An imperative shift

It is a well-established principle of collective bargaining that power lies in numbers. The election of workers' unions in industries is an age-old issue and remains relevant today. The Industrial Relations Code 2020, yet to be implemented, introduces the concept of a negotiating union or negotiating council. Currently, Indian laws do not specifically obligate management to recognize unions. Of course, since India’s Constitution guarantees freedom of association, management cannot adopt policies that oppose the formation of unions. However, there is no statutory right of recognition in any existing statutory provisions. There are codes of conduct, but they are not legally mandatory. The new Labour Codes, 2020, make it obligatory for industries to have negotiating unions or councils.

Section 2(z) of the Code 2020 defines a negotiating union or negotiating council. Section 14 inter alia states that there shall be a negotiating union or a negotiating council in an industrial establishment with a registered Trade Union for negotiating with the employer on prescribed matters. Where only one Trade Union of workers registered under the provisions of this Chapter is functioning in an industrial establishment, then, the employer of such industrial establishment shall, subject to such criteria as may be prescribed, recognise such Trade Union as sole negotiating union of the workers. If more than one Trade Union of workers registered under this Code are functioning in an industrial establishment, then, the Trade Union having fifty-one per cent or more workers on the muster roll of that industrial establishment, verified in such manner as may be prescribed, supporting that Trade Union shall be recognised by the employer of the industrial establishment, as the sole negotiating union of the workers. The facilities are also to be provided by the industrial establishment to a negotiating union or negotiating council, as may be prescribed. Thus, recognition has been given a statutory mandate.

Individual employees have scant bargaining power by themselves; therefore, their disputes must be highlighted by their bargaining agents, namely, their unions representing the body of workmen.

In Delhi State Electricity Workers Union vs. NCT of Delhi, 2012, the Delhi High Court held that under current prevailing labour laws, there is no statutory provision granting a union the right to seek recognition, and such a right can only be claimed by raising an industrial dispute. In Kerala Minerals Employees Congress vs. Assistant Labour Commissioner And Ors., 1982, it was pronounced that there is no statutory right vested in any union to compel management to recognize the union. The union could raise an industrial dispute regarding the non-recognition.

Several dictums have also held that the registration of a trade union is a legal formality conducted with the Registrar of Trade Unions under the Trade Union Act, 1926, which grants legal status to the trade union. Recognition, however, is an agreement reached with management, designating the trade union as a representative entity for collective bargaining purposes. In the case of Workmen of Kampali Co-operative Sugar Factory Ltd. vs. Management of Kampli Co-operative Sugar Factory Ltd., 1994, the Karnataka High Court held that if there is no statutory provision for trade union recognition, such a right cannot be enforced through a writ petition. In the absence of a statutory provision or a recognition agreement between the employer and the union, no legal right exists. Furthermore, the withdrawal of recognition does not violate any legal right.

The New Labour Codes take care of such contingencies. Exercising a middle path, the Codes also take care of employers by inter alia stating that a worker cannot go on strike without giving to the employer a notice of the strike, as stipulated. The Code also prohibits strike during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings; or during the pendency of proceedings before a Tribunal or a National Industrial Tribunal and sixty days after the conclusion of such proceedings; or during the pendency of arbitration proceedings before an arbitrator and sixty days after the conclusion of such proceedings; or during any period in which a settlement or award is in operation, in respect of any of the matters covered by the settlement or award.

The new Labour Codes are yet to see the light of day. Needless to say, age-old laws take time to reform.

The writer is a practising Advocate in Supreme Court and High Court of Delhi. Views expressed are personal