IMPORTANCE OF
COLLECTIVE
BARGAINING TO
MAINTAIN INDUSTRIAL
RELATIONS
CLASS: MMS-2 HR
ROLL NO: 92
Unions may organize a particular section of skilled workers (craft unionism), a cross-
section of workers from various trades (general unionism), or attempt to organize all
workers within a particular industry (industrial unionism). The agreements negotiated by
a union are binding on the rank and file members and the employer and in some cases on
other non-member workers. Trade unions traditionally have a constitution which details
the governance of their bargaining unit and also have governance at various levels of
government depending on the industry that binds them legally to their negotiations and
functioning.
In India, trade unions are governed under national and state-specific legislations. The
right to form and join a trade union, and engage in collective bargaining etc. are
provided under these laws. Also, the Constitution of India guarantees a fundamental
right “to form associations or unions.”
The Trade Unions Act, 1926 is the original act related to labour unions in India. The
Act provides for formation and registration of trade unions and in certain respects to
define the law relating to registered Trade Unions.
The Industrial Dispute Act, 1947, also deals with trade unions. It primarily
regulates the rights of employers and employees in the investigation and settlement of
industrial disputes.
Who can set up a trade union in India?
A minimum of seven persons can form and register a trade union under the Trade
Union Act.
Such members must follow the trade union rules. Registration of trade unions is not
compulsory. But, it can be helpful in the long run.
These rules are given under Section 6 of The Trade Unions Act, 1926.
a. Wages and Salaries: The subject which drew the major attention of the trade
unions is wages and salaries. Of course, this item may be related to policy matters.
However, differences may arise in the process of their implementation. In the case of
unorganised sector the trade union plays a crucial role in bargaining the pay scales.
b. Working Conditions: Trade unions with a view to safeguard the health of workers
demands the management to provide all the basic facilities such as, lighting and
ventilation, sanitation, rest rooms, safety equipment while discharging hazardous
duties, drinking, refreshment, minimum working hours, leave and rest, holidays with
pay, job satisfaction, social security benefits and other welfare measures.
c. Discipline: Trade unions not only conduct negotiations in respect of the items with
which their working conditions may be improved but also protect the workers from the
clutches of management whenever workers become the victims of management’s
unilateral acts and disciplinary policies. This victimisation may take the form of penal
transfers, suspensions, dismissals, etc. In such a situation the seperated worker who is
left in a helpless condition may approach the trade union. Ultimately the problem may
be brought to the notice of management by the trade union and it explains about the
injustice met out to an individual worker and fights the management for justice. Thus,
the victimised worker may be protected by the trade union.
e. Welfare: As stated earlier, trade unions are meant for the welfare of workers. Trade
union works as a guide, consulting authority and cooperates in overcoming the
personnel problems of workers. It may bring to the notice of management, through
collective bargaining meetings, the difficulties of workers in respect of sanitation,
hospitals, quarters, schools and colleges for their children’s cultural and social
problems.
For the last eight years, trade unions have been trying to get a foothold in the $118
billion Indian information technology (IT) sector that employs over three million
people. So far, they have met with little success.
But now the move appears to be gathering momentum, with unions rallying around a
few hundred employees of India’s largest IT services firm, Tata Consultancy Services Ltd
(TCS) who have been asked to quit due to “non-performance”.
While media reports and posts by some employees’ unions on social media sites such as
Facebook and Twitter peg the number of those asked to leave at between 25,000 and
30,000 across centres in the country, TCS contested the number but did not provide
specifics.
Meanwhile, unions including the Centre of Indian Trade Unions (Citu), which is
affiliated to the Communist Party of India (Marxist), the Congress party-affiliated
Indian National Trade Union Congress (Intuc) and UNITES India, affiliated to the
global union United Network International, protested the company’s move.
“If an organization suddenly starts firing people because it is not profitable, that is an
emotional outburst by the organization,” said Karthik Shekhar, general secretary,
UNITES India, and a former employee of International Business Machines Corp. (IBM).
“TCS has been doing it since last eight-nine years, but the numbers were small—between
five and 50. Now it has stepped on the gas and thus the outburst,” alleged Shekhar, who
claims to have about 25,000 members in his union.
According to Prasanta Nandi Chowdhury, national secretary of Citu, “All the major IT
firms do not have open policies on things like recruitment, wage hikes or firing people.
All we have come to know about is through individuals. Most of these employees have
insecurity about their jobs. We are putting our efforts together so far, so as to bring
them together to form a union which can fight and negotiate on an employee’s behalf.”
