UNIT- II NOTES OF ILO AND LABOUR LAWS

COLLECTIVE BARGAINING
What is collective bargaining?

• Collective bargaining is the formal process of negotiation between an employer and a group of
employees – often with their union representative – that sets the terms and conditions of work.

• Collective bargaining results in a collective bargaining agreement (CBA), a legally binding

agreement that lays out policies agreed to by management and labor. Because of its role in
governing the actions of both management and labour, a CBA is often referred to as the “law” of
the workplace. While each agreement is unique to a given labour management relationship, most
CBAs include provisions that address compensation, scheduling, promotions, discipline and job
standards. CBAs also usually contain a grievance procedure, which provides a process for
resolving disputes between management and labor over interpretation of the contract and in the
event of employee discipline or termination.

When does collective bargaining occur?

• Employees and employers engage in collective bargaining to negotiate new contracts and
renegotiate existing contracts that have expired. In 2015 alone, an estimated five million men and
women are engaged in the collective bargaining process.1 By one measure, more than 21,000
labor-management relationships engaged in collective bargaining during the 2014 fiscal year.2
Despite the amount of bargaining that occurs every year, only 7.4 percent of private sector
employees and 39.2 percent of public sector employees are covered by a contract.3

Who can collectively bargain?

• The National Labour Relations Act (NLRA) grants most private sector employees the right to
organize unions and collectively bargain. The Railway Labour Act (RLA) provides railway and
airline employees the right to form unions and engage in collective bargaining. Between the
NLRA and RLA, approximately 85 percent of all private sector employees hold collective
bargaining rights. Some members of the private sector, including employees of very small
businesses, agricultural workers, domestic workers, supervisors and independent contractors, do
not have the right to engage in collective bargaining.

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• Public sector collective bargaining rights are established by a patchwork of laws. Federal law
offers many federal employees the right to engage in collective bargaining over a limited set of
issues, and state laws govern the right of state and local government employees to engage in
collective bargaining. As of 2014, three states expressly prohibit collective bargaining for all
public sector employees. The prohibition of bargaining is considered indirect violation of
international human rights law.

What topics can employees bargain over?

• While the NLRA – the law that applies to most private sector employees – does not include a
list of bargaining topics, the National Labor Relations Board (NLRB) and courts determine
which subjects are covered by the NLRA. They divide bargaining subjects into three categories:
mandatory, permissive, and illegal.

● Mandatory subjects, broadly speaking, relate to wages, hours, pensions, healthcare and
working conditions. Employers cannot refuse to bargain over these subjects, and
negotiations may continue to the point of mediation or strike.
● Permissive subjects are non-mandatory subjects of bargaining, meaning employers are
not required to bargain over them. Use of union labels is an example of a permissive
bargaining subject.
● finally, illegal bargaining subjects are those that violate the NLRA, such as a closed-
shop provision in a rightto-work state.8

The collective bargaining process

• Though more formal in nature, the collective bargaining process is not much different from
everyday negotiations between parties, like the process of buying a car. Bargaining commonly
begins with employees coming together with their union to determine and prioritize a set of
demands they have for their employer. A bargaining committee, comprised of employees and
union representatives, then meets with management at the “bargaining table,” presenting a series
of proposals and explaining the intention behind them. Management will then respond with its
own proposals and counteroffers. The sides will begin to reach agreement on some proposals and
continue trading counteroffers over unresolved issues. The length of bargaining and amount of
counteroffers varies depending on the complexity and number of bargaining proposals.

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• Collective bargaining in the United States is typically a decentralized process, occurring

between a single employer and its employees. However, in industries like hospitality and
trucking, employers and unions sometimes engage in regional or industry-wide bargaining,
where a CBA covers employers in a specific city or across an entire industry.9

• In the construction sector, a project labor agreement (PLA) serves as a pre-hire collective
bargaining agreement establishing the terms and conditions of employment for a particular
construction project. PLAs are negotiated between a coalition of building trades unions and a
general contractor. Typically, they require all the contractors on the project to pay fair wages and
to contribute to joint labor-management health, pension and training funds.

Types of Collective Bargaining

Definition: The Collective Bargaining is the process wherein the unions (representatives of
employees or workers), and the employer (or their representative) meet to discuss the issues
related to wage, the number of working hours, work environment and the other terms of the
employment.There are four types of Collective Bargaining classified on the basis of their nature
and the objectives, and can be practiced depending on the different situation requirements.

