COLLECTIVE BARGAINING IN INDIA
INTRODUCTION
The conflict between the management and the employee is inherent in an industrial society. One argues for more investment and profits while the other argues for better standard of living. These two conflicting interests can be adjusted temporarily through the principle of "give and take"1, The principle of give and take has been infused in the principle of collective bargaining.
The phrase "collective bargaining" was coined by British labor reformers Sidney and Beatrice Webb of Great Britain which was the “home of collective bargaining” in the 1890’s2. The idea of collect collective ive bargai bargainin ning g emerge emerged d as a result result of indust industria riall conflic conflictt and growth growth of trade trade union union movement and was first given currency in the United States by Samuel Crompers. In India the first collective bargaining agreement was conducted in 1920 at the instance of Mahatma Gandhi to regulate labour management relation between a group of employers and their workers in the textile industry in Ahmadabad3.
Advocates of collective bargaining in the early decades of the twentieth century thought it essential for three reasons. First and foremost, a system of peace ful and routine bargaining would eliminate eliminate industrial industrial strife strife and violence. violence. Second, Second, collective collective bargaining stood for "industria "industriall democracy," and finally, collective bargaining promised to make capitalism work.
In any industrial establishment the friction between employer and the workmen is inevitable. There are demands by the workmen and if those demands are resisted by the employer, industrial disput disputee arises arises result resulting ing in indust industria riall tensio tension n and distur disturbin bing g the peace peace and harmon harmony y in the industry. Collective Bargaining is one of the methods wherein the employer and the employees can settle their disputes.
1
Otto Kahn-Freund, Laboar aad the Law, L mdon, Stevens & Sons, (1977\ .). 49 Webb, Sydney and Beatrice, Industrial Democracy,1902,p.185 3 Report of Royal Commission on Labour in India, 1931; p. 336-337 2
There was always a need of a legislation which could ensure industrial justice pre-empt the industrial tensions and provide the mechanics of dispute resolution. When Industrial Disputes Act, 1947 was passed in India, it was passed to provide machinery and form for the investigation of industrial disputes and for the settlement thereof and for the purposes analogous and incidental thereto. As is evident from the Act itself that it is piece of legislation which mainly provides for investigation and settlement of Industrial disputes.
In the words of Justice Desai the emergence of the concept of welfare state implies an end to exploitation of workmen and as a corollary to that collective bargaining came into its own and lest the conflicting interests of the workmen and the employer disturb the industrial peace and harmony, a machinery for adjustment of such conflicting interests became the need of the time. The The Act Act ther theref efor oree was enact enacted ed to provi provide de mach machin iner ery y and Foru Forum m for for adju adjust stme ment nt of such such conflictin conflicting g and seemingly irreconcilabl irreconcilablee interests interests without disturbing disturbing the peace and harmony harmony in the industry assuring the industrial growth which was the prerequisite of for a welfare state.
Collective bargaining is one of the methods wherein the employer and the employees can settle their disputes. This method of settling disputes was adopted with the emergence and stabilization of the trade union Government. Before the adoption of the collective bargaining the labour was at a great disadvantage in obtaining reasonable terms for contract of service from its employer. With the development of the trade unions in the country and the collective bargaining becoming the rule it was equally found by the employers that instead of dealing with individual workmen it is convenient and necessary to deal with the representatives of the workmen not only for the making or modification contracts but also in the matter of taking disciplinary action against the workmen and regarding other disputes. So, collective bargaining has come to stay having regard to modern conditions of the society where capital and labour have organized themselves into groups for the purpose of fighting and settling their disputes.
RESEARCH METHODOLOGY
Aims and objective
The aim of this project is to analyze the process of “Collective Bargaining” and the objective has been to understand the impact of Collective Bargaining in India.
Scope and limitation
The researcher has limited the scope of the project paper to the concept of collective bargaining and its impact in India.
Method of analysis
The researcher has endeavored to use a combination of critical and descriptive styles of writing throughout throughout this project and has cited various cases to critically critically analyze the theory of collective collective bargaining.
Research questions
Following are some the basic questions the researcher has tried to answer in this paper; 1. What What is the the concept concept of collec collectiv tivee bargain bargaining ing?? 2. Whether Whether strike strike and lockouts lockouts are establishe established d means of weapons weapons of collective collective bargainin bargaining? g? 3. What is the the impact impact of of collecti collective ve bargainin bargaining g in India? India? 4. What are are the problems problems related related to the collec collective tive bargaini bargaining ng process process in India? India? 5. How can collective collective Bargaini Bargaining ng be strengthened strengthened as a mode of settling settling industri industrial al disputes? disputes?
Sources of data etc.
The main sources have been Statutes, books, articles on Collective Bargaining, obtained from the library of NALSAR, Hyderabad and from the library of NLSIU, Bangalore. Besides these, the researcher has also done extensive research on the internet and referred to various websites and e-articles related to the Project topic.
DEFENITIONS OF COLLECTIVE BARGANING
There is no precise definition of “Collective bargaining”. In fact keeping in view the change in the society with its fast changing social norms the scope and content of collective also varies from country to country. Nevertheless, Collective bargaining has been defined by different experts in different ways. It is treated as a method by which problem of wages and conditions of employment are resolved peacefully and voluntarily between labour and management. management.4
This chapter deals with the various definitions of collective bargaining which will be helpful in understanding the concept of collective bargaining, its ambit and scope as has been coined by various writers.
According to K. Alexander
“Collective bargaining is a process of bargaining between the employers and their workers by which they settle their disputes among themselves relating to employment or non-employment or terms of employment or conditions of labour of the workmen, on the strength of the sanctions available to each side. Occasionally such bargaining results in amicable settlement arrived at voluntarily and peaceful between the parties. But quite often the workers and the employers have to apply sanctions by resorting to the weapons of strikes and lock-outs to pressurize one another which makes both the sides aware of the strength of one another and that finally forces each to arrive arrive at a settl settlemen ementt in the mutual mutual intere interests sts.. It is thus the strength strength of the parties parties which which determines the issues rather than the wordy duals which are largely put on for show as any element of strength in one party is by the same token an element of weakness w eakness in another”.
Convention 154 of International Labour Organization (ILO) under Article 2 says: For the
purpose of this Convention the term collective bargaining extends to all negotiations which take place between an employer, a group of employers or one or more employers' organizations, on the one hand, and one or more workers' organizations, on the other, for –
4
I.L., Labour Law and Labour Relations, Relations, N.M. Tripathi (Pvt) Ltd., Ltd., Bombay, (1968), P.29:
(a) (a)
dete determ rmin inin ing g worki working ng cond condit itio ions ns and and ter terms ms of of empl employ oyme ment nt;; and/ and/or or
(b) (b)
regul regulat atin ing g rela relati tions ons betwe between en emp emplo loye yers rs and and wor worke kers rs;; and/ and/or or
(c)
regula regulatin ting g relati relations ons betwe between en emplo employer yerss or thei theirr organ organiza izatio tions ns and and a worker workers' s' organi organizat zation ion
ILO has defined collective bargaining as,
“negotiation about working conditions and terms of employment between an employer and a group of employees or one or more employees’ organizations with a view to reaching an agreement wherein the terms serve as a code of defining the rights and obligations of each party in their employment/industrial employment/industrial relations with one another”.
This This defini definitio tion n however however confine confiness the term term collec collectiv tivee bargai bargainin ning g as a means means of impro improvin ving g conditions of employment. But in fact, collective bargaining serves something more.
Perlman aptly stated,
"Colle "Collecti ctive ve bargai bargainin ning g is not just a means means of raisin raising g wages wages and improv improving ing condit condition ionss of employment. Nor is it merely democratic government in industry. It is above all technique. Collective bargaining as a technique of the rise of a new class is quite different, from the desire to displace or "abolish" the "old ruling class", to gain equal rights as a class, to acquire an exclusive jurisdiction in that sphere where the most immediate interests, both material and spiritual, are determined. And a shared jurisdiction with the older class or classes in all other spheres."5
The The best best just justif ific icat atio ion n for for coll collect ectiv ivee barga bargain inin ing g is that that it is a syst system em based based on bipa bipart rtit itee agreements, as such superior to any agreement involving third party intervention in matters which essentially concern employers and workers.6
5 6
See Eugene V. Schneider, Industrial Sociology, London, Mc GrawHill, (1971), P. 344. [Report of National Commission on Labour, p.325]
In Encycl Encycloped opedia ia of Social Social Scienc Sciences, es, collec collectiv tivee Bargai Bargainin ning g has been define defined d a proces processs of discussion and negotiations between two parties, one or both of whom is a group of persons acting in concert. The resulting bargain is an understanding as to terms and conditions under which a continuing service is to be performed. More especially, collective bargaining is the procedure by which an employer or employers and a group of employees agree upon the conditions of work.
In the words of John T Dunlop, “Collective Bargaining is: (1) (1)
a syste system m which which esta establ blis ishes hes,, revise revisess and admi admini nist ster erss many many of the rule ruless which which gover govern n the worker’s place of work;
(2) (2)
a proced procedur uree which which deter determi mine ness the quant quantum um of compe compens nsat atio ion n which which employ employee eess shoul should d receive and which influences the distribution of economic ills;
(3)
a metho method d of settl settling ing disp dispute utess durin during g the the penden pendency cy of agreem agreement ent and and of of deter determin mining ing,, after after its expiry, whether a dispute should be re-opened or whether a strike or a lock-out should be resorted or not.
In sum collective bargaining, is labor relations, procedure whereby an employer or employers agree to discuss the conditions of work by bargaining with representatives of the employees, usually a labor union. Its purpose may be either a discussion of the terms and conditions of employment (wages, work hours, job safety, or job security) or a consideration of the collective relations between both sides (the right to organize workers, recognition of a union, or a guarantee of no reprisals against the workers if a strike has occurred). The merits of collective bargaining have been argued by both opponents and proponents of the process; the former maintain that it deprives the worker of his individual liberty to dispose of his service, while the latter point out that without the union's protection the worker is sub ject to the dictation of the employer.
ANALYSIS OF THE CONCEPT OF COLLECTIVE BARGANING
Collec Collectiv tivee bargai bargainin ning g is concern concerned ed with with the relati relations ons betwee between n employ employers ers acting acting through through management and organised labour. It is concerned not only with the negotiation of a formal labour agreement but also with the day-to-day dealings between management and the union. Collective bargaining is a voluntary process under which the representatives of both employers and labour enter into an agreement. The process does not stop as soon as a bargain is reached at between the employer and the trade union. It is a continuous process because the contract is only the the begin beginni ning ng of coll collec ecti tive ve barg bargai aini ning ng.. Barg Bargai aini ning ng requ requir ires es an effi effici cien entt and and perm perman anent ent arrangement for negotiations. No temporary or one-time arrangements can make the bargaining process successful.
Features of Collective Bargaining
The features of collective bargaining are as under:
It is a group process, wherein one group, representing the employers, and the other, representing the employees, sit together to negotiate terms of employment;
Negot Negotiat iation ionss form form an import important ant aspect aspect of the proces processs of collec collectiv tivee bargai bargainin ning g i.e., i.e., there there is considerable scope for discussion, compromise or mutual give and take in collective bargaining;
Collective bargaining is a formalized process by which employers and independent trade unions negotiate terms and conditions of employment and the ways in which certain employmentrelated issues are to be regulated at national, organizational and workplace levels;
Collective bargaining is a process in the sense that it consists of a number of steps. It begins with the presentation of the charter of demands and ends with reaching an agreement, which would serve as the basic law governing labor management relations over a period of time in an enterprise. Moreover, it is flexible process and not fixed or static. Mutual trust and understanding serve as the by products of harmonious relations between the two parties;
It a bipart bipartite ite proces process. s. This This means means there there are always always two parties parties involv involved ed in the proces processs of collective bargaining. The negotiations generally take place between the employees and the management. It is a form of participation;
Collective bargaining is a complementary process i.e. each party needs something that the other party has; labor can increase productivity and managemen t can pay better for their efforts;
Collective bargaining tends to improve the relations between workers and the union on the one hand and the employer on the other;
Collective Collective Bargaining Bargaining is continuous process. It enables enables industria industriall democracy democracy to be effective. effective. It uses cooperation and consensus for settling disputes rather than conflict and confrontation;
Collective bargaining takes into account day to day changes, policies, potentialities, capacities and interests;
It is a political activity frequently undertaken by professional negotiators.
Significance of Collective Bargaining
In an Industrial Establishment to solve the problems arising at the plant or industry level the need of the collective bargaining is eagerly felt. Through negotiations the solution to the common problems can be directly found out between the management and workers and here the collective bargaining plays significant role and its scope is very great. In so far the determination of terms and and condi conditi tion onss of empl employ oyme ment nt are are conce concern rned, ed, one impo import rtan antt cons conseq equen uence ce of coll collec ecti tive ve bargaining has been that it has enabled trade unions to participate in the decision making process regarding hours of work, wages, working conditions etc. Earlier the employer used to decide these issues unilaterally, but now they have become subjects of bilateral negotiations with the advent of collective bargaining. Thus an element of industrial democracy has been introduced by collective bargaining in the field of industrial and labour management.
