Author Name:   karpagam

Recognition of trade union problems and perspectives

Recognition of Trade Unions, Problems And Perspectives

Trade Unionism has made its headway owing to growth of industrialization and capitalism. Trade Unionism asserts collectively the rights of the workers. In industrially advanced countries trade unionism has made a great impact on the social, political and economic life. India, being an agricultural country, trade unionism is restricted to industrial areas and it is still in a stage of growth.

The trade union in India are found scattered in various laws, voluntary measures like the code of discipline and the constitutional provisions under article 19 rights of the constitution. These trade union rights may be divided into categories like:
1.Rights of freedom of speech and expression which includes rights of picketing and demonstration.
2.Rights regarding the formation and the registration of the trade union.
3.Rights regarding the recognition of the trade union by the employers.
4.Rights regarding collective bargaining and collective actions.
5.Rights regarding conduct and functioning of the trade union.
6.Miscellaneous rights.

Trade unions are ordinarily understood to be combination of workmen only. Thus the Bombay industrial relations act, 1949excludes from the definition of union, a trade union of employers. Trade union are formed for the regulating the relation between workmen and employers, but they may regulate the relations between workmen and workmen.

Scope of The Study:
Recognition of trade union is one of the aspects of industrial relations which is still debated. This assignment deals with recognition of trade unions its problems and perspectives and the scope of the assignment is limited to various aspects of recognition of trade union among other activities of trade union relationship between employer and workmen.

Hypothesis:
In the present assignment i would like to answer certain questions pertaining to recognition of trade union as to what is the current status of recognition of trade union? This question is answered by analysing the various statues both central and state Is trade union recognition based on the discretion of the employer? This is to be answered by observing the disparities in practices among the states. And finially what are the problems faced by the employer in the course of trade union recognition?

Meaning and definitions:
1)Trade union: defined under trade unions act, 1926 under section 2(h) which means Trade Union" means any combination, whether temporary or permanent, formed primarily for the purpose of regulating the relations between workmen and employers or between workmen and workmen, or between employers and employers, or for imposing restrictive conditions on the conduct of any trade or business, and includes any federation of two or more Trade Unions:

Provided that this Act shall not affect--
(i) Any agreement between partners as to their own business;
(ii) Any agreement between an employer and those employed by him as to such employment;
(iii) Any agreement in consideration of the sale of the good-will of a business or of instruction in any profession, trade or handicraft.

2) collective bargaining’“all negotiations which take place between an employer, a group of employers or one or more employers' organisations, on the one hand, and one or more workers' organisations, on the other, for:
(a) determining working conditions and terms of employment; and/or
(b) regulating relations between employers and workers; and/or
(c) regulating relations between employers or their organisations and a workers' organisation or workers' organisations.”

3) recognition of trade union: 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.

Need For Recognition of Trade Union:

Collective bargainingis an important aspect of employer employee relation. The right of collective bargaining is not provided for all trade unions that exists but is provided for those trade unions which are recognisedRegistration of trade union is one thing and the recognition of trade union as a sole bargaining agent fot the purpose of collective bargaining is another thing. Number of industrial strikes broke out on the question of recognition of union.

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.

Rights of Union Recognition

In workmen of kampali co operative sugar factory ltd v. Management of kampli co operative sugar factory ltdthe court held that when there is no provision regarding recognition in the statute the right cannot be enforced by writ petition . when there is no statutory provision or agreement of recognition between the employer and union , no legal right is created simply because the union has been recognised by the management and withdrawl of recognition does not violate any right.

The 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.

This lead to the need of the legislating provisions regarding recognition of trade union as there were no provisions regarding recognition in Trade Unions Act 1929 an amendment to this act was brought in 1947 regarding procedure, conditions and rights of trade union, but the provisions regarding recognition of trade has remained a dead letter till today and only of historical importance and they don’t form a part of the Act.Labour being a concurrent subject certain states like Maharastra, Gujarat, Uttar Pradesh and Madhya Pradesh for instance have separate laws relating to reconition and certain voluntary codes all these are buried in practical aspects.

The law in India does not make it mandatory for managements to have unions, to recognize them or to engage in any kind of collective bargaining. However, since the constitution of India guarantees freedom of association, managements cannot follow anti-union policies. Just as tax avoidance is legal, but tax evasion is illegal, union avoidance is legal, but union evasion is not.
The right to grant recognition to trade unions within the meaning of Constitution of India, art. 19(1)(c) is a fundamental right or not is answered in negative because the right to form association does not carry with it the concomitant right that the association must be recognised by the employers. Hence withdrawal of recognition does not infringe the fundamental rights guaranteed under the Constitution of India, art. 19(1)(c).

