COLLECTIVE BARGAINING IN INDIAINTRODUCTION The conflict between the management and the employee is inherent in an industrial society.

Oneargues for more investment and profits while the other argues for better standard of living. Thesetwo conflicting interests can be adjusted temporarily through the principle of "give and take" 1 ,The principle of give and take has been infused in the principle of collective bargaining.The phrase "collective bargaining" was coined by British labor reformers Sidney and BeatriceWebb of Great Britain which was the home of collective bargaining in the 1890s 2 . The idea of c o l l e c t i v e b a r g a i n i n g e me r g e d a s a r e s u l t o f i n d u s t r i a l c o n f l i c t a n d g r o wt h o f t r a d e u n i o n movement and was first given currency in the United States by Samuel Crompers. In India thefirst collective bargaining agreement was conducted in 1920 at the instance of Mahatma Gandhito regulate labour management relation between a group of employers and their workers in thetextile industry in Ahmadabad 3 .A d v o c a t e s o f c o l l e c t i v e b a r g a i n i ng i n t h e e a r l y d e c a d e s o f t h e t we n t i e t h c e n t u r y t h o u g h t i t essential for three reasons. First and foremost, a system of peaceful and routine bargaining wouldeliminate industrial strife and violence. Second, collective bargaining st ood for "industrialdemocracy," and finally, collective bargaining promised to make capitalism work.In any industrial establishment the friction between employer and the workmen is inevitable.There are demands by the workmen and if those demands are resisted by the employer, industriald i s p u t e a r i s e s r e s u l t i n g i n i n d u s t r i a l t e n s i o n a n d d i s t u r b i ng t h e p e a c e a n d h a r mo n y i n t h e industry. Collective Bargaining is one of the methods wherein the employer and the employeescan settle their disputes. 1 Otto Kahn-Freund, Laboar aad the Law, L mdon, Stevens & Sons, (1977\ .). 49 2 Webb, Sydney and Beatrice, Industrial Democracy,1902,p.185 3 Report of Royal Commission on Labour in India, 1931; p. 336-337 There was always a need of a legislation which could ensure industrial justice pre-empt theindustrial tensions and provide the mechanics of dispute resolution. When Industrial DisputesAct, 1947 was passed in India, it was passed to provide machinery and form for the investigationof industrial disputes and for the settlement thereof and for the purposes analogous and incidentalthereto. As is evident from the Act itself that it is piece of legislation which mainly provides for investigation and settlement of Industrial disputes.In the words of Justice Desai the emergence of the concept of

welfare state implies an end toexploitation of workmen and as a corollary to that collective bargaining came into its own andlest the conflicting interests of the workmen and the employer disturb the industrial peace andharmony, a machinery for adjustment of such conflicting interests became the need of the time.T h e A c t t h e r e f o r e w a s e n a c t e d to provide machinery and Forum for adjustment of s u c h conflicting and seemingly irreconcilable interests without disturbing the peace and harmony inthe industry assuring the industrial growth which was the prerequisite of for a welfare state.Collective bargaining is one of the methods wherein the employer and the employees can settletheir disputes. This method of settling disputes was adopted with the emergence and stabilizationof the trade union Government. Before the adoption of the collective bargaining the labour wasat a great disadvantage in obtaining reasonable terms for contract of service from its employer.With the development of the trade unions in the country and the collective bargaining becomingthe rule it was equally found by the employers that instead of dealing with individual workmen itis convenient and necessary to deal with the representatives of the workmen not only for the making or modification contracts but also in the matter of taking disciplinary action against theworkmen and regarding other disputes. So, collective bargaining has come to stay having regardto modern conditions of the society where capital and labour have organized themselves intogroups for the purpose of fighting and settling their disputes. RESEARCH METHODOLOGYAims and objective The aim of this project is to analyze the process of Collective Bargaining and the objective has been to understand the impact of Collective Bargaining in India. Scope and limitation The researcher has limited the scope of the project paper to the concept of collective bargainingand its impact in India. Method of analysis The researcher has endeavored to use a combination of critical and descriptive styles of writingthroughout this project and has cited various cases to critically analyze the theory of collective bargaining. Research questions Following are some the basic questions the researcher has tried to answer in this paper;1 . Wh a t i s t h e c o n c e p t o f c o l l e c t i v e b a r g a i n i n g? 2.Whether strike and lockouts are established means of weapons of collective bargaining?3.What is the impact of collective bargaining in India?4.What are the problems related to the collective bargaining process in India?5.How can collective Bargaining be strengthened as a mode of settling industrial disputes? Sources of data etc.

The main sources have been Statutes, books, articles on Collective Bargaining, obtained from thelibrary of NALSAR, Hyderabad and from the library of NLSIU, Bangalore. Besides these, theresearcher has also done extensive research on the internet and referred to various websites ande-articles related to the Project topic. DEFENITIONS OF COLLECTIVE BARGANING There is no precise definition of Collective bargaining. In fact keeping in view the change inthe society with its fast changing social norms the scope and content of collective also variesfrom country to country. Nevertheless, Collective bargaining has been defined by differentexperts in different ways. It is treated as a method by which problem of wages and conditions of employment are resolved peacefully and voluntarily between labour and management. 4 This chapter deals with the various definitions of collective bargaining which will be helpful inunderstanding the concept of collective bargaining, its ambit and scope as has been coined byvarious writers.According to K. Alexander Collective bargaining is a process of bargaining between the employers and their workers bywhich they settle their disputes among themselves relating to employment or non-employment or terms of employment or conditions of labour of the workmen, on the strength of the sanctionsavailable to each side. Occasionally such bargaining results in amicable settlement arrived atvoluntarily and peaceful between the parties. But quite often the workers and the employers haveto apply sanctions by resorting to the weapons of strikes and lock-outs to pressurize one another which makes both the sides aware of the strength of one another and that finally forces each toa r r i v e a t a s e t t l e me n t i n t h e mu t u a l i n t e r e s t s . I t i s t h u s t h e s t r e n g t h o f t h e p a r t i e s w h i c h d e t e r mi n e s t h e i s s u e s r a t h e r t h a n t h e wo r d y d u a l s wh i c h a r e l a r g e l y p u t o n f o r s h o w a s a n y element of strength in one party is by the same token an element of weakness in another. Convention 154 of International Labour Organization (ILO) under Article 2 says: For the purpose of this Convention the term collective bargaining extends to all negotiations which take place between an employer, a group of employers or one or more employers' organizations, on the one hand, and one or more workers' organizations, on the other, for 4 I.L., Labour Law and Labour Relations, N.M. Tripathi (Pvt) Ltd., Bombay, (1968), P.29: (a)determining working conditions and terms of employment; and/or (b)regulating relations between

e m p l o y e r s a n d w o r k e r s ; a n d / o r (c)regulating relations b e t we e n e mp l o ye r s o r t h e i r o r g a n i z a t i o n s a n d a wo r k e r s ' organization ILO has defined collective bargaining as,negotiation about working conditions and terms of employment between an employer and ag r o u p o f e mp l o ye e s o r o n e o r mo r e e mp l o ye e s o r g a n i z a t i o n s wi t h a v i e w t o r e a c h i n g a n agreement wherein the terms serve as a code of defining the rights and obligations of each partyin their employment/industrial relations with one another.Th i s d e f i n i t i o n h o we v e r c o n f i n e s t h e t e r m c o l l e c t i v e ba r g a i n i n g a s a me a n s o f i mp r o v i n g conditions of employment. But in fact, collective bargaining serves something more. Perlman aptly stated," C o l l e c t i v e b a r g a i n i n g i s n o t ju s t a me a n s o f r a i s i n g w a g e s a n d i mp r o v i n g c o n d i t i o n s o f employment. Nor is it merely democratic government in industry. It is above all technique. Collective bargaining as a technique of the rise of a new class is quite different, from the desiret o d i s p l a c e o r " a b o l i s h " t h e " o l d r u l i n g c l a s s " , t o g a i n e q u a l r i g h t s a s a c l a s s , t o a c q u i r e a n exclusive jurisdiction in that sphere where the most immediate interests, both material andspiritual, are determined. And a shared jurisdiction with the older class or classes in all other spheres." 5 The best justification for collective ba rgaining is that it i s a s y s t e m b a s e d o n b i p a r t i t e agreements, as such superior to any agreement involving third party intervention in matters which essentially concern employers and workers. 6 5 See Eugene V. Schneider, Industrial Sociology, London, Mc GrawHill, (1971), P. 344. 6 [Report of National Commission on Labour, p.325] I n En c yc l o p e d i a o f S o c i a l S c i e n c e s , c o l l e c t i v e B a r g a i n i n g h a s b e e n d e f i n e d a p r o c e s s o f discussion and negotiations between two parties, one or both of whom is a group of personsacting in concert. The resulting bargain is an understanding as to terms and conditions under which a continuing service is to be performed. More especially, collective bargaining is the p r o c e d u r e b y wh i c h a n e mp l o ye r o r e mp l o ye r s a n d a g r o u p o f e mp l o ye e s a g r e e u p o n t h e conditions of work.In the words of John T Dunlop

, Collective Bargaining is:( 1 ) a s y s t e m w h i c h e s t a b l i s h e s , revises and administers many of the rules which govern t h e workers place of work;( 2 ) a p r o c e d u r e w h i c h d e t e r m i n e s t h e q u a n t u m o f c o m p e n s a t i o n w h i c h e m p l o y e e s s h o u l d receive and which influences the distribution of economic ills;( 3 ) a me t h o d o f s e t t l i n g d i s p u t e s d u r i n g t h e p e n d e n c y o f a g r e e me n t a n d o f d e t e r mi n i n g , a f t e r its expiry, whether a dispute should be re-opened or whether a strike or a lock-out should be resorted or not.In sum collective bargaining, is labor relations, procedure whereby an employer or employersagree to discuss the conditions of work by bargaining with representatives of the employees,usually a labor union. Its purpose may be either a discussion of the terms and conditions of employment (wages, work hours, job safety, or job security) or a consideration of the collectiverelations between both sides (the right to organize workers, recognition of a union, or a guaranteeof no reprisals against the workers if a strike has occurred). The merits of collective bargaininghave been argued by both opponents and proponents of the process; the former maintain that itdeprives the worker of his individual liberty to dispose of his service, while the latter point outthat without the union's protection the worker is subject to the dictation of the employer. ANALYSIS OF THE CONCEPT OF COLLECTIVE BARGANING C o l l e c t i v e b a r g a i n i n g i s c o n c e r n e d wi t h t h e r e l a t i o n s b e t w e e n e mp l o ye r s a c t i n g t h r o u g h management and organised labour. It is concerned not only with the negotiation of a formallabour agreement but also with the day-to-day dealings between management and the union.Collective bargaining is a voluntary process under which the representatives of both employersand labour enter into an agreement. The process does not stop as soon as a bargain is reached at between the employer and the trade union. It is a continuous process because the contract is onlyt h e beginning of collective bargaining. Bargaining requires a n e f f i c i e n t a n d p e r m a n e n t arrangement for negotiations. No temporary or one-time arrangements can make the bargaining process successful. Features of Collective Bargaining The features of collective bargaining are as under: It is a group process, wherein one group, representing the employers, and the other, representingthe employees, sit together to negotiate terms of employment; N e g o t i a t i o n s f o r m a n i mp o r t a n t a s p e c t o f t h e p r o c e s s o f c o l l e c t i v e b a r g a i n i n g i .e ., t h e r e i s considerable scope for discussion, compromise or mutual give and take in collective bargaining;

Collective bargaining is a formalized process by which employers and independent trade unionsn e g o t i a t e t e r m s a n d c o n d i t i o n s o f e mp l o yme n t a n d t h e w a ys i n wh i c h c e r t a i n e mp l o yme n t - related issues are to be regulated at national, organizational and workplace levels; Collective bargaining is a process in the sense that it consists of a number of steps. It begins withthe presentation of the charter of demands and ends with reaching an agreement, which woulds e r v e a s t h e b a s i c l a w g o v e r n i n g l a b o r ma n a g e me n t r e l a t i o n s o v e r a p e r io d o f t i me i n a n enterprise. Moreover, it is flexible process and not fixed or static. Mutual trust and understandingserve as the by products of harmonious relations between the two parties; I t a b i p a r t i t e p r o c e s s . Th i s me a n s t h e r e a r e a l wa ys t wo p a r t i e s i n v o l v e d i n t h e p r o c e s s o f collective bargaining. The negotiations generally take place between the employees and the management. It is a form of participation; Collective bargaining is a complementary process i.e. each party needs something that the other party has; labor can increase productivity and management can pay better for their efforts; Collective bargaining tends to improve the relati ons between workers and the union on the onehand and the employer on the other; Collective Bargaining is continuous process. It enables industrial democracy to be effective. Ituses cooperation and consensus for settling disputes rather than conflict and confrontation; Collective bargaining takes into account day to day changes, policies, potentialities, capacitiesand interests; It is a political activity frequently undertaken by professional negotiators. Significance of Collective Bargaining In an Industrial Establishment to solve the problems arising at the plant or industry level the needof the collective bargaining is eagerly felt. Through negotiations the solution to the common problems can be directly found out between the management and workers and here the collective bargaining plays significant role and its scope is very great. In so far the determination of termsa n d c o n d i t i o n s o f e m p l o y m e n t a r e concerned, one important consequence of collective bargaining has been that it has enabled trade unions to participate in the

