TABLE FOR CONTENTS
INTRODUCTION TO COLLECTIVE BARGAINING
Collective bargaining is a marginal tool that facilitates an affable and consensual agreement between the management and its employees for proper functioning at the workplace. Supreme Court of India delineates it as a technique to dissolve the disputes with mutual consent rather than coercion. One of the important aspects of collective bargaining is that it is an eternal process. It does not end after the agreement has been reached. It continues for life and above and beyond the agreement.
Importance of Collective Bargaining
It provides the opportunity to the workers to voice their issues, grievances relating to employment. Not only this helps to reduce the exploitation of workers at the workplace, thus ensures the future interests of the employees. It creates a win-win situation for both the employees and employers. It enhances the productivity and profitability of the organization. It also helps in developing a conducive atmosphere to foster good and healthy relations thus establishing industrial peace and harmony. It is the tool which helps to resolve issues with the help of the third party like government or trade unions, which can exercise better control and power over the management of the organization and compel them to provide appropriate working conditions for the workers.
Prerequisites of Collective Bargaining
Agreement between the parties should be based on bipartite bargaining. Though the role of third parties should be minimized Management should be open to requests of trade unions. Promotion of collective bargaining should be through recognition of sole bargaining agents. The common interest of employees and organization should be taken into consideration while making any agreement.
Present Scenario
Scope of collective bargaining is limited. In India, the labor laws are methodically promoted but workers enjoying better space for collective bargaining in the formal sector and informal ones have no or limited scope for collective bargaining.
The Factories Act, 1948 provides for the health, safety, welfare and other measures for the factory workers while at work. However the applicability of this law is limited to the particular number of workers working in the factory-like provision of a restroom is given only if there are 150 or more workers in the factory, in fact, facilities of ambulance, dispensary, and medical and Para-medical staff is provided only if there are 500 or more workers in the factory. Similarly, the Industrial Disputes Act, 1947 that lays down the procedures for the settlement of industrial disputes but Chapter VA and Chapter VB, has limited applicability. The Trade Union Act provides the right to the association only with a very limited scope and limited coverage. This act is applicable in all establishments but at least 10% or 100; whichever is less is required to be the members of the union before its registration. Collective bargaining is limited within the scope provided in the Industrial Disputes Act 1947 and all other aforesaid acts.
For the successful process of collective bargaining, the parties should be ready to negotiate and compromise. But if the parties fail to arrive at a settlement through negotiation, the conciliation officer may intervene as a mediator to reconcile the difference between the management and the unions and help them in achieving a successful settlement. Strikes and lockout are other coercive measures used for compelling the employees or employers to accept their demands and conditions of services. It is one of the effective measures for collective bargaining
STRIKE
Section 2(q) of Industrial Dispute Act, 1947 defines a strike as a cessation or suspension of work by the plurality of employees employed in any industry acting in combination or concerted refusal or refusal under common understanding to continue to work or to accept the employment.
Implication of strikes
A strike is used by the union registered under trade union act to unite employees of the factory and send a strong signal to the management for negotiating with the employees and it transfers the power from the employer to the union. This transfer of right will create higher bargaining power for the union. But if the period of the strike increases, the bargaining power of the union decreases and it might go to levels lower than the pre-strike period.
Strikes should be justified and legal
In the case of Swastik Textile Engg. Pvt. Ltd. V. Rajen Singh Sant Singh & Others 1984[1], it was held that strike should be legal and must have bonafide intention. It should follow the process given in section 22, 23 or 24. Of industrial dispute act. The strike may be considered illegal if it is in the contravention of the aforesaid sections of the Industrial dispute Act 1947.
In the case of Chandramalai Estate[2], the Supreme Court observed that sometimes strike is an unavoidable weapon but it should be kept in mind that there should be no hasty and indiscriminate use of this privilege provided to them by the law.
The purpose of the strike must for justified improvement in ways or dearness allowances or for any fair reason. In the case of Mysore Lamp Works Workmen v. Management of Mysore Lamp Works and Another[3], the strike was done to bring back one of the employees who got fired for his misconduct. These kinds of the strike would be declared as unjustified and illegal.