He added that “a little more than 10,000 people are connected with us”.
Snabak Vinod, representative of Forum for IT Employees (Fite) and team lead at
Caterpillar Inc., a global manufacturer of construction, mining and diesel equipment,
said he met Naresh Kumar, deputy labour commissioner for the Rangareddy region in
Hyderabad, to talk about TCS Hyderabad laying off some employees from the centre.
Kumar, he added, has asked the affected TCS employees who are members of Fite to put
their grievances down in writing.
Fite members, according to Kumar, are also trying to mobilize laid-off TCS employees in
Chennai, Bengaluru, Pune, Mumbai and Delhi to submit individual petitions challenging
their layoffs with the labour commissioners of the respective states.
TCS on its part maintained that it continues to be a leading recruiter of IT talent across
the world, not only in India. “In this fiscal year, we have a total hiring target of 55,000
professionals and we are on track to meet it,” the spokesperson added.
“We would like to reiterate as had been done by Mr Ajoy Mukherjee, EVP (executive
vice-president) and head of global HR (human resources), in a press conference in
Bangalore on 12th of December that our total global annual involuntary attrition is
between 1-2% across the organization which includes employees who retire, business
associates hired for specific projects, etc.,” the spokesperson said in the email response.
According to software lobby Nasscom, IT firms are justified in letting go of non-
performers.
“We believe the industry is going to continue to be a net hirer. The fact is the layoffs
happen on a yearly basis. The industry is focusing on skills,” said Nasscom’s vice-
president Sangeeta Gupta, adding that “the industry offers employees all the perks and
learning environment. The employees have the right to choose and this is why the
attrition rate is so high.”
She pointed out that the attempt to form a union in the IT industry “have been going on
for a long time, but it won’t impact the industry at large”.
Industry experts believe that though moves to get IT employees to form or join a
workers’ union may not change the way the industry works, they may lead to companies
taking a relook at their current policies.
“The companies need to look at the performance and counsel consistent under-
performers. Those who cannot perform need to find some other way. This is not
something unjustified. Though the ongoing attempts to unionization are not going to
cause any major shift in a way the performance is managed in the IT and related
industries, the companies may have a relook at the whole process,” said P.
Thiruvengadam, senior director, Deloitte Touche Tohmatsu India Pvt. Ltd.
He added that while “the employee unions may issue a public statements on hiring and
laying off, they do not have any grounds to interfere in how the IT firms work.
“The kind of employee union that we see in the manufacturing industry is not going to
happen in the IT industry since the engineers or software developers working in the IT
firms are not members of any union.”
Chowdhury of Citu acknowledged that while software developers and engineers are
reluctant to join or form such unions, those “who work in call centres, BPOs (business
processing outsourcing units) or KPOs (knowledge processing outsourcing units) are
willing to join us but are scared of getting fired”.
COLLECTIVE BARGAINING IN INDIA
Collective bargaining has been defined by the Supreme Court (“SC”) as “the technique
by which dispute as to conditions of employment is resolved amicably by agreement
rather than coercion”.10 It is a process of discussion and negotiation between
employer and workers regarding terms of employment and working conditions.
Workers are generally represented by trade unions with respect to expressing their
grievance concerning service conditions and wages before the employer and the
management. Refusing to bargain collectively in good faith with the employer is
considered to be an unfair labour practice as per the provisions of the Industrial
Disputes Act, 1947 (“IDA”) . This is generally an effective system as it usually results in
employers undertaking actions to resolve the issues of the workers. However, the legal
procedure for pursuing collective bargaining in India is complicated.
A. Charter of Demands
Typically, the trade union notifies the employer of a call for collective bargaining
negotiations. However, in certain cases the employer may also initiate
the collective bargaining process by notifying the union(s). The representatives of the
trade union draft a “charter of demands” through various discussions and consultations
with union members. The charter typically contains issues relating to wages, bonuses,
working hours, benefits, allowances, terms of employment, holidays, etc. In an
establishment with multiple unions the employer generally prefers a common charter of
demands, but in principle, all unions may submit different charters.
B. Negotiation
As a next step, negotiations begin after the submission of the charter of demands by the
representatives of the trade union. Prior to such negotiations, both the employer and the
trade unions prepare for such negotiations by ensuring collection of data, policy
formulation and deciding the strategy in the negotiations.
After such preparation, the negotiations take place wherein the trade unions and the
employer engage in debates and discussions pertaining to the demands made by the trade
unions. In the event that such demands are rejected, the trade union may decide to
engage in strikes.
