How to Handle Trade Unions and Labour Dispute?

Contents  hide 

1 How to Handle Trade Unions and Labour Dispute?

1.1 Dipanwita

1.2 How to Handle Trade Unions and Labour Dispute?

1.3 Introduction1.3.1 Laws Governing Trade Unions in India

1.3.1.1 Constitution of India,1950

1.3.1.2 Trade Unions Act, 1926(“TU Act”)

1.3.1.3 Industrial Disputes Act,1947

1.3.2 Collective Bargaining

1.3.3 Related

Introduction

 

The first organized trade union – the Madras Labour Union, one of the initial unions, was formed in 1918. India has more than 84,642 registered trade unions along with an unaccounted number of unregistered trade unions distributed through a large spectrum of industries in India.[1] Time and again, the courts have upheld the right of workers to form or join a trade unions in India.[2]

 

Laws Governing Trade Unions in India

 

Constitution of India,1950

 

Article 19(1)(c) of the Constitution of India, 1950 which envisages fundamental right to freedom of speech and expression also guarantees the country’s citizens the right “to form associations or unions” including trade unions.[3] This right carries reasonable restrictions.[4] Furthermore, it has been established that the right to form associations or unions does not in any manner encompass the guarantee that trade union so formed shall be enabled to engage in collective bargaining or achieve the purpose for which it was formed.[5]

 

Trade Unions Act, 1926(“TU Act”)

 

TU Act provides for formation and registration of trade unions and in certain respects to define the law relating to registered trade unions. All labours have the right to formulate a union or refuse to be a member of any union.[6]However, not all workers’ organizations are considered trade unions.

 

Industrial Disputes Act,1947

 

The IDA also deals with trade unions the manner that it regulates the rights of employers and employees in the investigation and settlement of industrial disputes.As per the IDA[7], a settlement arrived at through collective bargaining is binding. Two types of settlements are recognized:

 

1. Those reached in the course of conciliation proceedings before the authority – such

 

settlements bind members of the signatory union as well as non-members and all present and future employees of the management.

 

1. Those reached outside the course of conciliation proceedings, but signed independently by the parties to the settlement – such settlements bind only those members who are a signatory or a party thereto.

 

Collective Bargaining

 

The Supreme Court (“SC”) defined Collective bargaining  as “the technique by which dispute as to conditions of employment is resolved amicably by agreement rather than coercion”.[8]

 

It is a process of discussion and negotiation between employer and workers regarding the terms of employment and working conditions. Workers are represented by trade unions with respect to expressing their grievance concerning service conditions and wages. Refusing to bargain collectively in good faith with the employer is reflected to be an unfair labour practice as per the provisions of the Industrial Disputes Act, 1947 (“IDA”). It is an effective system as in employers undertaking actions to resolve the issues of the workers.

 

1. Stages of CollectiveBargaining in India
2. Charter of Demands

 

The trade union notifies the employer of a call for collective bargaining negotiations. In certain cases, the employer may also start the collective bargaining process by notifying the union(s).The charter typically contains issues relating to wages, bonuses, working hours, benefits, allowances, terms of employment, holidays, etc.

 

• Negotiation

 

The next step, after the submission of the charter of demands by the representatives of the trade union. Before negotiations, both the employer and the trade unions prepare for such negotiations by confirming collection of data, policy preparation and deciding the strategy in the negotiations.After preparation, the negotiations takes place wherein both the parties engage in discussions pertaining to the demands of the trade unions.[9]The collective bargaining process obviously takes longer time.

 

• Collective Bargaining Agreement

 

Next, a collective bargaining agreement will be drawn up and entered into among the employer and workmen denoted by trade unions.

 

• Strike

 

 When both parties fail to reach a collective agreement, the union(s) may go on strike.In All India Bank Employees Association v. N.I. Tribunal [10], the SC held, inter alia, that “the right to strike orright to declare lockout may be controlled or restricted by appropriate industrial legislation and the validity of such legislation would have to be tested not with reference to the criteria laid down in Article 19(4) of the Constitution but by totally different considerations.”

 

• Conciliation

 

A conciliation proceeding commences once the conciliation officer receives a notice of strikeor lockout. During the ‘cooling off period[11]’, the state government may appoint a conciliationofficer or Board of Conciliation[12] to investigate the disputes, mediate and promote settlement.[13] No strikes may be conducted during the conciliation proceeding.[14]

 

Conciliation proceedings are concluded withone of the following recommendations:

 

• asettlement,
• no settlement or
• referenceto a labour court or an industrial tribunal.[15]
• Compulsory Arbitration or Adjudication by Labour Courts, Industrial Tribunals and National Tribunals

 

When conciliation and mediation miscarries, parties may either go for voluntary orcompulsory arbitration. In the case of voluntary arbitration, either the state or central government appoints a Board of Arbitrators, which consists of a representative from the trade union and a representative from the employer. In the case of compulsory arbitration, both parties submit the dispute to a mutually-agreed third party for arbitration, which is typically a government officer. Arbitration may be compulsory.