decision making processregarding hours of work, wages, working conditions etc. Earlier the employer used to decidethese issues unilaterally, but now they have become subjects of bilateral negotiations with theadvent of collective bargaining. Thus an element of industrial democracy has been introduced bycollective bargaining in the field of industrial and labour management.Collective bargaining is really useful from the stand point of management, trade unions andworkers. Among workers it develops a sense of responsibility and self respect if it works wella n d t h u s c o n t r i b u t e s t o a g r e a t e x t e n t t o e mp l o ye e s mo r a l e a n d p r o d u c t i v i t y. I t o p e n s u p c h a n n e l s o f c o m mu n i c a t i o n b e t we e n t o p a n d b o t t o m o f a n u n de r t a k i n g wh i c h i s d i f f i c u l t otherwise. Further the managements freedom of action is restricted because the establishmentloses its unilateral discretion regarding bargainable issues even when managements security isintact and thereby learns a new code of behavior by conceiving of the union as a method of dealing with the employees not an obstacle to such dealing. The significance of collective bargaining from the national stand point is that it helps in creating peaceful industrial climate if properly conducted, thereby increases the pace of the countrysefforts towards social and economic development. Collective bargaining as an instrument of industrial peace has no parallel. It extends the democratic principle from the political to theindustrial field and is an important aspect so far as the labour and management relations areconcerned. Functions of Collective Bargaining The functions of the collective bargaining are as under:1 . A d j u s t m e n t a n d balance of power between the management and union w h e n t h e y a r e i n c o n f l i c t with each other. This function of the system of collective bargaining is one of the methods of effecting social change.2 . W h e n t w o p a r t i e s a r e i n a s t a t e o f c o n t i n u o u s c o n f l i c t , i t h e l p s i n b r i n g i n g a b o u t c o m p r o m i s e , truce or agreement for establishing peace between the parties. Industrial truce results when two parties to a dispute arrive at a compromise or agreement without resorting to strike or lock-out.Such truce may be stable or temporary. It depends upon the parties as to what extent one party iswi l l i n g t o s a c r i f i c e a n d t h e o t h e r p a r t y i s wi l l i n g t o a c c e p t t h e d e ma n d s , o r t e r ms . B o t h t h e parties are morally bound to implement the agreement once it is signed.3 . F o r e s t a b l i s h i n g i n d u s t r i a l ju r i s p r u d e n c e i t a n a l ys e s t h e r i g h t s a n d duties of conflicting parties. 4 . I t a l s o a d j u s t s l a b o u r management disputes apart from performing functions l i k e n e g o t i a t i o n , a d mi n i s t r a t i o n a n d e n f o r c e me n t o f a g r e e me n t s b y wh i c h u n i o n ma n a g e me n t r e l a t i o n sh i p i s governed. Subject-matter of Collective Bargaining Collective bargaining has two pronged concerns:

( 1 ) C h a l k i n g o u t a b r o a d c o n t r a c t o f e mp l o yme n t r e l a t i o n s h i p b e t we e n e mp l o ye r s a n d wo r k e r s , a n d ( 2 ) T h e a d m i n i s t r a t i o n o f t h e c o n t r a c t . In fact, it has been recognised as a method of determining the wage rates and other terms andc o n d i t i o n s o f e m p l o y m e n t a n d o f r e g u l a t i n g t h e r e l a t i o n s b e t w e e n t h e m a n a g e m e n t a n d organized labour. Collective bargaining includes provisions with respect to hiring, lay offs, p r o mo t i o n s , t r a n s f e r s , wo r k s c h e d u l i n g , wo r k a s s i g n me n t , w a g e s , we l f a r e p r o g r a mme s , retirement benefits, discipline, etc. Pre-requisites for collective bargaining Effective negotiations and enforcement requires a systematic preparation of the base or groundfor bargaining which involves the following steps:1. Recognition of the Bargaining Agent: The management should give recognition to the tradeunion for participating in the collective bargaining process. In case there is more than one union,selection could be done through verification of membership by a government agency givingrepresentation to all the major unions through joint consultations. Thus, the bargaining agent of the workers should be properly identified before initiating any action.2. Deciding the Level of Bargaining: Wh e t h e r t h e d e a l i n g s a r e c o n f i n e d t o e n t e r p r i s e l e v e l , i n d u s t r y level, regional or national level should be decided as the c o n t e n t s , s c o p e a n d enforcement agencies differ in each case.3. Determining the Scope and Coverage of Bargaining: I t w o u l d b e b e t t e r t o h a v e a c l e a r understanding of what are the issues to be covered under bargaining. Many a time, bargaining isrestricted to wage and working conditions related issues but it would be advantageous for boththe management and union to cover as many issues as possible to prevent further friction anddisputes. Therefore, all the important and interrelated issues are to be taken for consideration. 4. Spirit of Give and Take: When there is a spirit of give and take between the management andunion, collective bargaining can be an effective technique of settling industrial disputes.5. Good Faith and Mutual Agreement: The parties to collective bargaining should act in good faith and do the things on the basis of mutual agreement as there is no legal sanction behind theterms and conditions agreed upon by the parties. Importance of Collective Bargaining Collective bargaining is an important method of regulating relations between employers andemployees. It involves negotiation,

administration and enforcement of the written contracts be tween the employees and the employers. It also includes the process of resolving labour-management conflicts.Healthy collective bargaining generates a spirit of self-confidence and self-reliance among theworkers. It is based on a give and take policy on both sides. Collective bargaining leads toincreased goodwill and understanding between labour and management. This in turn helps tocreate peaceful and comfortable atmosphere in industrial relations.Importance to employees Collective bargaining develops a sense of self respect and responsibility among the employees It increases the strength of the workforce, thereby, increasing their bargaining capacity as agroup Collective bargaining increases the morale and productivity of employees; I t r e s t r i c t s m a n a g e me n t s f r e e d om f o r a r b i t r a r y a c t i o n a g a i n s t t h e e mp l o ye e s . M o r e o v e r , unilateral actions by the employer are also discouraged; Effective collective bargaining machinery strengthens the trade unions movement; T h e wo r k e r s f e e l mo t i v a t e d a s t h e y c a n a p p r o a c h t h e ma n a g e me n t o n v a r i o u s ma t t e r s a n d bargain for higher benefits; It helps in securing a prompt and fair settlement of grievances. It provides a flexible means for the adjustment of wages and employment conditions to economic and technological changes inthe industry, as a result of which the chances for conflicts are reduced; It helps in securing a prompt and fair settlement of grievances. It provides a flexible means for the adjustment of wages and employment conditions to economic and technological changes inthe industry, as a result of which the chances for conflicts are reduced.Importance to employers It becomes easier for the management to resolve issues at the bargaining level rather than takingup complaints of individual workers. Collective bargaining tends to promote a sense of job security among employees and therebytends to reduce the cost of labor turnover to management.

Collective bargaining opens up the channel of communication between the workers and themanagement and increases worker participation in decision making. Collective bargaining plays a vital role in settling and preventing industrial disputeImportance to society Collective bargaining leads to industrial peace in the country; It results in establishment of a harmonious industrial climate which helps the pace of a nationsefforts towards economic and social development since the obstacles to such a development can be reduced considerably; The discrimination and exploitation of workers is constantly being checked; It provides a method or the regulation of the conditions of employment of those who are directlyconcerned about them. Principles of Collective Bargaining A s me n t i o n e d b e f o r e t h a t t h e c o l l e c t i v e b a r g a i n i n g h a s s u c c e e d e d i n i n t r o d u c i n g i n d u s t r i a l democracy in industrial and labour managements. Industrial democracy implies that the majority union should have the right to sole representation i.e. the right to speak and act for all workersand to enter into agreements with the employer. There are certain principles which have to befollowed by both the management and workers for collective bargaining. These principles are asfollows:1 . T h e r e s h o u l d b e a r e a l i z a t i o n o n t h e p a r t o f b o t h u n i o n s a n d m a n a g e m e n t s t h a t f o r t a k i n g w i s e r an more expedient decisions, collective bargaining is a proper method. 2 . A n opportunity should be provided to trade union leaders for putting their complaints, demands, n e e d s , e t c . b e f o r e the managements and the management should explain t o t h e m t h e circumstances and make efforts to redress the grievances/complaints of the workers.3 . T h e p r e s e n c e o f g e n u i n e spirit of mutual trust, goodwill and bargaining should be t h e r e o n t h e part of both the parties;4 . C o m p e t e n c e f o r bargaining with mutual respect and impleme ntation of the a g r e e m e n t a r r i v e a t should be possessed by both the parties.5 . T h e parties to collective bargaining should be honest and the a g r e e m e n t s h o u l d b e c o n d u c t e d b y these honest, competent and reasonable leaders;6 . K e e p i n g i n v i e w t h e c h a n g i n g circumstances, it is desirable that the management should c h a n g e their policies and should keep in view the dignity of the

workers. Appropriate labour policys h o u l d b e a d o p t e d b y t h e management and this policy to be followed by all e m p l o y e e s . Necessary precautions must be taken.7 . I f t h e r e a r e m o r e than one union the management should enter into n e g o t i a t i o n w i t h u n i o n h a v i n g majority representation. 8.It is equally desirable on the part of the union to raise r e a s o n a b l e d e m a n d s . T h e y s h o u l d n o t p u t up such demands as are beyond the paying capacity of the establishment or may be against thenational policies. Scope of Collective Bargaining The growth of collective bargaining is associated with the recognition of trade unionism. Withthe growth of trade unions and industrialization the scope of collective bargaining is expanding.Initially collective bargaining was used for determining hours of work, wages and terms of employment, but now within its purview are included the issues like leave with pay, regulationof forced leave, pension, seniority promotions, sickness and maternity benefits, etc. Since in thef i e l d o f b a r g a i n i n g c o l l e c t i v e a c t i o n i s n o w c o mmo n , c o l l e c t i v e b a r g a i n i n g h a s a s s u me d a n institutional form. In the words of C.W. Randle:The subject matter of collective bargaining had broadened until it has virtually eliminated thefield of the management prerogatives. The area pattern of bargaining has moved from simplestyle plant bargaining to region wise and finally to dynamic nature of the scope of collective bargaining. At the same time, they show how important negotiation has become as an institution.And the future holds promise of an even greater role for collective. Advantages and Disadvantages of Collective BargainingAdvantages of Collective Bargaining According to National Commission Report on labour collective bargaining has been preferredover compulsory adjudication system for several reasons:( a ) I t i s a s ys t e m b a s e d o n b i p a r t i t e a g r e e me n t s , a n d a s s u c h , s u p e r i o r t o a n y a r r a n g e me n t i n v o l v i n g third party intervention in matters which essentially concern employees and workers;( b ) I t i s q u i c k a n d e f f ic i e n t me t h o d o f s e t t l e me n t o f i n d u s t r i a l disputes; and( c ) I t i s d e m o c r a t i c m e t h o d o f s e t t l e m e n t o f industrial disputes; Disadvantages of Collective Bargaining Two vital defects in collective bargaining have been pointed out by Willcox. These defects are:( a ) T h e r e a r e s i t u a t i o n s i n wh i c h a s e r i o u s s t r i k e a n d p r o l o n g e d s t r i k e s i mp l y c a n n o t b e t o l e r a t e d . ( b ) T h e second great flaw in collective bargaining as a solvent f o r l a b o u r d i s p u t e s i s t h e l a c k o f representation of the public interest at the bargaining table. Whether prices can be raised withoutstrangling and ability to sell goods or services, unions and companies are in a

position to agreeon wage increase that will cause higher prices, then the consumer must shoulder the full burdenof their agreement 7 . 7 [ALJ, (1965) p.39] COLLECTIVE BARGAINING PROCESS The collective bargaining process begins when the majority of workers of an organization vote to be represented by a specific union. The National Labor Relations Board (see Labor Unions) thencertifies the union. At this point, the management of the organization must recognize the union as the collective bargaining agent for all the employees of that organization. Once this part of the process is completed, collective bargaining can begin.Bargaining always takes place between labor and management, but negotiations can includemore than one group of workers and more than one employer. Single-plant, single-employer agreements are the most common. However, if an employer has more than one plant or work site, multiplant, single-employer agreements can be bargained. Several different union groupsr e p r e s e n t i n g t h e wo r k e r s o f t he s a me e mp l o ye r c a n u s e c o a l i t i o n b a r g a i n i n g . I n d u s t r y wi d e bargaining involves one national union bargaining with several employers of a specific industry.Many different negotiation styles can be used when union and labor representatives sit down att h e b a r g a i n i n g t a b l e . T h e t w o b a s i c modes of bargaining are traditiona l bargaining and partnership bargaining, though there are many variations of each style.The traditional style of bargaining has been used since collective bargaining began betweenmanagement and the early labor unions. It is an adversarial style of negotiating, putting one sideagainst the other with little or no understanding of, or education about, the other on the part of either party. Each side places its demands and proposals on the table, and the other side respondsto them with counterproposals. The process is negative and involves a struggle of give-and-takeon most issues. Even with its negative connotations, however, the traditional style of negotiatingis still used effectively in bargaining many union contracts.The partnership style of bargaining is the more modern approach to negotiations. It strives for mutual understanding and common education on the part of both labor and management, and itfocuses on goals and concerns common to both parties. Because of its emphasis on each side's being aware of the issues concerning the other side, partnership-style bargaining is also known asinterest-based bargaining. In this process, labor and management each list and explain their needs, and the ensuing discussion revolves around ways to meet those needs that will be not onlya c c e p t a b l e b u t a l s o b e n e f i c i a l t o bo t h p a r t i e s .

