Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 302, Marzo 1996

1. 297. In a communication of 30 December 1994, the All-India Trade Union Congress (AITUC) submitted a complaint of violations of freedom of association against the Government of India. It presented additional information in a communication dated 20 February 1995. The Centre of Indian Trade Unions (CITU) submitted allegations concerning this case in a communication dated 21 February 1995.
2. 298. The Government supplied its observations in a communication dated 12 December 1995.
3. 299. India has not ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), or the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

1. 300. In their communications of 30 December 1994 and 20 February 1995, respectively, the All-India Trade Union Congress (AITUC) and the Centre of Indian Trade Unions (CITU) state that the Government has promulgated new Rules of Recognition of Associations/Unions of Central Government Employees vide Department of Personnel and Training Notification No. 2/10/88 - JCA (Vol. IV) dated 5 November 1993 under article 309 and article 148(5) of the Constitution of India. Both the AITUC and the CITU allege that the new Recognition Rules (hereinafter the "Rules") will severely alter and undermine the rights and conditions of service of at least 1.5 million central government employees, including industrial workers in postal and telecommunications departments and are blatant violations of freedom of association principles.
2. 301. The complainants allege more specifically that the Rules have been promulgated arbitrarily without consulting federations/unions/associations as required under the provisions of the joint consultative machinery (JCM) and compulsory arbitration scheme (CAS). The JCM scheme envisages such consultation on matters affecting employees. In fact, the Rules were already under discussion in the JCM. Without waiting for the outcome of the deliberations in the JCM forum, the Government promulgated the new Rules unilaterally which is in violation of the JCM scheme.
3. 302. In addition, many provisions of the Rules themselves are in violation of freedom of association. For instance, under the terms of Rule 4, all unions/associations of central government employees which are legally recognized will cease to be recognized after a period of one-and-a-half years from the date of promulgation of the Rules, if they do not abide by the conditions laid down therein. The complainants contend that the conditions for the determination of the representative character of a union/association laid down in the Rules are highly unreasonable and unfair. These conditions, moreover, are open to abuse by the authorities. The complainants further point out that recognition is very important to unions/associations in the central government services inasmuch as collective bargaining and discussions in an official capacity are only allowed for recognized entities. In any event, since recognition once granted confers certain rights, privileges and benefits on the unions/associations, such recognition cannot be taken away arbitrarily from them without giving them an opportunity to be heard. As such, the recognition already granted to unions/associations should continue.
4. 303. Similarly, Rule 5(c) stipulates that membership of the service association is restricted to a distinct category of government servants having common interest. As per the above clause, neither a federation nor a composite union will be recognized. At present, most of the unions/associations consist of different categories/cadres/groups of employees in particular departments. In the complainants' view, this restriction contained in Rule 5(c) is being imposed with mala fide intent in order to break up the existing unions so that their collective bargaining strength is reduced. They point out that some of the unions/associations affected by this provision were formed in pre-independence days and have since then been composite and united. Since Rule 5(c) violates the fundamental right of employees to form organizations of their choice, it should be done away with and composite unions and federations should be allowed to continue.
5. 304. Furthermore, Rule 5(d) provides that a union/association which represents a minimum of 35 per cent of the total number of a category of employees may be recognized. However, the proviso to this rule further provides that where there is only one association which commands more than 35 per cent membership, another association with the second highest membership, although less than 35 per cent, may be recognized if it commands at least 15 per cent membership. Besides being discriminatory, this provision will lead to a proliferation of competing unions, so much so that five unions/associations can be formed in a single category of employees. The complainants assert that the idea behind this provision obviously is to disrupt the unity of workers and encourage disgruntled forces to form minority unions, thereby reducing the existing unions' collective bargaining strength. They contend that this provision needs to be strongly opposed because the proliferation of unions/associations is being sought to be institutionalized by law.
