UNFAIR LABOUR PRACTICES- A CRITICAL ANALYSIS

A project submitted in partial fulfilment of the course LABOUR

LAWS- I, 4th SEMESTER during the academic year 2017-2018

SUBMITTED BY:
SHREYA SINHA
ROLL NO.- 1648
B.B.A. LL.B.

SUBMITTED TO:
Dr. VIJAY KUMAR VIMAL
FACULTY OF LABOUR LAWS- I

APRIL, 2018
CHANAKYA NATIONAL LAW UNIVERSITY, NAYAYA
NAGAR, MEETHAPUR, PATNA-800001
 DECLARATION BY THE CANDIDATE

I hereby declare that the work reported in the B.B.A. LL.B (Hons.) Project Report entitled
“UNFAIR LABOUR PRACTICES- A CRITICAL ANALYSIS” submitted at Chanakya
National Law University; Patna is an authentic record of my work carried out under the
supervision of Dr. Vijay Kumar Vimal. I have not submitted this work elsewhere for any
other degree or diploma. I am fully responsible for the contents of my Project Report.

(Signature of the Candidate)

SHREYA SINHA
Chanakya National Law University, Patna

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 ACKNOWLEDGEMENT

“IF YOU WANT TO WALK FAST GO ALONE

IF YOU WANT TO WALK FAR GO TOGETHER”
A project is a joint endeavour which is to be accomplished with utmost compassion, diligence
and with support of all. Gratitude is a noble response of one’s soul to kindness or help
generously rendered by another and its acknowledgement is the duty and joyance. I am
overwhelmed in all humbleness and gratefulness to acknowledge from the bottom of my
heart to all those who have helped me to put these ideas, well above the level of simplicity
and into something concrete effectively and moreover on time.
This project would not have been completed without combined effort of my revered Labour
Laws I teacher Dr. Vijay Kumar Vimal whose support and guidance was the driving force to
successfully complete this project. I express my heartfelt gratitude to him. Thanks are also
due to my parents, family, siblings, my dear friends and all those who helped me in this
project in any way. Last but not the least; I would like to express my sincere gratitude to our
Labour Laws I teacher for providing us with such a golden opportunity to showcase our
talents. Also this project was instrumental in making me know more about the Unfair Labour
Practices- A Critical Analysis. This project played an important role in making me
understand more about the Unfair Labour Practices- A Critical Analysis. It was truly an
endeavour which enabled me to embark on a journey which redefined my intelligentsia,
induced my mind to discover the intricacies involved in the competency of the people in the
contract law.
Moreover, thanks to all those who helped me in any way be it words, presence,
Encouragement or blessings...

- Shreya Sinha
- 4th Semester
- B.BA LL.B

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 TABLE OF CONTENTS

Declaration…………………………………………………………………………………….i

Acknowledgement…………………………………………………………………………….ii

Table of Contents…………………………………………………………....……………….iii

Aims and Objectives……………………………………………………………………….…iv

Research Methodology......................................................................................................…...iv

Limitations……………………………………………….......……………………………….iv

Review of Literature………………………………………........…………………………….iv

1. Introduction………………………………………………………………………….1-4

2. Unfair Labour Practices …..............................................................................……...5-7

3. Industrial Relations and Unfair Labour Practices.......................................................8-9

4. Unfair Labour Practices and Its Impact on Industrial Relations and Peace……....10-12

5. The ILO Approach Towards Unfair Labour Practices …................................…...13-14

6. Unfair Labour Practices as per the Trade Unions Acr............................................15-18

7. Conclusion....................................................................................................................19

Bibliography…………………………………………………………….....………...………20

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 AIMS AND OBJECTIVES

With this project the researcher intends to:

1. To study the origin, history and development of unfair labour practices.
2. To find measures to reduce the unfair labour practices.

RESEARCH METHODOLOGY

The researcher has used the doctrinal method of research in the completion of this project on
“Unfair Labour Practices- A Critical Analysis.” The sources are mentioned in the review of
literature.

LIMITATIONS

The presented research is confined to a time limit of one month and this research contains
only doctrinal works which are limited to library sources.

REVIEW OF LITERATURE

The researcher intends to examine the secondary sources in thus project. The secondary
sources include books, websites, photographs, articles, e-articles and reports in appropriate
form, essential for this study.

