Collective Bargaining

MEANING OF COLLECTIVE BARGAINING An individual is free to bargain for himself and safeguard his own interest. If an individual workman seeks employment he stands in a weaker position before his master, who having command over wealth stands in a better position to dictate his own terms and the individual has to accept offer without any reserves for he has to earn something to feed his family. However the position becomes different if a bargain is made by a body or association of workmen. They can negotiate and settle their terms with the employer in a better way and secure better wages, better terms of employment and greater security. The object of collective bargaining is to harmonize labour relations, promote industrial peace by creating equality of bargaining power between the labour and capital. Collective bargaining can exist only in an atmosphere of political freedom. Any condition of service like, wages, hours of work, leave, gratuity, bonus, allowances and other like privileges can all be settled by negotiation between the body of workmen and employer. Thus “collective bargaining” is that arrangement whereby the wages and conditions of employment of workmen are settled through a bargain between the employer and the workmen collectively whether represented through their Union or by some of them on behalf of all of them. 1 The phrase “Collective Bargaining” is coined by famous authors Sydney and Beatrice Webb in their celebrated treaties on ‘History of Trade Unions’. In India no legislation has provided for collective bargaining, except a strag provision in the Bombay Industrial Relations Act, 1946. Therefore there is no legislative definition of the term collective bargaining. 2 In All India Bank Employers v. National Industrial Tribunal3, it was argued that Article 19(1)(c) of the Constitution of India guaranteed to all citizens, as a concomitant to its right to form associations or unions, a right to effective collective bargaining and a right to strike. But the Supreme Court rejected the argument and said that even a liberal interpretation of sub-clause (c) of clause (1) of Art 19 cannot lead the conclusion that the trade unions have a guaranteed right to an effective bargaining. The Encyclopedia Britannica defined collective bargaining as a process of discussion and negotiation between an employer or group of employees and a group of 1

Misra S.N., Labour & Industrial Laws, Central Law Publications, 21 st Ed., Allahabad, 2005, pg 303 Prof. Khan Ahmedullah, Commentary on Labour and Industrial Law, Asia Law House, 1 st Ed., Hyderabad, Reprint 2006, pg 72 3 AIR 1962 SC 171 2

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work people, to reach agreement on working conditions. If negotiations are between an employer and group of work people, the dependence of work people on the employer for their job weakens their bargaining power, and therefore, collective bargaining is more usually understood to be a negotiation between one or more trade unions and the employer or group or association of employers. 4 The Encyclopedia of Social Sciences defined collective bargaining as “a process of discussion and negotiation between two parties, one or both of whom is a group of persons acting in concert.... More specifically, collective bargaining is that process by which an employer or employers and a group of employees agree upon the conditions of work. The institution is both a device used by wage workers to safeguard their interests and an instrument of industrial organization.... The use of collective bargaining and the maintenance of labour unions are now most inspirable... the extent of effective employment of collective bargaining is the extent of successful unions; the history of collective bargaining is inseparable from the history of organized labour.” 5 On one side of the bargaining table are union representatives, and on the opposite side are the employers, who to an extent are themselves becoming organized for collective bargaining, although their organizations are not nearly so well integrated as are those of labour. Collective bargaining under industrial law aims at mutually acceptable bipartite agreement between employer and employees arrived at after discussions and negotiations between them about terms and conditions of employment. 6 All collective bargaining aims at the formulation of norms for the guidance of individual employers and individual workers. This ‘rule-making’ character is inherent in the collective bargaining process, quite irrespective of the degree of legal effect which state attaches to the rules made in the autonomous sphere. 7

SCOPE OF COLLECTIVE BARGAINING

4

Prof. Khan, Supra note 2, at 72 Ibid, at 72 & 73 6 Paul Meenu, Labour and Industrial Law, Allahabad Law Agency, 8 th Ed., Faridabad, Reprint 2012, pg 222 7 Ibid, at 222 5

