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LABOUR LAW II
COLLECTIVE BARGAINING
SUBMITTED TO:
SUBMITTED BY :
ASSOCIAT PROFESSOR
LAW
ACKNOWLEDGEMENT
I am highly elated to work on my project topic COLLECTIVE BARGAING under the
guidelines of my teacher Dr. S.C. Roy .I am very grateful to him for his proper guidance. I
would like to enlighten my readers with my efforts and just hope that I have tried my best for
bringing luminosity to this topic.
I would also like to thank all my friends and my seniors and apart from all these I would like to
give special regard to the librarian of my university who made a relevant effort regarding to
provide the materials to my topic and also assisting me.
And finally and most importantly I would like to thank my parents for providing me financial
and mental support and providing me necessary and important tips whenever need so. I would
like to thank my room-mate for every little help of his.
THANKING YOU,
RAVI SHEKHAR VARSHI
TABILE OF CONTENTS
1) INTRODUCTION
2) DEFINATION OF COLLECTIVE BARGANING
3) COLLECTIVE BARGANING PROCESS
4) COLLECTIVE BARGANING IN INDIA
5) PROBLEMS RELATING TO COLLECTIVE BARGANING IN INDIA
6) CONCLUSION AND SUGGESTIONS
BIBLIOGRAPHY
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 1890s2. The idea of
collective bargaining emerged as a result of industrial conflict and growth of trade 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 peaceful
and routine bargaining would eliminate industrial strife and violence. Second, collective
bargaining stood for "industrial 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 dispute arises resulting in industrial tension and disturbing the peace and
harmony in the industry. Collective Bargaining is one of the methods wherein the employer and
the employees can settle their disputes.
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
1 Otto Kahn-Freund, Laboar aad the Law, L mdon, Stevens & Sons, (1977\ .). 49
2 Webb, Sydney and Beatrice, Industrial Democracy,1902,p.185
3 Report of Royal Commission on Labour in India, 1931; p. 336-337
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peace and harmony, a machinery for adjustment of such conflicting interests
became the need of the time. The Act therefore was enacted to provide machinery and
Forum for adjustment of such conflicting and seemingly irreconcilable interests without
disturbing the peace and 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.
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, N.M. Tripathi (Pvt) Ltd., Bombay, (1968),
P.29:
(a)
(b)
(c)
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 partnership style.
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
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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 makes suggestions, gives advice, and tries to get labor and management to 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
compulsory or voluntary. Compulsory arbitration is not often used in labor-management
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 management. Ninety percent of all union contracts use arbitration if the union 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
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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, 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.
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National level
2.
3.
Company/enterprise level
Economy-wide (national) bargaining is a bipartite or tripartite form of negotiation between
union confederations, central employer associations and government agencies. It 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.
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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.
1.
Settlement arrived in the course of conciliation proceeding before the authority. Such settlements
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.
Settlement not arrived in the course of conciliation proceedings but signed independently 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 one camp to the other and find out
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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.5
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
effect under the provision of S.19 (2) and such settlement can be only arrived at when
conciliation proceedings are held under S.12 of the Industrial Disputes Act, 1947. 6 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 to an award and therefore , the industrial law does not contemplate
any interference with the finality of a settlement and it compels the settlement to run on for the
period mentioned in the settlement itself and neither party is permitted to challenge that
settlement during its duration.7
5 Royal Calcutta Golf Club Mazadoor Union v. State of west Bengal, AIR 1956 Cal
550.
6 Poona Mazdoor Sabha v. G.K.Dhuta, AIR b1956. Bom. 743.
7 Ibid
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BIBLIOGRAPHY
Books referred..
Goswami, V.G., Labour and Industrial Law, 2004 Central Law Agency, Allahabad.
Teller Ludwig, Labour Disputes and Collective Bargaining, Vol I, 1940 Barker Voorhis& co.
INC New York.
6) Boone, Louis E., and Kurtz, David L. (1999). Contemporary Business. Fort Worth, TX:
Dryden Press.
7)Davey, Harold W. (1972). Contemporary Collective Bargaining. Englewood Cliffs, NJ:
Prentice-Hall.
8)Miernyk, William H. (1965). The Economics of Labor and Collective Bargaining. Boston:
Heath.
9)Voos, Paula B., ed. (1994). Contemporary Collective Bargaining in the Private 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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Articles referred.
1
Strikes and Lock outs, Pankaj and Dharamveer Singh, Lab&IC, Vol 1,2005
pg12-21.
Websites.
http://www.tradeunionindia.org/miscellaneous/public_rights.htm.
http://echo.ilo.org/pls/declaris/DECLARATIONWEB.DOWNLOAD_BLOB?
Var_DocumentID=1655.
http://www.unccr.ch/tbs/doc.nsf/(Symbol)/E.C.12.2002.12.En?Opendocument.(ILO )
http //www.google.co.in/
www.indialaw.com
www.lawsofindia.com
BOOKS/JOURNALS
International Labour Review, Vol. 139 (2000), No.1.
G. B. Pai , Labour Law in India, Vol. I.
Indian Bar Review, Vol.29, (2002),pp 1-4
Labour Law Journal, Vol I (2005).
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