Bypassing rights

The Union Labour Minister's statement in the Rajya Sabha on unratified ILO conventions sparks a controversy.

INDIA'S failure to ratify two crucial conventions of the International Labour Organisation, despite being a founder-member of the ILO, has long been a sore point with trade unions in the country. The two conventions are No.87, which deals with the Freedom of Association and Protection of the Right to Organise (1948), and No.98, which deals with the Right to Organise and Collective Bargaining Convention (1949). They are among the eight core conventions considered fundamental to the rights of the working class. The value of these conventions was reaffirmed by the international community at the 1995 World Summit on Social Development in Copenhagen, in the 1998 ILO Declaration on Fundamental Principles and Rights at work and its follow-up, and in June 2008 when the ILO adopted the Declaration on Social Justice for a Fair Globalisation. India, which holds a non-elective seat on the ILO governing body, has ratified only four of the core conventions so far No. 29 (Forced labour) in 1954, No. 100 (Equal remuneration) in1958, No. 105 (Abolition of forced labour) in 2000, and No. 111 (Discrimination in employment and occupation) in 1960.

On March 9, Union Minister for Labour and Employment Mallikarjuna Kharge started a controversy when, in a written reply in the Rajya Sabha, he said that the government was not ratifying Conventions 87 and 98 because that would involve granting certain rights to government employees against statutory provisions the right to work, to criticise government policy openly, to accept financial contributions freely, and to join foreign organisations. He said that the guarantees provided by these conventions were by and large available to industrial workers in India through constitutional provisions, laws, regulations and practices. He added that government employees enjoy exceptionally high degree of job security flowing from Article 311 of our Constitution. Government employees also had a machinery for grievance redress under the joint consultative machinery and the administrative tribunal, he said.

Trade unions in the country, which have been repeatedly calling the government's attention to the need to ratify the two ILO conventions, did not share his view and reacted angrily to the statement. While the Hind Mazdoor Sabha (HMS) and the Bharatiya Mazdoor Sangh (BMS) responded with strongly worded statements, the office-bearers of the Centre of Indian Trade Unions concurred with them, commenting that the government's position was on expected lines.

Trade unions do not agree with the Minister's position that government employees have a high degree of job security and an effective mechanism for grievance redress. In a statement, the HMS pointed out that Convention 87 had been ratified by 150 countries and Convention 98 by 160 countries. Even Pakistan has ratified the two conventions. Every year, India cuts a sorry figure before the workers' forums of ILO and has received adverse criticism, the HMS said.

It said that the government had from time to time given assurances regarding the ratification of these conventions and recalled that the demand had been highlighted at a joint trade union march to Parliament organised by eight central trade union organisations on February 23. The union plans to begin a campaign in favour of these two conventions.

The BMS' national president, Saji Narayanan C.K., pointed out that India and the United States were mentioned in the Global Report of the ILO in 2010 as key countries that had a poor track record of ratifying conventions. Eighty-five years had passed since the passage of the Trade Union Act, and it was shameful that C87 and C98 had not been ratified, a BMS statement said. The government need not be shy of giving labour rights to government employees. It is not true as claimed by the Minister that rights guaranteed under the conventions are already given to workers in the country. The government has shown no respect for workers' rights when the country has witnessed a jobless growth, lakhs of workers have been ousted from employment, regular works are consistently being converted into contract labour, unorganised workers are even now not provided the benefit of the social security law, two lakh farmers have committed suicide, etc. Our labour laws are totally unsatisfactory as we have the issues of less coverage and poor implementation, said the BMS president in a press release.

Apart from the two conventions in question, he said, other core conventions not ratified by India were the Convention on Minimum Age and the Convention on Worst Forms of Child Labour. He recalled that when the Supreme Court had held in the Tamil Nadu strike case judgment that government employees had no fundamental, legal or equitable right to go on strike, the government had promised to look into the matter. He argued that if 159 countries could give legal recognition to workers' right to organise and strike work, India could also do so.