Collective bargaining is really useful from the stand point of management, trade unions and workers. Among workers it develops a sense of responsibility and self respect if it works well and thus contributes to a great extent to employee’s morale and productivity. It opens up channel channelss of commun communica icatio tion n betwee between n top and bottom bottom of an underta undertakin king g which which is diffic difficult ult otherwise. Further the management’s freedom of action is restricted because the establishment loses its unilateral discretion regarding bargainable issues even when management’s security is intact and thereby learns a new code of behavior by conceiving of the union as a method of dealing with the employees not an obstacle to such dealing.
The significance of collective bargaining from the national stand point is that it helps in creating peaceful industrial climate if properly conducted, thereby increases the pace of the country’s efforts towards social and economic development. Collective bargaining as an instrument of industrial peace has no parallel. It extends the democratic principle from the political to the industrial field and is an important aspect so far as the labour and management relations are concerned.
Functions of Collective Bargaining
The functions of the collective bargaining are as under:
1.
Adju Adjust stme ment nt and and balan balance ce of pow power er bet betwee ween n the the manag managem emen entt and uni union on whe when n they they are are in conf confli lict ct with each other. This function of the system of collective bargaining is one of the methods of effecting social change.
2.
When When two two parti parties es are are in a stat statee of cont contin inuou uouss confl conflic ict, t, it hel helps ps in bri bring ngin ing g about about com compr prom omis ise, e, truce or agreement for establishing peace between the parties. Industrial truce results when two parties to a dispute arrive at a compromise or agreement without resorting to strike or lock-out. Such truce may be stable or temporary. It depends upon the parties as to what extent one party is willing to sacrifice and the other party is willing to accept the demands, or terms. Both the parties are morally bound to implement the agreement once it is signed.
3.
For establ establish ishing ing indust industria riall juris jurispru prudenc dencee it analyse analysess the the righ rights ts and and duti duties es of of conf conflic lictin ting g parti parties. es.
4.
It also also adju adjust stss labou labourr manag managem emen entt disput disputes es apar apartt from from perfo perform rmin ing g functi functions ons lik likee negot negotia iati tion on,, admini administ strat ration ion and enforc enforceme ement nt of agreem agreements ents by which which union union manage management ment relati relations onship hip is governed.
Subject-matter of Collective Bargaining
Collective bargaining has two pronged concerns:
(1)
Chalki Chalking ng out a broad broad contr contract act of of emplo employme yment nt relat relation ionshi ship p between between empl employe oyers rs and and worke workers, rs, and and
(2)
The The adm admiinist nistra rati tion on of the the con contr trac actt.
In fact, it has been recognised as a method of determining the wage rates and other terms and condi conditi tion onss of empl employ oyme ment nt and and of regul regulat atin ing g the the rela relati tions ons betw betwee een n the the mana manage geme ment nt and organized organized labour. labour. Collective Collective bargaining includes provisions provisions with respect to hiring, hiring, lay-offs, lay-offs, promo promotio tions, ns, transf transfers ers,, work work schedu schedulin ling, g, work work assign assignmen ment, t, wages, wages, welfar welfaree progra programme mmes, s, retirement benefits, discipline, etc.
Pre-requisites for collective bargaining
Effective Effective negotiations negotiations and enforcement requires requires a systemati systematicc preparation preparation of the base or ground for bargaining which involves the following steps:
1.
Recognition of the Bargaining Agent: The management should give recognition to the trade
union for participating in the collective bargaining process. In case there is more than one union, selection could be done through verification of membership by a government agency giving representation to all the major unions through joint consultations. Thus, the bargaining agent of the workers should be properly identified before initiating any action.
2.
Decidin Deciding g the Level Level of Bargain Bargaining: ing: Whether the dealings are confined to enterprise level,
indus industr try y leve level, l, regi regiona onall or nati nation onal al leve levell shou should ld be deci decide ded d as the the conte content nts, s, scop scopee and and enforcement agencies differ in each case.
3.
Determining the Scope and Coverage of Bargaining: It would be better to have a clear
understanding of what are the issues to be covered under bargaining. Many a time, bargaining is restricted to wage and working conditions related issues but it would be advantageous for both the management and union to cover as many issues as possible to prevent further friction and disputes. Therefore, all the important and interrelated issues are to be taken for consideration.
4.
spirit of give and take between between the management management and Spirit of Give and Take: When there is a spirit union, collective bargaining can be an effective technique of settling industrial disputes.
5.
Good Faith and Mutual Agreement: The parties to collective bargaining should act in good
faith and do the things on the basis of mutual agreement as there is no legal sanction behind the terms and conditions agreed upon by the parties.
Importance of Collective Bargaining
Collective bargaining is an important method of regulating relations between employers and employees. employees. It involves involves negotiation, negotiation, administratio administration n and enforcement enforcement of the written written contracts contracts between the employees and the employers. It also includes the process of resolving labourmanagement conflicts.
Healthy collective bargaining generates a spirit of self-confidence and self-reliance among the workers. It is based on a ‘give and take’ policy on both sides. Collective bargaining leads to increased goodwill and understanding between labour and management. This in turn helps to create peaceful and comfortable atmosphere in industrial relations.
Importance to employees
Collective bargaining develops a sense of o f self respect and responsibility among the employees
It increases the strength of the workforce, thereby, increasing their bargaining capacity as a group
Collective bargaining increases the morale and productivity of employees;
It restri restricts cts managem management ent’s ’s freedo freedom m for arbitr arbitrary ary action action against against the employ employees ees.. Moreov Moreover, er, unilateral actions by the employer are also discouraged;
Effective collective bargaining machinery strengthens the trade unions movement;
The workers feel motivated as they can approach the management on various matters and bargain for higher benefits;
It helps in securing a prompt and fair settlement of grievances. It provides a flexible means for the adjustment adjustment of wages and employment conditions conditions to economic economic and technological technological changes in the industry, as a result of which the chances for conflicts are reduced;
It helps in securing a prompt and fair settlement of grievances. It provides a flexible means for the adjustment adjustment of wages and employment conditions conditions to economic economic and technological technological changes in the industry, as a result of which the chances for conflicts are reduced. Importance to employers
It becomes easier for the management to resolve issues at the bargaining level rather than taking up complaints of individual workers.
Collective bargaining tends to promote a sense of job security among employees and thereby tends to reduce the cost of labor turnover to management.
Collective bargaining opens up the channel of communication between the workers and the management and increases worker participation in decision making.
Collective bargaining plays a vital role in settling and preventing industrial dispute
Importance to society
Collective bargaining leads to industrial peace in the country;
It results in establishment of a harmonious industrial climate which helps the pace of a nation’s efforts towards economic and social development since the obstacles to such a development can be reduced considerably;
The discrimination and exploitation of workers is constantly being check ed;
It provides a method or the regulation of the conditions of employment of those who are directly concerned about them.
Principles of Collective Bargaining
As mentio mentioned ned before before that that the collec collectiv tivee bargai bargainin ning g has succee succeeded ded in introd introduci ucing ng indust industria riall democracy in industrial and labour managements. Industrial democracy implies that the majority
union should have the right to sole representation i.e. the right to speak and act for all workers and to enter into agreements with the employer. There are certain principles which have to be followed by both the management and workers for collective bargaining. These principles are as follows:
1.
Ther Theree shou should ld be be a real realiz izat atio ion n on the the part part of bot both h unio unions ns and and man manag agem emen ents ts tha thatt for for taki taking ng wis wiser er an more expedient decisions, collective bargaining is a proper method.
2.
An oppor opportu tuni nity ty shou should ld be be provi provide ded d to trad tradee union union lead leader erss for put putti ting ng thei theirr compl complai aint nts, s, dema demand nds, s, need needs, s, etc. etc. befo before re the the mana manage geme ment ntss and and the the mana manage geme ment nt shou should ld expl explai ain n to them them the the circumstances and make efforts to redress the grievances/complaints of the w orkers.
3.
The The pres presenc encee of gen genui uine ne spi spiri ritt of mut mutual ual trus trust, t, good goodwi will ll and and barg bargai aini ning ng sho shoul uld d be the there re on on the the part of both the parties;
4.
Comp Compet eten ence ce for for barg bargai aini ning ng with with mut mutua uall resp respect ect and and impl implem emen enta tati tion on of the the agre agreem ement ent arr arriv ivee at should be possessed by both the parties.
5.
The The part partie iess to col colle lect ctiv ivee barga bargain inin ing g shoul should d be hone honest st and and the the agre agreem emen entt shou should ld be be condu conduct cted ed by these honest, competent and reasonable leaders;
6.
Keep Keepin ing g in vie view w the the chang changin ing g circ circum umst stan ance ces, s, it it is des desir irab able le tha thatt the the mana managem gement ent sho shoul uld d chang changee their policies and should keep in view the dignity of the workers. Appropriate labour policy shou should ld be adopt adopted ed by the the mana manage geme ment nt and and this this poli policy cy to be foll follow owed ed by all all empl employ oyees ees.. Necessary precautions must be taken.
7.
If the there re are are mor moree than than one one uni union on the the man manage ageme ment nt shou should ld ent enter er int into o negot negotia iati tion on wit with h unio union n havi having ng majority representation.
8.
It is is equa equall lly y desi desira rabl blee on the the par partt of the the uni union on to to rais raisee reas reason onabl ablee dema demands nds.. They They sho shoul uld d not not put put up such demands as are beyond the paying capacity of the establishment or may be against the national policies.
Scope of Collective Bargaining
The growth of collective collective bargaining bargaining is associated associated with the recognition recognition of trade unionism. unionism. With the growth of trade unions and industrialization the scope of collective bargaining is expanding. Initially collective bargaining was used for determining hours of work, wages and terms of employment employment,, but now within within its purview are included the issues issues like leave with pay, regulation regulation of forced leave, pension, seniority promotions, sickness and maternity benefits, etc. Since in the field of bargaining collective action is now common, collective bargaining has assumed an institutional form. In the words of C.W. Randle:
“The subject matter of collective collective bargaining bargaining had broadened until it has virtually virtually eliminated eliminated the field of the management prerogatives. The area pattern of bargaining has moved from simple style plant bargaining to region-wise and finally to dynamic nature of the scope of collective bargaining. At the same time, they show how important negotiation has become as an institution. And the future holds promise of an even greater role for collective”.
Advantages and Disadvantages of Collective Bargaining
Advantages of Collective Bargaining
According to National Commission Report on labour collective bargaining has been preferred over compulsory adjudication system for several reasons:
(a)
It is is a syste system m based based on bipart bipartite ite agre agreeme ements nts,, and as as such, such, supe superio riorr to any any arra arrange ngement ment involv involving ing third party intervention in matters which essentially concern employees and workers;
(b)
It is quick quick and and effici efficient ent method method of settle settlement ment of indust industri rial al disput disputes; es; and
(c) (c)
It is democr democrat atic ic met method hod of set settl tlem emen entt of indus industr tria iall disp disput utes es;;
Disadvantages of Collective Bargaining
Two vital defects in collective bargaining have been pointed out by Willcox. These defects are:
(a)
There There are are situat situation ionss in which which a seriou seriouss strik strikee and prol prolonge onged d strike strike simp simply ly canno cannott be tole tolerat rated. ed.
(b) (b)
The The secon second d great great flaw flaw in coll collect ectiv ivee bargai bargaini ning ng as a solve solvent nt for for labour labour dis dispu pute tess is the lac lack k of representation of the public interest at the bargaining table. Whether prices can be raised without strangling and ability to sell goods or services, unions and companies are in a position to agree on wage increase that will cause higher prices, then the consumer must shoulder the full burden of their agreement7.
7
[ALJ, (1965) p.39]
COLLECTIVE BARGAINING PROCESS
The collective bargaining process begins when the majority of workers of an organization vote to be represented by a specific union. The National Labor Relations Board (see Labor Unions) then certifies certifies the union. At this point, the management of the organization organization must recognize recognize the union as the collective bargaining agent for all the employees of that organization. Once this part of the process is completed, collective bargaining can begin.
Bargaining always takes place between labor and management, but negotiations can include more than one group of workers and more than one employer. Single-plant, single-employer agreements are the most common. However, if an employer has more than one plant or work site, multiplant, single-employer agreements can be bargained. Several different union groups representing the workers of the same employer can use coalition bargaining. Industry wide bargaining involves one national union bargaining with several employers of a specific industry. Many different negotiation styles can be used when union and labor representatives sit down at the the barg bargai aini ning ng tabl table. e. The The two two basi basicc mode modess of barg bargai aini ning ng are are tradi traditi tiona onall barg bargai aini ning ng and and partnership bargaining, though there are many variations of each style.
The traditional style of bargaining has been used since collective bargaining began between management and the early labor unions. It is an adversarial style of negotiating, putting one side against the other with little or no understanding of, or education about, the other on the part of either party. Each side places its demands and proposals on the table, and the other side responds to them with counterproposals. The process is negative and involves a struggle of give-and-take on most issues. Even with its negative connotations, however, the traditional style of negotiating is still used effectively in bargaining many union contracts.
The partnership style of bargaining is the more modern approach to negotiations. It strives for mutual mutual understandi understanding ng and common common education education on the part of both labor and management, management, and it focuses on goals and concerns common to both parties. Because of its emphasis on each side's being aware of the issues concerning the other side, partnership-style bargaining is also known as interest-based bargaining. In this process, labor and management each list and explain their
needs, and the ensuing discussion revolves around ways to meet those needs that will be not only acceptable but also beneficial to both parties. This style of bargaining is very positive and imparts a much more congenial atmosphere to the negotiating process. Many modern unionmanagement contracts are bargained very successfully using the p artnership style.
