Labour serves as a spinal cord of the nation as it helps the country to march on the path of development. In our constitution Labour falls under the Concurrent List, therefore, both Parliament and state legislatures can make laws regulating labour. In 2019,India had attempted to consolidate 44 Central labour legislations into 4 comprehensive labour codes:

1. Code on Wages, 2019
2. Occupational Safety, Health, and Working Condition Code, 2020
3. Industrial Relations Code, 2020
4. Code on Social Security, 2020

While the Code on Wages, 2019 has been passed by Parliament, Bills on the other three areas were referred to the Standing Committee on Labour. The Standing Committee has submitted its report on all three Bills. Therefore these bills had been replaced with new ones on September 19, 2020. Afterwards The Lok Sabha passed the bill on 22 September 2020 , The Rajya Sabha passed it on 23 September 2020 and assented by the President on 28 September 2020.

Among the four code , Industrial Relations Code, 2020 deals with the laws relating to Trade Unions, conditions of employment in industrial establishment or undertaking, investigation, and settlement of industrial disputes.

Background:
Trade unions developed as a result of industrialization. It is based on the principle of 'united we stand, divided we fall'. It generally refers to an organization of employees who have certain common goals to achieve. The conventional standpoint in the labour management relationship has changed due to the industrial revolution. Various social and economic evils made it necessary for the workers to devise elective means to deal with the employers in the form of trade unions.

The growth of trade union was the result of several strikes, the deteriorating economic conditions of workers, low wages which could not keep pace with soaring prices, and the shortage of labour. There was a spike in the number of trade unions during the end of 1925. They insisted on securing the rights of the workers, continuous industrial strikes, and attempts in evolving machinery for settlement and prevention of industrial disputes.

The exploitation of workers by employers made it necessary to enact a law that can protect their interests. As a result, to resolve the unrest among the workers and to fulfill their genuine demands 'Trade Unions Act, 1926' was enacted. As Hans Kelsen said that every law derives its authority from grundnorm this act has also derived its authority from the constitution of India which guarantees freedom of association.[1]

This Act has laid down detailed provisions for the procedure, formation, conditions for registration of trade unions, advantages of the procedure, advantages of registration, and immunities available to the union leaders from civil and criminal laws for the activities of a registered trade union. Therefore, to provide certain advantages to a union registered under the Act, the Act has defined the Trade Union in the most comprehensive terms.

This act defines a trade union as“any combination, whether temporary or permanent, formed primarily to regulate the relations between workmen and employers or between workmen and workmen, or between employers and employers, or for imposing restrictive conditions on the conduct of any trade or business and include any federation of two or more trade unions. The definition of the trade union is the same in the IRS code In the IRS code, 2020 word workmen have been replaced with the word worker to make the provision gender-neutral.

Procedure for Registration of a Trade Union

Chapter III of the Industrial Relation code, 2020 deals with the provisions of the registration of trade unions. The whole process of registration in the case of trade union registration is vested with the registrar of trade unions.

Registrar: 5

Section 5 of the act provides for the appointment of the registrar of a trade union. The section authorizes the appropriate government to appoint additional and deputy registrars for each state if it thinks fit. The additional and deputy registrars are appointed where the registrar of a trade union is unable to discharge the powers and functions as prescribed. He may exercise such powers and functions of Registrar with a local limit as may be specified for this purpose.

Mode of Registration: 6

Any seven or more members of a Trade Union may, by subscribing their names to the rules of the Trade Union and by otherwise complying with the provisions of this Act for registration, apply for registration of the Trade Union.

After the amendment of 2001 two proviso have been added to this clause which says at least 100 or 10% member of a trade union shall be employed and the second proviso says all the seven-member applying for the registration shall be employed in the industrial establishment. The second proviso has been added for the situation where 10% of the employee is less than 7. For eg if an establishment has 30 employees only then in that case, 3 employed members in the trade union out of 30 won't be considered as fulfillment of the condition.

As per Section 6 (2), any application made under sub-section (1) for the registration of a Trade Union shall not be deemed to have become invalid merely because 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(7) 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.

Provisions to be contained in the rules of a Trade Union: 7

According to Section 7 of the Act, a Trade Union shall not be entitled to registration under the Act unless the executive committee has been established in accordance with the provisions of the Act and the rules provide for the following:

1. The name of the Trade Union;
2. The whole of the objects for which the Trade Union has been established;
3. The whole of the purposes for which the general funds of the Trade Union shall be applicable, all of the purposes to which such funds are lawfully applicable under this Act;
4. The maintenance of a list of the members of the Trade Union and adequate facilities for the inspection thereof by the office-bearers and members of Trade Union;”
5. The admission of ordinary members who shall be persons engaged or employed in an industry with which the Trade Union is connected, and also the admission of the number of honorary or temporary members as office-bearers required under section 22 to form the executive of the Trade Union;
   (ee) The payment of a subscription by members of the Trade Union which shall be not less than:
   
