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The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana

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The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana

Gurgaon was supposed to be the model city that would emerge on the outskirts of Delhi to provide all of India with an example of what the future of business and development in India should look like. The rapid growth and development of Gurgaon was initially praised and applauded as it seemed that Gurgaon was creating jobs, developing industry, and attracting significant foreign business investment from major companies like Citibank, Motorola, IBM, Oberoi, Trident and Westin.
However, the rapid rise and development of Gurgaon also created issues including inadequate sanitation services, lack of adequate water supply, and a lack of oversight to protect the interests of the poor migrant workers who were lured to Gurgaon by promises of jobs and economic opportunity. The development of the city has been described as “a private sector gone berserk because it was blindsided by greed, successive governments that abdicated responsibility, and apathy on part of the landed gentry.”
Due to the fact that the development of Gurgaon was largely left to the industrialists and private corporations, there has been minimal oversight or regulation of business and manufacturing practices. In fact, the All India Trade Union Congress claims that the significant foreign industrial investment was the result of an implicit agreement between investors and the government of Haryana that union activity would be suppressed.
This has led to an environment in which human rights violations are rampant and the government is complicit in allowing business and manufacturing to continue abusing workers.


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The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana

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  2. 2.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page2 
  3. 3.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page3  TABLE OF CONTENTS INTRODUCTION 7 OBJECTIVES AND METHODOLOGY 10 HISTORY OF UNIONS IN HARYANA 12 Increased Labour Disputes Over Unionization Viva Global: A Case Study of Extreme Actions to Break Unions Increased Workers Participation in Labour Disputes APPLICABLE LAWS WHICH PROTECT FREEDOM OF ASSOCIATION 19 International Labour Laws The Universal Declaration of Human Rights (UDHR) International Covenant on Economic, Social and Cultural Rights (ICESCR) International Covenant on Civil and Political Rights (ICCPR) INDIAN CONSTITUTION 22 NATIONAL LABOUR LAWS 24 The Trade Unions Act of 1926 Industrial Disputes Act, Schedule V, Unfair Labour Practices DYNAMICS OF MIGRANT LABOUR IN HARYANA 28 The Emergence of Migrant Labor in Gurgaon and Manesar
  4. 4.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page4  Why Migrant Workers are easily Exploited SPECIFIC LABOUR VIOLATIONS UNIONS FIGHT AGAINST 31 Minimum Wage Violations and Forced Overtime Wage Theft Illegal Termination of Workers Harassment and Physical Violence THE ROLE OF CONTRACT LABOUR IN PREVENTING UNIONS 42 The Rising Numbers of Contract Workers in Haryana Employer Advantages in Using Contract Workers How Employing Contract Workers Undermines Unionization Efforts MANAGEMENT PRACTICES TO PREVENT UNION FORMATION 52 Suppression of Union Activity within the Work Place Employer Strategies to Prevent Unionization Sham Unions Created by Management GOVERNMENT ACTIONS WHICH LIMIT FREEDOM OF ASSOCIATION 60 Government Failure to Register Trade Unions Registration Battle for Garment Allied Workers’ Union Abuse of Court Processes after Unions are Registered Collusion with Police to Suppress Unions
  5. 5.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page5  Failure of the Court Systems to Promote Justice DIFFERENCES IN UNIONS IN THE GARMENT AND AUTO INDUSTRY 72 Outcome of the Maruti Suzuki Strike Recognition Battle for Modelama Workers’ Union RECOMMENDATIONS 77 CONCLUSION 78
  6. 6.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page6  ACKNOWLEDGEMENT This report is the result of an internship partnership between Boyd School of Law, Las Vegas, Nevada in the USA and the Society for Labour and Development in India. The main researcher and author of the report is David Hales, a law student from Boyd. The research for this project was carried out by students from various law schools and students from the International Relations program at Jawaharlal Nehru University. All field research was conducted with the assistance of field workers from the Society for Labour and Development. The Boyd School of Law, in Las Vegas, Nevada, also provided support and assistance in creating this report. We extend our deepest gratitude to all those who contributed to this report and most importantly to the workers who face the brunt of these issues in Gurgaon every day.
  7. 7.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page7  INTRODUCTION urgaon was supposed to be the model city that would emerge on the outskirts of Delhi to provide all of India with an example of what the future of business and development in India should look like. The rapid growth and development of Gurgaon was initially praised and applauded as it seemed that Gurgaon was creating jobs, developing industry, and attracting significant foreign business investment from major companies like Citibank, Motorola, IBM, Oberoi, Trident and Westin.1 However, the rapid rise and development of Gurgaon also created issues including inadequate sanitation services, lack of adequate water supply, and a lack of oversight to protect the interests of the poor migrant workers who were lured to Gurgaon by promises of jobs and economic opportunity. The development of the city has been described as “a private sector gone berserk because it was blindsided by greed, successive governments that abdicated responsibility, and apathy on part of the landed gentry2.” Due to the fact that the development of Gurgaon was largely left to the industrialists and private corporations, there has been minimal oversight or regulation of business and manufacturing practices. In fact, the All India Trade Union Congress claims that the significant foreign industrial investment was the result of an implicit agreement between investors and the government of Haryana that union activity would be suppressed.3 This has led to an environment in which human rights violations are rampant and the government is complicit in allowing business and manufacturing to continue abusing workers. Despite corporate greed and the lack of appropriate government regulation of the city, many migrant laborers, who are no longer able to earn a                                                              1 http://www.hindustantimes.com/gurgaon/how-gurgaon-s-growth-story-turned- sour/article1-955404.aspx 2 http://forbesindia.com/article/real-issue/gurgaon-how-not-to-build-a-city/33444/1 3 http://forbesindia.com/article/special/haryana-the-state-of-discontent/26432/0 G
  8. 8.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page8  living farming in rural areas, came to Gurgaon in record numbers looking for work in the booming manufacturing sectors. The Industries and Commerce Department of the Government of Haryana described the rapid economic growth in Haryana and Gurgaon in 2011 as follows4: “With a splendid economic growth, one of the highest per capita income index, sound industrial infrastructure, strong manufacturing base, advanced agriculture sector and vibrant service sector, Haryana is among the highly economically developed and industrialized States of India. The State has its manufacturing stronghold particularly in sectors like automobile & auto components, light engineering goods, IT & ITES, textile & apparels and electrical & electronic goods.” The growth of these manufacturing industries in Haryana and Gurgaon is only possible due to the massive populations of migrant workers hoping to find a better life and economic security in Gurgaon, India’s model modern city. Unfortunately, upon arriving in Gurgaon, migrant laborers are faced with inhuman working conditions, terrible living conditions, and a work environment in which human rights violations are rampant while compensation is minimal. Many of these workers are barely able to survive and have no way to return to their villages, as they have spent all of their savings and often times taken on extreme debts to come to Gurgaon and look for work. Given the huge population of migrant workers who are easy to exploit, it is critical that such workers are able to unionize to effectively advocate for their rights. Unfortunately, the impressive mega shopping malls and modern office building complexes distract attention away from the enormous population of poor migrant workers whose exploitation fuels the rapid industrial growth in Gurgaon and their struggles to unionize and fight for a                                                              4 http://hsiidc.org/eDocuments/IP2011.pdf
  9. 9.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page9  decent work environment and livable wages. The struggle and fight for workers’ rights including freedom of association and the right to form unions is of critical importance at this time, as emerging industrial norms in Haryana will like remain in place and be followed by other industries across India. As such, it is essential that the fight for unions is fought and won in Haryana so that workers can collectively bargain to protect their rights and work with dignity and earn a livable wage.