Types of Collective Bargaining

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1. Conjunctive or Distributive Bargaining: In this form of collective bargaining, both the parties
viz. The employee and the employer try to maximize their respective gains. It is based on the
principle, “my gain is your loss, and your gain is my loss” i.e. one party wins over the other.

The economic issues such as wages, bonus, other benefits are discussed, where the employee
wishes to have an increased wage or bonus for his work done, whereas the employer wishes to
increase the workload and reduce the wages.

2. Co-operative or Integrative Bargaining: Both the employee and the employer sit together and
try to resolve the problems of their common interest and reach to an amicable solution. In the
case of economic crisis, such as recession, which is beyond the control of either party, may enter
into a mutual agreement with respect to the working terms.

For example, the workers may agree for the low wages or the management may agree to adopt
the modernized methods, so as to have an increased production.

3. Productivity Bargaining: This type of bargaining is done by the management, where the
workers are given the incentives or the bonus for the increased productivity. The workers get
encouraged and work very hard to reach beyond the standard level of productivity to gain the
additional benefits. Through this form of collective bargaining, both the employer and the
employee enjoy the benefits in the form of increased production and the increased pay
respectively.
4. Composite Bargaining: In this type of collective bargaining, along with the demand for
increased wages, the workers also express their concern over the working conditions, recruitment
and training policies, environmental issues, mergers and amalgamations with other firms, pricing
policies, etc. with the intention to safeguard their interest and protect the dilution of their powers.
Thus, the purpose of the Collective Bargaining is to reach a mutual agreement between the
employee and the employer with respect to the employment terms and enjoy a long term
relationship with each other.

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Factors affecting the Collective Bargaining

The success of collective bargaining machinery largely depends on the respective attitudes of
workers, in general, and the union, in particular on one hand and the attitude of management of
employer on the other.

However, if collective bargaining is to exist in a country successfully the following factors

are essential:
1.It is necessary for the management to recognize the union and to bargain in more good faith.
This also puts pressure on the union to formulate plans and demands in a systematic manner.

2. There should be a change in the attitude of employers and employees. They must realize that
collective bargaining approach does not imply litigation as it does under adjudication. Both the
parties should keep this in mind that they have to resolve their differences on their respective
claims quietly and calmly, with their own resources, reducing their dependence on the third-party
intervention.

3. For the purpose of collective bargaining, employers should be represented by the

management and workers by their union representatives. Careful thought and selection of
the negotiating team is very much essential. For management team, it is better to have a mixed
composition, such as production, finance, industrial relation experts and headed by a personnel
expert.

4. It is also appreciable to have open minds; each party should listen to others’ concern and
point of views and should have some flexibility in making adjustments to the demands.

5. To ensure collective bargaining, unfair labour practices should be avoided and abandoned
by both; otherwise, atmosphere and confidence will be vitiated by malpractice if either side takes
advantage of the other by resorting to unfair practices.

6. Either side should avoid putting any irrational or unreasonable demand.

7. Negotiations can be successful only when the parties rely on facts and figures to support
their points of view. That is why trade union should be assisted by specialists, viz., economists,
productivity experts, etc.

8. Trade union should encourage the internal union democracy and periodic consultation with
the general rank and file of the union members.

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9. The terms of contract and the results of the negotiation should be in writing and should be
embodied in a document. If no agreement is reached the parties should proceed to conciliation,
mediation or arbitration.

.If no settlement is arrived, then the workers should be free to go in for strike and the employers
for lockout. However, utmost care should be taken to resolve difference mutually.

10. Strikes and lockouts should be the last resort. Periodic discussions may be necessary
between management and unions to interpret the provisions of the contract and clarify doubts.

11. Trade unions should be equally concerned with quality of work that leads up to a
consistent concern for the viability of the firm and its products and services.

12. Once the agreement is reached, it must be honoured and fairly implemented.

Collective Bargaining in India

*Suggested reading- Book of Prof. Meenu Paul

Industrial harmony is essential for economic progress and the concept of Industrial harmony
wants the existence of undertaking, cooperation and sense of partnership between employers and
employees. There may be conflicting interests between employer and workmen but this attitude
leads to an understanding for achieving common goals, such as production and prosperity. The
phrase “collective bargaining was first coined by Sidney and Beatrice Webb. This was widely
accepted, particularly in the developed countries.