   • One rupee per annum for rural workers.
   • Three rupees per annum for workers in other unorganized sectors.
   • Twelve rupees per annum for workers in another case.
6. The conditions under which any member shall be entitled to any benefit assured by the rules and under which any fine or forfeiture may be imposed on the members
7. The manner in which the rules shall be amended, varied, or rescinded
8. How the members of the executive and the other office-bearers of the Trade union shall be appointed and removed;
   The duration of the period being not more than three years for which the members of the executive and other office-bearers of the Trade Union shall be elected:
9. The safe custody of the funds of the Trade Union, an annual audit, in such manner, as may be prescribed, of the accounts thereof, and adequate facilities for the inspection of the account books by the office-bearers and members of the Trade Union; and
10. How the Trade Union may be dissolved.
    In M. T. Chandrasennan v N sukumaran[2]the court held that The members of trade unions are members under section 6(ee). The payment of subscription by members to the trade union has been made compulsory under section 6 (ee) of the Act. The trade unions cannot refuse to receive subscription from its members.

Bokajan Cement Corporation Employees Union vs Cement Corporation of India,[3] held that members of the union does not automatically cease upon termination of the employment.

Application for Registration: 8

As per Section 8 of the Act, every application for registration of a Trade Union shall be made to the Registrar. It should be accompanied by a copy of the rules of the Trade Union and a statement of the following particulars, namely:

1. The names, occupations, and address of the members making the application;
2. The name of the Trade Union and the address of its head office; and
3. The titles, names, ages, addresses, and occupations of the office-bearers of the Trade Union.

Where a trade union has been in existence for more than a year, then a copy of the assets and liabilities of the Trade Union shall also be submitted along with the application for registration.

Power to Call for Further Particulars and to Require Alterations of Names: 8

The Registrar may call for further information to satisfy himself that any application complies with the provisions of section 85, or that the Trade Union is entitled to registration under section 6 and may refuse to register the Trade Union until such information is supplied. If the name under which the Trade Union is proposed to be registered is identical with that by which any other existing Trade Union has been registered or, in the opinion of the Registrar, so nearly resembles such name as to be likely to deceive the public or the members of either Trade Union, the Registrar shall require the persons applying for registration to alter the name of the Trade Union stated in the application and shall refuse to register the Union until such alteration has been made.

Tata workers union v state of Jharkhand[4] in this case it was held that registrar cant intervenes in the matter of holding the election of office bearer of a registered trade union.

Registration: 9

Section 9 provides that, if the Registrar is satisfied that the Trade Union has complied with all the requirements of this Act regarding registration, then he shall register the Trade Union.

In North Central Railway Employees Sangh and Ors v UOI [5]. it has been held:
“Whether the registration is rightly given or not, can be examined only by the competent statutory authority established under the Trade Unions Act. The police authorities have no competence to give an opinion on this aspect.”

In Inland Seam Navigation Workers' Union, a request for registration was made through an application by the workers' union but it was turned down by the Registrar declaring it unlawful based on its object to be for all practical purposes.

The Justice Derby shire said:
“In my view, the duties of the Registrar were to examine the application and to look at the objects for which the union was formed. If those objects were objects set out in the Act, and if those objects did not go outside the objects prescribed in the Act and if all the requirements of the Act and the regulations made thereunder had complied with, it was his duty, in my view, to register the union.”[6]

In R.K. Women's Union [7] there was a question as to the obligation of the Registrar to hear before making an order under section 8. The Court answered and observed:
“Once, therefore, the Registrar is satisfied that the requirement of the statute has been complied with, it is obligatory upon him to enter in a register the applicant-union and he has no objection to hearing the existing unions in the field before making the order under section 8.”

In ONGC Workmen's Association V state of W.B. [8], the Court held that:
Any order passed under Section 9 by the Registrar must be administrative in nature. The Registrar is not deemed to be a quasi-judicial authority to decide any disputed question of fact or law. He has no authority to ask for any of the parties to lead evidence and to give an opportunity to the other party to cross-examine any witness.”

The Registrar, on registering a Trade Union shall issue a certificate of registration in the prescribed form .The certificate will act as conclusive evidence that the Trade Union has been duly registered under this Act.

In Telco Workers' Case,[9] the High Court has laid down, “There is no provision in the Trade Unions Act, 1926 which confers a power on the Registrar, Trade Unions to adjudicate the interse dispute between the parties. The Registrar has no power under the Act to entertain grievances of private members of the Trade Unions though, a complaint may become a source of information to the Registrar, for forming an opinion for issuing show cause notice under Section 9of the Act.”

Appeal: 10

1. Any person aggrieved by any refusal of the Registrar to register a Trade Union or by the withdrawal or cancellation of a certificate of registration may, within such period as may be prescribed, appeal:
   
   1. where the head office of the Trade Union is situated within the limits of a Presidency town to the High Court, or
   2. where the head office is situated in any area, to such Court, not inferior to the Court of an additional or assistant Judge of a principal Civil Court of original jurisdiction as the Appropriate
      The government may appoint in this behalf for that area
      
2. The appellate court may dismiss the appeal, or pass an order directing the Registrar to register the Union and to issue a certificate of registration under the provisions of section 9 or setting aside the order for withdrawal or cancellation of the certificate, as the case may be, and the Registrar shall comply with such order.
   