A blendi blending ng of the tradit tradition ional al and partne partnersh rship ip styles styles is widely widely used used in laborlabor-man managem agement ent negotiations negotiations.. The combination combination approach approach is used for many reasons, reasons, including the fact that many union and management leaders are more familiar with the traditional style. However, with today's more participatory relationship between labor and management in the workplace, the partnership style is becoming more accepted and is being used more frequently. The negotiating proces processs may also also includ includee both both styles styles of bargai bargainin ning g because because of the variety variety of issues issues being being negotiated. The partnership style may be used to negotiate certain issues, while the traditional style may be invoked when bargaining other terms.
Collective Bargaining Issues
Labor unions were formed to help workers achieve common goals in the areas of wages, hours, working conditions, and job security. These issues still are the focus of the collective bargaining process, though some new concepts have become the subjects of negotiations.
The Settlement Process
Union contracts are usually bargained to remain in effect for two to three years but may cover longer or shorter periods of time. The process of negotiating a union contract, however, may take an extended period of time. Once the management and union members of the negotiating team come to agreement on the terms of the contract, the union members must accept or reject the agreement by a majority vote. If the agreement is accepted, the contract is ratified and becomes a legally binding agreement remaining in effect for the specified period of time.
If the union membership rejects the terms of the agreement, the negotiating teams from labor and management return to the bargaining table and continue to negotiate. This cycle can be repeated
several times. If no agreement can be reached between the two teams, negotiations are said to have "broken down," and several options become available.
Mediation is usually the first alternative when negotiations are at a stalemate. The two parties agree voluntarily to have an impartial third party listen to the proposals of both sides. It is the mediator's job to get the two sides to agree to a settlement. Once the mediator understands where each side stands, he or she makes recommendations for settling their differences. The mediator merely merely makes suggestions, suggestions, gives advice, and tries tries to get labor and management management to compromise compromise on a solution. Agreement is still voluntary at this point. The mediator has no power to force either of the parties to settle the contract, though often labor and management do come to agreement by using mediation.
If mediation fails to bring about a settlement, the next step can be arbitration, which can be either compul compulsor sory y or volunt voluntary ary.. Compul Compulsor sory y arbit arbitrat ration ion is not often often used used in laborlabor-man manage agemen mentt negotiations in the United States. Occasionally, however, the federal government requires union and management to submit to compulsory arbitration. In voluntary arbitration, both sides agree to use the arbitration process and agree that it will be binding. As in mediation, an impartial third party serves in the arbitration process. The arbitrator acts as a judge, listening to both sides and then making a decision on the terms of the settlement, which becomes legally binding on labor and and mana managem gement ent.. Nine Ninety ty perc percen entt of all all unio union n cont contra ract ctss use use arbi arbitr trat atio ion n if the the unio union n and and management can't come to agreement (Boone and Kurtz, 1999).
Sources of Power
If the collective bargaining process is not working as a way to settle the differences between labor and management, both sides have weapons they can use to bolster their positions. One of the most effective union tactics is the strike or lockout. While on strike, employees do not report to work and, of course, are not paid. Strikes usually shut down operations, thus pressuring management to give in to the union's demands. Some employees, even though allowed to belong to unions, are not allowed to strike. Federal employees fall into this category. The law also prohibits some state and municipal employees from striking.
During a strike, workers often picket at the entrance to their place of employment. This involves marching, carrying signs, and talking to the media about their demands. The right to picket is protected by the U.S. Constitution as long as it does not involve violence or intimidation.
Problems sometimes arise during strikes and picketing when management hires replacement workers, called scabs or strikebreakers, who need to cross the picket line in order to do the jobs of the striking workers.
The boycott is another union strategy to put pressure on management to give in to the union's demands. During a primary boycott, not only union members but also members of the general public are encouraged to refuse to conduct business with the firm in dispute with the union. Though it is rarely done, management may use the lockout as a tactic to obtain its bargaining objectives. In this situation, management closes down the business, thus keeping union members away from working. This puts pressure on the union to settle the contract so employees can get back to their jobs and receive their wages.
Management sometimes uses the injunction as a strategy to put pressure on the union to give in to its demands. An injunction is a court order prohibiting something from being done, such as picketing, or requiring something to be done, do ne, such as workers being ordered to return to work.
Grievance Procedures
Once a collective bargaining agreement is settled and a union contract is signed, it is binding on both the union and management. However, disagreements with contract implementation can arise and violations of the contract terms can occur. In these cases, a grievance, or complaint, can be filed. The differences that must be resolved are usually handled through a step-by-step process that is outlined in the collective bargaining agreement. The grievance procedure begins with a complaint to the worker's immediate supervisor and, if unresolved at that level, moves upward, step by step, to higher levels of management. If no resolution is found at any of these levels, the two parties can agree to have the grievance submitted to an impartial outside arbitrator for a decision binding to the union and management.
Collective bargaining is a successful way for workers to reach their goals concerning acceptable wages, hours, and working conditions. It allows workers to bargain as a team to satisfy their needs. Collective bargaining also allows management to negotiate efficiently with workers by bargaining with them as a group instead of each one individually. Though traditional bargaining can be negative and adversarial, it does produce collective bargaining agreements between labor and management. Partnership bargaining can lead to increased understanding and trust between labor and management. It is a positive, cooperative approach to collective bargaining that also culminates in contracts between labor and management.
Levels of Collective Bargaining
Collective bargaining operates at three levels: 1.
National level
2.
Sector or industry level
3.
Company/enterprise level
Economy-wide (national) bargaining is a bipartite or tripartite form of negotiation between
union union confeder confederati ations ons,, central central employ employer er associ associati ations ons and governm government ent agenci agencies. es. It aims aims at providing a floor for lower-level bargaining on the terms of employment, often taking into account macroeconomic goals
Sectoral bargaining , which aims at the standardization of the terms of employment in one
industry, includes a range of bargaining patterns. Bargaining may be either broadly or narrowly defined in terms of the industrial activities covered and may be either split up according to territorial subunits or conducted nationally.
Company/enterprise level , this bargaining level involves the company and/or establishment. As
a supplementary type of bargaining, it emphasizes the point that bargaining levels need not be mutually exclusive.
STRIKE AND LOCKOUT AS A METHOD OF COLLECTIVE BARGAINING
The Right to Strike as Method of Collective Bargaining
The right to strike is labors’ ultimate weapon and in the course of the century, it has emerged as the inherent right of every worker. It is an element, which is of the very essence of the principle of collective “Bargaining”8. In Conway v Way9 the Court adopted the phrase “industrial warfare” where the Court described ‘strike’ and ‘lock-outs’ as the ‘weapons allowed by the law’. The strike is the antithesis of lockout. It is regarded as a powerful weapon of collective bargaining and is generally fraught with a possibility of industrial dislocation with all its a ttending hardships and evils, the occurrence of which is regarded as one of the powerful levers to bring about agreements. The trade unions with sufficient memberships strength are able to bargain more effectively with the management than individual workmen. The bargaining strength would be considerably reduced if it is not permitted to demonstrate by adopting agitational methods such as “work “work to rule”, rule”, absent absenteei eeism” sm”,, “sit “sit down down strike strike”” and “stri “strike”. ke”. Collec Collectiv tivee Bargai Bargainin ning g for securing improvement on matters like wages, basic pay, dearness allowance, bonus, provident fund, gratuity, leave, holidays and other terms of service and conditions of labour, is the primary object of trade unions and when demands like this are put forward, a strike thereafter may justifiably be resorted to in an attempt to induce the employer to agree to the demands or at least to open negotiations. Sometimes the threat of strike is enough to make the employer concede to the demands of the union.
But the right to strike is not absolute and the industrial jurisprudence has subjected it to certain limitations.10 In Syndicate Bank v K.Umesh Naik 11, Sawant, J stated the law in the following words-
“The strike, as a weapon, was evolved by the workers as a form of direct action, during their long struggle with the employers. It is essentially a weapon for the last resort being an abnormal 8
AP State Road Transport Corporation Employee’s Employee’s Union v APSRTC (1970) Lab IC 1225 (AP Conway v Way (1909) AC 506 (HL) 10 B.R.Singh v Union of India (1990) Lab IC 389 Syndicate Bank v K.Umesh Naik, AIR 1995 SC 319 11 Syndicate Bank v K.Umesh Naik, AIR 1995 SC 319 9
aspect of the employer employee relationship and involves withdrawal of labour disrupting production, services and the running of the enterprise. It is a use by the labour of their economic power to bring the employer to see and meet their point of view over the dispute between them. The cessation or stoppage of works whether by the employee or the employer is detrimental to the production and economy and the well being of the society as a whole. It is for this reason that the industrial legislation while not denying the right of workmen to strike, has tried to regulate it along with the right of the employer to lock out and has also provided a machinery for peaceful investigation, settlement, arbitration, adjudication of the disputes between them. The strike or lock-out is not to be resorted to because the concerned party has a superior bargaining power or the the requ requis isit itee econ econom omic ic musc muscle le to comp compel el the the othe otherr part party y to acce accept pt its its dema demand nd.. Such Such indi indisc scri rimi minat natee use use of power power is nothi nothing ng but asse assert rtio ion n of the the rule rule of ‘mig ‘might ht is righ right’ t’.. Its Its consequences are lawlessness, anarchy and chaos in the economic activities, which are most vital and fundam fundament ental al to the survival survival of the society. society. Such action action,, when the legal legal machin machinery ery is available to resolve the dispute, may be hard to justify. This will be particularly so when it is resorted to by the section of the society, which can well await resolution of the dispute by the machinery provided by the same. The strike or lock-out, as a weapon, has to be used sparingly. For redressal redressal of urgent and pressing grievances grievances when no means are available or when available available means have failed to resolve it. It has to resort to, compelling the other party to the dispute to see the justness of the demand. It is for this reason that the industrial legislation such as the Act places additional restriction on strikes and lock outs in public utility services.”
The strike is a recognized mode of agitation to press home the demands of the workers in the process process of collective collective bargaining, bargaining, but strike cannot be resorted resorted to pressurize pressurize the management management to accede to the demands which they cannot get lawfully. For instance the weapon of strike cannot be used to pressurize the management to pay additional amount of bonus apart from the bonus permissible under the Payment of Bonus Act.
Lockouts as Weapon of Collective Bargaining
Lockout can be described as the antithesis of a strike. Just as strike is a weapon available to the employee for enforcing their industrial demand, a lock out is a weapon available to the employer
to persuade by a coercive process the employee to see his point of view and to accept his demands. In the struggle between the capital and labour the weapon of strike is available to labour and is often used by it, so is the weapon of lock out available to the employer and can be used by him.
Lock out was comprehensively defined in the repealed Trade Disputes Act, 1929 as “closing of place of employment or suspension of work or refusal by an employer to continue to employ any number of persons employed by him in consequence of a dispute done with a view to compelling those persons or to aid another employer in compelling persons employed by him to accept terms or conditions of or affecting employment”. This definition was based on the definition of lock out in the English statute. The present definition omits the words “when such closing, suspension or refusal occurs in consequence of a dispute and is intended for the purpose of compelling those persons or to aid another employer in compelling persons employed employed by him employed by him to accept terms or conditions of or affecting employment” from the old definition. The deletion of these words has left the definition only a mutilated and truncated version of the concept of lockout. The Court has described the consequences of construing the definition of lock out as it stands without reading the effect of the deleted words in it. “If an employer closes the place of employment or suspends work on his premises, lock out would come into existence. A flood may have swept away the factory; a fire may have gutted the premises ; a convulsion of nature may have sucked the whole place underground, still if the place of employment is closed or the work is suspended or the employer refuses to continue to employ his previous workers, there would be a ‘lock out’ and the employer would find himself exposed to the penalties laid sown in the Act.”12. The High Court then read the effect of the deleted words into the definition and observed that where the shut down, suspension or refusal is used a weapon corresponding to a strike, then only it will be a lock out.
Section 2(1) of the Industrial Disputes Act, 1947 defines a “lock out” as meaning the closing of a place of employment, or the suspension of work, or the refusal by an employer to continue to employ any number of persons employed by him. A lockout is the closure of an industrial undertaking because of the existence of or apprehension of an industrial dispute, violence and 12
Sri Ram Chandra Spinning Mills v Province of Madras AIR 1956 Madras 241.
damage to property. It is the suspension of employment in so far as the employer refuses to give work to the workmen workmen until they yield to his demand or withdraw the demands made on him; or because of closing down of a place of employment and the suspension of the work.
A lock out is used with some intention, i.e., to coerce or force workmen to come to terms. The lockouts, thus necessarily involve an overt act on the part of the employer and an element of motive ill-will. In the absence of this overt act, the temporary suspension of work would not amount to a lock out and the workmen cannot claim wages for the period of closure.13 The consequences of strikes and lock outs are detrimental to industry as a whole and to the economy of the country because they lead to loss of production.
The Indian Law recognizes strike and lockout as methods of collective bargaining.
Critique of Supreme Court’s ruling on strike as a collective bargaining weapon
The right to strike is organically linked with the right to collective bargaining and will continue to remain an inalienable part of various modes of response/expression by the working people, wherever the employer-employee relationship exists, whether recognized or not.
