Recoginition of Trade Unions

Posted on March 19, 2011by Thomas Geeverghese

Recognition of a trade union is very different from Registration of the union under
the Trade Union Act, 1926. Recognition means management conferring right to the
Union 1) to represent its members as the bargaining agent during the various
discussions and deliberations made while negotiating terms of
employment/conditions of labour; 2) to enter into agreements [settlements] with the
management on behalf of its union-members; and 3) to air its opinion when general
opinion of workmen are sought while formulating managerial policies and decisions.
Although there is a fundamental right to form unions under Article 19(1)(c) and a
statutory right to get it registered, there is no corresponding legal obliging on the
employer /management to recognize any particular trade union, whether registered
or not, even if they are truly represenative. Recognition of a Trade Union receives
importance when there are multiple trade unions in an establishment. The
managements usually refuse to recognize small or regional trade unions so as to
reduce the number of different voices espousing different demands, while
negotiating wage settlement or conditions of employment.
There is no Central law on granting recognition to trade unions. The Parliament had
once passed the Indian Trade Union (Amendment) Act, 1947, but it was never
notified or brought into force. The said Act sought to introduce Chapter III-A into the
TU Act, 1926, which inter alia, enumerated the conditions required for obligatory
recognition of trade unions. The common or general law does not recognize
collective bargaining, but only individual relations as master and servant. Therefore,
obligatory recognition of trade union as the bargaining agent of its members is
unknown to law both common law and statue law. At present, the only provision
in this behalf is contained in Section 36 of the Industrial Disputes Act, 1947, where
under in any proceeding under that Act, a workman who is a party to an industrial
dispute is entitled to be represented by (a) any member of the executive or other
office bearer of a registered trade union of which he is a member, or (b) any member
of the executive or other office bearer of a federation of trade unions to which the
trade union referred to in Clause (a) is affiliated; and (c) where the worker is not a
member of a any trade union, by any member of the executive or other office bearer
of any trade union connected with.. the industry in which the worker is employed
and authoriese in such manner as may be prescribed. The said provision concerns
only with representation in industrial disputes and it does not as such provide for
recognition of any trade union. The result of the above discussion is
that Recognition of a Trade Union is a matter of volition on the part of the
employer.
In All India Bank Employees Association v. National Industrial Tribunal, Bombay,
AIR 1962 SC 171, the Supreme court had the occasion to consider the scope and
ambit of Article 19(1)(c) of the Constitution. There Lordships held that even very
liberal interpretation of the said constitutional provision cannot lead to the
conclusion that the fundamental right to form unions carries with it a concomitant
guarantee that the trade unions so formed shall be enabled to carry out effective
collective bargaining or shall archive the purpose for which they were brought
into existence. In Raghubar Dayal Jai Parkash v. Union of India, Air 1962 SC 263, it
was held that freedom of association guaranteed by Article 19(1)(c) does not carry
with it a guaranteed right to recognition of the association. [See also M.A. David v.
KSEB, 1971 KLT 892, Kerala Minerals Employees Congress v. Asst. Labour
Commissioner, 1983 KLT 176].
The 15
th
Indian Labour Congress had accepted a Code of Discipline and one of the
clauses therein pertains to Recognition of Unions. Presently, the said code is
considered as the accepted norm for Recognition of Trade Unions by most of the
employers. According to the said code, for recognition:
1. The Unions should have at lease one year standing.
2. They should have at least 15% of the membership of the establishment to claim
recognition; and 25% of the work force to claim recognition on industrial basis.
3. When there are multiple unions in an establishment, the union with largest
membership will be given recognition.
4. The local unions if they have more than 50% of the membership of the locality,
can be recognized to represent their grievances.
5. The recognition granted will be valid for 2 years.
6. The unions which do not follow code of discipline will not be granted recognition.
The National Commission for Labour headed by Dr. Gajendragadkar, rather laid
down a strict guideline for recognition of trade unions. The commission expressed
the view thatindustrial democracy should be applicable and the majority union
should have the right to sole representation; and where more unions than one
contend for recognition, the union having a larger following should be recognized.
Few State Legislatures have enacted laws conferring legal right to Trade Unions to
claim Recognition of the Employer. The Bombay Industrial Relations Act, 1946 is a
beacon on the subject. In the said Act, the guidelines laid down by the National
Labour Commission are incorporated for recognition of a Trade Union. Maharastra
Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1972, is
the other pertinent legislation on the subject. In the said act, recognition is afforded
to any union which has 6months of standing and membership not less than 30% of
the total employees. The provisions for recognition of trade union in the Maharastra
Act are applicable only to those industries which are outside the scope of the Bombay
Act.
The Kerala State has recently enacted a law for recognition of trade unions for
facilitating collective bargaining and to check multiplicity of trade unions in
establishment. The Kerala Recognition of Trade Union Act, 2010, is applicable to
every industrial establishment wherein 50 or more workers are employed and whose
appropriate government under the ID Act is the Kerala Government. According to
the Act a trade union can claim recognition of the management by filing an
application [under S. 4] before the Registrar appointed under the Act. A Trade Union
is eligible to recognition only if its membership is be open to all and it has been
functioning in an industrial establishment or the class of industry in the local areas,
for a period of at least six months preceding the date of filing of the application. If
there is more than one eligible Trade Union, the Registrar shall arrange an election
by secret ballot among the employees of the establishment. In such election, the
Trade Union securing maximum votes shall be recognized as the Principle
Bargaining Agent. Every other trade union which has received minimum of 15%
votes in an industrial establishment or 10% votes in a class of industry, would also be
recognized constituents of a Joint Bargaining Council. If any trade union in such an
election receives more than 51% of votes, then it would be recognized as the Sole
Barging Agent of the workmen of that industry[Section 5].
The Kerala Recognition of Trade Union Act, 2010 implements industrial democracy
by authorizing only the Sole Bargaining Agent or a of collation of constituents
of the Joint Bargaining Council representing more than 51% of employees, to sign
any settlement with the management. It also prescribes the rights and duties of a
recognized Trade Union.
However, Recognition of a Trade union is an aspect which cannot be as such
implemented by law, as it is not a question of law, but an attitude and a right earnest
on part of management. Any forceful recognition of a trade union by operation of law
may not hold good in the long term, because recognition involve human attitude,
orientation, which cannot always be dealt legally. Recognition must be out of the free
will which must come as a result of managements understanding of the trade unions.
One can only hope that recognition by law may at least act as catalyst and help in
development of healthy industrial relations.