LABOUR LAW END-SEMESTER

LABOUR NOTES
 extra class was taken
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FOLLOWING LINKS MUST BE OPENED

http://www.legalservicesindia.com/article/2204/Recognition-of-trade-union.html

https://www.business-standard.com/article/economy-policy/mandatory-recognition-for-trade-
unions-likely-115070800039_1.html

http://www.nishithdesai.com/fileadmin/user_upload/pdfs/Trade_Unions_Act_and_State_Laws_P
rovide_Legal_Protections_to_Trade_Unions_in_India.pdf

https://www.thehindubusinessline.com/opinion/the-recognition-question-in-trade-union-law-
ep/article24988006.ece

http://shodhganga.inflibnet.ac.in/bitstream/10603/8118/13/13_chapter%205.pdf

http://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research%20Papers/India-Trade-
Unions-and-Collective-Bargaining.pdf

http://www.ilo.org/dyn/natlex/docs/WEBTEXT/32075/64876/E26IND01.htm

Recognition is the process through which the employer accepts a particular trade union as having
a representative character and hence, will be willing to engage in discussions with the union with
respect to the interests of the workers.

In practice, management allows the recognized Trade Union only for negotiations and collective
bargaining. As such, recognition of trade union serves as backbone of collective bargaining. It
has been debated time and again whether a trade union should be recognized or not. This is
because there is so far no enforced central legislation on this subject, i.e., recognition of trade
union.

In Kalindi and Others v. Tata Locomotive and Engineering Co. Ltdthe Supreme Court held that
there is no right to representation as such unless the company, by its standing orders, recognizes
such right. The decision was reiterated in Bharat Petroleum Corporation Ltd. v. Maharashtra
General. Kamgar Union & Ors.

e key distinction between registration of trade union and recognition of trade union is the
registration of trade union is done with the registar while recognition of trade union is done by
the management as collective bargaining agent (in case of one union) and collective bargaining
council in case of many council). Both are not mandatory under the Trade Unions Act. Trade
unions once recognized are conferred certain rights but the trade union as such has no inherent
right by itself to be recognised, it is the discretion of the management to recognise any such trade
union.

CASE STUDY

Maruti locks horns with its Union on recognition The new Maruti Suzuki Employees Union
(MSEU) at Manesar Plant (near Gurgaon, Delhi) demand recognition as a Union and the
Management doesn’t seem to be interested in letting that happen. The Management is of the stern
view that there is already a recognized Union by name Maruti Udyog Kamgar Union (MUKU)
and the workers who are interested in participating in the election only need to participate in the
election under the said Union therefore making it unnecessary for the Management to mushroom
in a rival Union. The workers who intent to form MSEU are of the opinion that MUKU is a
Union representing Gurgaon Plant and do not represent Manesar Plant and that only MSEU is
the true representative face of the workers at Manesar Plant and therefore need not participate in
the election organized by the Plant

e workers with MSEU decided to boycott the election slated for 16th June and resorted to a strike
on 4th June demanding recognition of their Union. The strike lasted for 13 days and the
Management suspended 8 Office bearers of MSEU and 3 other workers. Without relenting to the
demands of the newly formed Union Maruti Suzuki Chairman R C Bhargava said elections
would be held for “both the plants” and those who win will represent the workers of “both
Gurgaon and Manesar.” “We are the same company—Manesar and Gurgaon—and they are not
independent entities.” However, Bhargava clarified that the management does not have any role
in the election process. After 13 days of deadlock, the strike was called off following
intervention of Haryana Chief Minister Bhupinder Singh Hooda with the management agreeing
to take back 11 sacked employees and cut down the no work no pay rule of eight day’s salary cut
for every single day of the strike to three days.
 LABOUR LAW END-SEMESTER: NOTES

The Problem of Recognition

 Recognition is the backbne of collective bargaining but in India, there exists no central
legislation to recognize TU’s. Although some states do have stae acts like Maharashtrha
MRTU and PULPA 2017, West Bengal, MP, Rajasjthan etc.
 Employers cite reasons the following reasons for refusal to recognize:
(i) Outisdes in the Union
(ii) Non-registrtion of Unions are reasons to refuse recognition.
(iii) Inclusion of dismissed employees. S.22 allows dismissed employees to be a part
of TU. Employer may claim that these people dismissed due to being dangerous
to establishment cannot participate in the CB.
(iv) Based on guilty of cognizable offence

Compare this to Sweden, where 90% of disputes are solved by collective bargaining. There, the
reasons for refusing are: Non-Registration, Outsiders in the Union, Trade Unions have intra-
union rivalries [CHECK THIS]

 Thus, because eof lack of central legislation, it is up to the Employer to decide when he
recognizes and when he refuses.