As the Supreme Court has declared in Gujarat Steel Tubes v. G. S. T. Mazdoor Sabha 14 :
"The right to union, the right to strike is part of collective bargaining and, ….. the right of the labour to pressure ...... the capital, to negotiate and render justice are processes recognised by Industrial Jurisprudence ........ Industry, represented by intransigent managements, may well be made to reel into reason by the strike weapon and cannot then squeal or well (sic) and complain of loss of profits or other ill effects but must negotiate or get a reference made.15
The Court said that part IV of the Constitution read with Art. 19, "sows the seeds of this bargaining Jurisprudence."16 13
Shree Narayana Steel Rolling Mills v Their Workmen, 52 FJR 1978, 169 (1980) 1L.L.J. 137 (S.C.) 15 Id. at 168 16 Ibid 14
If the Directive Principles of State Policy enumerated under part IV of the Constitution when read with Art.19 (which guarantees to the Indian citizens fundamental rights like freedom of speech speech and expres expressio sion, n, freedo freedom m of associ associati ation, on, etc.)" etc.)" "sow "sow the seeds seeds of ....... ....... bargai bargainin ning g Jurisprudence" then, the relative questions would be: Does the Constitution recognize the right to strike? Does the right to form unions17 guaranteed under the Constitution carry with it the concomitant right to achieve the purpose for which the union is formed? In other words, if the workers are guaranteed the right to form trade unions, should such trade unions be entitled to engage in collective bargaining and to exercise, if necessary, the right to strike so that the raison' d' etre for the establishment of trade unions serves its purpose. The very object of a trade union is to substitute collective bargaining for individual bargaining and collective bargaining may be meaningless without the right to strike. A trade union without the right to strike is a "poor" and "weak" trade union indeed. According to G. D. H. Cole:
Workers are required to resort to strike because becau se without a strike they cannot secure a rectification of the terms of employment imposed imposed upon them because basically basically there is no equality equality between them and their employers. They always appear to be in the wrong in the sense of committing a breach of contract. But that is inevitable in the situation in which they are p1aced p 1aced..18
However, when the Supreme Court was presented with the same question (formulated slightly differently)-whether the right to form a union would carry with it the concomitant right to collective bargaining and strike, the Supreme Court answered in the negative, in All India Bank Employee's Association v National Industrial Tribunal 19 by ruling: "on the consideration of the
Articles (19(1) (c))…….. we have reached the conclusion that even a very liberal interpretation of Sub- clause (c) of clause (1) of Article 19 cannot lead to the conclusion that the trade unions have a guaranteed right to an effective collective bargaining or to strike either as a part of collective bargaining or otherwise."20
17
Art. 19(1) (c) Cole, G.D.H., British Trade Unionism Today 86. 19 A.I.R. 1962 S.C. 171. 20 Id. at 181. See Radhe Shyam Sharma v. P.M.G. Nagpur, AI.A. 1965S.C.311 at 313; Ghosh v. Joseph, ALA. 1963 S.C. 813 (No fundamental right to strike); Kameshwar Prasad v. State of Bihar. ALA. 1962S.C. 1166at 1172(No fundamental right to strike) 18
Gujarat Steel Steel Tubes Tubes 21 that the It is not clear whether the Supreme Court by observing in Gujarat
Directive Principles when read with Art.19 (which guarantees, inter alia, to the citizens the fundamental right to form an association) "sow the seeds of…….. bargaining Jurisprudence" has sought to elevate the right to strike to the level of a fundamental right in the face of the decisions to the contrary rendered by the same Court earlier. 22 There is however, a categorical observation by the Supreme Court in B.R. Singh and others v. Union of India 23 that right to strike is not a fundamental right. The Court has said: "Though (right to strike) is not raised to the high pedestal of a fundamental right, it is recognised as a mode of redress for resolving the grievances of workers."
21
Supra Note 14 Supra Note 19 23 (1989)2 L.L.J. 591, 597 22
COLLECTIVE BARGAINING AGREEMENT
The agreement arrived at between the representatives of a trade union and the employer is called as collective bargaining agreement. Ludwig Teller has broadly defined collective bargaining agreement as “an agreement between a single employer or an association of employers on the one hand and a labour union upon the other, which regulates the terms and conditions of employment.” The term ‘collective’ as applied to collective bargaining agreement will be seen to reflect the plurality not of the employers who may be parties thereto, but of the employees therein involved. Again the term collective bargaining is reserved to mean bargaining between an employer or group of employers and a bona fide labour union. Bargaining which involves a company dominated union is assumed to be merely a disguised form of individual bargaining. As per Teller the Collective Bargaining agreement bears in its many provisions the imprints of decades of activity contending for labour equality through recognition of the notions underlying coll collect ectiv ivee negot negotia iati tion. on. Indee Indeed, d, in the the colle collect ctiv ivee barg bargai aini ning ng agree agreeme ment nt is to be foun found d a culminating purpose of labour activity24.
Collective Collective agreements agreements may be written written or unwritten. unwritten. Whatever be the form of agreements these may be looked upon as legislative acts setting forth the rules governing employment relationship for a specified period of time. However, these laws are private in nature. Despite many of the laws passed by the legislature, these agreements are of greater importance to the workers in majority of cases. The economic strength of the parties is supposed to be the main sanction behind a collective agreement. If a party under the agreement does not agree to abide by and fulfill the commitments, the other party in order to meet its obligations can force him by resorting to economic pressures to do so.
Validity of Collective Bargaining Agreements
The collective bargaining agreements may have been made subjects of litigation regarding their validity, enforceability and interpretation. The usual case involves where an employee files a suit in pursuant to the agreement to recover damages or assets his seniority rights guaranteed to him 24
Teller, 476
in the agreement. But there are other ways also whereby the problem is raised. For example, a suit may be filed by the labour organization, an employer or employer’s association for specific performance or to claim damages or to seek the enforcement of an arbitration clause stipulated in the agreement. If there is an alleged violation of the agreement it is sometimes sought to enjoin a strike or lock-out called for the purpose or sometimes the labour organization is the plaintiff seeking to enjoin a lock-out in breach of the agreement or failure to hire union employees etc. Where the legality of the agreement is designed to be destroyed, the validity of collective bargaining agreement is also tested in this proceedings. As for example, to secure a closed shop or to regulate an entire industry by prescribing rules governing co mpetition etc.
Duration of Collective Bargaining Agreements
The durations of collective bargaining agreements vary widely. Unions generally favour shorter contracts, while managements favour longer ones. In the United States many of the contracts are for a period of one to three or more years, with options to renew. In the United Kingdom, “open end” contracts, contracts, which can be negotiated negotiated on notice at any time, time, are the rule. In the Scandinavian Scandinavian countries, one year contracts with renewal clauses are usual.
The position in India is not clear. A study of 114 contracts in 1961 by the Employers Federation of India showed that a majority of them were for one to five years, with a strong trend in favour of longer terms. (This may perhaps be evidence of control by employer or of employer’s superior bargaining power or both). The long-term contract has two advantages for management over the short-term one: (1) (1)
It impa impart rtss stab stabil ilit ity y to labo labour ur-m -man anag agem emen entt rela relati tion ons, s, and and (2) (2)
It help helpss in plann plannin ing g produc producti tion on and expa expans nsio ion n progr program amme mess based based on fixed fixed lab labour our cos costs ts (one of the highest items in the budgets of many industries).
Contents or Subject Matter of Collective Bargaining Agreements
The subjects for collective bargaining are determined by the parties in some countries and by law in others. In Denmark, Germany, Italy, Norway, Sweden, Switzerland, the United Kingdom and
the United States, the parties determine their subjects freely (of course within legal limits). In Brazil, Columbia, Equador and some other Latin American Countries the law specifies that every contract must include clauses regulating wages, hours, rest periods, holidays, the duration of the agreement, the procedure for its extension. In France, every national collective contract must contain provisions on freedom of employees (with particular reference to the prohibition of discri discrimin minati ation on on grounds grounds of member membershi ship p in any partic particula ularr union) union),, length length of notice notice,, and organization of apprenticeship and training. In Canada, every contract must contain a grievance procedure.25
In India the selection of subjects, while it is for the parties to decide, is nevertheless rather narrowly circumstanced by law. For example, the negotiators of a contact must always keep in mind the provisions of the Factories Act, 1948, the Industrial Employment (Standing Orders) Act, 1946, the Minimum Wages Act, 1948 and the Payment of Wages Act, 1936. These deal with with many many subjec subjects ts such such as safety safety precau precautio tions, ns, health health measur measures, es, amenit amenities ies,, condit condition ionss of employ employment ment,, retren retrenchm chment ent must must be carrie carried d out, out, ration rationali alizati zation on must must be undert undertaken aken,, and disciplinary proceedings must be handled.
Some contracts are short and deal with a few matters, while others are elaborate and deal with many. Usually all contracts in India contain most or all of the following clauses: (1) (1)
A prea preamb mble le sta stati ting ng the the pos posit itio ions ns of of the the par parti ties es;;
(2) (2)
Reco Recogni gniti tion on by the empl employ oyer er of the unio union n as sole sole bargai bargaini ning ng agent agent and of its its right right to organize the workers;
(3) (3)
Reco Recogni gniti tion on of the righ rightt of manage manageme ment nt to carry carry on its its normal normal activ activit itie iess and meet meet its responsibilities;
(4) (4)
Wage Wa ges, s, bonu bonuss and and dea dearn rnes esss all allow owan ance ce;;
(5) (5)
Grad Grades es,, job job cla class ssif ific icat atio ion n and and job job eval evaluat uatio ion; n;
(6) (6)
Hour Hourss of of wor work, k, holi holida days ys,, leav leavee and and overt overtim ime; e;
(7)
Dismis Dismissal sal,, dischar discharge, ge, termi terminat nation ion and reti retirem rement ent from from servic servicee in so far far it is not cove covered red by the company’s standing orders;
(8) 25
Medica Medicall benefi benefits, ts, provid provident ent fund, fund, pension pension and gratui gratuity; ty;
ILO, Collective Bargaining 46-47
(9)
Joint Joint machin machinery ery for for the effi efficie cient nt and smoot smooth h functio functionin ning g of the indust industry ry,, such as a joint joint production committee, a joint labour relations committee, a job evaluation committee, or a discipline, safety and welfare committee;
(10) (10)
Grie Grieva vanc ncee proc proced edur ure; e;
(11) (11) No-s No-str trik ikee clau clause se,, and and an unde undert rtak akin ing g that that disp disput utes es will will be sett settle led d thro throug ugh h mutu mutual al consultation; and (12) (12)
The dura durati tion on and termin terminati ation on of the the contr contract act..
The signing of the contract makes a great impression on the rank and file of the union. “ Its formal language is the mark of its significance and…a guarantee that the management will carry out its pledged word. It strengthens strengthens the position position of the union in the eyes of the members, members, and it provides basis for a continuing and dignified relationship between the management and the employers”.26
Enforcement of Collective Bargaining Agreements
The enforcement of bargaining contracts depends in some countries on the good faith of the parties and in others, on that, plus the law. In the United Kingdom, such contracts are called “gentlemen’s agreements”. To enforce them in a court of law, workers must rely on their indivi individual dual contra contracts cts with with their their employ employer, er, which which may in some some cases cases incorp incorpora orate te the larger larger agreement. In a great many countries of Europe, Latin America and Asia, the effects of the contract are regulated by special legislation. They can then be enforced in a court of law, either by the union or by the individual worker, through an action for damages for breach of contract. Scandinavian countries, Germany, Ireland and some Latin American countries have established special courts to enforce the contracts on the grounds that procedure in ordinary courts is long and costly, that delay may result in a strike and to secure a quick remedy. The actions here must usually be brought by the unions; but in some cases individuals may be allowed to start proceedings.27
26 27
Mary Sur, Supra Note 1 at 107 ILO, Collective Bargaining 71-72
In India, the collective bargaining agreements can be enforced under section 18 of the Industrial Disputes Act, 1947, as a settlement arrived at between the workers and the employers. The appropriate government may refer the dispute over a breach of contract to a labour court or to an industrial tribunal.
I.L.O CONVENTIONS ON COLLECTIVE BARGAINING
India is a founder member of the International Labour Organization, which came into existence in 1919. A unique feature feature of the the ILO is its its tripartit tripartitee character. character. The membershi membership p of the ILO ensu ensure ress the the grow growth th of trip tripar arti tite te syst system em in the the Memb Member er count countri ries es.. At ever every y level level in the the Organization, Governments are associated with the two other social partners, namely the workers and employers. All the three groups are are represented on almost all the the deliberative organs of the ILO and share responsibility in conducting its work.
The principal means of action in the ILO is the setting up the International Labour Standards in the form of Conventions Conventions and Recommendati Recommendations. ons. Conventions Conventions are internatio international nal treaties treaties and are instru instrumen ments, ts, which which create create legall legally y bindin binding g obliga obligatio tions ns on the countri countries es that that ratif ratify y them. them. Recommendations are non-binding and set out guidelines orienting national policies and actions.
Specific features of Conventions
Conventions have a number of specific features, which can be grouped under four main ideas:
1.
Conv Convent entio ions ns are are adopt adopted ed with within in an inst instit itut utio ional nal fra frame mewo work rk.. Thus, Thus, the the adopt adoptio ion n of Conve Convent ntio ions ns does not follow the type of diplomatic negotiation which is usual in the case of treaties. They are rath rather er prep prepar ared ed in disc discus ussi sion onss in an asse assemb mbly ly that that has has many many poin points ts in comm common on with with parliament parliamentary ary assemblies. assemblies. This also partly explains the fact that unanimity unanimity is not necessary for the adoption of Conventions. For the same reason, only the International Court of Justice can interpret the Conventions. The revision of Conventions is made only by the General Conference, which is the legislative body of the Organization.