3. For an appeal under sub-section (1) an appellate Court shall, so far as may be, follow the same procedure and have the same powers as it follows and has when trying a suit under the Code of Civil Procedure, 1908 (5 of 1908), and may direct by whom the whole or any part of the costs of the appeal shall be paid, and such costs shall be recovered as if they had been awarded in a suit under the said Code.
   
4. In the event of the dismissal of an appeal by any Court appointed under clause (b) of sub-section (1), the person aggrieved shall have a right of appeal to the High Court, and the High Court shall, for the purpose of such appeal, have all the powers of an appellate Court under sub-section (2) and (3), and the provisions of those subsections shall apply accordingly.

Recognition to trade union

In the trade union act 1926, there was no provision related to recognition, IRS code under section 14 talks about the establishment of negotiating council or negotiating union. The act has classified trade union into three categories for recognition:

1. When there is only one registered trade union in an industrial establishment, then the employer shall recognise such trade union as negotiating union.
2. When there is more than one registered trade union exists in an industrial establishment, and if any of the trade unions consists of more than 50 % of the workers on the muster roll of that industrial establishment then the employer shall recognise such trade union as sole negotiating union.
3. When there is more than one registered trade union, and no such trade union has more than 50% of workers on muster roll then the negotiation council would consist of representatives of such trade unions which have more than 20 % of workers on muster roll as a member of that trade union.
4. In the case of the last two situations, negotiating council will be valid for only 3 years.

Registration: Compulsory or Voluntary?

The registration of a trade union is not compulsory but is just voluntary under the Act. The question of voluntary registration is, however, debatable:

1. Compulsory registration would prove burdensome and expensive. It is felt that the present legal position should continue. The provisions of the Act, itself affords legal status and protection to trade union members which will encourage trade unions to get themselves registered;
   
2. The registration of trade unions should be made compulsory because all the unions shall be governed by the provisions of the Act and the rules framed thereunder in a similar manner.

National Labour Commission in 1969 reviewed many of the labour legislation and proposed many recommendations[11], it also reviewed the trade unions act 1929.

The Commission has, inter alia, strongly recommended that Registration of trade unions must be made compulsory; The registrar must be time-bound to decide the issue of registration.
Effective measures must be taken for cancellation if the unions do not comply with conditions regarding the filing of returns or membership;

In the sequel to the recommendations made in the report of the first national commission on labour series of labour, enactments were passed.

After a gap of almost 72 years, the Second National Labour Commission has been constituted and submitted its report in the the year 2002 to the Government of India.

The Commission has recommended that union registration eligibility condition i.e. requirement of 10 percent membership in an establishment shall not apply in the case of unions or associations in the unorganised sector; this recommendation is a clear recognition of the increasing importance of this sector and the difficulties in organising these workers.

This will surely give the union movement its much-needed legal incentives to enlarge its base. But one is not sure how far the unions of unorganised workers will be able to comply with the wide-ranging requirements attendant on registration. The union law in India regulates the internal affairs of the unions.

Critical analysis
There is no time given to the registrar to either accept the application or reject it under either IRC or the trade union act. In the act, No of employees for registration required is 10 % or 100 whichever is minimum is too arbitrary because it is not necessary that required no. of employees are a member of that industry even in other countries like USA law requires only 3 people as a member who is engaged with the establishment. As given in UDHR Everyone has the right to form and to join trade unions for the protection of his interests.[16] So this should be provided with minimum restriction.

Both the actions are contrary to the freedom of association obligations of India to the extent that it dictates the amount of trade union subscription to be paid by members. It emphasized the protection of the internal administration of trade unions noting that such matters should be left to the discretion of the members of workers' organizations, without any interference by the public authorities as mentioned in the ILO convention.[17] The Committee called on the government to take steps to amend those sections. In addition to that, No provision for re-registration has been provided in the new code.

End-Notes:

1. 19(1)(b), constitution of India, 1950
2. AIR 1947 SC 1789.
3. (2004) SC.
4. (2002) IIILLJ 474 JHAR.
5. (2017), MANU/UP/0365/2017.
6. AIR 1963 Cal 57
7. (1968) AIR 335.
8. (1988) Lab. IC 555 at 560.
9. Telco Workers Union v. State of Jharkhand, 2015 II LLJ 448 (Jhar).
10. 2016 (6) ABR 258.
11. Govt. of India, “Report of the National Commission on Labour” (1969) p. 295.
12. Standing committee on labor, 8th report on Industrial Relations Code,2019 at p. 47
13. (1992) IILLJ 160 Ker.
14. ILR 1990 KAR 3568
15. § 27, Indian contract act 1872.
16. Art 23, UDHR
17. Art 3, ILO 87th convention