Efforts for Recognising Trade Unions

Royal Commission, 1929: Conducted a survey based on which a report was produced.
Reocmmended tha tht government cme up with elg to protect industrial employees and provide
mechanism to recognize TU. It also recommended tha tformatino of Unions should be made
easier that there msut be a legislation to secure their recognition.

Indian (Trade Unions) Amendment Bill, 1943: Government acted on the report, though which
attemot was made for compulsory recognition.
-Placed before Central Legislaive Assembly
-opposed by Managements effectively and therefore it was stalled.

Trade Union Amendment Bill introduced in 1946, including all suggestions to 1943 Bill. Being
referred to a select committee, it was finally passed in 1947 but never came into force.

ILO Convention 87 of 1948: International attempt ca;;ed “Freedom of Association and

Protectino of Right to Organize.”
  Art. 9 of the Convention requires that owrkers, organizations and employers shall respect
the law of the land. Further, protection to workers given agsinst anti-union
discrimination.
 Further, ILO Convention 98 of 1949 ie Right to ORgnize and Bargain Collectively- both
these conventions are fundamental, requiring states to incorporate their principles even if
not ratified.
 India has not ratified either [CHECK]. Had we ratified, we would have bene bound to
empower TU’s
 India recently ratified Minimum Wage Convention and Elimination of Worst Form of
Labour Practices.

Further, Art. 19(1)(c) cannot grant this right as it is merely the righ to form associations.
Unionism remains encourage through this Article but it is silent on recognition.

National Laboru Commission made an attemot to recognize TU’s in First National Commission
1966- Reocmmended a mechanism for recognition of TU.

Second National Labour Commission recommended 60 days time limit for recognition. It
recommended that any problems can easily be solved with labour courts.

Efforts Made by States

Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practice Act,
1976(MRTU-PULP) it is a systematic act for recognition of TU’s in Maha.
-Applicable to al undertaking with more than 50 or more workers as employed on any day of the
preceeding 12 months.
-State Gov howver empowered to extend application to establishments with even less than 50.

Procedure for Recognition under MRTU:

 The Union must habve 30% membership of the total employees of the undertaing
 Union must be in existence since lat 6 months.
 Union must make an application in the prescribed manner to the labour court. COur twil
lisue notice to other Unions to grant opportunity to raise objections. Once recognized, a
certificate will be issued.

Non-Statutory Code of Discipline

 16th Session of Indian Labour Confrence discsussed the code of discipline. Theese must
be observed by the TU to get recognition by employers.
 Without a Central legislation, the Code laid down how the empoyers can give
recognition.
  This annexure A lays down the following criteria for recognising a trade union:

(1) where there are more than one union, a union claiming recognition must have been
functioning for at least one year after registration. Where there is only one union, this condition
would not apply;

(2) the membership of the union must cover at least fifteen per cent of the workers in the
establishment concerned. Membership would be counted only of those who have paid their
subscription for at least three months during the period of six months immediately preceding the
month of reckoning;

(3) a union may claim to be recognised as a representative union for workers in all
establishments in an industry in a local area if it has a membership of at least 25 per cent of the
workers of that industry in area;

(4) when a union has been recognised, there must be no change in its

position for a period of two years;

(5) where there are several unions in an industry or establishment, the

one with the largest membership must be recognised;

(6) a representative union for an industry in an area must have the right to represent the workers
in all the establishments in the industry, but if a union of workers in a particular establishment
has membership of 50% or more of the workers, it must have the right to deal with matters of
purely local interest as, for instance, the handling of grievances. All other workers, who are not
members of that union might either operate through the representative union for the industry or
seek redress directly; and

(7) only unions that observe the Code of Discipline are entitled to recognition.

