How to register a union under the Trade Union Act 1926

A Thozhilalar Koodam Manual

This is a manual meant to serve as a guide to anyone who wishes to understand how to register a trade union. While it may not have all the answers, it will help you understand the processes involved as well as the challenges you may face.

for tamil click here 

Contents

What is a union?
Advantages of registering a union
What are protected workmen?
What are the types of unions you can form?
Who is the primary authority to register?
How do I register my union?
Is there Minimum number of workers to register a union?
What hurdles to Union Registration?
Can I be dismissed for Joining Union?
What if registration application is cancelled?
Who can be part of Union?
What are Bye Laws?
If there is a Union already?
How to assess a Union?
Registration vs Recognition
How to get Union Recognized?
Informal Sector or Sectoral Unions
Unions in SEZs

  1. What is a union?

A trade union is an organisation of workers who come together to fight for better working conditions.

In India, the right to form a trade union is guaranteed under the Constitution and the functioning of trade unions are regulated by the Trade Union Act of 1926, which defines a union to be:

Any combination, whether temporary or permanent, formed primarily for the purpose of regulating the relations between workmen and employers or between workmen and workmen, or between employers and employers.

A trade union can therefore be formed if workers of a particular industry, factory or locality decide to come together in order to fight for their rights at the workplace. back to top

  1. Do I have to register?  What are the advantages of registering a union?
    1. There is no law requiring registration of your union, however if you do register your union under the Trade Union Act, you are recognized by the government and are considered a legal entity. (Section 13 of the Trade Union Act)
    2. A registered trade union can sign bilateral (between management and union) or tripartite (between management, union and labour department) collective bargaining agreements.
    3. The registered union can also take legal recourse through the judiciary.
    4. Further, several tripartite committees which make important decisions like minimum wages have only registered unions as members, although they are not legally required to do so.
    5. In Tamil Nadu, members of unorganized sector registered unions (such as domestic workers and construction workers) can be certified as workers by their union and enrolled in the Labour Welfare Board, from which they can avail certain social security benefits.
    6. A registered trade union can also designate some of the members as protected workmen. The management will not be able to dismiss these workers without prior permission from the Labour Department.back to top
  2. What are protected workmen?  

Protected workmen are office bearers or executive committee members against whom no action can be taken by the management without the prior permission of the labour department. The number of such designated workers will be one percent of the total number of workers in that particular workplace, subject to a minimum number of five and a maximum number of one hundred.

Rule 61(1) of Industrial Disputes (Central) Rules, 1957, provides that every registered trade union connected with an industrial establishment shall communicate to the employer before the 30th of April every year, the names and addresses of the officers of the union who are employed in that establishment who should be recognized as protected workmen. Rule 61(2) makes it obligatory on the part of employer to recognize such number of workers as provided u/s 33 (4) of the Industrial Disputes Act, 1947, as ‘protected’ for a period of 12 months, within fifteen days of receipt of the proposal from the union.

(Refer: http://www.hrinfo.in/2014/02/protected-workmen.html)

back to top

  1. What are the types of unions you can form?

Your trade union could be factory based, industry based or even locality based. Sometimes a particular category of workers may also come together to form their own separate union. It is important to remember that unorganised sector workers like domestic workers, construction workers, daily wage labourers and contract workers can also form unions to address work related issues, lobby for better working conditions and advocate for their rights. These could be based in specific geographical areas – locality, district, city or state wide.back to top

  1. Who is the primary authority?  If I’m a worker, who do I go to?

The Trade Union Act of 1926 lays down the various rules which need to be followed regarding formation and registration of a union. This law also prescribes the primary authority to be the Registrar of Unions, who is usually a person in the Labour Department at the level of the Deputy Commissioner of Labour (DCL)  (Refer: http://www.tn.gov.in/rti/proactive/labour/handbook-labour.pdf).

There are Nine Regional Deputy Commissioners of Labour in Tamilnadu, based at Chennai-1, Chennai-2, Trichy, Madurai, Tirunelveli, Coimbatore, Salem, Dindigul and Coonoor.

The names of the current Deputy Commissioners of Labour can be found on the Labour Department website.

back to top

  1. How do I register my union?
    1. In order to register the union, one must follow the procedure laid down by the law. Any 7 workers can come together to registera union by submitting the application in Form A and signing their names subscribing to the rules. The Form includes Schedule I (Names and addresses of office bearers) , Schedule II (References to rules) and Schedule III ( Statement of assets and liabilities if the union has been functioning for more than one year prior to the application for registration)
    2. This application will include: name of the union; address of the registered office; names, addresses, ages and occupations of the office bearers and founding members; and rules of the union.
    3. The application has to be made to the Registrar of Trade Unions (specifically the one whose jurisdiction includes the location of the registered office or factory) in person.
    4. Once the registrar receives the application, he/she forwards it to the Assistant Commissioner of Labour who will summon the 7 members who initially signed the application for verification. During this time, all documents in original must be brought. Documents include
  • Copy of a resolution passed by the General Body regarding the formation of the union
  • List of office bearers with names and addresses
  • bye laws,
  • completed membership forms, membership fee receipts, membership register, register of membership dues paid of at least 100 members or 10% of workforce whichever is lesser.
  • ledger of income and expenditure, vouchers, bank account details
    1. The registrar must complete this process within 90 days, according to this government order.
    2. To renew registration, annual returns to be submitted by December every year: Form D

back to top

  1. What is the minimum number of workers for registering a union?

While 7 workers are required to be the founding members to submit the application for registration, there must be either 100 members or 10% of the workforce, whichever number is smaller.  For sectoral unions, in which the total workforce may be difficult to measure, there must be at least 100 members. back to top