The collective bargaining process obviously takes long where the employer has to engage
with multiple unions. In the public sector, it may take months or even years. For example,
the Joint Wage Negotiating Committee for the Steel Industry, covering workers in four
large unions, took more than three years from the date of the submission of the charter
of demands to the Steel Authority of India Ltd. (SAIL).
Next, a collective bargaining agreement will be drawn up and entered into between the
employer and workmen represented by trade unions. These may be structured as
bipartite agreements, memorandum of settlements or consent awards.
D. Strikes
If both parties fail to reach a collective agreement, the union(s) may go on strike. As per
the IDA, public utility sector employees must provide six weeks’ notice of a strike, and
may strike fourteen days after providing such notice (a ‘cooling off period’).
E. Conciliation
A conciliation proceeding begins once the conciliation officer receives a notice of strike
or lockout. During the ‘cooling off period’, the state government may appoint a
conciliation officer to investigate the disputes, mediate and promote settlement. On the
other hand, it may also appoint a Board of Conciliation which shall be appointed in
equal numbers on the recommendation of both parties, and shall be composed of a
chairman and either two or four members. No strikes may be conducted during the
course of the conciliation proceeding.
Conciliation proceedings are concluded with one of the following recommendations: (i) a
settlement, (ii) no settlement or (iii) reference to a labour court or an industrial tribunal.
ii. 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 other benefits are usually decided at the company level, while certain
allowances, incentives etc., are decided at the regional or plant level, taking into
account the particular circumstances, needs etc., of the employees.29 However, such
regional agreements are only binding on company management if the employers’
association authorizes it in writing to bargain on its behalf.
■■ Settlement terms which, typically, may be with respect to wages, benefits, allowances,
arrears with respect to payment to workers, concessions, works hours, overtime etc.
■■ Conditions with respect to strikes and lockouts by trade unions and employers
respectively
■■ Obligations of workmen
■■ Obligations of employer
■■ Dispute resolution
RIGHT TO STRIKE
The IDA defines a “strike” as “a cessation of work by a body of persons employed in any
industry acting in combination or a concerted refusal, or a refusal under a common
understanding, of any number of persons who are or have been so employed to continue
to work or to accept employment”.
In India, there is no specific right to strike. Instead such right flows from the fundamental
right to form a trade union contained in Article 19(1)(c) of the Constitution, which, like
all fundamental rights, is subject to reasonable restrictions. In All India Bank Employees
Association v. N.I. Tribunal , the SC held, inter alia, that “the right to strike or right 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 clause (4) of Article 19 of the Constitution but by totally different
considerations.”
Therefore, legislation can and does restrict the right to strike by deeming certain strikes
illegal. The IDA restricts strikes and lockouts equally. Various restrictions are contained
in sections 22, 23, 24, 10(3) and 10A(4A) of the IDA. Furthermore, the IDA also lays
down certain activities that may be deemed
as “unfair labour practices of workers or workers’ trade unions pertaining to strikes such
as advising or actively supporting or instigating any illegal strike or staging
demonstrations at the residence of the employers or managerial staff members.
It should be noted that a strike that was in existence at the time of reference to a board,
arbitrator, court or tribunal may be continued, provided it was legal at the time of its
commencement. Furthermore, a strike staged in response to an illegal lockout shall be
legal.
A worker who is involved in an illegal strike may be penalized with imprisonment of up
to a month and/ or fine. As per the IDA, no person shall provide any sort of financial aid
to any illegal strike. Any person who knowingly provides such a help in support of any
illegal strike is punishable with imprisonment up to six months and/or fine.
Another consequence of an illegal strike is the denial of wages to the workers involved.
Furthermore, the SC has held that workers shall only be entitled to wages during a strike
which is not only legal, but also “justified”. A strike shall be deemed unjustified where
“the reasons for it are entirely perverse and unreasonable…[which is] a question of fact,
which has to be judged in the light of the fact and circumstances of each case… the use of
force, coercion, violence or acts of sabotage resorted to by the workmen during the strike
period which was legal and justified would [also] disentitle them to wages during the
strike period.” The SC has also held that whether or not
a strike is “unjustified depends on such factors as “the service conditions of the workmen,
the nature of demands of the workmen, the cause which led to the strike, the urgency of
the cause or the demands of the workmen, the reason for not resorting to the dispute
resolving machinery provided by the IDA or the contract of employment or the service
rules and regulations etc.”