T h i s s t yl e o f b a r g a i n i n g i s v e r y p o s i t i v e a n d imparts a much more congenial atmosphere to the negotiating process. Many modern union management contracts are bargained very successfully using the partnership style.A b l e n d i n g o f t h e t r a d i t i o n a l a n d p a r t n e r s h i p s t yl e s i s w i d e l y u s e d i n l a b o r - ma n a g e me n t negotiations. The combination approach is used for many reasons, including the fact that manyu n i o n a n d ma n a g e me n t l e a d e r s a r e mo r e f a mi l i a r wi t h t h e t r a d i t i o n a l s t yl e . Ho we v e r , w i t h today's more participatory relationship between labor and management in the workplace, the partnership style is becoming more accepted and is being used more frequently. The negotiating p r o c e s s ma y a l s o i n c l u d e b o t h s t yl e s o f b a r g a i n i n g b e c a u s e o f t h e v a r i e t y o f i s s u e s b e i n g negotiated. The partnership style may be used to negotiate certain issues, while the traditionalstyle may be invoked when bargaining other terms. Collective Bargaining Issues Labor unions were formed to help workers achieve common goals in the areas of wages, hours,working conditions, and job security. These issues still are the focus of the collective bargaining process, though some new concepts have become the subjects of negotiations. The Settlement Process Union contracts are usually bargained to remain in effect for two to three years but may cover longer or shorter periods of time. The process of negotiating a union contract, however, may takean extended period of time. Once the management and union members of the negotiating teamcome to agreement on the terms of the contract, the union members must accept or reject theagreement by a majority vote. If the agreement is accepted, the contract is ratified and becomes alegally binding agreement remaining in effect for the specified period of time.If the union membership rejects the terms of the agreement, the negotiating teams from labor andmanagement return to the bargaining table and continue to negotiate. This cycle can be repeated several times. If no agreement can be reached between the two teams, negotiations are said tohave "broken down," and several options become available.Mediation is usually the first alternative when negotiations are at a stalemate. The two partiesagree voluntarily to have an impartial third party listen to the proposals of both sides. It is themediator's job to get the two sides to agree to a settlement. Once the mediator understands whereeach side stands, he or she makes recommendations for settling their differences. The mediator merely makes suggestions, gives advice, and tries to get labor and management to compromiseon a solution. Agreement is still voluntary at this point. The mediator has no power to forcee i t h e r o f t h e p a r t i e s t o s e t t l e t h e c o n t r a c t , t h o u g h o f t e n l a b o r a n d ma n a g e me n t d o c o me t o agreement by using

mediation.If mediation fails to bring about a settlement, the next step can be arbitration, which can be either c o mp u l s o r y o r v o l u n t a r y. C o mp u l s o r y a r b i t r a t i o n i s n o t o f t e n u s e d i n l a b o r - ma n a g e me n t negotiations in the United States. Occasionally, however, the federal government requires unionand management to submit to compulsory arbitration. In voluntary arbitration, both sides agreeto use the arbitration process and agree that it will be binding. As in mediation, an impartial third party serves in the arbitration process. The arbitrator acts as a judge, listening to both sides andthen making a decision on the terms of the settlement, which becomes legally binding on labor a n d m a n a g e m e n t . N i n e t y p e r c e n t o f a l l u n i o n c o n t r a c t s u s e a r b i t r a t i o n i f t h e u n i o n a n d management can't come to agreement (Boone and Kurtz, 1999). Sources of Power If the collective bargaining process is not working as a way to settle the differences betweenlabor and management, both sides have weapons they can use to bolster their positions. One of the most effective union tactics is the strike or lockout. While on strike, employees do not reportt o wo r k a n d , o f c o u r s e , a r e n o t p a i d . S t r i k e s u s u a l l y s h u t d o wn o p e r a t i o n s , t h u s p r e s s u r i n g management to give in to the union's demands. Some employees, even though allowed to belongto unions, are not allowed to strike. Federal employees fall into this category. The law also prohibits some state and municipal employees from striking. During a strike, workers often picket at the entrance to their place of employment. This involvesmarching, carrying signs, and talking to the media about their demands. The right to picket is protected by the U.S. Constitution as long as it does not involve violence or intimidation.Problems sometimes arise during strikes and picketing when management hires replacementworkers, called scabs or strikebreakers, who need to cross the picket line in order to do the jobsof the striking workers.The boycott is another union strategy to put pressure on management to give in to the union'sdemands. During a primary boycott, not only union members but also members of the general public are encouraged to refuse to conduct business with the firm in dispute with the union.Though it is rarely done, management may use the lockout as a tactic to obtain its bargainingobjectives. In this situation, management closes down the business, thus keeping union membersaway from working. This puts pressure on the union to settle the contract so employees can get back to their jobs and receive their wages.Management sometimes uses the injunction as a strategy to put pressure on the union to give into its demands. An injunction is a court order prohibiting something from being done, such as picketing, or requiring something to be done, such as workers being ordered to return to work. Grievance Procedures

Once a collective bargaining agreement is settled and a union contract is signed, it is binding on both the union and management. However, disagreements with contract implementation can arise and violations of the contract terms can occur. In these cases, a grievance, or complaint, can b e f i l e d . Th e d i f f e r e n c e s t h a t mu s t b e r e s o l v e d a r e u s u a l l y h a n d l e d t h r o u g h a s t e p - b y- s t e p process that is outlined in the collective bargaining agreement. The grievance procedure beginswith a complaint to the worker's immediate supervisor and, if unresolved at that level, movesupward, step by step, to higher levels of man agement. If no resolution is found at any of theselevels, the two parties can agree to have the grievance submitted to an impartial outside arbitrator for a decision binding to the union and management. Collective bargaining is a successful way for workers to reach their goals concerning acceptablewages, hours, and working conditions. It allows workers to bargain as a team to satisfy their needs. Collective bargaining also allows management to negotiate efficiently with workers by bargaining with them as a group instead of each one individually. Though traditional bargainingcan be negative and adversarial, it does produce collective bargaining agreements between labor and management. Partnership bargaining can lead to increased understanding and trust betweenlabor and management. It is a positive, cooperative approach to collective bargaining that alsoculminates in contracts between labor and management. Levels of Collective Bargaining Collective bargaining operates at three levels:1 . N a t i o n a l l e v e l 2 . S e c t o r o r i n d u s t r y l e v e l 3 . C o m p a n y / e n t e r p r i s e l e v e l Economy-wide (national) bargaining is a bipartite or tripartite form of negotiation between u n i o n c o n f e d e r a t i o n s , c e n t r a l e mp l o ye r a s s o c i a t i o n s a n d g o v e r n me n t a g e n c i e s . I t a i ms a t p r o v i d i n g a f l o o r f o r l o w e r - l e ve l b a r g a i n i n g o n t h e t e r ms o f e mp l oy me n t , o f t e n t a k in g i n t o account macroeconomic goals Sectoral bargaining , wh i c h a i ms a t th e s t a n d a r d i z a t i on o f t h e t e r ms o f e mp l o yme n t i n o n e industry, includes a range of bargaining patterns. Bargaining may be either broadly or narrowlydefined in terms of the industrial activities covered and may be either split up according toterritorial subunits or conducted nationally. Company/enterprise level , this bargaining level involves the company and/or establishment. Asa supplementary type of bargaining, it emphasizes the point that bargaining levels need not bemutually exclusive.

STRIKE AND LOCKOUT AS A METHOD OF COLLECTIVE BARGAININGThe Right to Strike as Method of Collective Bargaining The right to strike is labors ultimate weapon and in the course of the century, it has emerged asthe inherent right of every worker. It is an element, which is of the very essence of the principleof collective Bargaining 8 . In Conway v Way 9 the Court adopted the phrase industrial warfarewhere the Court described strike and lock-outs as the weapons allowed by the law. Thestrike is the antithesis of lockout. It is regarded as a powerful weapon of collective bargainingand is generally fraught with a possibility of industrial dislocation with all its attending hardshipsa n d e v i l s , t h e o c c u r r e n c e o f w h i c h i s r e g a r d e d a s o n e o f t h e po we r f u l l e v e r s t o b r i n g a b o u t agreements. The trade unions with sufficient memberships strength are able to bargain moreeffectively with the management than individual workmen. The bargaining strength would beconsiderably reduced if it is not permitted to demonstrate by adopting agitational methods sucha s w o r k t o r u l e , a b s e n t e e i s m , s i t d o wn s t r i k e a n d s t r i k e . C o l l e c t i v e B a r g a i n i n g f o r securing improvement on matters like wages, basic pay, dearness allowance, bonus, providentfund, gratuity, leave, holidays and other terms of service and conditions of labour, is the primaryo b je c t o f t r a d e u n i o n s a n d wh e n d e ma n d s l i k e t h is a r e p u t f o r wa r d , a s t r i k e t h e r e a f te r ma y justifiably be resorted to in an attempt to induce the employer to agree to the demands or at leastto open negotiations. Sometimes the threat of strike is enough to make the employer concede tothe demands of the union.But the right to strike is not absolute and the industrial jurisprudence has subjected it to certainlimitations. 10 In Syndicate Bank v K.Umesh Naik 11 , Sawant, J stated the law in the following words-The strike, as a weapon, was evolved by the workers as a form of direct action, during their long struggle with the employers. It is essentially a weapon for the last resort being an abnormal 8

AP State Road Transport Corporation Employees Union v APSRTC (1970) Lab IC 1225 (AP 9 Conway v Way (1909) AC 506 (HL) 10 B.R.Singh v Union of India (1990) Lab IC 389Syndicate Bank v K.Umesh Naik, AIR 1995 SC 319 11 Syndicate Bank v K.Umesh Naik, AIR 1995 SC 319 aspect of the employer employee relationship and involves withdrawal of labour disrupting production, services and the running of the enterprise. It is a use by the labour of their economic power to bring the employer to see and meet their point of view over the dispute between them.The cessation or stoppage of works whether by the employee or the employer is detrimental tothe production and economy and the well being of the society as a whole. It is for this reason thatthe industrial legislation while not denying the right of workmen to strike, has tried to regulate italong with the right of the employer to lock out and has also provided a machinery for peacefulinvestigation, settlement, arbitration, adjudication of the disputes between them. The strike or lock-out is not to be resorted to because the concerned party has a superior bargaining power or t h e requisite economic muscle to compel the other party t o a c c e p t i t s d e m a n d . S u c h indiscriminate use of power is nothing but assertion of the rule of might is right . I t s consequences are lawlessness, anarchy and chaos in the economic activities, which are most vitala n d f u n d a me n t a l t o t h e s u r v i v a l o f t h e s o c i e t y. S u c h a c t i o n , wh e n t h e l e g a l ma c h i n e r y i s available to resolve the dispute, may be hard to justify. This will be particularly so when it isresorted to by the section of the society, which can well await resolution of the dispute by themachinery provided by the same. The strike or lock-out, as a weapon, has to be used sparingly.For redressal of urgent and pressing grievances when no means are available or when availablemeans have failed to resolve it. It has to resort to, compelling the other party to the dispute to seethe justness of the demand. It is for this reason that the industrial legislation such as the Act places additional restriction on strikes and lock outs in public utility services.The strike is a recognized mode of agitation to press home the demands of the workers in the process of collective bargaining, but strike cannot be resorted to pressurize the management toaccede to the demands which they cannot get lawfully. For instance the weapon of strike cannot be used to pressurize the management to pay additional amount of bonus apart from the bonus permissible under the Payment of Bonus Act. Lockouts as Weapon of Collective Bargaining

Lockout can be described as the antithesis of a strike. Just as strike is a weapon available to theemployee for enforcing their industrial demand, a lock out is a weapon available to the employer t o p e r s u a d e b y a c o e r c i v e p r o c e s s t h e e mp l o ye e t o s e e h i s p o i n t o f v i e w a n d t o a c c e p t h i s demands. In the struggle between the capital and labour the weapon of strike is available to labour and is often used by it, so is the weapon of lock out available to the employer and can beused by him.Lock out was comprehensively defined in the repealed Trade Disputes Act, 1929 as closing of place of employment or suspension of work or refusal by an employer to continue to employ anynumber of persons employed by him in consequence of a dispute done with a view to compellingthose persons or to aid another employer in compelling persons employed by him to accept termsor conditions of or affecting employment. This definition was based on the definition of lock out in the English statute. The present definition omits the words when such closing, suspensionor refusal occurs in consequence of a dispute and is intended for the purpose of compelling those persons or to aid another employer in compelling persons employed by him employed by him toaccept terms or conditions of or affecting employment from the old definition. The deletion of t h e s e wo r d s h a s l e f t t h e d e f i n i t i o n o n l y a mu t i l a t e d a n d t r u n c a t e d v e r s i o n o f t h e c o n c e p t o f lockout. The Court has described the consequences of construing the definition of lock out as itstands without reading the effect of the deleted words in it. If an employer closes the place of employment or suspends work on his premises, lock out would come into existence. A flood mayhave swept away the factory; a fire may have gutted the premises ; a convulsion of nature mayhave sucked the whole place underground, still if the place of employment is closed or the work is suspended or the employer refuses to continue to employ his previous workers, there would bea l oc k o u t a n d t h e e mp l o ye r wo u l d f i n d h i ms e l f e x p o s e d t o t h e pe n a l t i e s l a i d s o wn i n t h e Act. 12 . The High Court then read the effect of the deleted words into the definition and observedthat where the shut down, suspension or refusal is used a weapon corresponding to a strike, thenonly it will be a lock out.Section 2(1) of the Industrial Disputes Act, 1947 defines a lock out as meaning the closing of a place of employment, or the suspension of work, or the refusal by an employer to continue toe mp l o y a n y n u mb e r o f p e r s o n s e mp l o ye d b y h i m. A l o c k o u t i s t h e c l o s u r e o f a n i n d u s t r i a l undertaking because of the existence of or apprehension of an industrial dispute, violence and 12 Sri Ram Chandra Spinning Mills v Province of Madras AIR 1956 Madras 241.

damage to property. It is the suspension of employment in so far as the employer refuses to givework to the workmen until they yield to his demand or withdraw the demands made on him; or because of closing down of a place of employment and the suspension of the work.A lock out is used with some intention, i.e., to coerce or force workmen to come to terms. Thelockouts, thus necessarily involve an overt act on the part of the employer and an element of motive ill-will. In the absence of this overt act, the temporary suspension of work would nota mo u n t t o a l o c k o u t a n d t h e w o r k me n c a n n o t c l a i m w a g e s f o r t h e p e r i o d o f closure. 13 Theconsequences of strikes and lock outs are detrimental to industry as a whole and to the economyof the country because they lead to loss of production.The Indian Law recognizes strike and lockout as methods of collective bargaining. Critique of Supreme Courts ruling on strike as a collective bargaining weapon The right to strike is organically linked with the right to collective bargaining and will continueto remain an inalienable part of various modes of response/expression by the working people,wherever the employeremployee relationship exists, whether recognized or not.As the Supreme Court has declared in Gujarat Steel Tubes v. G. S. T. Mazdoor Sabha 14 : "The right to union, the right to strike is part of collective bargaining and, .. the right of thelabour to pressure ...... the capital, to negotiate and render justice are processes recognised byIndustrial Jurisprudence ........ Industry, represented by intransigent managements, may well bemade to reel into reason by the strike weapon and cannot then squeal or well (sic) and complainof loss of profits or other ill effects but must negotiate or get a reference made. 15 T h e C o u r t s a i d t h a t p a r t I V o f t h e C o n s t i t u t i o n r e a d wi t h Ar t . 1 9 , " s o ws t h e s e e d s o f t h i s bargaining Jurisprudence." 16 13 Shree Narayana Steel Rolling Mills v Their Workmen, 52 FJR 1978, 169 14 (1980) 1L.L.J. 137 (S.C.) 15 Id. at 168 16 Ibid