Generally by collective bargaining we mean, an essential element of economic democracy, is a

‘two party’ procedure for arriving at a commonly agreed solution. The term is thus used to
describe the procedure, whereby employers must attempt to reach agreement about wage-rates
and basic conditions of labour with trade unions, instead of with individual workers. In other
words, it is the process of discussion and negotiation between an employer and a union
culminating in a written agreement or contract and the adjustment of problems arising under the
agreement.

“Collective bargaining” writes Harbison 1 “is a process of accommodation between two

institutions which have both common and conflicting interests”. Its aim is not to seek industrial
peace at any price. Constructive bargaining should seek “to promote the attainment of the
commonly held goals of a free society.”

1. Goals and Strategy in Collective Bargaining by F.H. Harbison, Harper &Bros. USA.195

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In the context of the present day egalitarian society, with its fast changing social norms, a
concept like ‘collective bargaining’ is not capable of a precise definition. The content and scope
of ‘collective bargaining’ is a process of bargaining between the employers and their workers, by
which they settle their disputes relating to employment or non-employment, terms of
employment or conditions of labour of the workmen, among themselves, on the strength of the
sanctions available to each side.

Collective bargaining is a technique by which disputes as to conditions of employment, are

resolved amicably, by agreement, rather than by coercion. The dispute is settled peacefully and
voluntarily, although reluctantly, labour and management, seeks to achieve social justice on the
basis of collective bargaining 2.

Meaning of Collective Bargaining -: As put by Louis E. Howard, collective bargaining means

“To get together (right of meeting), to enter a common organization (right of association), to
determine that whatever conditions of work are allotted shall be the same for all workers and to
make a bargain with employers to that effect (rights of combinations and bargaining) and
eventually in case the employers should refuse to enter on such a bargain or fail to honour it
when entered upon, to confront them with a united refusal to go to work or to continue at work
(right of strike). Collective bargaining as a technique for the fulfilment of the needs and
objectives of workers and employers is an integral part of industrial society. It is, in fact, an
extension of the principles and practices of democracy to industry. It is a dynamic process and is
constantly expanding.

Collective bargaining is the principal factor behind the formation of trade unions. While the
Common law did not recognize Collective bargaining, it became a norm only when large scale
industries developed, and it became necessary to regulate the capital-labour relations with a view
to better the working conditions of labour and sustaining the industrial peace in the country. The
ILO conventions and the Constitution of India which the people of India have given to
themselves amply recognize the right of employees to form Unions to espouse their cause. The
Trade Unions Act, 1926 is one of the earliest labour legislations in India to recognize this
valuable and significant right of the labour. The Act besides providing for registration of trade
unions seeks to grant recognition to trade unions and provides a broad legislative parameter
within which the trade unions must function.

The common law had recognised relations between individuals as master and servant. It did not
recognise collective bargaining or anybody that is entitled to represent the body of workmen in
negotiations relating to employment or the terms of employment or with the conditions of labour
of any person. In common law, if several employees in concert and combination withdraw their
labour and decide not to work, it would amount to a breach of contract, which was actionable in
common law.

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2 Karnal Leather Karamchari Sanghathan V Liberty Footwear Co 1990 Lab IC 301.

In the UK the Industrial Relations Act, 1971 establishes a presumption in favour of the
collective agreements and in the US under the National Labour Relations Act, 1935 collective
bargaining by employers with chosen representatives of employees is compulsory. Collective
bargaining is put on statutory basis in Canada, Australia and other countries. In Sweden, The
Terms and Conditions of Employment Act, 1959 sanctions collective bargaining.

"The vital significance of collective bargaining for the law of contract thus lies in its following
aspects; first, it resembles a standard contract of business and industry in that standardized terms
regulate the conditions of employment of millions of individuals”.

Secondly, it is a most important instance of a public law function delegated, by the permissive
or even imperative authority of the State, from government to social groups. Thirdly, the
freedom of the individual to bargain in his terms of employment is inevitably curtailed by the
prevalence of collective bargaining. It is even excluded where the 'closed shop' is recognised
either legally or de facto. Fourthly, this lack of freedom is compensated by a substantial
restoration of equality of bargaining power. It is not the individual employee who has regained
equality, but the trade union negotiating on his behalf. Although the trade union is not strictly
speaking the agent it has in effect absorbed and consolidated the bargaining power formerly
vested in the individual.