Registration And Recognition Of Trade Union

Although no specific right is granted to any trade union with respect to the right to be recognized, it has become crucial in India to develop a mechanism wherein a trade union is recognized formally by the employer. 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. This process is important so as to ensure smooth collective bargaining and stability of industrial relations. On the other hand, registration of a trade union carries certain inherent benefits with it.

A registered trade union is deemed to be a body corporate, giving it the status of a legal entity that may, inter alia, acquire and hold property, enter into contracts, and sue others.A registered trade union is also immune from certain contractual, criminal and civil proceedings. However, registration is optional and not mandatory. Generally, registration of trade unions under the TU Act does not automatically imply that a particular trade union has gained recognition status granted by the employer.Unless different Indian states have specific legal provisions pertaining to recognition of trade unions, it is generally a matter of agreement between the employer and trade union. Ideally, a trade union must obtain legitimacy through registration under the TU Act and then seek recognition as a sole bargaining agent either under the appropriate law or an employer-employee agreement.

Reports, Statues And Recognition of Trade Union

Labour legislations in India were at a slow phase in developing. The momentum for industrial relations reached its peak during the first world war when many strike broke out between industrial and factory workers. However much of these strike proved to be successful. The establishment of ILO also paved way for the trade union movement in India.

In the year 1920 the madras high court in a suite field by Binny & co ltd against the textile labor union granted an injunction restraining the union officials from inducing the workers to break their contracts of employment by not returning to their work with the result the leaders of the trade activities hence the necessity for legislative protection was felt by trade unions. In 1921 NM Joshi who was the generals secretary of all India trade union congress successfully moved a resolution in the central legislative assembly seeking introduction of some legislation by the Govt. for protection of trade unions this move strongly opposed by the employers because of stiff opposing from the employers. That the passing of the Indian trade union act was possible only in 1926. The act came into force only from 1st June 1927.

There was no provisions for recognition of trade unions until 1947. An amendment was brought to the Trade Unions Act 1929 and inserted certain provisions were incorporated in chapter III A from section 28A to Section 28 I. Section 28A deals with definition of ‘appropriate government’., section 28 B deals with appointment, constitution and powers and procedures of labour court, section 28 C to section 28 I deals with recognition of trade unions. But since the day it was inserted it did not come into force and remains a dead letter. Further attempts were made for compulsory recognition 1950, 1978 and 1988, but it could not be materialised.

National Labour Commission in 1969 reviewed many of the labour legislations and proposed many recommendation, it also reviewed the trade unions act 1929.

The Commission has, inter alia, strongly recommended that:
(1) trade union registration be made compulsory;

(2) the registrar must be time bound to decide the issue of registration.

(3) effective measures must be taken for cancellation if the unions do not comply with conditions regarding filing of returns or membership;

(4) trade union recognition by the employers be made compulsory by Central legislation as specified undertakings;

(5) such recognised unions, must be given statutorily exclusive rights
and facilities like right of sole representation, entering into collective bargaining agreements, holding discussions and negotiations, inspection, check-off etc; and

(6) the minority unions must also be allowed to represent workers in redressal of individual grievances like dismissal, discharge etc. The suggested measures are likely to promote growth of healthy and strong trade unionism and eliminate inter-union rivalry to some extent. Compulsory recognition of one union for one undertaking will make the unions effective instruments of collective action and give them requisite bargaining equality.

The various state legislations governing trade unions are as follows:
# Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971
# West Bengal Trade Unions Rules, 1998
# Kerala Recognition of Trade Unions Act, 2010
# Orissa Verification of Membership and Recognition of Trade Union Rules, 1994
Generally, these rules provide that a union shall be recognized by the employer as the sole bargaining agent of a group of workers if it receives a specified minimum percentage (usually a majority) of these workers’ votes via secret ballot, organized by the Registrar. However, every trade union receiving a smaller minimum percentage of votes (fifteen or ten percent, depending on the type of industry) shall also be recognized as constituents of a joint bargaining council as in the case of Kerala trade unions.

Methods Of Recognizing Trade Union

Certain criteria has to be complied with for a trade union to be recognised . ministry of labour and employment prepared their views based on a tripartite system , based on these views drafts bills were prepared elucidating the criteria for union registration and recognition, they include
1.100 or 10% of the workers, whichever is ;east to be a union instead of any seven workers.
2. craft, category and caste based unions are not be registered or recognised
3.the law will provide for recognition and unrecognised union will not have any rights.

But these draft never took the form of an act though in three occasions it came up before the government but the day fell before the bill could be discussed.