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 INTRODUCTION

In any democratic country, the peaceful and fair industrial relations are the pre requisite for
the economic development which will ensure the economic justice to the people. For this to
happen, an environment need to be created which will enable both the employer and the
workmen to come together to save the interests of both through the practices of effective
collective bargaining on occasions of disputes. Such an environment can only be created
when the relations are based on the fair labour practices which demand responsibility from
both the sides. Unfair labour practices have been identified as the key factor to adversely
affect the process of collective bargaining which hampers further the industrial peace and
harmony. The support this legally, there are no very strong legislations though, the Vth
schedule of the Industrial dispute act, 1947 lays down the lists of unfair labour practices. In
Indian scenario, where there is such a big industrial sector and democratic consciousness
among masses is still a far reaching goal, the environment is highly politicised and hence the
problem of unfair labour practices persists in big way. In the rest part of this paper, I will try
to explore the situation in detail and how it plays the key role in establishing the peaceful and
harmonious industrial relations which is the backbone of the economic development in a
democratic country in context of India.
According to Sec.2 (ra) of the Industrial Disputes Act, 1947, unfair labour practices refer to
“any of the practices specified in the Fifth Schedule to the Industrial Disputes Act,
1947. According to Section 25T of the Industrial Disputes Act, 1947 no employer or
workman or a trade union, whether registered under the Trade Unions Act, 1926 or not, shall
commit any unfair labour practice. Fifth Schedule to the Industrial Disputes Act, 1947
provides a list as to what constitutes an unfair labour practices:
 Unfair labour practices on the part of employers and trade union of employers
1. To interfere with, restrain from or coerce workmen in the exercise of their rights to
organize, from, join or assist a trade union, or to engage in concerted activities for the
purposes of collective bargaining or other mutual aid or protection, i.e.
a. Threatening workmen with discharge or dismissal, if they join a trade union,
b. Threatening a lock out or closure if a trade union is organized,
c. Granting wage increase to workmen at crucial periods of the union organisation,
with a view to undermining the efforts of the trade union organization

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2. To dominate, interfere with or contribute, support, financially or otherwise to any
trade union, that is to say: ‐
a. An employer taking an active interest in organizing a trade union of his workmen
and
b. An employer showing partiality or granting favor to one of several trade unions
attempting to organize his workmen or to its members where such a trade union is
not a recognized trade union.
3. To establish employer sponsored trade unions of workmen.
4. To encourage or discourage membership in any trade unions by discriminating against
workman, that is to say:‐.
a. Discharging or punishing a workman, because he urged other workmen to join or
organize a trade union.
b. Discharging or dismissing a workman for taking part in strike (not being a strike
which is deemed to be an illegal strike under this act)
c. Changing seniority rating of workmen because of trade union activities
d. Refusing to promote workmen to hire posts on account of their trade union
activities
e. Giving unmerited promotions to certain workmen with a view to creating discord
between other workmen or to undermine the strength of their trade union
f. Discharging office bearers or active members of the trade union on account of
their trade union activities
5. To discharge or dismiss workmen‐
a. By way of victimization
b. Not in good faith but in the colorable exercise of the employer’s right
c. By falsely implicating a workman in a criminal case on false evidence or
concocted evidence
d. For patently false reasons
e. On untrue or trumped up allegations of absence without leave
f. In utter disregard of the principles of natural justice.
g. For misconduct of minor or technical character, without having any regard to the
nature of the particular misconduct or the past record of service of the workman,
thereby leading to disproportionate punishment.
6. To abolish the work of a regular nature being done by workmen and to give such
work to contractors as a measure of breaking a strike.

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 7. To transfer a workman malafide from one place to another under the guise of
following management policy.
8. To insist upon individual workman who are on a legal strike to sign a conduct bond as
a precondition to allowing them to resume work.
9. To show favoritism or partiality to one set of workers regardless of merit.
10. To employ workmen as ‘badlis’, casuals or temporaries and to continue them as such
for the years with the object of depriving them of the status and privileges of
permanent workmen.
11. To discharge or discriminate against any workmen for filing charges or testifying
against employer in any enquiry or proceeding relating to any industrial dispute.
12. To recruit workmen during a strike this is not an illegal strike.
13. Failure to implement award, settlement or agreement.
14. To indulge in acts of force or violence.
15. To refuse to bargain collectively, in good faith with the recognized trade unions.
16. Proposing or continuing a lock out deemed to be illegal under this act.
If the employer of any establishment commits any of these acts then he will be liable for an
offence of unfair labour practice.
 Unfair Labour Practices on the Part of Workmen and Trade Unions of Workmen
1. To advise or actively support or instigate any strike deemed to be illegal under the
Industrial Disputes Act, 1947.
2. To coerce workmen in the exercise of their right to self‐organization or to join a trade
union or refrain from joining any trade union, that is to say‐
a) For a trade union or its members to picketing in such a manner that non striking
workmen are physically debarred from entering the work places
b) To indulge in acts of force or violence or to hold out threats of intimidation in
connection with a strike against non‐striking workmen or against managerial staff.
3. For a recognized union to refuse to bargain collectively in good faith with the
employer.
1. To indulge in coercive activities against certification of bargaining representative.
2. To stage, encourage or instigate such forms of coercive actions and wilful ‘go
slow’, squatting on the work premises after working hours or ‘gherao’ of any of
the members of the managerial or the other staff.

