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AN ANALYSIS OF COLLECTIVE BARGAINING WITH REFERENCE TO INDIA BY: SWATI MISHRA
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AN ANALYSIS OF COLLECTIVE BARGAINING WITH REFERENCE TO
INDIA
AUTHORED BY:
SWATI MISHRA
Profile:
Student, III year BALLB,
Ramaiah
college of Law.
Abstract
This paper delves the importance of
collective bargaining in workplace members and its impact on people's rights
and place of business fairness. Through an in-intensity analysis of the ancient
context, legal framework, and realistic implications of collective bargaining,
this study pursuits to shed light at the blessings it offers to both personnel
and employers. By inspecting case studies and empirical proof, this paper
highlights the fine outcomes of collective bargaining, consisting of improved
working situations, honest wages, and
task safety. Additionally, it explores the challenges and capacity
solutions to efficaciously put into effect collective bargaining in numerous
industries and regions. The findings of this studies contribute to the
continued communicate surrounding, exertions of rights and offer insights for policymakers,
employers, and employees to foster harmonious work environments and ensure the
wellness of people.
Introduction
The era has turned into a
capitalistic state wherein the work life is glorified where the worth of the
workers are determined by the work they do. In this surge of the working
lifestyle it is often exploited which comprises the rights of them. The shift
in the work culture had led to the glorification of the toxic hustle.
But, in practical life, is it even
reasonable to adopt this toxic work culture? Probably not. With the employers
having upper-edge in the authority, they are often seen to manipulate the
employees and putting them into the endless spiral of work mostly with rights
and basic amenities being devoid to them.
The exploitation of the workers dates back to Laissez Faire era where the
employers had the privilege to hire and fire as per their own accord. They
themselves had the power to make decisions without taking into the
considerations of the employees, hence giving no space to negotiations and
bargaining. All these practices actually became a catalyst for the collective
bargaining to emerge in the workplace domain.
To have a harmonious work environment,
it was imperative to do away with these dominating practices by the employers.
In the case of Tamil Nadu electricity workers federation v. Madras Electricity
Boar, collective bargaining is defined as,”the foundation of this movement and
it is in the interests of labour that statutory recognition has been accorded
to the trade union, and their capacity to represent workmen, who are members of
such bodies.”[1]
In the developed countries such as UK
and US who are also industrially advanced, the method of collective bargaining
is being adopted as a method of negotiation and settlement of the dispute.
Apart from them, several African and Asian Countries have also made the
settlement by collective bargaining compulsory.
India too have made the principle
collective bargaining compulsory but in practice there has been hardly any
legislative methods to make it work. [2]
Hence, with the above understanding
we can derive that collective bargaining means the mutual negotiations taking
place between the workers and the employees, commonly demanding for the rights
of the workers often backed by the labour unions. Generally, the negotiations
that takes place are regarding basic amenities and joint rights of the workers,
such as working conditions, wages, reasonable working hours of the employees,
and any compensation taking place. When the welfare state had taken over it
became imperative to ensure the basic requirements of the workers, helping them
to avoid exploitation and address economical imbalances in the rise of the gig
economy.[3]
Origin of collective bargaining
The origin of collective bargaining
can be traced back to great Britain in
1874 especially among coal workers. It became apparent during the Industrial
revolution when the capitalism was on zenith and the workers had been devoid of
their basic rights and had to face poor living conditions. The wave of
collective bargaining can be seen spreading through United Kingdom to Western
Europe, North America and towards other parts of the world. This was due to the
shift in the dynamics of manual working style to a more industrial machinery
based system wherein the process of urbanisation can also be seen so the
intensity of workers in the cities also increased. The rise in the number of
workers also led to the increased demands of them with regards to proper
working conditions and the urge to protect themselves from the exploitative
conditions by forming associations and organisations and represent themselves
with respect to collective demands and rights which tend to pressurise the
government. With the passage of time concept of collective bargaining emerged
and the terms like paid leave, working hours, job security, maternity leave,
and equal remuneration for both men and women. All these revolution was
revolted by the employers and they were reluctant to agree to a joint statement
as they wanted to preserve their superior roles. Their claims were
backed by the policies which envisaged the idea of economic liberalism hence for a while
they were able to maintain the dominance giving emphasis to individual contract
rather than harping upon trade unions’ agreement which hindered the growth of
collective bargaining. But the privileges of the employers were short lived as
breeze of change occurred which made the states to look upon their policies and
amend them to a more democratic approach giving the employees the right to
strike and paved the way to a more efficient way to form trade unions, removing
all the restrictions by the means of legislation which supported collective
bargaining. Thus, collective bargaining started to gain momentum which also led
its recognition in several international organisations[4]
such as ILO which also adopted the Philadelphia Declaration which further
recognised the rights and aims of working class and thereby accentuated the
phrase that Labour is not a commodity and highlighted several aspects of social
justice. In 1998 the ILO also adopted declaration on fundamental principles and rights of work
which makes the member states obligatory to these provisions. Again in 2008 ILO
had adopted Declaration on Social Justice for a Fair Globalisation which
ensured collective bargaining to be one of the important factor to attain
economic and social progress together.