  10. 10. OBJECTIVES AND METHODOLOGY he research in this report was compiled by the Society for Labour and Development, based in New Delhi. The research for this project was carried out by students from various law schools and students from the International Relations program at Jawaharlal Nehru University. All field research was conducted with the assistance of field workers from the Society for Labour and Development. The Boyd School of Law, in Las Vegas, Nevada, also provided support and assistance in creating this report. Field research was carried out through interviews with government officials, workers, union representatives, and legal advocates. Specifically, Ramesh Kumar Ahuja, Assistant Labour Commissioner of Circle 4, Gurgaon, Haryana, was interviewed regarding opposition to union activity, the conciliation and court case process, and contract labour issues. Retu Singh, the union representative for the Garment Allied Workers Union (GAWU) was interviewed regarding labour violations at Modelama, issues registering unions, and management practices to limit unionization. Additionally, Parimal Sudhakar, an activist for the rights of migrant workers, was interviewed regarding abuse of migrant workers, obstacles to union registration and issues with the government offices responsible for union registration. Rakhi Sehgal, Vice President of the Hero Honda Ltd. Union, was also interviewed regarding union issues in the auto industry. Similarly, G K Walia, a former union representative for the Maruti Union and worker at the Maruti manufacturing facilities, provided insight into how the companies dismantle existing unions and abuse workers. Ashim Roy, a leader with the New Trade Union Initiative, was also interviewed regarding labor violations at the macro level and the spoke on the importance of unions as it relates to fundamental human rights. Jalal Uddin Ansari, from the Society for Labour and Development, provided information regarding labour rights violations in various companies that manufacture garments. T
  11. 11.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page11  Monu Kuhad, an attorney who successfully fought for and registered a trade union, was interviewed regarding his legal struggles and battle to successfully register a trade union. Gunjan Singh, a lawyer engaged in litigation of cases and the conciliation process highlighted issues faced by workers who bring cases in the legal system, barriers to litigating cases within the legal system, and tactics companies use to evade legal liability for their actions. Lastly, countless workers from the auto and garment industries were interviewed regarding human rights violations, workplace conditions, and the struggles to form unions and collectively bargain with management. The objective of this report is to document the obstacles that workers face as they attempt to organise and form unions. This report also seeks to expose how dysfunctional government offices and practices prevent union registration. Additionally, this report is provided with the hope that through exposure of such anti-union practices in Haryana, policies and procedures will be changed to allow workers to form unions that are effectively registered by the government and recognized by employers. Lastly, this report provides recommendations that will allow workers to effectively organize and register unions. ***
  12. 12.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page12  HISTORY OF UNIONS IN HARYANA Increased Labour Disputes over Unionization In recent years organized labor disputes and worker led protests against the inhuman working conditions at factories in Gurgaon and Manesar have been steadily increasing, and in many cases the primary objective of such protests is to ensure that workers have the right to form a union. Labor protests are increasing in frequency and regularity in the Gurgaon to Manesar industrial belt, with up to 60-70 organized labor disputes, strikes, and peaceful protests a month.5 In many of these protests the issue of collective bargaining and right of workers to form a union is the source of such collective protest. J. John, executive director of Centre for Education and Communication and editor of Labour File a bimonthly journal on worker issues, explained that “in many cases, there is no demand for even a wage rise; just to form a union” and he clarified that much of the industrial strife is the result of companies suppressing workers’ constitutional right to freedom of association and collective bargaining. Satbir Singh, leader of Centre for Indian Trade Unions, explained that of the 10,000 manufacturing companies in Haryana's industrial belt, which includes Gurgaon and Manesar, only 100 allowed trade unions and freely let workers collectively bargain with management. At all other factories workers must fight for their right to collectively                                                              5 http://kafila.org/2014/12/03/days-and-nights-in-manesar-reflecting-on-the-asti-workers- struggle-anshita-arya/ much of the industrial strife is the result of companies suppressing workers’ constitutional right to freedom of association and collective bargaining 
  13. 13.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page13  bargain with management and fight to form and register trade unions. There are numerous examples of significant industrial disputes that are directly attributable to companies denying the workers the right to organize unions and collectively bargain with management. From April to November 2009, there were four labor disputes that arose specifically because workers were denied the right to form and register unions. For example, in April 2009, Musashi Auto Parts management suspended several leaders fighting for union recognition and collective bargaining, and in response 250 workers showed support for the union during a peaceful protest march where they were attacked and arrested by the police. Another example of worker protests over the right to from unions occurred in September 2009, when workers at Rico Auto Limited demanded a recognized and registered trade union, which prompted massive terminations and suspensions of workers, and led to 5,000 workers protesting outside of the factory gates. Similarly, at Graziano Trasmissioni India, a long dispute about union recognition, which was backed by the support of several trade unions in the industry, led to suspension and lock out of workers which prompted labour protests which escalated and eventually caused the death of a manager. During an interview, Ramesh Kumar Ahuja, Assistant Labour Commissioner of Circle 4, Gurgaon, Haryana, explained that such incidents are not unusual due to the fact that companies will take any action required and take extreme measures to fight against unionization, especially during the earliest stages of unionization.
  14. 14.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page14  Viva Global: A Case Study of Extreme Actions to Break Unions A labour dispute at Viva Global, a major supplier of manufactured garments for export with clients including Marks & Spencer, illustrates the extreme actions that employers are willing to take to ensure that unionization does not take place. Due to worker attempts to form a union at Viva Global with the help of GAWU, management illegally locked out 102 workers associated with union organization activities on 23rd August 2010. Then workers approached Labor department on the same day protesting such illegal lock out, there before the Conciliation officer it was mutually agreed that all the workers would be reinstated unconditionally and can resume their duty from 25th Aug (as 24th August was a holiday). When on 25th Aug workers went to the company, they were assaulted by the hired goons and a worker named Anwar Ansari was kidnapped. GAWU president Anannya Bhattacharjee along with other union members sat on a hunger strike demanding strict action against such illegal practices of the management and early recovery of the kidnapped worker. It was only after 14 hours of hunger strike that the kidnapped worker was found. The protest continued against the illegal lockout for several days before the company gate with workers demanding reinstatement into the work. In the meanwhile GAWU sent representation to various officials of Labor department including Deputy Labor
  15. 15.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page15  from 1991 to 2010 the number of registered factories doubled from 5,652 to 10,474 and at the same time only 400 new trade unions were registered  Commissioner, but no concrete action was taken, thus workers were forced to approach High court on 20th Sep 2010. The illegal lock out caused the workers to organize a peaceful protest outside of the factory gates. During the protest Viva Global hired goons to attack and beat the protesting workers with clubs, canes, and sticks. During the attack women were also targeted having their clothes torn off and being physically assaulted. During the attack Anwar Ansari was abducted and held for 14 hours, he was blindfolded, tied to a chair, and violently beaten. He was later released after his life was threatened, and he was told if he was not on a train to Bihar the next day he would be killed and have his limbs torn off. A police report was filed, and following the kidnapping Viva Global offered a settlement to Mr. Ansari for the traumatic nature of the events and his injuries. This labor dispute attracted significant media attention and caused Marks & Spencer to cancel all production contracts with Viva Global, although publicly Marks & Spencer claims the labor dispute had nothing to do with termination of the contracts. Following the labour unrest, numerous employees involved in unionization efforts were illegally terminated, in violations of Schedule V of the Industrial Disputes Act. Legal cases were filed in Labour Court on behalf of the workers and 42 of them were reinstated, but such reinstatement was done only after GAWU filed a Writ Petition in the High Court of Punjab and
  16. 16.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page16  Haryana. In this Writ Petition, the inaction on the part of Labor Department and Labor Court (Industrial Tribunal) was highlighted, which the High Court considered, and ordered the matter to be settled in a time bound manner. After these workers were reinstated, they were again terminated from the services of the company in contravention of the settlement done at the directions of High Court. Failure by the employer to live up to the settlement agreement is illegal and an unfair labour practice under Schedule V of the Industrial Disputes Act. Consequently, the workers filed another Writ Petition in High Court of Punjab and Haryana against the illegal lockout by the company. In the meanwhile company closed down and the case is presently pending before the High Court. While the cases were pending and workers were reinstated, the union workers were subjected to harassment, physical violence, and intimidation at the hands of the company. In one incident the factory gates were locked and a manager gave a female guard a knife and stick which she used to threaten people and beat workers, who could not leave the factory. When the workers went to file a police report they discovered that Viva Global management filed a police report three hours before the incident claiming that employees had assaulted a female security guard. Following this incident the workers were continually harassed and beaten by guards upon their return, and female employees were denied use of the bathroom and there was one incident where a man spied on women in the toilet with an intention to scare them and threaten rape and sexual assault. The labor dispute at Viva Global illustrates the extreme lengths to which companies will go to ensure that workers are afraid to be involved in unions and collective labor disputes, and all practices by the company are unfair labour practices under Schedule V of the Industrial Disputes Act. Such tactics have clearly been effective in undermining unionization efforts, as when the rate of unionization that has occurred in Harayana is compared to the growth of manufacturing facilities,