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 3. To stage demonstrations at the residences of the employers or the managerial staff
members.
4. To incite or indulge in wilful damage to employer’s property connected with
industry.
5. To indulge in the acts of force or violence or to hold out threats of intimidation
against any workman with a view to prevent him from attending work.
 Punishment For Committing Unfair Labour Practices
According to Section 25U of the Industrial Disputes Act, 1947, any person who commits any
unfair labour practice will be punishable with imprisonment for a term which may extend to
six months or with fine which may extend to one thousand rupees or with both.

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 UNFAIR LABOUR PRACTICES

‘Fairness’ can be used as a synonym for equitable, reasonable, impartial, just, honest,
balanced, according to the rules, right.1 All these synonyms contain a high degree of ethical
and moral notions and consequently so do the notion of fairness.2 As such the notion of
fairness is not only difficult to define but is also flexible.3 Different people from different
cultures and backgrounds also might have different views as to exactly what constitutes
fairness. As Baxter points out, fairness is a concept that is ambiguous and difficult to
ascertain. Consequently its meaning must be deduced with reference to surrounding
circumstances.
Background of Labour Practices4
The main concern of labour relations is on the relationships that exist between the employer
and employee, and the labour practices that arise from the interests of such relationships.
Labour Relations can be both international and domestic from all deal with matters such as
remuneration, job, security, minimum wages, health and safety, social security and working
rime amongst others. Any form of violations of such laws by employers or unions is therefore
termed as unfair labour relations.
Any employment relationship has three stages:
1. A beginning: when the employee applies for employment.
2. Middle: as long as the employment relationship continues.
3. An end: when the employee is dismissed, resigns or retires.
Unfair Conduct of an Employer During the Course of Employment
1. Refusal to promotion or demotion
2. Unfair conduct during course of probation period
3. Refusal to provide benefits or training
4. Unfair suspension

1
See Poolman Principles of Unfair Labour Practices (1985) 42, and SADWV vs. Master Diamond Cutters
Association of SA 1982 ILJ 87(IC)
2
In The Press Corporation 1992 ILJ 391 (A) at 400 C Grosskopf JA in referring to the determination of Unfair
Labour Practices Stated: “In my view a decision of the Court pursuant to these provisions is not a decision on a
question of law in the strict sense of the term. It is the passing of a moral judgement on a combination of
findings of fact and opinions.”
3
See Cameron, Cheadle and Thompson The New Labour Relations Act (1989) at 139
4
http://customwritingtips.com/component/k2/item.12016-research-paper-on-unfair-labour-
practice.htm?tmpl=component&print=1

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 5. Disciplinary action short of dismissal such as warnings or suspensions without pay or
transfers.
H.D. Singh vs. Reserve Bank of India and Ors5
The 5th Schedule to the Industrial Disputes Act contains a list of unfair labour practices as
defined in Section 2(ra). Item 10 reads as follows:
“To employ workmen as badlis, casuals or temporaries and to continue them as such foe
years, with the object of depriving them of the status and privileges of permanent workmen.”
The court held that the bank in this case had indulged in methods amounting to unfair labour
practices. The plea that the appellant was a badly worker also failed.
Haryana State Electronics Development Corporation Ltd. vs. Mamni6
Therein the action on the part of the employer to terminate the services of an employee in
regular basis and reappoint after a gap of one or two days was found to be infringing the
provisions of Section 25-F of the Industrial Disputes Act. The Court held that in this case the
services of the respondent had been terminated on a regular basis and she had been
reappointed after a gap of one or two days. Such a course of action was appellant with a view
to defeat the object of the Act,
Union of India and Ors vs. Ramchander and Anr.7
Wherein again engagement of the workmen on a regular basis for a period of 89 days on each
occasion was held to be impermissible by law stating:
The respondents were appointed against casual labourers but nevertheless they continued in
service for four spells and that too their reappointments were made immediately within a few
days of termination on completion of 89 days. It shows that sufficient work was available
with the employer and had there been no termination on the completion of 89 days they
would have completed 240 days of continuous employment. In that view of the matter the
appellants had violated section 25-G of the Industrial Disputes Act. The court directed the
appellants to reemploy the respondents as daily-wagers.
The Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour
Practices Act, 1971
An Act to provide for the recognition of trade unions for facilitating collective bargaining for
certain undertakings; to state, their rights and obligations; to confer certain powers on,

5
1986 AIR SC 132, 1985 SCR Supl. (2) 842
6
MANU/SC/8137/2006: (2006) IILLJ744SC
7
(2005) 9 SCC 365

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unrecognised unions; to provide for declaring certain strikes and lock-outs, as illegal strikes
and lock-outs; to define and provide for the prevention of certain unfair labour practices to
constitute courts, (as, independent machinery) for carrying, out the purposes of according
‘recognition to trade unions and for enforcing the provisions relating to unfair practice to
provide for matters connected with the purposes aforesaid.’

