This chapter will enable students to:
- Explain the extent and causes of multiplicity of unions and trade union rivalry in the country
- Understand the consequences of trade union rivalry in the country
- Describe the provisions of the Code of Conduct relating to the control of inter-union rivalry
- Understand the need for making recognition of representative unions statutorily compulsory
- Describe the efforts made in the country relating to recognition of representative trade unions
- Explain the criteria to be adopted for determining the representative character of unions and their relative advantages and disadvantages
- Describe the recommendations of the National Commissions on Labour relating to the determination of representative characters of unions
- Identify the rights and obligations of recognized and minority unions
Status of Collective Bargaining in India
In the United States, United Kingdom and a number of Western countries, where trade unions are firmly entrenched, collective bargaining has been playing a very important role in determining the terms and conditions of employment of their members. In these countries, there are statutory regulations for determining the representative character of unions. The union which is declared most representative on the basis of election is designated as bargaining agent for the purpose of bargaining with the employer. If a union secures the prescribed minimum percentage of votes, it may be designated as sole bargaining agent. Other minority unions are generally refrained from negotiating with the employer over terms and conditions of employment of the workers of the unit concerned. Designation of the bargaining agents may take place at various levels such as plant, company, industry, locality or employer.
In India, the trade union and industrial relations legislation provides for the registration of trade unions, but does not make recognition of representative unions statutorily binding on the employer. With a few exceptions, recognition of representative unions for the purpose of negotiating with the employers is done mainly on the basis of convention or non-statutory instruments such as Code of Discipline. In a situation where there is an acute problem of multiplicity of unions and that of factionalism in the same union at almost all levels of union organization, the employers are generally bewildered as to which union they should accord recognition. Resolution of the rival claims of competing unions often becomes a Herculean task. The provision of compulsory adjudication for the settlement of industrial disputes has further added to the complexity of the problem.
In spite of the various sorts of difficulties involved, unions in the country are recognized by the employers in a more or less confused and haphazard manner. The problem has been debated and deliberated upon at various tripartite platforms, but no acceptable solution has yet emerged. A workable and effective solution of the problem is not only desirable but also a necessity for the elimination of uncertainties and confusion associated with the problem.
One of the burning problems facing the Indian trade union movement, the government, and the employers is to evolve a satisfactory and commonly accepted way to settle the competitive claims of rival unions for recognition. The attempts to solve the problem so far, has brought disrepute to the government labour policy and has given rise to suspicion and accusations.
The Trade Unions Act, 1926 provides that any seven persons can form a union and apply for registration (see Chapter 20). A registered trade union becomes a legal entity and is vested with certain immunities from civil and criminal liabilities in the conduct of trade disputes. The Indian Constitution includes the right to form associations under the fundamental rights, that is, workers are free to form their trade unions without any legal hindrance. It is not even necessary for a trade union to be registered in order to be recognized by the employer. This legal position, though facilitating their formation and growth, is a source of division and sub-division in the trade unions. Splits become easy and even small differences of opinion lead to the formation of rival unions which secure registration and become legal entities. In the context of political unionism this easy way of securing a legal status further facilitates the emergence of rival unions. They all start competing for recognition by the employers.
The Trade Unions Act, though providing for registration, does not say anything with regard to recognition. The employers are legally free to recognize one or more union of their choice or even not recognize any at all. As soon as a union secures recognition, it is resisted by the rivals, which ultimately disturbs industrial relations. In many cases, employers still resist recognition. In others, an employer might want to recognize a union, but gets confused regarding the choice of unions. Usually, he is guided by his own political belief and the political affiliation of the union irrespective of its representative character.
Thus, the multiplicity of trade unions in the same bargaining unit gives the employer an opportunity to recognize a union of his own choice, without the workmen having an opportunity of being represented by a union of their own choosing. In the context of the multiplicity of rival trade unions, collective agreements and collective bargaining cease to have much meaning. What is done by one union is sought to be undone by others. No sooner than the ink is dry on an agreement, fresh issues are raised by the rivals and strikes take place. Strikes are very frequent either for securing recognition or for the withdrawal of recognition secured by the rivals or for undoing the terms of an agreement with the rival. Therefore, the question of recognition of unions needs an effective solution both from the point of view of resolving inter-union conflicts and of ensuring that collective agreements reflect the wishes of the workers. It is relevant here to make a mention of the Code of Conduct which was intended to mitigate the evil of trade union rivalry in the country.
Code of Conduct and Trade Union Rivalry
The question of the evils flowing from trade union rivalry in the country was discussed at the 16th session of the Indian Labour Conference held on May 19–20, 1958. With a view to mitigate the evil, representatives of the central federations of trade unions were requested to work out the steps to be taken to solve the problem. Accordingly, the representatives of four central federations, namely, Indian National Trade Union Congress (INTUC), All India Trade Union Congress (AITUC), Hind Mazdoor Sabha (HMS) and United Trades Union Congress (UTUC) deliberated over the matter on May 21, 1958 and adopted the Code of Conduct which contained the basic principles to be observed by them for maintaining harmonious inter-union relations. The contents of the Code are as follows:
- Every employee in an industry or unit shall have the freedom and right to join a union of his choice. No coercion shall be exercised in this matter.
- There shall be no dual membership of unions. (In the case of Representative Unions, this principle needs further examination).
- There shall be unreserved acceptance of, and respect for, democratic functioning of trade unions.
- There shall be regular and democratic elections of executive-bodies and office-bearers of trade unions.
- Ignorance and/or backwardness of workers shall not be exploited by any organization. No organization shall make excessive or extravagant demands.
- Casteism, communalism and provincialism shall be eschewed by all unions.
- There shall be no violence, coercion, intimidation or personal vilification in inter-union dealings.
- All Central Labour Organizations shall combat formation or continuance of company unions.1
Code of Conduct
A code worked out by four central federations of trade unions namely, INTUC, AITUC, HMS and UTUC at the instance of the Indian Labour Conference in 1958 which enunciates the basic principles to be observed by them for maintaining harmonious inter-union relations.
It was also generally felt that machinery consisting of representatives of the four central labour organizations, with an independent chairman might be set up for implementing the Code of Conduct. However, no such machinery could be set up.