Meaning of collective Bargaining
Collective Bargaining was first
termed by Mr. Sydney Webb and Breatrice who had contributed immensely in their
writings first in 1874.
The subject matter of collective
bargaining has always been a controversial issue and has been defined by
various scholars differently. For instance, Harbinson had defined collective
bargaining as,”a process of accommodation between two institutions which have
both common and conflicting interest”.[5]
In another manual published by the international labour office they
defined collective bargaining as the negotiations which take place with regards
to the working condition of the employees and the employers with a goal to meet
an agreement[6].
Golden, the another scholar sees
collective bargaining as a measure to provide the benefits equitably among all
the members of the which includes the union, employers, employees, organisation
of representative workers on the both of the sides to come up with the
agreement.[7]
Supreme Court had also defined collective bargaining as the
the means to resolve the disputes amicably by agreement rather than putting
coercion.
By the above definitions we can derive that there is no
standardised meaning of collective bargaining and each definitions embarks its
own meaning. But by looking at all of these expression of collective
bargaining, it can be derived that collective bargaining is a combined efforts
by the union, employers and employees to reach an agreement which is accepted
by them jointly.
Functions
of Collective Bargaining
There exist multitude functions of collective bargaining
which plays an important role in safeguarding the rights of the employees. It
is the entity which provides for a diplomatic approach which enhances the
cooperation between employers and the employees to come up with a mutual
solution.
The scholars such as John Dulop and Derek Bop shone light on
five of the collective bargaining’s
important function[8]:
1)
Setting out rules of the
workplace
The collective bargaining acts as a legislative framework
wherein rules and regulations are established in a workplace which makes the
employees and employers accountable to them.
2)
compensation providing
machinery
Compensation and its form are determined by collective
bargaining agreements which tells how much and what kind of compensation shall
be given to the employees.
3)
Making compensation
standardised
The compensation is standardised and no disproportionate
value is given is ensured by collective bargaining. It was also seen that the
centralisation of collective bargaining on the national platform was deemed
more effective.
4)
understanding the
priorities of workers and the working class
Collective bargaining helps to negotiate and come up with a
mutual cooperation between employees and employers and helps to determine their
own priorities.
5)
Making the procedure of
bargaining better
It helps to redesign the machinery of bargaining by giving
out several soultions and methods which leads to the development of bargaining
process.
Elements
of Collective Bargaining
Collective Bargaining roughly consists of three elements:
1)
Matter in question:
The issues which are faced between employer relationships are
taken into consideration for the unions to seek and come up with the solutions.
The issues maybe with regards to several work situations like
wages, workplace environment, benefits, compensation, also personal issues such
as transfer, promotion etc, and they tend to seek recognition from the workers.
2)
rocess of consideration
of the matters in questions:
The collective bargaining process depends upon the nature of
the issues and terms between the employers and the employees. The way of
negotiating mostly differs if there is not any centralised procedure for
collective bargaining in the specified place. They may or may not involve a
third party to solve their problems and may tend to resolve them between
themselves.
3)
Implementation for
Collective Bargaining
The third and the last element of the collective bargaining
is its implementation provided that it is concluded by mutual understanding and
in the writings by the employees and employers recognised by the national
legislation.
ILO’s
recommendation 91
In the recommendation 91, several guidelines has been laid
out by ILO pertaining to collective bargaining.[9]
Some of them are given. Below:
·
There shall exist an appropriate machinery for
collective parallel to the conditions which is established by some sort of
legislation in the respective countries.
·
The procedure of these negotiation shall be
appropriate and shall be recognised by the laws by the countries under those
conditions.
·
The contracts made by the parties shall be binding and
the parties who are the signatories shall not commit those acts which are
contrary to the provisions given the contract.