Section 3(16) “unfair labour practices” means unfair labour practices defined in section 26.

CHAPTER VI (UNFAIR LABOUR PRACTICES)

Section 26: In this Act, unless the context requires otherwise, “unfair labour practises” mean
any practices listed in Schedule II, III and IV.8

8
[The Maharashtra Recognition of Trade Unions And Prevention of Unfair Labour Practices Act, 1971]

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 INDUSTRIAL RELATION AND UNFAIR LABOUR PRACTICES

The employer and worker’s both are two important pillar of the industry. Generally, the term
‘industrial relation’ used to relation between employer and workers with the working
condition at the workplace. Literally, ‘industrial relations’ means the relationship that
prevails between the organised labour and the management in an industrial enterprise.
Through proper attitudes of the management and that of labour, harmonious industrial
relations could be developed in an organisation.9
There for, good and healthy industrial relation are pre condition of the progress in the
industry .other hand unfair labour practice are different terminology in the industrial world
which is relate to create tension and unrest full atmosphere and also affect the relation
between worker and employer. In Indian scenario where is such a no strong labour policy the
problem of unfair labour practice itself, a biggest barrier for industrial peace.
However, the beginning stage of the labour laws there was no independent relationship
developed between employer and workers in India. The Industrial relations in India were
shaped by the labour policies of the colonial Government, the ideology of political leadership
and the dynamics of struggle for political independence.10 Prior to the passing of the Indian
Trade Unions Act, 1926 and the Trade Disputes Act, 1929, there was no uniform policy for
the settlement of industrial disputes in India.11
Post-Independence, government of India had effectively intervened in the field of labour
relation and assumed powers for settlement of labour disputes between parties. With a view
to promoting industrial peace the Government of India had evolved a regulatory system by
passing various labour legislations and by framing industrial relations policies and adopting
various strategies.12
According to this the former concept of industrial relationship was changed and the new
worker employer relationship took place of the former master servant relationship through the
legislative mechanism in India. The labour laws have not only modified the traditional master
and servant relationship in favour of the workers but had also subordinated the employers’

9
N.U.K.Sherwani, Industrial Relations in India, Anmol Publishing Pvt. Ltd., New Delhi, 2000; 2.
10
Sudha Deshpande and Lalit K. Deshpande, “Impact of Liberalisation on Labour Market and Industrial
Relations in India”, Indian Journal of Labour Economics, July -september, 1996; 39, (3):553.
11
Kesar Singh Bhangoo, Dynamics of Industrial Relations, Deep and Deep Publications, New Delhi, 1995;.2.
12
S.R. Mohan Das, Industrial Relations – The Coming Decades” Indian Journal of Industrial Relations. July 1990;
26(1): 80.

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rights to that of the Government.13 Apart from it , many efforts have been made to develop
faithful relationship between workers and employer by the government of India through
legislative control. But it was not sufficient because the unfair labour practice have been used
to play biggest role in our industrial system.
The expression unfair labour practices have been mostly used for any act to related with
Indiscipline between employer and workman. it is very difficult to define the unfair labour
practices, however it may include any act which disturbs peace full atmosphere and destroyed
industrial relation between employer and the workers. First time in India a few activities were
listed down as unfair labour practices in the fifth schedule of industrial dispute act1947,
through an amendment in 1982.following are the example of unfair labour practices
mentioned in the act. on the part of workmen any act which of the worker or its trade union to
picketing in such a manner that non-striking workers are physically debarred from entering
the work places; to indulge in act of force or violence or hold out threats of intimidation in
connection with a strike against non-striking workmen or against managerial staff and on the
part of employer, threatening workmen with discharge or dismissal, if they join a trade union;
threatening a lockout or closure, if a union is organised etc.

13
C.K. Johri, “Industrial Relations as regulated by Law: Suggestions for Change”, Indian Journal of Industrial
Relations, April 1996; 31(4) 440

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 UNFAIR LABOUR PRACTICES AND ITS IMPACT ON INDUSTRIAL
RELATION AND PEACE

