Registration of Trade Union: Procedure and Rights under Industrial Relations Code, 2020: Explained

The Author, Shubhangi Gupta, is a 4th-year student of B.tech in Computer Science and LL.B. in Cyber Law at University of Petroleum and Energy Studies (UPES), Dehradun

INTRODUCTION

In simple language, trade unions are organizations that are founded by workers from related sectors who work for the welfare of their members. They represent a group of workers and act as a link between management and workers. In order to establish labour rules, the government collaborated with the trade unions as a result of this process, the trade unions grew stronger and began to assert themselves not by contributing to economic success by organizing a huge number of strikes at the national and enterprise levels. In many countries, the trade unions have followed major rearrangement of the labour market, characterized by increased precarious employment, losses in real wages, rising levels of unemployment, and eroding labour rights despite the opposition of trade unions.[1]

DEFINITION

The trade union is defined under section 2 (zl) of the Industrial Relations Code 2020 as, “any combination, whether temporary or permanent, formed primarily for the purpose of regulating the relations between workers and employers or between workers and workers, or between employers and employers, or for imposing restrictive conditions on the conduct of any trade or business, and includes any federation of two or more Trade Unions: Provided that the provisions of Chapter III of this code shall not affect —

1. any agreement between partners as to their own business
2. any agreement between an employer and those employed by him as to such employment
3. agreement in consideration of the sale of the goodwill of a business or of instruction in any profession, trade or handicraft”

PROCEDURE FOR REGISTRATION OF A TRADE UNION

The provisions and methods for registering trade unions are covered in Chapter II of the Trade Unions Act, 1929 whereas in the Industrial Relations Code, 2020 these are covered in Chapter III. The Industrial Relation Code, 2020, contains the same provisions and procedures as the Trade Unions Act, 1929.

• Appointment of Registrar (Section 5 of Industrial Relations Code, 2020 and Section 3 of the Trade Union Act, 1926)

Section 5 of the Industrial Relations Code, 2020 provides for the appointment of a trade union registrar. The section empowers the competent government to designate a qualified individual as Registrar of Trade Unions to register trade unions and monitor their operations. The competent government may additionally designate Additional Registrars of Trade Unions, Joint Registrars of Trade Unions, and Deputy Registrars of Trade Unions to carry out the Registrar's tasks under the Registrar's supervision and control. The Registrar's duties and functions are outlined in the Act.

• Mode of Registration (Section 6 of Industrial Relations Code, 2020 and Section 4 of the Trade Union Act, 1926)

Any seven or more members of a Trade Union may apply for registration of the Trade Union by submitting their names to the Trade Union's regulations and otherwise complying with the provisions of this Act for registration. No worker's trade union shall be registered unless at least 10% of the workers employed or engaged in the industrial establishment or industry with which it is linked, or one hundred workers, whichever is less, are members of such Trade Union on the date of application for registration. At all times, a registered trade union of workers must have as members not less than 10% of the workers or one hundred workers, whichever is fewer, subject to a minimum of seven, employed or engaged in such an industrial establishment or industry with which it is associated.

An application for registration of a Trade Union made under section 6 (1) of the Industrial Relations Code, 2020, must not be declared invalid merely because some of the applicants, but not more than half of the total number of persons who applied, have ceased to be members of the Trade Union or have given notice, at any time after time of application but before the registration of the Trade Union.

In Tirumala Tirupati Devasthanam[2], the supreme court held that any group of employees of an industry establishment can be registered as a Trade Union under the Trade Unions Act, 1929, to regulate the relationship between them and their employers, or between employees themselves, or between employers of the industry establishment.