6. 305. The complainants state moreover that Rule 5(e) prohibits retired and former employees from becoming members or office-bearers of an association. Rule 5(g) stipulates that the executive of the service association be appointed from amongst the members only. They point out that the existing rules permit retired employees to become union members, executive committee members and office-bearers. Moreover, under the JCM scheme, retired employees can be members as well as office-bearers of the JCM councils. Industrial workers in postal and telecommunications departments have the right to elect even outsiders as members and office-bearers under the Trade Unions Act. The complainants assert that since the autonomy of a union or association can be guaranteed effectively only if their members have the right to elect office-bearers of their own choice, the authorities should therefore refrain from interfering with this right.
7. 306. In addition, clauses (g), (h), (i) and (j) of Rule 6 violate freedom of association by placing restrictions on the following trade union activities: the publication and distribution of news and information of general or special interest to members constitute legitimate trade union activities; any control on the publication of information meant for members is tantamount to censorship and interference in the internal affairs of a union; similarly, the right to express opinions through the press or otherwise is an integral part of trade union activity and no restriction should be imposed on this right; these provisions also restrict the right to correspond with international trade union bodies.
8. 307. Finally, Rule 7 stipulates that the verification by the Government of membership for the purpose of recognition of a service association shall be done by the check-off system in payrolls at such intervals and in such manner as the Government may by order prescribe. Thus, the employees are required to write to the designated authority to pay their membership dues to the particular union/association to which they belong. According to the procedure for this check-off system, the annual subscription will be collected in one month. The complainants explain that currently, most unions/associations have provision in their constitutions for monthly subscriptions and that collection of the same in one instalment annually will be difficult. Moreover, the complainants assert that through this "check-off" system which will be operated by officers, pressure may be exerted on workers to join a particular association pliable to the Government. This could be done in several informal ways and such informal pressure could be difficult to check. The verification of membership should therefore be carried out by secret ballot and by an independent and impartial body.
9. 308. The complainants conclude by stating that these new Rules of Recognition are designed to bring about unilateral change in the service conditions of employees by severely intruding in the rights of unions and creating conditions of fragmentation of otherwise united broad-based unions. Since these new Rules militate against the basic spirit of freedom of association principles, they should be withdrawn immediately.

B. The Government's reply

1. 309. In its communication of 12 December 1995, the Government explains first of all, that the Central Civil Services (Recognition of Service Associations) Rules, 1993, have been made under article 309 of the Constitution of India. The latter provision has special application to "persons appointed to public service and posts in connection with the Affairs of the Union or of any State", since such persons are on a different footing from industrial employees. The Government emphasizes that the Rules of 1993 apply to a large number of government employees who are public servants engaged in the administration of the State.
2. 310. As regards the specific allegation that the Recognition Rules were promulgated arbitrarily without consulting the unions/associations as required under the joint consultative machinery (JCM) and compulsory arbitration scheme (CAS), the Government states that it is not necessary for these Rules, which are framed by it, to be drawn up in consultation with, or concurrence of, the members of the JCM. However, bearing in mind the spirit of the JCM, the matter relating to the framing of the new Recognition Rules was discussed in the JCM National Council and a committee was also formed for this purpose. But even after a series of meetings, the employees expressed their inability to provide common draft rules for the Government's consideration. Nevertheless, the Government has had many discussions with representatives of the existing associations on various aspects of these Rules and is making every effort to ensure that they operate smoothly.
3. 311. The Government further states that it is incorrect to allege that recognition granted to existing associations will be withdrawn after a certain period of time. The Recognition Rules only seek to place certain reasonable restrictions and conditions which associations of government employees have to fulfil before being recognized by the Government. Just as a new association has to fulfil the conditions prescribed by the Rules in order to obtain recognition, existing associations also have to comply with these conditions to continue to enjoy recognition, with a view to ensuring uniformity. The existing associations/federations continue to be recognized in order to ensure a smooth transition. No service association has so far been derecognized.
4. 312. Similarly, Rule 5(c) has not been drawn up with a view to breaking up unions and federations. The fact is that the Rules seek to achieve the formation of associations of government employees of distinct categories so that there is homogeneity within the associations, and also to avoid situations of conflict of interest between two constituents of associations. This provision, which does not violate any freedom of association principles, is only meant to facilitate the smooth functioning of associations. Moreover, the Rules do not debar the formation of composite unions. In addition, the Government points out that the Recognition Rules provide for granting recognition to first-level associations and not to federations as the membership of a government servant is related only to first-level associations and not to federations. Thus, the question of recognizing a federation would arise only after the first-level associations which federate are recognized. Hence the guidelines for the recognition of federations will be issued, if need be, at the appropriate stage.