Collective bargaining could be an effective instrument in the settlement of disputes and

advancement of the cause of labour if certain basic conditions are fulfilled. Firstly, the primary
condition for the successful process of collective bargaining is the existence of wellorganized
and fully recognized trade unions with well-defined policies. It follows that collective bargaining
is not very useful in the early stages of development when unions are not well organized.
Secondly, collective bargaining can be an effective technique of settling industrial disputes when
there is a spirit of give and take between the employers and the workers. Thirdly, as there is no
legal sanction behind the terms and conditions voluntarily agreed upon, the parties concerned
must do things and act in good faith on the basis of mutual agreement. Fourthly, much depends
upon the moral fibre of the labour leaders as well as the employers. There should be a complete
and true understanding and appreciation of each other’s viewpoints. Face to face meetings
between the representatives of workers and employers can serve a useful purpose only when the
traditional prejudices are kept aside by both the parties. Finally, there should be no uncertainty
about the fields in which the parties are legally required to bargain collectively 3.

Subject Matter of Collective Bargaining -The International Labour Organisation has divided
the subject matter of collective bargaining into two categories: (i) Those which set out standards
of employment which are directly applicable to relations between an individual employer and
worker;

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3 Dr.T.N.Bhogoliwal, Economics of Labour and Social Welfare, Sahitya Bhavan Pub. Agra (1974) p.119

(ii) Those which regulate the relations between the parties to the agreement themselves and have
no bearing on individual relations between employers and workers.

The first category includes subjects like wages, working hours (including overtime), holidays
with pay and period of notice for termination of contract. The second category according to ILO
includes eight items viz., (i) provisions for enforcement of collective bargaining; (ii) methods of
settling individual dispute; (iii) collective disputes including grievance procedure and reference
to conciliation and arbitration; (iv) recognition of a union as bargaining agent for the workers;
(v) giving of preference in recruitment to union members seeking employment; (vi) duration of
the agreement; (vii) undertaking not to resort to strike or lockout during the period; and (viii)
procedures for negotiation of new agreements4.

The ILO also states that: In collective bargaining, the object is to reach agreement on wages and
other conditions of employment about which the parties begin with divergent viewpoints but try
to reach a compromise. When a bargain is reached, the terms of the agreement are put into
effect5.

Prerequisites for Collective Bargaining

(a) Freedom of Association - In order to achieve collective bargaining, it is essential to ensure

that the denial of such freedom negates collective bargaining. In this respect it is significant to
note that the International Labour Organisation adopted the Convention No, 87 concerning
“Freedom of Association and Protection of the Right to-Organize" which seeks to provide for
freedom of association. India has, however, not, formally ratified that convention, perhaps due to
administrative and constitutional problems, However, Article 19 (l) (c) of the Constitution of
India guarantees "the right to form Associations or Unions" as a fundamental right.

(b) Strong and Stable Trade Unions - For the success of collective bargaining, it is also essential
that there should be strong, independent, democratic and well-organized trade unions. The
unorganized labour is the hurdle in its success. In India, however, the unions are generally weak.
Rivalry based on caste, creed, religion is another characteristic of Indian trade unions which
come in the way of successful collective bargaining. Division of unions based on political
ideologies further retards the growth of trade unions. Moreover: most of the workers are
illiterate. Lastly, the financial position of trade unions is weak, and some of them are even unable
to maintain a proper office.

(c) Recognition of Trade Unions - Recognition of Trade Unions as a bargaining agent is the
backbone of collective bargaining.

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4.S.C.Srivatsava, Industrial Relations & Labour Law, Vikas Pub, New Delhi, (2003) p.116.
5.International Labour office, Collective bargaining (A workers education manual, Geneva (1980) p.5

(d) Willingness to Give and Take - The mutual trust and appreciation of the viewpoints of the
management and union is also essential said the ILO. The fact of entering into negotiations
implies that the differences between two parties can be adjusted by compromise and concession
in the expectation that agreement can be reached. Obviously, if one or both sides merely make
demands when they meet, there can be no negotiation or agreement 6.

Growth of Collective bargaining

It has now achieved significant maturity and widespread recognition and has travelled all the
way with difficulties trials and tribulations. It covers negotiations, administration, interpretation,
application and enforcement of written agreements between employers and unions representing
their employees settling for the joint understanding as to the policies and procedures governing
wages, rates of pay, hours of work and other conditions of employment.