• Application for Registration (Section 8 of Industrial Relations Code, 2020)

An application for Trade Union registration must be made under section 8(1) to the Registrar electronically or otherwise which must be supported by –

1. A declaration to be made by affidavit in the form and manner prescribed.
2. A copy of the Trade Union's rules, as well as a copy of the Trade Union's resolution adopting such rules.
3. A copy of the Trade Union's resolution authorizing the applicants to make an application for registration.
4. In the case of a Trade Union that is a federation or a central organization of Trade Unions, a copy of the resolution adopted by the members of each of the member Trade Unions who met separately and agreed to form a federation or a central organization of Trade Unions.

Comparing it to section 5(1) of the Trade Union Act, 1926 every application for Trade Union registration must be submitted to the Registrar, along with a copy of the Trade Union's rules and a statement of the following particulars: (a) the names, occupations, and addresses of the delegates making the application; (b) the name of the Trade Union and the address of the head office of the trade union; and (c) the titles, names, ages, addresses, and occupations of the Trade Union's [office-bearers].

According to section 8(2) of the Industrial Relations Code, 2020 (Section 5(2) of the Trade Union Act, 1926) when a Trade Union has been in existence for more than one year before making an application for registration, a general statement of the Trade Union's assets and liabilities shall be delivered to the Registrar, together with the application, in such form and containing such particulars as may be prescribed. The Registrar may request additional information as per Section 8(3) of the Industrial Relations Code, 2020 to ensure that the application complies with the provisions of this Code and that the Trade Union is eligible for registration under this Code, and may refuse to register the Trade Union until such information is provided. If the name under which the Trade Union is requested to be registered is identical to that of an existing registered Trade Union or, in the opinion of the Registrar, so strongly resembles the name of an established Trade Union that such a name is likely to manipulate the public or members of either Trade Union, the Registrar shall require the individuals requesting modification and shall refuse to register the Trade Union until the modification is made as per Section 8(4) of Industrial Relations Code, 2020 (Section 7(2) of the Trade Union Act, 1926).

• Registration (Section 9(1)(2)(4) of Industrial Relations Code, 2020 and Section 8 of the Trade Union Act, 1926)

According to section 9(1) of the Industrial Relations Code, 2020 when the Registrar is satisfied that the Trade Union has complied with all of the conditions of this Chapter about registration, he or she shall register the Trade Union by entering the particulars relating to the Trade Union included in the statement accompanying the application for registration in a register to be maintained in such form as may be required. When the Registrar issues an order for the registration of a Trade Union, he shall issue to the applicant Trade Union a certificate of registration in such form as may be required, as per section 9(2) of Industrial Relations Code, 2020 which shall be conclusive evidence that the Trade Union has been registered under this Code. Section 9(4) of the Industrial Relations Code, 2020 states that every Trade Union which is registered under the Trade Unions Act, 1926 that had valid registration immediately before the beginning of this Code shall be regarded to have been registered under this Code only if, that Trade Union shall submit with the Registrar a statement stating the constitution of the executive of the Trade Union is in line with this Code, along with the rules of the Trade Union revised by section 7, and the Registrar shall change his record.

In Inland Steam Navigation Workers Union (in re)[3], the workers' union requested registration through an application, but the Registrar denied it, considering it unlawful based on its object to be for all practical purposes. The Registrar's duties, according to Justice Derbyshire, were to assess the application and the objects for which the union was established. If such purposes were those specified in the Act, if they did not deviate from those specified in the Act, and if all of the requirements of the Act and the rules enacted thereunder were met, it was his obligation, in my opinion, to register the union.

• Certificate Of Registration (Section 9(3) of Industrial Relations Code, 2020 and Section 9 of the Trade Union Act, 1926)

If a Trade Union has been granted a certificate of registration, the Registrar must record the Trade Union's name and other information in a register kept for that purpose in the form provided.

In IFFCO, Phulpur Karmachari Sangh v. Registrar of Trade Unions[4], it was held that the certificate of registration remains valid until the registration is terminated.

