I saw a clause in a company’s appointment letter stating.."The employee should NOT join in any society or labour union etc" Is this clause legal and valid in India ?
From India, Madras
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From India, Madras
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Dear,
I haven't heard of such legal implications, but if stated in an application letter and duly signed by the employee, then it is accepted. But according to me, it is not valid; it is void. Please ask seniors!
Regards,
Vipin:icon1::icon1:
From India, New Delhi
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32I haven't heard of such legal implications, but if stated in an application letter and duly signed by the employee, then it is accepted. But according to me, it is not valid; it is void. Please ask seniors!
Regards,
Vipin:icon1::icon1:
From India, New Delhi
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Hi Shanthi,
Making the Labour Union is the right of workers as per The Trade Union Act. A minimum of 7 persons is required to form the Labour Union. Therefore, based on my knowledge, no employer can legally restrict any worker from forming a labor union. I believe it is not lawful to restrict anyone in this manner. However, nowadays, no employer wants to allow any labor union for their convenience. To prevent this, there are different ways being used, which are outside the bounds of the law.
Regards,
From India, Mumbai
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Making the Labour Union is the right of workers as per The Trade Union Act. A minimum of 7 persons is required to form the Labour Union. Therefore, based on my knowledge, no employer can legally restrict any worker from forming a labor union. I believe it is not lawful to restrict anyone in this manner. However, nowadays, no employer wants to allow any labor union for their convenience. To prevent this, there are different ways being used, which are outside the bounds of the law.
Regards,
From India, Mumbai
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Tushar said, "But, nowadays, no employer wants to allow any labor union for their convenience. To restrict that, there are different ways, which are outside the laws." Does this mean that big companies including a clause prohibiting employees from forming a labor union is illegal? I noticed the same clause in the employment contract of a major software company! - Shanthi
From India, Madras
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From India, Madras
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Dear,
This clause does not have any legal value. Freedom of association is your right, and no one can stop you from doing so. This is the first time I am hearing from you that this clause is given in the appointment letter. Only defense forces personnel are not allowed to form any union.
Thanks,
J. S. Malik
From India, Delhi
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This clause does not have any legal value. Freedom of association is your right, and no one can stop you from doing so. This is the first time I am hearing from you that this clause is given in the appointment letter. Only defense forces personnel are not allowed to form any union.
Thanks,
J. S. Malik
From India, Delhi
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Dear,
This falls under unfair labor practices and should not be included in the appointment letter. They may try to indirectly restrict certain activities, but not in this manner.
Thanks and regards,
Kameswarao
From India, Hyderabad
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This falls under unfair labor practices and should not be included in the appointment letter. They may try to indirectly restrict certain activities, but not in this manner.
Thanks and regards,
Kameswarao
From India, Hyderabad
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Thanks for all the excellent answers. Yes, I saw that as one of the clauses in a BIG IT firm's appointment letter. Believe it! But if, as you say, it is the legal right to form associations, how come Infosys, TCS, Wipro, and other companies manage to keep their employees from joining a labor union? How is that possible?
Shanthi
From India, Madras
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Shanthi
From India, Madras
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These big companies do not have employees who have time or interest in labor unions. It's only the labor class employees who go to these unions and seek redressal from them; otherwise, no one wants to get into all this.
In case someone is really troubled, he/she generally goes to the Labor Court.
Thanks
From India, Faridabad
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In case someone is really troubled, he/she generally goes to the Labor Court.
Thanks
From India, Faridabad
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Sumit, I'm not sure whether I can agree with you. Even the highly paid and highly educated Government of India Petroleum officers (Salary About Rs 1 lakh per month) have unions amongst themselves. I'm really sure there is more to it; the companies must use some other tactics. Otherwise, I simply can't believe that there is not even a single union amongst thousands of software employees.
Shanthi
From India, Madras
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Shanthi
From India, Madras
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Shanthi,
There is a major difference between the private sector and the public sector. I am saying this because I have worked in some of the biggest companies myself. There are no such tactics as such. These organizations instead have a better employee relations department. Therefore, the question of unions in the public sector does not really arise.