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The common law emphasis to individual contract of employment is shifted to collective agreement negotiated by and with representative groups. The application and interpretation of such agreements are also in the collective manner. The subject-matter of such collective activity ranges from the establishment of basic wage rate for thousands of workers throughout the country to the settlement of one man’s grievances in respect of one object in one factory. 8 Two important purposes are achieved generally by collective bargaining agreements. The parties undertake towards one another certain obligations and create a code for trade. Whether the collective bargaining agreement expresses this or not, the trade union and employer or employer’s association by signing the agreement undertake to keep the peace and not to resort to strikes or lock-outs for changing the agreed terms during the currency of agreement. There is the implied undertaking also to do their best to see that the terms agreed are applied by the employers and the employees concerned. Thus, they act as parties to an agreement imposing natural obligations upon each other. At the same time they also act as joint legislators for the trade to which the agreement applies. They seek to determine the content of the contract of employment which individual employees have concluded in the past or will conclude in the future. 9 Collective bargaining has the effect of imposing a limit on the freedom of the employers to run their business as they think fit. It is highlighted as “ Self Protection” to workers from two angles; firstly, that in the presence of a reserve army of unemployed, it eliminated the competition which would otherwise exist among them to offer their services at a lower price than their fellow workers for getting employment; secondly, it enables the workers in favorable conditions to compel their employers to consider wage improvements and other emoluments and finally collective bargaining protects labour against victimization and favouritism of employers. Hence, it is something like a ‘ rule of law’ in industrial relations. 10

SIGNIFICANCE OF COLLECTIVE BARGAINING

8

Prof. Pillai K. Madhavan, Labour and Industrial Laws, Allahabad Law Agency, 20 th Ed., Faridabad, 2005, pg 43 9 Ibid, at 43 10 Id, at 43

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Collective bargaining gained significance in the beginning of twentieth century with the realization that collective bargaining has an important role to play in resolving the matters which concern the workers collectively such as wages, dearness allowance, bonus, hours of work, etc. Underlying the significance of collective bargaining, V.V. Giri writes as follows: “An agreement arrived at after negotiation will always be more conscientiously observed and regarded as more binding by both parties than any statutory regulation, for the enforcement of which cumbersome legal procedure has to be adopted. Collective agreements are the results of give and take. The employer, in signing an agreement, recognizes the justified demands of the workers and pledges himself personally, or through his representative, to abide by rules and regulations. The union negotiator gives personally the same pledge on behalf of the workers. Both sides acknowledge the agreement, signed mostly after detailed negotiations, as the best possible under the prevailing circumstances at the time of concluding it.” 11 The courts also prefer settlement of industrial dispute mutually by the management and workers through collective bargaining. In National Engineering Industries Ltd. v. State of Rajasthan 12, the Supreme Court observed as follows: “A settlement of dispute between the parties themselves is preferred to industrial adjudication, as the settlement is likely to lead to a more lasting peace than award. Settlement is arrived at by the free will of the parties and is pointer to the fact that is goodwill between them.” Collective bargaining plays an important role in raising productivity by maintaining peaceful industrial relations between management and workers. As collective bargaining aims at resolving industrial matters between management and workers through discussions and negotiations, this instills in the workers a sense of involvement in the decision making in the industrial relations as they feel involved in settling the terms and conditions of employment through their representatives in the process of collective bargaining. This enables the workers to work with co-operative attitude and maintain cordial relations with employer and give better output. 13

ESSENTIALS OF COLLECTIVE BARGAINING

11

Paul, Supra note 6, at 223 AIR 2000 SC 469 13 Paul, Supra note 6, at 223 12

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The essentials of effective collective bargaining between labour and management are as follows: 1. Strong united stable trade union: Success of collective bargaining between two parties lies in the achievement of an agreement which is mutually acceptable to both the parties. As collective bargaining aims at general agreements about the terms and conditions of employment arrived at between the representative of workers and management through mutual negotiations without the intervention of third party, a fair and just agreement between the two parties can be achieved if both the parties are of equal strength. Only a strongly united trade union can act as an effective partner in the process of collective bargaining as the strength of their unity enables the worker to negotiate with their wealthy and powerful employer with more confidence. It is therefore necessary that the trade union leaders should acquaint the members of their union about the demands that they are going to take up with their employer on behalf of the whole of union, so that the members of the trade union do not feel betrayed by their leaders. The demands taken up by the leaders of the trade union on behalf of the member of the union should be genuine and for the common benefit of all the workers and should not serve the vested interest of the trade union leaders only. For effective collective bargaining the trade union should also ensure that there should also ensure that there should not be any interference in the bargaining process by such members of the trade union who are outsiders and have ulterior political motive to achieve. However, the trade unions may take the assistance of the experts in the matters under discussion and negotiation to present their case to the management on the facts and figures with more clarity and effectively. 14 2. Responsible management: If strong and stable trade union is an essential for the success of collective bargaining, a genuine desire on the part of the employer to co-operate with the trade unions as the representatives of the workers in understanding the point of view of the workers is another essential requirement of effective collective bargaining. The employer is represented at the collective bargaining table by certain management officials, who are charged with the successful operations of various aspects of the employer’s business. The primary responsibility for successful conduction of employer and employee relation, including collective bargaining relations, rests upon a management official. For 14