  17. 17.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page17  there is a clear disparity. For example, according to the State Labour Department, from 1991 to 2010 the number of registered factories doubled from 5,652 to 10,474 and at the same time only 400 new trade unions were registered, with a total of 1,540 trade unions registered in Harayana in 2010. At the same time, industrial factories have been growing at an extremely fast pace and union registration has stagnated, which has led to a sharp increase in major collective industrial disputes and worker protests. As free market economics became liberalized in Harayana and worker abuses became more rampant, in 2008 the number of industrial unrest incidents began to surge with increased numbers of disputes and the highest levels of worker participation in such disputes. For example, according to the Labor Bureau, in 2007 there were 389 major industrial disputes which involved 724,574 workers but by 2008 there were 421 major industrial disputes which involved 1,579,298 workers. The message to management was clear; workers were willing to show solidarity in protesting the work conditions in factories. Increased Worker Participation in Labour Disputes From 2007 to 2008 the number of incidents increased significantly, but more importantly, the number of workers participating in the protests doubled, and in many instances contract workers joined permanent workers in the protests. For example, in the major Maruti Suzuki strike in 2011, an overwhelming majority of permanent employees joined the strike, but more importantly around 1,200 of the 2,400 contracted employees also joined the strike. Emboldened by the solidarity of the workers in the Maruti Suzuki strike, many other auto manufacturing workers decided to take collective action in their own factories and protest working conditions. Such figures show that as of 2008, workers began to become increasingly involved in joining collective protests, and showed strong solidarity and support in collectively pressuring employers to change working conditions. With such increased
  18. 18.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page18  worker participation in labour disputes, it is no surprise that in 2008 almost one third of all labour disputes were primarily about the right to form unions or have unions recognized by management. Additionally, such official statistics from the Labour Bureau do not account for labour disputes where unionization was a secondary issue, yet still important to workers. Clearly, working conditions in Haryana have gotten so terrible that workers are ready to unite, collectively protest, and join unions to eliminate labour violations and inhumane management practices. Right now, the industrial belt from Manesar to Gurgaon is ready and willing to take up the fight for unionization and freedom of association. ***
  19. 19.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page19  APPLICABLE LAWS WHICH PROTECT FREEDOM OF ASSOCIATION INTERNATIONAL LABOUR LAWS These international human rights declarations are intended to provide a minimal level of protection for all citizens to ensure that they can live in decency and with dignity. These protections are intended to be standard and universal human rights which all human beings are endowed with. It important to acknowledge that these universal human rights frameworks seek to establish only a minimum level of human rights which no country should be able to take from their citizens, however, it is recommended that all countries adopt these standards in addition to other laws and procedural safeguards to ensure these rights are protected and not violated. Other international human rights frameworks similarly seek to establish and protect the most basic and fundamental of human rights which are necessary for people to live in dignity and free from oppression. It is worth noting that in all of the various international human rights frameworks the right to form unions and associations is recognized as an essential element of a functioning society. The Universal Declaration of Human Rights (UDHR) The United Nations is an international organization comprising 52 member-states, which promotes human rights, among other objectives. In 1948, the UN adopted the Universal Declaration of Human Rights (UDHR) into the UN charter, which is binding on all member states, including India. The UDHR outlines inherent fundamental human rights for the international community. India, a UN member state, is obligated to adhere to the UDHR. The UDHR provisions that address this report’s issues are:
  20. 20.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page20  Article 20: Everyone has the freedom to peaceful assembly and association…No one may be compelled to belong to an association. Article 23: Everyone has the right to work…Everyone has the right to equal pay for equal work…Everyone has the right to human dignity…Everyone has the right to form and join trade unions. Article 24: Everyone has the right to reasonable working hours, holidays with pay. Article 25: Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, and housing and medical care and necessary social services, and the right to security if unemployment occurs, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. International Covenant on Economic, Social and Cultural Rights (ICESCR) The UN created the International Covenant on Economic, Social, and Cultural Rights treaty (ICESCR). The ICESCR provisions ensure that fundamental human rights are secured, such as labour rights. In 1979, India ratified the ICESCR, which obligates India to adhere to the ICESCR. The ICESCR provisions relevant to attacks on the freedom of association include: Article 6: right to [decent] work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will...safeguard this right… Article 7: right of everyone to the enjoyment of just and favorable conditions of work, with livable wages, equal pay for
  21. 21.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page21  equal work, equal promotional opportunities solely based on seniority and competence...Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, and paid public holidays Article 8: The right of everyone to form trade union, join the trade union of his choice, and the right to strike International Covenant on Civil and Political Rights (ICCPR) International Covenant on Civil and Political Rights (ICCPR) uses civil, social, cultural, and political assurances to achieve the goals of the UDHR. In 1979, India ratified the ICCPR, which obligates India to adhere to the ICCPR. The ICCPR provisions relevant to attacks on freedom of association include: Article 14: Everyone has a right to access the justice system. Article 16: Everyone has the right to be recognized as a person before the law. Article 22: Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests. No restrictions may be placed on the exercise of this right. ***
  22. 22.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page22  INDIAN CONSTITUTION he Indian Constitution provides the Indian government a framework to create laws. The Constitution has divided the legislative branch into three sections, or lists: Union List, State List, and Concurrent List. Each of these lists contain subjects that grant the central government, state government, or both the central and state governments the power to make laws regarding that subject. Labour is on the Concurrent List which gives the state and the central government the power to create laws regarding this topic. Additionally, the Indian Constitution is the highest legal authority in India; however, a portion of the Constitution has no legal effect: the state directive principles. However, if the state enacts the directive principle, the law takes effect. Because Haryana has enacted the following Constitutional provisions, they are legally enforceable. Article 14: Promise to treat all citizens equally under the law. Article 16: Equal opportunities for employment for all citizens. Article 19: Everyone has an enforceable right to freedom of speech and expression, peaceful assembly, and the right to form associations or unions. It is critical that the right to freedom of association, and right to assemble are provisions that fall under the fundamental rights provisions of the Indian constitution. As such, these rights are considered amongst the most basic and essential of human rights necessary to ensure human dignity and a properly functioning democracy in India. The constitution of India specifically provides that it is necessary and essential that citizens have the right to assemble and join unions or form associations. It is worth noting that such rights can only be infringed “in the interests of the sovereignty and integrity of India or public order or morality” and T
  23. 23.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page23  any restrictions for such purposes must be reasonable.6 Given that the right to form unions and associations is one of the fundamental rights guaranteed by the Indian Constitution, it is clear that such rights are fundamental and amongst the most important of democratic ideals necessary for the freedom and improvement of all of Indian society. ***                                                              6 See Indian Constitution Article 19, Section 4.
  24. 24.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page24  NATIONAL LABOUR LAWS The Trade Unions Act of 1926 The Government of India has passed The Trade Unions Act of 1926 which specifically provides for the right of unions to be registered and outlines procedures for registering trade unions. Under the Act, any seven or more members of a trade union may submit an application for registration of their trade union by signing their names and submitting the formal application to the appropriate government offices. To register a trade union any worker wishing to submit their name in support of the application must submit their name, occupation, and signature on the application. Additionally an application to register a union is not invalid merely because an individual who subscribed their name to the application has left the union. The act specifically provides that: Where an application has been made under sub-section (1) for the registration of a Trade Union, such application shall not be deemed to have become invalid merely by reason of the fact that, at any time after the date of the application, but before the registration of the Trade Union, some of the applicants, but not exceeding half of the total number of persons who made the application, have ceased to be members of the Trade Union or have given notice in writing to the Registrar dissociating themselves from the application. Lastly, under the 2001 Amendments to the Act, registration and maintenance of the union requires 10 percent of the workforce or 100 workers, whichever is less, be engaged or employed in the establishment or industry associated with the union. The 2001 Amendments also require that at least one-half of the office-bearers within the registered union are persons actually engaged or employed in the establishment or industry associated with the union.