 

Section 7A of the IDA provides for a labourcourt or industrial tribunal within each state government consisting of one person appointed to adjudicate prolonged industrial disputes, such as strikes and lockouts. In the disputes that involves question of National Interest, the government appoints one person to the national tribunal.A final ruling on the industrial dispute must be made within six months from the commencement of the inquiry.[16]

 

1. Levels of Collective Bargaining in India
2. National-level industry bargaining is common in core industries such as banks, coal, steel, ports and docks, and oil where the central government plays the role of employer. In these industries, the CTUO[17]do not typically provide any guidelines on a charter of demands, including an increase of wage or improvement of working conditions; instead, both sides – the government and trade unions – set up a “coordination committee” to engage in the collectivebargaining proceedings. The SC recently upheld the Majithia Wage Board’s recommendations to raise salaries for journalists and non-journalists in print media.[18]
3. Industry-cum regional bargaining is peculiar to industries where the private sector dominates, such as cotton, jute, textiles, engineering, tea plantation, ports and docks. Bargaining generally occurs in two stages: company-wide agreements are formed, which are then supplemented with regional (i.e. plant-level) agreements. Basic wage rates and additional benefits are generallydecided at the company level, while certain allowances, incentives etc., are decidedat the regional or plant level, taking into account the particular circumstances, needs etc., of the employees.[19]
4. Collective Bargaining Agreements in India
   1. Types of Collective Bargaining Agreements

 

In India, collective bargaining agreements aredivided into three classes[20]:

 

1. Bipartite (or voluntary) agreements are drawn up in voluntary negotiations between the employer and the trade union. As per the IDA[21], such agreements are binding. Implementation is generally no problematic because both parties reached the agreement voluntarily.
2. Settlements[22]are tripartite in nature, as they involve the employer, trade union and conciliation officer. They arise from a particular dispute, which is then referred to an officer for reconciliation. If during the reconciliation process, the officer feels that the parties’ viewpoints have certainlybeen reconciled, and that an agreement is possible, he may withdraw himself. If the parties finalize an agreement after the officer’s withdrawal, it is reported back to the officer within a specified time and the matter is settled. However, it should be noted that the forms of settlement are more limited in nature than bipartite agreements, because they must relate to the specific issues referred to the conciliation officer.
3. Consent awards are agreements reached while a dispute is pending before a compulsory adjudicatory authority, and incorporated into the authority’s award. Even though the agreement is reached voluntarily, it becomes part of the binding award pronounced by the authority constituted for the purpose.
   1. Contents of Collective Bargaining Agreements

 

As a member of collective bargaining mechanism, employers and workmen characterizedby trade unions enter into collective bargaining agreements characteristically structured as memorandum of settlements which computethe various clauses that administersthe relationship between the workmen represented by trade unions and employers.

 

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[1]Nitish Desai Associates,India: Trade Unions and Collective Bargaining, (Accessed Date 1^st feb2021, 11.59)

 

[2] All India Bank Employees’ Association v. N.I.Tribunal, AIR 1962 SC 171

 

[3] ibid

 

[4] Article 19(4) of the Constitution

 

[5]RaghubarDayal Jai Prakash v. Union of India, AIR 1950 SC 263

 

[6]O.K.Ghosh v. Joseph, AIR 1963 SC 812

 

[7] Section 18 of the IDA

 

[8]Karol Leather KaramchariSangathan v. Liberty Footwear Company, (1989) 4 SCC 448

 

[9] R. Sivarethinamohan, Industrial Relations and Labour Welfare: Text and Cases, page 286, (Accessed on Feb 2, 2021 at 9.43 am) https://books.google.co.in/books?id=OBu-LapJUAcC&printsec=frontcover

 

[10]All India Bank Employees Association v. N.I. Tribunal (1962 AIR 171) at para 292

 

[11]Section 22 of the IDA

 

[12] Section 5 of the IDA

 

[13]Section 4 of the IDA

 

[14]Section 22 and 23 of the IDA

 

[15]Section 20 of the IDA

 

[16]Govt. of India: Section 36 of the Industrial Dispute Act, 1947 (New Delhi, Govt. of India, 1947), at p. 22

 

[17]For a list of recognized CTUOs, see above at p. 4

 

[18]VidhiChoudhary, SC upholds Majithia wage board recommendations, Livemint, (Accessed on Feb 2, 2021 at 1.43 am)https://www.livemint.com/Consumer/PMBDNjXi6e2ovpvss2SQoN/SC-upholds-validity-of-Majithia-wage-board.html

 

[19]Thomas Kochan et al. “Employment Relations in the Growing Asian Economies” (Accessed on February 2, 2021at 9.45 am)https://books.google.co.in/books?id=K5MLn6k9N50C&pg=RA2PT150&lpg=RA2%20PT150&dq=industry+cum+regional+bargaining+india&source=bl&ots=nmZADkoE_7&sig=05EloHLJ4sgNgGOmgT5Tw4c40&hl=en&sa=X&ei=fZNoU_K8Oszk8AWM7YK4BA&ved=0CCkQ6AEwAA#v=onepage&q&f=false

 

[20]Nirmal Singh, “Industrial Relations” at p. 119, (Accessed on February 2, 2021at 10.45 am)https://books.google.co.in/books?id=gl0tzPYgko8C&pg=PA119&lpg=PA119&dq=India+three+types+collective+bargaining+agreement,+settlement,+consent+award&source=bl&ots=loASB2mYdB&sig=jFY7BoPzB2Zcx9PuXzofK8OOXtU&hl=en&sa=X&ei=0JRoU6CPH5Ck8AXdt4GwCw&ved=0CDAQ6AEwAQ#v=onepage&q=India%20three%20types%20collective%20bargaining%20agreement%2C%20settlement%2C%20consent%20award&f=false

 

[21]Section 18 of the IDA

 

[22]As per section 2 (gg) (p) of IDA,