The growth of collective bargaining is closely associated with growth of trade unionism. The
trade union movement revolves around collective bargaining. The important trend in collective
bargaining, however, is the expansion in the number and the type of subjects which it covers. Of
the reasons for the increase in the subject-matter of collective bargaining, the growth and
development of the trade unions which are organized stronger may be stated to be one factor, the
other significant factors in the extension of subjects for collective bargaining being the influence
of recent legislation and the liberal attitude taken by the State.

In India, as also in many other counties, collective bargaining got some movement from statutory
provisions which laid down general principles of negotiation, procedures for collective
agreements and the character of representation of the parties negotiating disputes.

Of late, the Code of Discipline which came into force in 1958 by voluntary agreement between
workers and employers aimed at avoiding work-stoppages as well as litigation, securing
settlement of disputes and grievances by negotiation, conciliation and arbitration facilitating free
growth of trade unions. While the Code attempted to establish faith of the parties in the voluntary
approach, it provided a suitable climate for the growth of collective bargaining in India.

6. S.C.Srivastava, Industrial relations & Labour Law, Vikas Publications (2003) p.119

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Legal framework of Collective bargaining

Article 19(1)(c) of the Indian Constitution guarantees freedom of associations and unions as a
fundamental right. This was recognized in the Trade Unions Act, 1926, Industrial Disputes Act,
1947 and the Industrial Employment (Standing Orders) Act, 1948. India ratified ILO Convention
NO.11 concerning the Right of Association for Agricultural Workers during British rule in 1923.
It has, however, not ratified ILO Convention Nos. 87 and 98 due to 'technical difficulties'
involving trade union rights for civil servants. This is not a valid reason for non-ratification,
because a ratifying country can exempt certain services. The real intention could be, as Surendra
Nath (1997), former Chief Labour Commissioner of India, observes, "to restrict freedom of
association to only manual workers (by defining them as workmen) and exclude supervisory and
managerial workers. The other interest of the government is not to allow the right of collective
bargaining even to industrial workers in government departmental undertakings like the
Railways, Post and Telecommunications, and Central Public Works Department. Their pay etc.
is decided by the government, on the basis of the Pay Commission's recommendations, and not
through collective bargaining. The labour laws at the national level do not mandate employers
either to recognise unions or to engage in collective bargaining. Some states (for instance,
Andhra Pradesh, Bihar, Gujarat, Karnataka, Madhya Pradesh, Maharashtra, Orissa, and West
Bengal) have provisions concerning recognition of trade unions7.

The National Commission on Labour (1969) left the matter to be decided on the basis of local
circumstances. The 1947 amendment to the Trade Unions Act, 1926 and the Trade Union Bill,
1950 provided for recognition of more than one union by an employer. The 1947 amendment
was never enforced and the 1950 bill was not passed. In 1956 the Second Five-Year Plan
document highlighted the importance of 'one-union one industry’. In 1958 the Indian Labour
Conference evolved a code of discipline in industry which did not and still does not have
statutory force which contained “Criteria for recognition of unions. It favoured workmen
belonging to non-recognised unions to operate through the representative union of the industry or
seek redressal of grievances directly”.

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Under Section 2(p) of the Industrial Disputes Act, 1947 collective agreements to settle
disputes can be reached with or without the involvement of the conciliation machinery
established by legislation. A settlement (written agreement between the employer and the
workmen) arrived at in the course of conciliation proceedings is binding, under Section 18(3) of
the Act, not only on the actual parties to the industrial dispute but also on the heirs, successors or
assignees of the employer on one hand and all the workmen in the establishment, present or
future, on the other.

The conciliation officer is duty-bound to promote a right settlement and to do everything he can
to induce the parties to act towards a fair and amicable settlement of the dispute. A settlement
with one trade union is not binding on members of another or other unions unless arrived at
during conciliation proceedings; the other union(s) - including a minority union - can, therefore,
raise an industrial dispute. Section 36(1) of the Industrial Disputes Act deals with representation
of workmen. Any collective agreement would be binding on the workmen who negotiated and
individually signed the settlement. It would not, however, bind a workman who did not sign the
settlement or authorize any other workman to sign on his behalf.

