TRADE UNION

FAQs
Submitted by:
Nidhi Girdhar
Anisha Gupta
Shruti Gupta
Karuna Miglani
Can Workers Union hold meetings in the factory
premises e.g. canteen/factory lawn etc.? Do they have
a right to do so?

Andhra Pradesh in the case of management of Singareni Collieries Company Ltd. 2012
LLR 1162 has held that trade union activities are not justified while on duty. The
Supreme Court has also held that unless the permission is granted, the union meetings
cannot be held at the premises of the employer since there is no fundamental right for
anyone to hold meetings in employer's premises. The fact that those who work in a
office can go there but it does not confer on them the right of holding a meeting at the
premises even if it be the most convenient place to do so.
The fact that the citizens of this country have freedom of speech, freedom to assemble
peacefully and freedom to form associations or unions which does not mean that such
rights are unlimited. The exercise of those freedoms will come to an end as soon as the
right of some one else to hold his property intervenes.

We have no registered trade union but workers after deciding their
representatives collectively, submitted the charter of demands to the
management and labour department. Now these representatives have asked
management to recognize them as protected workmen under ID Act. Are we
bound to recognize them as such? What is the law on the point?
First of all, there is no definition of protected workman provided in the Industrial Disputes Act.
Reference of protected workman comes only in sec.33 of the ID Act. Sub sec. 3 of sec. 33 provides
certain protections to such persons in a situation when industrial dispute is pending. Explanation
to this sub sec. clearly provides that in order to be a protected workman in relation to an
establishment, a workman should be an office bearer of a registered trade union connected with
the establishment and should have been recognized as such under the rules of ID Act.
Rule 61 also clearly says that every registered trade union in connection with the establishment
shall communicate to the employer the names of such workmen whom union wants them to
recognize as such. The recognition is for only one year. Central rules provide that application has to
be given before 30th April . The date of submission may differ from state to state. The employer is
under legal obligation to recognize protected workmen.
In your case since you have no such registered trade union, representatives of workers can not be
declared/recognized as protected workmen.

I want to know whether the laid off workmen can form and get the union
registered? We have recently laid off few workmen due to short of
business orders since production has been reduced to only 25% .To
pressurize the management such workers have submitted the application
for registration of union. What is the correct legal position?
Laid off workmen cannot form and the get the union registered. Registration of a
union u/s 4 of the Trade Unions Act by lay off workmen is not valid. Allahabad H.C.in
the case of Lohia machines (LML) karamchari Sangh & Ors. Vs. Registrar Trade
Unions 2009 II LLJ 29 has held that since nearly all the members of the union are
laid off employees, therefore such registration under the Act dehors the statute.
The basic issue involved in the case was whether the lay off workmen are covered
under the definition of workmen who are actually engaged or employed in the
factory during the period of lay off and are covered under Sec. 4 of the Act. When
an employee is laid off, he becomes unemployed and the bond of master and
servant is snapped though temporarily and the new added proviso to the section
comes in to operation and thus, the registration could not be said to be in
accordance with the requirements of the Act.

We have a union in our establishment. They have changed their office
bearers and have submitted a list of protected workmen. I want to know
whether by merely submitting their list, such workmen will be deemed
as protected workmen. How long workmen can remain protected?

Mere submission of a list of protected workmen by Trade Union is not enough and
a conscious act is specifically contemplated under the I.D. Act. It has to be followed
by the communication to be given by the employer in writing. Such workmen can't
remain protected workmen forever. The tenure is only for twelve months from the
date of communication of the list of recognized workmen by the employer.
Becoming a protected workman is not an automatic process. Employer is under
obligation to communicate to the Trade Union within 15 days of the receipt of
names to be recognized as protected workman. Rule 61 of Industrial Disputes
Rules (Central) has provided the procedure. Maximum number of workers to be
recognized as protected workmen will only be five. Recently Kerala High Court in
the case of Balakrishanan vs. Labour Court 2011 (131) FLR 990 has also held in the
same direction.

The charter of demands submitted by union is pending for adjudication
in the court from last five years. In these five years management has
raised salary and given other benefits to workers through different
settlements between union and the management. Union has accepted
the benefits but under the protest. More or less all demands which were
raised by the union at that time have been met. In this circumstance, I
want to know what would be the legality and fate of that demand
charter ?
As the facts you have described, in all probabilities court is not going to grant any
relief to workers union on the charter of demand which is pending particularly
when workers have accepted the benefits of different settlement during the
period and their salary has also been raised repeatedly. Bombay High Court in the
case of Tata Consulting Engineers Associates Staff Union vs. Tata Sons Ltd. and
another 2002 LLR 45 has held that where is the settlemens reached between
management and union provided salary increase and other benefits which were
accepted by the workers which were better than the other comparable concerns,
there is no point in declaring the demands in the charter as justified. In this case
the court rejected the demand charter and accepted the settlements.
In our industry recently workers have formed a union . They have also
included the apprentices as members of their union. Our industry is
situated in Orissa. Can apprentices become member of the union? I seek
your expert advice on the point?