Paul, Supra note 6, at 227

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effective collective bargaining management is to recognize the fact that the workers are the partners in the industries and play an equally important role for development of the industry. Therefore any investment made for the welfare of the worker goes to increase the efficiency of the worker. As a satisfied worker develops a sense of belongingness to the establishment for which he works and gives better output. The First Five Year Plan of India records that “the worker’s right of association, organization and collective bargaining is to be accepted without reservation

as

the fundamental

basis

of mutually

satisfactory

relationship. 15 3. Mutual faith and trust between trade union and management: Mutual faith and trust between the workers and the employer is another essential of effective bargaining. As successful negotiations depends to some extent on the attitudes prevailing on both sides of the bargaining table. Howsoever a strongly united workers or employers may be, they cannot negotiate fairly and reach a mutually agreeable agreement unless they have trust and faith in each other. Mutual faith and trust requires such a mental state of both the parties to the collective bargaining that they come to negotiate with each other without any intention to take the advantage of the other and with an attitude to resolve the clash of their interests and find out the ways of adjusting their conflicting interest by identifying the areas of their common interest. The trade union should make every worker understand his duties before making demand for his rights and privileges. The trade union should aim at instilling in the workers a spirit of self-reliance, toleration and co-operation. Good faith, open mindedness, mutual understanding, trust and confidence and goodwill are the indispensable ingredients of all the harmonious relationships. 16 4. Workers participation in management: Almost all the economically advanced nations have worked out their variants of industrial co-operation and codetermination,- Germany, Japan and now the countries of European Union. All of them have found systems of participatory management useful and beneficial for efficiency, and for creating ate atmosphere necessary to meet the demands of competitiveness. They have expanded the rights of workers and increased managerial efficiency. They have reduced distance between workers and 15 16

Paul, Supra note 6, at 228 Ibid, at 229

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managerial personnel. They have improved human relations, and improved human relations lead to improved industrial relations. With the revolutionary means of communication, it has become possible for workers to keep track of information relating to processes, balance sheets and the like. In its report the Second Commission on Labour records that “there is no evidence that to show that workers participation in the management has in no way weakened an enterprise financially or otherwise. Workers participation in the management is means to achieve industrial democracy which leads to effective collective bargaining. The Industrial Policy Resolution adopted by the Government of India in 1956, declared that in a socialist democracy, labour is a partner in the common task of development, and should be asked to participate in it with enthusiasm. 17

TYPES OF COLLECTIVE BARGAINING There are five types of collective bargaining: 17

Paul, Supra note 6, at 230

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1. Conjunctive or Distributive Bargaining: The parties try to maximize their respective gains. They try to settle economic issues such as wages, benefits, bonus, etc., through a zero-sum game (where my gain is your loss and your gain is my loss). Unions negotiate for maximum wages. Management wants to yield as little as possible – while getting things done through workers. 18 It is the most common type of bargaining in which one side wins and other side losses. Union and management have initial offer or demands, target points (example desired wage level), resistance point (example unacceptable wage levels) and settlement ranges (example acceptable wage level). 19 2. Cooperative or Integrative Bargaining: When companies are hit by recession, they cannot offer the kind of wages and benefits demanded by workers. At the same time they cannot survive without the latter’s  support. Both parties realize the importance of surviving in such difficult times and are willing to negotiate the terms   of   employment   in   a   flexible   way.   Labour   may   accept   a   cut   in   wages in return   for   job   security   and   higher   wages   when   things   improve.   Management agrees to modernize and bring in new technology and invest in marketing efforts in a phased manner. In India, companies like TELCO, Ashok Leyland resorted to cooperative bargaining  in  recent   times  with  a view   to  survive  the  recessionary trends   in   the   automobile sector. 20  It   is   similar   to   problem   solving   situation   in which both sides are trying to reach a mutually beneficial alternative i.e. a win win situation. 21 3. Productivity Bargaining: Productivity bargaining is a process that employers and employees enter into in order to increase the overall