The industrial relations system in India is itself inefficient and unfair labour practices have
further deteriorated the situation to a certain extent in some aspects.
Unfair Labour Practices from both parts weakens the trade unionism and thus weakens the
industrial relations. From the part of employers a number of unfair labour practices are
adopted to weaken the trade unionism. When in an industry workers take the resort of strike
or other democratic ways to oppose for their rights the employer use unfair ways of lock-outs
or closures or blacklist to pressurize the workers. It actually weakens the strength of trade
union, employers uses the money power and try to break up the union. In such way employer
try to weaken trade union so that they can keep on the exploitation of workers. Therefore
industrial relations are disturbed and ultimately industrial harmony is disturbed. In the
weakening of trade unionism the part of workers is also responsible. In some situations the
honest workers are misguided and mis-leaded for the interests of some clever people. When a
trade union is leaded by corrupt people they deceive the honest work force of the industry and
the management or employers are always interested in such things. In some situations these
corrupt people call strike for their personal interests and when interests are fulfilled they take
it back. Such unfair labour practices on the part of workers or trade union weakens the trade
unionism and ultimately unrest increases and industrial relations are disturbed and resultantly
industrial harmony is disturbed.
Now, it is to see how unfair labour practices decide economic growth of the country.
Disturbed industrial relations and industrial harmony ultimately effects the industrial growth
of an industry. It not only concerns the employers and employees but the community as a
whole. And as a resist the total economic growth of a country is affected.
In that connection the following case of Bombay High Court between Metal Box India Ltd. v.
The Association of Engineering Workers Union and others14 can be considered. In the fact of
the case there was a settlement which had been entered into on 1st November, 1991 with the
then recognized Union, MBDU. The settlement was inter alia in relation to the question of
wages reduction for a certain stipulated period having regard to the fact that the company was
a sick industrial company. The strike which was resorted to by the workmen was during the

14
Factory Law Reporter, 2001; 91: 469.

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subsistence of the settlement of 1991 in respect of a matter which was covered by the
settlement. The strike came to be resorted to on 4th February, 1994 following the notice
which was put up on 3rd February, 1994 enclosing a copy of the Company’s communication
dated 27th January, 1994. The strike was in these circumstances, illegal in view of the
provisions of clause (c) of Section 23 of the Industrial Disputes Act, 1947, and submitted-
Section (1) of the Section 24 of the Maharashtra Recognition of Trade Unions and Prevention
of Unfair Labour Practices Act, 1971. On behalf of the Union, it was sought to be submitted
that even assuming that there was a strike on 4th February, 1994 the strike was illegal
because of a non-compliance with the requirement of furnishing a notice of 14 days under the
provisions of Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour
Practices Act, 1971. Section 24(3) of the Industrial Disputes Act, 1947 provides that a lock-
out declared as a consequence of an illegal strike or a strike declared in consequence of an
illegal lock-out shall not be deemed to be illegal. It was sought to be submitted that since the
illegality related not to the provisions of the Industrial Disputes Act, 1947 but the
Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act,
1971the employer was not entitled to the benefit of the provisions of submitted-Section (3) of
Section 24. Even if it were to be held that the illegality in the strike related only to a failure to
furnish the requisite notice under the provisions of the Maharashtra Recognition of Trade
Unions and Prevention of Unfair Labour Practices Act, 1971, it cannot be said that the
employer was precluded from taking recourse to the provisions of submitted. Section (4)of
Section 23 of the Industrial Disputes Act, 1947. Besides as already noticed earlier, the strike
was illegal with reference to the provisions of Section 23(c) of the Industrial Disputes Act,
1947 as well. That being the position, there is no merit in the submission that the lock-out
which was declared in consequence of the illegal strike is not protected by the provisions of
submitted-Section 3 of Section 24 of the Industrial Disputes Act, 1947. The demand for an
undertaking on the part of the employer was illegal and unjustified. The employer by
demanding the undertaking has effectively prevented the workmen from reporting for work.
This is, therefore, clearly a case wherein a lock-out which was imposed by the employer on
8th February, 1994 initially in response to the illegal strike cannot be justified in view of the
undertaking which was required from the workmen as a condition precedent to their reporting
for work. In view of the illegal strike which was resorted to by the workmen, the lock-out at
its inception was not illegal in view of the provisions of submitted-Section (4) of Section 23
of the Industrial Disputes Act, 1947. The lock-out however, ceased to be lawful and justified
after the employer by his own conduct created a situation whereby the workmen were unable

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to present themselves for work. There is no justification on the part of the employer in
demanding an undertaking in the terms in which it was sought the unlawful demand for the
undertaking in the terms in which it was sought. The unlawful demand for the undertaking
has prevented the workmen form reporting to work. In that connection the learned Judge held
as follows : “Assuming however that the employer has succeeded in providing that there were
acts of violence, in-discipline and damages to the property, the question that still falls for
consideration is whether insistence on such an undertaking from all the workmen, whether
they were parties to the said acts or not, is justified. Such attitude has to be discouraged in
any egalitarian society and much more so in a society like ours which has pledged itself to
establish a Socialist Republic. Article 43-A of the Constitution, specifically directs the State
to take steps to secure participation of workers in the management of the industry. Therefore,
we are of the view that to insist upon such undertakings from all workmen, irrespective of
their conduct, is to subject them to indignity. The dignity of an individual is the bed-rock of
all human rights. It is and should be the basis of all human relationship including his contract
of employment. To insist upon such undertaking therefore, is to affect the terms of his
employment”.