Trade Union (Amendment Act) of 1947

Provides for
(i) Recognition by agreement
(ii) Recognition by order of Labour Court- if the employer has rejecte demands of
recognition. The Union will first approach the employer, if refused lAbour courts
in this case will check if TU is compying with TU act, and then order recognition.
Machinery for determination of representative character
1. S.28-E of the Act: Provides that Laboru court can grant recognition to TU where
employer has failed to provide recognition after 3 months from date of application for
recognition.
2. Section 25-D provides for conditions of recognition.
-Trade Unions (Amendment) Act, 1947, s. 25D provides that a trade union will not be
entitled for recognition by order of a labour court under s. 25E unless it fulfills the
following conditions, namely:

(1) that all its ordinary members are workmen employed in the same industry or in
industries closely allied to or connected with another;

(2) that it is representative of all the workmen employed by the employer in that industry
or those industries;

(3) That its rules do not provide for the exclusion from membership of any class of the
workmen referred to in cls. (b);

(4) that its rules do not provide for the procedure for declaring a strike;

(5) that its rules provide that a meeting of its executive will be held at least once in every
six months; and

(6) that it is a registered trade union and that it has complied with all provisions of this
Act.

Problems
(1) Can an employer voluntarily recognise a union that is not registered under the Act, which is
in fact a majority union?

(2) Can an employer be compelled to recognise more than one union?

-No such condition laid down in S.25-D.

Rights of Recognized Unions

1. Right to negotiate with temployer on matter connected with employment, non-

ecmployment, conditions of labour and terms of employment. Ths, it becomes an agent of
collective bargaining
 -Impact: If two TU’s have common concerns, recognized ones will be given preference
2. Employer has the obligation to listen to demands, receive complaints and send replies to
recognized unions.

Rigts recognized in the Code of Discipline

These rights are:

(1) to raise issue and enter into collective agreements with employers on general questions
concerning terms of employment and conditions of service of workers in an establishment of in
the case of a representative union, in an industry in a local area;

(2) to collect membership fees/subscriptions payable by members to the union within the
premises of the undertaking;

(3) to put up or cause to put up a notice board on the premises of the undertaking in which its
members are employed and affix or cause to be affixed thereon notices relating to meeting,
statements of accounts of its income and expenditure and other announcements which are not
abusive, indecent or inflammatory or subversive of discipline or otherwise contrary to the Code;

(4) for the purpose of prevention or settlement of an industrial dispute:

(a) to hold discussion with the employees who are members of the union at a suitable place or
places within the premises of office/factory/establishment as mutually agreed upon;

(b) to meet and discuss with an employer or any person appointed by him for the purpose,

(c) to inspect to prior arrangement, in an undertaking, any place where any member of the union
is employed;

(5) to nominate its representatives on the grievance committee constituted under the grievance
procedure in an establishment;

(6) to nominate its representative on joint management councils, and

(7) to nominate its representative on non-statutory bipartite committees for instance production
committee, welfare committee, canteen committee, house allotment committees set

Withdrawal of Recognition
-S.28-G of Act provides that Reigsrar or Employer is entitled to apply to Laboru Court for
purpose of withdrawal of recognition Show cause notice representation because PNJ
order. The conditions are:
1. An executive of member of TR has committed an unfair labour practice within 3 months of
recognition.
Eg. One od the conditions is that there is a clear procedure to declare strike. If they violate these
rues, it is an unfair labour practice.

2. TU has failed to submit annual returns- Even if its unregistered but recognized, it has to
submit the records.

3. Ceased to have representative character- Sole discretion o fthe employer.

Re-Recognition

The Trade Union (Amendment) Act, 1947, s. 28H permits the registered trade union whose
recognition is withdrawn under sub-s. (3) of s. 28G to make an application for re-recognition
after six months from the date of withdrawal of recognition.

Unrelated History

Trade Union Amendment Bill 1950 introduced and certain other changes were made in the
previou bill of 1940. New provisions were for union of civil servants who are entitled to
recognition if it has majority of members who are civil servants.
-Further, this union should also be affiliated to Federation of Trade Unions.
-Important crieteria that only ciil empoyees are part of the Union.