EFFICIENCY

and

productivity of the business. This type of negotiation is almost always seen in factory or INDUSTRY

CONSTRUCTION

work, although it may also be present in the

FILM

and other heavily regulated workforce areas. It is rarely used in service

18

HTTP :// WWW .GOOGLE .CO. IN/ URL? SA =T &RCT =J &Q =& ESRC= S & SOURCE =WEB& CD =7& VED=0CFMQF J AG& URL =HTTP %3A%2F %2F WWW.INFO2 MYFRIENDS .BLOG .COM %2FFILES%2F2010%2F11%2FL ESSON-17 (last seen on

17 th March

2014 at 11:28 AM) 19 HTTP :// WWW . SLIDESHARE . NET /MAHASHMI /TYPES - OF - COLLECTIVE -BARGAINING (last seen today on 17 th march 2014 at 11:52 AM) 20 Supra note 18 21 Supra note 19

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industries where specific types of employee labour are not required. The goal of management in this case is to increase the productivity of the workers without having to hire more labor. In return, management agrees to raise the wages of the workers22. In this method, workers’ wages and benefits are linked to productivity. A standard productivity index is finalized through negotiations initially. Workers do not have to perform at exceptionally high levels to beat the index. If they are able   to   exceed   the   standard productivity   norms   workers   will   get   substantial benefits.   Management   gains   control   over workplace   relations   and   is   able   to tighten  the norms still further in future negotiations. Without  such productivity bargaining   agreements,   workers   may   not   realize   the   importance of   raising productivity   for   organizational   survival   and   growth.   Backed   up   by   powerful unions,   they   may   fail   to   read   the   danger   signals   from   the   market   and   respond quickly. 23 4. Composite Bargaining: It   is   alleged   by   workers   that   productivity   bargaining agreements have increased their workload. Rationalization, introduction of high technology,   and   tight   productivity   norms have   made   the   life   of   a   worker somewhat   uneasy.   All   these   steps   have   started   hitting   the unions   and   workers below   the   belt.   As   an   answer   to   such   problems,   labour   has   come   to favour composite bargaining. In this method, labour bargains for wages as usual but goes a step further demanding equity in matters relating to work norms, employment levels,   manning   standards,   environmental   hazards,   sub­contracting   clauses,   etc. When unions negotiate manning standards they ensure the workload of workers does not increase, this helps to maintain the status quo as far as employment level is concerned. By negotiating sub­contracting clauses, unions prevent management from farming out business to ancillaries. If permitted, such an action may result in lower employment in some other plant diluting the bargaining powers of unions substantially.   Workers   are   no longer   interested   in   monetary   aspects   to   the 22

HTTP :// WWW .EHOW . COM /ABOUT_6510206_ MEANING - PRODUCTIVITY - BARGAINING _.HTML (Last seen on 17th March 2014 at 12:14 PM) 23 Supra note 18

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exclusion of work related matters. There is no doubt that wages, bonus and other monetary aspects continue to occupy the centre­ stage in bargaining sessions. But there is a definite shift towards composite bargaining. Without such a proactive stand,   workers   may   not   be   able   to   withstand   the   forces   of liberalization, automation,   farming   out   business   to   outsiders   and   survive.   Through   composite bargaining   unions   are   able   to   prevent   the   dilution   of   their   powers   and   ensure justice to workers by putting certain limits on the freedom of employers. For the employer this is a lesser evil when compared to strikes and lockouts. Apart from periodic   wage   hikes   and day­to­day   tussles   over   productivity   norms   and   other related issues there is at least no danger of workers striking work every now and then. Of course, even this situation may not continue for long. In companies like SAIL, Philips, Bata, GKW and even TISCO, workforce reductions have to come if they have to survive in a high­tech  environment. The compulsions  of a  free market economy cannot be put aside just for the sake of maintaining the labour force. It is small wonder despite serious warnings from unions, companies in the recession­hit automobile sector (Hindustan Motors, Premier Automobiles, Maruti, TVS Suzuki, Hero Honda) have either reduced the work force or cut down their benefits. 24 5. Concessionary Bargaining: Concession LAW .

