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In context of the provisions governing a negotiating trade union set out in the Industrial Relations Code, 2020, SHARANYA VENKATARAGHAVAN examines this framework from a gender lens with recommendations to further collective bargaining on behalf of all workers. and not just the arithmetic majority.
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The Industrial Relations Code, 2020 introduces the concept of a "negotiating trade union". A negotiating trade union refers to a single trade union, chosen based on the qualifiers set out under Section 14 of the Industrial Relations Code, to undertake negotiations between the employer and workers, on prescribed matters. Defined in Section 2(z), "negotiating union or negotiating council", as the case may be, is further explained in Section 14, which discusses their aspects and conditions.
The 2019 draft Bill of the Industrial Relations Code set out that, if there were more than one registered trade union of workers functioning in an establishment, the trade union having more than 75% of the workers as members would be recognised as the sole negotiating union. The 2020 Bill, which was finally passed as the Code, lowered this threshold to 51% of the workers, that is, a simple majority. When there is only one trade union, it automatically becomes the negotiating trade union.
“Whereas, if no trade union can pass the requirement of 51%, a "negotiating council" is to be formed by the employer. The members of such "negotiating council" must be from those trade unions that have more than 20% of the workers.
The purpose of choosing a singular trade union as the "negotiating union" is to streamline and ensure clarity in the process of collective bargaining. A negotiating trade union solves the problem of conflict between various trade unions and makes clear who an employer should build a relationship with, regarding prescribed worker issues. It is a well-established principle of collective bargaining that the power of employees is in the numbers.
However, when viewed from a gender lens – the choice of a singular negotiating union could cause a silencing of minority issues.
When viewed from a gender lens, a singular negotiating trade union also runs the risk of not addressing any issues other than those of the recognised negotiating trade union. Considering that different trade unions may have different priorities depending on their members, the growth of industrial relations may be limited.
When specifically viewing negotiating trade unions from the perspective of gender, female participation in trade unions is rather low and women are often on the sidelines of collective bargaining. In collective bargaining, the operative principle is "majority rules" and a single negotiating trade union furthers this narrative.
A majority of the members of trade unions in India are male. While the Self-Employed Women's Association (SEWA), founded by activist Ela Bhatt in 1972, forms one of the largest trade unions for economically backward and unorganised women workers in India, their participation and prevalence in the organised sector is miniscule.
The Tamil Nadu Textile and Common Labourers Union (TTCU) forms one such documented woman-only trade union in Chennai. However, the likelihood that the majority members of negotiating trade unions will ever be female, is highly unlikely in the Indian scenario.
“By negotiating with a majority trade union alone, all other perspectives are shut out. This effectively means that given the minimal representation of women in trade unions, the low consideration for women's issues by male counterparts and the choice of a single negotiating trade union, the female perspective on issues that require collective bargaining are reduced to the background.
It is pertinent to this conversation that issues of women at the workplace so far, have almost solely been furthered by the legislature and judiciary. However, waiting for the identification of their issues by those who are not personally affected, to actually see any reform can be a long-drawn process.
As seen in the case of the law governing sexual harassment of women at the workplace, the Vishaka versus State of Rajasthan judgment was passed by the Supreme Court in 1997, introducing the Vishaka Guidelines. However, it took the legislature almost 15 years to pass the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
Further, such legislation often lacks the sensitivity, perspective and insight required from the ground-level. In the case of the Maternity Benefit Act, 1961, an amendment passed in 2017 added, inter alia, adoption leave of 12 weeks to a woman who legally adopts a child below the age of three months. However, this limitation of three months of age has been challenged by way of a public interest litigation before the Supreme Court.
Considering the time that the long-drawn process of adoption takes in India, adopting children under the age of 3 months is rare, and preventing adoptive mothers from getting the same benefits that biological mothers receive has been considered discriminatory. By excluding the true benefactors from the process of law and policy-making, such beneficial provisions fall short of its purpose, an issue that is furthered by negotiating trade unions.
Female labour participation rates in India post-pandemic have fallen to 16.1% due to the burden of unpaid care and domestic work which traditionally falls on women, making the work-from-home model more burdensome for them than their male counterparts.
Considering how the same system can work for men but against women, it is essential to have female voices in all levels of decision-making.
“The concept of a singular negotiating trade-union that is decided solely on the basis of percentage of membership, without introducing affirmative action benefiting the representation of different sections of workers, would only further dwindle the issue of female representation in the workforce.
Further, the discussion of gender at the workplace needs to move beyond the binary of "male" and "female" as organisations such as Tata Steel and the Kochi Metro, to name a few, are actively recruiting transgender persons to on-site positions.
The Industrial Relations Code has considered issues of gender representation, by necessitating adequately proportionate representation of women workers in the Grievance Redressal Committee. This is in line with the current requirements for constitution of a Grievance Redressal Committee under Section 9-C of the Industrial Disputes Act, 1947.
Similar affirmative action needs to be seen on the front of decision making and collective bargaining for the purpose of creating balanced workplaces that promote the needs of all its workers and not just the majority.
(Sharanya Venkataraghavan is a student at Symbiosis Law School, Pune with an interest in labour law and gender rights. The views expressed are personal.)