If the Directive Principles of State Policy enumerated under part IV of the Constitution whenread with Art.19 (which guarantees to the Indian citizens fundamental rights like freedom of s p e e c h a n d e x p r e s s i o n , f r e e d o m o f a s s o c i a t i o n , e t c . ) " " s o w t h e s e e d s o f .. .. . . . b a r g a i n i n g Jurisprudence" then, the relative questions would be: Does the Constitution recognize the right tos t r i k e ? Do e s t h e r i g h t t o f o r m unions 17 g u a r a n t e e d u n d e r t h e C o n s t i t u t i on c a r r y wi t h i t t h e concomitant right to achieve the purpose for which the union is formed? In other words, if theworkers are guaranteed the right to form trade unions, should such trade unions be entitled toengage in collective bargaining and to exercise, if necessary, the right to strike so that the raison' d' etre for the establishment of trade unions serves its purpose. The very object of a trade unionis to substitute collective bargaining for individual bargaining and collective bargaining may bemeaningless without the right to strike. A trade union without the right to strike is a "poor" and"weak" trade union indeed. According to G. D. H. Cole:Workers are required to resort to strike because without a strike they cannot secure a rectificationof the terms of employment imposed upon them because basically there is no equality betweenthem and their employers. They always appear to be in the wrong in the sense of committing a breach of contract. But that is inevitable in the situation in which they are p1aced. 18 However, when the Supreme Court was presented with the same question (formulated slightlyd i f f e r e n t l y) - wh e t h e r t h e r i g h t t o f o r m a u n i o n wo u l d c a r r y wi t h i t t h e c o n c o mi t a n t r i g h t t o collective bargaining and strike, the Supreme Court answered in the negative, in All India Bank Employee's Association v National Industrial Tribunal 19 by ruling: "on the consideration of theArticles (19(1) (c)).. we have reached the conclusion that even a very liberal interpretationof Sub- clause (c) of clause (1) of Article 19 cannot lead to the conclusion that the trade unionsh a v e a g u a r a n t e e d r i g h t t o a n e f f e c t i v e c o l l e c t i v e b a r g a i n i n g o r t o s t r i k e e i t h e r a s a p a r t o f collective bargaining or otherwise." 20 17 Art. 19(1) (c) 18 Cole, G.D.H., British Trade Unionism Today 86. 19

A.I.R. 1962 S.C. 171. 20 Id. at 181. See Radhe Shyam Sharma v. P.M.G. Nagpur, AI.A. 1965S.C.311 at 313; Ghosh v. Joseph, ALA. 1963S.C. 813 (No fundamental right to strike); Kameshwar Prasad v. State of Bihar. ALA. 1962S.C. 1166at 1172(Nofundamental right to strike) I t i s n o t c l e a r wh e t h e r t h e S u p r e me C o u r t b y o b s e r v i n g i n Gujarat Steel Tubes 21 t h a t t h e Directive Principles when read with Art.19 (which guarantees, inter alia, to the citizens thefundamental right to form an association) "sow the seeds of.. bargaining Jurisprudence" hassought to elevate the right to strike to the level of a fundamental right in the face of the decisionsto the contrary rendered by the same Court earlier. 22 There is however, a categorical observation by the Supreme Court in B.R. Singh and others v. Union of India 23 that right to strike is not afundamental right. The Court has said: "Though (right to strike) is not raised to the high pedestalof a fundamental right, it is recognised as a mode of redress for resolving the grievances of workers." 21 Supra Note 14 22 Supra Note 19 23 (1989)2 L.L.J. 591, 597 COLLECTIVE BARGAINING AGREEMENT The agreement arrived at between the representatives of a trade union and the employer is calledas collective bargaining agreement. Ludwig Teller has broadly defined collective bargainingagreement as an agreement between a single employer or an association of employers on the o n e h a n d a n d a l a b o u r u n i o n u p o n t h e o t h e r , wh i c h r e gu l a t e s t h e t e r ms a n d c o n d i t i o n s o f employment. The term collective as applied to collective bargaining agreement will be seen tor e f l e c t t h e p l u r a l i t y n o t o f t h e e mp l o ye r s wh o ma y b e p a r t i e s t h e r e t o , b u t o f t h e e mp l o ye e s therein involved. Again the term collective bargaining is reserved to mean bargaining between anemployer or group of employers and a bona fide labour union. Bargaining which involves acompany dominated union is assumed to be merely a disguised form of individual bargaining. As per Teller the Collective Bargaining agreement bears in its many provisions the

imprints of decades of activity contending for labour equality through recognition of the notions underlyingc o l l e c t i v e n e g o t i a t i o n . I n d e e d , in the collective bargaining agreement is to be found a culminating purpose of labour activity 24 .Collective agreements may be written or unwritten. Whatever be the form of agreements thesemay be looked upon as legislative acts setting forth the rules governing employment relationshipfor a specified period of time. However, these laws are private in nature. Despite many of thel aws passed by the legislature, these agreements are of greater importance to the workers inmajority of cases. The economic strength of the parties is supposed to be the main sanction behind a collective agreement. If a party under the agreement does not ag ree to abide by andf u l f i l l t h e c o m mi t me n t s , t h e ot h e r p a r t y i n o r de r t o me e t i t s o b l i g a t i o n s c a n f o r c e h i m b y resorting to economic pressures to do so. Validity of Collective Bargaining Agreements The collective bargaining agreements may have been made subjects of litigation regarding their validity, enforceability and interpretation. The usual case involves where an employee files a suitin pursuant to the agreement to recover damages or assets his seniority rights guaranteed to him 24 Teller, 476 in the agreement. But there are other ways also whereby the problem is raised. For example, asuit may be filed by the labour organization, an employer or employers association for specific performance or to claim damages or to seek the enforcement of an arbitration clause stipulated inthe agreement. If there is an alleged violation of the agreement it is sometimes sought to enjoin astrike or lock-out called for the purpose or sometimes the labour organization is the plaintiff seeking to enjoin a lock -out in breach of the agreement or failure to hire union employees etc. Wh e r e t h e l e g a l i t y o f t h e a g r e e me n t i s d e s i g n e d t o b e d e s t r o ye d , t h e v a l i d i t y o f c o l l e c t i v e bargaining agreement is also tested in this proceedings. As for example, to secure a closed shopor to regulate an entire industry by prescribing rules governing competition etc. Duration of Collective Bargaining Agreements The durations of collective bargaining agreements vary widely. Unions generally favour shorter contracts, while managements favour longer ones. In the United States many of the contracts arefor a period of one to three or more years, with options to renew. In the United Kingdom, openend contracts, which can be negotiated on notice at any time, are the rule. In the Scandinaviancountries, one year contracts with renewal clauses are usual.The position in India is not clear. A study of 114 contracts in 1961 by the Employers Federationof India showed that a majority of them were for one to five years,

with a strong trend in favour of longer terms. (This may perhaps be evidence of control by employer or of employers superior bargaining power or both). The long-term contract has two advantages for management over theshort-term one:( 1 ) I t i m p a r t s s t a b i l i t y t o l a b o u r - m a n a g e m e n t r e l a t i o n s , a n d (2)It helps in planning production and e x p a n s i o n p r o g r a m m e s b a s e d o n f i x e d l a b o u r c o s t s (one of the highest items in the budgets of many industries). Contents or Subject Matter of Collective Bargaining Agreements The subjects for collective bargaining are determined by the parties in some countries and by lawin others. In Denmark, Germany, Italy, Norway, Sweden, Switzerland, the United Kingdom and the United States, the parties determine their subjects freely (of course within legal limits). InBrazil, Columbia, Equador and some other Latin American Countries the law specifies that everycontract must include clauses regulating wages, hours, rest periods, holidays, the duration of theagreement, the procedure for its extension. In France, every national collective contract mustcontain provisions on freedom of employees (with particular reference to the prohibition of d i s c r i mi n a t i o n o n g r o u n d s o f me mb e r s h i p i n a n y p a r t i c u l a r u n i o n ) , l e n g t h o f n o t i c e , a n d organization of apprenticeship and training. In Canada, every contract must contain a grievance procedure. 25 I n I n d i a t h e s e l e c t i o n o f s u b je c t s , wh i l e i t i s f o r t h e p a r t i e s t o d e c i d e , i s n e v e r t h e l e s s r a t h e r narrowly circumstanced by law. For example, the negotiators of a contact must always keep inmind the provisions of the Factories Act, 1948, the Industrial Employment (Standing Orders)Act, 1946, the Minimum Wages Act, 1948 and the Payment of Wages Act, 1936. These dealwi t h ma n y s u bj e c t s s u c h a s s a f e t y p r e c a u t i o n s , h e a l t h me a s u r e s , a me n i t i e s , c o n d i t i o n s o f e mp l o yme n t , r e t r e n c h me n t mu s t b e c a r r i e d o u t , r a ti o n a l i z a t i o n mu s t b e u n d e r t a k e n , a n d disciplinary proceedings must be handled.Some contracts are short and deal with a few matters, while others are elaborate and deal withmany. Usually all contracts in India contain most or all of the following clauses:( 1 ) A p r e a m b l e s t a t i n g t h e p o s i t i o n s of the parties;(2)Recognition by the employer of the u n i o n a s s o l e b a r g a i n i n g a g e n t a n d o f i t s r i g h t t o organize the workers;( 3 ) R e c o g n i t i o n o f t h e r i g h t o f m a n a g e m e n t t o carry on its normal activities and meet i t s responsibilities;( 4 ) W a g e s , b o n u s a n d d e a r n e s s a l l o w a n c e ; (5)Grades, job classification and job evaluation;(6)Hours of work, holidays, leave and o v e r t i m e ; ( 7 ) Di s mi s s a l , d i s c h a r g e , t e r mi n a t i o n a n d r e t i r e me n t

f r o m s e r v i c e i n s o f a r i t i s n o t c o v e r e d b y the companys standing orders;( 8 ) M e d i c a l b e n e f i t s , p r o v i d e n t f u n d , p e n s i o n a n d g r a t u i t y; 25 ILO, Collective Bargaining 46-47 ( 9 ) J o i n t ma c h i n e r y f o r t h e e f f i c i e n t a n d s mo o t h f u n c t i o n i n g o f t h e i n d u s t r y, s u c h a s a jo i n t production committee, a joint labour relations committee, a job evaluation committee, or adiscipline, safety and welfare committee;( 1 0 ) G r i e v a n c e p r o c e d u r e ; ( 1 1 ) N o - s t r i k e clause, and an undertaking that disputes will be s e t t l e d t h r o u g h m u t u a l consultation; and( 1 2 ) Th e du r a t i o n a n d t e r mi n a t i o n o f t h e c o n t r a c t . The signing of the contract makes a great impression on the rank and file of the union. Its formal language is the mark of its significance anda guarantee that the management will carryout its pledged word. It strengthens the position of the union in the eyes of the members, and it provides basis for a continuing and dignified relationship between the management and the employers. 26 Enforcement of Collective Bargaining Agreements The enforcement of bargaining contracts depends in some countries on the good faith of the parties and in others, on that, plus the law. In the United Kingdom, such contracts are calledg e n t l e me n s a g r e e me n t s . To e n f o r c e t h e m i n a c o u r t o f l a w, wo r k e r s mu s t r e l y o n t h e i r i n d i v i d u a l c o n t r a c t s w i t h t h e i r e mp l o ye r , wh i c h ma y i n s o me c a s e s i n c o r p o r a t e t h e l a r g e r a g r e e me n t . I n a g r e a t ma n y c o u n t r i e s o f Eu r o p e , La t i n A me r i c a a n d As i a , t h e e f f e c t s o f t h e contract are regulated by special legislation. They can then be enforced in a court of law, either by the union or by the individual worker, through an action for damages for breach of contract.Scandinavian countries, Germany, Ireland and some Latin American countries have establishedspecial courts to enforce the contracts on the grounds that procedure in ordinary courts is longand costly, that delay may result in a strike and to secure a quick remedy. The actions here mustu s u a l l y b e b r o u g h t b y t h e u n i o n s ; b u t i n s o me c a s e s i nd i v i d u a l s ma y b e a l l o w e d t o s t a r t proceedings. 27 26 Mary Sur, Supra Note 1 at 107 27 ILO, Collective Bargaining 71-72 In India, the collective bargaining agreements can be enforced under section 18 of the IndustrialDi s p u t e s A c t , 1 9 4 7 , a s a s e t t l e me n t a r r i v e d a t b e t we e n t h e wo r k e r s a n d t h e e mp l o ye r s . Th e appropriate government may refer the dispute over a breach of contract to a labour court or to anindustrial tribunal.