BARGAINING

is a term used in

LABOR

It is a kind of collective bargaining in which the trade unions surrender or

give back previously gained improvements in pay and conditions in exchange for some form of job security. For example, the employees may agree to surrender improvements in wages or benefits in exchange for protection against lay offs. The term was coined in the U.S. It is also termed as union givebacks or employee givebacks. 25

24

Supra note 18 http://definitions.uslegal.com/c/concession-bargaining/ (last seen today on 17 th March 2014 at 12:46 PM) 25

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ADVANTAGES AND DISADVANTAGES OF COLLECTIVE BARGAINING ADVANTAGES: Following are the advantages of collective bargaining: 26 1. Harmonious labour-management relations: In collective bargaining during the process of negotiation the representative of employees and workers get a chance to see the areas of difference as well as of agreements between them which can be discussed and negotiated and a way is paved for an amicable solution to any dispute between them. Amicable settlement of dispute prepares ground for the harmonious relation between the parties. Labour-management relations that develop through the process of collective bargaining, give rise to body of norms designed by the parties themselves that regulates the conduct of members of both the parties. 2. Stabilizing effect on society: Collective bargaining, as a technique for the accommodation of the frequently divergent and conflicting desires and objectives of the employers and employees is an integral component of industrial society. The achievements of collective bargaining, the results of its functioning, and its ramifications extend far beyond the employer employee relationship and present both bright promise and grave problems to the entire national community. As resolution of conflicts between labour and management at the collective bargaining table leads to industrial peace which is a key to the industrial growth of any nation. 26

Paul, Supra note 6, at 230 & 231

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3. Feeling of belongingness in the workers: An alienated worker the feeling of belongingness to an establishment retards the growth of any industry with reduced output. This gives rise to industrial unrest and disturbs harmony in the industrial relations between the employer and the employees. Whereas in collective bargaining the terms and conditions of employment are not imposed unilaterally upon the employees by the employer but are discussed with the workers through their representatives and are settled through the negotiation with the representatives of employees. Thus in collective bargaining the employer involves workers in the process of settling the terms and conditions of employment and creates a democratic setup in his establishment in which a worker also has to say through his representative in the settlement of terms and conditions of his employment. DISADVANTAGES: Following are the disadvantages of collective bargaining: 27 1. Freedom of the individual workmen to contract: The collective bargaining does not result into labour contracts, but results in a general agreement between the employer and the representatives of the workers about the terms and conditions of employment. The process of collective bargaining results not in a labour contract, but in a trade agreement. This imposes no obligation upon the employer to offer or upon the labourer to accept work; it guarantees neither to employers workmen nor to the labourers jobs. It is nothing more than a statement of the conditions upon which such work as is offered and accepted to be done. The contract of employment is still between the individual employer and the individual employee. In Tamil Nadu Electricity Work Federation v. Madras State Electricity Board 28, the court held that “Collective bargaining is the foundation of the movement and it is in the interest of the labour that the statutory recognition has been accorded to trade union and their capacity to represent workmen, who are members of such bodies. But of course there are limits to such doctrine, for otherwise, it may become a tyranny stifling the freedom of individual worker. It is not then that every workman must be necessarily the 27 28

Paul, Supra note 6, at 224 & 225 AIR 1956 Mad. 111

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member of trade union, and that, outside its fold, he cannot exercise any volition or choice in matter affecting his welfare. The representative powers of organization of labour, with regard to enactments, such as the Industrial Dispute Act, 1947, will have to be interpreted in the light of individual freedom guaranteed in the Constitution, and not as though such freedom did not independently exist, as far as organized labour is concerned.

2. Statutory provisions under the labour laws determining the terms and conditions of employment of workers: Collective bargaining means negotiation of terms and conditions of employment agreed upon between the employer and the representatives of his employees. But these agreements cannot override the statutory provisions about such terms and conditions of employment which have been provided under statutes enacted and enforced by the State. For example, the Factories Act, 1948 of India limits working hours for adults and children, adolescents and women in a day and in a week. The Factories Act, 1948 of India also provides for the intervals for rest and weekly holiday. No mutually acceptable agreement that has arrived at between the employer and the representatives of workers after negotiation between them can take effect if it provides for more working hours than those which are provided for the workers in the factories under the Factories Act, 1948. Similarly, under the Minimum Wages Act, 1948 the State fixes the minimum wages which the employer must pay to the worker. Thus, no agreement that is reached between the employer and the employees after collective bargaining can provide for wages which fall below the minimum wages provided under the Minimum Wages Act, 1948. Therefore so far as the legal status of collective bargaining is concerned, it can be said that agreements that are reached between management and workers due to collective bargaining are not legally enforceable if they are in conflict with statutory provisions which are legally enforceable under the labour laws enacted by labour laws.