Although, in the beginning, the parties to the Code, that is, INTUC, AITUC, HMS and UTUC showed enthusiasm towards concretizing the principles laid down in the Code, they increasingly found it difficult to abide by them. Adherence to the Code could adversely affect their membership, strength and influence in the existing industrial relations environment. With splits in the existing political parties and the formation of new ones, the trade union movement in the country also started witnessing splits and divisions and the establishment of new central federations of trade unions (see Chapter 5). Most of the central federations of trade unions established subsequently often asserted that they were not parties to the agreement leading to the adoption of the Code, and as such, it was not binding on them. Competition among political parties and central federations of trade unions, ease in establishing trade unions and getting them registered under the Trade Unions Act, 1926, absence of statutory provision for determining the representative character of trade unions and recognition of representative unions, and absence of legal check on unfair labour practices and a host of other factors led to open defiance of the Code, which ultimately fell into disuse.
A union representing majority of workers in an establishment, industry or region for the purpose of recognition as bargaining or negotiating agent.
Trade unions under the control and dominance of employers.
Unfair Labour Practices
Such practices of employers and also of trade unions which are undesirable and harmful on established norms, many of which are prohibited under law.
Should Recognition be Made Compulsory
Historically, trade unions have extracted recognition from reluctant employers on the basis of their strength and use of economic pressures. Recognition of unions in the early stages tended to be voluntary for the employers who decided to recognize or not to recognize the unions, on the basis of an appreciation of the risks of following either of the courses. Gradually, in many countries, the state has imposed legal obligations upon the employers to recognize trade unions as a part of general policy of ensuring to the workmen the right to bargain collectively. The National Labour Relations Act, 1935 of USA is an example par excellence of the trend of making recognition of trade unions statutorily obligatory on the employer. In Great Britain, the Industrial Relations Act of 1971 also recognized the claim of a trade union to have exclusive right as the ‘sole bargaining agent’. The National Industrial Relations Court was empowered to decide cases of recognition of sole bargaining agents, in the event of the failure of the parties to decide the issues themselves either on their own or with the help of conciliation. As explained in Chapter 3, the existing Trade Union and Labour Relations (Consolidation) Act, 1992 and Employment Relations Act, 2004 also provide for compulsory recognition of representative union.
A trade union or a group of trade unions or a committee of workers entitled to bargain collectively with the employer.
In India, the question still continues to be debated and many persons appear to be against any legal imposition in this regard. It is argued that a satisfactory relationship between the employer and the union of his workmen depends on mutual goodwill and appreciation. A legal obligation may bring about a formal recognition of the union but cannot create good faith and goodwill. Therefore, according to this view, the issue of recognition of trade unions should be best left to the unions and employers who should work out a satisfactory relationship on the basis of mutual understanding.
But it has to be borne in mind that though there is a growing tendency for the employers to recognize trade unions, there are many employers who are still reluctant to do so. Further, in a situation characterized by multiplicity of rival unions, leaving the employer free to recognize a union means leaving him free to choose any one of the competing unions. It may happen that the employer, in making his choice, chooses a union more amenable to his influence and control, rather than a union which voices the aspirations of the workers. In such cases the strifes and strains generated on account of non-recognition or recognition of a company-dominated union prove costly to the employers and the employees as well as to the society. If adjudication is a desirable policy in the interest of the maintenance of industrial peace, the same interest demands that the recognition of trade unions be made legally obligatory. The Indian Trade Unions (Amendment) Act, 1947 tried to make the recognition of unions compulsory for the employers, but the Act could not be brought into force. However, in some states like Maharashtra, Madhya Pradesh, Gujarat and Rajasthan, compulsory recognition of unions has been in practice for quite some time. Recognition of unions on a compulsory basis has also found favour with the first National Commission on Labour which has said, ‘It would be desirable to make union recognition compulsory under a Central law, in all undertakings employing 100 or more workers, or where the capital invested is above a stipulated size.2 The Maharashtra Recognition of Trade Unions and Prevention of Unfair Practices Act, 1971 also deals with varions aspects of recognition of trade unions.
Which Unions to be Recognized?
The moment one thinks of making the recognition of unions obligatory, one comes across the question of deciding as to which one of the many unions clamouring for recognition, is to be recognized by the employers. Statutory and non-statutory measures, though of a limited character, have been adopted to settle the issue but the problem still continues to agitate the minds of all concerned.
Bombay Industrial Relations Act, 1946
The Act was the first legislative measure in the country to find out a solution for the competing claims of the rival unions. The Act provides for the classification of registered trade unions as: (i) ‘Representative Unions’ (having a membership of not less than 15 per cent employees in any industry in a local area), (ii) ‘Qualified Unions’ (5 per cent membership in any industry in a local area), and (iii) ‘Primary Unions’ (15 per cent of employees in an undertaking). The order in which the unions in the local area are to get recognition is the same as indicated above. The Act confers upon unions in each category certain privileges and imposes certain obligations on them. In case no union has recognized status, workers may elect their own representatives or authorize the Government Labour Officer to speak on their behalf to the employer.
Similar provisions for recognition have been incorporated in the Acts of Madhya Pradesh, Gujarat and Rajasthan.
Indian Trade Unions (Amendment) Act, 1947
Though the Act provides for the recognition of a trade union by the employer under orders of a Labour Court, the Act does not debar the recognition of more than one union. Under the Act, the Labour Court is expected to pass an order on the application of a trade union. The Act further lays down the conditions which a trade union must fulfil in order to be entitled for recognition under the orders of a Labour Court. If there are two or more unions, each one fulfilling the conditions laid down, all become entitled to recognition. Directly, the Court is not entitled to pass judgement on the competitive claims of rival unions.
However, indirectly, the Labour Court may have to decide the acceptability of rival claims. One of the conditions which a trade union, in order to be entitled to recognition, must fulfil is that ‘it is representative of all the workmen employed by the employer in that industry or those industries.’ It is the duty of the Labour Court to investigate whether the applicant union fulfils this condition. Naturally, if after investigation, the Labour Court comes to the conclusion that a particular union is representative of all the workmen employed by the employer, it cannot simultaneously hold that another union is also equally representative of all workmen. Therefore, it appears that the Labour Court can order only one union at a time to be recognized by the employer. Had this Act been implemented, it would have provided a limited solution to the problem of competing claims for recognition. Nevertheless, the employer could have continued to recognize more than one union, if he so chose. The only obligation upon the employer under the Act is to recognize a union if so ordered by a Labour Court, but there is no corresponding obligation not to recognize other unions.