  1. What are the some of the hurdles you may face while registering a union?

Resisting disruption by the management

Many a time, the management may find ways to disrupt or oppose the formation of your union. In most cases, the management will harass or intimidate the office bearers or leaders who are signatories in the application for trade union registration, and also collude with the government officials to prevent you from registering the union.

However, if among the 7 people who make the application for registration of the union, some members drop out or do not wish to continue, the Act provides some protection in Section 4(2), which says the application will remain valid as long as at least 4 or the 7 persons that made it stay in.

“Where an application has been made under subsection (1) for the registration of a Trade Union, such application shall not be deemed to have become invalid merely by reason of the fact that, at any time after the date of the application, but before the registration of the Trade Union, some of the applicants, but not exceeding half of the total number of persons who made the application have ceased to be members of the Trade Union or have given notice in writing to the Registrar dissociating themselves from the application.”

Another difficulty is that the union is required to submit lists and details of all members to the labour department (both while applying for registration and each year along with annual returns). This exposes members to threat and intimidation by the management or employer, and is particularly risky during the nascent years of union formation.

If you are in a plant level union, you must be strategic about when you choose to register the union. It may be necessary to do it quietly, until you know your office bearers are confident to handle any situation.

Paper Work and Bureaucracy

There are several forms and documents that need to be submitted to apply for registration (see this link for example). These are often cumbersome and excessive, especially if the workers are new and do not have prior experience. back to top

  1. Can I be dismissed for joining a union?

Every worker is guaranteed the right to join a trade union by law and therefore you cannot be dismissed for joining or working to form a union. However, in most cases, the management targets leaders of the union indirectly in order to preserve its hold over the workplace. The management often transfers workers, suspends them, or dismisses them on false grounds.  In such cases you can seek legal recourse by filing a complaint with the labour commissioner, as victimization or harassment for union activities is illegal.  However, this could be a long and drawn-out process, and workers must maintain consistent pressure on the management throughout. back to top

  1. What do I do if my registration application is cancelled?

If, after registration, the registrar wants to cancel the registration, he/she can do so only after giving two months’ notice specifying the reason for the decision. In this case, the union can appeal the decision to the appellate authority or the High Court. (Section 11)

back to top

  1. Who can be a part of union
    1. Is there restriction related to age?

Any worker who is 15 years or above can become a member of the union. (Section 21) However, an office bearer must be 18 years or above. (Section 21A)

  1. Can contract workers be part of the union?

Most certainly! The Act does not discriminate against any section of workers from being able to form a trade union. Contract workers, apprentices and trainees can be a part of the same union as permanent workers. While the management may try to create divisions, the union is stronger if workers across all categories are organized together.  In fact, without reaching out to contract workers and including them in union activities, it can be extremely difficult for a union to stop production, as the management can potentially replace unionized workers with contract staff.  Nevertheless, some unions consider it challenging to organize contract workers.

  1. What are some of the challenges to organizing contract workers?

Two common challenges that unions face in organizing contract workers include proving their employment in the workplace and countering victimization and dismissal by the management.  For example the management may deny that the worker is employed in the factory, so the union must pre-emptively gather records, such as photographs, muster rolls, access IDs, and registers maintained under the Contract Labour Act or the Migrant Worker Act.  Although it is widely believed that contract workers can be more easily fired from their jobs, there are in fact protections under the Industrial Disputes Act, provided proof of employment can be given.

  1. Can the union have representatives who are not workers?

Yes, the Act permits that less than half of the office bearers can be ‘outsiders,’ meaning they are not workers. According to Section 22 of the Act

  • Unorganised sector – at least 50% of the office bearers must be workers
  • Organised sector – Only 1/3rdor maximum of 5 of office bearers can be non-workers.
  • Workers must ensure that these are individuals whose ideals and functioning will be in tune with objectives of the union and who will wholeheartedly represent the interest of the workers.

The bye-laws, or rules of the union, must explicitly permit that ‘outsiders’ be allowed as office bearers, and these outsiders ought to also be union members and pay dues. Proof of their membership should be maintained.

back to top

  1. What are the ‘bye – laws’?  What are the points where union registration can be thwarted?  What are the important clauses in the bye – laws that we should pay attention to?