Code of Discipline
i. To maintain Discipline in the Industry (both in public and private sectors) there has
to be (i) a just recognition by employers and workers of the rights and responsibilities
of either party, as defined by the laws and agreements (including bipartite and
tripartite agreements arrived at all levels from time to time) and (ii) a proper and
willing discharge by either party of its obligations consequent on such recognition.
The Central and State Governments, on their part, will arrange to examine and set
right any shortcomings in the machinery they constitute for the administration of
labour laws.
a. that no unilateral action will be taken with any company matter and that disputes
will be settled at appropriate level;
b. that the existing machinery for settlement of disputes would be utilized with the
utmost expedition;
d. that affirming their faith in democratic principles, they bind themselves to all
future differences, disputes and grievances by mutual negotiations, conciliation
and voluntary arbitration;
e. that neither party will have recourse to (a) coercion, (b) intimidation, (c)
victimization or
(d) go-slow;
f. that they will avoid, (a) litigation, (b) sit down and stay in strikes and (c) lock
outs;
h. that they will establish upon a mutually agreed basis, a grievance procedure which
will ensure a speedy and full investigation leading to settlement;
j. that they will abide by various stages in the grievance procedure and to take
no arbitrary action which would bypass this procedure; and that they will
educate the management personnel and workers regarding their obligations to each
other.
b. not to support or encourage any unfair labour practice such as (a) interference
with the right of employees to enroll or continue as union members, (b)
discrimination restraint or coercion against any employee because of recognised
activity or trade unions and (c) victimization of any employee and abuse of
authority in any form;
c. to take prompt action for (a) settlement of grievances and (b) implementation
of settlements, awards, decisions and orders;
f. to take appropriate disciplinary action against its officers and members in cases
where enquiries reveal that they were responsible for precipitated action by
workers leading to indiscipline; and
g. to recognize the union in accordance with the criteria (Annexure I) evolved at the
16th Session of the Indian Labour Conference held in May, 1958
b. not to permit demonstrations which are not peaceful and not to permit
rowdyism in demonstrations;
c. that their member will not engage or cause other employees to engage in any union
activity during working hours, unless as provided by law, agreement of practice.
Typically, the trade union notifies the employer of a call for collective bargaining
negotiations. However, in certain cases the employer may also initiate the collective
bargaining process by notifying the union(s). The representatives of the trade union draft
a “charter of demands” through various discussions and consultations with union
members. The charter typically contains issues relating to wages, bonuses, working
hours, benefits, allowances, terms of employment, holidays, etc.
Negotiation
As a next step, negotiations begin after the submission of the charter of demands by the
representatives of the trade union. Prior to such negotiations, both the employer and the
trade unions prepare for such negotiations by ensuring collection of data, policy
formulation and deciding the strategy in the negotiations. After such preparation, the
negotiations take place wherein the trade unions and the employer engage in debates and
discussions pertaining to the demands made by the trade unions. In the event that such
demands are rejected, the trade union may decide to engage in strikes. The collective
bargaining process obviously takes long where the employer has to engage with multiple
unions. In the public sector, it may take months or even years. For example, the Joint
Wage Negotiating Committee for the Steel Industry, covering workers in four large
unions, took more than three years from the date of the submission of the charter of
demands to the Steel Authority of India Ltd
Collective Bargaining Agreement
Next, a collective bargaining agreement will be drawn up and entered into between
the employer and workmen represented by trade unions. These may be structured as
bipartite agreements, memorandum of settlements or consent awards. For more
details on the same please refer to section III below.
Strikes
If both parties fail to reach a collective agreement, the union(s) may go on strike. As
per the IDA, public utility sector employees must provide six weeks’ notice of a strike,
and may strike fourteen days after providing such notice (a ‘cooling off period’).
Conciliation
On the other hand, it may also appoint a Board of Conciliation which shall be
appointed in equal numbers on the recommendation of both parties, and shall be
composed of a chairman and either two or four members. No strikes may be conducted
during the course of the conciliation proceeding. Conciliation proceedings are
concluded with one of the following recommendations: (I) a settlement, (ii) no
settlement or (iii) reference to a labour court or an industrial tribunal.
Compulsory Arbitration
Historically, in India, the function of the trade unions was limited largely to
collective bargaining for economic considerations. However, trade unions now play a
major role in employee welfare activities, cultural programs and banking and
medical facilities and by creating awareness through training and educating the
members of the trade union. On the other hand, the dominant managerial objectives
the workers and employers with respect to any demands the workers may have.
Furthermore, trade unions in India have, over the period of time, ensured to
provide a forum to facilitate better industrial relations, industrial growth and
improve productivity.