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CB is a type of negotiation used by employees to better their conditions and terms of employment with their employers.

CB begins with joining a union, agreeing to abide by the rules of the union and electing union representatives. During a CB period, the union representatives approach the employer and attempt to negotiate a contract to which both sides can agree with.

Collective bargaining through a union effectively transforms a group of atomized workers into one large worker with whom management has no choice but to negotiate. Some collective bargaining agreements are registered with the labor court and are binding by law, however others are only mutually accepted agreements. CB may be to negotiate a first collective agreement or the renewal of a previous collective agreement.

CB agreements deals with specific issues, such as basic pay, overtime premiums, bonus arrangements, holiday entitlements, hours of work, etc. In many companies, agreements have a fixed time scale and a collective bargaining process will review the procedural agreement when negotiations take place on pay and conditions of employment.

The idea emerged as a result of industrial conflict and growth of the trade union movement. In an industrial establishment the friction between employers and employees is inevitable. CB is one method wherein the employers and employees can settle their disputes.

As trade unions developed in the country, collective bargaining became the rule and employers found it necessary and convenient to deal with the representatives of the workmen instead of individual workmen.
This was not only for making or modification of contracts, but also in the matter of taking disciplinary action between one or more workmen.

CB works to the advantage of both the employer and the employees. The employees have a representative body which puts forward their demands in a coherent, structured manner and such body negotiates better terms and conditions of employment for them. The employers can deal with an issue collectively and not with individual workmen

Workers who work without a union are subject to the dictates of the employer. In a large workplace, a single employee has little power. This is particularly true in periods of high unemployment, when a worker has no leverage because she could easily be replaced by someone else who would do the job without complaint.

It increases the strength of the workforce, thereby, increasing their bargaining capacity as a group. Effective collective bargaining machinery strengthens the trade unions movement. The workers feel motivated as they can approach the management on various matters and bargain for higher benefits. It helps in securing a prompt and fair settlement of grievances as a result of which the chances for conflicts are reduced.

While management may not be challenged by the loss of one worker, it can't afford to lose an entire workforce. Can lead to high-performance workplace. Promotes fairness and consistency in employment policies no favors/concessions have to be given. This decreases the risk of disruption to the work environment when one side or the other makes an unexpected move or demand.

It becomes easier for the management to resolve issues at the bargaining level rather than taking up complaints of individual workers . Curbs attrition rate since it leads to dispute resolution. Opens up the channel of communication and increases worker participation in decision making. Collective bargaining plays a vital role in settling and preventing industrial disputes.

Redresses the imbalance of power. Employers have major power within society the use of collective bargaining restores a balance between employees and employers. Collective bargaining encourages industrial peace and less strikes, more organized labour, and boosts economy. This is a major factor which encourages FDI ( foreign direct investment)

Managements authority and freedom are much more restricted by negotiated rules. Creates significant potential for polarization between employees and managers. Increases participation by external entities and restricts managements ability to deal directly with individual employees.(Involvement of political parties)

Protects the status quo, thereby inhibiting innovation and change. This is particularly the case when the change involves privatizations. Eliminates ability of management to make unilateral changes in wages, hours, and other terms and conditions of employment even if work exigencies demand it. Higher management costs associated with negotiating and administering the agreements

CB succeeds only with the threat of strike or lockout. Without these weapons at hand, neither party to a dispute can defeat the claim of the other. The peculiar feature of our country as compared to advanced nations of the world is that the economic conditions of the workers is that they are very poor and cannot afford long standing strikes.

Typical issues covered in such labour contracts are Wages Hours of work Benefits Working conditions and rules of the workplace. Grievance procedures Once both sides sign the contract, it is called a CB agreement or collective Employment agreement

Negotiations is the principle means of settling labour disputes. However due to lack of trust between employers or government or their trade unions or inter rivalry between trade unions or the fact that the employers are in a commanding position, many a time the negotiations fail.

Collective bargaining: a)Without conciliation b)With conciliation When collective bargaining reaches a deadlock, the parties call a third party to help them settle their disputes. The role of the third person is to break this deadlock and help the parties to arrive at a conclusion.