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 THE ILO APPROACH TOWARDS UNFAIR LABOUR PRACTICES

The ILO bas considered protection against anti-union discrimination15 to be an integral part
of the protection of freedom of association. This term covers restriction or prohibition
directed against individual workers by reasons of their involvement in trade union activities;
it may also be directed against the trade union(s) as a whole by interfering in the functioning
of workers' organisations or by refusal to enter into collective bargaining with the union(s)
and other such unfair labour practices. The protection of workers against threats to their
functioning by employers and employer's organisations is dealt with under the Right to
Organise and Collective Bargaining Convention, 1949 (No. 98) of the ILO. Article 2 (I) of
the Convention provides that, "Workers' and employers' organisations shall enjoy adequate
protection against any acts of interference by each other or each other's agents or members in
their establishment, functioning or administration." The guarantee against interference bas
been further elaborated in paragraph 2 of the same article by specifying that acts designed to
promote the establishment of workers' organisations under the domination of the employers
or the support of workers' organisations by financial or other means with the object of placing
such organisations under the control of the employers' or employers' organisations, also
constitute acts of interference. By virtue of article I of the Convention the workers must be
adequately protected against anti-union discrimination. Protection from anti-union
discrimination would cover not only hiring and dismissal but also any other discriminatory
measure such as transfers, refusal of employment, demotions, disciplinary measures,
deprivation of or limitation on wages or social benefits, or other acts prejudicial to the
worker.
Protection against acts of anti-union discrimination in respect of employment is particularly
desirable for trade union leaders. The Workers' Representatives Convention, 1971 (No. 135)
and Workers' Representatives Recommendation, 1971 (No. 143) establish, that workers
representatives in the undertaking shall enjoy effective protection against any act prejudicial
to them, including dismissal, based on their status or activities as workers' representatives or
based on union membership or participation in union activities, in so far as they act in

15
The bundle of rights contained in articles 1 and 2 of Convention No. 98 are often referred to by the ILO as
protection against anti-union discrjrnination. Actions that violate the guarantees in articles 1 and 2 of
Convention No. 98 were referred to in the Indian Trade Unions (Amendment) Act, 1947 as "unfair practices".
and subsequently in the Industrial Disputes Act 1947 as "unfair labour practices". We shall refer to them by the
two terms 'anti-union discrimination' and 'unfair labour practices'.

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conformity with existing laws or collective agreements or other jointly agreed arrangements.
Where trade union representatives and elected representatives exist side by side, the Workers
Representatives Convention provides that, wherever necessary, appropriate measures shall be
taken to ensure that the position of the trade unions or their representatives in the undertaking
is not undermined by the existence of elected representatives. The recommendation which
supplements the Convention provides that (i) the workers must be provided precise reasons
justifying termination of employment, (ii) the availability of special procedures for the
workers' representative to challenge any termination or act of anti-union discrimination, (iii)
the provision of an effective remedy including reinstatement with payment of unpaid wages
in case of unjustified termination of employment, and (iv) the preference in the matter of
retention in employment in case of reduction of the work force. Articles 4 and 5 of the
Labour Relations (Public Service) Convention, 1978 (No. 151) extends similar protection to
public employees just as the Rural Workers' Organisations Convention, 1975 (No. ~41) in
article 3 (2) provides such protection to rural workers and their organizations.16 The
Termination of Employment Convention, 1982 (No. 158) also contains similar prohibition.17
Traditionally, therefore, the expression unfair labour practice has been used synonymously
with such actions which interfere in the collective bargaining process. This has been the
common understanding in much of the western world and also the understanding developed
by the ILO itself. However, in India, the expression 'unfair labour practices' has not always
been used to mean only activities which hinder the smooth functioning of collective
bargaining. The expression as used in legislation and in the decisions of the courts is used in a
wider and looser sense to cover unjust dismissals, unmerited promotions and every form of
victimisation, whatever is the cause.18 The reason for this appears to be that collective
bargaining has never been the central feature of the framework of employer-employee
relations in India.

16
It states that "the principles of freedom of association shall be fully respected; rural workers' organisations
shall be independent and voluntary in character and shall remain free from all interference, coercion or
repression".
17
Article 5 (a) of the Convention stipulates that "union membership or participation in union activities outside
working hours or, with the consent of the employer, within working hours" are not valid grounds for
termination. The Discrimination (Employment & Occupation) Convention, 1958 (No. 111) which India has
ratified provides protection against discrimination on the basis of political view, membership of political party
or political activities.
18
Government of Maharashtra, Report of the Committee on Unfair Labour Practices 40 (1969).