I.L.O CONVENTIONS ON COLLECTIVE BARGAINING India is a founder member of the International Labour Organization, which came into existencein 1919. A unique feature of the ILO is its tripartite character. The membership of the ILOe n s u r e s t h e g r o w t h o f tripartite system in the Member countries. At every level i n t h e Organization, Governments are associated with the two other social partners, namely the workersand employers. All the three groups are represented on almost all the deliberative organs of theILO and share responsibility in conducting its work.The principal means of action in the ILO is the setting up the International Labour Standards inthe form of Conventions and Recommendations. Conventions are international treaties and arei n s t r u me n t s , wh i c h c r e a t e l e g a l l y b i n d i n g o b l i g a t i o n s o n t h e c o u n t r i e s t h a t r a t i f y t h e m. Recommendations are non-binding and set out guidelines orienting national policies and actions. Specific features of Conventions Conventions have a number of specific features, which can be grouped under four main ideas:1 . C o n v e n t i o n s a r e a d o p t e d w i t h i n a n institutional framework. Thus, the adoption of C o n v e n t i o n s does not follow the type of diplomatic negotiation which is usual in the case of treaties. They arer a t h e r p r e p a r e d i n discussions in an assembly that has many points in c o m m o n w i t h parliamentary assemblies. This also partly explains the fact that unanimity is not necessary for th e adoption of Conventions. For the same reason, only the International Court of Justice caninterpret the Conventions. The revision of Conventions is made only by the General Conference,which is the legislative body of the Organization.2 . T h e I n t e r n a t i o n a l L a b o u r Conference, which adopts Conventions, is c o n s t i t u t e d b y representatives of governments, employers and workers, each delegate being entitled to voteindividually. 3.A two-thirds majority is sufficient for the adoption of a C o n v e n t i o n , a n d g o v e r n m e n t s s h o u l d s u b mi t t h e C o n v e n t i o n t o t he i r c o mp e t e n t a u th o r i t i e s f o r r a t i f i c a t i o n , i .e . a s a r u l e t o t h e i r parliaments. Also, the governments have the obligation, when requested, to supply reports on various issues related to Conventions.4 . S o m e C o n v e n t i o n s i n c l u d e f l e x i b i l i t y clauses, because they are generally directed t o w a r d s c o u n t r ie s wi t h v e r y d i f f e r e n t e c o n o mi c , s o c i a l a n d p o l i t i c a l c o n d i t i on s , a s we l l a s d i f f e r e n t c o n s t i t u t i on a l a n d l e g a l s ys t e ms . Th e f l e x i b i l i t y c l a u s e s c o mp r i s e o p t i o n s r e g a r d i n g t h e following:(a) Obligations

: possibility of choosing, at the time of ratification, by means of formal declaration,the extent of the obligations undertaken. (for .e.g. Social Security Convention, No. 102)(b) Scope : Governments may decide for themselves, subject to certain consultations, what the scopeof the Convention shall be (for. e.g. Conventions of minimum wage fixing machinery, Nos. 26and 29), or they may be permitted to exclude certain categories of persons or undertakings (for e.g. Conventions on night work, Nos.41 and 89), or the definitions of persons covered may be based on a specified percentage of the wage earners or population of the country concerned (for e .g . ma n y s o c i a l s e c u r i t y Conventions), or exceptions are allowed for a certain part of t h e country (Various types of Conventions, for e.g. Nos. 24, 25, 62, 63, 77, 78, 81, 88, 94, 95, 96etc.), or governments may themselves define a certain branch, industry or sector (for e.g. Weeklyrest Convention, No. 106);(c) Methods : State which ratifies a Convention shall take such action as may be necessary to makeeffective the provisions of such Convention, custom, administrative measures or, in certaincircumstances, collective agreements. Core Conventions of the ILO The eight Core Conventions of the ILO (also called fundamental/human rights conventions) are: 1.Forced Labour Convention (No. 2 9 ) 2.Abolition of Forced Labour Convention (No.105)3.Equal Remuneration Convention ( N o . 1 0 0 ) 4.Discrimination (Employment Occupation) Convention (No.111)( The above four have been ratified by India ).5 . F r e e d o m o f A s s o c i a t i o n a n d P r o t e c t i o n o f R i g h t t o Organised Convention (No.87)6 . R i g h t t o O r g a n i s e a n d Collective Bargaining Convention (No.98)7 . M i n i m u m A g e C o n v e n t i o n ( N o . 1 3 8 ) 8.Worst forms of Child Labour Convention (No.182)( These four are yet to be ratified by India ) ILO Conventions on Collective Bargaining T h e r e a r e s e v e r a l o t h e r I LO C o n v e n t i o n s a n d R e c o m me n d a t i o n s t h a t r e l a t e t o c o l l e c t i v e bargaining. These are:1 . t h e R i g h t t o Organise and Collective Bargaining Convention, 1949 (No. 98);2 . t h e C o l l e c t i v e A g r e e me n t s R e c o m m e n d a t i o n , 1 9 5 1 ( N o . 9 1 ) ; 3.the Voluntary Conciliation and Arbitration Recommendation, 1951 (No.

92);4 . t h e L a b o u r A d mi n i s t r a t i o n C o n v e n t i o n , 1 9 7 8 (No. 150);5.the Labour Administration R e c o m me n d a t i o n , 1 9 7 8 ( N o . 1 5 8 ) ; 6.the Labour Relations (Public Service) Convention, 1978 (No. 151);7.the Labour Relations (Public Service) Recommendation, 1978 (No. 159); and 8 . t h e C o l l e c t i v e B a r g a i n i n g R e c o m m e n d a t i o n , 1 9 8 1 ( N o . 1 6 3 ) . In this chapter, we will discuss three main conventions on collective bargaining. Which are asfollows: Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) This Convention establishes the right of all workers and e m p l o y e r s t o f o r m a n d j o i n o r g a n i z a t i o n s o f t h e i r o wn c h o o s i n g wi t h o u t p r i o r a u t h o r i z a t i o n , a n d l a ys d o wn a s e r i e s o f guarantees for the free functioning of organizations w i t h o u t i n t e r f e r e n c e b y t h e p u b l i c authorities. Right to Organize and Collective Bargaining Convention, 1949 (No. 98) One of the most well-known and widely ratified Conventions that relate to collective bargainingis No. 98 the Right to Organise and Collective Bargaining Convention, 1949. This fundamentalConvention says that member States should encourage systems of voluntary negotiations in order to regulate terms and conditions of employment through collective agreements. All the other C o n v e n t i o n s a n d R e c o m me n d a t i o n s l i s t e d a b o v e c o mp l e me n t C o nv e n t i o n No . 9 8 t h r o u g h clarifying concepts and supporting the principles that it defines.Right to Organize and Collective Bargaining Convention, 1949 provides for protection against anti-union discrimination, for protection of workers and employers organizations against actsof interference by each other, and for measures to promote collective bargaining. Collective Bargaining Convention, 1981 (No. 154) T h e C o l l e c t i v e B a r g a i n i n g C o n v e n t i o n ( No . 1 5 4 ) w a s a d o p t e d b y t h e I n t e r n a t i o n a l L a b o u r Conference in 1981. It promotes free and voluntary collective bargaining. This Convention e n c o u r a g e s c o l l e c t i v e b a r g a i n i n g i n b o t h t h e p r i v a t e s e c t o r a nd t h e p u b l i c s e c t o r ( wi t h t h e e x c e p t i o n o f a r me d f o r c e s a n d t h e p o l i c e ) , wi t h t h e o n l y r e s e r v a t i o n t h a t n a t i o n a l l a ws o r Regulations or national practice may fix special modalities of application of the convention asregards the public service. Member States which ratify the convention may no longer confinethemselves to consultations. They are bound to promote collective bargaining for d e t e r mi n i n g wo r k i n g c o n d i t i o n s a n d t e r ms o f e mp l o yme n t , a mo n g o t h e r o b je c t i v e s . T h e extension of the scope of the Convention No. 154 to the public service was facilitated by the factthat, in contrast with convention No. 98, this

instrument does not refer to the determination of terms and conditions of employment by means of collective agreements. Other indications of flexibility are also to be found in Convention 154 in its provision that collective bargainingshould be progressively extended to all matters covered by the convention or that its provisionsshall, in so far as they are not otherwise made effective by means of collective agreements,arbitration awards or in such other manner as may be consistent with the national practice, begiven effect by national laws or regulations.Th e d e f i n i t i o n o f c o l l e c t i v e b a r g a i n i n g a nd s c o p e a r e c o n t a i n e d i n Ar t i c l e 1 a n d 2 o f t he convention, Article 4 contains method of application and reads as follows;the provisions of this convention shall, in so far as they are not otherwise made effective bymeans of collective agreements, arbitration awards or in such other manner as may be consistentwith national practice, be given effect by national laws or regulations.Promotion of Collective BargainingArticle 51 . M e a s u r e s adapted to national conditions shall be taken to promote c o l l e c t i v e b a r g a i n i n g . 2 .Th e a i ms o f t h e me a s u r e s r e f e r r e d t o i n p a r a g r a p h 1 o f t h i s Ar t i c l e s h a l l b e t h e f o l l o wi n g : ( a ) C o l l e c t i v e B a r g a i n i n g s h o u l d b e ma d e p o s s i b l e f o r a l l e mp l o ye r s a n d a l l g r o u p s o f workers in the branches of activity covered by this convention;( b ) C o l l e c t i v e b a r g a i n i n g s h o u l d b e progressively extended to all matters covered b y subparagraphs (b) and (c) of Article 2 of is Convention;( c ) E s t a b l i s h m e n t o f r u l e s o f p r o c e d u r e a g r e e d b e t w e e n e m p l o y e r s a n d w o r k e r s organizations should be encouraged;( d ) C o l l e c t i v e b a r g a i n i n g s h o u l d n o t e h a m p e r e d b y t h e a b s e n c e o f r u l e s g o v e r n i n g the procedure to be used or b the inadequacy or inappropriateness of such rules;( e ) B o d i e s a n d procedures for the settlement labour disputes should be s o c o n c e i v e d as to contribute to promotion of collective bargaining. Article 6: The provisions of this convention do not preclude the operation of industrial relationssystems in which collective bargaining takes place within the framework of conciliation and or a r b i t r a t i o n ma c h i n e r y o r i n s t i t u t i on s , i n wh i c h ma c h i ne r y o r i n s t i t u t i o ns , t h e p a r t i e s t o th e collective bargaining process voluntarily participate.Article 7: Measures taken by public authorities to encourage and promote the development of collective bargaining shall be the subject of prior consultation and whenever possible, agreement between public authorities and employers and workers organizations.Article 8: The measures taken with a view to promoting collective bargaining shall not be soconceived or applied as to hamper the freedom of collective bargaining.Article 9: This convention does not revise any existing convention or recommendation.

Collective Bargaining Recommendation, 1981 (No. 163) concerning the promotion of Collective Bargaining Recommendation No. 163 outlines in more detail measures the Government and the partiesmight take to promote collective bargaining. The general conference of International Labour Organization, having been convened at Geneva by the Governing Body of the InternationalLabour Office, and having met in its sixty-seventh session on 3 June 1981, and having decidedupon the adoption of certain proposals with regard to the promotion of collective bargaining,which is the fourth item on agenda of the session, and having determined that these proposalsshall take the form of recommendation supplementing the collective bargaining convention,1 9 8 1 , a d o p t s t h e f o l l o wi n g r e c o m me n d a t i o n , wh i c h ma y b e c i t e d a s C o l l e c t i v e B a r g a i n i n g Recommendation, 1981:1 . T h e provisions of this recommendation may be appl ied by n a t i o n a l l a w s o r r e g u l a t i o n s , collective agreements, arbitration awards or in any other manner consistent with national practice; 2.In so far as necessary, measures adapted to n a t i o n a l c o n d i t i o n s s h o u l d b e t a k e n t o facilitate the establishment and growth, on a voluntary basis, of free, independent andrepresentative employers and workers organizations.3 . I n s o f a r a s necessary, measures adapted to national conditions s h o u l d b e t a k e n s o t h a t - (a) representative employers and workers organizations are recognized for the purposeso f c o l l e c t i v e ba r g a i n i n g ; ( b ) i n c o u n t r i e s in wh i c h t h e c o mp e t e n t a u t h o r i t i e s a p p l y procedures for recognition with a view to determining the organizations to be granted theright to bargain collectively, such determination is based on preestablished and objectivec r i t e r i a wi t h r e g a r d t o t h e o r g a n i z a t i o n s r e p r e s e n t a t i v e s c h a r a c t e r , e s t a b l i s h e d i n consultation with representative employers and workers organizations.4 . ( 1 ) M e a s u r e s adapted to national conditions should be taken, i f n e c e s s a r y , s o t h a t collective bargaining is possible a t a n y l e v e l w h a t s o e v e r , i n c l u d i n g t h a t o f t h e establishment, the undertaking, the branch of activity, the industry, or the regional or national levels. (2) In countries where collective bargaining takes place at several levels,the parties to negotiations should seek to ensure that there is co-ordination among theselevels.5 . ( 1 ) M e a s u r e s s h o u l d b e taken by the parties to collective bargaining so t h a t t h e i r negotiators, at all levels, have the opportunity to o btain appropriate training. (2) Publicauthorities may provide assistance to workers and employers organizations, at their request, for such training. (3) The content and supervision of the programmes of suchtraining should be determined by the appropriat e workers or

employers organizationconcerned. (4) Such training should be without prejudice to the right of workers ande m p l o y e r s organizations to choose their own representatives for the p u r p o s e o f collective bargaining.6 . P a r t i e s t o c o l l e c t i v e bargaining should provide their respective negotiators, s o t h a t t h e necessary mandate to conduct and conclude negotiations, subject to any provisions for consultations within their respective organizations. 7.(1) Measures adapted to national conditions s h o u l d b e t a k e n , i f n e c e s s a r y , s o t h a t t h e parties have access to the information required for meaningful negotiations. (2) ZFor this purpose (a) public and private employees should, at the r e q u e s t o f w o r k e r s organizations, make available such information on the economic and social situation of t h e n e g o t i a t i n g u n i t a n d t h e u n d er t a k i n g a s a wh o l e , a s i s n e c e s s a r y f o r me a n i n g f u l negotiations; where the disclosure of some of this information could be prejudicial to theundertaking, its communication may be made conditional upon a commitment that itwould be regarded as confidential to the extent required; the information to be made available may be agreed upon between the parties to collective bargaining; (b) the publica u t h o r i t i e s s h o u l d ma k e a v a i l a b l e s u c h i n f o r ma t i o n a s i s n e c e s s a r y o n t h e o v e r - a l l economic and social situation of the country and the branch of activity concerned, to thee x te n t t o wh i c h t h e d i s c l o s u r e o f t h i s i n f o r ma t i o n i s n o t p r e ju d i c i a l t o t h e n a t i o n a l interest.8 . M e a s u r e s a d a p t e d t o n a t i o n a l conditions should be taken, if necessary, so that t h e procedures for the settlement of labour disputes assist the parties to find a solution to thedispute themselves, whether the dispute is one which arose during the negotiation of agreements, one which arose in connection with the interpretation and application of agreements or one covered by the examination of grievances recommendation, 1967.9 . T h i s recommendation does not revise any existing r e c o m m e n d a t i o n . Conclusion: To promote Collective bargaining in our country what is needed is firstly, a boldrealistic Government approach with full commitment to it and secondly, a favorable environmentto promote competence on the part of the employers and trade union to negotiate with each other,C o l l e c t i v e b a r g a i n i n g h a s m a d e c o n s i d e r a b l e h e a d w a y i n o u r c o u n t r y w h i c h i s r e c e n t l y characterized by s i g n i n g o f a g r e e me n t s , s e t t l e me n t s b e t w e e n t h e p a r t i e s . I t h a s r e s u l t e d i n considerable signing economic gains to both blue collared and white collared workers. Summary of the Principles by the Committee of Experts - Concerning the Right toCollective Bargaining