Further, under the Act, it is for the Labour Court to devise its own method of finding out the representative character of a union. At the same time, the Labour Court is required under the Act to take into consideration, though not bound by it, the percentage of union membership to the total number of workmen. It is not known what methods the Labour Courts would have adopted to verify the representative character, but the Act hinted that the percentage of membership could be one of the bases for deciding this character. As stated earlier, the Act was never implemented.
The Trade Union Bill of 1950 also contained new provisions relating to registration of trade unions, their recognition, some unfair labour practices and inspection of trade union books and documents. The Bill could not be passed owing to the dissolution of legislature and no effort was made it revive it. Another amending Bill was introduced in Parliament in 1982. This Bill contained provisions relating to machineries for the resolution of inter and intra-union disputes, modification in the procedures for registration and cancellation of registration, reduction in the proportion of outsiders in the executive of trade unions. However, this Bill also could not be passed. An amendment of the Industrial Disputes Act in 1982 incorporated an exhaustive list of unfair labour practices on the part of employers and workmen and their organizations. This list made it an unfair labour practice on the part of employers and their organizations ‘to refuse to bargain collectively, in good faith, with the recognized trade unions.’ Similarly, it made it an unfair labour practice for a recognized union to refuse to bargain collectively with the employer. The amendment does not, however, provide any procedure for the recognition of representative unions nor does it make recognition mandatory.
Attempts in Bihar
The first attempt in evolving a non-statutory method of settling claims of rival unions was made by the Bihar Central (Standing) Labour Advisory Board in 1952.3 The resolution adopted in the meeting provides:
- Any number of unions can be registered in a plant, but before registering a new one, the Registrar of Trade Unions will examine carefully the claims of the one claiming registration. (Under the Trade Unions Act, 1926, any union representing seven members can be registered.)
- The employer must recognize at least one of the registered unions, and in granting this recognition he must take care that he recognizes the one most representative of the workmen. The employer should deal with the recognized union on questions affecting all workmen, such as bonus, hours, leaves, and so on but he should be willing to hear individual grievances presented on behalf of its members by minority or rival unions.
- When there is a dispute about the representative character of unions for the purposes of recognition, the Labour Commissioner will try to determine the representative character after taking into consideration the membership and such other evidence as may be produced before him.
- Voting by secret ballot will be taken only in extreme cases, and as a last resort. Voting, if necessary, will be restricted only to members of the registered unions and the rival unions should secure at least 75 per cent of the votes of all member workmen before it can dislodge the existing recognized union. Casual and temporary employees of less than twelve months’ continuous service are excluded from voting.
- Recognition granted to the most representative union as a result of a vote is not to be disturbed for one year.
Under the terms of the Resolution, the Labour Commissioner, Bihar has been trying to resolve disputes about the representative character of unions for purposes of recognition. In the beginning even resorts to secret ballots were taken in some cases. Ballots were confined only to the members of registered unions as demanded by the Resolution. However, dissatisfaction with the procedure continued. Therefore, in 1959, another Resolution was adopted by the Government of Bihar,4 taking into account the decisions of the Indian Labour Conference held at Nainital in May, 1958 and those of the 17th Meeting of the Bihar Central (Standing) Labour Advisory Board held in February, 1959. The new Resolution mostly reiterated the principles adopted by the 1952 Resolution; the important change being the increase in the period from one year to two years for which recognition once granted was to continue and the secret ballot to be conducted, notwithstanding any disagreement or non-participation of any of the parties to the dispute.
Attempts at the Centre
At the central level, the 16th session of the Indian Labour Conference held at Nainital in May, 1958 adopted the following set of criteria under the Code of Discipline for the recognition of trade unions:
- Where there is more than one union, a union claiming recognition should have been functioning for at least one year after registration. Where there is only one union, this condition would not apply.
- The membership of the union should cover at least 15 per cent of the workers in the establishment concerned. Membership would be counted only of those who had paid their subscriptions for at least three months during the period of six months immediately preceding the reckoning.
- 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 per cent of the workers of that industry in that area.
- When a union has been recognized, there should be no change in its position for a period of two years.
- In case of several unions in an industry or establishment, the one with the largest membership should be recognized.
- 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 per cent or more of the workers of that establishment, it should have the right to deal with matters of purely local interests, such as, for instance, the handling of grievances pertaining to its own members. All other workers who are not members of that union might either operate through the representative union for the industry or seek redress directly.
- In the case of trade union federations not affiliated with any of the four central labour organizations, the question of recognition would have to be dealt with separately.
- Only unions which observed the Code of Discipline would be entitled to recognition.5
Recognition of Majority Union and Problems Involved
In spite of these resolutions and enactments, multiplicity of unions and mutual rivalry continue unabated. The need for evolving a solution for resolving competing claims is recognized on all sides. It is also recognized that with the constitutional guarantee of the freedom of association, formation of rival unions cannot be legally prohibited. What is needed in this connection is that one of the rivals be selected as the sole bargaining agent to represent the workmen for the purposes of collective bargaining, so that industrial relations at the plant or industrial level could become a little more stable. A parallel can be drawn from the political structure of the country. There are rival political parties claiming and trying to gain popular support in order to be able to form the government either at the centre or in the states or both. The Constitution provides for periodic general elections and the party or parties securing majority of seats in the legislature become entitled to form the government for the period they continue to enjoy the majority support. The rest of the parties remain in opposition trying to obtain majority at the next elections—periodic elections provide a peaceful method of settling the competing claims of rival political parties. The rival trade unions may be compared to the rival political parties. Each union, like a political party, is trying to secure recognition by the employer in order to be able to form the government of the enterprise jointly with the employer. How to decide which of the unions should be vested with this privilege? This is the crux of the problem of trade union recognition in the situation where rivalry exists.
There are three important aspects of this problem: (i) how to decide the representative character of rival unions? (ii) what should be the size and nature of the unit for the purpose of determining the representative character of the unions? and (iii) what should be the role of the minority unions, if the majority union is to be recognized?