In Telco Workers' Case[5], the high court held that there is no provision in the Trade Unions Act, 1926 that gives the Registrar of Trade Unions the authority to handle the intense dispute between the parties. The Registrar has no authority under the Act to hear private members of Trade Unions' grievances; nonetheless, a complaint may serve as a source of information for the Registrar in forming an opinion for issuing a show-cause notice under Section 9 of the Act.

CANCELLATION OF REGISTRATION OF TRADE UNION

The Registrar may withdraw or cancel a Trade Union's certificate of registration as per section 9(5) of the Industrial Relations Code, 2020 (Section 10 of the Trade Union Act, 1926) —

1. on the Trade Union's application verified in the manner prescribed;
2. on information received by him regarding the Trade Union's violation of the provisions of this Code or the rules made thereunder, or its constitution or rules;
3. if he is satisfied that the members in a Trade Union fall below ten percent of total workers or one hundred workers, whichever is less, only when the Registrar gives the Trade Union not less than sixty days prior written notice outlining the grounds on which it is planned to revoke the Trade Union's certificate of registration before the certificate of registration is cancelled otherwise than on the Trade Union's application.

The Registrar shall cancel a Trade Union's registration certificate where a Tribunal has ordered the cancellation of such Trade Union's registration. When cancelling a Trade Union's certificate of registration, the Registrar must record the reasons for doing so and notify the Trade Union in writing.

APPEALS

According to section 10 of the Industrial Relations Code, 2020 any person who is dissatisfied with the Registrar's rejection to grant registration to a trade union or the cancellation of a certificate of registration may file an appeal with the Tribunal within the time limit allowed. If the appellant satisfies the Tribunal that the delay was caused by a sufficient reason or unavoidable circumstances, the Tribunal may entertain the appeal after the limitation set for preferring the appeal under this subsection.

After hearing the parties, the Tribunal may dismiss the appeal or make an order instructing the Registrar to register the trade union and issue a certificate of registration, or set aside the order of revocation of the certificate of registration. The Tribunal must send a copy of the order to the Registrar.

RIGHTS CONFERRED UPON THE TRADE UNION

Whenever a trade union is registered, it is granted specific rights and advantages.  The registered trade unions have certain rights guaranteed from sections 12 to 18 of Chapter III of the Industrial Relations Code, 2020. Along with the rights granted to registered trade unions, the trade union is also charged with specific duties. The rights so secured are as follows:

1. Right as a legal person to the trade union 

Section 12 of the Industrial Relations Code, 2020 grants the trade union the right provided as a legal entity, which entitles the trade union to specific qualities, including:

• Making it a body corporate by the name under which it is registered.
• It shall have perpetual succession.
• It shall have a common seal.
• It shall have the ability to hold and acquire moveable and immovable property.
• Giving it the power to intervene in contracts.
• It has the legal right to sue and be sued in its registered name.

2. Right to manage funds of the trade union

The second right provided to the trade union is the right of managing its funds, for the effective execution of the trade union the funds are extremely important, and section 15 of the Industrial Relations Code, 2020 recognizes this. Section 15(1) makes it very clear the goal of general funds which is that the general funds so gathered must be utilized for the purposes indicated and specified in the trade union rules and should not be used on unspecified objects. Though the Industrial Relations Code, 2020 does not expressly state what the objects are, the Act does state certain objects that the general funds of the trade union must be used for particular purposes, such as paying salaries to office bearers, conducting trade disputes, and participating in legal proceedings. In cases concerning the payment of promotion of civic and political interests of trade union members, the trade union may form a separate fund under section 15(2) of the Industrial Relations Code, 2020. Section 15(3) states that the trade union cannot oblige its participants to contribute to the fund, and that trade union members who have not contributed to the separate fund cannot be denied any trade union advantages or cannot be compelled to any disadvantage on the same basis, except to control and manage the fund.