 TU applying for recognition should only have members as employees of hospitals and
educational institutes. Ie, a supervisor being a member was grounds to refuse recognition.

 1947 ID Act supervisors earning more than 10k were not workmen were kept out of
definition, but TU Act was wide.

 1950 Act also remains un-enforced.

Proposed Code on Industrial Relations

-All statute will be consolidate dinto one Act. The changes are as follows:

1. Registration fo the TU
- Minimum membership of 10% of 100 members connected with tha trade or
industry prove to be burdensome and can thus be waived in some situations. This
applies to organized sector mainly
- For unorganized sector, a specific proivion has been made that where there is no
direct employer-employee relationship, 10% will nto be applied.
- TU Employers- at least 7 employers ould have to make an application for
registration- both organized and unorganized.

2. Application for Registration

- 1926- 7 memebrs must submit application under Form A with names and addresses
along with copy of rules of internal administration. The code as added:
i. Every application to be accompanied with statement containing name,
address, ccupation of persons making the application and I it has other
units/branches, such details must be provided.
ii. If it is a federation, name/title of registration and registration number of the
Union must be mentioned.
iii. 3 copies of resolution would have to be presented and the rules were framed
in consultation with the workers

3. Power of Registrar
-Lacunae in 1926 was the lack of qualifications of Reg and the limited powers under
S.8 and 11 or whatever it was
-State govt by notification appoint Registrat, Depity Registrar of TU.
-Time imit for Registrar to complete formalities ofr registration is 60 days from date of
receipt of application till grant or refusal. If refused, clear reasons to be recorded in
writing.

4. Deemed Registration
- If Reg silent in 60 dayas, registration is deemd to be granted. Recommendations of
the 2nd National Laboru Commission have been implemented in this regard.

5. Cancellation of Registration
- HCs have recognized various grounds for cancellation of registration including lack
of filing of annual returns. The code goes byond this ground and has added more
grounds including:
- Failure to maintain accounts or failure to submit annal returns within the prescribed
period or if the annual returns submitted are false and defective
- If Tu willfully after notice of Registrat contreven the provisions of the Code.
- If the TU has not conucte delections in the manner prescribed in the Code
- TU has allowed or made a provision to conintue in the Rules which is contrary to the
rules framed under the Code

6. Appeal against Non-Registration/Cancellation

- S.11 provided appeal in the 1926 Act. This code provided that any person aggrieved by
the refusal of registar, or lack of act within 60 days of the receipt of application, may
prefer an appeal to the Industrial Tribunal and decision of the Tribunal shall be final.
- Industrial Tribunal shall give opportunity of hearing

7. Object for which the General Fund can be spent

- Earlier the object of general fund was prescribed in S.15 and in view of tech
developments, this was altered.  issue of or undertaking of liability ubder polciies of
insurance of family members of the employees.

8. Membership Fee and Mode of Collection of fee was prescrihed

- TO be prescribed by Rules of the TU. For this, it bifcurcated between organized and
unorganized sector 5rs per month, and organized secor 1 rs per month per member.
[CHECK]

9. Adjudication of disputes of the TU

- No privision on adjudication of disputes. Whenver ther is ad ispute between TU and
another or between two groups of members regarding registration, administration or
election of office bearers; or if one or more owkrers re arefused admission to Union, then
application can be made in prescribed manner to Industrial Tribunal having jurisdiction
where registered office of Union is situated.
- Disputes can alos be regarding conduct of election. Earlier, they would go to HC.

10. Participation of Office Bearers

- Entry of outsiders quoted as failure of TU’s.
- S.22 talked about proportion of office bearers connected with the industry. Eralier it said
that not more than half could be outsiders.
- Code regeres to a negative connotation- not more than 2 offic ebearers in every union in
an unorganized sector should be unconnected with trade or industry
- In organized sector, all should be enggead in the establishment and there can be no
outsiders.