  25. 25.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page25  Registration of trade unions is essential because it provides legitimacy to the unions and under the Trade Unions Act of 1926, registered unions benefit from special protections under the law. Specifically, the act generally shields union members and office bearers from criminal conspiracy charges during labour disputes.7 Additionally, the act provides legal protections including civil immunity for union office bearers or members and their activities which are undertaken on behalf of the union.8Furthermore, under the Industrial Disputes Act of 1947, during an industrial dispute an employer is prohibited from altering the conditions of employment for the protected workman in any prejudicial manner and the employer is prohibited from discharging, punishing, or suspending the protected workman. However, such protections extend only to “protected workmen” who are defined as members of the executive or other office bearers of a registered trade union connected with the establishment, and only one percent of the members of the union can be recognized as protected workmen, with up to a maximum of 100 protected workmen. These are the minimal legal protections that are offered to unions upon successful registration, and it is important to observe that simply because a union is registered does not mean that the management of a factory must recognize that union. Similarly, it is possible for management to recognize a workers union despite the fact that the union is not registered and does not have the special legal protections afforded to                                                              7 See Trade Unions Act of 1926, Chapter III, Section 17 8 See Trade Unions Act of 1926, Chapter III, Section 18 registration of trade unions is essential because it provides legitimacy to the unions and under the Trade Unions Act of 1926, registered unions benefit from special protections under the law  
  26. 26.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page26  registered trade unions. Lastly, under Schedule V of the Industrial Disputes Act, it is an unfair labour practice for employers to refuse to collectively bargain with registered trade unions that have been recognized and legitimized by the Indian government. Consequently, it is best for unions to be both registered, which offers legitimacy and protections, in addition to recognized by management, which provides actual and meaningful opportunities for collective bargaining. Industrial Disputes Act, Schedule V, Unfair Labour Practices Under Schedule V of the Industrial Disputes Act, unfair labour practices are defined and employers are prohibited from engaging in such abusive labour practices against unions and union employees. Specifically, under Schedule V, it is illegal for employers “To interfere with, restrain from, or coerce, workmen in the exercise of, their right to organise, form, join or assist a trade union or to engage in concerted activities for the purposes of collective bargaining.” Schedule V of the Act defines unfair labour practices as any acts by employers such as threatening workers with termination if they join unions, threatening lock-outs if unions are formed, or granting a pay increase to workers to undermine unionization efforts. Additionally, employers are prohibited from discouraging workers from forming or joining trade unions by discharging or punishing workers who advocate for or help form unions, discharging or dismissing workers for taking part in labour protests including strikes, changing seniority of workers for joining unions, refusing to promote union workers, or discharging union office members. Schedule V of the Industrial Disputes Act also strictly prohibits discharging workers under false pretenses or in bad faith, including wrongfully implicating workers in criminal cases. Furthermore, under Schedule V, employers are prohibited from using contract labour to undermine permanent employee job security or labour unrest. In addition, the following acts are defined as unfair labour practices:
  27. 27.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page27  transferring workers as punishment, depriving workers of the benefits of permanent employment, and engaging in acts of violence or force against union members. Lastly, employers are prohibited from refusing to collectively bargain with recognized trade unions, and they must abide by and implement any settlements and agreements that are the product of collective bargaining. The unfair labour practices specifically identified and outlined in Schedule V of the Industrial Disputes Act are intended to protect unions and union employees from abuse and retaliation at the hands of employers. ***
  28. 28.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page28  DYNAMICS OF MIGRANT LABOUR IN HARYANA The Emergence of Migrant Labor in Gurgaon and Manesar The emergent economic growth in the industrial and manufacturing sectors of Gurgaon and Manesar has only been made possible due to the huge numbers of easily exploitable migrant workers that come from across India. In 2010 to 2011 the per capita GDP of Haryana was Rs 59,188 which is significantly higher than the most other states in India. In contrast, during the same fiscal year Bihar had the lowest per capita GDP of Rs 13,303 and Uttar Pradesh had the second lowest per capita GDP of Rs 17,418. Such a huge disparity in economic opportunity has fueled massive migration from those regions into Gurgaon and Manesar. Many of the migrant workers formerly worked in agriculture in rural villages, have minimal literacy, and have no social supports upon moving to the industrial belts. Additionally, with such huge numbers of migrant workers willing to work for less than minimum wages and accept substandard working conditions, manufacturing facilities have been guaranteed a steady supply of cheap and easily exploitable workers. The huge growth in manufacturing profits has been largely fueled by the cheap and easily exploitable migrant workers who have no choice but to accept whatever working conditions and wages an employer will provide. Why Migrant Workers are Easily Exploited Lured to Gurgaon by promises that it is the new modern industrial city in India with good paying jobs and endless economic opportunity, many migrant worker have spent all of their savings and even taken on debt in an effort to migrate to the Haryana industrial belt. Lured to Gurgaon by promises that it is the new modern industrial city in India with good paying jobs and endless economic opportunity, many migrant worker have spent all of their
  29. 29.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page29  savings and even taken on debt in an effort to migrate to the Haryana industrial belt. The poorest and least skilled of the migrant workforce find employment in the garment manufacturing sector in which they produce garments for export being paid wages that are low enough to compete with wages in other garment producing countries like Bangladesh and Vietnam. Those with more skill or literacy will take jobs in the auto manufacturing sector in dangerous factories in which industrial injuries are common and concern for the safety of workers is ignored. Many employment recruiters will travel to villages and promise good paying jobs in addition to short term loans to pay for the cost of traveling and initial living expense when the workers get to Gurgaon. These workers arrive with significant debt obligations and find that the promise of higher wages was not realistic and they are worse off than when they lived in their villages, due to the debts they now must repay. Similarly, labor recruiters and labor contractors prefer to select migrant workers without local roots or social support networks to undermine the ability of such employees to participate in labor disputes. Interviews with workers revealed that many migrants find themselves in exploitive housing contracts paying extremely high rates for housing which is unsanitary and lacks proper access to clean water and electricity. Interviews with workers also revealed that some workers are forced by the employers to stay in company housing which also exhibits the same unacceptable living conditions and comes at an unreasonably high rates. In such the huge growth in manufacturing profits has been largely fueled by the cheap and easily exploitable migrant workers who have no choice but to accept whatever working conditions and wages an employer will provide 
  30. 30.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page30  company housing communities, provisions and food must be purchased at unreasonably high prices from company run provision shops. Due to such tactics by employers, labor recruiters, and landlords, migrant workers are in an extremely vulnerable position and barely have enough money to survive, which ensures that they cannot afford to participate in labour disputes and will accept whatever wages they are given. The massive growth of the manufacturing sectors is dependent on this vast pool of cheap migrant labour to continue to post record growth and profits. ***
  31. 31.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page31  SPECIFIC LABOUR VIOLATIONS UNIONS FIGHT AGAINST nions are critical in helping workers to fight against the rampant labour rights violations that take place every day in manufacturing facilities across Gurgaon and Manesar. These violations include wage theft, illegal termination, minimum wage violations, harassment and physical violence in the workplace, forced overtime or unfair denial of overtime, and failure to pay into employee Provident Fund and Employee State Insurance (ESI) accounts. All of these practices are intended to ensure that workers are economically vulnerable, fearful of losing their jobs, and have no means to support themselves in the event that they are terminated. These practices ensure that workers will not be involved in unions or try to form unions due to the precarious nature of their employment and their precarious economic condition. Unionization of such workforces is critical to ensure that these workers can collectively bring their grievances to management without fear of losing their jobs and their economic security. Additionally, companies are fearful of unionization because they know that if workers unite they will not be able to exploit the vulnerable workers they rely on to create such huge profits. Minimum Wage Violations and Forced Overtime In many cases, employers violate the Minimum Wages Act by failing to pay employees the required minimum wage, forcing employees to work overtime without any compensation, or paying normal wages for overtime hours worked. At Pearl Global, a major garment exporter for NEXT and GAP, the company was found on numerous occasions to be in violation of minimum wage laws and forcing employees to work excessive overtime without proper compensation. An investigation by the Asia Floor Wage Alliance, found that many workers were not being provided the minimum wage as required by U