·
If at all there exist acts which is contrary to the
provisions given in the contract then that agreement shall be deemed as null
and void.
·
By any chance the stipulation in the contract resulted
in a more favourable conditions for the employees then the contract shall not
be regarded as null and void.
·
When the disputes arises pertaining to the
interpretation of the collective bargaining arises then, the parties in dispute
shall resolve the issue by appropriate means and by laws and regulations given
recognised by the national commissions.
·
The proper supervision shall exist to check and
supervise whether collective bargaining process is working properly or not by
employers, employees or any other authorities appointed for the same purpose.
Efficacy of collective bargaining
Collective Bargaining actually has
been a major stalwart in solving the contentions between employers and
employees in a tranquil manner.
·
Medium of workers’ voice
It
reflects the systematic approach to the process of negotiations where the
workers are represented adequately and fairly. Without the notion of collective
bargaining, it would be difficult for the workers to approach convey their
grievances to the employers and the employers in return may exploit them by
providing them a ‘give or take’ situation. Hence, collective bargaining helps
in framing workers voice and enhances the plea of workers.
·
Standard of living improved
One
of the merits of collective bargaining is that ameliorates the quality of life
of the workers by providing them their demands. When the rights of the workers
are met, they help to increase their way of life and uproots their standard of
living.
·
Increased transparency
When
in effect, collective bargaining puts pressure on the working conditions to be
more transparent and increase democratic work environment by holding the
employers accountable and provide the details to the employees about their wage
structure.
·
Provides peaceful medium to end conflicts
Collective
bargaining helps people to resort in a very cooperative procedure without any
resentment and cooperation by means of negotiating and avoiding strikes and
rebellions.
·
Provides Job security
Collective
bargaining actually gives out job security to the workers by protecting them
from unjustified lay offs or termination of their jobs without any notice or
compensation, making the employers accountable.
·
Advocated for the empowerment of the employees
It
was emerged as the cornerstone for empowering the employees to raise their
voices against the exploitation faced by them in the workplace and it also
ensures that everyone is not bereft of equal rights.[10]
·
Helps in avoiding litigation
The
machinery of collective bargaining results in speedy redressal of disputes,
which in turn helps in avoiding the unnecessary delay in the litigation and
also reduces their burden.
Collective Bargaining in India
Solving Industrial dispute through
the process of collective bargaining in India is relatively a recent
development. Nevertheless, the debate of using collective bargaining has been
emerging since the British Raj. It was finally recognised in the Industrial
Dispute act.
The first five year plan to boost the
Indian economy had identified the importance of workers’ right of association,
organisation and collective bargaining
as the basics of a peaceful industrial relations.
It laid emphasis on the least
governmental intervention in the disputes arising in the workplace and
collective bargaining shall be encouraged to reach towards a mutual agreement
without any coercive means.
The second five year plan also
recognised the pressing need of the development of the collective bargaining
which highlighted the advantages of the mutual joint settlements for the
resolution pertaining to the industrial disputes. The government of India
elaborating upon the second five year plan said that the best solution arising
out of labour dispute can be done by reaching a mutual agreement and the
industrial development in the country can be reached by the stakeholders
themselves and the labour legislation can only provide to framework.[11]
In the third five year plan too, voluntary arbitration was
encouraged as a means of settlement, rather than taking any compulsory
adjudication machinery.
The fourth year plan finally laid a direct emphasis on
collective bargaining and recognised the importance of trade unions, the
government stressed upon strengthening the mechanism of the trade unions hence
harping upon a more democratic means of resolutions for striving a better
workplace environment.
National
commission on labour’s Two cents on
Collective
Bargaining
The National commission on Labour as appointed by the
Government of India in 1966 thoroughly investigating all sorts of disputes
which can arise from labour markets ; and on basis of that it imparted
multitudes of recommendation to resolve these disputes peacefully and hence
promotes collective bargaining.
One of the foremost recommendation made by them is,
The statutory provisions for union shall be made in agreement
which is satisfactory in Nature which respects the working condition of the
people and shall be made in such a way that
the arrangements can succeed in the future. They also emphasised on
proper implementations of strikes and lockouts as collective bargaining will
not exist without the right of strikes and lockout, hence a proper scheme shall
be added for them.
Further, it added that the collective bargaining in the
foreign countries work differently than in India.