Criteria to Determine the Representative Character of Unions
Two methods, namely, verification of membership and secret ballot, have generally been suggested and occasionally adopted for the purpose of determining the representative nature of the rival unions. The respective membership figures of rival unions may indicate their relative representativeness. However, the way membership figures are recorded, union dues collected and accounts of income and expenditure maintained, leaves much room for doubt. In many cases, this emphasis on membership figures induces the trade unions genuinely to build and increase their regular membership, but in many other cases, there is a competitive tendency to inflate the membership artificially and in a large number of cases, there is duplication of membership. Even if the membership figures are taken at their face value, if necessary with proper verification, they can serve the limited purpose of only roughly determining the relative representative character of the competing unions.
The supporters of the verification of the fee-paying membership, while making submissions before the first NCL, held that a regular paying membership would ensure financial viability of a union and enable it to discharge its responsibilities effectively. They conceded that membership could be open to inflation and even manipulation, but according to them, the remedy would be to introduce a greater measure of vigilance in verification arrangements and, if necessary, by entrusting them to an impartial authority. They further claimed that regular payment of union dues, on which verification relied, would itself be an open vote of workers in the favour of a union which submitted to verification. As pointed out earlier, this argument is not tenable in view of the fact that membership records and accounts of subscriptions are usually in an unsatisfactory state and at the same time, the method does not give any guarantee against the adoption of questionable ways of boosting membership. Moreover, the procedure involved in verification often involves considerable delay. It has further been contended that sampling method, however effective in other aspects of human activity, should not be used in the sensitive area of union recognition.6
It may be correct to some extent to rely on the membership figures of the INTUC, the AITUC, the BMS and the CITU to decide as to which of these federations has the largest membership for the purpose of representation at ILO. But to what extent is it fair to rely on the membership figures for determining the sole bargaining agent from amongst the unions operating at the plant level, each one claiming only a fragmentary percentage of the total employees? Does it appear fair again to say that a union claiming 25 per cent of workers as members should become the sole bargaining agent for certain purposes in preference to the others which claim a slightly smaller percentage?
It is possible in many cases that no union is able to establish its claim to have enrolled the majority of workmen, at a particular work-place. The system of verification will decide only the relative representativeness. But what is needed for stability in industrial relations is that the recognized union functioning as a bargaining agent should be able to claim the support of at least the majority of workmen, if not of the overwhelming majority. It is the representative union alone which can be expected to make a commitment on behalf of the workers, and also to stand by it. The method of verification will not be able to establish this. However, in the representational election, the majority of workmen may collectively vote for a union, though individually, they may be members of different minority unions. Therefore, in a situation characterized by the existence of minority unions only, plebiscite through secret ballot appears to be the only correct method of establishing the representative character of a union.
In India this practice has not been tried except in a few exceptional cases. The main argument against secret ballots, whether open to all workers or only to union members, for the purpose of determining the representative character of a union, centres round the fear of the workers being misled by wild and irresponsible promises. It is argued that illiterate and ignorant workers, not knowing where their true interests lie, may be swayed by irresponsible promises, powerful speeches and tirade against the employers, government and rivals—tactics used by unscrupulous unions to win the secret ballot. Under such conditions, the unions which are mild in their approach, responsible and responsive in their behaviour will suffer a serious handicap.
Perhaps, these arguments do contain a grain of truth, but they rest on the gullibility of the Indian workers who, it is apprehended, can be easily misled. While making their submissions before the first NCL, the opponents of secret ballot denounced it on the ground that ‘it would introduce topical issues about which a union may not be directly concerned as a union and create an atmosphere with some leaders making promises which they will never fulfil.’7 According to them, workers in our country ‘are not yet used to making a rational choice of what is good and creative when confronted with demagogic slogans and rousing of emotional sentiments which can be whipped up over any industrial or non-industrial issue.’8
If the aforesaid arguments were correct, the same wild promises would have brought the largest membership to the left-wing unions. If irresponsible promises can sway workers to vote one way, they can also sway them to enroll as members. On the basis of verified membership, the INTUC and subsequently the BMS had the largest strength (see Chapter 5). How is it that INTUC and the BMS with their mild and responsible approach had been able to surpass the left-wing unions in the total membership enrolled? The workers choose one union amongst many for the purpose of becoming its members. If this choice is conscious, the same consciousness will prevail at the time of elections for deciding the representative character. Further, the Indian workers, like all other citizens of the country, enjoy the right to vote in the elections for the state and central legislatures. If vesting the workers with the right to decide the representative character of unions through a secret ballot is dangerous, permitting the same workers to exercise the right to vote in political elections will, perhaps, be no less dangerous.
While submitting before the first National Commission on Labour, supporters of secret ballot put forth emphatically that it was the most democratic way of expressing a choice. ‘Processes similar to those used in choosing the government of a country are well recognized by workers; the basis of representation in industrial democracy need be no different from that of any other institution … the Indian worker is now grown up to know what is good for him and to make a rational choice. If he can be discerning in the choice of political leaders, it would not be right to deny him the responsibility of choosing representatives who will give him economic satisfaction. The fear of wild promises and rousing of passions swaying the worker can be exaggerated. Such false promises cannot be expected to win ballots all the time.’9
In view of what has been said in the preceding discussions it is clear that the acceptance of the principle of secret ballot for determining the representative character of unions is democratic as well as practical in the Indian context of today.
However, there is one further aspect of this problem. If it is accepted that a plebiscite is a better method for the determination of the bargaining agent, which workers should be entitled to participate in the plebiscite and at what level the representational plebiscite should take place?
Amongst the supporters of the plebiscite, there are two schools of thought. One claims that only union members should be allowed to participate in such plebiscites. According to the other, plebiscite should be open to all workers, irrespective of their union membership. A collective agreement is binding on all the workmen—members and non-members alike. If this be so, the non-union members working in a plant or industry should also have a say in deciding the union which is going to represent them and also bind them by a collective agreement. Under the existing Indian conditions, when, for various reasons, the majority of workers still continue to be unattached to any of the unions, it becomes all the more necessary that representational elections should not be confined to the members alone.
The reasons that have prevented the majority of Indian workers from becoming trade union members are many. Some of the workers may not want to undergo the risk of victimization and coercion which are still attendant upon union members; a few others may not want to pay and perhaps cannot afford to spare even the very low union dues; others may be deterred from taking sides between competing rival unions; and still many others may not have, as yet realized the importance of the trade union as an effective instrument of protection. Many of the unions are also not able to conduct massive organizing drives for they do not have a sufficient number of trained active workers to contact the mass of workmen, for enrolling them as union members.