2.
The
Inte nternat nationa onal
Labour
Conferenc ence,
whic hich
adop dopts Conve nventions,
is cons onstitute uted
by
representatives of governments, employers and workers, each delegate being entitled to vote individually.
3.
A twotwo-th thir irds ds majo majori rity ty is is suffi suffici cient ent for for the the adopt adoptio ion n of a Conven Conventi tion, on, and and gove govern rnme ment ntss shoul should d submit the Convention to their competent authorities for ratification, i.e. as a rule to their parliaments. Also, the governments have the obligation, when requested, to supply reports on various issues related to Conventions.
4.
Some Some Conv Conven enti tion onss incl includ udee flex flexib ibil ilit ity y clau clause ses, s, becau because se they they are gene genera rall lly y dire direct cted ed towa toward rdss countr countries ies with with very very differ different ent econom economic, ic, social social and polit political ical condit condition ions, s, as well well as differ different ent consti constitut tutiona ionall and legal legal system systems. s. The flexib flexibili ility ty clause clausess compri comprise se option optionss regard regarding ing the following:
(a)
Obligations : possibility of choosing, at the time of ratification, by means of formal declaration,
the extent of the obligations undertaken. (for .e.g. Social Security Convention, No. 102)
(b)
Scope: Governments may decide for themselves, subject to certain consultations, what the scope
of the Convention shall be (for. e.g. Conventions of minimum wage fixing machinery, Nos. 26 and 29), or they may be permitted to exclude certain categories of persons or undertakings (for e.g. Conventions on night work, Nos.41 and 89), or the definitions of persons covered may be based on a specified percentage of the wage earners or population of the country concerned (for e.g. many social security Conventions), or exceptions are allowed for a certain part of the country (Various types of Conventions, for e.g. Nos. 24, 25, 62, 63, 77, 78, 81, 88, 94, 95, 96 etc.), or governments may themselves define a certain branch, industry or sector (for e.g. Weekly rest Convention, No. 106);
(c)
Methods: State which ratifies a Convention shall take such action as may be necessary to make
effective the provisions of such Convention, custom, administrative measures or, in certain circumstances, collective agreements.
Core Conventions of the ILO
The eight Core Conventions of the ILO (also called fundamental/human rights conventions) are:
1.
Forced La Labour Co Convention (N (No. 29 29)
2.
Abol Aboliition ion of of For Force ced d Lab Labou ourr Con Conve vent ntiion (No (No.1 .105 05))
3.
Equal Re Remuneration Con Conventi ntion (N (No.100) 00)
4.
Disc Discri rimi mina nati tion on (Emp (Emplo loym ymen entt Occu Occupa pati tion on)) Conv Conven enti tion on (No (No.1 .111 11)) (The above four have been ratified by India ).
5.
Free Freedo dom m of Ass Assoc ocia iati tion on and and Prot Protec ecti tion on of Righ Rightt to Org Organ anis ised ed Conv Conven enti tion on (No. (No.87 87))
6.
Righ Rightt to Org Organ anis isee and and Coll Collec ecti tive ve Bar Barga gain inin ing g Conv Conven enti tion on (No (No.9 .98) 8)
7.
Minimum Ag Age Convention (N (No.138)
8.
Wors orst for form ms of of Chi Child ld Labo Labour ur Conv Conven enttion (No (No.1 .182 82)) (These four are yet to be ratified by India )
ILO Conventions on Collective Bargaining
There There are severa severall other other ILO Convent Convention ionss and Recomm Recommend endati ations ons that that relate relate to collec collectiv tivee bargaining. These are: 1.
the the Righ Rightt to to Organ Organis isee and and Col Colle lect ctiv ivee Barg Bargai aini ning ng Con Conven venti tion, on, 1949 1949 (No. (No. 98); 98);
2.
the the Col Colle lect ctiv ivee Agre Agreem emen ents ts Reco Recomm mmen enda dati tion on,, 195 1951 1 (No (No.. 91) 91);;
3.
the the Volu Volunt ntar ary y Conc Concil ilia iati tion on and and Arbi Arbitr trat atio ion n Reco Recomm mmend endat atio ion, n, 195 1951 1 (No. (No. 92) 92);;
4.
the the Lab Labou ourr Admi Admini nist stra rati tion on Conv Conven enti tion on,, 197 1978 8 (No (No.. 150 150); );
5.
the the Labo Labour ur Admi Admini nist stra rati tion on Rec Recom omme mend ndat atio ion, n, 197 1978 8 (No (No.. 158 158); );
6.
the the Lab Labour our Rela Relati tions ons (Publ (Public ic Serv Servic ice) e) Conve Convent ntio ion, n, 1978 1978 (No. (No. 151) 151);;
7.
the the Labou Labourr Rel Relat atio ions ns (Pu (Publ blic ic Serv Servic ice) e) Reco Recomm mmend endat atio ion, n, 197 1978 8 (No. (No. 159) 159);; and and
8.
the the Coll Collec ecti tive ve Bar Barga gain inin ing g Reco Recomm mmen enda dati tion on,, 1981 1981 (No. (No. 163) 163)..
In this chapter, we will discuss three main conventions on collective bargaining. Which are as follows:
Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87)
This This Conve Convent ntio ion n esta establ blis ishe hess the the right right of all all work worker erss and and empl employ oyer erss to form form and and join join organizations of their own choosing without prior authorization, and lays down a series of guar guaran ante tees es for for the the free free funct functio ioni ning ng of orga organi niza zati tion onss with withou outt inte interf rfer eren ence ce by the the publi publicc authorities.
Right to Organize and Collective Bargaining Convention, 1949 (No. 98)
One of the most well-known and widely ratified Conventions that relate to collective bargaining is No. 98 – the Right to Organise and Collective Bargaining Convention, 1949. This fundamental Convention says that member States should encourage systems of voluntary negotiations in order to regulate terms and conditions of employment through collective agreements. All the other Convent Convention ionss and Recomm Recommenda endatio tions ns listed listed above above comple complement ment Convent Convention ion No. 98 through through clarifying concepts and supporting the principles that it defines.
Right to Organize Organize and Collective Bargaining Bargaining Convention, Convention, 1949 provides provides for protection protection against against anti-union discrimination, for protection of workers’ and employers’ organizations against acts of interference by each other, and for measures to promote collective bargaining.
Collective Bargaining Convention, 1981 (No. 154)
The Collec Collectiv tivee Bargai Bargainin ning g Convent Convention ion (No. (No. 154) was adopted adopted by the Intern Internati ationa onall Labour Labour Conference in 1981. It promotes free and voluntary collective bargaining. This Convention encour encourage agess collec collectiv tivee bargai bargainin ning g in both both the privat privatee sector sector and the public public sector sector (with (with the except exception ion of armed armed forces forces and the police police), ), with with the only reserv reservati ation on that that nation national al laws laws or Regulations or national practice may fix “special modalities of application” of the convention as regards the public service. Member States which ratify the convention may no longer confine themselves to consultations. They are bound to promote collective bargaining
for
determ determini ining ng workin working g conditi conditions ons and terms terms of employ employmen ment, t, among among other other object objective ives. s. The extension of the scope of the Convention No. 154 to the public service was facilitated by the fact that, in contrast with convention No. 98, this instrument does not refer to the determination of terms and conditions of employment by means of “collective agreements”. Other indications of
flexibility are also to be found in Convention 154 in its provision that “collective bargaining should be progressively extended to all matters covered” by the convention or that its provisions shall, in so far as they are not otherwise made effective by means of collective agreements, arbitration awards or in such other manner as may be consistent with the national practice, be given effect by national laws or regulations.
The definit definition ion of collec collectiv tivee bargai bargainin ning g and scope are contai contained ned in Articl Articlee 1 and 2 of the convention, Article 4 contains method of application and reads as follows;
“the provisions of this convention shall, in so far as they are not otherwise made effective by means of collective agreements, arbitration awards or in such other manner as may be consistent with national practice, be given effect by national laws or regulations.”
Promotion of Collective Bargaining
Article 5
1.
Meas Measur ures es adapt adapted ed to nat natio iona nall condi conditi tion onss shall shall be be taken taken to pro promo mote te coll collec ecti tive ve barg bargai aini ning. ng.
2.
The aims aims of of the the meas measure uress refe referr rred ed to to in in parag paragrap raph h 1 of this this Arti Article cle shall shall be the follow following ing:: (a)
Collec Collectiv tivee Barga Bargaini ining ng shoul should d be made made possi possible ble for all employ employers ers and all groups groups of workers in the branches of activity covered by this convention;
(b) (b)
Colle Collect ctiv ivee bargai bargaini ning ng shoul should d be progre progress ssiv ivel ely y extend extended ed to all matt matter erss covere covered d by subparagraphs (b) and (c) of Article 2 of is Convention;
(c) (c)
Esta Establ blis ishm hmen entt of rules rules of proc proced edur uree agre agreed ed betwe between en emplo employe yer’ r’ss and and work worker er’s ’s organizations should be encouraged;
(d) (d)
Colle Collect ctiv ivee barga bargain inin ing g shoul should d not e hamp hamper ered ed by the the abse absenc ncee of rule ruless gover governi ning ng the procedure to be used or b the inadequacy or inappropriateness of such rules;
(e) (e)
Bodie Bodiess and proc proced edur ures es for for the sett settle leme ment nt labo labour ur disp disput utes es shoul should d be so conce conceiv ived ed as to contribute to promotion of collective bargaining.
Article 6: The provisions of this convention do not preclude the operation of industrial relations systems in which collective bargaining takes place within the framework of conciliation and or arbit arbitrat ration ion machin machinery ery or instit instituti utions ons,, in which which machin machinery ery or instit instituti utions ons,, the partie partiess to the collective bargaining process voluntarily participate.
Article 7: Measures taken by public authorities to encourage and promote the development of collective bargaining shall be the subject of prior consultation and whenever possible, agreement between public authorities and employer’s and workers organizations.
Article 8: The measures taken with a view to promoting collective bargaining shall not be so conceived or applied as to hamper the freedom of collective bargaining.
Article 9: This convention does not revise any existing convention or recommendation.
Collect Collective ive Bargaini Bargaining ng Recomm Recommenda endation tion,, 1981 1981 (No. 163) - concern concerning ing the promotio promotion n of Collective Bargaining
Recommendation No. 163 outlines in more detail measures the Government and the parties might take to promote collective bargaining. The general conference of International Labour Organization, having been convened at Geneva by the Governing Body of the International Labour Office, and having met in its sixty-seventh session on 3 June 1981, and having decided upon the adoption of certain proposals with regard to the promotion of collective bargaining, which is the fourth item on agenda of the session, and having determined that these proposals shall take the form of recommendation supplementing the collective bargaining convention, 1981, 1981, adopts adopts the follow following ing recomm recommend endati ation, on, which which may be cited cited as Collec Collectiv tivee Bargai Bargainin ning g Recommendation, 1981:
1.
The The provi provisi sion onss of thi thiss reco recomm mmen endat datio ion n may be appl applie ied d by nat natio ional nal law lawss or reg regul ulat atio ions ns,, collective agreements, arbitration awards or in any other manner consistent with national practice;
2.
In so far far as nece necesssary sary,, measu easure ress adap adaptted to nati national onal cond condit itiions ons shoul hould d be take taken n to facilitate the establishment and growth, on a voluntary basis, of free, independent and representative employer’s and worker’s organizations.
3.
In so so far far as as nece necess ssar ary, y, meas measur ures es ada adapt pted ed to to nati nation onal al con condi diti tions ons shou should ld be be tak taken en so so that that (a) representative employer’s and worker’s organizations are recognized for the purposes of collec collectiv tivee bargai bargainin ning; g; (b) in countri countries es in which which the compet competent ent author authoriti ities es apply apply procedures for recognition with a view to determining the organizations to be granted the right to bargain collectively, such determination is based on pre-established and objective criter criteria ia with with regard regard to the organi organizat zation ionss repres represent entati atives ves charac character ter,, establ establish ished ed in consultation with representative employer’s and worker’s organizations.
4.
(1) (1) Meas Measur ures es adap adapte ted d to nat nationa ionall cond condiitions ions shou should ld be taken aken,, if nece necess ssar ary y, so that that coll collect ectiv ivee bargai bargaini ning ng is poss possib ible le at any level level what whatso soeve ever, r, incl includi uding ng that that of the the establishment, the undertaking, the branch of activity, the industry, or the regional or national levels. (2) In countries where collective bargaining takes place at several levels, the parties to negotiations should seek to ensure that there is co-ordination among these levels.
5.
(1) (1) Meas Measur ures es shou shoulld be take taken n by the the par parties ies to coll collec ecttive ive barg bargai aini ning ng so that that thei their r negotiators, at all levels, have the opportunity to obtain appropriate training. (2) Public authorities may provide assistance to worker’s and employers’ organizations, at their request, for such training. (3) The content and supervision of the programmes of such training should be determined by the appropriate worker’s or employer’s organization concerned. (4) Such training should be without prejudice to the right of worker’s and empl employ oyer er’s ’s orga organi nizat zatio ions ns to choo choose se thei theirr own repr repres esen enta tati tive vess for for the the purp purpos osee of collective bargaining.
6.