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 UNFAIR LABOUR PRACTICES AS PER THE TRADE UNIONS ACT

The Constitution of India guarantees the country’s citizens a fundamental right “to form
associations or unions.” The Constitution was adopted in 1951, but the concept of collective
bargaining and the development of labour unions (known as trade unions in India) dates back
to the time when the foundations of modern industrial enterprises were being laid in the early
1900s. The original act related to labour unions—the Trade Unions Act—was enacted in
1926.
Prompted by poor working conditions under British imperialism, workers and social
reformers began protesting for the betterment of the state of affairs, which then gradually led
to the formation of workers’ unions wherever common interests were involved. However,
these organizations were mostly ad hoc in nature and lasted as long as the pressing issue did.
They could hardly be considered labour unions in the current sense. The Madras Labour
Union, set up in 1918, is considered the first trade union in India to be formed systematically.
Since then, the labour union movement has spread to almost all industrial centres and has
become an integral and powerful part of the industrial process in India. The reach of trade
unions has also expanded significantly. In addition to influencing the nitty-gritty and the
course of action in various industrial sectors, trade unions now influence government
policies, the allocation of economic resources and the very nature of economic and social life.
Today, there are more than 75,000 registered and an unaccounted number of unregistered
trade unions scattered across a large spectrum of industries in India. The Bharatiya Mazdoor
Sangh (BMS), the Indian National Trade Union Congress (INTUC) and the All India Trade
Union Congress (AITUC) are considered the largest trade unions in India. The country’s
manufacturing sector in particular is heavily unionized.19
Trade unions in India are governed by the Trade Unions Act (TU Act). The TU Act legalizes
the formation of trade unions and provides adequate safeguards for trade unions’ activities. It
defines a “trade union” as “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, or for imposing
restrictive condition on the conduct of any trade or business, and includes any federation of
two or more trade unions.” The TU Act is administered by the Ministry of Labour through its

19
http://www.nishithdesai.com/fileadmin/user_upload/pdfs/Trade_Unions_Act_and_State_Laws_Provide_Leg
al_Protections_to_Trade_Unions_in_India.pdf

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Industrial Relations Division (IRD) as well as by state governments. The IRD is concerned
with improving the institutional framework related to settlement of disputes and amendment
of labour laws regarding industrial relations; state governments are concerned with
monitoring adherence to the law by all involved parties.20
In addition to the TU Act, certain state governments have enacted legal provisions concerning
the recognition of trade unions. However, each state has its own set of criteria, including
minimum requisite membership. For instance, in the State of Maharashtra, the Maharashtra
Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, governs
the aspects related to the recognition of trade unions that have not been specifically covered
by the TU Act. Similar laws have been enacted in the states of West Bengal, Rajasthan,
Andhra Pradesh and Madhya Pradesh. The states of Bihar and Orissa have specific non-
statutory provisions setting forth rules and principles for the recognition of trade unions.
The TU Act provides for the registration of trade unions with the Registrar of Trade Unions
in their respective territory, but it does not make registration mandatory. Registration is,
however, beneficial as it leads to certain privileges. A registered labour union is deemed to be
a body corporate, thus giving it the status of a legal entity. As a result, a registered trade
union has perpetual succession and a common seal with the power to acquire and hold
property and to enter into contracts. It also has the power to sue and, consequently, be sued as
well. An unregistered trade union, on the other hand, would not be considered a juristic entity
(see National Organization of Bank Workers’ Federation of Trade Unions v. Union of India
(1993). A registered trade union assumes more importance because other labour laws such as
the Industrial Disputes Act, 1947 (IDA), and the Industrial Employment (Standing Orders)
Act, 1946 (IESOA), define a labour union to mean a union that has been registered under the
TU Act. The IDA, a law that to a certain extent is similar to the U.S. National Labour
Relations Act of 1935 (NLRA), provides for investigation and settlement of industrial
disputes and contains provisions with respect to inter alia layoff, employment termination,
strikes, lockouts and closure of establishment. The IESOA, on the other hand, provides
guidelines to define employment conditions. Registration would allow the trade union to, for
instance, refer disputes with the employer to labour authorities. To be registered under the TU
Act, a trade union is required to have a minimum of seven members subscribing their names
to the rules of the trade union. Furthermore, a minimum of 10 per cent of the workforce or
100 workers, whichever is less, engaged or employed in the establishment are required to be
20
http://www.nishithdesai.com/fileadmin/user_upload/pdfs/Trade_Unions_Act_and_State_Laws_Provide_Leg
al_Protections_to_Trade_Unions_in_India.pdf