A collective agreement presupposes the participation and consent of all the interested parties.
When workmen are members of different unions, every union, without regard to whether or not
it represents a majority, cannot but are considered an interested party. Also, a few workmen may
not choose to be members of any union, and one or more unions may, for reasons of their own,
not like to reach a settlement. Sections 2(p), 4 and 18(3) of the Industrial Disputes Act, 1947 deal
with such practical difficulties by making collective agreements binding even on indifferent or
unwilling workmen as the conciliation officer's presence is supposed to ensure that the
agreement is bonafide.

The process of collective bargaining, though in a vague and limited form, has been introduced in
the year 1956, by amending the definition of ‘settlement’ in s 2(p) of the Industrial Disputes Act
19478. The pertinent purpose of collective bargaining is that the workers must be involved in it.
There cannot be a collective bargaining without involving the workers. The union only helps the
workers in resolving their dispute with the management, but ultimately, it would be for the
workers to take the decision and suggest remedies.

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7. C.S.Venkata Ratnam, P.A. Naidu, Industrial Relations and Collective Bargaining in South Asia, ILO Pub. (1999)
p.51

8. Section 3 of the Act 36 of 1956, the present cl. (p) was substituted for the previous one.

In the present definition of a ‘settlement’, a written agreement ‘between the employer and the
workmen, arrived at otherwise than during conciliation proceedings’ has been included. Rule 58
of the Industrial Disputes (Central) Rules 1957 prescribes the memorandum of settlement in
Form H and lays down the procedure for signing the settlement. Section 18(I) makes such a
settlement binding on the parties to the agreement of settlement. Section 19 prescribes the
periods of operation, inter alia, of such a settlement, while S 29 prescribes the penalty for the
breach of such a settlement. It would thus appear that the process of collective bargaining, yet,
rests on statutory limits.

In Virudhachalam v Management of Lotus Mills 9, the Supreme Court observed that collective
bargaining for resolving industrial disputes, while maintaining industrial peace, is the bed-rock
of the Act. Therefore, the employer or the class of employers on the one hand, and accredited
representatives of the workmen on the other, are expected to resolve the disputes amicably, either
by direct negotiations or through the conciliatory machinery of the Act. In collective bargaining,
the individual workman necessarily recedes in the background and the reigns of bargaining on
his behalf are handed over to the union representing such workman. The unions espouse the
common cause, on behalf of all their members. Hence, a settlement arrived at by them, with the
employer, would bind at least their members and if such settlement is arrived at during the
conciliation proceedings; it would bind even the non-members. Settlements, therefore, are the
'live wires' of the Act, for ensuring industrial peace and prosperity.

Collective bargaining, by voluntary agreement has been adopted as the standard system in the
United States of America. But in India, the tradition of free collective bargaining has always
been weak. Hence, with respect to the merits and demerits of collective bargaining, vis-a-vis
compulsory industrial adjudication, there is a serious conflict and overlapping of views.

Trade Unions (Amendment) Act, 1947 and Recognition -: In India, it has been observed
earlier, that there is no Central enactment governing recognition of "trade unions. The Trade
Unions (Amendment) Act, 1947, however, provided for recognition of unions, (i) by agreements,

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and. (ii) by order of the Court on satisfying the conditions laid down in relevant sections of the
Act.

09. Civil appeal No. 4852 of 1989, decided by the Supreme Court on 9 December 1997

But the Act, as stated earlier, has not been enforced

(a) Machinery for Determination of Representative Unions - Section 28E of the Trade
Unions (Amendment) Act, 1947; empowers the Labour Court to grant recognition where a
registered trade union having applied for recognition to an employer fail to obtain the same
within a period of three months.

(b) Conditions for Recognition- Section 25 D provides that a Trade Union shall not be
entitled for recognition by order of a Labour Court under Section 25 E unless it fulfills the
following conditions, namely:

● (a)that all its ordinary members are workmen employed in the same industry-or in
industries closely allied to or connected with another.
● b) that it is representative of all the workmen employed by the employer in that,
industry or those industries.
● c) that its rules do not provide for the exclusion' from membership of any class of the
workmen referred to in clause (b);
● d) that its rules provide for the procedure for declaring a- strike;
● e) that its rules provide that a meeting of its executive shall be held at least once in
every six months;
● f) that it is a registered Trade Union, and that it has complied with all provisions of this
Act.