Part Partie iess to colle collect ctiv ivee barg bargai aini ning ng shou should ld pro provi vide de the their ir resp respec ecti tive ve nego negoti tiat ator ors, s, so so that that the the necessary mandate to conduct and conclude negotiations, subject to any provisions for consultations within their respective organizations.
7.
(1) (1) Measu Measure ress adapt adapted ed to nati nation onal al cond condit itio ions ns shou should ld be take taken, n, if nece necess ssar ary, y, so tha thatt the parties have access to the information required for meaningful negotiations. (2) ZFor this pur purpo pose se – (a) (a) publ public ic and and priv privat atee empl employ oyee eess shou should ld,, at the the requ reques estt of work worker er’s ’s organizations, make available such information on the economic and social situation of the negotiating unit and the undertaking as a whole, as is necessary for meaningful negotiations; where the disclosure of some of this information could be prejudicial to the undertaking, its communication may be made conditional upon a commitment that it would be regarded as confidential to the extent required; the information to be made available may be agreed upon between the parties to collective bargaining; (b) the public author authorit ities ies should should make make availa available ble such such inform informati ation on as is necessa necessary ry on the over-al over-alll economic and social situation of the country and the branch of activity concerned, to the extent extent to which which the disclo disclosur suree of this this inform informati ation on is not prejud prejudici icial al to the nation national al interest.
8.
Meas Measur ures es adap adaptted to nat national onal condi condittions ons shou should ld be taken aken,, if nece necess ssar ary y, so that hat the the procedures for the settlement of labour disputes assist the parties to find a solution to the dispute themselves, whether the dispute is one which arose during the negotiation of agreements, one which arose in connection with the interpretation and application of agreements or one covered by the examination of grievances recommendation, 1967.
9.
This This recom recomme mend ndat atio ion n does does not revi revise se any any exis existi ting ng recom recomme mend ndat atio ion. n.
Conclusion: To promote Collective bargaining in our country what is needed is firstly, a bold realistic Government approach with full commitment to it and secondly, a favorable environment to promote competence on the part of the employers and trade union to negotiate with each other, Coll Collec ecti tive ve barg bargai aini ning ng has has made made consi conside dera rabl blee head headway way in our our count country ry which which is rece recent ntly ly charac character terize ized d by signin signing g of agreem agreement ents, s, settle settlemen ments ts betwee between n the partie parties. s. It has result resulted ed in considerable signing economic gains to both blue collared and white collared workers.
Summary of the Principles by the Committee of Experts - Concerning the Right to Collective Bargaining
The standards and the principles concerning the right to collective bargaining emerging from ILO’s ILO’s Conven Conventio tions, ns, Recomme Recommenda ndatio tions ns and other other relevan relevantt instru instrumen ments, ts, and the princi principle pless established by the Committee of Experts on the basis of these instruments, may be summarized as follows:
(a)
The right right to to colle collecti ctive ve barga bargaini ining ng is is a funda fundamen mental tal right right endor endorsed sed by the the memb members ers of the the ILO by the very fact of their membership of the organization, which they have an obliga obligatio tion n to respec respect, t, to promot promotee and to realiz realizee in good faith faith (ILO (ILO Declar Declarati ation on on Fundamental Principles Rights at Work and its follow-up);
(b) (b)
Coll Collec ecti tive ve Barga Bargain inin ing g is a righ rightt of emplo employe yers rs and and their their organ organiz izat atio ions ns,, on the one one hand, hand, and organizations of workers, on the other hand (first-level trade unions, federations and confederations); only in the absence of these latter organizations may representatives of the workers concerned engage in collective bargaining;
(c)
The right right to to colle collecti ctive ve barga bargaini ining ng shoul should d be recogni recognized zed thro through ughout out the privat privatee and public public sect sector ors, s, and and its its only only the the arme armed d forc forces es,, the the poli police ce and and publi publicc serv servan ants ts engag engaged ed in administration the State who may be excluded from the exercise thereof(Convention 98);
(d) (d)
The The purp purpos osee of the the coll collec ecti tive ve barga bargain inin ing g is the the regu regula lati tion on of term termss and and cond condit itio ions ns of employment, in a broad sense, and the relations between the parties;
(e)
Collec Collectiv tivee agreem agreement entss are are bindi binding ng on the parti parties es and and are are inten intended ded to to determ determine ine term termss and and conditions of employment which are more favourable than those established by law. Preference Preference must not be given to individual individual contracts contracts over collective collective agreements, agreements, except where more favourable provisions are contained in individual contracts;
(f) (f)
To be effe effect ctiv ive, e, the the exerc exercis isee of the righ rightt to colle collect ctiv ivee barga bargain inin ing g requi require ress that that worke workers rs organizations are independent and not under the control of employers or employer’s organizations, and that the process of collective bargaining can proceed without undue interference by the authorities;
(g)
A trade rade union union whic which h repr repres esen ents ts the the major ajorit ity y or high high perce percent ntag agee of work worker erss in a bargaining unit may enjoy preferential or exclusive bargaining rights. However, in cases where no trade union fulfils these conditions or such exclusive rights are not recognized, worker’s organizations should nevertheless be able to conclude a collective agreement on behalf of their own members;
(h)
The pri princi nciple ple of of good good faith faith in collec collecti tive ve bargai bargainin ning g implie impliess genuin genuinee and pers persist istent ent effort effortss by both parties;
(i) (i)
In vie view w of the the fact fact tha thatt the the volun volunta tary ry nat natur uree of coll collec ecti tive ve barg bargai aini ning ng is a fund fundam ament ental al aspect of the principles of freedom of associations, collective bargaining may not be imposed upon the parties and procedures to support bargaining must, in principle, take into account its voluntary nature. Moreover, the level of bargaining must not be imposed unilaterally by law or by the authorities, and must be possible for bargaining to take place at any level;
(j) (j)
It is acce accept ptab able le for for conci concili liat atio ion n and and media mediati tion on to be impo impose sed d by law with within in the the frame frame work of the process of collective bargaining, provided that reasonable time limits are established. However, the imposition of compulsory arbitration in cases where the parties do not reach agreement in generally contrary to the principle of voluntary collective bargaining and is only admissible: (1) in essential services in the strict sense of the term (those whose interruption would endanger the life, personal safety or health of the whole or part of the population); (2) with regard to public servants engaged in the administration of the State; (3) where, after prolonged and fruitless negotiations, it is clear that the deadlock will not be overcome without an initiative by the authorities, and (4) in the
event of an acute national crises. Arbitration which is accepted by both parties (voluntary arbitration) is always legitimate;
(k) (k)
Inte Interv rven enti tion onss by the the legi legisl slat ativ ivee or admin adminis istr trati ative ve autho authori riti ties es which which have have the the effect effect of annulling or modifying the content of freely concluded collective agreements, including wage clauses, are contrary to the principle p rinciple of voluntary collective bargaining;
(l) (l)
Rest Restri rict ctio ions ns on the cont conten entt of futur futuree collec collecti tive ve agree agreeme ment nts, s, parti particul cular arly ly in rela relati tion on to wages wages,, which which are are impos imposed ed by the the auth author orit itie iess as part part of econo economi micc stabi stabili lizat zatio ion n or structural adjustment policies for imperative reasons of economic interest, are admissible only in so far as such restrictions are preceded by consultations with the organizations of worker workerss and Employ Employers ers and fulfil fulfilll the follow following ing condit condition ions: s: they they are applie applied d as an exceptional measure, and only to the extent necessary, they do not exceed a reasonable period, and they are accompanied by adequate guarantees designed to protect effectively the standards of living of the workers concerned, and particularly those who are likely to be most affected.
The observations observations made by the Committee Committee of Experts Experts concerning concerning the application application of the Right to Organize Organize and Collective Collective Bargaining Bargaining Convention Convention (No. 98), shows that that the great majority majority of States which have ratified the convention apply it in a satisfactory manner. This demonstrates that it is a right which enjoys almost universal recognition in law and practice.
Collective bargaining and social dialogue
Collective bargaining is an important form of social dialogue. Institutions for social dialogue and collect collective ive bargai bargainin ning g help help protec protectt the fundam fundament ental al right rightss of worker workers, s, help help provid providee social social protection and promote sound industrial relations. Social dialogue, in turn, is an important part of good governance. Because social dialogue involves the social partners (employers’ and workers’ organizations) it further encourages accountability and participation in decisions that affect the lives of all society. These factors directly contribute to better government.
The ILO defines social dialogue to include “all types of negotiation, consultation or simply exchange of information between representatives of governments, employers and workers”, and involves “issues of common interest relating to economic and social policy.” This definition brings together the elements of various understandings of social dialogue into one inclusive concept. Convention No. 154 and Recommendation No. 163 acknowledge that information, consul consultat tation ion and negotia negotiatio tion n are interinter-lin linked ked and reinfo reinforce rce each other. other. While While focusi focusing ng on negoti negotiati ations ons,, both both highli highlight ght the import importance ance of a common common inform informati ation on base base for meanin meaningfu gfull negoti negotiati ations ons,, and the role role of consult consultati ation on in decidin deciding g measur measures es to encour encourage age and promot promotee collective bargaining.
From the ILO perspective, collective bargaining is an important way for workers, employers and their organizations to reach agreement on issues affecting the world of work. While collective bargaining can often be an adversarial process, it should better be used to build trust between the parties. This trust can be reinforced through dialogue which can continue after bargaining ends. Solutions that are built on trust and enjoy the genuine support of both sides are more likely to be respected. This is due to the sense of participation and ownership inherent in the process. As a result result,, unneces unnecessar sary y disput disputes, es, and disrup disruptio tions ns throug through h indust industri rial al action action,, can more more easil easily y be prevented.
The practical means that can be used to develop effective collective bargaining as set out in Convention No. 154 and Recommendation No. 163 necessarily promote social dialogue. In so doing doing they they help help to develo develop p a broader broader cultur culturee of dialog dialogue, ue, reinfo reinforci rcing ng better better governa governance nce,, participation and accountability.
EVOLUTION OF INDUSTRIAL JURISPRUDENCE IN INDIA
The evolution of Industrial Jurisprudence in India can be traced back to the period of post Independence. Before the Independence, the industrial jurisprudence existed in a rudimentary form. form. The paramo paramount unt concern concern of the Pre-i Pre-inde ndepend pendenc encee indust industria riall jurisp jurisprud rudenc encee was the amelioration of the working condition of the workers at the factories. There was hardly any deal with with the the soci social al just justic icee to the the worki working ng clas class. s. It was was only only afte afterr the the comme commenc ncem ement ent of our our Constitution, that the adequate provisions for the social justice to the workers were inserted.
The aspect of industrialization in India was based on the program of planning, which was accepted after thirties. It is important to take into consideration that the plantation industry of Assam was the first to attract the industrial legislation. The situation there was that the e mployers exercised hard practices against the employees. The employees were not allowed to leave the tea gardens. A number of Acts were passed from 1863 onward, but they only protected the interests of the the empl employ oyer ers. s. Some Some othe otherr Acts Acts were were also also pass passed ed to regu regula late te the the condi conditi tion on.. But But the the Workmen’s Compensation Act, 1923 was the landmark Act.
Indian Constitution and Social Justice
Industrial Jurisprudence was not in a much developed form before the commencement of the Constitut Constitution ion of India. India. Before Before the Independence, Independence, the paramount concern of the Government Government was to ameliorate the condition of the factory workers. It was after the commencement of the Constitution that the paramount concern of the Government shifted towards the social justice for the laboure labourers, rs, who constitu constituted ted the bulk of the populati population. on. Bhagwat Bhagwatii J., in a landma landmark rk case opined that concept of justice does not emanate from the fanciful notions of any particular adjudication but must be founded on a more solid foundation28. Justice Gajendragadkar opined that “the concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the idea of welfare state”29. The Indian Constitution also enshrines the idea o f social justice as one of the objectives of o f the State. COLLECTIVE BARGANING IN INDIA 28 29
Muir Mills Ltd. v. Suti Mill Mazdoor Union, (1955 1 LJJ 1 (SC) State of Mysore v. Workers of Gold Mines, AIR 1958 SC 923
Collective Bargaining in India has been the subject-matter of industrial adjudication since long and has been defined by our Law Courts. In Kamal Leather Karamchari Sangathan v. Liberty Footwear Company 30 the Supreme Court observed that, "Collective bargaining is a technique by
which dispute as to conditions of employment is resolved amicably by agreement rather than coercion".
According to the Court, the Industrial Disputes Act, 1947, seeks to achieve social justice on the basis of colIective bargaining. In an earlier judgment in Titagarh Jute Co. Ltd. v. Sriram Tiwari 31 the Calcutta High Court clarified that this policy of the legislature is also implicit in the
definition of 'industrial dispute'.
Industrial Tribunal 32 the Court observed that, "it is well known In Ram Prasad Viswakarma v. Industrial
how before the days of 'collective bargaining', labour was at a great disadvantage in obtaining reasonable terms for contracts of service from its employer. As trade unions developed in the countr country y and collec collectiv tivee bargai bargainin ning g became became the rule, rule, the employ employers ers found found it necessa necessary ry and convenient to deal with the representatives of workmen, instead of individual workmen, not only for the making or modification of contracts but in the matter of taking disciplinary action against one or more workmen and as regards all other disputes.”
