry, then it should be a registered trade union. An unregistered trade union holds no value in the eyes of the law and thus any action taken by an unregistered trade union shall be invalid and void ab initio.
Registered trade unions in most circumstances carry out strikes against the employer in the industry. These strikes can be held for the demand of various rights like wages, salaries, holidays, working hours in the industry, etc. However, as strikes are not a direct right provided under the law in the country, a right of strike is derived from the right given to the employees to form Unions. It was laid down in, All India Bank Employees’ Association v. National Industrial Tribunal wherein the Apex court stated that,” the right to strike or right to declare lock out may be controlled or restricted by appropriate industrial legislation and the validity of such legislation would have to be tested not with reference to the criteria laid down in clause (4) of Article 19 but by totally different considerations.”[5]
LEGAL PROVISIONS FOR A LEGAL STRIKE
Any legal strike that is carried out by the trade unions must follow the provisions that have been laid down in the law, mainly under the Industrial Disputes Act, 1947. Under the act, the main requirements that have to be fulfilled are under sections 2(q), 22(1), 23 and 24. These provisions of the act mainly describes regarding the necessities of a legal strike and the consequence in the failure to do so;
Ø The action of strike is defined under Section 2(q) of the Act and states that a “strike means any cessation of work by a body of persons employed in any industry acting in combination, or a concerted refusal, or a refusal, under a common understanding, or any number of persons who are or have been so employed to continue work or to accept employment.”[6]
Ø Section 22(1) of the Act states that an employee employed in any public utility service will not be able to go on a strike, without the following requirements:
1. Without giving to the employer a notice of strike, within six weeks of striking; or
2. Within 14 days of giving such notice; or
3. Before the expiry of the date specified in the said notice; or
4. During the pendency of any conciliation proceedings before the conciliation office and seven days after such conciliation proceedings.[7]
ØSection 23 of the act provides for the general prohibitions relating to strikes. It basically states regarding the prohibition of any workmen or trade union to go on a strike in case there is a pendency of any conciliation proceedings or any pendency in the Labour court.[8] This bars the employees to indulge in a strike against the employer of the industry during the pendency of the dispute in the specified forum. Further, there is also a prohibition on the time limit to go on strike subsequent to the conclusion of such proceedings, mainly, 2 months after the conclusion of the proceedings in the Labour Court or Tribunal.[9]
ØSection 24 states about the qualification of an Illegal strike. The provision states that if the provisions mentioned under section 22 and 23 are not complied with then automatically, the strike shall be deemed to be illegal.[10]
These provisions are placed in the act to provide the workmen with a proper procedure while conducting a strike against the employer. It does not absolutely prohibit the workmen from carrying out a strike but states regarding the necessities that the workmen should follow before the workmen go on a strike that should be deemed legal.
CASES REGARDING STRIKES IN INDIA
ØIt was held in Mineral Miner Union V Kudremukh Iron Ore Company Ltd[11], that the fulfillment of Section 22 of the Industrial Disputes Act, 1947 is mandatory in nature. The court stated that the notice that is served to the Employer regarding the strike should specify the date on which the strike shall be held. And in the circumstance wherein the date is lapsed, then the Union is bound to serve the Employer with a fresh notice of the strike that shall take place. The non-compliance of the same shall inevitable result in the strike being deemed as invalid.
The Union in no circumstance is allowed to supersede the law in carrying out any strike against the employer. The Union has the complete liberty to strike against the employer in case of any grievance that is faced by the employees/workmen; however, such strike should follow the requirements mentioned in the law. That is the only requirement.
ØIt was held in the case of All India Bank Employees’ Association v. National Industrial Tribunal[12]wherein the court looked into the interpretation of Article 19(1)(c) of the Constitution of India, wherein the court stated that the law allows the formation of Unions and associations as a fundamental right. However, this does not mean that the Union is given an implied Fundamental right to strike against the employer. The law does not confer a Fundamental right on the employees to strike. Any strike so carried out should follow the provisions, grounds and conditions laid down under the Industrial Disputes Act, 1947 otherwise the strike shall be invalid.
ØIn case the strike that is made by the employee union is invalid or illegal, then the employee would inevitably be subjected to a sanction that would be imposed by the employer. However, the Industrial Disputes act, 1947 does not clearly indicate the quantum of sanction that would be so imposed. In the case of M/S Burn and Company V. their Workmen[13], the Supreme Court held that the dismissal of the workmen for their mere participation in the strike if illegal in nature is not justified. The court stated that there should be proper judgment that should be made before deciding the quantum of punishment to the employees. It should be analyzed if the illegal strike carried out was a violent strike or a peaceful strike and accordingly, the employer is allowed to take action.
In the situation of a trade Union indulging in an illegal strike, the same procedure should be followed wherein the facts of the case must be analyzed properly before making judgment regarding the penalty that would be imposed on the employee trade union.
CONCLUSION
In ultimatum, the trade unions present in the country is free for the purpose of formation and the law under Article 19(1) (c) confers the people the fundamental right to do so as well. However the Union is bound by the law while carrying out any action against the employer in furtherance of their grievance. The concept of militant Unionism is followed by the act of the employee union revolting against the employer in demand of their rights. And any such demand is free to be made only if they comply with the provisions of the Industrial Disputes Act, 1947. There is no complication that is present from the framing of the law as the non-existence of the fundamental right to strike is a matter of procedure that must be followed before a strike is called. The law does not prohibit strikes from Unions but merely gives them a path that must be followed for the strike to be held as valid. This keeps the system in check while the citizens of this country are not deprived of their rights, including employers and employees.
[1] Industrial Labour Organization, History of ILO, https://www.ilo.org/global/about-the-ilo/history/lang–en/index.htm.
[2] Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), ILO 1919.
[3] Article 19(1) (c), Constitution of India, 1950, (Ninety Seventh Amendment) Act, 2011.
[4] Section 4, Trade Unions Act, 1926.
[5]All India Bank Employees’ Association v. National Industrial Tribunal, 1962 AIR 171.
[6] Section 2(q), Industrial Disputes Act, 1947.
[7] Section 22, Industrial Disputes Act, 1947.
[8] Section 23, Industrial Disputes Act, 1947.
[9] Section 23(b), Industrial Disputes Act, 1947.
[10]Section 24, Industrial Disputes Act, 1947.
[11] Mineral Miner’s Union V Kudremukh Iron Ore Company Ltd, 1989 (58) FLR 915
[12] All India Bank Employees’ Assoc
iation v. National Industrial Tribunal, 1962 AIR 171.
iation v. National Industrial Tribunal, 1962 AIR 171.
[13] M/S Burn and Company V. their Workmen, 1960 AIR 896.
