IR Rules 2021: Legalising Unfair Labour Practices
Central Government has published draft Industrial Relations (Central) Recognition of Negotiating Union or Negotiating Council and Adjudication of Disputes of Trade Unions Rules 2021 on 04/05/2021, seeking comments within 30 days. At the very outset, it well exemplifies the callous attitude of the Government in issuing these Rules at a time when the country is worst hit by the second wave of the COVID Pandemic, with more than 3 lakh deaths across the country.
Further, responses to the Rules are being called for at a time when States across the country have imposed total and partial lockdown. Governments across the country have prohibited all non-essential work. How can consultation be held at a time when people are required to stay at home and cannot even come out of their homes, hold meetings, or consult workers? Unions don’t even have access to their offices, and it is at this juncture that the Government is attempting to push though these Rules.
The publication of draft Rules that further weaken the position of the working class at this time in the name of promoting ‘ease of doing business’ is highly illustrative of the design of the government that reduces those individuals in the working class to mere labour, with no rights, amounting to slavery. This is nothing but making this exercise of consultative process a farce. This is also a time when major trade unions are occupied trying to fill the gaps left by government failures, and protect their members from calamity.
The entire Code heavily reduces the protections available to the working class, through targeted attacks on trade unions, attacks on freedom to organise and strike, creation of a category of ‘Fixed Term Employment’, that is devoid of any trade union rights, etc.
The Industrial Relations Code, 2020 mandates prior publication of Draft Rules in order to ensure that the necessary sections of society are provided an opportunity to participate in its framing i.e., the consultative process. But the central government is making it a mockery and a mere formality, violating the Section 23 of the General Clauses Act, 1897. It is clear that prior publication is not intended to be a publication in name only, but plays a valuable role.
The fact that the publication is made only in English and not in vernacular languages, effectively disables most workers from any meaningful consultation. This is completely illegal and an attempt to push through anti-worker legislation behind their backs, without even ensuring the mandatory publication in vernacular languages. Workers need additional time for a period after the lifting of the lockdown and once the COVID crisis is under control.
There has been no real opportunity to concerned workers and unions to consider the impact of the Rules. Under such circumstances without prejudice to this, some preliminary comments are below for your consideration.
Promoting Unfair Labour Practices
The Rules themselves effectively legalise the unfair labour practices of the management and the management sponsored unions, in an assault on the right to organise and collectively bargain.
Rule 3, fails to mention important matters including the employment or non-employment of any person, permanency of workmen, overtime work and other such necessary matters. The matters that may be discussed must extend to all matters that fall within the definition of ‘industrial dispute’ or are connected with an ‘industrial dispute’. As it stands, the manner in which this Rule has been framed leaves it open to employers to unilaterally decide on these excluded topics. Another issue is that ‘hours of work’ has been included as a matter to be discussed, which appears to be a design to circumvent the mandated 8 hours of work.
The 30% minimum membership for recognition as sole registered union in Rule 4 is utterly irrational. In fact, the Code of Discipline of 1957 agreed upon by representatives of the workers, employers and government had set 15% as the point for recognising a union. The present act also allows a union with 20% to be represented on the negotiating council. If there is only one union with 15% membership in the establishment, then such a union must be recognised as the negotiating union by the employer.
Rules 5 and 6 are hugely problematic and allows for complete interference of the employer in union activities. The various issues with it are as follows:
• The Rules effectively place the control of verification in the hands of the Management. The Rules formalise unions that are management-sponsored. Giving powers to the Management from the appointment of verification officer to the preparation of the voters list to the manner of verification is absolutely in favour of employers and against the principle that the management must not interfere in any manner with the functioning of any trade union. These Rules provide for a complete interference of the management in union activities and organizing. The employer taking an active interest in organising a union in itself is an unfair labour practice, that is being formalized by the Rules.
• The employer certainly cannot have the right to decide the eligibility of a union and to check its membership register. The Trade unions act and the corresponding new law both allow only the members of a union to check the membership register.
• Moreover, the Rules provide for the employer to finalise the voter list with approval of verification officer, who is proposed to be appointed by the employer. There is no mechanism / opportunity for workers to raise grievances regarding voters list, and leaves it entirely in the hands of the employer.
• The section 5(3)(ii) confines eligibility for recognition of a union only to those which are confined only to that particular establishment. This may be used to render those unions who have large membership in the establishment ineligible for representation. Recognition only to those unions ‘confined to the establishment’ is a ploy to restrict central trade unions from entering the company or representing workers in the establishment and against the solidarity of workers. This is a clear attempt to bring about fragmentation of unions and is in violation of the fundamental right of the union to organize under Article 19(1)(c) of the Constitution.
• The rule provides that all workers “whose names are borne upon the muster rolls” will have the right to vote in the secret ballot. This definition of apparently excludes contract workers, casual workers, temporaries, fixed term employees, etc. The Rule is attempting to formalize the exclusion of a vast section of workers of non-formal category and is further weakening unionisation of and the right to recognition for the unorganized workers. It also heavily enables and encourages the managements and employers to further intensify inhuman exploitation of its workforce. As such, even those whose names are not on the muster roll but who come within the definition of a worker must be given the right to vote.
• Rule 6 allows for list of workers to be sent either by registered post or electronically. This is especially serious when no option has been given to the worker to prefer a physical mode, and it is mandatory to conduct such procedures electronically only. Please note that the majority of the working class does not have access to technology – most don’t have a smart phone and don’t have access to the internet. Therefore, these rules are, in effect, only for the convenience of the management and at the cost of the workmen. It is demanded that a hard copy of the same must also be sent and rules regarding receipt of post must be maintained.
Rule 9 The provision of facilities under this rule is highly inadequate. It is unfair that the members of the negotiating council or negotiating union are to be given waiver from attending duties only when they are to attend a scheduled meeting. All members of the negotiating union or negotiating council, duly authorised, must be given exemption from attending duty for any work connected with an industrial dispute, including but not restricted to attending court, attending the lawyers office, preparing documents, discussing with the workers, etc. besides holding talks with the management. Further, certain facilities are provided only when there are more than 300 workers, which is also improper. It is necessary that proper facilities are made available to all workers employed in all companies of all sizes. For instance, the Maharashtra Recognition Of Trade Unions And Prevention Of Unfair Labour Practices Act, 1971 provides for facilities to be made to hold discussions on the premises of the undertaking with the employees concerned, to meet and discuss, with an employer or any person appointed by him, also to inspect an undertaking any place where any employee of the undertaking is employed.
AICCTU seeks for a total overhaul and revamp of the rules in light of the fact that labour legislation is intended to be welfare legislation that protects the rights of the working class, not defeat their rights.
We seek that our comments are implemented in the spirit of a welfare oriented State. We make it clear that the present Code and rules, if implemented are not only violative of the fundamental rights of workers, but also the Directive Principle of State Policy enshrined in Article 38(2) of the Constitution that mandates the State to strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations. In fact, the Rules will legalise the reduction of workers to mere labour and subjects in a Corporate- Raj, which is contrary to the Socialist state envisioned by our Constitution.