The need for state intervention arose for getting unions recognised as the employers wanted to settle the terms and conditions of the work on the bases of liberal doctrine of ‘;freedom of contract’ but this freedom of contract has meaning only when the parties to the contracts are both in the same position to participate in the contract. ‘ where in the very nature of things parties to a contract are not similarly placed and is in the position of advantage as against the other who suffers from the handicap of intial disadvantage... freedom of contract is bound to work unjustly for the weaker side of the contract’seeing all these difficulties of the trade union act the Bombay province before independence enacted the Bombay industrial relations act.
 Soon after independence there were many states with provisions of recognition of trade union and many de facto recognition

Recognition of trade unions can be broadly classified as voluntary and statutory recognition

Recognition by management
it is a type of voluntary recognition. For a trade union to be successful it should play an effective role in collective bargaining, collective bargaining in turn depends upon the willingness of the employer to recognise the union. A union may be strong and stable unless it is recognised by the employer it will hardly have any impact.

Election by Secret Ballot:
Under which system, all eligible workers of an establishment may vote for their chosen union, elections to be conducted by a neutral agent, generally the Registrar of Unions, in a manner very similar to the conduct of general elections. Once held, the results of the elections would remain valid for a minimum period, usually two years

In Food Corporation of India Staff Union vs. Food Corporation of India and Others, the Supreme Court laid down norms and procedure to be followed for assessing the representative character of trade unions by the ‘Secret Ballot’ system.

Check-Off method:
Under which each individual worker authorises management in writing to deduct union fees from his wages and credit it to the chosen union. This gives management concrete evidene about the respective strengths of the unions. But the system is also prone to manipulation, particularly collision between management and a favoured union. Sometimes, genuine mistakes may occur, particularly when the number of employees is large. It also depends on all unions accepting the method and cooperating in its implementation.

Verification of union membership
method by the labour directorate as adopted as a resolution in the same session of the ILC and used widely in many establishments. This process is carried out by the labour directorate, which on the invitation of unions and management of an organisation or industry, collects particulars of all unions in a plant, with regard to their registration and membership. The claim lists of the unions, their fees books, membership records and account books are scrutinised for duplicate membership. Under a later amendment, unions also with lists of members in order to avoid dual membership. After cross checking of records, physical sampling of workers, particularly in cases of doubt or duplication, a final verified list is prepared for employers, unions and the government.

Rule of Thumb or intelligent guessing by management or general observationto assess union strength, either by the response at gate meetings, strikes or discussions with employees. This is not a reliable method, particularly in large estalishments and can also be subject to change at short intervals.

When a employer agrees to recognise a trade union then they should draw a memorandum of agreement between the employer and the officer of the trade union or their authoritative representative.

such an agreement could cover the following issues:
# bargaining procedure
# how and when meetings will be arranged
# who the employer and union representatives are
# time off for union representatives to attend meetings
# how agreements and disagreements will be communicated to the workforce
# conduct during negotiations - how and when issues can be raised
# the specific matters which will be subject to joint agreement, eg pay and working hours
# dispute resolution - what should happen if deadlock is reached on a particular issue, eg conciliation and arbitration
# union recruitment activities in the workplace
# union representation of workers at disciplinary and grievance hearings
# deduction of union contributions from employees' wages in Karnataka state road transport corporation Bangalore and others v workmen of KSRTC staff and workers federation the employer had issued a notification regarding eligibility for recognition by the employer stipulating 33.33 votes in referendum would be a precondition for recognition. This notification was challenged by the federation in high court. The court held that interfering in policy decision is not justified recognition by order of labour court.

A trade union which wants itself to get recognised can make an application to the industrial court. If the trade union satisfies the necessary conditions as required by the labour court like all ordinary members are workmen employed in the same industry or industry closely allied to are connected with one another, that it is a registered trade union and has complied with all the provisions of the actetc then a certificate of recognition is issued.

As many of the state have legislated on recognition of trade union each of whom has a different mode of recognition.