It does not, however, mean that when opportunities are given to the non-members, they will not be able to make a reasonable choice between two or more unions to represent them for the purpose of collective bargaining. Any arrangement which neglects the wishes of the vast bulk of the non-union members will prove ineffective and detrimental to the maintenance of peaceful industrial relations. This has been demonstrated on a number of occasions. If it is accepted that non-members employed in a particular establishment should also have a say in determining the bargaining agent, then the method of secret ballot, should also be accepted for achieving the purpose.
First National Commission on Labour (1969) on Recognition of Trade Unions
Here it is pertinent to refer to the recommendations of the first NCL in this regard. The Commission noted serious differences over the manner in which the representative character of a union for the purpose of giving recognition is to be determined. Both the views, that is (i) retaining the system of verification of the fee-paying membership of the unions, and (ii) elections by secret ballot, were put forth before the Commission with equal emphasis. The Commission, after carefully examining the pros and cons of both the views, held:
Much of the opposition to membership verification today is the outcome of fears of manipulation and interference by the administrative authority, fears which are not always unfounded. It is reasonable to expect that verification will become more acceptable, if entrusted to an independent quasi-judicial authority. Similarly, election by secret ballot may find favour with those who now oppose it, when an independent authority conducts it, strictly according to accepted regulations. The best course, therefore, seems to be to leave the choice of method, in any particular case, to the discretion of an independent authority. We suggest that this task be entrusted to the Industrial Relations Commission (s) proposed by us. The Commission will have the power to decide the representative character of unions either by examination of membership records, or if it considers necessary, by holding an election through secret ballot open to all employees.10 We are confident that this proposal would be welcomed by all parties. The Commission would deal with the recognition work in its various aspects: (i) determining the level of recognition—whether plant, industry, centre-cum-industry—to decide the majority union, (ii) certifying the majority union as the recognized union for collective bargaining, (iii) generally dealing with other related matters. The union thus recognized will retain its status for a period of two years and also thereafter till its status is effectively challenged.11
As regards the qualifications for recognition, the Commission made the following recommendations:
A trade union seeking recognition as a bargaining agent from an individual employer should have a membership of at least 30 per cent of the workers in the establishment. If it is for an industry in a local area, the minimum membership should be 25 per cent. Where more unions than one contend for recognition, the union having a larger following should be recognized.12
The Second National Commission on Labour (2002) on the Recognition of Trade Union
The second National Commission on labour also considered the question of recognition of representative union and the manner of deciding the rival claims. While recognizing that bilateral interaction, dialogue and negotiations could play a significant role in promoting harmonious industrial relations, the commission expressed concern over the evils flowing from the fragmented trade union movement on political lines. The commission asserted, ‘… success in bilateral negotiations will depend on the strength of the union that speaks and acts on behalf of the workers—the more fully the organization represents the workers the more effective will it be in bargaining or negotiating on behalf of the workers.13 Those who advocated the adoption of secret ballot as the method for determining the representative character of unions placed the following arguments before the commission in its favour:
- It is in conformity with the practice in election to legislatures including parliament.
- It assures a democratic choice.
- The secrecy involved in the method provides protection to workers from victimization by management and also by rival unions.
- It is a more effective method of verifying support.
- The extent of authorization by workers to deduct union subscription from their wages reflects the respective strength of unions.
- The system ascertains the continued support for the unions over a longer period of time.
- Membership of the union for a long period is a more reliable index of the union’s strength.
- It does not involve special expenditure which is involved when the method of secret ballot is adopted.
- Campaigns associated with secret ballot may vitiate atmosphere, generate feelings of hatred and may lead to violent clashes, but these fears do not arise when check-off system is adopted.
The Commission, after considering the pros and cons of both the methods recommended the adoption of the check-off system in establishments or undertakings employing 300 or more workers and secret ballot in those employing less than 300 workers for determining the negotiating agent. The main recommendations of the Commission in this regard are incorporated in the draft ‘Law on Labour Managements Relations’ proposed by it.
The recommendations of the Commission in regard to establishments or undertakings employing 300 or more workers are as follows:
- In establishments or undertakings employing 300 or more workers, every member of a registered trade union is required to authorize his employer to deduct union membership fee from his wages and deposit the same in the account of the union concerned. Such authorizations have to be collected by the union and handed over to the employer who is required to maintain a record of the authorizations.
- Where a registered trade union has received such authorization from 66 per cent or more of workers in its favour and it is the only trade union functioning in the establishment or undertaking, it can apply to the appropriate Labour Relations Commission for certification as the ‘single negotiating agent’ and the commission will certify it as such.
- Where no union has received authorization from 66 per cent or more of workers in the establishment or undertaking, the unions having received not less than 25 per cent authorization may apply to appropriate Labour Relations Commission for certification, as constituents of the ‘negotiating college’ which have to be certified as such by the Commission.
- The number of representatives in both the cases is to the determined in the prescribed manner based on the check-off system.
The recommendations of the Commission in regard to establishments or undertakings employing less than 300 workers are as follows:
- In establishments or undertakings employing less than 300 workers, any party may apply to the appropriate Labour Relations Commission for holding secret ballot for determining the negotiating agent instead of the ‘check-off’ basis. If the Commission orders for a secret ballot to be held, all the workers of the establishment or undertaking concerned will be entitled to cast their votes.
- In case there is only one registered trade union in it or where a union secures 66 per cent or more of workers, it will be certified as the ‘single negotiating agent’.
- Where no union has secured votes of 66 per cent or more of workers in its favour, all the unions which have secured at least 25 per cent of votes will be included as constituents of certified ‘negotiating college’.
- Where there is no union in the establishment or undertaking a ‘negotiating committee’ consisting of the prescribed number of representatives elected through secret ballot will be certified as negotiating agent.
Under the ‘check-off’ system, the employer undertakes on the basis of collective agreement or other device, to deduct union fees from the workers’ pay and transfer the same to the union account.
Single Negotiating Agent
A single trade union, a group of trade unions, or a group of workers’ representatives which alone is authorized to negotiate with the employer and enter into collective agreement with him.
A group of trade unions which can be designated as negotiating or bargaining agents.