The aforesaid provisions of the Act raise various problems (i) Can an employer voluntarily
recognise a union which- is not registered under the Act and which is in fact a majority union?
(ii) Can an employer be compelled to recognise more than one union? Notwithstanding the
relative importance of these questions and rather unsatisfactory answer that we get from the

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statute, the significance of Trade Unions (Amendment) Act, 1947, must not be overlooked. But,
even this could not be put into force.

(c) Rights of Recognized Trade Unions - The recognized trade unions have been conferred the
right to negotiate with employers in respect of matters connected with employment, non-
employment, the terms of employment or the conditions of labour of all or any of its members,
and the employer is under an obligation to receive and send replies to letters sent by the
executive and grant interviews to them regarding such matter.

(d) Withdrawal of Recognition of Trade Unions - Under Section 28 G of the Trade Unions·
(Amendment) Act, 1947, the Registrar or the employer is entitled to apply to the Labour Court in
writing for the withdrawal of the recognition on anyone of the following grounds:

a) that the executive or the members of the trade union have committed any unfair labour
practice set- out in Section 28 J within three months prior to the date of the application;

b) that the trade union has failed to submit any return referred to in Section 28 I;

c) That the trade union has ceased to be representative of the workmen referred to in Clause (b)
of Section 28 D.

On receipt of the application the Labour Court is required to serve a show cause notice in the
prescribed manner on the trade union as to why its recognition should not be withdrawn. If the
Court is satisfied that trade union did not satisfy conditions for the grant of recognition it shall
make an order declaring the withdrawal of recognition. The aforesaid provisions raise a
question as to whether recognition of trade union can be withdrawn on the ground that
recognized trade union has lost its status as a representative union.

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

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Right to Organise and Collective Bargaining Convention (No. 98)

Adopted: 1 July 1949

Entered into force: 18 July 1951

The General Conference of the International Labour Organisation, Having been convened at
Geneva by the Governing Body of the International Labour Office, and having met in its Thirty
second Session on 8 June 1949, and Having decided upon the adoption of certain proposals
concerning the application of the principles of the right to organise and to bargain collectively,
which is the fourth item on the agenda of the session, and Having determined that these
proposals shall take the form of an international Convention, adopts this first day of July of the
year one thousand nine hundred and forty-nine the following Convention, which may be cited as
the Right to Organise and Collective Bargaining Convention, 1949:

Article 1

1. Workers shall enjoy adequate protection against acts of antiunion discrimination in respect of
their employment.

2. Such protection shall apply more particularly in respect of acts calculated to: (a) make the
employment of a worker subject to the condition that he shall not join a union or shall relinquish
trade union membership; (b) cause the dismissal of or otherwise prejudice a worker by reason of
union membership or because of participation in union activities outside working hours or, with
the consent of the employer, within working hours.

Article 2

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1. Workers’ and employers’ organisations shall enjoy adequate protection against any acts of
interference by each other or each other’s agents or members in their establishment, functioning
or administration. 2. In particular, acts which are designed to promote the establishment of
workers’ organisations under the domination of employers or employers’ organisations, or to
support workers’ organisations by financial or other means, with the object of placing such
organisations under the control of employers or employers’ organisations, shall be deemed to
constitute acts of interference within the meaning of this Article.

Article 3

Machinery appropriate to national conditions shall be established, where necessary, for the
purpose of ensuring respect for the right to organise as defined in the preceding Articles.

Article 4

Measures appropriate to national conditions shall be taken, where necessary, to encourage and
promote the full development and utilisation of machinery for voluntary negotiation between
employers or employers’ organisations and workers’ organisations, with a view to the regulation
of terms and conditions of employment by means of collective agreements.

Article 5

1. The extent to which the guarantees provided for in this Convention shall apply to the armed
forces and the police shall be determined by national laws or regulations.

2. In accordance with the principle set forth in paragraph 8 of Article 19 of the Constitution of
the International Labour Organisation the ratification of this Convention by any Member shall
not be deemed to affect any existing law,award,custom or agreement in virtue of which members
of the armed forces or the police enjoy any right guaranteed by this Convention.

Article 6

This Convention does not deal with the position of public servants engaged in the
administrationof the State, nor shall it be construed as prejudicing their rights or status in any
way.

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Article 7

The formal ratifications of this Convention shall be communicated to the Director-General of

the International Labour Office for registration.