One of the most fast growing method is by the secret ballot system. In case of food corporation of India the supreme court ordered secret ballot and mandated the procedure

Criteria for Recognition of Unions under Code of Discipline)

i. Where there is more than one union, a union claiming recognition should have been functioning for at least one year after registration.
ii. The membership of the union should cover at least 15% of the workers in the establishment concerned. Membership would be counted only to those who had paid their subscription for at least three months during the period of six months immediately preceding the reckoning
iii. A union may claim to be recognized as a representative union for an industry in a local area if it has a membership of at least 25% of the workers of that industry in that area.
iv. When a union is recognized, there should be no change in its position for a period of two years.
v. Where there are several unions in an industry or establishment, the one with the largest membership should be recognized.

vi. A representative union for an industry in an area should 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 a membership of 50% or more of the workers of that establishment, it should have the right to deal with matters of purely local interest such as, for instance, the handling of grievances pertaining to its own members. All workers who are not members of that union might either operate through representative union for the industry or seek redress directly.
vii. In the case of trade union federations, which are not affiliated to any of the four central organisations of labour, the question of recognition would have to be dealt with separately.
viii. Only unions, which observe Code of Discipline, would be entitled for recognition

Advantage of A Recognized Trade Union:

The rights conferred on a recognized trade union are as follows
1.The executive of the trade union is entitled to negotiate with employer regarding employment, non employment, terms of employment or conditions of labour of any person or of all, if any dispute arsis between the executive and the employer on these issues it must be reffered to then registar whose decision is final.
2.The executive of the recognized trade union is entitled to display the notices of the trade union in the premises where the employees are employed and the employer must make necessary arrangements
3.To collect some payable by the members to the union on the premises where wages are being paid
4.To appear behalf of any employee or employees in any domestic or departmental enquiry
5.The recognised union alone is given the right to appoint its nominee to represent its workman in the works commission under the industrial dispute act 1947
6.A Trade Union being the sole bargaining agent or a principal bargaining agent.

The Bombay high court has held that only the recognised trade union can enter into settment with the employer and not any other union or employees independently can do so.

In Balmer Lawrie Workers’ Union, Bombay and Anr. v. Balmer Lawrie & Co. Ltd. and Ors., the underlying assumption made by the Supreme Court was that a recognised union represents all the workmen in the industrial undertaking or in the industryThe recognised Trade union also has a duty to submit returns to the registar within the stipulated period of time failure of which would be punishable with penalty.

Problems In Recognition of Trade Union:

Recognition is one of the basic issues of industrial relation between employer and employee as the employer has no obligation to give recognition to any union, in the ealier times the attitude of the employer towards trade union has been hostile.

There are two major problems in union recognition
1. All registered union in india seem to have been enjoying industrial relation rights either de facto or de jure though they happen to be craft, caste or category based union
2. Politicalisation of trade union is one of the basic reason mainly in CTUO that one party supports secret ballot system and other support check off system due to which there is repeated coalition management in several states have refused to recognise a trade union mainly on five grounds:
(1) most of the office bearers of the union were outsiders,
(2) and sometimes, those disapproved by management, particularly politicians and ex-employees;
(3) the union consisted of only minium number of employees;
(4) there were many rival unions in existence; and
(5) the trade union was not registered under the Trade Unions Act,1926

Conclusions:
from the above assessment we could conclude that since there is no uniformity in law among the different states and since a the central act which was amended in 1947 remains a dead letter there is odo in the process of recognition and still this process is at the discretion of the management

Suggestions:
Change is the law of life. Law cannot remain immune to all these changes. In order to be effective law must justify itself according to the needs of the changing society. The concept of labour have undergone changes far beyond reach. Constant revisions of the labour legislations is necessary to keep upto the changes and implementation of the legislation for a better change to happen is paramount.

The importance of trade unions have been growing since independence. Collective bargaining is an important aspect in an industrial relation and which in turn depends on the recognition of trade union. Since the enactment of the trade union Act 1926 the attitude od the legislaute and executive are very hostile towards the legislations though at many time the consideration of recognition of trade union came up. Necessary steps must be take to enforce the amendment brought in 1947 which still remains a dead letter

Bibliography:
# The Constitution of India 1950
# The Trade Unions Act 1926
# The trade union (amendment) act 1947
# The Industrial Disputes Act 1947
# The Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971
# The Kerala Recognition ot'Trade [Jnions Act, 2010

# ILO convention no, 157
# C S Venkat Ratnam, Industrial Relations in Indian States, Global Business Press, Delhi: 2ndedition
# Dr Biswant Ghoshi, Industrial Relattions of Developing Economy, Himalaya Publishing House; hydrabad 1stedition 2002

# Prof. H D Pithawala, The Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 and principles of collective bargaining, jamnadas co educational and law publication,
# Kavita Krishnamurthi, Industrial Relations, Global Academic Publication and Distribution

P B Gajendragadkar, law liverty and social justice 1962

B N Datar,Trade Union Recognition,lala Lajpatraj Memorial Lectur Series 12thseries 1983

G.M.Kothari ,A Study On Industrial Law,Wadhwa And Company, Nagpur,5THEdition/2002

# Singh et al., Employee Relations Management, p. 110,
# R P Anand, new states Hope India Publications 2ndrevised edition (2008)
# R. Sivarethinamohan, Industrial Relations and Labour Welfare: Text and Cases

