Hello,
It is right that the constitution of the country guarantees the right to associate, and no one can take this right away from anyone. It is not right for any company to insist on such a clause, legally speaking, but just as the law says that you should not steal, etc., and yet, crimes go on and are punished when caught and proven. Similarly, employers may put such a restrictive and unconstitutional clause, and the naive and uninitiated may fall prey. That is unfortunate. When employment is a dire need, potential employees are known to have made unholy compromises of the worst order!
Having said all that, kindly appreciate that all labor law was created to protect the rights of workmen. At the time when these laws were made, the laws were perhaps necessary. The scheme of the entire gamut of labor law is to grant protection to those who conform to the definition of a "workman" in the Industrial Disputes Act of 1947. Those who are educated are presumed to be able to look after their own interests and were excluded from the definition of a workman.
When disputes arose between employers and employees, as a generality, an individual workman could never fight the might of the employer manifested in injustices perpetrated by the employers if and when these happened. It is at such times that the inability to look after their own collective interests, trade unions came to be formed, supposedly "to protect and further the rights of employees," and the unions drew support from labor legislations. But they acquired another strength also, and that is the unity of the working class. This, the employers cannot digest, and that is why historically most employers have been resisting trade unions by whatever name they are called.
When disputes entered litigations, the courts, who have the right to interpret statutes, created newer meanings for the term "workman."
A very old case states that even the pilots of Air-India were "workmen" under the Industrial Disputes Act of 1947. This is not a joke but is simply a mockery of law through interpretive mechanisms in the hands of the courts. But to be fair, while "who is a workman" is explicitly defined under the said act, "who is not" is not adequately clearly stated.
Over the years, it is an established fact that those employees who have discretion in their jobs, who supervise the work of others under them, who have the right to commit the employer to a third party, who train, discipline workmen are generally NOT "workmen" under the act and do not get the so-called protection of labor law. This means that if you are working under supervision, do not have discretion in the job (and that will be decided by the courts if and when the matters go before them) could be termed as "workmen." However, the question of whether one is a "workman" under the act will always be dependent upon the third party decision (i.e., the courts!).
Employers want to prevent such a possibility and therefore generate such weird mechanisms to thwart employees from forming or joining a trade union.
Coming more particularly to your confusion, let me state that many engineers in the manufacturing sector and many software professionals employed with such big firms could, in my professional opinion, successfully qualify to be "workmen" under the act, and if that does happen sometimes, such employers will lose all flexibility in dealing with such employees as they would not be able to act arbitrarily at any time.
But their fears are perhaps unfounded as no one will like to be identified as a "troublemaker," "unionist," etc., as that could and most probably will destroy his present and future prosperity and financial cushions.
There are even more issues involved in this subject, but I suppose this long answer will throw more than enough light on the matter and put the matter in a clear perspective!
Regards,
Samvedan
March 20, 2009