13

COLLECTIVE BARGAINING IN INDIA Collective bargaining in India is of late development, for obvious reason that trade union movement in an organized form took place only recently. Unlike many other western countries, India was not fortunate to witness an industrial revolution. The imperial government wanted to retain India as a colony for getting raw materials and as a market for selling finished products from England. So their misguided policy was to avoid industrialization in our country. The few industries existed mainly related to textile and jute. But a country depended upon foreign rule naturally gave more importance to its freedom movement over the trade union movement. Finally, it was only in 1926 the trade unionism was recognized in India recognizing certain immunities and privileges. 29 The post independent India witnesses a spate of labour welfare legislations corresponding to the late 19 th century collectivist legislations or the western countries. These legislations introduced sweeping changes to the socio economic conditions of the working class. In recent years collective bargaining in India has attained importance not only in the Industrial Sector but in agriculture areas as well. The agricultural labour organizations dealing collectively with the employers as to terms and conditions of employment have become a common feature. The modern trends in some States like Kerala and West Bengal, exemplify this. 30 A reflection of collective bargaining is found in Section 3 of the Industrial Dispute Act, 1947. Section 3 of the Industrial Dispute Act provides that, in case of any industrial establishment in which 100 or more workmen are employed on any day in the previous twelve months, the appropriate government may by general or special order require the employer to constitute a Works Committee consisting of the representatives of employers 29 30

Prof Pillai, Supra note 8 at 44 Ibid, at 45

14

and workmen engaged in the establishment. The number of representatives of the workers shall not be less than the number of representatives of employer. Sub Section (2) of Section 3 of the Industrial Act, 1947 provides that “it shall be the duty of the Works Committee to promote measures for securing and preserving amity and good relations between the employer and the workmen and, to the end, to comment upon matters of their common interest or concern and endeavour to compose any material difference of opinion in such matters”. 31 Significance of collective bargaining is found in the five year plans of India also. In the first five year plan it has been mentioned that the State should make efforts to promote collective bargaining to settle the disputes mutually than through the adjudication through the intervention of the Government. Similarly in the fourth five year plan the significance of mutual agreements was underlined as in this plan also settlement of industrial disputes by mutual agreements was held to be the best settlement of disputes. 32 The Industrial Policy Resolution adopted by the Government of India in 1956, declared that in a socialist democracy, labour is a partner in a common task of development, and should be asked to participate in it with enthusiasm. To raise productivity, promote industrial peace and create a sense of involvement amongst the workers, Article 43-A was inserted in the Indian Constitution which formed the part of the Directive Principle of State Policy. 33 Article 43-A of Indian Constitution provides that “the State shall take steps by suitable legislations or in any other way to secure participation of workers in the management of undertakings or other organizations engaged in the industry.” 34 Thus it has become incumbent upon the State to work towards the effective participation of workers in the management. It is further pertinent to note that India has ratified International Labour Organization Convention No.11 of 1921 dealing with the Right of Association (Agriculture) Convention and ILO Convention No. 141 of 1975 dealing with Rural Workers Organization and therefore granted rights to form association in the Art 19(1)(c). 35 Art 19(1)(c) guarantees to the citizens of India “the freedom to form associations or unions”. 36 31

Paul, Supra note 6, at 232 Paul, Supra note 6, at 232 33 Ibid, at 232 34 Constitution of India 35 Prof. Khan, Supra note 2, at74 36 Ibid 32

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ROLE OF INDIAN JUDICIARY: 37 In Mumbai Kamgar Sabha v. Abdul Bhai,38 the Supreme Court held that it was an accepted doctrine that labour was the backbone of the Nation, particularly in the areas of economic self reliance. In Hindustan Tin Works v. Its employees,39 it was observed that since Art 43-A had made labour a partner in industry, industry being regarded as the common venture of capital and labour, it would follow that if a sacrifice became necessary in the interest of industry or an undertaking, such a sacrifice would be equally shared by both. In National Textile Workers Union v. P.R. Ramakrishnan,40 the Supreme Court, drawing support from Art 43-A upheld the right of workers to be heard in the winding up proceedings of a company. CAUSES FOR SLOW DEVELOPMENT OF COLLECTIVE BARGAINING IN INDIA: But collective bargaining has not developed as desired in India. Causes of slow development of collective bargaining are as follows: 41 1. Inter-Union rivalry due to multiplicity of trade unions in India. 2. Political interference by outsiders 3. Illiteracy and poverty of workers 4. Inter union rivalry due to multiplicity of trade unions in India.