Though I agree with Mr. Malik that creating a union is a right of every employee.
Thanks
From India, Faridabad
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There is a major difference between the private sector and the public sector. I am saying this because I have worked in some of the biggest companies myself. There are no such tactics as such. These organizations instead have a better employee relations department. Therefore, the question of unions in the public sector does not really arise.
Though I agree with Mr. Malik that creating a union is a right of every employee.
Thanks
From India, Faridabad
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It is an unfair labour practice on the part of the employer. It is not legal. Even if the employee accepts the appointment letter, he has full right to get associated with the Trade Union.
I agree with Mr. Malik that no company can mention this clause in the appointment letter as it is ULP and can go against the company in any court of law.
Thanks
From India, Pune
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I agree with Mr. Malik that no company can mention this clause in the appointment letter as it is ULP and can go against the company in any court of law.
Thanks
From India, Pune
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If I may counter the point raised by Shanthi regarding how there are big companies without a single union, I would say that a union is primarily formed when employees feel that their interests are not being regarded by the company, or in other words, if they are unhappy. If company policies are pro-employees and less cumbersome, then that leaves hardly any scope for the employees to form a union. Why would they, if they are happy? And if the question of highly educated and well-paid employees of Indian Petroleum is cited as an example, then they have thousands of reasons to form a union, apparently against the policies of the government and also due to their 'awareness' of their dues and gains from the government.
Prashant.
From India, Delhi
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Prashant.
From India, Delhi
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According to me nowadays, management has changed its views towards the employees and considers them as their assets. In IT companies, these employees are quite pampered. Generally, employees who are vulnerable and have a lower demand for expertise in the market tend to form unions to secure their jobs. Therefore, I think this could be one of the reasons why IT employees are not forming any association or union.
Sandeep Kulkarni
From India, Vadodara
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Sandeep Kulkarni
From India, Vadodara
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Dear Friends,
Until the recession period, IT companies were inundated with HR professionals, specifically headhunters. Their daily routine was to recruit people incessantly due to the high turnover rate. This situation made it challenging for IT personnel to focus on their projects, new assignments, and evaluating new offers from competitors. Essentially, individuals who felt unemployable or insecure about their jobs tended to seek out affiliations with associations and unions. Moreover, unionized employees faced difficulties securing positions in MNCs and other reputable firms, as management often hesitated to hire them, fearing they might disrupt the company culture. Consequently, highly skilled professionals were reluctant to engage in union activities, which could be a fundamental reason behind this scenario.
With best regards,
Kameswarao
From India, Hyderabad
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Until the recession period, IT companies were inundated with HR professionals, specifically headhunters. Their daily routine was to recruit people incessantly due to the high turnover rate. This situation made it challenging for IT personnel to focus on their projects, new assignments, and evaluating new offers from competitors. Essentially, individuals who felt unemployable or insecure about their jobs tended to seek out affiliations with associations and unions. Moreover, unionized employees faced difficulties securing positions in MNCs and other reputable firms, as management often hesitated to hire them, fearing they might disrupt the company culture. Consequently, highly skilled professionals were reluctant to engage in union activities, which could be a fundamental reason behind this scenario.
With best regards,
Kameswarao
From India, Hyderabad
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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
From India, Pune
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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
From India, Pune
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Hi Mallik,
I have a similar query. Can we mention in the appointment letter that "an employee will be eligible for Bonus & LTA only after confirmation of their services i.e. six months"? I am asking this because we have included it in the appointment letter due to our policy, but based on my understanding, we should pay a bonus to an employee even if they have worked for one month. I would like your suggestion from a legal perspective.
Regards, Shikha
From India, Bangalore
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I have a similar query. Can we mention in the appointment letter that "an employee will be eligible for Bonus & LTA only after confirmation of their services i.e. six months"? I am asking this because we have included it in the appointment letter due to our policy, but based on my understanding, we should pay a bonus to an employee even if they have worked for one month. I would like your suggestion from a legal perspective.
Regards, Shikha
From India, Bangalore
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Appointment Letter to an Employee for fixed period.doc
Appointment letter clause.pdf