In Bharat Iron Works v. Bhagubhai Balubbai Patel 33 it was held that 'Collective bargaining, being the order of the day da y in the democratic social welfare State, legitimate trade union activities, which must shun all kinds of physical threats, coercion or violence, must march with a spirit of tolerance, understanding and grace in dealings on the part of the employer. Such activities can flow in healthy channel only on mutual cooperation between the employer and the employees and cannot be considered as irksome by the management in the best interests of its business. Dialogue with representatives of a union help striking a delicate balance in adjustments and settlement of various contentious claims and issues."
30
AIR 1990 SC 247 (1979) Lab I.C. 523 (Cal)] 32 (1961) I LL.J 504 33 (1976) Lab. I.C. 4 [S.C] 31
These definitions only bring out the basic element in the concept i.e., civilized confrontation between employers and employees and the whole process is regulated by statutory provisions.
Types of Collective Bargaining Agreements in India
Collective bargaining as it is practiced in India can be divided into three classes. First is, the bipartite agreement drawn up in voluntary negotiation between management and union. The second type is known as a settlement, while the third type of collective agreement is consent award. These are discussed below:
1.
Bipartite Agreements : These are most important types of collective agreements because
they represent a dynamic relationship that is evolving in establishment concerned without any any pres pressu sure re from from outs outsid ide. e. The The bipa bipart rtit itee agre agreem ement entss are are draw drawn n up in volunt voluntar ary y negoti negotiati ation on betwee between n manage managemen mentt and union. union. Usuall Usually y the agreem agreement ent reache reached d by the bipartite voluntarily has the same binding force as settlement reached in conciliation proceedings. The implementations of these types of agreements are also not a problem because both the parties feel confident of their ability to reach the agreement.
2.
Settlements : It is tripartite in nature because usually it is reached by conciliation, i.e. it
arises out of dispute referred to the appropriate labour department and the conciliation officer plays an important role in bringing about conciliation of the differing view points of the parties. And if during the process of conciliation, the conciliation officer feels that there is possibili possibility ty of reaching reaching a settlement, settlement, he withdraws withdraws himself from the scene. Then the the part partie iess are are to fina finali lise se the the term termss of the the agre agreem emen entt and and shou should ld repo report rt back back to conciliation officer within a specified time. But the forms of settlement are more limited in nature than bipartite voluntary agreements, because they strictly relate to the issues referred to the conciliation officer.
3.
Consent Award : Here the negotiation takes place between the parties when the dispute is
actu actual ally ly pendi pending ng befo before re one of the the compul compulso sory ry ad judi judica cato tory ry auth author orit itie iess and and the the agreement is incorporated to the authorities, award. Thus though the agreement is reached
voluntarily between the parties, it becomes part of the binding award pronounced by an authority constituted for the purpose.
The idea of national or industry-wide agreements and that too on a particular pattern may appear to be a more ideal system to active industrial relation through collective bargaining, but the experience of various countries shows that it is not possible to be dogmatic about the ideal type of collective bargaining, because it largely depends upon the background, traditions and local factors of a particular region or country.
POSITION OF COLLECTIVE BARGAINING IN INDIA
Collective Bargaining machinery essentially is a reflection of a particular social and political climate. The history of the trade union movement shows that union are affiliated to one or the other political parties. As a result most of the trade unions are controlled by outsiders. Critic says that that the presen presence ce of outsid outsiders ers is one of the importan importantt reasons reasons for the failur failuree of collec collectiv tivee bargaining in India.34
Outsiders in the Process of Collective Bargaining
The Trade Unions Act, 1926, permits outsiders to be the office bearers of a union to the extent of half the total number of office bearers. bearers.35 So, it permits one to be the leader of the union who does not actually work in the industry. Sometimes a dismissed employee working as a union leader may create difficulties in the relationship between the union and the employer.36 Nevertheless, experi experience ence shows shows that that outsid outsiders ers who have little little knowle knowledge dge of the backgr background ound of labour labour problems, history of labour movement, fundamentals of trade unionism and the technique of the industry and with even little general education assume the charge of labour union and become the self-appointed custodian of the welfare of workers. The employers, therefore, have been reluctant to discuss and negotiate industrial matters with outsiders, who have no personal or direct knowledge of day to day d ay affairs of the industry.
Accordingly employers refuse recognition to the unions which are either controlled by the politicians or affiliated to a particular political party or controlled by a particular individual. Government cannot morally compel employers to accord recognition to unions without driving out the politicians from them. The State must outright ban "outsiders" from the trade union body. Further, Further, provision provision for political political fund37 by trade unions should be eliminated, since it invariably enco encour urag ages es the the polit politic icia ians ns to prey prey upon upon them them.. The The Nati Nation onal al Comm Commis issi sion on on Labou Labourr has has overlooked this aspect. The Commission does not favour a legal ban on non-employees for holding the union office. It says that without creating conditions for building up the internal 34
S.N. Dhyani, Trade Union and the right to strike, S. Chand & Co. (Pvt.) Ltd, New Delhi, PP. 374-380. See Section 22 of the Trade Unions Act, 1926, 36 See Report of the National Commission on Labour, (1969), P. 288 37 See Section-16 of the Trade Unions Act. 1926. 35
leadership, leadership, a complete complete banning of outsiders would only make unions weaker. The Commission Commission hopes that internal leadership would develop through their education and training. Accordingly the Commission suggests proportion of the outsiders and the workers in a union executive. 38 On realizing the problems of outsiders in the union, the Industrial Relations Bill, 1988 proposes to reduc reducee the the numb number er of outsi outside ders rs to two two only only.. Anoth Another er hurdl hurdlee in the the succ succes esss of coll collec ecti tive ve bargaining in India, is the absence of a compulsory ‘recognition’ provision in the Act.
Impact of Recognition as Bargaining Agent in Collective Bargaining
In view of the prevailing multi-trade-unionism in the country, recognition of a bargaining agent has assumed importance. Unfortunately, no attempt has been made at the national level to either lay down a procedure for recognition of a trade-union as bargaining agent or work out a procedure. There is no provision either in the Indian Trade Union Act 1926 or in the Industrial Disputes Act 1947 for the purpose. The Government of India proposed an amendment in the Trade Union Act in 1950 making recognition of a union compulsory. The measure however, faced serious opposition and remained unimplemented. The Standing Labour Committee (l8th Session) and National Commission on Labour favoured a statutory -provision for the purpose but their recommendations have yet to be accepted. The National Commission on Labour attached considerable importance to the matter of recognition of unions and observed as under:
"Indu "Indust stri rial al Demo Democr crac acy y impl implie iess that that the the majo majori rity ty unio union n shou should ld have have the the right right to sole sole representation, i.e., the right to speak and act for all workers and enter into agreements with the employer."39
In the absence of statutory provision, the matter is regulated by the Code of Discipline which was evolved at Nainital session of Indian Labour Conference in 1952. The Code of Discipline provides for verification of trade-union membership by Central Industrial Relations Machinery 38
id. at P. 291, The Commission has recommended as follows : Where the membership of union is; ( i) below 1,000 the number of outsiders should not be more than 10% {ii) between 1,000-10,000 1,000-1 0,000 … …. …. ….. ….. ….. ….. ….. 20% (iii) above l,000 … …. …. ….. ….. ….. ….. ….. …. … …30% (iv) 'the permissible limit for industry -wise unions should be 30% 39 Report of the National Commission on Labour, (1969)p. 329
of the Government. Its voluntary character has however, made it ineffective and it has been found difficult to implement it in view of statutory provisions in the Industrial Disputes Act. At the present not even public sector undertakings are following the Code of Discipline and are bargaining with more than one union.
States like Bombay and Madhya Pradesh have, however, given statutory recognition to the procedure for determination of bargaining agent. Both, Bombay Industrial Relations Act 1946 and Madhya Pradesh Industrial Relations Act, 1960, provide for the determination of representtative tative union by the Registrar of Representat Representative ive Unions. Special provisions provisions have been made for agreements signed by representative unions. In spite of it, the experience shows that there had been serious opposition to statutory recognition of a union as sole bargaining agent of the workers of the establishment. Indeed the experience is that wherever there is a union recognition, representative of rival unions have come together to force the employer to bargain with them." The fear of retaliation by unrecognized unions has proved to be the biggest stumbling block in the success of statutory recognition system.
Multi -Unionism
Polit Political ical orient orientati ation on of trade trade unions unions is the primar primary y reason reason for multimulti-uni unioni onism. sm. Commun Communal al sentiments, provincial feelings and caste are other major causes for multi-unionism.40 Presence of too many many unions unions in an indust industry ry destro destroys ys the bargai bargainin ning g streng strength th of worker workers. s. Our labour labour legislation also permits multi-unionism.41
MultiMulti-uni unioni onism sm adverse adversely ly affect affectss collec collectiv tivee bargai bargainin ning g proces process. s. Where Where there there are too many many unions, with whom should management negotiate? Each union may claim recognition. Each union may present separate charter of demands in a spirit of rivalry. When conflicting demands are made, it may be impossible to accept any of them. Moreover, if one union is ready to accept some of the demands, other union may object to them. In this context, it is difficult to think of any effective collective bargaining process in India. 40
Mrs. P. Chakravarthy, Strike and Morale in Industry, Calcutta. Navana Printing Works, Pvt. Ltd. (1969) PP. 3738. 41 See Section-4 of the Trade Unions Act, 1926, permits any seven members to form a union and get registered.
Politicization of Trade-Union Movement in India
It is well known that the trade-union movement in India is divided on political lines and exists on patro patronage nage of variou variouss polit politica icall partie parties. s. Most Most of the tradetrade-uni union on organi organizat zation ionss have aligne aligned d themselves with a political party with whom they find themselves philosophically close. It is because of this that the Indian National Trade Union Congress is considered to be the labour wing of congress (I) whereas H.M.S. is considered to be the labour wing of Socialist party. Bhartiya Majdoor Sangh pledges its allegiance to B.J.P. and C.I.T.U has the support of C.P.I. (M). It is also the case with the . AITUC which had started as a national organization of workers but subsequently came to be controlled by the Communist Party of India and is now it's official labour wing. Political patronage of trade-unions has given a new direction to the movement whose centre of gravity is no longer the employees or workmen. The centre has shifted towards it leadership whose effectiveness is determined by the extent of political patronage and the conseq consequent uent capacity capacity to obtain obtain the benefi benefit. t. This This shifti shifting ng centre centre of power power is the necess necessary ary consequence of political parties search for workers votes, which they seek by conferring benefits on them. Since the public sector which is really the instrumentality of the State, has emerged as the biggest employer in this country, the collective bargaining -between the union patronized by the party-in-power and the employer has become an important methodology. It is because of this process that agreements conferring benefits are signed even in those units where financial losses are mounting. It is also our experience that inspite of wage increase and improved conditions of service, there has been no corresponding improvement in production or the productivity and most of the losses are being passed on to the consumers by increasing prices of the products. It is in this context that Justice Gupta has, in his, "Our Industrial Jurisprudence" made the following observations:
"If our experience is any guide, it reveals that level of increase in wages etc., (in public sector undertaking ) is now decided by the Bureau of Public Enterprises which takes into consideration only the 'Political impact' and 'Consumer resistance' as two dominant factors. This is the reason why the prices of almost all products of necessity like coal, iron and steel, cement, sugar etc. have been constantly increasing. A survey of pending and decided industrial disputes of the last
10 years reveals that there was virtually no industrial dispute regarding wage structure or bonus in any industry of some significance. There are also not many collective bargaining agreements which have tried to link wages with productivity. Clearly, therefore, the basic idea of 'sharing the prosperity' which developed because of our commitment to the cause of 'social justice' is no longer current and the expected end-product of the process of 'social justice" is no longer expected."42
Critical Evaluation
In Indian labour arena we see, multiplicity of unions and inter-union rivalry. Statutory provisions for recognising unions as bargaining agents are absent. It is believed that the institution of collective bargaining is still in its preliminary and organizational stage. 43 State, therefore, must play a progressive and positive role in removing the pitfalls which have stood in the way of mutual, mutual, amicable amicable and voluntary voluntary settlement settlement of labour disputes. disputes. The labour' labour' policy policy must reflect a new approach.
Hith Hither erto to the the Stat Statee has has been been play playin ing g a domi dominan nantt role role in cont contro roll llin ing g and and guid guidin ing g labo labour ur-management relation through its lopsided adjudication machinery. The role of the industrial adjudicator virtually differs from that of a judge of ordinary civil court. The judge of a civil court has to apply the law to the case before him and decide rights and liabilities according to its establishe established d laws. Whereas industrial industrial adjudicator adjudicator has to adjust and reconcile reconcile the conflicti conflicting ng claims of disputants and evolve "socially desirable" rights and obligations of the disputants. 44 In deciding industrial disputes the adjudicator is free to apply the principle of equity and good conscience.
42
Justice Gulab Gupta, Our Industrial Jurisprudence, 1987, p.133 Dr, B.R. Patil, "Collective Bargaining and Conciliation in India," 12, I.J.I.R. 41 (1976). 44 Anirudh Prasad Singh, "New Dimension of Employer-Employee Employer-Employee Relations in Progressive Industrial Society," 9, Lawyer, 164 (1977). 43
However, it is said that the impact of the attitude of the judiciary towards workers has not proved conducive to the peaceful industrial relations.45 It is accepted that the end of judicial proceeding is pain and penalties. It cannot solve the problems of industries. Accordingly it is said that:
"While "While statut statutes, es, rules, rules, regula regulati tions ons,, pains pains and penalt penalties ies have have their their place place in the orderi ordering ng of industry, they do not touch the core of the problems of industrial relations."46
Moreover, Moreover, advocates of adjudication adjudication contend that as the collective bargaining bargaining procedure procedure might end in a strike or lockout, which implies a great loss to the parties concerned and the country, if for the sake sake of indust industria riall peace, peace, the adjudi adjudicati cation on becomes becomes necess necessary ary.. But has there been industrial peace and satisfactory progress since adjudication was adopted after world-war-II? We do agree that industrial peace can be established by the adjudication for the time being. But the conflicts are driven deeper and it will retard industrial production. In the absence of effective collective bargaining the anti – productivity tendencies are bound to appear.