3. Right to be protected against civil proceedings

The next right granted in this sequence is the right to protection against civil actions or immunity against civil proceedings which is conferred by the provision of section 16 of the Industrial Relations Code, 2020. This is among the most important rights given to a registered trade union because trade unions may go on to conduct strikes to put forward their collective voices and, in those situations, to restrict the employers from initiating a court case on this basis, the registered trade union is granted the right to be protected against civil proceedings. However, this right is not available in all instances of strike and protest instead, it is limited to strikes that are peaceful and non-violent, and it is particularly granted only to registered trade unions.

The language of the section states that a civil suit or civil legal procedures against a trade union which is registered or any office-bearer or member for acts done in anticipation of an industrial dispute would not be maintainable and that a registered trade union shall not be liable in respect of any malicious act done in support of an industrial dispute by an agent if it is proved that such act is done without the knowledge of trade union. Unless and until the Act is shown to be unlawful, tortious, or violent, the registered trade union shall be immune in this regard. The argument behind the section is that to organise strikes collectively a person must encourage another person to breach an employment contract and interfere with business or employment to strike and jointly put forward the demands.

In Rohtas Industries staff vs State of Bihar[6], the issue was whether the employer has the right to claim damages against an employee who participated in an illegal strike, to which the court replied negatively, stating that employers do not have the right to claim civil damages regardless of whether a strike is legal or illegal.

One important consideration in this regard is that the strike organized must be peaceful and non-violent to qualify for civil immunity. In Simpson & group company workers & staff union vs Amco batteries ltd.[7], it was stated that the physical impediment of free movement is not a valid claim of civil immunity.

4. Right to be protected against criminal proceedings

Section 17 of the IR exempts office bearers and members of registered trade unions from criminal conspiracy sub-section (2) of Section 120B of the Indian Penal, 1860, concerning any agreement in furtherance of any of the objects mentioned in Section 15 however, if there is an agreement to commit an offence, this section will not be held applicable, and immunity will not be conferred.

In S.B. Shinde vs. State of Maharashtra[8], the office bearers and members of the registered trade union Bajaj auto limited, Pune, caused large-scale violence and property destruction during a two-day strike, disrupting public fees and even the enforcing authority, resulting in grave injuries. In this case, the court ruled that such activities by workers that culminated in violence could not be protected under section 17.

5. Right of privilege to make agreements in restraint of trade

Section 18 of the IR, 2020 provides that agreements in restraint of trade between members of a registered trade union are not void or voidable solely because the agreement and its object are in restraint of trade. An example of this is when members and office bearers of a registered trade union agree that they would not work at an industrial business that pays them poor salaries for lengthy hours of work.

6. Right in the inspection of the books of trade union

Section 19 of the Industrial Relations Code, 2020 provides for the right of office bearers and trade union members to see the book of accounts and the list of members at any time provided in the regulations.

7. Right of a minor to the membership of the trade union

Section 20 of the Industrial Relations Code, 2020 grants a minor over the age of 14 who is employed in a non-hazardous industry the right to become a member of a registered trade union under the rules of the trade union.

CONCLUSION

The presence of a Trade Union during the formation of an industry aids in the establishment of a better relationship between workers and employers. The Trade Union serves as a link between workers and employers. As a result, the Trade Union must register under the Trade Unions Act of 1929, and after 2019, it will register under the Industrial Code of 2020. Registration of the Trade Union is required to ensure that the Trade Union has been duly approved and is then recognized by the establishment or industry.

References:

[1] Tardanico, Richard & Rafael Menjiivar, 1997, Global Restructuring. Employment, and Social Inequality in Urban Latin America, Coral Gables, distributed by L. Reinner Publishers, North-South Center Press: Boulder.

[2] (1995) Supp (3) SCC 653.

[3] (1936) IC 378.

[4] (1992) II LLJ 239 (AII).

[5] (2015) II LLJ 448 (Jhar).

[6] AIR 1976 Pat 170.

[7] ILR 1990 KAR 3568.

[8] 1993 SCC Online Bom 307.

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