The ‘bye – laws’ are the rules that govern the functioning of the union, and are usually a modified form of the standard ‘draft bye – laws’ that are included with the Trade Union Act.

These rules are very important and usually mistakes or omissions are used as a reason for delaying or denying registration. The following points must be specified under the bye – laws (Section 6):

  1. The name of the union,
  2. A statement containing the objective for which the union has been formed,
  3. How the membership fees will be collected,
  4. How the general fund of the union be used (these must be in line with Section 15 of the TU Act)
  5. Under what terms and conditions a member can be paid from the fund,
  6. The list of members,
  7. Eligibility of ordinary members (workers employed in the work that the union represents) and how the honorary or temporary members (non- workers) will be admitted as office bearers, and
  8. The procedure through which the rules can be changed or the trade union can be dissolved.

back to top

  1. What if there’s already a union in my factory?

If there is already a union in your factory, visit their office, talk to their members and office bearers about what issues the union has taken up and resolved. It also helps to ask for a copy of the bye-laws so that you are clear about who the office bearers are.

Multiple unions in a workplace can divide the unity of workers, and therefore reduce your capacity to bargain and fight for your rights. However, if you feel that the union does not represent your interests, you may consider forming a union which is democratic and represents your interest. The most important thing is to ensure that workers are united and make an informed decision. back to top

  1. How do you know if your union is working in your interests?

The trade union is meant to be a democratic body where members discuss and vote collectively on any issue. Office bearers of the union are also democratically elected by the union membership.If you find that you are not being consulted on issues, or if the office bearers do not represent your/your co-workers’ interests in a genuine way, it is possible that the union has been co-opted in order to undermine workers and to maintain the status quo. Be open, be vigilant, and ask questions. back to top

  1. What is the difference between recognizing and registering a union?

A registered union does not automatically become recognized by the management. This means that although the government has provided the union with the certificate of registration and considers it as a legitimate body, the management refuses to negotiate with the union on some grounds.

A recognized union is one with which the management participates in collective bargaining, and signs agreements related to wages and working conditions. back to top

  1. How do I get my union recognized by the management?

Recognition of the trade union is an uphill battle, and union leaders and members must be prepared for an arduous struggle. Unions usually intimate the formation of the union along with a charter or demands to the management.

If there is still a failure on part of the management to recognize the union, unions usually resort to direct action in the form of protests and/or by giving strike notice. As the strike notice is sent to Labour Department also, the Labour Department may take the matter for conciliation.

In certain states, such as Maharashtra, West Bengal, Kerala, and Orissa, there are legal provisions mandating that a union be recognized by the management if it receives a specified minimum percentage of the workers’ vote via a secret ballot.  Usually 50% of the votes are required to be recognized as the sole bargaining agent, whereas with a smaller amount (10% – 15%) the union must be recognized as a constituent of a joint bargaining council.  These legal provisions include the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971; the West Bengal Trade Unions Rules, 1998; the Kerala Recognition of Trade Unions Act, 2010; and the Orissa Verification of Membership and Recognition of Trade Union Rules, 1994.

The 16th Indian Labour Conference recommended that a Code of Discipline be followed by management and unions. These include various rules to which the management and unions should abide by. For instance, the management must not indulge in unfair labour practices and the union must not engage in physical duress or rowdyism or violent demonstrations. The code also prescribes the conditions under which the management must recognise a union –

  • The membership of the union should cover at least 15 per cent of the workers in the establishment concerned. Membership would be counted only of those who had paid their subscription for at least three months during the period of six months’ immediately preceding the reckoning.
  • A union may claim to be recognised as a representative union for an industry in a local area if it has a membership of at least 25 per cent of the workers of that industry in that area.
  • Where there are several unions in an industry or establishment, the one with the largest membership should be recognised.

In the case of MRF where the management backed union was claiming recognition while the other union was sidelined, the Courts ordered that the Code of Discipline method be followed. However, this is a one off case. Moreover, the Code of Discipline restricts the union’s options for direct action. But since this is not mandated by law, the Code of Discipline has not been by the State Government without long drawn court battles. In cases where there is more than one union claiming recognition, the Courts have advocated for secret ballot elections to determine majority. back to top

  1. What if we are organizing an informal sector union? Or a sectoral union, as opposed to a plant-based one?  Do the same rules apply?

The procedures for registering a union are identical whether your union is informal or formal, plant-based or sectoral.  However, some of the challenges you face may be different. back to top

  1. Are Trade Unions allowed in SEZs?

Trade unions are allowed inside Special Economic Zones. However, the government offers certain exemptions under labour law, which the state government can decide. These relate to the right to strike as well as restriction of the number of outsiders in the union.

An important issue however is that protests cannot be held by the trade union within the SEZ premises (see page 36 ofhttp://www.ilo.org/wcmsp5/groups/public/—ed_dialogue/—actrav/documents/publication/wcms_221002.pdf)

 

This entry was posted in Featured, Labour Laws, Resources and tagged , , , . Bookmark the permalink.