  32. 32.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page32  law, and virtually all workers were not adequately compensated for the forced overtime they are required to work. Segar, a worker at Pearl Global explained that in one month he was required to work 150 hours of overtime, and he explained, “I like the work but don't like the excessive overtime. But we are told if you don't want to work overtime you don't work here." Similar violations exist in the auto manufacturing industry. At Rico, an auto manufacturing company, one worker explained that employees are forced to work on their days off and overtime is compulsory without proper compensation, and while minimum wage compensation should provide most workers with at least Rs 5,500 a month, many workers are only paid Rs 4,200 a month. Similarly, Ashok Kumar Singh, an employee with Modelama, showed evidence that he was paid Rs 5,097 a month even after working forced overtime, despite the fact that the legal minimum rate for his job was Rs 5,300. In addition to failing to pay minimum wages or overtime, employers also fail to provide Provident Fund and ESI contributions as required. Cases of employers failing to pay Provident Fund and ESI contributions have been documented at Maruti Suzuki, Neolite, Modelama, Viva Global, and countless other companies. By failing to pay minimum wages and forcing workers to work outrageous overtime hours without compensation, employers are able to maximize production while minimizing costs. Additionally, such practices ensure that workers will not have enough time or money to be involved in union activities or labour protests, and failure to pay minimum wage and forced overtime are a significant source of wage theft that companies engage in. Wage Theft Wage theft is rampant within the manufacturing facilities in Gurgaon and Manesar due to the fact that many migrant workers are unable to oppose such actions and have no choice but to accept whatever payment or compensation employers are willing to provide. Many employees interviewed reported that employers will delay payment
  33. 33.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page33  of wages until some workers are owed almost an entire month of back wages and have very little money to survive on. Such practices place workers in a precarious financial position as they are not being paid in time to pay off creditors and meet all financial obligations. Additionally, when a worker is terminated many employers refuse to pay remaining wages which are due. Workers reported that this type of wage theft is common and that workers will not get involved in industrial disputes out of fear they might be terminated without a full month of wages being paid. One auto worker interviewed explained that his boss continually paid him only partial wages promising that balance of wages due would be paid in full at a later time, which continued until almost three months of back wages were owed. When the worker protested and requested payment of his wages he was illegally terminated and received none of the wages that were owed. Late payment of wages is a tactic that employers use to ensure that workers will continue to be productive and not create problems in the workplace, as many of the workers are counting on the payment of the accumulated back wages they are owed to survive and fear losing those accumulated wages if they protest working conditions and are illegally terminated. A similar form of wage theft occurs when employees are terminated and not paid their bonuses. A female garment worker for Modelama explained that after three years of working for the company she was terminated and the company refused to pay her the bonus which she was entitled to. Numerous interviews with workers in both the garment and auto industry revealed that similar wage theft also late payment of wages is a tactic that employers use to ensure that workers will continue to be productive and not create problems in the workplace 
  34. 34.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page34  happens when employers falsely claim to have paid into the workers’ Provident Fund or ESI when in reality no such contributions have been made. These tactics ensure that workers will not bring labour disputes against the company because they do not have sufficient funds and will be unable to survive without continued income from their job. Furthermore, such economically vulnerable employees are extremely reluctant to be involved in union activity for fear of losing their job. As one employee explained, “it is only after you have been fired and they have taken your wages that you will go to the union and ask for help, because only then you have nothing else to fear the worst has already happened.” Wage theft is even more rampant in the case of contract workers. The use of contract workers has proven to be a lucrative way for labour contractors to engage in wage theft. Based on required government documentation forms filed by various labour contractors in Haryana, the most conservative estimate of wage theft by one contractor was Rs 8,309,478 based on documents submitted for wages paid from January 2010 to June 2011. Similarly, the estimated wage theft by another labour contractor for the same period ranges from Rs 7,419,482 to Rs 18, 205,807. Based on even the most conservative estimates for wage theft by labour contractors, the practices is lucrative and involves substantial sums of money. Such wage theft is only possible because many migrant and contract workers do not receive pay slips as is required by law and therefore have no way to prove that the wage theft has occurred. Retu Singh explained that the contractors will either keep the wages for themselves or they will inform the principal employer they have been able to cut costs of production without explaining how. Such tactics are used by labour contractors to obtain higher bonuses and promotions from the principal employer. Unfortunately, contract workers are reluctant to object to such practices or go to unions for help because they lack job security and need to continue to make money to support their families. A contract worker in the auto
  35. 35.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page35  industry in Manesar explained that “contract workers know that the contractor can just go find ten other workers ready to do your job, which mean you have to be worried about making sure they want you to keep working next week.” Due to the situation of contract workers in Manesar and Gurgaon, they are unable to form unions or oppose the rampant wage theft that they endure, as the costs are too high and the employees are barely able to live off the minimal wages they are actually paid. Illegal Termination of Workers Employers, managers, and labour contractors often illegally terminate workers for the most arbitrary of reason and without just cause to ensure that other workers remain in a state of fear and anxiety that they might lose their job if they speak up against labour rights violations. The illegal termination of such employees is a direct violation of Schedule V of the Industrial Disputes Act, and such actions by employers fall under the definition of unfair labour practices. For example, a migrant contract worker at JNS Auto Parts explained that at his company the permanent employees tried to form a union to fight for better wages. In response the management raised production quotas for the 300 pro-union employees and terminated them for not meeting the impossible quotas. When asked about the union employees, the worker explained that he did not know much about them because he keeps his distance from them so that he will not lose his job. Raising quotas to unmanageable levels to fire union employees is also a common tactic in the garment industry. Lalji Lal, a garment worker at Maximum Export, explained that when management found out he was talking with unions they raised his production quotas and assigned him new garments to manufacture which he was unfamiliar with. He was eventually terminated due to the fact that he could not manufacture the new and extremely difficult type of garment they required that he produce. Such tactics by management ensure that workers do not become involved in unions and continue to be
  36. 36.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page36  complicit in the face of rampant human rights abuses, as they fear retaliatory termination for arbitrary reasons if they are involved in union activities. Other tactics employers used to arbitrarily terminate employees include terminating employees using fraudulent documents and forcing workers to resign under threat of physical violence. Often employers will require that employees sign numerous blank sheets of paper at the time of hiring which the employers will then use to falsify voluntary resignation forms for employees. For example, a garment worker at Modelama explained that at the time of hiring they are forced to sign the blank sheets of paper, when he protested signing the forms he was told if he did not want to sign then he would not get to work. As the worker explained, there is a long line of people waiting to get signed up and hoping to find work, which means you have no choice but to sign the forms. Companies also use misrepresentation to get workers to sign voluntary resignation forms. Gunjan Singh, a lawyer who litigates labour dispute cases, explained that after a successful conciliation agreement while signing the documents he found that the employer had inserted a voluntary resignation form in with the conciliation agreement documents hoping the employee would just sign all the documents in the agreement and not notice the resignation agreement. Such deceptive and manipulative termination practices are common place and used to target employees who are found to be involved with unions. often employers will require that employees sign numerous blank sheets of paper at the time of hiring which the employers will then use to falsify voluntary resignation forms for employees 
  37. 37.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page37  When companies are unable to get voluntary resignation forms through fraud or misrepresentation, the companies simply resort to threats of physical violence and force employees to sign resignation documents. For example, Ram Niwas Yadav, a worker and union representative at Hema Engineering Industries Ltd in Gurgaon, was surrounded by six men working on behalf of the management and was beaten and threatened with his life if he did not resign. The beating was so severe that he ended up having to stay at the hospital to recover and the workers were so outraged that a large scale labour protest erupted at the company. Such incidents are very common, when Alaudin Arjun, a garment tailor at Mehra Bandhu, became involved in organizing and registering a union, he was threaten by management and harassed and eventually forced to resign. The management told him that he had gotten fat and lazy and that thugs would kill him and “burn his fat” and that women guards would beat him if he did not resign. Similarly, Hanif Mohammed, employed at Bajaj Motor Co. Ltd, was beaten and forced to resign from his job two weeks after he and other workers organized and filed for union registration. Modelama commonly engages in forced resignation by asking employees to report to management offices where they will be locked in a room and surrounded by six or seven men and forced to sign a resignation letter under the threat of violence. When Modelama employees tried to register a union, the company used such forced resignation practices to illegally terminate 11 workers and transfer 3 employees. Eventually, after an ensuing labour dispute and conciliation case, the company admitted the resignation forms were a sham and reinstated the workers. Harassment of workers or subjecting them to physical violence is strictly prohibited and is an unfair labour practice in violation of Schedule V of the Industrial Disputes Act. Such practices ensure that workers are afraid to advocate for unions or file for union registration knowing that they risk physical violence and will likely lose their job.