11. Annual Returns: Has to forward annually all general statements audite din prescribed
manner of eyar ending31 December together with statements regardinvchanges including
change of office bearer, or modification of ruels of the Union and etc.
IMPORTANT: MEMBER CANNOT BE PART OF MORE THAN ONE REGISTERED
TRADE UNION.

COLLECTIVE BARGAINING

Collective bargaining is a process by which discussion or negotiation between the emploiyer

and employee regarding terms of employment or working conditions is undertaken. It’s a
technique through which disputes relating to conditions of employment are resolved by
agreement rather than by coercsion.

Scope: Not all can be resolved through CB. Eg. Unfair or unlawful dismissal of employees-
INdustrual Tribunal is better. In these sitautions there is no scope for amicable settlement.
Employer who refuses to solve dispute by CB amounts to unfair labour practice.

Parties: Emloyer and Employee. Sometimes Government when its of national importance
[Manesar plant of Maruti]

International Recognition of Collective Bargaining

ILO Convention No. 87 and Convention no 98 o: Right to organize and Right to Go for
Collective Bargaining. India not ratified either due to problems of entry of outsiders in
Unions.
-Often failure of CBs lead to strike—what the fuck is this and why is rekevant

[check these ILO conventions]

Subject Matter of Collective Bargaining

ILO recognized:
1. Regarding terms and conditions of employment or standards of employment.
INclides working hours, weekly off, wages, overtime payment and other
entitlements including bonus
2. Regulation of Industrial Relations: Demands that Union should be recognized.

Pre-requisites for Collective Bargaining

1. Freedom of Association
2. Strong and Stable Unions
3. Recognized Unions
 4. Willingness of the Union to refer the disptes for collective bargaining
5. There should be absence of unfair labour practice eor victimization of workers. If
employer requests them not to join union, it can be unfair labour practice on part of the
employer.

Process of Collective Bargaining

1. Charter of Demands: TU’s hav eot notify the eomployer or call ofr CB negotiation.
Employer himself can initae the proceedings and notify the Union. Further, this charter of
demands must be drafted after discussion with members.
2. Charter of demands should pertain to terms and conditions of employment, allowanecs or
holidays etc. If ther are multiple TU’s they can submit a common Charter.
3. Negotiations- Representation by employers and employees. There will be discussion. If
not accepted, TU may go on strike.
4. Strike- demands not accepted. For strike, valid conditions are written down under ID Act
1947. Section 22(1)(d) of the ID Act-
(a) For public utility services, employee must give 6 weeks prior notice to eompluer and
they cannot go on strike within 14 days period of expiry of notice,
(b) For others, one cannot go on strike when conciliation period is on , and until 7 days
after conclusion of conciliation proceedings.
[CHECK THE PROVISIONS ON STRIKE UNDER ID ACT]

5. Conciliation
-onciliation refers to the reconciliation of the interests or differences of the two parties. It is a
process through which each of the parties first appoints their representatives. These
representatives are brought before a third party. The mutual discussion takes place between the
representatives of workers and employers so that they can be persuaded to come to a common
solution

-Govt can appoint a conciliation office to investigate into the dispute and promot the settlement
under S.4/or form a board of conciliation with a chairman, under S.5of the ID Act. Powers of
Civil Court.
-Begins as soon as concliliation office receive notification of strike or lock-oout by employer.
-Once begun, there cannot be a strike or a lock-out.
Consequences: Settlemnt, No settlement, or reference of dispute to Court or Tribunal.
-If no settlement, then arbitration or adjudication by labour courts.
Voluntary arbitration: Mutually agreed
Compulsory arbitration: Government directs

 Schedule II of ID Act provides disptutes which can be referred to compulsory arbitration eg

Dismissal of employee, interpretation of standing orer, legality or propriety of standing order.
 Schedule III deals with matters which can be referred to Industrial Tribunal pertaining to
terms and conditions of employment.

<More clarity on process of CB needs to be checked and added to. Especially from Strike part
onwards>

Levels of CB

- Individuals: Preferred by employers. Message transmitted to all others by one

- Plant Level/Unit/Department Level: Identified a particular plant
- Regional Level
- National Level Bargaining: Only possible in core industries like Banking, Railway, Coal
Industry, Mining since here CG plays a major role.