Collective bargaining frequently requires a third party to help the parties reach an acceptable solution. In these situations, such strategies as Conciliation, Mediation, Arbitration, are used. WHAT IS THE CONCILIATION MACHINERY MADE UP OF? Conciliation officers Boards of conciliation Courts of enquiry

Definition of Conciliation as framed by International Labour Organisation (ILO): The practice by which the services of a neutral third party are used in a dispute as a means to help to reduce the extent of their differences and to arrive at an amicable settlement. It is the process of a rational and orderly discussion of differences between the parties to a dispute under the guidance of a conciliator.

Conciliation officers who are appointed by the appropriate Government. They must determine the matter in 14 days. They hold conciliation proceedings Investigate, discuss, the matter and persuade the parties to resolve dispute amicably. They send memorandum of settlement / failure of conciliation report to the appropriate government.

If a settlement is arrived at during the course of the conciliation proceedings, the conciliation officer must send a report together with a memorandum of settlement signed by the parties to the dispute, to the appropriate government. A settlement brought about by the conciliation officer is an administrative act and not a quasi-judicial act. If a settlement is not reached, the conciliation officer immediately sends a full report of failure of conciliation to the appropriate government

Such report of settlement or nonsettlement has to be submitted within 14 days of the commencement of the conciliation proceedings, or within such shorter period as fixed by the appropriate govt. Proceedings If there is a failure of conciliation the appropriate government refers the dispute to the Labor Court, Industrial Tribunal, or to the National Tribunal . In case no reference is made, they shall record and communicate to the parties the reasons for the same.

Settlement means a settlement arrived at in the course of conciliation proceedings and includes a written agreement between the employer and workmen arrived at other than in the course of conciliation Where such agreement has been signed by the parties thereto in the manner prescribed And a copy has been sent to the appropriate government and the conciliation officer.

A settlement arrived at by an agreement between an employer and a workman otherwise than in the course of conciliation proceeding is binding on the parties to the settlement. It is not binding upon employees who were not a party to the settlement/or were not represented through the union which entered into the settlement.

Such settlements are Bipartite settlements. In the case of Mayurakshi Cotton Mills Ltd. Vs Ninth Industrial Tribunal Durgapur (2003) IILLJ 485(Cal) Held that the settlement arrived at between the company and its workmen represented by the Mazdoor union only was binding only on the parties to the dispute as it was arrived at otherwise than in the course of conciliation proceedings Sec 18(1)

Held in Workmen represented by Andrew Yule & Co. Ltd. and its Group (Calcutta Region) Clerical Staff Union Vs. Learned Judge, Eighth Industrial Tribunal and Or 1999 I LLJ 1182 CAL. The provisions of Act would show that whereas bipartite settlement arrived are not binding on all workmen, only a settlement arrived at in course of conciliation proceedings is binding on all workmen. Tata Engineering & Locomotive Co. Ltd. v. Their workmen, 1981-II-LLJ-429

Settlements reached between three parties namely the employer , workmen and the state (through the conciliation officer / labor court awards/ awards of the arbitrator) are called Tripartite settlements.

Such settlement arrived at i)In the course of conciliation ii)Or where the arbitrator has given his award iii)Or there is an award of the labor court/IT/ or National tribunal shall be binding on All parties to the dispute All other parties summoned to appear as parties to the dispute Workmen who were employed in the establishment, part of the establishment , to which the dispute relates on the date of dispute and all those who were subsequently employed in the establishment or part. To the employer his successors, heirs ,assigns

M.L. Gupta and Ors Vs. Instrumentation Ltd. through Chairman and Ors. 1992(1)PLJR137 Tripartite settlement said to have been arrived between Defendants-Management, Government and Petitioners by adjudication that Petitioners could not be absorbed and their work was of different nature therefore could not be paid equal to permanent workers . Hence present application - Whether this Court in exercise of writ jurisdiction could quash tripartite settlement and grant relief to Petitioner to regularise their services Held, Section 2(p) of Act provided that term 'settlement' not only included settlement arrived at in course of conciliation proceeding, but also agreement entered into by and between parties, in terms of Section 18 (3) of Act Evidences on record in present case showed that requisite number of workmen were agreed to enter into tripartite settlement within meaning of Section 2(p) of Act and settlement was made in view of provisions contained in Section 18 of Industrial Dispute Act therefore, same was binding to parties to settlement

Held in the case of All India Textile Janta Union Vs Labour Commissioner 1994LLR 203 (P&H)(DB) If a settlement has been arrived at in the course of conciliation proceedings with a recognised majority union it will be binding on all workmen of the establishment irrespective of any objection.