Article 8

1. This Convention shall be binding only upon those Members of the International Labour
Organisation whose ratifications have been registered with the Director-General.
2. It shall come into force twelve months after the date on which the ratifications of two
Members have been registered with the Director-General.
3. Thereafter, this Convention shall come into force for any Member twelve months after the
date on which its ratification has been registered.

Article 9

1. Declarations communicated to the Director-General of the International Labour Office in

accordance with paragraph 2 of Article 35 of the Constitution of the International Labour
Organisation shall indicate:

(a) the territories in respect of which the Member concerned undertakes that the provisions of the
Convention shall be applied without modification;

(b) the territories in respect of which it undertakes that the provisions of the Convention shall be
applied subject to modifications, together with details of the said modifications;

(c) the territories in respect of which the Convention is inapplicable and in such cases the
grounds on which it is inapplicable;

(d) the territories in respect of which it reserves its decision pending further consideration of the
position.

2. The undertakings referred to in subparagraphs (a) and (b) of paragraph 1 of this Article shall
be deemed to be an integral part of the ratification and shall have the force of ratification.

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3. Any Member may at any time by a subsequent declaration cancel in whole or in part any
reservation made in its original declaration in virtue of subparagraph (b), (c) or (d) of paragraph
1 of this Article.

4. Any Member may, at any time at which the Convention is subject to denunciation in
accordance with the provisions of Article 11, communicate to the Director-General a declaration
modifying in any other respect the terms of any former declaration and stating the present
position in respect of such territories as it may specify.

Article 10

1. Declarations communicated to the Director-General of the International Labour Office in

accordance with paragraph 4 or 5 of Article 35 of the Constitution of the International Labour
Organisation shall indicate whether the provisions of the Convention will be applied in the
territory concerned without modification or subject to modifications; when the declaration
indicates that the provisions of the Convention will be applied subject to modifications, it shall
give details of the said modifications.

2. The Member, Members or international authority concerned may at any time by a subsequent
declaration renounce in whole or in part the right to have recourse to any modification indicated
in any former declaration.

3. The Member, Members or international authority concerned may, at any time at which the
Convention is subject to denunciation in accordance with the provisions of Article 11,
communicate to the Director-General a declaration modifying in any other respect the terms of
any former declaration and stating the present position in respect of the application of the
Convention.

Article 11

1. A Member which has ratified this Convention may denounce it after the expiration of ten
years from the date on which the Convention first comes into force, by an act communicated to
the Director-General of the International Labour Office for registration. Such denunciation shall
not take effect until one year after the date on which it is registered.

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2. Each Member which has ratified this Convention and which does not, within the year
following the expiration of the period of ten years mentioned in the preceding paragraph,
exercise the right of denunciation provided for in this Article, will be bound for another period of
ten years and, thereafter, may denounce this Convention at the expiration of each period of ten
years under the terms provided for in this Article.

Article 12

1. The Director-General of the International Labour Office shall notify all Members of the
International Labour Organisation of the registration of all ratifications, declarations and
denunciations communicated to him by the Members of the Organisation.

2. When notifying the Members of the Organisation of the registration of the second ratification
communicated to him, the DirectorGeneral shall draw the attention of the Members of the
Organisation to the date upon which the Convention will come into force.

Article 13

The Director-General of the International Labour Office shall communicate to the Secretary-
General of the United Nations for registration in accordance with Article 102 of the Charter of
the United Nations full particulars of all ratifications, declarations and acts of denunciation
registered by him in accordance with the provisions of the preceding Articles.

Article 14

At such times as it may consider necessary the Governing Body of the International Labour
Office shall present to the General Conference a report on the working of this Convention and
shall examine the desirability of placing on the agenda of the Conference the question of its
revision in whole or in part.

Article 15

1. Should the Conference adopt a new Convention revising this Convention in whole or in part,
then, unless the new Convention otherwise provides:

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(a) the ratification by a Member of the new revising Convention shall ipso jure involve the
immediate denunciation of this Convention, notwithstanding the provisions of Article 11 above,
if and when the new revising Convention shall have come into force;

(b) as from the date when the new revising Convention comes into force, this Convention shall
cease to be open to ratification by the Members.

2. This Convention shall in any case remain in force in its actual form and content for those
Members which have ratified it but have not ratified the revising Convention.

Article 16

The English and French versions of the text of this Convention are equally authoritative.

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