Though apprentice under the Apprentices Act has been declared that he will not
be worker as per sect. 18 of the Act and provisions of any labour law do not
apply to him unless they are specifically made applicable to him. Courts repeatedly
have held that apprentices and trainees are not workmen within the meaning of
Sec. 2 (s) of I.D. Act. But in your state you have Verification of membership and
recognition of trade union rules. Rule 3 (c) of said rules defines employee to
mean workman as defined under the I.D. Act. Recently Orissa high court in the
case of Larsen & Toubro Ltd. v state of Orissa 2011 (3) LLN 748 has held that I.D.
Act being a special Act would prevail over the Apprentices act which is general law,
so an apprentice is a workmen for the purpose of membership and recognition of
trade union.

We have two unions in our establishment. To recognize the
majority union there would be voting through secret ballot.
My question is, are contractor workers eligible to cast their
vote in such secret ballot procedure?

No! Andhra Pradesh high court in the case of S.Satish Babu vs. Mishra Dhatu
Nigam 2011 (I )LLJ 57 has held that contract workers cannot claim parity with
regular workers for participation in secret ballot for recognition of the majority
union.

We have a worker's union. One workman has been dismissed. Union and
management are reaching to an agreement that dismissed workman will
not raise his dispute before the court and issue will be deemed as settled.
But workman is not ready to settle the dispute. The workman was
member of the union. Can we execute such settlement with the union
and will it be binding on that workman.
No! Your such settlement with the union about the dismissed workman will have
no legality. A trade union cant enter into a settlement with the management in
respect of the matter of discharge / dismissal or retrenchment of the workman of
their own without the consent of the concerned worker.
You are advised to first obtain the consent of such worker and then enter into a
settlement either with the worker himself under sec. 18(2) of ID Act or with the
Trade Union. If there is no consent of the dismissed worker, such settlement with
the union will not be binding on the workman even if he was member of the union.
It has so been held by the Allahabad HC in the case of Hari Fertilizer 1992 LLR 418:
1992 (64) FLR 889. HP HC in the case of Ravi Dutt 2008 LLR 853 has also held that if
a settlement deprives the workmen of their certain rights, it will be against of the
policy.




No, management has no place in any form in Trade unions Act. Neither he can be a
party at the time of registration nor at the time of cancellation in case of union
formed by workers. Sec. 10 deals with conditions under which union registration
can be cancelled. There is no ground of indulging in violence by office bearers for
cancellation of union registration. What is included within the purview of Sec. 10 is
the only act of mistake or fraud committed by trade union applying for registration
that would be the reason or ground for cancellation of registration.
Act allows disqualification of office bearers of trade union under sec. 21-A only
when he is convicted by any court of law of any offence involving moral turpitude
and sentenced to imprisonment, unless a period of five years has elapsed since his
release.


Can management apply to Trade Union Registrar for cancellation of the union
registration on the ground that union office bearers have indulged in violence
and assaulted the company officials?
When the registrar cancels a trade unions registration, it has the power to apply for
fresh registration. If the appeal succeeds, the trade union would continue on the
register as if the appeal of cancellation has not been passed. Once the registrar
cancels the registration of a trade union he has no power to review it and to withdraw
it.
Reference: Mukund iron and steel works ltd. V VG Deshpande, Registrar of trade
unions Bombay.


Does the registrar has the power to withdraw the cancellation of a trade
union?


Union office bearers are not above the rules and regulations of the establishment.
First they are workers and then union office bearers. They have to work on
machines, come in shifts and follow all instructions of their officers. Rather the
union office bearers are expected to behave in more responsible way than
ordinary workers. They are fully subject to the discipline of the organization. They
cannot be allowed to act in an indisciplined way.
S.C. In the case of Laxmi Devi Sugar Mills 1956 (11)LLJ 439 and Allhabad H.C. in the
case of Artificial Limbs Manufacturing Corp. case 1997 (77) FLR 586 have
condemned the misbehavior of union office bearers


Union office bearers have written to management that neither they will come in
shifts , nor work on machines as they are now supposed to take care of workers
problems and for that they need time. Accordingly, they will only sit in union
office. Workers have formed the union recently. How should management
handle this situation?


Settlement which is already in force will be binding on all workmen who have signed
this settlement because this is bipartite. Such workmen cannot simply challenge the
settlement and raise further new demands on the plea that they have now formed
the union. Such workers are debarred from raising any new / settled demand again
during the period of the operation of the settlement. Workers can't raise any
demand directly or indirectly.
Supreme Court in the case of National Textile corporation (APKKM) 2001
LLR115=2001(88) FLR 936 has also held that the object of the settlement is to ensure
that once it is made the industrial peace is allowed to prevail. During the
continuance of the settlement the parties cannot raise an industrial dispute on the
same issue.


A company has a bipartite settlement in operation which is signed by all workers.
It is also written that during the period of settlement workers will not raise any
further demands. But during this period workers formed the union and now they
have raised new demands on the plea that earlier bipartite settlement will not be
effective as at that time there was no union. What is the legal status of these new
demands by the union?