A settlement will come into operation on the date agreed or if there is no such date then on the date when the memorandum of settlement is signed by the parties. It shall remain binding for period agreed upon/or for 6 months and shall continue to remain binding even after expiry of the period, till the expiry of 2 months from the date on which notice in writing of intention to terminate the settlement is given by one of the parties to the settlement.

Section 17-A and Sec 19(3) AN ADJUDICATION AWARD (AS PUBLISHED BY GOVERNMENT) SHALL BE IN OPERATION FOR A PERIOD OF ONE YEAR FROM THE DATE IT BECOMES ENFORCEABLE . GOVERNMENT HAS THE POWER TO REDUCE THE VALIDITY PERIOD OR EVEN EXTEND THE VALIDITY PERIOD BY ONE YEAR AT A TIME SUBJECT TO THE TOTAL DURATION NOT EXCEEDING THREE YEARS EVEN AFTER THE NORMAL / EXTENDED PERIOD OF OPERATION, THE TERMS OF THE AWARD SHALL CONTINUE TO BE IN FORCE UNTIL ONE OF THE PARTIES SERVES A FORMAL NOTICE OF TERMINATION [Sn.19(5), 19(6), 19(7)].

ON THE DATE ON WHICH THEIR AWARDS BECOME ENFORCEABLE UNDER SECTION 17 A, i.e. AFTER 30 DAYS OF THE PUBLICATION OF THE AWARD IN THE OFFICIAL GAZETTE.

The Boards of Conciliation consist of an independent chairman and representatives of the employers and workmen. The board has the powers of a civil court regarding the following matters; It can enforce the attendance of anyone and examine him on oath It can compel a party to produce relevant documents & material objects It can issue a commission for examination of the witnesses. Proceedings by the Board The enquiry or investigation by the board is regarded as a judicial proceeding. The board endeavors to bring about a settlement between the parties In the event of settlement or non-settlement the board has to submit the report within 2 months of the date on which the dispute was referred to it, or such shorter time as may be fixed by the appropriate govt.

Where there has been a failure of conciliation, the court of inquiry investigates the causes of the dispute. It is not for settlement of the dispute. They publish their report within 30 days

Voluntary conciliation and mediation. Compulsory conciliation and mediation the conciliation officer is an authority appointed by the government to mediate the disputes between the parties. While Conciliation is limited to encouraging the parties to discuss their differences and to help them develop their own proposed solutions. Mediation implies a stronger form of intervention. The mediator may be permitted to offer the parties proposals for settlement.

Mediation can only work in a climate of consent. Mediator must be an impartial and unprejudiced person. Mediation should take place in a proper and conducive setting. The mediator suggests solutions based on his knowledge and experience, and if both the parties have confidence in him then they may agree to accept.

A Mediator does not exercise any compulsion. He cannot/should not undertake to decide what the parties do. He may give various suggestions, but certain evaluations & judgments must be left to the parties to decide for themselves.

Where two contending parties are unable to reconcile their differences by themselves or with the help of the mediator or conciliator, They may agree to submit the conflict/dispute to an Arbitrator who is an impartial authority, and whose decision they are ready to accept. Hence, parties to the dispute can and do voluntarily submit disputes to arbitration before a matter is referred for adjudication.

The subsequent attendance of witnesses and investigations . The enforcement of an award may not be necessary and binding because there is no compulsion. But, generally, the acceptance of arbitration implies the acceptance of its award, be it favorable or unfavorable. Voluntary arbitration may be specially needed for disputes arising under agreements /contracts

Where the parties are required to accept arbitration without any willingness on their part. When one of the parties to an industrial dispute feels aggrieved by an act of the other, it may apply to the appropriate government to refer the dispute to an arbitrator.

The employer and the workers agree in writing, to refer the dispute to arbitration. The arbitration agreement is in the prescribed form and signed by the parties to it in the prescribed manner. The agreement must be accompanied by the consent, in writing, of the arbitrator or arbitrators.

The dispute must be referred to arbitration at any time before it has been referred to a labor court or tribunal or a national tribunal. The reference must be to the person or persons specified in the arbitration agreement to act as arbitrator/arbitrators. The arbitration agreement must set forth the issue/issues to be decided by the arbitration procedure and a copy of the agreement is forwarded to the government and the conciliation officer.