The standards and the principles concerning the right to collective bargaining emerging fromI L O s C o n v e n t i o n s , R e c o mme n d a t i o n s a n d o t h e r r e l e v a nt i n s t r u me n t s , a n d t h e p r i n c i p l e s established by the Committee of Experts on the basis of these instruments, may be summarizedas follows:( a ) Th e r i g h t t o c o l l e c t i v e b a r g a i n i n g i s a f u n d a me n t a l r i g ht e n d o r s e d b y t h e me mb e r s o f t h e I L O b y t h e v e r y f a c t o f t h e i r me mb e r s h i p o f t h e o r g a n i z a t i o n , w h i c h t h e y h a v e a n o b l i g a t i on t o r e s p e c t , t o pr o mo t e a n d t o r e a l i z e i n g o o d f a i t h ( I L O De c l a r a t i o n o n Fundamental Principles Rights at Work and its follow-up);( b ) C o l l e c t i v e B a r g a i n i n g i s a r i g h t o f e m p l o y e r s a n d t h e i r o r g a n i z a t i o n s , o n t h e o n e h a n d , and organizations of workers, on the other hand (first-level trade unions, federations andconfederations); only in the absence of these latter organizations may representatives of the workers concerned engage in collective bargaining;( c ) Th e r i g h t t o c o l l e c t i v e b a r g a i n i n g s h o u l d b e r e c o g n i z e d t h r o ug h o u t t h e p r i v a t e a n d p u b l i c s e c t o r s , a n d i t s only the armed forces, the police and public servants e n g a g e d i n administration the State who may be excluded from the exercise thereof(Convention 98);( d ) T h e p u r p o s e o f t h e c o l l e c t i v e bargaining is the regulation of terms and conditions o f employment, in a broad sense, and the relations between the parties;( e ) C o l l e c t i v e a g r e e me n t s a r e b i n d i n g o n t h e p a r t i e s a n d a r e i n t e n d e d t o d e t e r mi n e t e r ms a n d conditions of employment which are more favourable than those established by law.Preference must not be given to individual contracts over collective agreements, exceptwhere more favourable provisions are contained in individual contracts; (f)To be effective, the exercise of the r ight to collective b a r g a i n i n g r e q u i r e s t h a t w o r k e r s organizations are independent and not under the control of employers or employersorganizations, and that the process of collective bargaining can proceed without undueinterference by the authorities;( g ) A t r a d e u n i o n w h i c h represents the majority or high percentage of w o r k e r s i n a bargaining unit may enjoy preferential or exclusive bargaining rights. However, in caseswhere no trade union fulfils these conditions or such exclusive rights are not recognized,workers organizations should nevertheless be able to conclude a collective agreement on behalf of their own members;( h ) Th e p r i n c i p l e of g o o d f a i t h i n c o l l e c t i v e b a r g a i n i n g i mp l ie s g e n u i n e a n d p e r s i s t e n t e f f o r t s by both parties;( i ) I n v i e w o f t h e f a c t t h a t t h e v o l u n t a r y n a t u r e o f c o l l e c t i v e b a r g a i n i n g i s a f u n d a m e n t a l aspect of the principles of freedom of associations, collective bargaining may not beimposed upon the parties and procedures to support bargaining must, in principle, takeinto account its voluntary nature. Moreover, the level of

bargaining must not be imposedunilaterally by law or by the authorities, and must be possible for bargaining to take placeat any level;( j ) I t i s acceptable for conciliation and mediation to be i m p o s e d b y l a w w i t h i n t h e f r a m e work of the process of collective bargaining, provided that reasonable time limits areestablished. However, the imposition of compulsory arbitration in cases where the partiesdo not reach agreement in generally contrary to the principle of voluntary collective bargaining and is only admissible: (1) in essential services in the strict sense of the term(those whose interruption would endanger the life, personal safety or health of the wholeor part of the population); (2) with regard to public servants engaged in the administrationo f t h e S t a t e ; ( 3 ) wh e r e , a f t e r p r o l o n g e d a n d f r u i t l e s s n e g o t i a t i o n s , i t i s c l e a r t h a t t h e deadlock will not be overcome without an initiative by the authorities, and (4) in the event of an acute national crises. Arbitration which is accepted by both parties (voluntaryarbitration) is always legitimate;( k ) I n t e r v e n t i o n s b y t h e legislative or administrative authorities which have the e f f e c t o f annulling or modifying the content of freely concluded collective agreements, includingwage clauses, are contrary to the principle of voluntary collective bargaining;( l ) R e s t r i c t i o n s o n t h e c o n t e n t o f f u t u r e collective agreements, particularly in relation towages, which are imposed by the authorities as part of economic s t a b i l i z a t i o n o r structural adjustment policies for imperative reasons of economic interest, are admissibleonly in so far as such restrictions are preceded by consultations with the organizations of w o r k e r s a n d E mp l o ye r s a n d f u l f i l l t h e f o l l o wi n g c o n d i t i on s : t h e y a r e a p p l i e d a s a n exceptional measure, and only to the extent necessary, they do not exceed a reasonable period, and they are accompanied by adequate guarantees designed to protect effectivelythe standards of living of the workers concerned, and particularly those who are likely to be most affected.The observations made by the Committee of Experts concerning the application of the Right toOrganize and Collective Bargaining Convention (No. 98), shows that the great majority of States which have ratified the convention apply it in a satisfactory manner. This demonstratesthat it is a right which enjoys almost universal recognition in law and practice. Collective bargaining and social dialogue Collective bargaining is an important form of social dialogue. Institutions for social dialogue andc o l l e c t i v e b a r g a i n i n g h e l p p r o t e c t t h e f u n d a me n t a l r i g ht s o f wo r k e r s , h e l p p r o v i d e s o c i a l protection and promote sound industrial relations. Social dialogue, in turn, is an important part of good governance. Because social dialogue involves the social partners (employers and workersorganizations) it further encourages accountability and

participation in decisions that affect thelives of all society. These factors directly contribute to better government. The ILO defines social dialogue to include all types of negotiation, consultation or simplyexchange of information between representatives of governments, employers and workers, andinvolves issues of common interest relating to economic and social policy. This definition brings together the elements of various understandings of social dialogue into one inclusiveconcept. Convention No. 154 and Recommendation No. 163 acknowledge that information,c o n s u l t a t i o n a n d n e g o t i a t i o n a r e i n t e r - l i n k e d a n d r e i n f o r c e e a c h o th e r . Wh i l e f o c u s in g o n n e g o t i a t i o n s , b o t h h i g h l i g h t t h e i mp o r t a n c e o f a c o m mo n i n f o r ma t i o n b a s e f o r me a n i n g f u l ne g o t i a t i o n s , a n d t h e r o l e o f c o n s u l t a t i o n i n d e c i d i n g me a s u r e s t o e n c o u r a g e a n d p r o mo t e collective bargaining.From the ILO perspective, collective bargaining is an important way for workers, employers andtheir organizations to reach agreement on issues affecting the world of work. While collective bargaining can often be an adversarial process, it should better be used to build trust between the parties. This trust can be reinforced through dialogue which can continue after bargaining ends.Solutions that are built on trust and enjoy the genuine support of both sides are more likely to berespected. This is due to the sense of participation and ownership inherent in the process. As ar e s u l t , unnecessary disputes, and disruptions through industrial a c t i o n , c a n mo r e e a s i l y b e prevented.The practical means that can be used to develop effective collective bargaining as set out inConvention No. 154 and Recommendation No. 163 necessarily promote social dialogue. In sod o i n g t h e y h e l p t o d e v e l o p a b r o a d e r c u l t u r e o f d i a l o g u e , r e i n f o r c i n g b e t t e r g o v e r n a n c e , participation and accountability. EVOLUTION OF INDUSTRIAL JURISPRUDENCE IN INDIA The evolution of Industrial Jurisprudence in India can be t r a c e d b a c k t o t h e p e r i o d o f p o s t Independence. Before the Independence, the industrial jurisprudence existed in a rudimentaryf o r m. T h e p a r a mo u n t c o n c e r n o f t h e P r e i n d e p e n d e n c e i n d u s t r i a l ju r i s p r u d e n c e wa s t h e amelioration of the working condition of the workers at the factories. There was hardly any dealw i t h t h e s o c i a l j u s t i c e t o t h e w o r k i n g c l a s s . I t w a s o n l y a f t e r t h e c o m m e n c e m e n t o f o u r Constitution, that the adequate provisions for the social justice to the workers were inserted.Th e a s p e c t o f i n d u s t r i a l i z a t i o n i n I n d ia wa s b a s e d o n t h e p r o g r a m o f p l a n n i n g , wh i c h wa s accepted after thirties. It is important to take into consideration that the plantation industry of Assam was the first to attract the industrial legislation. The situation there was that the employersexercised hard practices against the employees. The employees were

not allowed to leave the teagardens. A number of Acts were passed from 1863 onward, but they only protected the interestso f t h e e m p l o y e r s . S o m e other Acts were also passed to regulat e the condition. B u t t h e Workmens Compensation Act, 1923 was the landmark Act. Indian Constitution and Social Justice Industrial Jurisprudence was not in a much developed form before the commencement of theConstitution of India. Before the Independence, the paramount concern of the Government wast o a me l i o r a t e t h e c o n d i t i o n o f t h e f a c t o r y wo r k e r s . I t wa s a f t e r t h e c o m me n c e me n t o f t h e Constitution that the paramount concern of the Government shifted towards the social justice for t h e l a b o u r e r s , wh o c o n s t i t u t e d t h e b u l k o f t h e p o p u l at i o n . B h a g wa t i J ., i n a l a n d ma r k c a s e o p i n e d t h a t c o n c e p t o f ju s t i c e d o e s n o t e ma n a t e f r o m t h e f a n c i f u l n o t i o n s o f a n y p a r t i c u l a r adjudication but must be founded on a more solid foundation 28 . Justice Gajendragadkar opinedthat the concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the idea of welfare state 29 .The Indian Constitution also enshrines the idea of social justice as one of the objectives of theState. COLLECTIVE BARGANING IN INDIA 28 Muir Mills Ltd. v. Suti Mill Mazdoor Union, (1955 1 LJJ 1 (SC) 29 State of Mysore v. Workers of Gold Mines, AIR 1958 SC 923 Collective Bargaining in India has been the subject-matter of industrial adjudication since longand has been defined by our Law Courts. In Kamal Leather Karamchari Sangathan v. LibertyFootwear Company 30 the Supreme Court observed that, "Collective bargaining is a technique bywhich dispute as to conditions of employment is resolved amicably by agreement rather thancoercion".According to the Court, the Industrial Disputes Act, 1947, seeks to achieve social justice on the b a s i s o f c o l I e c t i v e b a r g a i n i n g . I n a n e a r l i e r ju d g me n t i n Titagarh Jute Co. Ltd. v. Sriram Tiwari 31 the Calcutta High Court clarified that this policy of the legislature is also implicit in thedefinition of 'industrial dispute'.In Ram Prasad Viswakarma v. Industrial Tribunal 32

the Court observed that, "it is well knownhow before the days of 'collective bargaining', labour was at a great disadvantage in obtainingreasonable terms for contracts of service from its employer. As trade unions developed in thec o u n t r y a n d c o l l e c t i v e b a r g a i n i n g b e c a me t h e r u l e , t h e e mp l o ye r s f o u n d i t n e c e s s a r y a n d convenient to deal with the representatives of workmen, instead of individual workmen, not onlyfor the making or modification of contracts but in the matter of taking disciplinary action againstone or more workmen and as regards all other disputes.In Bharat Iron Works v. Bhagubhai Balubbai Patel 33 it was held that 'Collective bargaining, being the order of the day in the democratic social welfare State, legitimate trade union activities,which must shun all kinds of physical threats, coercion or violence, must march with a spirit of tolerance, understanding and grace in dealings on the part of the employer. Such activities canflow in healthy channel only on mutual cooperation between the employer and the employees and cannot be considered as irksome by the management in the best interests of its business.Dialogue with representatives of a union help striking a delicate balance in adjustments andsettlement of various contentious claims and issues." 30 AIR 1990 SC 247 31 (1979) Lab I.C. 523 (Cal)] 32 (1961) I LL.J 504 33 (1976) Lab. I.C. 4 [S.C] These definitions only bring out the basic element in the concept i.e., civilized confrontation between employers and employees and the whole process is regulated by statutory provisions. Types of Collective Bargaining Agreements in India Collective bargaining as it is practiced in India can be divided into three classes. First is, the bipartite agreement drawn up in voluntary negotiation between management and union. Thesecond type is known as a settlement, while the third type of collective agreement is consentaward. These are discussed below:1. Bipartite Agreements : These are most important types of collective agreements becausethey represent a dynamic relationship that is evolving in establishment concerned withouta n y pressure from outside. The bipartite agreements are d r a w n u p i n v o l u n t a r y n e g o t i a t i on b e t w e e n ma n a g e me n t a n d u n i o n . Us u a l l y t h e a g r e e me n t r e a c h e d b y t h e bipartite voluntarily