# S N Mishra, Labour and Industrial law , Central Law Publication: Allahabad , 27thedition

# H L Kumar, Labour Problems and remedies, Universal Law Publication Co: New Delhi, ninth edition 2010
report of the national commission on labour government of india ministry of labour and employment and rehabilitation 1969
India, trade union and Collective Bargaining, nitishdesai association , October 2015

End-Notes
# http://www.delhi.gov.in/wps/wcm/connect/doit_labour/Labour/Home/Acts Implemented/Details of the Acts Implemented/The Trade Unions Act, 1926/accesses30/07/2016
# G.M.Kothari ,A Study On Industrial Law,Wadhwa And Company, Nagpur,5THEdition,2002,pg no.316
# G.M.Kothari ,A Study On Industrial Law,Wadhwa And Company, Nagpur,5THEdition/2002,,pg no 325
# Trade union act,1926, (2001 amendment)
# Article 2ILO Convention No. 154
# P N Singh neeraj., ‘Employee Relations Management’,Pearson Education Indiap. 110, Available at https://books.google.co.in/books?id=vkQ7BAAAQBAJ&printsec=frontcover (Accessed 2/08/2016)
# H L Kumar, ‘Labour Problems and remedies’, Universal Law Publication Co: New Delhi, ninth edition 2010 p. 297
# Needs and rights of recognised trade union, smithi chand
# AIR 1960 SC 914
# AIR 1999 SC 401
# (1995) I LLJ 727 (karn..)
# H L Kumar, Labour Problems and remedies, Universal Law Publication Co: New Delhi, ninth edition 2010 p 297
# S N Mishra, Labour and Industrial law , Central Law Publication: Allahabad , 27thedition p 382
# C S Venkat Ratnam, Industrial Relations in Indian States, Global Business Press, Delhi 2ndedition p 21
# http://www.mbaskool.com/business-articles/human-resource/6496-trade-union-registration-or-recognition-in-india-an-obligation-under-law.html/accessed 30/07/2016
# http://www.lawteacher.net/free-law-essays/employment-law/recognition-of-trade-unions-employment-law-essay.php/accessed31/07/2016
# Section 13 of the TU Act 1926
# Sections 17, 18 and 19 of the IDA
# R. Sivarethinamohan, Industrial Relations and Labour Welfare: Text and Cases, p 62
# http://nfirindia.org/downloads/TRADEUNIONACT1926.PDF/accessed 30/07/2016
# S N Mishra, Labour and Industrial law , Central Law Publication: Allahabad , 27thedition p 382
# http://www.whatishumanresource.com/recognition-of-trade-union/accessed 30/07/2016
# report of the national commission on labour government of india ministry of labour and employment and rehabilitation 1969 p 282
# Section 5 of the Kerala Recognition of Trade Unions Act, 2010
# C S Venkat Ratnam, Industrial Relations in Indian States, Global Business Press, Delhi 2ndedition p 23
# P B Gajendragadkar, law liverty and social justice 1962 p 102
# B N Datar,Trade Union Recognition,lala Lajpatraj Memorial Lectur Series 12thseries 1983 p 9
# Dr Biswant Ghoshi, Industrial Relattions of Developing Economy, Himalaya Publishing House; hyderbad 1steedition 2002 p 127
# AIR 1995 SC 1344
# Section 28 C trade union (amendment) act 1947
# https://www.nibusinessinfo.co/node/4673/accessed 30/07/2016
# 2005 II LLJ 219(karn..)
# Sec 28 D trade union (amendment) act 1947
# C S Venkat Ratnam, Industrial Relations in Indian States, Global Business Press, Delhi 2ndedition p 23
# (Clause III (vii) of the Code of Discipline)
# Section 28 F trade union (amendment) act 1947
# Section 10 the Kerala Recognition ot'Trade [Jnions Act, 2010
# Nazdoor Congress v. S R Shinde 1983Mah L J 909
# AIR 1985 SC 311
# Kavita Krishnamurthi, Industrial Relations, Global Academic Publication and Distribution
# C S Venkat Ratnam, Industrial Relations in Indian States, Global Business Press, Delhi 2ndedition p 23
# Dr Biswant Ghoshi, Industrial Relattions of Developing Economy, Himalaya Publishing House; hyderbad 1steedition 2002 p 128
# C S Venkat Ratnam, Industrial Relations in Indian States, Global Business Press, Delhi 2ndedition p 23
# R P Anand, new states Hope India Publications 2ndrevised edition (2008) p 3s

ISBN No: 978-81-928510-1-3
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