37

Prof Kumar Narender, Constitutional Law of India, Allahabad Law Agency, 7 th Ed., Faridabad, 2008, pg 471 38 AIR 1976 SC 1455 39 AIR 1979 SC 75 40 AIR 1983 SC 75 41 Paul, Supra note 6, at 233

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PRACTICES IN OTHER COUNTRIES 42 U.S.A: In USA there are laws ensuring the workers the right to organize and bargain collectively. An independent authority is set up to administer and interpret legal provisions and to decide complaint regarding unfair labour practices. Intervention of the State in individual dispute is limited to the actual or threatened work stoppages which could imperil the national economy, health or safety. ENGLAND: In England, free collective bargaining between parties is given priority in their industrial relations except in cases where total freedom to parties to the dispute may imperil the community at large. In such extreme situation collective bargaining gives state intervention in England. JAPAN: In Japan, the right to collective bargaining is guaranteed under their Constitution. There are legislations to promote collective bargaining and State directly intervenes only in case of strike which may jeopardize the national economy and public life. U.S.S.R: In former U.S.S.R., three important factors regulate industrial relation system. The first is the formation of socialist societies which has replaced private ownership of basic means of production by public ownership. Thus, occasions for active conflict in industrial relations are eliminated. Secondly, the operation of a centrally planned and controlled economy introduces certain restrictions of labour and management and lastly, the influence of a single political party in running the Government and in organizing unions make it necessary for the unions to perform a double role.

42

Prof Pillai, Supra note 8 at 44

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CRITICAL EVALUATION OF COLLECTIVE BARGAINING Collective bargaining involves legislative, executive and judicial functions. The broad principles, standards, and norms that are to govern employer employee relations are involved. These are observed and implemented by the parties concerned. They involve the interpretation of collective agreement. This process stretches through out the period of the agreement. Even, though of late origin, the concept of collective bargaining is gaining importance in India. But its prospects in the future will be bleak unless sweeping changes are effected to the existing system of settlement under the Industrial Dispute Act, which gives predominance to compulsory adjudication. This saps the foundation of self reliance of labour. The recommendations of the National Commission on Labour in this matter, if implemented will mitigate the mischief at least to a certain extent. However the labour also should not be unmindful of the fact that collective bargaining is not to be substituted by coercive bargaining in which case the practice of collective bargaining will become unpopular, ill reputed and oppressive. 43 Now new concept of Tripartism has been introduced. Tripartism means reliance upon the advice of three parties to industrial relation and disputes. Trade unions, employers and Government are three parties. Under this the parties do not decide anything, but they try to debate and advice about everything. Their representatives sit together in one kind of meeting or another and strive to reach consensus and on that basis make recommendations. The Government is the most active party, even though it decides nothing as one participant, it does take the initiate in calling the management and labour together. This arrangement became popular during the Nanda period from 1957. 44

43 44

Prof Pillai, Supra note 8 at 47 & 48 Ibid, at 49

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BIBLIOGRAPHY PRIMARY SOURCE: 1. Constitution of India SECONDARY SOURCE: Books: Following books have been referred: 1. Misra S.N., Labour & Industrial Laws, Central Law Publications, 21 st Ed., Allahabad, 2005. 2. Paul Meenu, Labour and Industrial Law, Allahabad Law Agency, 8 th Ed., Faridabad, Reprint 2012. 3. Prof. Khan Ahmedullah, Commentary on Labour and Industrial Law, Asia Law House, 1st Ed., Hyderabad, Reprint 2006. 4. Prof Kumar Narender, Constitutional Law of India, Allahabad Law Agency, 7 th Ed., Faridabad, 2008. 5. Prof. Pillai K. Madhavan, Labour and Industrial Laws, Allahabad Law Agency, 20th Ed., Faridabad, 2005. Websites: Following websites have been referred: 1.

HTTP ://DEFINITIONS .USLEGAL .COM/C /CONCESSION -BARGAINING /

2.

HTTP ://WWW .EHOW. COM/ABOUT_6510206_ MEANING- PRODUCTIVITY BARGAINING _. HTML

3.

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