5. 313. The Government then refers to the allegation that Rule 5(d) is discriminatory in that it allows an association with less than 35 per cent membership to be recognized if it commands at least 15 per cent membership, in the eventuality that there is only one association which represents a minimum of 35 per cent of the total number of a category of employees. Rejecting the argument that the impugned Rule will lead to a proliferation of competing unions in a single category of employees, the Government indicates first of all that a minimum membership of 35 per cent has been laid down only to ensure that the recognized association is in a position to represent the interests of a substantial number of a given category of employees and to reduce inter-union rivalry. The intention is not to disrupt the unity of workers. Under these Rules, only two associations with the most members would be recognized. The aim of recognizing another association with the second highest percentage of membership (less than 35 per cent but more than 15 per cent) is only to ensure that a minority opinion is not suppressed.
6. 314. In respect of clauses (e) and (g) of Rule 5 which prohibit retired/former employees from becoming members or office-bearers of an association, the Government points out that the membership of associations is restricted to serving members and not to retired employees. The position was the same under the previous Rules. The reason is that service associations are formed to protect the interests of serving government employees in matters relating to conditions of service, welfare, etc. It follows that members and office-bearers of associations should be confined to serving government employees if only for ensuring effective negotiation. In order to ensure that serving government employees can discharge the function of office-bearer effectively, various facilities and concessions such as the granting of special casual leave and so on, have been extended to them by the Government.
7. 315. With regard to various clauses of Rule 6 which place restrictions on the publications of associations as well as on their right to correspond with international bodies, the Government responds that service associations are formed to promote the interests of serving government employees in matters pertaining to conditions of service, welfare, etc. The activities of the associations should not be such that they are not consonant with the aims and objectives for which such associations were formed. These provisions are included to ensure that the associations are functioning within the ambit of the Central Civil Service (Conduct) Rules.
8. 316. Finally, the Government points out that the decision to verify the membership of associations through the check-off system was taken after extensive deliberations. This system is already prevalent in the banking industry. It is incorrect to allege that through this system of verification, the Government will be able to influence the choice of workers in respect of a particular union. Deduction through payrolls is made only on the basis of the declaration given by each employee after verifying the employee's membership through the office-bearer of that association. Hence, the alleged apprehensions are unfounded. Moreover, as regards the collection of employees' subscriptions, the Government has already issued instructions modifying the periodicity of such deductions from an annual to a monthly basis.

C. The Committee's conclusions

1. 317. The Committee notes that the allegations in this case concern the unilateral and arbitrary promulgation by the Government of the Central Civil Services (Recognition of Service Associations) Rules of 1993 which would affect the conditions of service of at least 1.5 million central government employees. Moreover, the conditions laid down in the Rules for the determination of the representative character of an association for collective bargaining purposes are allegedly unreasonable and in violation of freedom of association.
2. 318. As regards the issue of consultation, the Committee notes the complainants' assertion that the above Rules were promulgated without sufficiently consulting the associations as required under the provisions of the joint consultative machinery (JCM) and compulsory arbitration scheme (CAS). The Government, on the other hand, insists that the elaboration of the new Recognition Rules was discussed in the JCM National Council and additionally, a Committee was set up for this purpose. However, the employees themselves failed to agree upon common draft rules for the Government's consideration despite a series of meetings. In view of the differing appreciations of events prior to the promulgation of the new Recognition Rules, the Committee would only recall the principle that it is essential that the introduction of draft legislation affecting collective bargaining or conditions of employment should be preceded by full and detailed consultations with the appropriate organizations of workers and employers (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 931).