has the same binding force as settlement reached in conciliation proceedings. The implementations of these types of agreements are also not a problem because both the parties feel confident of their ability to reach the agreement.2. Settlements : It is tripartite in nature because usually it is reached by conciliation, i.e. itarises out of dispute referred to the appropriate labour department and the conciliationofficer plays an important role in bringing about conciliation of the differing view pointsof the parties. And if during the process of conciliation, the conciliation officer feels thatthere is possibility of reaching a settlement, he withdraws himself from the scene. Then t h e parties are to finalise the terms of the agreement a nd s h o u l d r e p o r t b a c k t o conciliation officer within a specified time. But the forms of settlement are more limitedin nature than bipartite voluntary agreements, because they strictly relate to the issues referred to the conciliation officer.3. Consent Award : Here the negotiation takes place between the parties when the dispute isa c t u a l l y p e n d i n g b e f o r e o n e o f t h e c o m p u l s o r y a d j u d i c a t o r y a u t h o r i t i e s a n d t h e agreement is incorporated to the authorities, award. Thus though the agreement is reached voluntarily between the parties, it becomes part of the binding award pronounced by anauthority constituted for the purpose.The idea of national or industry-wide agreements and that too on a particular pattern may appear to be a more ideal system to active industrial relation through collective bargaining, but theexperience of various countries shows that it is not possible to be dogmatic about the ideal typeof collective bargaining, because it largely depends upon the background, traditions and localfactors of a particular region or country. POSITION OF COLLECTIVE BARGAINING IN INDIA Collective Bargaining machinery essentially is a reflection of a particular social and politicalclimate. The history of the trade union movement shows that union are affiliated to one or theother political parties. As a result most of the trade unions are controlled by outsiders. Critic sayst h a t t h e p r e s e n c e o f o u t s i d e r s i s o n e o f t h e i mp o r t a n t r e a s o n s f o r t h e f a i l u r e o f c o l l e c t i v e bargaining in India. 34 Outsiders in the Process of Collective Bargaining The Trade Unions Act, 1926, permits outsiders to be the office bearers of a union to the extent of half the total number of office bearers. 35 So, it permits one to be the leader of the union who doesnot actually work in the industry. Sometimes a dismissed employee working as a union

leader may create difficulties in the relationship between the union and the employer. 36 Nevertheless,e x p e r i e n c e s h o ws t h a t o u t s i d e r s wh o h a v e l i t t l e k n o wl e d g e o f t h e b a c k g r o u n d o f l a b o u r problems, history of labour movement, fundamentals of trade unionism and the technique of theindustry and with even little general education assume the charge of labour union and becomethe self-appointed custodian of the welfare of workers. The employers, therefore, have beenreluctant to discuss and negotiate industrial matters with outsiders, who have no personal or direct knowledge of day to day affairs of the industry.A c c o r d i n g l y e mp l o ye r s r e f u s e r e c o g n i t i o n t o t h e u n i o n s wh i c h a r e e i t h e r c o n t r o l l e d b y t h e politicians or affiliated to a particular political party or controlled by a particular individual.Government cannot morally compel employers to accord recognition to unions without drivingout the politicians from them. The State must outright ban "outsiders" from the trade union body.Further, provision for political fund 37 by trade unions should be eliminated, since it invariablye n c o u r a g e s the politicians to prey upon them. The National C o m m i s s i o n o n L a b o u r h a s o v e r l o o k e d t h i s a s p e c t . Th e C o m mi s s i o n d o e s n o t f a v o u r a l e g a l b a n o n n o n - e mp l o ye e s f o r holding the union office. It says that without creating conditions for building up the internal 34 S.N. Dhyani, Trade Union and the right to strike, S. Chand & Co. (Pvt.) Ltd, New Delhi, PP. 374-380. 35 See Section 22 of the Trade Unions Act, 1926, 36 See Report of the National Commission on Labour, (1969), P. 288 37 See Section-16 of the Trade Unions Act. 1926. leadership, a complete banning of outsiders would only make unions weaker. The Commissionhopes that internal leadership would develop through their education and training. Accordinglythe Commission suggests proportion of the outsiders and the workers in a union executive. 38 Onrealizing the problems of outsiders in the union, the Industrial Relations Bill, 1988 proposes tor e d u c e t h e n u m b e r o f o u t s i d e r s to two only. Another hurdle in the success of collective bargaining in India, is the absence of a compulsory recognition provision in the Act.

Impact of Recognition as Bargaining Agent in Collective Bargaining In view of the prevailing multi-trade-unionism in the country, recognition of a bargaining agenthas assumed importance. Unfortunately, no attempt has been made at the national level to either l a y d o w n a p r o c e d u r e f o r recognition of a trade-union as bargaining agent or work out a procedure. There is no provision either in the Indian Trade Union Act 1926 or in the IndustrialDisputes Act 1947 for the purpose. The Government of India proposed an amendment in theTrade Union Act in 1950 making recognition of a union compulsory. The measure however,faced serious opposition and remained unimplemented. The Standing Labour Committee (l8thSession) and National Commission on Labour favoured a statutory -provision for the purpose buttheir recommendations have yet to be accepted. The National Commission on Labour attachedconsiderable importance to the matter of recognition of unions and observed as under:" I n d u s t r i a l D e m o c r a c y i m p l i e s t h a t t h e m a j o r i t y u n i o n s h o u l d h a v e t h e r i g h t t o s o l e representation, i.e., the right to speak and act for all workers and enter into agreements with theemployer." 39 In the absence of statutory provision, the matter is regulated by the Code of Discipline whichwas evolved at Nainital session of Indian Labour Conference in 1952. The Code of Discipline provides for verification of trade-union membership by Central Industrial Relations Machinery 38 id. at P. 291, The Commission has recommended as follows :Where the membership of union is;( i) below 1,000 the number of outsiders should not be more than 10%{ii) between 1,000-10,000 . . .. .. .. .. .. 20%(iii) above l,000 . . .. .. .. .. .. . 30%(iv) 'the permissible limit for industry -wise unions should be 30% 39 Report of the National Commission on Labour, (1969)p. 329 of the Government. Its voluntary character has however, made it ineffective and it has beenfound difficult to implement it in view of statutory provisions in the Industrial Disputes Act.At the present not even public sector undertakings are following the Code of Discipline and are bargaining with more than one union.S t a t e s l i k e B o mb a y a nd M a d h ya P r a d e s h h a v e , h o w e v e r , g i v e n s t a t u t o r y r e c o g n i ti o n t o t h e procedure for determination of bargaining agent. Both, Bombay Industrial Relations Act 1946and Madhya Pradesh Industrial Relations Act, 1960, provide for the determination of represent-tative union by the Registrar of Representative Unions. Special provisions have been made for agreements signed by representative unions. In spite of it, the experience shows that there had b e e n s e r i o u s o p p o s i t i o n t o s t a t u t o r y r e c o g n i t i on o f a u n i o n

a s s o l e b a r g a i n i n g a g e n t o f t h e workers of the establishment. Indeed the experience is that wherever there is a union recognition,representative of rival unions have come together to force the empl oyer to bargain with them."The fear of retaliation by unrecognized unions has proved to be the biggest stumbling block inthe success of statutory recognition system. Multi -Unionism P o l i t i c a l o r i e n t a ti o n o f t r a d e u n i o n s i s t h e p r i ma r y r e a s o n f o r mu l t i - u n i o n i s m. C o m mu n a l sentiments, provincial feelings and caste are other major causes for multi-unionism. 40 Presence of t o o ma n y u n i o n s i n a n i n d u s t r y d e s t r o ys t h e b a r g a i n i n g s t r e n g t h o f wo r k e r s . O u r l a b o u r legislation also permits multi-unionism. 41 Multi-unionism adversely affects collective bargaining process. Wh e r e t h e r e a r e t o o ma n y unions, with whom should management negotiate? Each union may claim recognition. Each union may present separate charter of demands in a spirit of rivalry. When conflicting demandsare made, it may be impossible to accept any of them. Moreover, if one union is ready to acceptsome of the demands, other union may object to them. In this context, it is difficult to think of any effective collective bargaining process in India. 40 Mrs. P. Chakravarthy, Strike and Morale in Industry, Calcutta. Navana Printing Works, Pvt. Ltd. (1969) PP. 37-38. 41 See Section-4 of the Trade Unions Act, 1926, permits any seven members to form a union and get registered. Politicization of Trade-Union Movement in India It is well known that the trade-union movement in India is divided on political lines and exists on p a t r o n a g e o f v a r i ou s p o l i t i c a l p a r t i e s . M o s t o f t h e t r a d e - u n i o n o r g a n i z a t i o n s h a v e a l i g n e d themselves with a political party with whom they find themselves philosophically close. It is because of this that the Indian National Trade Union Congress is considered to be the labour wing of congress (I) whereas H.M.S. is considered to be the labour wing of Socialist party.Bhartiya Majdo or Sangh pledges its allegiance to B.J.P. and C.I.T.U has the support of C.P.I.(M). It is also the case with the . AITUC which had started as a national organization of workers but subsequently came to be controlled by the Communist Party of India and is now it's officiallabour wing. Political patronage of trade-unions has given a new direction to the movementwhose centre of gravity is no longer the employees or workmen. The centre has shifted towardsi t l e a d e r s h i p w h o s e e f f e c t i v e n e s s i s

d e t e r mi n e d b y t h e e x t e n t o f p o l i t ic a l p a t r o n a g e a nd t h e c o n s e q u e n t c a p a c i t y t o o b t a i n t h e b e n e f i t . Th i s s h i f t i n g c e n t r e o f p o we r i s t h e n e c e s s a r y consequence of political parties search for workers votes, which they seek by conferring benefitson them. Since the public sector which is really the instrumentality of the State, has emerged asthe biggest employer in this country, the collective bargaining -between the union patronized bythe party-in-power and the employer has become an important methodology. It is because of this process that agreements conferring benefits are signed even in those units where financial lossesare mounting. It is also our experience that inspite of wage increase and improved conditions of service, there has been no corresponding improvement in production or the productivity andmost of the losses are being passed on to the consumers by increasing prices of the products. It isin this context that Justice Gupta has, in his, "Our Industrial Jurisprudence" made the followingobservations:"If our experience is any guide, it reveals that level of increase in wages etc., (in public sector undertaking ) is now decided by the Bureau of Public Enterprises which takes into considerationonly the 'Political impact' and 'Consumer resistance' as two dominant factors. This is the reasonwhy the prices of almost all products of necessity like coal, iron and steel, cement, sugar etc.have been constantly increasing. A survey of pending and decided industrial disputes of the last 10 years reveals that there was virtually no industrial dispute regarding wage structure or bonusin any industry of some significance. There are also not many collective bargaining agreementswhich have tried to link wages with productivity. Clearly, therefore, the basic idea of 'sharing the prosperity' which developed because of our commitment to the cause of 'social justice' is nol o n g e r c u r r e n t a n d t h e e x p e c t e d e n d - p r o d u c t o f t h e p r o c e s s o f ' s o c i a l ju s t i c e " i s n o l o n g e r expected." 42 Critical Evaluation In Indian labour arena we see, multiplicity of unions and inter-union rivalry. Statutory provisionsf o r r e c o g n i s i n g un i o n s a s b a r g a i n i n g a g e n t s a r e a b s e n t . I t i s b e l i e v e d t h a t t h e i n s t i t u t i o n o f collective bargaining is still in its preliminary and organizational stage. 43 State, therefore, must play a progressive and positive role in removing the pitfalls which have stood in the way of mutual, amicable and voluntary settlement of labour disputes. The labour' policy must reflect anew approach.H i t h e r t o t h e S t a t e h a s b e e n p l a y i n g a dominant role in controlling and guiding labourmanagement relation through its lopsided adjudication machinery. The role of the industrialadjudicator virtually differs from that of a judge of ordinary civil court. The judge of a civil courth a s t o a p p l y t h e l a w t o t h e

case before him and decide rights and liabilities according to i t s established laws. Whereas industrial adjudicator has to adjust and reconcile the conflictingclaims of disputants and evolve "socially desirable" rights and obligations of the disputants. 44 Indeciding industrial disputes the adjudicator is free to apply the principle of equity and goodconscience. 42 Justice Gulab Gupta, Our Industrial Jurisprudence, 1987, p.133 43 Dr, B.R. Patil, "Collective Bargaining and Conciliation in India," 12, I.J.I.R. 41 (1976). 44 Anirudh Prasad Singh, "New Dimension of Employer-Employee Relations in Progressive Industrial Society," 9,Lawyer, 164 (1977). However, it is said that the impact of the attitude of the judiciary towards workers has not provedconducive to the peaceful industrial relations. 45 It is accepted that the end of judicial proceedingis pain and penalties. It cannot solve the problems of industries. Accordingly it is said that:" Wh i l e s t a t u t e s , r u l e s , r e g u l a t i o n s , p a i n s a n d p e n a l t i e s h a v e t h e i r pl a c e i n t h e o r d e r i n g o f industry, they do not touch the core of the problems of industrial relations." 46 Moreover, advocates of adjudication contend that as the collective bargaining procedure mightend in a strike or lockout, which implies a great loss to the parties concerned and the country, if f o r t h e s a k e o f i n d u s t r i a l p e a c e , t h e a d ju d i c a t i o n b e c o me s n e c e s s a r y. B u t h a s t h e r e b e e n industrial peace and satisfactory progress since adjudication was adopted after world-war-II? Wedo agree that industrial peace can be established by the adjudication for the time being. But theconflicts are driven deeper and it will retard industrial production. In the absence of effective collective bargaining the anti productivity tendencies are bound to appear. 45 See Dr. Ahmedullah Khan, "Judicial Regulation of Industrial Relations" 9, Awards Digest, 177 (Where the author emphatically discussed the defects of judiciary as far as labour-management relation is concerned.) 46 Kir Kaldy, The spirit of Industrial Relations (1974) P. 58, cited in S.N. Dhyani's op. cit., P.396. LAWS RELATING TO COLLECTIVE BARGAINING IN INDIA As discussed earlier, collective bargaining is a technique by which disputes of employment arer e s ol v e d a mi c a b l y, pe a c e f u l l y a n d v o l u n t a r i l y b y