  38. 38.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page38  If employers are unable to force employees to resign through various deceptive practices, they will terminate employees under false pretenses and alleged violations of company policies. Muhammad Shamim, a garment producer for Modelama, explained that he needed sick leave and followed all protocol including submitting the documents to his supervisor. When he returned from approved sick leave he was fired because management claimed he never filled out the documents and failed to show up to work without an excuse. He had connections at the establishment and got copies of the sick leave documents and won his case at conciliation. However, he stated that most people could not obtain such documents as they do not have friends at the company willing to risk providing such documentation to employees. In a similar case, Manoj Kumar, a worker at Modelama, requested time off to care for his sick wife, and properly submitted the forms to request such time off with the company. Leave was granted but he was terminated and refused employment when he returned. Modelama claimed that he did not fill out required forms and left without permission. He had no copy of the forms that he submitted. Alaudin Arjun, a garment tailor at Mehra Bandhu, was threatened and management tried to illegally terminate him after he returned from approved leave to go home due to a family emergency. Such stories were not uncommon amongst workers who had the same experiences while visiting home after approved unpaid vacation time. The illegal termination practices by employers undermine employee job security and prevent workers from trying to form or register trade unions. When workers know that they risk illegal termination, physical violence, and loss of their only source of income, they are extremely reluctant to organize or form unions. Management ensures that workers are well aware of the consequences and termination practices they engage in. This is meant to ensure that workers are in a state of fear and will accept the terrible working conditions. In the event that workers are successful in fighting their
  39. 39.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page39  illegal termination cases through conciliation or labour courts, the employers will transfer the employees to a new unit so that other employees will not be aware that unions have helped employees to successfully fight for their rights. Additionally, such illegal termination practices are in direct violation of Schedule V of the Industrial Dispute Act, yet employers are never held accountable for such unfair labour practices and violations. Illegal termination of employees guarantees that union activity will be limited in factories, because many employees cannot afford to lose their jobs, as they are already make minimal wages, often are heavily indebted, and can barely survive off their salary. Harassment and Physical Violence In addition to the numerous human right violations outlined above, workers who associate with unions and try to organize or register unions endure constant harassment and acts of violence from management and facility security personnel. At Viva Global, special female security guards were hired to harass and attack workers, including hitting workers with sticks, threatening employees with knives, punching workers, and dragging female employees by their hair. At Pearl Global, worker are constantly berated, called “dogs and donkeys” and told to “go die” with pro-union workers being specifically targeted for such harassment. At Maruti Suzuki a worker was beaten and slapped by a supervisor and then dismissed, which prompted a massive collective protest by the workers. Such incidents are common and violence is often initiated against employees by security forces paid by employers to eliminate organized workers or provoke hostility in union employees. Labour unrest occurred at Orient Craft, a garment manufacturing facility, after Naseem Ahmed a worker in the hosiery unit had been stabbed in the arm with a pair of scissors by Harinder Singh, a labour contractor hired by Orient Craft. Numerous acts of violence and harassment including threatened kidnappings, beatings, and sexual harassment have also been documented at Modelama, where even
  40. 40.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page40  members of the press covering labour disputes have been attacked by security personnel working on behalf of management. Female workers are especially targeted for sexual harassment. For example, at Richa Global a female worker continually refused sexual advances by her manager which resulted in threats, physical violence toward the female employee, and character assassinations, eventually leading to her termination, and the termination of all female employees sympathetic to her cause. Often the threats of violence extend to family members of workers as well. At Mehra Bandhu, employees who tried to form a union and discussed their labour dispute with BBC news reporters were told that management knew where they lived and that people would find them and their families easily and serious violence would occur. By continually harassing and threatening workers, employers ensure that all employees work in a perpetual state of fear and will not join unions out of fear of physical violence and harassment. The above tactics and human rights violations are used by management and companies to ensure that employees are unable to form unions or are too afraid to form unions. The unions that do exists are continually fighting against such practices by management to ensure that workers have decent wages, acceptable working conditions, and can feel safe and secure in their employment. Ramesh Ahuja, Assistant Labour Commissioner, explained that companies know that workers will only be successfully able to fight and advocate for their rights with the help of unions and collective bargaining by an organized female security guards were hired to harass and attack workers, including hitting workers with sticks, threatening employees with knives, punching workers, and dragging female employees by their hair 
  41. 41.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page41  and united workforce. He stated that the tactics by the companies are an effort to eliminate unions out of fear that unionization will inevitably lead to higher wages, better working conditions, and a decrease in the power of management. Clearly, the companies know how powerful unions and collective bargaining can be for employees, and they are willing to go to whatever lengths required to prevent unions from forming and advocating for workers’ rights. ***
  42. 42.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page42  THE ROLE OF CONTRACT LABOUR IN PREVENTING UNIONS urrently, employers are increasingly turning to contract labour to break unions and prevent unions from forming in the workplace. Known as “the dirty secret” that many employers and corporations use to suppress unions, keep wages low, and ensure a workforce that is easily exploitable, the use of contract labour is on the rise especially in the auto and garment industries in Haryana. The Contract Labour Act of 1970 was enacted to regulate how and when contract labour can be used and provide specific guidelines which employers and labour contractors must comply with when using contract labour. Specifically, the act requires that employers only use contract labour for work that is perennial in nature, and prohibits use of contract labour for work traditionally conducted by permanent employees, or in situations where there is sufficient work to create positions for permanent employees. Additionally, the 1971 revisions to the Act state: “In cases where the workmen employed by the contractor perform the same or similar kind of work as the workmen directly employed by the principal employer of the establishment, the wage rates, holidays, hours of work and other conditions of service of the workmen of the contractor shall be the same as applicable to the workman directly employed by the principal employer of the establishment on the same or similar kind of work.” Accordingly, under the Contract Labour Act, employers and labour contractors are required to obtain licenses and comply with the rules of the Act only for work positions that cannot be filled by permanent employees, and where contract labour is used the terms, wages, and conditions of employment should be similar to the conditions of employment for permanent employees. Additionally, under C
  43. 43.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page43  Schedule V of the Industrial Disputes Act it is illegal to use contract labour to undermine unionization and strip employees of the benefits of permanent employment. However, employers fail to follow the laws that are in place, and routinely exploit contract workers and use them as an endless source of cheap labour and to undermine unions. The Rising Numbers of Contract Workers in Haryana Despite the fact that contract workers are only to be used in situation in which the work is not sufficient to create positions for permanent employees, many companies use primarily contract workers in their production facilities. For example, Retu Singh explained that after numerous labour disputes raised by GAWU against Modelama the company began to increasingly use contract workers, even hiring illegal contract labour recruiters without licenses. Prior to the labour disputes, Modelama employed 4,000 to 5,000 employees with a majority of the workers employed as permanent workers. However, after the production contacts with GAP were terminated due to ongoing labour unrests and labour violations at the production facilities, Modelama only employs 500 permanent workers and 1,500 contract workers. Similarly, at Rico the company hires 2,000 to 2,500 permanent employees in addition to 2,500 contract workers supplied through various labour contractors. At Honda Motorcycle and Scooter India, the factories operate by employing 4,000 contract workers and there are only 1,900 permanent worker positions. At Maruti Suzuki 60 different labour contractors supply the manufacturing facilities with 2,700 contract workers, and only 1,000 permanent workers are employed. At Sunbeam Auto Ltd, the company employs 650 permanent workers and 2,500 contract workers, and the company also employs 800 trainees who are paid similar wages to contract workers. Hansraj, who is an operator involved dye casting, has been a trainee for the last 8 years at Sunbeam and his employer refuses to make him a permanent employee. Clearly, these numbers suggest that principal employers
  44. 44.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page44  are increasingly turning to labour contractors to supply most of the labour required for factory production in both the garment and auto industry. Furthermore, based on the number of contract workers employed across various factories in Gurgaon and Manesar, employers can and should be creating permanent positions for these employees. In numerous interviews with workers they consistently said that the biggest problem in their industry is the increased use of labour contractors. A former worker employed casting auto parts at the Kiran factory explained that it is impossible to find work in the auto manufacturing sector without going through a labour contractor. He also explained that all of the contract workers do the same work as permanent employees but for less pay and without the other benefits enjoyed by permanent workers like vacation, sick leave, and bonuses. Currently looking for work, he had the names and numbers of several labour contractors that had promised him employment in various auto factories at substandard wages and in poor working conditions. An auto worker at JNS Auto Parts also explained that at his production facility numerous permanent workers were fired after trying to form a union, and many were rehired as contract workers performing the same work without the benefits they enjoyed before they were illegally terminated. His factory currently employs 700 contract workers and 500 permanent employees. The worker also explained that workers get frustrated and labour unrest results because contract workers do the same tasks as permanent employees but for less pay and without benefits. He said that the best thing for the workers would be to get rid of the labour contractors. Interviews with workers from the garment industry revealed that companies including Modelama, Viva Global, and Richa are increasingly using contract workers and getting rid of permanent positions for workers. The conversion of permanent employees into contract workers is common across all the manufacturing facilities in Gurgaon and Manesar.