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members of the trade union, connected with such establishment, at the time of application.
The registration would, however, be subject to the registrar being satisfied with the
compliance of all the primary requirements of the TU Act by the trade union. It must be noted
that the certificate of registration may be withdrawn by the registrar in certain cases.
Considering the prevalence of a large number of trade unions in the country, some of the state
specific enactments set forth the criteria by virtue of which a particular trade union may
become entitled to represent employees. Furthermore, such representative trade unions may
have the preferential right to hold discussions with employers to resolve disputes, while an
unrecognized trade union may not.21
The formation of a trade union, being a fundamental right of workers, cannot be prevented by
an employer. Neither can an employer prevent the registration of such a trade union under the
TU Act. Any form of interference, restraint or coercion by the employer in an attempt to
prevent a worker or workers from joining a trade union would amount to an “unfair labour
practice” as provided under the IDA and would be punishable with imprisonment and/or a
fine (see Section 25-U of the IDA).
The IDA, similar to the NLRA, sets forth the practices of employers, workers and their trade
unions that would be considered “unfair labour practices.” Some of the practices prohibited
with respect to employers are as follows:
 Interfering with or restraining workers in the exercise of their right to organize, form, join
or assist a trade union.
 Threatening a worker with discharge or dismissal if the worker joins a trade union.
 Threatening a lockout or closure if a trade union is organized.
 Granting wage increases to workers at crucial periods of trade union organization, with a
view to undermine the efforts of such organization.
 Establishing employer-sponsored trade unions of workers.
 Encouraging or discouraging membership in any trade union by discriminating against
any worker by discharging or punishing the worker for urging other workers to join a
trade union. Changing the seniority rating of, refusing to promote or giving unmerited
promotions to workers because of trade union activities.
For workers and trade unions, any act employed to coerce workers in the exercise of their
right to self-organization or to join trade unions amounts to an unfair labour practice.

21
https://www.adelaide.edu.au/press/journals/law-review/issues/alr_34_1_ch3.pdf

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Traditionally, the function of trade unions in India was limited largely to collective
bargaining for economic considerations. However, over time, trade unions have begun to play
various other roles as well. Besides aiming to improve the terms and conditions of
employment, trade unions now play a critical role in employee welfare activities, such as
through organization of cooperative credit societies, cultural programs, and banking and
medical facilities and by creating awareness through education of members and publication
of periodicals and newsletters. Trade unions provide a forum to help facilitate better
industrial relations and improve productivity.22
Certain trade unions also have political affiliation. For instance, the INTUC is affiliated with
the Congress Party, whereas the AITUC is affiliated with the Communist Party of India. In
addition to the interference of political leaders, such affiliation has, at times, led to multi-
unionism (i.e., multiple unions in the same organization), which creates complexities for the
employer especially during the collective bargaining process.

22
https://www.xperthr.com/faq/what-penalties-may-an-employer-face-if-the-national-labor-relations-board-
nlrb-finds-it-committed-an-unfair-labor-practice/5338/

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 CONCLUSION

The court decisions that have attempted to give some content to the constitutional right to fair
labour practices seem to indicate that it is an imprecise concept, incapable of definition, open-
ended and that the over-riding criterion should be fairness. The old Industrial Court also had
to deal with an open-textured definition and ultimately decide what was fair in the
circumstances. It follows, therefore, that the old Industrial Court decisions will provide useful
precedents to assist the courts in deciding what constitutes an unfair labour practice. As seen,
the concept can be extended to include unfair employee conduct vis-à-vis the employer. It
may also include dismissals and redeployment or transfer of employees.
Fairness as opposed to lawfulness will be the determining factor. As such recourse to other
systems of labour law, especially the English system might be useful to the courts. In the end,
what the judge considers to be fair or unfair in the circumstances will prevail.

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 BIBLIOGRAPHY

STATUTES
1. The Industrial Disputes Act, 1947
2. The Trade Unions Act, 1926
3. Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices
Act, 1971
BOOKS
1. KM Pillai, Labour and Industrial Laws
2. P.K. Padhi, Labour and Industrial Laws, PHI Learning; 3rd Revised edition edition
(30 September 2017)
3. Piyali Ghosh, Industrial Relations and Labour Laws, McGraw Hill Education; First
edition (1 July 2017)
4. S.N. Misra, Labour & Industrial Law, CENTRAL LAW PUBLICATION; Twenty
Seventh Edition (Rep.) edition (2013)
5. P.R.N. Sinha Industrial Relations, Trade Unions and Labour Legislations, Pearson
Education; Third edition (30 June 2017)

WEBSITES
1. http://mcmillan.ca/Law-Note---Consequences-of-Unfair-Labour-Practices
2. https://www.xperthr.com/faq/what-penalties-may-an-employer-face-if-the-national-
labor-relations-board-nlrb-finds-it-committed-an-unfair-labor-practice/5338/
3. https://www.adelaide.edu.au/press/journals/law-review/issues/alr_34_1_ch3.pdf
4. http://www.nishithdesai.com/fileadmin/user_upload/pdfs/Trade_Unions_Act_and_Sta
te_Laws_Provide_Legal_Protections_to_Trade_Unions_in_India.pdf
5. https://www.xperthr.com/topics/labor-relations/unfair-labor-practices/
6. http://www.whatishumanresource.com/unfair-labor-practices
7. http://www.labourprotect.co.za/Unfair_Labour_Practices.html
8. http://corporate.findlaw.com/human-resources/employer-penalties-for-violating-the-
national-labor-relations-act.html
9. http://14.139.60.114:8080/jspui/bitstream/123456789/15516/16/Part%20X_Unfair%2
0Labour%20Practices%20and%20Victimisation%20%28637-674%29.pdf

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