s e t t l e me n t b e t we e n l a b o u r u n i o n s a n d managements. The method of collective bargaining in resolving the Industrial dispute, whilemaintaining industrial peace has been recognized as the bed rock of the Industrial Disputes Act,1 9 4 7 . U n d e r t h e p r o v i s i o n o f t h e A c t , t h e s e t t l e m e n t a r r i v e d a t b y p r o c e s s o f c o l l e c t i v e bargaining with the employer has been given a statutory recognition under Section 18 of the Act.Under the Act two types of settlement have been recognised:1 . S e t t l e me n t a r r i v e d i n t h e c o u r s e o f c o n c i l i a t i o n p r o c e e d i n g b e f o r e t h e a u t h o r i t y. S u c h s e t t l e me n t s not only bind the member of the signatory union but also non-members as well as all the presentand future employees of the management.2 . S e t t l e m e n t n o t arrived in the course of conciliation proceedings but s i g n e d i n d e p e n d e n t l y b y t h e parties to the settlement, binds only such members who are signatory or party to the settlement.S e c t i o n 1 9 o f t h e Act prescribes the period of operation inter alia of such a s e t t l e me n t a n d envisage the continuation of the validity of such a settlement unless the same is not replaced bya n o t h e r s e t o f s e t t l e me n t , wh i l e Section 29 prescribes the penalty for the breach of such a settlement.The Industrial Disputes Act, 1947 provides for the appointment of Conciliation Officers, chargedwith the duty of mediation in promoting the settlement of industrial disputes. On a reference tothe Conciliation Officer, a Conciliation Board is constituted consisting of representatives of employees and employer with the conciliation officer as the chairman. The memorandum of settlement duly signed by the conciliation officer is to go from one camp to the other and find outgreatest common measure of agreement, to investigate the dispute and to do all such things as hethinks fit to arrive at a fair and amicable settlement of the dispute. 47 47 Royal Calcutta Golf Club Mazadoor Union v. State of west Bengal, AIR 1956 Cal 550. A settlement arrived at by agreement between the employer and the workmen otherwise than int h e c o u r s e o f c o n c i l i a t i o n p r o c e e d i n g s s h a l l b e b i n d i n g o n t h e p a r t i e s t o t h e a g r e e me n t . A settlement comes into operation on such date as is binding on the parties to the agreement, andfor such period as has been agreed upon. Dealing with the binding nature of settlement Chagla, Jhas observed that; Industrial Law takes no notice of any private settlement or agreement arrivedat between parties in the course of industrial dispute. Such a private agreement belongs to the realm of contract, it may give rise to contractual rights; it has no sanctions in industrial law andindustrial dispute does not end until a settlement is arrived at which has been given a bindinge f f e c t u n d e r t h e p r o v i s i o n o f S.19 (2) and such settlement can be only arrived at

w h e n conciliation proceedings are held under S.12 of the Industrial Disputes Act, 1947. 48 From thiso b s e r v a t i o n , i t wo u l d b e w r o n g t o i n f e r t h a t a p r i v a t e s e t t l e me n t i n r e s p e c t o f a n i n d u s tr i a l dispute does not end an industrial dispute. In this respect the following observation of chief Justice Chagala are relevant, But when parties do arriv e at a settlement, the law gives to it agreater sanctity than it gives to an award and therefore , the industrial law does not contemplateany interference with the finality of a settlement and it compels the settlement to run on for the p e r i o d me n t i o n e d i n t h e s e t t l e me n t i t s e l f a n d n e i t h e r p a r t y i s p e r mi t t e d t o c h a l l e n g e t h a t settlement during its duration. 49 48 Poona Mazdoor Sabha v. G.K.Dhuta, AIR b1956. Bom. 743. 49 Ibid PROBLEMS RELATING TO COLLECTIVE BARGAINING IN INDIA The collective bargaining scene in India is not very encouraging. The major emphasis of bothunion and employers is to settle the disputes through adjudication rather than sorting out theissues among themselves.Wh a t e ve r b a r g a i n i n g t a k e s p l a c e , i t i s l i mi t e d t o l a r g e p l a n t s o n l y. S ma l l e r o r g a n i s a t i o n s generally do not prefer this form of handling the issues.As discussed in the previous chapter, several factors are responsible for this state of affairs.These are listed below:I .Du e t o t h e d o mi n a n c e o f o u t s i d e r s i n t r a d e u n i o n i s m i n t h e c o u n t r y, t h e r e i s mu l t i p l i c i t y of unions which are weak and unstable, and do not represent majority of the employees.Moreover, there are inter-union rivalries, which further hinder the process of collective bargaining between the labour and the management.I I . S i n c e m o s t o f t h e t r a d e unions are having political affiliations, they c o n t i n u e t o b e dominated by politicians, who use the unions and their members to meet their politicalends.I I I . T h e r e i s a l a c k o f definite procedure to determine which union is to be r e c o g n i s e d t o serve as a bargaining agent on behalf of the workersI V. I n I n d i a , t h e l a w p r o v i d e s a n e a s y a c c e s s t o a d ju d i c a t i o n . Un d e r t h e I n d u s t r i a l Di s p u t e s A c t , t h e p a r t i e s t o t h e d i s p u t e m a y r e q u e s t t h e G o v e r n m e n t t o r e f e r t h e m a t t e r t o adjudication and the Government will constitute the adjudication machinery, i.e., labour c o u r t o r i n d u s t r i a l t r i bu n a l . Th u s , t h e f a i t h i n t h e c o l l e c t i v e b a r g a i n i n g p r o c e s s i s discouraged. V . Th e r e h a s b e e n v e r y c l o s e a s s o c i a t i o n b e t we e n t h e t r a d e u n i o n s a n d p o l i t i c a l p a r t i e s . As a r e s u l t , t r a d e u n i on mo v e me n t

h a s l e a n e d t o w a r d s p o l i t i c a l o r i e n t a t i o n s r a t h e r t h a n collective bargaining. CONCLUSION & SUGGESTIONS A l o t h a s b e e n s a i d a b o u t t h e d e v e l o p me n t o f c o l l e c t i v e b a r g a i n i n g i n I n d i a . B u t i n f a c t , collective bargaining which is a two way affair, has been used at present only as a one -wayexercise in which the union, as the aggressive partner, makes the demands, and the management ,as the passive partner, derives satisfaction merely by countering the extent to which it is able tomi n i mi z e t h e a d d i t i o n a l b u r d e n s wh i l e me e t i n g t h e u n i on s d e ma n d s . Th e r e a r e n o t ma n y examples even now where union as well as the management, as equal partners, have approachedthe process of collective bargaining with the objective and spirit that collective bargaining must bring concrete benefit to both the parties.The following steps should be taken for the success of collective bargaining.1. Strong Trade Union : A strong and stable representative trade union is essential for effectivecollective bargaining. For having such a trade union, workers should have freedom to unionizeso that they can exercise their right of unionization and form a trade union for the purpose of electing their representatives for collective bargaining.A w e a k u n i o n n o t e n j o y i n g the support of majority of workers is not likely to beeffective. The management will not negotiate with such a union; because mutualagreements are not likely to be h o n o u r e d b y a l a r g e s e c t i o n o f t h e l a b o u r - f o r c e . Moreover, there is always a danger that non-union members may sabotage it.2. Compulsory Recognition of Trade Unions : Th e r e mu s t b e a n a c c e p t a b l e a n d r e c o g n i s e d bargaining agent. That means that there must be recognised union or unions to negotiate theterms and conditions of the agreement with the management.Recognition of trade union has to be determined through verification of fee membershipme t h o d . Th e u n i o n h a v i n g mo r e me mb e r s h i p s h o u l d b e r e c o g n i s e d a s t h e e f f e c t i v e bargaining agent. A strong, stable and the most representative union should be recognised b y t h e e m p l o y e r s f o r the purpose because any agreement with that union will be a c c e p t a b l e t o ma j o r i t y o f wo r k e r s a n d i t wi l l h e l p i n e s t a b l i s h i n g s o u n d i n d u s t r i a l relations in the organisation.3. Mutual Accommodation : There has to be a greater emphasis on mutual accommodation rather than conflict or uncompromising attitude. Conflicting attitude does not lead to amicable labour relations; it may foster union militancy as the union reacts by engaging in pressure tactics.The approach must be of mutual give and take rather than take or leave. The take or leave philosophy is followed in

America where there is contractual labour. As of now this isnot the case in India. So if the union and the management have to look for a long-termrelationship they have to respect each others rights.4. Enactment of Legislation : The State should enact suitable legislation providing for compulsoryrecognition of trade union by employers. State has to play a progressive role in removing the pitfalls which stand in the way of mutual, amicable and voluntary settlement of labour disputes.The new labour policy must reflect the new approach and new objectives.5. Mutual Trust and Confidence : T r a d e u n i o n s a n d ma n a g e me n t mu s t a c c e p t e a c h o t h e r asresponsible parties in the collective bargaining process. T h e r e s h o u l d b e mu t u a l t r u s t a n d confidence. In fact in any relationship trust is the most important factor.Management must accept the union as the official representative. The union must acceptthe management as the primary planners and controllers of the companys operations. Th e u n i o n mu s t n o t f e e l t h a t ma n a g e me n t i s wo r k i n g a nd s e e k i n g t h e o p p o r t u n i t y t o undermine and eliminate the labour organisation. The company management must notfeel that the union is seeking to control every facet of the companys operations.6. Efficient Bargaining Mechanism : No ad-hoc arrangements are satisfactory for the reason that bargaining is a continuing process. An agreement is merely a framework for every day workingrelationships, the main bargain is carried on daily and for this there is a need to have permanentmachinery. As for machinery being efficient, it has three aspects:(a)Availability of full information(b)Selection of proper representatives(c)Recognition of natural temperament of each other.7. Emphasis on Problem-solving Attitude : There should be an emphasis upon problem-solvingapproach with a deemphasis upon excessive legalism. Litigation leads to loss of time and energya n d i t d o e s n o t b e n e f i t a n yo n e . Th e r e f o r e t h e e mp h a s i s i s t o l o o k f o r mu t u a l l y a c c e p t a b l e solutions rather than creating problems for each other.Lastly, the overall political environment should be congenial. The political environmentshould support collective bargaining.8. Political Climate : For effective collective bargaining in a country, it is important to have sound p o l i t i c a l c l i ma t e . Th e Go v e r n me n t mu s t b e c o n v i n c e d t h a t t h e me t h o d o f a r r i v in g a t t h e agreements through mutual voluntary negotiations is the best for regulating certain conditions of employment. The provision for political fund by trade unions has to bedone away with-since it unvariably encourages the politicians to prey upon the union.Th e r e f o r e , p o s i t i v e a t t i t u d e o f t h e p o l i t i c a l p a r t i e s i s a mu s t f o r t h e

p r o mo t i o n o f collective bargaining.S u c h a n a p p r o a c h wo u l d h e l p a n d e n c o u r a g e t h e d e v e l o p me n t o f s t r o n g , s t a b l e a n d representative trade unions, growth of mechanism for the resolution of industrial conflict,recognition of unions, etc. BIBLIOGRAPHY Books referred..1)Bhagoliwal, T.N., Economics of Labour& Industrial Relations, 1989, SahityaBhawan, Agra.2)Goswami, V.G., Labour and Industrial Law, 2004 Central Law Agency, Allahabad.3)Teller Ludwig, Labour Disputes and Collective Bargaining, Vol I, 1940 Barker Voorhis&co. INC New York.4)Coutinho,V.B, Strike in Industrial Conflict: A Critical and Comparitive Study,1993, 5 th edn.5 ) F r e d Wi t n e y e t a l ; La b o u r R e l a t i o n s L a w , 7 th edn 1990.6 ) B o o n e , Lo u i s E ., a n d Ku r t z , D a v i d L. ( 19 9 9 ) . C o n t e mp o r a r y B u s i n e s s . F o r t Wo r t h , T X: Dryden Press.7 ) Da v e y, H a r o l d W. ( 1 9 7 2) . C o n t e mp o r a r y C o l l e c t i v e B a r g a i n i n g . E n g l e wo o d C l i f f s , NJ : Prentice-Hall.8)Miernyk, William H. (1965). The Economics of Labor and Collective Bargaining. Boston:Heath.9 ) Voo s , P a u l a B . , e d . ( 1 9 9 4 ) . C o n t e mp o r a r y C o l l e c t i v e B a r g a i n i n g i n t h e P r i v a t e S e c t o r . Madison, WI: Industrial Relations Research Association.9)Wray, Ralph D., Luft, Roger L., and Highland, Patrick J. (1996). Fundamentals of Human Relations. Cincinnati, OH: South-Western Educational Publishing.[Article by: PAULA DEA LEE]Articles referred.1)Right to Strike : An Analysis, B.P.Rath and B.B.Das, IJIR 1999,pg 248-259.2)Perspectives On Collective Bargaining In India, LLJ, Vol 1, 2005 p.21-343)Strikes and Lock outs, Pankaj and Dharamveer Singh, Lab&IC, Vol 1,2005 pg1221.Websites.http://www.tradeunionindia.org/miscellaneous/public_rights.htm.