  45. 45.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page45  In addition to using illegal contract labour for positions that should be held by full time employees, many employers try to force permanent employees to convert to contract workers through manipulation and coercion. For example, Modelama will often tell permanent workers that they must become contract workers for a temporary period of time due to work conditions. Unfortunately, if the permanent worker accepts such a request they will never be converted back to a permanent employee after the short time period ends. For permanent employees who refuse to become contract workers companies will engage in abusive language, threats of physical violence, and actual minor acts of violence. One worker reported that the violence against females is less extreme and comes at the hands of special “helpers” employed by the labour contractor. Violence against men is more severe and is perpetuated by guards and other security personnel and managers. At a GAWU meeting one Modelama worker explained how she was harassed and threatened by management because she would not become a contract worker. When the abuse became too extreme she told management that they could fire her but she would never become a contract worker. The management eventually gave up and stopped harassing and threatening her, and she was able to stay employed as a permanent employee. However, many employees give in to such pressure and relinquish their rights as permanent employees. In the auto industry numerous worker explained that it is common practice for employers to fire permanent employees without justification and without all of the contract workers do the same work as permanent employees but for less pay and without the other benefits enjoyed by permanent workers like vacation, sick leave, and bonuses  
  46. 46.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page46  following proper procedures outlines in the Industrial Disputes Act. The company will then offer the employee a chance to return to work upon the condition that they become a contract worker. Similarly, interviews with workers from the garment industry revealed, that many garment production facilities will increase production quotas for permanent employees until the production quotas are impossible to meet. Once the employee fails to meet the production quotas, the companies will inform the employee that they can only stay employed if they become a contract worker. These are by definition unfair labour practices under Schedule V of the Industrial Disputes Act, which prohibits employers from terminating employees to undermine unions in bad faith. Employers are increasingly using contract workers and eliminating permanent worker positions because contract workers are easily exploited and less likely to join or form unions. Employer Advantages in Using Contract Workers Employers are increasingly using labour contractors due to the fact that contract workers are easier to exploit, terminate, and replace which ensures that labour unrest and unionization will not occur. Contract workers are specifically exploited through wage theft and payment of lower wages compared to permanent workers. For example, at Honda Motorcycle and Scooter India, contract workers earn around Rs 7,000 a month, have no vacation or sick leave, and have minimal rights, while permanent employee who perform the exact same work earn Rs 30,000 a month, have holiday and sick leave, and are protected by unions. Similarly, at Maruti Suzuki contract workers are paid Rs 9000 a month without any other benefits for performing the same work as permanent employees who earn Rs 18,000 and enjoy bonuses and benefits. The difference in pay is illegal under the Contract Labour Act, but such provisions are never enforced and paying contract workers significantly less than permanent employees is common across all manufacturing industries. Ramesh Ahuja, Assistant Labour Commissioner in
  47. 47.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page47  Haryana, stated that it is a reality of the economics of production that contract labour must be used in manufacturing because the wages paid are significantly less and companies cannot afford to pay all employees the same wages as permanent workers. He recommends that all contract workers be paid at least 70 percent of the wages that permanent employees get for the same work. While such a suggestion is a step in the right direction, his position overlooks the fact that paying contract workers significantly less for the same work as permanent employees is a direct violation of the Contract Labour Act, and that the Act was specifically intended to protect contract workers from exploitive labour contracts and substandard wages. In addition to paying contract workers significantly less wages, labour contractors often engage in wage theft from such employees. One of the most common practices is that labour contractors fail to pay the contract workers for the total value of the wages they have earned. The labour contractor simply pays the workers a portion of the wages that are due and keeps the remaining money. Numerous workers reported that this type of wage theft is common practice and they have no choice but to accept the wages the contractor will release or have their employment terminated. Similarly, upon illegal termination of contract workers the labour contractors will also refuse to pay wages and bonuses that are due. Such practices are common, as a manager at Orient Craft explained, “I supervise 600 workers, 500 are hired on contract most are migrants from Bengal, Bihar, some from Nepal. Hiring workers through contractors makes dealing with workers their headache.” The manager also explained that “The company makes sure the workers are paid on time even if it is less than their full wages and overtime sometimes and pay the contract workers through contractors but they sometimes keep part of their wages or provident fund.” Such statements reveal that wage theft is a common practice, and it also reveals that such wage theft persists primarily because the
  48. 48.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page48  workers are migrants with no choice but to accept the minimal wages that contractors will pay them. Clearly employers have an economic incentive to hire contract workers who are easy to exploit and will likely not be involved in labour protests. In addition to being cheaper, contract workers are also easier to terminate because the terms and conditions of their employment are not clearly defined and therefore, they can be terminated or not have their labour contract renewed at any time. For example, in 2008 contract workers at Hero Honda went on strike after trying to register a union and be recognized by management for purposes of collective bargaining, which prompted the management to lock out 1,800 contract workers, who were never rehired as management hired new contract workers. According to Rakhi Sehgal, nearly all casual workers were forced into accepting individual final settlements with the company and were not rehired, while over 500 contract workers continued to fight for reinstatement, and 435 contract workers deployed in production continue to fight for reinstatement and for registration of their union, Hero Honda Theka Mazdoor Sangathan. These incidents are common, and through labour contractors companies can have new employees willing and ready to work for minimal wages at a moment’s notice. Having such a large pool of surplus labour has proven to be extremely valuable to management who can simply request new contract workers in the event of a labour dispute or labour unrest. It is worth noting that using contract labour to undermine labour disputes or protests is an employers are increasingly using labour contractors due to the fact that contract workers are easier to exploit, terminate, and replace which ensures that labour unrest and unionization will not occur 
  49. 49.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page49  unfair labour practice and is illegal. However, there are various record keeping requirements in the contract labour act which make it time consuming and more difficult to hire licensed and registered contract workers. As a result, many companies are increasingly relying on illegal labour contractors to supply them with new workers who are even easier to exploit as there is no documentation of their employment with the company. Illegal labour contractors supply workers on a short term basis, and in many cases illegal contract workers are employed for a week or even one day before they are paid wages and released. Using contract workers on a weekly or even daily basis without permits for such workers directly violates the Contract Labour Act, which requires permits which identify which workers are employed and the terms of their employment as contract workers. Using illegal labour contractors without proper licenses or permits is lucrative for labour contractors and minimizes the risk of labour disputes. First, as Retu Singh explained, using illegal contract labour alleviates the burden of record keeping for labour contractors as required under the Act. Additionally, she explained that not having to comply with record keeping requirements also ensures there will be no relevant records of the work performed by the contract workers or their employment at factories. This ensures that such workers cannot bring labour disputes against the companies and must simply take whatever wages the labour contractor will pay them, even if such wages are below the required minimum wage. Such practices cause wage theft to be rampant and ensure that workers have no way to raise or substantiate labour disputes. Besides wage theft, using illegal contract labour is lucrative for principal employers who do not have to provide Provident Fund or Employee State Insurance contributions for such employees. Last, with such a large pool of surplus labour companies can continue to hire illegal labour contractors and ensure that the workforce turnover is quick enough to ensure that no unions form and labour disputes do not
  50. 50.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page50  materialize. Furthermore, contract workers are reluctant to unionize or stand up for their rights because they know that they will be terminated and illegal labour contractors can supply the employer with new workers without any impact on production or profitability at the company. How Employing Contract Workers Undermines Unionization Efforts The use of contract workers undermines the ability of workers in a factory to effectively unionize and collectively bargain with management and companies. First, the contract workers lack sufficient job security to be involved in a union or take part in any form of protest, as they will likely be terminated without pay. As a garment worker at Modelama explained, “Contract workers can’t join the protest because we will be sacked and a new worker will have your job the next day, the labour contractors have lists of people waiting for work.” Additionally, during interviews many contract workers expressed reluctance to joining unions because they claimed that unions would only help the permanent workers and not the contract workers. This illustrates how the use of contract workers in a factory creates divergent interests between permanent employees and contract workers who have very different interests and grievances with the companies they work for. While contract workers are not denied the right to form and join unions, the temporary nature of their work and job insecurity makes it difficult for contract workers to organize and form unions. However, because many companies rely on such a large number of contract workers there are numerous cases where contract workers have sought to establish their own unions in factories where the permanent workers already have a recognized union. For example, in April 2006, around 3,000 contract workers at Hero Honda staged an organized protest in an effort to collectively bargain with management because the plant union and other groups failed to adequately address the concerns and grievances of the contract workers. Similarly, 2,500
  51. 51.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page51  contract workers at the auto parts manufacturing company Delhi went on strike demanding only to be paid the legal minimum wage, because the recognized factory union refused to collectively bargain on behalf of the contract workers. Clearly, the use of contract workers divides the interests and bargaining power of employees in factories as permanent workers and contract workers have different interests and demands. So long as factories continue to employ primarily contract workers who lack job security and are easily exploited it will be difficult for effective unions to form which can advocate for the best interests of both contract and permanent employees. ***