LOCKOUT
Section 2(L) of Industrial Dispute Act, 1947 defines lockout as temporary shutting down the place of business, or the suspension of work, or the refusal by the employer to continue to employ any number of person employed by him.
Implication of the lockout
If a lockout is declared because of the poor financial condition of the company, then it would be advantageous for the employer because it lets him cut his financial losses.
A lockout can act as a counter move to a strike by employees, as it can help to ensure that the employer still has the power and not the striking workers. This can act as a collective bargaining tool where employer and employ both negotiate to with each other it means if the striking workers decide to end their strike, the employer can end the lockout for the striking workers and again production can start. To return to work. A lockout also means degeneration in the relationship between the employer and the union/workmen and this would ultimately affect the effectiveness and efficiency of the workers and will create an unhealthy environment at the workplace. The union thrives on the fact that it is a bargaining power because of their unity. But sometimes a lockout ends up solving an industrial dispute and weakens the union in the process. A strike generally unites workers and the union whereas a lockout has a reverse effect.
STRIKES AND LOCKOUT AS EFFECTIVE MEASURES OF COLLECTIVE BARGAINING
During collective bargaining, employers and unions are entitled to use their collective bargaining power to negotiate for improving their economic positions. Strikes and lockouts are used as a managerial tool to advance this goal. Strike and lock-out-useful and powerful weapons in the harmony of workmen and employers-are available when a dispute or a struggle arises between them. Strikes and lockout are not the fundamental rights of the citizens unless and until it is done in good faith.
In the case of All India Bank Employees’ Association v. National Industrial Tribunal[4], it was held that even after the interpretation of trade union in Article 19(1)(c) cannot lead to the conclusion that trade union have guaranteed right to effective collective bargaining or to strike. There is no statutory provision empowering the employees to go on strike also there is no moral justification to go on strike. Instead of going on strike, other methods can also be adopted for peaceful settlement of the dispute.
When bargaining individually, workers compete against each other to their own detriment and it would be an efficient way to resolve their grievances.
The negotiation in India remained mostly decentralized, even after the trade unions are created, managements aren't able to recognize them and thus deny them space for negotiation. It is believed that labor unions are same as monopolies thus are less democratic, inefficient and promote regressive redistribution, which is totally opposite of collective bargaining which aims to promote civilizing impact on employment relationships or the accountability of the employer to a “rule of law”. Collective bargaining through strikes and lockouts assert that unions are often undemocratic, corrupted and detached from the true interests of local employees. The reason behind such accusations is that trade unions are not immune to the unfortunate acts of all large bureaucratic organizations and is also influenced by politics. The prevalence of such problems should not be neglected and organization and workers should negotiate themselves instead of depending on some outsiders who just pretend to help the organization to grow. Strikes by the trade union add to the variable cost of the organization, also counteract of lockouts by the employer would result in reduced demand for employees in the unionized sector. Also, the most vulnerable employees will end up paying for their collective bargaining rights with their jobs.
Successful Collective Bargaining
For a successful process of collective bargaining, proposals must be given rather than orders or demands. This enables a healthy discussion between workers and employers and facilitate the growth of industrial relation. It is difficult to remove the concept of strike and lockouts but the methods of strike can be improved by removing the shortcomings of the trade union. Measures should be taken to unite the workers to join a single trade union having the same purpose to represent their demand. In fact, there is a requirement for good leadership qualities that can be developed through better education and training.
The problems in the factory should be resolved within the industry by providing welfare schemes for the workers so that they can be secured and could put their best efforts for proper functioning in the industry.
Case Laws
It does not mean that one should not hire unions for dispute settlement but the organization should avoid using strike and lockouts for collective bargaining.
In the case, I.T.C. Employees Association And. v. State Of Karnataka And Ors[5], on 23 July 1980, some general observations for collective bargaining were made which includes that the main purpose of collective bargaining is to ensure industrial peace and production under the Factory dispute Act. If through collective bargaining a final agreement is reached upon wages and working conditions between the managers of an industry and its employees, whether made in an atmosphere of peace or under the stress of strike or lock-out then the purpose of the negotiation is solved.