45
See Dr. Ahmedullah Khan, "Judicial Regulation of Industrial Relations" 9, Awards Digest, 177 (Where the author emphatically discussed the defects of judiciary as far as labour-management labour-management relation is concerned.) 46 Kir Kaldy, The spirit of Industrial Relations (1974) P. 58, cited in S.N. Dhyani's op. cit., P.396.
LAWS RELATING TO COLLECTIVE BARGAINING IN INDIA
As discussed earlier, collective bargaining is a technique by which disputes of employment are resolv resolved ed amicab amicably, ly, peacef peacefull ully y and volunt voluntari arily ly by settl settleme ement nt betwee between n labour labour unions unions and managements. The method of collective bargaining in resolving the Industrial dispute, while maintaining industrial peace has been recognized as the bed rock of the Industrial Disputes Act, 1947. 1947. Under Under the the prov provis isio ion n of the the Act, Act, the the sett settle leme ment nt arri arrive ved d at by proc proces esss of coll collec ecti tive ve bargaining with the employer has been given a statutory recognition under Section 18 o f the Act.
Under the Act two types of settlement have been recognised:
1.
Settl Settlemen ementt arriv arrived ed in in the the cours coursee of concil conciliat iation ion proceed proceeding ing before before the author authorit ity. y. Such Such sett settlem lement entss not only bind the member of the signatory union but also non-members as well as all the present and future employees of the management.
2.
Sett Settle lemen mentt not arri arrive ved d in the cour course se of conci concili liat atio ion n procee proceedi dings ngs but but signe signed d indepe independ nden entl tly y by the parties to the settlement, binds only such members who are signatory or party to the settlement.
Section 19 of the Act prescribes the period of operation inter alia of such a settlement and envisage the continuation of the validity of such a settlement unless the same is not replaced by another set of settlement, while Section 29 prescribes the penalty for the breach of such a settlement.
The Industrial Disputes Act, 1947 provides for the appointment of Conciliation Officers, charged with the duty of mediation in promoting the settlement of industrial disputes. On a reference to the Conciliation Officer, a Conciliation Board is constituted consisting of representatives of employees and employer with the conciliation officer as the chairman. The memorandum of settlement duly signed by the conciliation officer is to go from on e camp to the other and find out greatest common measure of agreement, to investigate the dispute and to do all such things as he thinks fit to arrive at a fair and amicable settlement of the dispute.47
47
Royal Calcutta Calcutta Golf Club Club Mazadoor Union v. State of west west Bengal, AIR AIR 1956 Cal 550.
A settlement arrived at by agreement between the employer and the workmen otherwise than in the course of conciliation proceedings shall be binding on the parties to the agreement. A settlement comes into operation on such date as is binding on the parties to the agreement, and for such period as has been agreed upon. Dealing with the binding nature of settlement Chagla, J has observed that; “Industrial Law takes no notice of any private settlement or agreement arrived at between parties in the course of industrial dispute. Such a private agreement belongs to the realm of contract, it may give rise to contractual rights; it has no sanctions in industrial law and industrial dispute does not end until a settlement is arrived at which has been given a binding effe effect ct under under the the provi provisi sion on of S.19 S.19 (2) (2) and and such such sett settle leme ment nt can be only only arri arrive ved d at when when conciliatio conciliation n proceedings proceedings are held under S.12 of the Industrial Industrial Disputes Disputes Act, 1947”.48 From this observation, it would be wrong to infer that a private settlement in respect of an industrial dispute does not end an industrial dispute. In this respect the following observation of chief Justice Chagala are relevant, “But when parties do arrive at a settlement, the law gives to it a greater sanctity than it gives gives to an award and therefore therefore , the industrial law does not contemplate contemplate any interference with the finality of a settlement and it compels the settlement to run on for the perio period d menti mentioned oned in the settle settlemen mentt itsel itselff and neithe neitherr party party is permit permitted ted to challe challenge nge that that settlement during its duration.”49
48 49
Poona Mazdoor Sabha v. G.K.Dhuta, AIR b1956. Bom. 743. Ibid
PROBLEMS RELATING TO COLLECTIVE BARGAINING IN INDIA
The collective bargaining scene in India is not very encouraging. The major emphasis of both union and employers is to settle the disputes through adjudication rather than sorting out the issues among themselves.
Whatev Whatever er bargai bargainin ning g takes takes place, place, it is limit limited ed to large large plants plants only. only. Smalle Smallerr organi organisat sation ionss generally do not prefer this form of handling the issues.
As discussed in the previous chapter, several factors are responsible for this state of affairs. These are listed below:
I.
Due to the the domina dominance nce of outs outside iders rs in trad tradee unioni unionism sm in the the countr country, y, there there is is multip multiplic licit ity y of unions which are weak and unstable, and do not represent majority of the employees. Moreover, there are inter-union rivalries, which further hinder the process of collective bargaining between the labour and the management.
II. II.
Sinc Sincee most most of the the trad tradee unio unions ns are havi having ng poli politi tica call affi affili liat atio ions ns,, they they conti continu nuee to be dominated by politicians, who use the unions and their members to meet their political ends.
III. III.
Ther Theree is a lack lack of defin definit itee procedu procedure re to deter determi mine ne which which union union is to be recogn recognis ised ed to serve as a bargaining agent on behalf of the workers
IV. IV.
In India India,, the law law provide providess an easy easy access access to to adjudi adjudicat cation ion.. Under Under the Indu Industr strial ial Dis Disput putes es Act, Act, the the parti parties es to the the disp disput utee may may reque request st the the Gover Governm nment ent to refe referr the the matt matter er to adjudication and the Government will constitute the adjudication machinery, i.e., labour court court or indust industria riall tribuna tribunal. l. Thus, Thus, the faith faith in the collec collecti tive ve bargai bargainin ning g proces processs is discouraged.
V.
There There has been been very very close close assoc associat iation ion betwe between en the trad tradee unions unions and poli politic tical al partie parties. s. As a result result,, trade trade union union moveme movement nt has leaned leaned toward towardss polit politica icall orient orientati ations ons rather rather than than collective bargaining.
CONCLUSION & SUGGESTIONS
A lot has been been said said about about the developm development ent of collec collecti tive ve bargai bargainin ning g in India. India. But in fact, fact, collective bargaining which is a two way affair, has been used at present only as a one-way exercise in which the union, as the aggressive partner, makes the demands, and the management , as the passive partner, derives satisfaction merely by countering the extent to which it is able to minimi minimize ze the additi additional onal burden burdenss while while meeti meeting ng the union’ union’ss demands demands.. There There are not many many examples even now where union as well as the management, as equal partners, have approached the process of collective bargaining with the objective and spirit that collective bargaining must bring concrete benefit to both the parties.
The following steps should be taken for the success of collective bargaining.
1.
Strong Trade Union : A strong and stable representative trade union is essential for effective
collective bargaining. For having such a trade union, workers should have freedom to unionize so that they can exercise their right of unionization and form a trade union for the purpose of electing their representatives for collective bargaining.
A weak union not enjoying the support of majority of workers is not likely to be effe effect ctiv ive. e. The The mana manage geme ment nt will will not not nego negoti tiat atee with with such such a union; union; becau because se mutu mutual al agre agreem emen ents ts are are not not like likely ly to be honou honoure red d by a larg largee sect sectio ion n of the the labo labour ur-f -for orce. ce. Moreover, there is always a danger that non-union members may sabotage it.
2.
Compul Compulsory sory Recogni Recognition tion of Trade Trade Unions Unions : There There must must be an accept acceptabl ablee and recogni recognised sed
bargaining agent. That means that there must be recognised union or unions to negotiate the terms and conditions of the agreement with the management.
Recognition of trade union has to be determined through verification of fee membership method. method. The union union having having more more member membershi ship p should should be recogn recognise ised d as the effect effective ive bargaining agent. A strong, stable and the most representative union should be recognised by by the the empl employ oyer erss for for the the purpo purpose se becau because se any any agre agreem ement ent with with that that union union will will be
accept acceptabl ablee to majori majority ty of worker workerss and it will will help help in establ establish ishing ing sound sound indust industri rial al relations in the organisation.
3.
Mutual Accommodation : There has to be a greater emphasis on mutual accommodation rather
than conflict or uncompromisi uncompromising ng attitude. attitude. Conflicting Conflicting attitude does not lead to amicable labour relations; it may foster union militancy as the union reacts by engaging in pressure tactics.
The approach must be of mutual give and take rather than take or leave. The take or leave philosophy is followed in America where there is contractual labour. As of now this is not the case in India. So if the union and the management have to look for a long-term relationship they have to respect each other’s rights.
4.
Enactment of Legislation : The State should enact suitable legislation providing for compulsory
recognition of trade union by employers. State has to play a progressive role in removing the pitfalls which stand in the way of mutual, amicable and voluntary settlement of labour disputes. The new labour policy must reflect the new approach and new objectives.
5.
Mutual Mutual Tru Trust st and Confide Confidence nce: Trade unions and management must accept each other as
respons responsibl iblee partie partiess in the collec collecti tive ve bargai bargainin ning g proces process. s. There There should should be mutual mutual trust trust and confidence. In fact in any relationship trust is the most important factor.
Management must accept the union as the official representative. The union must accept the management as the primary planners and controllers of the company’s operations. The union must not feel that management is working and seeking the opportunity to undermine and eliminate the labour organisation. The company management must not feel that the union is seeking to control every facet of the company’s operations.
6.
Efficient Efficient Bargaining Bargaining Mechanism Mechanism : No ad-hoc arrangements are satisfactory for the reason that
bargaining is a continuing process. An agreement is merely a framework for every day working relationships, the main bargain is carried on daily and for this there is a need to have permanent machinery.
As for machinery being efficient, it has three aspects: (a) Availabili Availability ty of full informa information tion (b) Selection Selection of proper represen representativ tatives es (c) Recognition Recognition of natural natural temperament temperament of each each other.
7.
Emphasis on Problem-solving Attitude : There should be an emphasis upon problem-solving
approach with a de-emphasis upon excessive legalism. Litigation leads to loss of time and ene rgy and it does not benefit anyone. Therefore the emphasis is to look for mutually acceptable solutions rather than creating problems for each other.
Lastly, the overall political environment should be congenial. The political environment should support collective bargaining.
8.
Political Climate : For effective collective bargaining in a country, it is important to have sound
polit politica icall climat climate. e. The Govern Governmen mentt must must be convin convinced ced that that the method method of arrivi arriving ng at the agreements through mutual voluntary negotiations is the best for regulating certain conditions of employment. The provision for political fund by trade unions has to be done away with-since it unvariably encourages the politicians to prey upon the union. Theref Therefore ore,, positi positive ve attit attitude ude of the politi political cal partie partiess is a must must for the promot promotion ion of collective bargaining.
Such an approach would help and encourage the development of strong, stable and representative trade unions, growth of mechanism for the resolution of industrial conflict, recognition of unions, etc.
BIBLIOGRAPHY
Books referred.. 1) Bhagoliwal, Bhagoliwal, T.N., T.N., Economics Economics of Labour& Labour& Industrial Industrial Relation Relations, s, 1989, Sahitya Sahitya Bhawan, Agra. 2) Goswami, Goswami, V.G., V.G., Labour and and Industrial Industrial Law, Law, 2004 Central Central Law Agency, Agency, Allahaba Allahabad. d. 3) Teller Teller Ludwig, Labour Labour Disputes Disputes and Collective Collective Bargaining Bargaining,, Vol I, 1940 Barker Voorhis& Voorhis& co. INC New York. 4) Coutinho,V.B Coutinho,V.B,, Strike in Industri Industrial al Conflict: Conflict: A Critical Critical and Comparitive Comparitive Study, Study, 1993, 5th edn. 5) Fred Fred Witney Witney et al; al; Labour Labour Relat Relation ionss Law, 7th edn 1990. 6) Boone, Louis E., and Kurtz, David L. (1999). Contemporary Business. Fort Worth, TX: Dryden Press. 7)Dave 7)Davey, y, Harold Harold W. (1972) (1972).. Contem Contempor porary ary Collec Collectiv tivee Bargai Bargainin ning. g. Englew Englewood ood Cliffs Cliffs,, NJ: Prentice-Hall. 8)Miernyk, William H. (1965). The Economics of Labor and Collective Bargaining. Boston: Heath. 9)Voos 9)Voos,, Paula Paula B., ed. (1994) (1994).. Contemp Contempora orary ry Collec Collecti tive ve Bargai Bargainin ning g in the Privat Privatee Sector Sector.. Madison, WI: Industrial Relations Research Association. 9)Wray, Ralph D., Luft, Roger L., and Highland, Patrick J. (1996). Fundamentals of Human Relations. Cincinnati, OH: South-Western Educational Publishing. [Article by: PAULA DEA LEE]
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