All the above categories of negotiating agents ‘single negotiating agent’, ‘negotiating college’ and ‘negotiating committee’ certified on the basis of ‘check-off’ system or secret ballot will have a tenure of 4 years from the date of their certification.
In industries where there is a practice of negotiations at the industry-cum region or industry-cum-national level, such a practice will continue to operate, but the level of negotiations will be decided by the appropriate Labour Relations Commission.
The employer of the concerned establishment or undertaking is required to recognize the certified negotiating agent, whether it is single trade union, or a college of trade unions or a negotiating committee.14
These recommendations of the Commission, if implemented, will introduce a radical change in the pattern of industrial relations and status of trade unions in the country. However, the recommendations are still under the study and examination of the government and no step has been taken so far to implement them.
Levels of Recognition
While discussing the structure of the Indian trade union movement, it has been pointed out that, as elsewhere, trade unions in the country have been formed on a variety of bases. There are craft unions at the locality and industry levels. Similarly, there are industrial unions at the plant and locality level and they have also formed their industrial federations. Therefore, the problems of union recognition automatically involve the question of deciding the levels at which the unions are to be recognized. Even if it is conceded that the union commanding the majority of employees be recognized, the issue of deciding the unit over which the majority is to be counted still remains open.
An example will clarify the various aspects of the problem. Let us take the Indian cotton textile industry. The cotton textile mills are spread over the whole of the country with a few leading centres like Mumbai, Ahmedabad, Kanpur, Sholapur, Coimbatore, Chennai and Delhi. In this industry there are many unions functioning only at the plant level, a few others at the locality level and there are federations at the industry level. A union recognized as the representative for the industry as a whole may not have much following in a particular locality; and a union recognized as the representative for a mill may not have any member in important sections of the mill which may have been organized on a craft basis. Therefore, for a craft, one union may be the majority union, for the mill another, for the locality the third one and for the industry the fourth one.
A question, then, is what should be the appropriate unit or level of recognition? If the purpose is to recognize a union which reflects the wishes of the majority of workers, the levels of recognition would keep changing according to the wishes of the workers. The workers of a particular mill organized under a separate union may rightly resent if a union, which though commanding the majority in a locality but without any following in that mill, is authorised to represent them. So again, what is the appropriate unit—the locality or the mill? If the same union which commandes the majority in the industry as a whole, also commandes majority in every centre, every mill and every craft, the question of the level at which a union has to be recognized would be of no significance. But, the likelihood of the existence of such a situation in any of the Indian industries is rare. That is why the first NCL also had to deal with this question of the level of recognition and recommended that the decision in this regard be left to the proposed Industrial Relations Commission.
The problems of union recognition in this regard are similar to the problems involved in political representation. What is called here the unit of representation is like a constituency for political elections. Students of the Indian political scene know how a political party may win the parliamentary seat, though it may lose all the assembly seats falling within that parliamentary constituency. Similarly, a political party may win the assembly seat and still lose all panchayat or panchayat samiti elections falling within that assembly constituency. With the variations in the nature and size of constituencies, the relative strength of the different parties also changes. The appropriate unit or constituency of political representation has also been a matter of controversy.
However, for political representation, the matter is not that acute because the functions and powers of the different administrative units are clearly defined and, for different purposes, different constituencies can aptly be prescribed. A local authority is vested with certain legislative and administrative powers and responsibilities only for a particular locality in respect of certain matters. Similarly, a state legislature has its own jurisdiction in matters of legislation as different from the jurisdiction of the central legislature.
If the units or levels for the union recognition could be clearly defined and demarcated for different purposes and, if the functions and responsibilities of the unions were such that could be assigned to different levels, the issues of the level of union recognition could be easily resolved. But the functions of the different unions organized on different bases are more or less the same and overlapping. A union which functions at the level of a particular locality, such as the Rashtriya Mill Mazdoor Sangh or the Girni Kamgar Union, Mumbai, performs the same functions and discharges the same responsibility as another union functioning only at the mill level, and if the issues concerning the industry in a particular locality are reserved for the union functioning at the locality level, not much is left for the union functioning at the mill level. Similarly, the issues are overlapping between the industrial federation and the locality level union. It is easier to say that the industrial federation will deal with the issues concerning the industry as a whole, the locality level union with the issues affecting the industry in that locality only, and the plant level union with the issues concerning the plant alone, but the actual demarcation becomes difficult and complicated and unions resent encroachment on their jurisdictions and powers.
If the unions recognized at higher levels become effective, the unions at the lower level run the danger of being reduced to non-entities. Wage Boards and industry level agreements have restricted the role of union at the plant level in the matter of wage fixation.15 If the federations and the locality level unions take over the issues regarding other terms and conditions of employment, the plant level unions will cease to have any effective voice in the determination of the terms and conditions of employment, which is the very foundation of the existence of a trade union.
This brings another aspect of the problem to the forefront. Will it be conducive to industrial democracy if more and more decisions regarding terms and conditions of employment are taken by persons and at centres far removed from the mass of the workers? Will it be conducive to the maintenance of industrial peace and to the establishment of cordial relations between particular employer and his employees, if both of them have little say in matters in which they are vitally interested and decisions about which are imposed from above? The convenience of negotiating an agreement and standardizing the terms and conditions of employment of the industry as a whole, may dictate the need for a centralised decision-making machinery, but this is likely to hamper initiative and emergence of industrial democracy at the local level.
In brief, while deciding the levels of union recognition, the following points will have to be borne in mind:
- As the overwhelming majority of unions in India function at the plant level, a plant will have to be the main base for union recognition.
- An appropriate balance in the matter of the level of union recognition will have to be arrived at between the need for standardizing the terms and conditions of employment for the industry as a whole, on the one side, and the need for encouraging local initiative and local democracy, on the other.
- The consideration of improving relations between the employer and his employees will also be important and care will have to be taken that they do not become completely ineffective in deciding matters which affect their relations.
Rights of Recognized Versus Minority Unions
The discussions so far have proceeded on the assumption that the law should provide for compulsory recognition of the union commanding the support and allegiance of majority of workmen in a particular unit. The next problem that immediately crops up is in regard to the respective roles of the recognized majority unions and the unrecognized minority ones, if any. It is clear that unless an understanding is reached about their respective roles, the very purpose of compulsory recognition will be defeated. There is not much controversy regarding the role of the recognized union. The Trade Unions (Amendment) Act, 1947 (unimplemented so far) said, ‘The executive of a recognized Trade Union shall be entitled to negotiate with employers in respect of matters connected with the employment or non-employment or the terms of employment or the conditions of labour of all or any of its members, and the employer shall receive and send replies to letters sent by the executive on, and grant interviews to that body regarding such matters.’ This section confers upon the recognized union the right to enter into negotiation with the employer for all or any of its members, but the recognized union does not enjoy the right to bargain on behalf of the non-member employees nor does the union become the sole bargaining representative.
