Can a Dismissed Worker Lead a Union? Exploring Legalities and Management's Options

Dear Experts,

1) Can a dismissed worker be elected as the President of a Trade Union?

2) Is it permissible for contract and regular workers to belong to a common union?

3) Can a unified union submit a common Charter of Demands (COD) to the Management or Principal Employer?

What legal defenses does the Management have in these situations, particularly when the Registrar of Trade Unions has notified the Management about the formation of the union, including the dismissed worker being elected as its President?

Kindly give your expert opinion on the above queries.

A worker dismissed from the establishment can be elected as one of the outside office bearers of the Union. An office bearer can be elected as the President of the Union by the members of the said Union. Therefore, there are no legal issues as long as the members feel that the industrial relations between the management and the union will not be spoiled because of his presence for negotiation. There is nothing wrong with placing a person dismissed from the company as the President of the union.

Union Membership and Contract Workers

Union is expected to be a union of persons or workers of common interest. Therefore, contract workers cannot be part of the union of the regular workers. At the same time, the workers employed by the employer on a fixed-term contract are workers of the company only, and they can be part of the Union.

Charter of Demands for Contract and Regular Workers

If a common charter of demand is submitted for the regular employees and the employees of the contractor, the same may be rejected citing the reason that concerning the contract workers, the employer has no responsibility to decide the wages and other service conditions, and they can negotiate with the contractor for that. The employer can ask the Union to submit a fresh charter of demands.

Genuine or Sham Contract

In the situation above, the issue that will be raised is whether the contract is genuine or sham. Simply put, the Union will not allow the contract workers to take membership in the Union. Therefore, what I feel is that the contract given to an outsider is just a camouflage arrangement, and the workers are being supervised by the employer's officers only in all respects, including leave, fixing of wages, allotting the work, taking disciplinary action, etc. If this is the case, any dispute raised will certainly backfire on the employer only.

Hi, Regarding Questions 2 and 3, Mr. Madhu has addressed them effectively.

Question 1: Applicability of the Answer

For Question 1, the answer may or may not be applicable. Please note that union memberships are typically categorized into two types: ordinary and honorary, as detailed in the union's by-laws. The process for appointing honorary members is usually outlined separately within these by-laws, which includes General Body Meetings (GBM) as well.

Steps to Avoid Appointing a Dismissed Employee as Union President

If you wish to avoid appointing a dismissed employee as the union president, you can take the following steps:

1. Ask the union to provide their by-laws for review.
2. Examine the by-laws to determine if there are any specific provisions regarding honorary members. If such provisions are absent, you may deny the appointment.
3. If provisions for honorary members exist, verify whether the appointment process has been properly followed. If not, you may deny the appointment.
4. Deny negotiation with Honorary member Terms: If the process has been followed, you may inform the union that negotiations will only occur with ordinary members and not with honorary members and do not allow access to the factory premises.
5. Note that there is no settled law that definitively supports either the union's or your position in this scenario.
6. Showing your intent may offer some relief and support your position.

Disqualification of an Office Bearer under Section 21A

Section 21A of the Trade Unions Act provides for the disqualification of an office bearer. Like any member of other committees, a person convicted of an offense involving moral turpitude cannot become an office bearer of a trade union. This means only a person who was dismissed from the company following conviction by any court for moral turpitude cannot become a member of the executive committee of a trade union. However, if five years have elapsed since his release from prison, he can certainly become an office bearer. It is understood that a person who has been dismissed by the company for any misconduct, or even misconduct involving moral turpitude, will not come under the scope of Section 21A. For disqualification, conviction by a court is very important.

Membership Requirements

As regards membership, the law states that there should be at least 10 percent or 100 employees, whichever is less, subject to a minimum of seven workers at all times. Section 22 provides that not less than one-half of the total number of office bearers should be persons actually employed in the establishment.