The arbitrator, after investigating the dispute, has to submit his award to the government. The award will have the same legal force as the judgment of a labour court or tribunal. The award must be signed by the arbitrator. While writing his award, the arbitrator has to ensure that: The award is in line with the terms of reference that it does not go beyond its jurisdiction That it is precise and definite That it is capable of being enforced or implemented

Compulsory arbitration is necessary where The unions are weak, ill- organized, and powerless and the means of production are in the hands of the capitalists who are wellorganized and powerful where public interest and the working conditions have to be safeguarded and regulated by the state Compulsory arbitration leaves no scope for strikes and lockouts;

It undermines self-government in industry and takes away from the employers and unions the responsibility of working out their mutual problems and transfers it to government-created tribunals. It kills collective bargaining and replaces it with litigation

In Karol leather Karamchari Sangathan VS Liberty footwear, SC observed that CB is a technique by which disputes as to conditions of employment are resolved amicably by agreement rather than coercion. In Ram Prashad Vishwa Karma VS Industrial Tribunal, the court observed that it is well known how before days of CB labour was at a great disadvantage in obtaining reasonable terms for contract of service from the employer.

In the case of Hindustan Copper Mazdoor Sangh Vs the Chief Labour Commissioner the question was if the Representative Registered union was the sole authorized bargaining agent on behalf of the workmen. The same was the issue which arose in Manager Hotel Imperial Vs Chief Commissioner 1959AIR1214. This is replied to in the negative.

There can be no exclusive right for negotiation as sole authorized agent for collective bargaining There may be the existence of more than one trade union in an industry. Each one of these trade unions is entitled to espouse the cause of the workmen. Hence the court cannot accord recognition to the representative union as having exclusive right to be the bargaining agent for the workmen.

I) Prepare: DO WE REQUIRE TO NEGOTIATE? If yes then: This phase involves composition of a negotiation team. The negotiation team should consist of representatives of both the parties with adequate knowledge and skills for negotiation. A correct understanding of the main issues to be covered and intimate knowledge of operations, working conditions, production norms and other relevant conditions is required.

II) Discuss: Here, the parties decide the ground rules that will guide the negotiations. III) Propose: This phase could be described as brainstorming. The exchange of opinions between the parties. IV) Bargain: negotiations are easy if a problem solving attitude is adopted. When what ifs and supposals are set forth and the drafting of agreements take place. V) Settlement: Once the parties are through with the bargaining process, a consensual agreement is reached upon wherein both the parties agree to a common decision regarding the problem or the issue.

The history of the trade union movement shows that the unions are affiliated to one or the other political party. As a result most trade unions are controlled by outsiders. It is the presence of these outsiders which has led to the failure of collective bargaining.

The Trade Union Act permits outsiders to be office bearers of a union to the extent of half the number of office bearers. Therefore, the act permits one to be a leader who doesnt actually work in the industry. Outsiders have little knowledge of the background of the labour problems of the industry. Sometimes dismissed employees work as union leaders.

The employers are thus reluctant to discuss and negotiate their internal, industrial matters with outsiders who have no personal or direct knowledge of day to day affairs of the industry. They do not want to negotiate with dismissed employees, since they may already have a strained relationship with them.

This proposed to reduce the number of outsiders to 2 only. The commission on labour did not favour a ban on nonemployees for holding the union office. They were of the opinion that a complete ban on outsiders will make unions weak.

The Trade Union movement in India is divided on political lines and exists on the patronage of various political parties. INTUC Indian National Trade Union Congress is the labour wing of Congress . HMS Hind Mazdoor Sabha is considered the labour wing of socialist party.

Bhartiya Mazdoor Sangh pledges allegiance to the BJP. CITU has the support of CPI-(M). Political patronage of trade unions has given direction to the movement where the welfare of the employees is not the focal point. Their objective is the capacity to obtain benefits due to political patronage.

Public sector is the biggest employer in this country. The CB between the union patronized by the party in power and the employer has become an important methodology to ensure that labor agreements conferring huge benefits are signed even though the unit/company is mounting financial losses.

The collective bargaining in India has remained largely decentralized, i.e. company or unit level bargaining rather than Industry level bargaining. Due to downsizing in the industries, the strength and power of the trade unions is heavily reduced. Informal workers are not able to form their own trade unions, and on the other hand they are not represented by the trade unions of the formal workers. These situations resulted in spurt of individualized bargaining. Declining strength of collective bargaining has been taken up by workers in several industries and a new wave for labor movement and unionization is seen in the recent months.

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