  52. 52.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page52  MANAGEMENT PRACTICES TO PREVENT UNION FORMATION Due to the consequences and retaliation workers face if they are involved with or try to form a union, union organization and formation is a problematic process that must occur with a great deal of secrecy. Accordingly, union formation and organization is a complex process in which employers and union organizers use multiple strategies to out maneuver each other. Despite the fact that the Indian Constitution guarantees citizens the right to freedom of association and to form unions, in reality the process is extremely difficult, and employers resist union formation at all stages. Consequently, employers have severely oppressed and undermined workers’ rights to form unions and collectively bargain. Suppression of Union Activity within the Work Place Employers severely restrict the ability of workers to form unions and promote unions within the workplace. Given the severe consequences that await any worker who is found to be involved with a union, most union organization activity takes place in secret. As Retu Singh, a union organizer with GAWU explained, recruiting workers must occur in secret and union members are extremely careful to conceal their membership in unions, so that many employers do not know employees are affiliated with a union till a labour dispute arises. Consequently, most recruiting is done through fliers and information provided to workers outside of the workplace. Additionally, union meeting are conducted in secret in locations outside of the workplace where the employees are safe to voice their concerns and do not have to fear retaliation from management. For example, a local GAWU meeting to vote on whether to strike to protest the illegal termination was conducted at a secret location, and as a result only a minimal number of employees were able to be present, which undermines the effectiveness of the unions. As a
  53. 53.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page53  result of such secrecy, it is extremely difficult to recruit people to join unions, or effectively inform employees of the existence of a union and the benefits the union can offer. Retu also explained that employers will send workers who are really spies for management to union meeting to report to the management what union activities are taking place. For this reason, union member voting must take place in secret for important union issues such a labor strikes, protests, or election of union officers. The secrecy of the union activities also undermines the legitimacy of the unions as employees are unsure what unions have been up to and what they are doing on behalf of the workers. Employers know that by suppressing information about union activities they can undermine the effectiveness and power of unions, as well as limit membership in such unions. For this reason they have employed numerous security personnel hired as “helpers” who are really just present to ensure that no employees discuss unions or recruit union members within the workplace. The presence of these “helpers” instills fear in employees and ensures that no union organization can occur within the workplace. When the restriction of union recruitment and organization within the workplace is combined with the severe consequence employees will face if they are found to be working with the unions, even forming a union becomes a difficult task. Additionally, such actions by employers are unfair labour practices under Schedule V of the industrial Disputes Act, and therefore, are illegal. Despite such suppression of union organization, many employees are still brave enough to unite and form a union and attempt to register the union. employees involved in the unions will be transferred to new departments or reassigned to new production units that are less desirable 
  54. 54.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page54  Employer Strategies to Prevent Unionization If workers have begun to form unions or gather enough support to attempt to register a union, the employers will resort to numerous tactics to break the unions. In many cases workers will be bribed to stop all involvement in unions. As Parimal Sudhakar, an activist for migrant workers explained, if an influential employee is working with the unions the management will offer the employee a raise, bribe money, a job promotion, or other incentive to get the employee to leave the union. However, if such positive bribes are not effective management will resort to negative measures to get employees out of unions. As Retu Singh, explained, management will deny overtime to union employees who rely on overtime wages to be able to survive, or the company will cut their hours. For example, Ram, an employee at Phase Global a major garment manufacturer explained that before a major strike was likely going to take place several previously pro- union employees were given new contracts to induce them to leave the union and not strike. The workers who refused to sign the new contracts offered eventually had their hours cut and were illegally terminated when they demanded to be provided with increased working hours. Similarly, pro-union employees will be passed up for raises and promotions in the companies and given the least desired jobs. Retu Singh explained that the unions are fighting for objective criteria for promotions because there is no way for a union employee to get promoted unless they resign from the unions. Additionally, employees involved in the unions will be transferred to new departments or reassigned to new production units that are less desirable. For example, Modelama transferred and reassigned 3 workers who helped to try to register a garment worker union on behalf of Modelama employees. The employees were transferred to new production facilities which required them to travel up to 2 hours every day to attend work, and the employees were transferred to less desirable tailoring work. The harassment is not limited to the workplace, and many employees explained that landlords will
  55. 55.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page55  threaten union employees with eviction or a raise in rent if they do not stop working with the unions. Generally such tactics are sufficient to get most employees to stop being involved with the unions. As a garment worker who is extremely involved with GAWU explained, “Only the strong employees can stand up to the management and will stay in the unions, most employees will take the bribe, or when the harassment starts they quit working with the union.” Furthermore, Schedule V of the Industrial Disputes Act was specifically implemented to ensure that employers do not engage in such tactics to undermine union activity or effectiveness, however, employers are not held liable for the rampant unfair labour practices they use to break unions. If bribes and negative treatment is not effective in getting employees to abandon the union, employers will resort to more drastic measures including harassment, threats of physical violence and kidnappings. During a peaceful labor protest against Phase Global, Ram explained that a union leader was kidnapped and severely beaten, and that during the protest company hired goons came to beat the protesting workers with clubs and other objects. Similarly, after a labour protest at Mehara Bandhu Fashion, management threatened union workers claiming that they knew where the workers lived and goons would be waiting for them, and the management also threatened that the employees would be jailed by the police and that management knew how to frame employees. During an interview, Mr. Hari Parmaswaran, a prior manager at the Maruti Suzuki factory, explained that he was expected to harass and threaten union employees, identify and punish leaders in the union movement, and create poor working conditions for those in favor of unions. When he failed to do so he was terminated, and as a result began to expose corrupt management practices at the company. Such practices are common and his experience as a manager is typical. Union organizers and advocates are also threatened with violence and kidnapping for their help in forming and supporting unions. For
  56. 56.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page56  example, Retu Singh received a threatening phone call from an illegal labour contractor who threatened to kidnap and kill her if she exposed the illegal labour contracting. Similarly, leaders and organizers of the Maruti Suzuki Workers Union were forced to resign from the union after they were threatened with violence and prison charges if they did not resign.9 Unfortunately, such threats are not empty and numerous workers who organize unions have been kidnapped and in some cases union employees have been killed in labour disputes. Threats of violence also extend to the family of members of the union employees as well. Retu Singh has had the safety of her children and family threatened numerous times, and explained that many times the management will send goons to workers’ houses to threaten the families with violence and intimidate workers so they will leave the union. In such an atmosphere of intimidation and violence many unions eventually dissolve as management resorts to the most inhumane and drastic tactics to eliminate unions. The last tactics that management uses to eliminate and undermine unions is to divide workers along social, cultural, and religious lines and create disputes that are unrelated to working conditions. During an interview, Rakhi Sehgal, Vice President of the Hero Honda Ltd. Union explained that companies create class, racial, and other basis to divide workers and get them to fight against each other. Class or                                                              9 http://column.global-labour-university.org/2014/04/workers-unrest-in-automobile-plants- in.html Biharis, migrants from a northern state in India, and Muslims are considered minorities in these areas and are subjected to discriminatory actions 
  57. 57.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page57  caste based discrimination involves the discriminatory bias that exists between a multitude of different groups within the workplace. Animosity exists between religions, gender, class, and geographic origin. For example, Biharis, migrants from a northern state in India, and Muslims are considered minorities in these areas and are subjected to discriminatory actions. Hindus will be hostile to Muslim workers. Women are treated as one-half of a man, often receiving unequal pay for the same type of work. When asked about the source of this animosity, Ms. Seghal replied, “years of social bias does not and cannot disappear overnight, and likely not in this generation.” Additionally, employees are already deeply divided because contract workers and permanent workers have different grievances against management. In such a work environment workers are so busy fighting amongst each other that they are often unwilling or unable to come together to form unions and collectively bargain to benefit all workers. Once again, the fact that many workers are migrants is significant, as cultural and ethnic differences amongst migrant workers are easy to exploit to create divisions amongst the populations of migrant workers. Furthermore, native and local populations already hold animosity against migrant workers who are viewed as taking positions that should be available for local workers. Many employers are highly aware of these social divisions and exploit them to ensure that workers will not unite in the struggle for labour rights. Sham Unions Created by Management If there is enough interest in forming a union, management will often try to form their own union and recruit workers to undermine the effectiveness of any workers union that is being formed. These pro- management unions are known as “yellow unions” or “pocket unions” and are used to divide workers and operate ineffectively to only provide workers with the illusion that change will happen. Retu Singh explained that in some companies the management is so opposed to the idea of unions that they will not even set up a
  58. 58.     The Empty Promise of Freedom of Association: A Study of Anti‐Union Practices in Haryana  Page58  management run union, but instead form “work committees” which are dedicated to working toward addressing grievances, but in reality do nothing to help the workers. She commented that for these companies management does not even want employees to think that forming a union is a possibility, and therefore committees are used. In management run unions and work committees promises are often made to workers and then no change will ever result, and the collective bargaining process and procedures for resolving disputes or seeking change takes excessively long. All the while, employees are under the illusion that some change is coming when in reality nothing actually changes. Such unions and committees are often formed when a union is beginning to gain support in the workplace. Rakhi Sehgal, Vice President of the Hero Honda Ltd. Union, explained that the power relations developed through the yellow unions create close relationships with factory management which creates an ineffective means of bargaining or advocating for the interest of workers. Additionally, many yellow unions are politically associated which creates additional barriers for workers to effectively exercise the ability to sit down at the bargaining table with management. These yellow unions typically do nothing for the workers, but provide the appearance that factories are complying with the law. For example, during the labour disputes at Mehra Bandhu Fashions a yellow union was used to recruit workers and prevent them from forming their own independent union. Similarly, at Maruti Suzuki, the Maruti Udyog Kaamgar Union (MUKU) recruits workers, despite the fact that workers do not trust the union, the union representatives are chosen by management, and the union is largely seen as a prop for the company’s interests.10 The existence of such management run unions can be a source of labor unrest where employees seek to create their own independent union which will actually advocate for workers’ rights. In 2009 at Sunbeam Auto Ltd,                                                              10 http://forbesindia.com/article/special/haryana-the-state-of-discontent/26432/0

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