In India the concept of collective bargaining is nascent and
still evolving. There are various factors of labour conditions to be kept in
mind before implementing collective bargaining in India. The question of
government intervention too is seen controversial whether the intervention of
the government is necessary or not. The most primary function of the collective
bargaining should be just the resolving of the industrial disputes and it shall
evolve gradually.
Factors
hindering successful collective bargaining in India
The formation of trade unions have been affected by the
labour laws.
First, the protest movement has been weakened by it and
secondly, the adequate protection to the workers has been also compromised for
their own trade union activities.
The trade unions in different countries of the world has the
history which reflects the several oppressions, exploitations, industrial
undertaking, and impersonal handling has lead to several protests and
encouraged the formation of several unions to be formed.
In India, however several statutes in labour law are far
advanced in the level dictated by the workers’ strength and protests movements
too. Also the value of the trade unions have been minimised due to the
existence of the works committees and also system of adjudication system.
Further, the standing orders from the institutions and also the several
provisions regarding the disputes which dissolve the needs of forming trade
unions across India.
Many provisions relating to the protection of the trade union
employees have not been yet be enforced such as Trade unions act, 1947,
prohibiting unfair practices of the management. Many laws too curtails the
proper functioning of the trade unions and limits the scope of collective
bargaining in India. For instance, The Industrial dispute act, 1947 has limited
the scope of striking for Indian workers. In the case of All India bank case
the supreme court held that right to strike is not a fundamental right.
The absence of any central and standardised provision for
trade unions representatives also affect the power of bargaining in the trade
union. Also the section 10 of the industrial dispute had affected the rights of
the workers which issues the prohibitory order.
The trade unions are also devoid of any special status by the
labour laws.
Hence, these factors affect the development of collective
bargaining immensely in India, and to change that proper recognition of trade
unions by the legislature is required.
Instances of Collective Bargaining in India:
With the passage of time, collective bargaining as a method
to settle disputes have been emerging in India.
During 1961,334 cases of disputes have been resolved by
mutual agreements out of 1,291 terminated cases and 324 by direct negotiations.
In 1962, there were 261 collective agreements out of 410 awards. 226 collective
agreement were reached in 1963.
The national commission had also recognised the growth of
collective bargaining in India and had supported its use for the development of
the economy.
From the following, it can be derived that the collective
bargaining can become a real deal only if the compulsory adjudication is removed
from the statutes.
The definition of settlement under the industrial dispute act
has not even recognised the essence of collective bargaining as in section2(p):
“settlement” means a settlement arrived at in the course of conciliation
proceedings.” If the settlement is made without the conciliation proceedings
then they were bereft of any legal recognition. The amendment of 1956 redefined
the definition and added written agreement between the employers and the
employees instead of conciliation proceedings provided that they compliance
with the rules.
In the case of Ramnagar sugar cane v. Jatin chakravorty, it
was held that the settlement by conciliation is binding upon all the employees
and the employers working in that establishment and not only the interested
representatives who had signed the settlement.
Conclusion
Hence, we can arrive at the conclusion by analysing the
effects of collective bargaining in the workplace which is seen as a speedy
option to resolve dispute in a very peaceful manner. The dispute resolution is
done by mutual understanding which takes place in the negotiations and there is
no space for the coercive methods. Collective bargaining is an important part
of work members. It entails negotiations
among employers and personnel or their representatives to establish truthful
working conditions, wages, and benefits. It gives a platform for workers to
specify their worries and make certain they may be dealt with cooperation.
Collective bargaining helps to keep a effective work environment and promotes
the welfare of employees. The legislation of collective bargaining is important
for its development and to attain growth the binding nature of collective
bargaining has to emerge as it's a crucial system for accomplishing equity and
stability in the administrative centre.[12]
[4]
https://www.ilo.org/wcmsp5/groups/public/---dgreports/---dcomm/---publ/documents/article/wcms_173298.pdf
[6]
International Labour Office, Collective Bargaining (a worker’s education
Manual), in (1960) p.3.
[7]
C.S Golden, causes of industrial peace under collective bargaining,USA, the
national planning association,1949.
[10]
https://www.legalserviceindia.com/legal/article-12092-efficacy-of-collective-bargaining-and-worker-s-association.html#:~:text=Collective
Bargaining enhances workers' voices,trade union effectively represent workers.
Article Information
AN ANALYSIS OF COLLECTIVE BARGAINING WITH REFERENCE TO INDIA BY: SWATI MISHRA
Authors: SWATI MISHRA
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/03/01
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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