In the case of Hindustan Lever Ltd. v. Hindustan Lever Employees' Union,[6] importance of collective bargaining is told. Before the introduction of collective bargaining, laborers were exploited to great extent. Labor was at a great disadvantage in obtaining reasonable terms for contracts of service from his employer. Through the development of the trade unions, rule of collective bargaining came into existence which was somewhere necessary and convenient for employers to deal with the representative of their workmen collectively instead of dealing with an individual workman. It not only helped to solve the grievances of workers but also helped in making or modification of contracts. This promotes the principle of industrial democracy thus acted as the bed-rock of the Industrial Dispute Act.
From all aforesaid case laws, we can say that unions can both serve as a source of information regarding employee needs and preferences and also it assists the employees in evaluating complex wage and benefits offers. So the need for union is very important to safeguard the interest of employees.
CONCLUSION
India in the present context of economic development, it becomes necessary for the industries and factories to have trade unions in order to remain connected with the employees, but factories cannot afford the unqualified right to the workers to strike or to the employer to lock-out as it hampers the growth of the factory. Compulsory arbitration better alternative of collective bargaining. The method of compulsory arbitration however does not deny the right to strike or lockouts or any trade union movement. If should be adopted for the benefits of legislation and better settlements of disputes. It would help to eradicate all false practices by trade union and awards can reach the individual worker directly. The role of the trade union cannot be neglected just because of their false practices, it played a major role by encouraging the workers to fight for their basic rights, in fact, and the laws in factories act have also altered in favor of workers because of the voice raised by trade unions. But somewhere the judicial pronouncements lack farsightedness purpose of strike and lockouts. Statutory definitions of strike and lockouts are interpreted wrongly which lays down undue stress on the employers also it sometimes forces the employer to negotiate in favor of employees which ultimately affect the productivity and profitability of the industry. It also spoils the relations between employees and employer. This false interpretation encourages undesirable activity. Now it is the high time to make new laws especially for the strikes and lockouts, also the number of damages should be increased so that trade unions can’t adopt false practices at the name of collective bargaining. The definition of the strike in Industrial dispute act is not qualified by the expression completely. Some modifications should be made explaining the purpose of the strike also the workers should be aware of the trade unions and the purpose for which they are helping them. There are many unregistered unions and they influence workers to join them and mislead the workers to go on strike. Different regulatory reforms should be made to check the exploitation of workers by the trade unions. Overall, the democratic benefits of collective bargaining were to reduce exploitation of workers and to improve the flow of production but due to interference of the third party the purpose of strikes and lockouts cannot be considered as the true and fruitful method of collective bargaining.
REFERENCES
BOOKS
1. Mishra S.N. :Labour and Industrial laws; central law publication 2017.
2. Singh Avatar and Kaur, Harpreet; Introduction to labour and industrial laws; lexis nexis. 2017
3. Dr Alka Agrawal; Industrial Relation and Labour Laws; Galgotia Publication Company 2019.
BARE ACTS
1. The Factories Act, 1948
2. The Industrial Dispute Act, 1947
3. The Trade Union Act, 1926
LINKS
Author 1: Srajan Rajpoot
College: IMS Unison, Dehradun
Author 2: Khyati Relan
College: SRM University, Delhi NCR
[1]Swastik Textile Engg. Pvt Ltd. V. Rajen Singh Sant Singh & Others 1984, (1984) 1 GLR 470. [2] The Management Of Chandramalai v. Its Workmen And Anr., AIR 1960 SC 902. [3] Mysore Lamp Works Workmen v. Management of Mysore Lamp Works and Another, 1971 (22) FLR 53. [4] All India Bank Employees’ Association v. National Industrial Tribunal,1962 SCR (3) 269. [5] I.T.C. Employees Association And. v. State Of Karnataka And Ors, (1981) ILLJ 431 Kant. [6] Hindustan Lever Ltd. v. Hindustan Lever Employees' Union , (1999) IILLJ 804 Bom.
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