3. 319. With regard to the allegation that recognition already granted to existing associations of central government employees will be withdrawn after a period of one-and-a-half years from the date of promulgation of the new Rules if these associations do not abide by the conditions set out therein, the Government responds that the Rules only seek to place certain reasonable restrictions and conditions which new associations, as well as previously existing ones, have to fulfil in order to obtain recognition. Moreover, no service association has so far been de-recognized. In the Committee's view, the question of whether this withdrawal of recognition is in line with freedom of association would depend very much on whether the conditions laid down in the new rules of recognition are themselves compatible with freedom of association principles. The Committee will determine this matter in the following paragraphs.
4. 320. The complainants allege that under Rule 5(c) which stipulates that membership is restricted to a distinct category of government servants having common interest, neither a federation nor a composite union will be recognized thus breaking up most existing unions which mainly consist of different categories of employees in order to reduce their collective bargaining strength. The Government, for its part, states that this provision aims to achieve homogeneity within associations and to avoid conflict of interest situations. Moreover, this provision does not debar the formation of composite unions or federations as these Rules set out the conditions for granting recognition to first-level associations only and not to federations. However, the Government acknowledges that guidelines for the recognition of federations might be issued at a later stage. The Committee would, at this point, remind the Government that federations and confederations should be able to conclude collective agreements (see Digest, op. cit., para. 783). The Committee further recalls that with regard to restrictions limiting all public servants to membership of unions confined to that category of workers, it is admissible for first-level organizations of public servants to be limited to that category of workers on condition that their organizations are not also restricted to employees of any particular ministry, department or service, and that the first-level organizations may freely join the federations and confederations of their own choosing (see Digest, op. cit., para. 285). Thus, the restriction on first-level organizations to limit their membership to government servants having common interest may be admissible, provided no such restriction is placed on the membership of higher-level organizations.
5. 321. As regards the allegation that Rule 5(d) (which allows a second association with less than 35 per cent membership to be recognized if it commands at least 15 per cent membership) will lead to a proliferation of competing unions in a single category of employees, the Government indicates that under this provision, only two associations with the most number of members would be recognized. Moreover, the aim of Rule 5(d) is not to disrupt the unity of workers but only to ensure that minority opinion is not suppressed. The Committee has stated on previous occasions that if there is no union covering more than 50 per cent of the workers in a unit, collective bargaining rights should nevertheless be granted to the unions in this unit, at least on behalf of their own members (see Digest, op. cit., para. 833). In this concrete case, collective bargaining rights are being granted to a second association in a given category of employees where the first association has a minimum membership of 35 per cent in the same category. Since Rule (d) allows for bargaining rights to be granted to another association if there is only one association covering 35 per cent of the employees, the Committee is of the view that this provision does not contravene freedom of association principles.
6. 322. In respect of clauses (e) and (g) of Rule 5 which prohibit retired and former employees from becoming members or office-bearers of an association, the Committee notes the Government's argument that since service associations are formed to protect the interests of serving government employees in matters relating to conditions of service, welfare and so on, it follows that members and office-bearers should be confined to serving government employees, if only for ensuring effective negotiation. In this respect, the Committee would first of all emphasize that retired and former employees should have the right to join organizations of their own choosing and thus, in this case, be members of service associations if they so wish. In any event, it should be left to the organizations themselves to make provision, in their constitutions or rules, as to what rights retired and former employees are entitled to. As regards the right to hold trade union office, the Committee would draw the Government's attention to the general principle that the right of workers' organizations to elect their own representatives freely is an indispensable condition for them to be able to act in full freedom and to promote effectively the interests of their members. For this right to be fully acknowledged, it is essential that the public authorities refrain from any intervention which might impair the exercise of this right, whether it be in determining conditions of eligibility of leaders or in the conduct of the elections themselves. More specifically, for the purpose of bringing legislation which restricts union office to persons actually employed in the occupation concerned into conformity with the principle of free election of representatives, it is necessary at least to make these provisions more flexible by admitting as candidates persons who have previously been employed in the occupation concerned and by exempting from the occupational requirement a reasonable proportion of the officers of an organization (see Digest, op. cit., paras. 353 and 371). The Committee would therefore request the Government to take steps to amend Rule 5(e) and (g) accordingly.