Swadesh Dev Roye, head of the international department of the CITU, said Kharge's stance echoed what a former Labour Secretary had written about some technical difficulties in ratifying the conventions: India has difficulties in ratifying some of the ILO Conventions concerning the freedom of association and collective bargaining. The guarantee provided for in Conventions 87 and 98 are by and large in conformity with the relevant provisions of the Indian Constitution, national laws and regulations. The rights guaranteed under these two conventions are also available to industrial and other workers through laws and practices. As for the other two core conventions not ratified by the government, the former official wrote that Convention 138 and Convention 182 would be considered when their provisions were fully incorporated into our national laws and regulations.

As early as June 1998, the 86th session of the International Labour Conference adopted The ILO Declaration on Fundamental Principles and Rights at Work and its follow-up where it was stated that proceedings could be initiated against governments even if they had not ratified Conventions 87 and 98. Indeed, membership of the ILO presupposes formal acceptance of the obligation of its Constitution, which proclaims the principle of freedom of association.

The rights conferred on workers by Convention 87 include the right to organise to further and defend their interests, to establish and join organisations of their own choice (restrictions are imposed on public authorities from interfering with such choices), and to establish and join federations and confederations that shall enjoy the same rights and guarantees. It also provides the right to affiliate with international organisations. Convention 98 confers on workers the right to organise and provides for non-interference by workers' and employers' organisations in each other's affairs. It promotes voluntary collective bargaining and protects workers against dismissal and other prejudice because of union membership or activity.

Trade unions feel that with employers increasingly becoming resistant to recognising trade unions and labour law enforcers conniving with them, labour laws are regularly violated and trade union busting is commonplace in the private sector. In this context, the non-ratification of the core conventions citing technical reasons or provisions in the Constitution cannot be acceptable, they say. A 2004 survey by the ILO on the extent to which workers had the right to collective bargaining showed that while in most European Union countries, the coverage was 80 per cent or even higher, in a few countries like Switzerland it was 37 per cent. It was 34 per cent in Canada, 20 per cent in Japan and 15 per cent in the U.S. In Asia, the figures were very low; it ranged from 2 per cent in India to 14 per cent in the Philippines.

In 2009, in Bangkok, the Asia-Pacific Conference on the Right to Form Unions and Right to Collective Bargaining: A Campaign for Ratification and Implementation of ILO Conventions 87 and 98 was held against the backdrop of the economic crisis to identify strategies and launch an aggressive campaign for the ratification of these conventions. The conference recognised that most of the governments in the region had not ratified either or both of these conventions and that trade unionists in Asia and the Pacific region continued to face threats, discrimination, persecution and even death. It recognised that the current economic crisis had brought newer challenges as millions of workers were being made redundant. The present crisis was also being used to deny trade union and collective bargaining rights, it said.

According to the review of annual reports of the ILO submitted to its general body, about 52 per cent of the total labour force of ILO member-states lived in four countries that had not yet ratified both these conventions (Brazil, China, India and the U.S.). This left many millions of workers without the protection offered by these two instruments in international law, even if the governments concerned considered their law and practice to be sufficient. The rate of ratification of these two conventions by the member-states is rather dismal. In fact, Convention 87 is the least ratified of all the eight fundamental conventions.

In August 2010, the Indian National Trade Union Congress, at a conference on the ratification of the ILO's core standards, passed a resolution, along with the other central trade unions, calling upon the government to ratify the two conventions. This was to ensure that the freedom of association and collective bargaining rights of all workers was protected under the law as well as in practice including rural and agricultural workers; workers in the construction, manufacturing and service sectors and small-scale industries; contract workers and workers in the informal economy; migrant workers; public employees; workers in special economic zones and workers in the information technology sector. The participants felt that the government was keenly considering ratifying all the core conventions. The government was asked to convene a tripartite committee on conventions and set time frames for their ratification of all the conventions that remained unratified.

The deadline for Conventions 87 and 98 is June 2012. With the latest statement from Kharge, it does not look likely that the deadline will be met.