The first NCL has gone a step further and has recommended conferring upon a union recognized as representative union, the right of sole representation of workers in the unit. In addition, certain other exclusive rights and facilities have been recommended by the NCL for the representative union ‘to enable it to effectively discharge its functions’. The rights include the following:
- To raise issues and enter into collective agreements with employer on general questions concerning the terms of employment and conditions of service of workers in an establishment or, in the case of a representative union, in an industry in a local area.
- To collect membership fees/subscriptions payable by members to the union within the premises of the undertaking, or demand check-off facility.
- To put up or cause to be 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 meetings, statements of accounts of its income and expenditure and other announcements which are not abusive, indecent, inflammatory or subversive of discipline.
- To hold discussions with the representatives of employees who are the members of the union at a suitable place or places within the premises of office/factory/establishment as mutually agreed upon.
- To meet and discuss with an employer or any person appointed by him for the purpose, the grievances of its members employed in the undertaking.
- To inspect, by prior arrangement, in an undertaking, any place where any member of the union is employed.
- To nominate its representatives on the grievance committee constituted under the grievance procedure in an establishment.
- To nominate its representatives on statutory or non-statutory bipartite committees, for example, works committees, production committees, welfare committees, canteen committees, and house allotment committees.16
Role of Minority Unions
One demarcation that is commonly suggested, relates to general and individual cases. It is said that the recognized majority union should deal with the general terms and conditions of employment. The minority union can be permitted to take up individual grievances in respect of the implementation of the rights, arising from an agreement or from law. In other words, it should be legitimate for minority unions to take up the complaints of their members to the employer and the government, as the case may be. The NCL considered this view-point, but rejected it under the apprehension that this would reduce the strength of the majority union. But the very fact that a minority union exists and will continue to function irrespective of the wishes of the majority union will always be threatening and will continue to be a source of irritation and friction. Therefore, minority unions will have to be integrated in the industrial relations system of the country by providing them a legitimate active role.
The right of the minority union to take up the individual grievances is also important from another view-point—the protection of the right of individual workmen. The individual workman should have the right to get his grievances resolved either through the majority union or through another union of his choice or by acting independently on his own. If the individual workmen are given this right, the corollary would be that it would be legitimate for minority unions to take up such grievances, so long as any adjustment of the grievances is not inconsistent with the provisions of an agreement with the majority union.
Should minority unions be permitted to give a call for strike? Should they have the right to collect union dues, put up notice boards and display notices on the work-premises? Minority unions, so long as their role is limited to taking up individual grievances, cannot be permitted to call strikes. But at the same time, they can be allowed the facilities to put up notices and collect union dues on work-premises provided they can demonstrate that they possess the strength prescribed for the purpose.
The second National Commission on Labour (2002) enumerated the rights of the certified negotiating agent and suggested their incorporation in legislation. These are as follows:
- To approach the employer in regard to the general matters concerning employment or non-employment or terms of employment or conditions of service of workers concerned, commence negotiations enter into collective agreement or settlement, and to represent workers before authorities in industrial disputes.
- To give call of strike.
- To obtain accommodation from the employer for its office.
- To put up notice-board on the premises of the establishment, affix notices relating to meetings, its accounts and other statements or announcements not subversive of discipline.
- To hold discussions with workers of the establishment with the prior intimation to the employer.
- To hold discussions with the employer or his nominee for redressing the grievances of the workers and on matters relating to finance and economy of the establishment or undertaking.
- To seek and receive information regarding the finance and economy of the establishment with a view to making suggestions to safeguard the interests of workers and improving the efficiency of the establishment.
- To inspect with prior arrangement with the employer books of accounts maintained.
- To nominate workers’ representatives on joint committees such as shop floor council, establishment council, board of management, grievance redressal committee contemplated under the proposed law, and on canteen committee, or welfare committee.
- To represent workers of the undertaking before any authority contemplated under the Act.
- To collect sums payable by members under the check-off system.
- To exercise other prescribed powers.17
Rocognized unions can also be allowed the facilities to put up notices and collect union dues on work-premises provided they can demonstrate that they possess the strength prescribed for the purpose.
The second NCL (2002) has also specified certain rights of the minority unions. According to the Commission a trade union which has not been certified a negotiating agent or has not been included in the negotiating college but has secured 10 per cent or more of votes in secret ballot or 10 per cent or more of authorizations under the check-off system will have the rights (i) to represent its members in individual disputes before authorities contemplated under the proposed law, (ii) to take up the matters of its members with the management, (iii) to authorize the employer to deduct union subscriptions from the wages of its members and (iv) to exercise other prescribed rights.18
Whatever may be the legal and institutional arrangement dealing with the problems of rivalry and rival unions, no solution can come unless the minority union recognizes that: (i) there is a majority union; (ii) the majority union has a certain legitimate role to play; and (iii) the minority union, so long has it is in minority, has only a restricted role. Similarly, the majority union will have to recognize that the minority union has the right to strive to become the majority union by serving its members in all legal ways. However, this mutual recognition will come only when the majority status is really an earned status and not a conferred one by political manoeuvering.
- Multiplicity of trade unions and union-rivalry has been a highly disturbing feature of the Indian trade union movement. These have come to exist at all levels of union-organization—plant, establishment, locality, region, industry and even the nation. The phenomenon has resulted in serious problems in the fields of trade unionism and industrial relations. It has weakened the strength of trade unions, crippled their finances, encouraged unwarranted strikes and adversely affected the process of collective bargaining and settlement of industrial disputes.
- Efforts at controlling inter-union rivalry and determination of representative unions in the country have hitherto been confined mainly to non-statutory measures, particularly to the Code of Conduct worked out by four central federations namely, INTUC, AITUC, HMS and UTUC in 1958 at the instance of the Indian Labour Conference. A statutory measure was envisaged under the Trade Unions (Amendment) Act, 1947, but the Act has not come into force so far. In some states like Maharashtra and Gujarat, the problem has been sought to be solved by state enactments, but with little amount of success. The Code of Conduct has not been sincerely followed even by federations which had been parties to its adoption, not to speak of other central federations which have defied it as they were not parties to the agreement.