7. 323. With regard to various clauses of Rule 6 which allegedly place restrictions on trade union activities, the Committee notes in effect that Rule 6(g) stipulates that any amendment to the constitution or by-laws of an association "shall be made only with the prior approval of the Government". In this respect, the Committee has pointed out that amendments to the constitution of a trade union should be debated and adopted by the union members themselves. To guarantee the right of workers' organizations to draw up their constitutions and rules in full freedom, national legislation should only lay down formal requirements as regards trade union constitutions, and the constitutions and rules should not be subject to prior approval by the public authorities (see Digest, op. cit., paras. 342 and 333). The Committee would therefore request the Government to take steps to amend Rule 6(g) so that amendments to the constitution or by-laws of an association are not subject to prior government approval.
8. 324. Similarly, the Committee observes that an association "shall not start or publish any periodical, magazine or bulletin without the previous approval of the Government" (Rule 6(h)); "shall cease to publish any periodical, magazine or bulletin, if directed by the Government to do so, on the ground that the publication thereof is prejudicial to the interests of the central government, the government of any state or any government authority or to good relations between government servants and the Government or any government authority, or to good relations between the Government of India and the Government of a foreign State" (Rule 6(i)); and "shall not address any communication to, or enter into correspondence with, a foreign authority except through the Government which shall have the right to withhold it" (Rule 6(j)). The Committee has emphasized on previous occasions that the right to express opinions on all issues of general or special interest to trade unions and their members, without previous authorization through the press or otherwise, is one of the essential elements of the rights of occupational organizations. Moreover, the fear of the authorities of seeing a trade union newspaper serve political ends unrelated to trade union activities or which, at least, lie far outside their normal scope, is not a legitimate reason to refuse to allow such a newspaper to appear. Finally, the principle that national organizations of workers should have the right to affiliate with international organizations carries with it the right, for these organizations, to make contact with one another and, in particular, to exchange their trade union publications (see Digest, op. cit., paras. 153, 154, 160, 161 and 634). The Committee therefore calls on the Government to take steps to amend clauses (h), (i) and (j) of Rule 6 in line with the above-mentioned principles.
9. 325. Finally, the Committee notes that Rule 7 stipulates that the verification by the Government of membership for the purpose of recognition of a service association "shall be done by the check-off system in payrolls at such intervals and in such manner as the Government may by order prescribe". However, the Committee is of the view that pre-established, precise and objective criteria for the determination of the representativity of workers' and employers' organizations should exist in the legislation and such a determination should not be left to the discretion of governments (see Digest, op. cit., para. 315). The Committee believes that such a determination of ascertaining or verifying the representative character of trade unions can best be made when strong guarantees of secrecy and impartiality are offered. Thus, verification of the representative character of a union should a priori be carried out by an independent and impartial body. The Committee would therefore request the Government to take steps to amend Rule 7 accordingly.
10. 326. In a more general manner, the Committee observes that these new Recognition Rules regulate issues pertaining to service associations in too much detail. In this respect, the Committee would draw the Government's attention to the principle that legislation concerning workers' organizations should not undermine the rights of workers as defined by the principles of freedom of association. Overly detailed or restrictive legal provisions in this area may in practice hinder the creation and development of trade union organizations (see Digest, op. cit., para. 332).
11. 327. Coming back to the initial question of whether Rule 4 (which withdraws recognition granted to already existing associations of central government employees if these do not respect the conditions set out in the new Rules) is compatible with freedom of association or not, the Committee notes that while some of the conditions set out in the new Rules are in line with freedom of association principles, others are not as explained in the preceding paragraphs. The Committee is therefore bound to conclude that the withdrawal of such recognition from associations of central government employees is not in accordance with freedom of association in so far as the conditions laid down in the new Recognition Rules are themselves incompatible with freedom of association principles. The Committee takes due note of the Government's statement that recognition has not yet been withdrawn from any existing service association. It would request the Government to adhere strictly to this practice until such time as it takes the appropriate steps to amend the provisions of its new Recognition Rules which are incompatible with freedom of association principles.