- Hitherto, the main criteria for the determination of representative unions used in the country have been (i) ‘verification of membership’ and (ii) ‘secret ballot’. Although the verification of membership method has been widely used in many industries and employments, it involved numerous difficulties, consumed lot of time and raised doubts in its authenticity. The method of ‘secret ballot’ has been sparingly used in a very limited number of cases.
- The first NCL (1969), after considering the advantages and disadvantages of both the methods, suggested that the task should be entrusted to the proposed Industrial Relations Commission which would be free to select either of the two. The second NCL (2002) suggested the adoption of the ‘check-off’ system in establishments or undertakings employing 300 or more workers and ‘secret ballot’ in those employing less than 300 workers.
- The main criteria for the recognition of representative unions usually adhered to in the country has been as those laid down under the Code of Discipline adopted at the Indian Labour Conference in 1958. The criteria have specified minimum percentages of membership for recognition of unions at various levels, such as establishment, region-cum-industry and industry. The code has also spelled out the rights of recognized unions.
The first NCL (1969) has suggested that a trade union seeking recognition as bargaining agent from an individual employer should have a membership of at least 30 per cent of workers in the establishment. A minimum of 25 per cent of membership is necessary for recognition at the region-cum-industry level. Where more unions than one contend for recognition, the union having the larger following will be recognized.
The second NCL (2002) has recommended a minimum of 66 per cent of membership for recognition as ‘single negotiating agent’ and 25 per cent membership for inclusion in the ‘negotiating college’ representing the negotiating agent. In the absence of a trade union, the ‘negotiating committee’ consisting of elected representatives of workers will be designated as negotiating agent.
- The NCLs of 1969 and 2002 both have enumerated the rights of recognized unions or certified negotiating agents. The views of the two Commissions in this regard are, more or less, similar. The more notable of these are rights to (i) negotiate with the employer and enter into collective agreement with him, (ii) take up industrial disputes to the authorities contemplated under law, (iii) nominate workers’ representatives on statutory as well as non-statutory bodies, (iv) to give a call of strike, (v) to collect sums payable by members under the ‘check-off’ system, (vi) to take up grievances of workers for redressal, (vii) put up notice boards on employer’s premises and display notices, circulars and statements on them, and (viii) seek and receive information on financial matters and economy of the establishment.
- The NCLs have recommended that the rights of the minority unions should be confined to (i) representing their members in individual disputes, (ii) take up the matters concerning their members with the management and (iii) collection of membership fees through ‘check-off’ or otherwise.
- The minority unions should recognize that there is a recognized union having defined privileges, and reciprocally, the recognized union should also recognize that there are minority unions in the establishment with certain roles to play.
- Explain the extent of trade union rivalry in the country along with its consequences.
- Describe the provisions of the Code of Discipline relating to the control of inter-union rivalry in the country. Are these effectively complied with?
- Justify the need for making recognition of representative unions statutorily compulsory for the employers.
- Describe the efforts made in the country for recognizing the representative unions for the purpose of collective bargaining.
- Explain the relative advantages and disadvantages of ‘verification of membership’ and ‘secret ballot’ for determining the representative character of unions.
- Explain the implications of the recommendations of the National Commissions on Labour in regard to recognition of unions in the country.
- What in your opinion should be the rights and obligations of recognized and minority unions?
Code of conduct
Unfair labour practices
Single negotiating agent
Case Study 1
Can an employer refuse to recognize a representative union?
In 1998, there were 40 registered trade unions operating in the HEC, Ranchi, which employed 25,000 workers, of whom 20,000 union members belonged to 5 unions A, B, C, D and E affiliated, respectively, to BMS, INTUC, AITUC, CITU and UTUC-LS, 25 unions under the control of local outside leadership and 10 led by workers of the undertakings themselves. All the trade unions had been placing their respective claims for recognition before the management. Being puzzled by the claims and counter-claims of the rival unions, the management approached the Labour Department of the Government of Bihar for identifying the representative union which could be recognized. The Labour Department took 2 years’ time to take a decision, which ultimately went in favour for the Union R led by a dominant local leader of RJD, a strong constituent of the then coalition government in the state. The decision of the government was widely resented to by other trade unions which organized strikes and demonstrations at frequent intervals. Ultimately, the management decided not to recognize any union and the industrial relations in the undertaking continued to deteriorate with continuous decline in production.
What were the reasons for the existence of so many unions in the undertaking?
Why did the management approach the Labour Department of Government of Bihar for determination of the representative union?
Why did other trade unions resent when the decision of the government was in favour of the union led by the local RJD leader?
What were the consequences of the decision of the Government of Bihar regarding the selection of the representative union?
Was the decision of the management not to recognize any union legal?
Case Study 2
Was the provision of Code of Discipline complied with?
In a cement factory at Katni in Madhya Pradesh employing about 4,000 workers, most of whom being union members, four registered trade unions, namely, A, B, C and D affiliated, respectively, to INTUC, AITUC, HMS and UTUC had been in operation for quite some time. Up to 2000, union A affiliated to the INTUC had continued to be the only recognized union in the undertaking. However, after the demise of its popular general secretary in 2001, the hold and influence of the union continued to diminish and the membership of other unions, particularly that of B and C substantially increased. In 2002, all the unions placed before the management their respective demand for recognition. The management approached the Labour Department of the state government for its decision. The Registrar of Trade Unions convened a meeting of the representatives of the four unions and informed them that he would follow the guidelines contained in the Code of Discipline. All the unions, except D agreed to decide the matter by holding secret ballot, which was held. In the election, in which all the workers of the factory participated, union A received 25 per cent, union B 30 per cent, union C 35 per cent and union D 10 per cent of the votes cast. The management recognized three unions namely, A, B and C.
Were all the four unions committed to abide by the Code of Discipline for the resolution of their claims?
Why was union D excluded from the group of recognized unions?
Why did the management recognize all the three unions A, B and C when union C had secured the maximum number of votes?
Was it necessary for the management to approach the Labour Department of the state government to decide the matter?