Recognition of a trade union is very different from Registration of the union under the Trade Union Act, 1926. Recognition means management conferring right to the Union 1) to represent its members as the bargaining agent during the various discussions and deliberations made while negotiating terms of employment/conditions of labour; 2) to enter into agreements [settlements] with the management on behalf of its union-members; and 3) to air its opinion when general opinion of workmen are sought while formulating managerial policies and decisions.
Although there is a fundamental right to form unions under Article 19(1)(c) and a statutory right to get it registered, there is no corresponding legal obliging on the employer /management to recognize any particular trade union, whether registered or not, even if they are truly represenative. Recognition of a Trade Union receives importance when there are multiple trade unions in an establishment. The managements usually refuse to recognize small or regional trade unions so as to reduce the number of different voices espousing different demands, while negotiating wage settlement or conditions of employment.
There is no Central law on granting recognition to trade unions. The Parliament had once passed the Indian Trade Union (Amendment) Act, 1947, but it was never notified or brought into force. The said Act sought to introduce Chapter III-A into the TU Act, 1926, which inter alia, enumerated the conditions required for obligatory recognition of trade unions. The common or general law does not recognize collective bargaining, but only individual relations as master and servant. Therefore, obligatory recognition of trade union as the bargaining agent of its members is unknown to law – both common law and statue law. At present, the only provision in this behalf is contained in Section 36 of the Industrial Disputes Act, 1947, where under in any proceeding under ‘that Act, a workman who is a party to an industrial dispute is entitled to be represented by (a) any member of the executive or other office bearer of a registered trade union of which he is a member, or (b) any member of the executive or other office bearer of a federation of trade unions to which the trade union referred to in Clause (a) is affiliated; and (c) where the worker is not a member of a any trade union, by any member of the executive or other office bearer of any trade union connected with.. the industry in which the worker is employed and authoriese in such manner as may be prescribed”. The said provision concerns only with representation in industrial disputes and it does not as such provide for recognition of any trade union. The result of the above discussion is that Recognition of a Trade Union is a matter of volition on the part of the employer.
In All India Bank Employees’ Association v. National Industrial Tribunal, Bombay, AIR 1962 SC 171, the Supreme court had the occasion to consider the scope and ambit of Article 19(1)(c) of the Constitution. There Lordships held that even very liberal interpretation of the said constitutional provision cannot lead to the conclusion that the fundamental right to form unions carries with it a concomitant guarantee that the trade unions so formed shall be enabled to carry out effective collective bargaining or shall archive the purpose for which they were brought into existence. In Raghubar Dayal Jai Parkash v. Union of India, Air 1962 SC 263, it was held that freedom of association guaranteed by Article 19(1)(c) does not carry with it a guaranteed right to recognition of the association. [See also M.A. David v. KSEB, 1971 KLT 892, Kerala Minerals Employees Congress v. Asst. Labour Commissioner, 1983 KLT 176].
The 15th Indian Labour Congress had accepted a Code of Discipline and one of the clauses therein pertains to Recognition of Unions. Presently, the said code is considered as the accepted norm for Recognition of Trade Unions by most of the employers. According to the said code, for recognition:
- The Unions should have at lease one year standing.
- They should have at least 15% of the membership of the establishment to claim recognition; and 25% of the work force to claim recognition on industrial basis.
- When there are multiple unions in an establishment, the union with largest membership will be given recognition.
- The local unions if they have more than 50% of the membership of the locality, can be recognized to represent their grievances.
- The recognition granted will be valid for 2 years.
- The unions which do not follow code of discipline will not be granted recognition.
The National Commission for Labour headed by Dr. Gajendragadkar, rather laid down a strict guideline for recognition of trade unions. The commission expressed the view that industrial democracy should be applicable and the majority union should have the right to sole representation; and where more unions than one contend for recognition, the union having a larger following should be recognized.
Few State Legislatures have enacted laws conferring legal right to Trade Unions to claim Recognition of the Employer. The Bombay Industrial Relations Act, 1946 is a beacon on the subject. In the said Act, the guidelines laid down by the National Labour Commission are incorporated for recognition of a Trade Union. Maharastra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1972, is the other pertinent legislation on the subject. In the said act, recognition is afforded to any union which has 6months of standing and membership not less than 30% of the total employees. The provisions for recognition of trade union in the Maharastra Act are applicable only to those industries which are outside the scope of the Bombay Act.
The Kerala State has recently enacted a law for recognition of trade unions for facilitating collective bargaining and to check multiplicity of trade unions in establishment. The Kerala Recognition of Trade Union Act, 2010, is applicable to every industrial establishment wherein 50 or more workers are employed and whose appropriate government under the ID Act is the Kerala Government. According to the Act a trade union can claim recognition of the management by filing an application [under S. 4] before the Registrar appointed under the Act. A Trade Union is eligible to recognition only if its membership is be open to all and it has been functioning in an industrial establishment or the class of industry in the local areas, for a period of at least six months preceding the date of filing of the application. If there is more than one eligible Trade Union, the Registrar shall arrange an election by secret ballot among the employees of the establishment. In such election, the Trade Union securing maximum votes shall be recognized as the Principle Bargaining Agent. Every other trade union which has received minimum of 15% votes in an industrial establishment or 10% votes in a class of industry, would also be recognized constituents of a Joint Bargaining Council. If any trade union in such an election receives more than 51% of votes, then it would be recognized as the Sole Barging Agent of the workmen of that industry[Section 5].
The Kerala Recognition of Trade Union Act, 2010 implements industrial democracy by authorizing only the Sole Bargaining Agent or a of collation of constituents of the Joint Bargaining Council representing more than 51% of employees, to sign any settlement with the management. It also prescribes the rights and duties of a recognized Trade Union.
However, Recognition of a Trade union is an aspect which cannot be as such implemented by law, as it is not a question of law, but an attitude and a right earnest on part of management. Any forceful recognition of a trade union by operation of law may not hold good in the long term, because recognition involve human attitude, orientation, which cannot always be dealt legally. Recognition must be out of the free will which must come as a result of managements understanding of the trade unions. One can only hope that recognition by law may at least act as catalyst and help in development of healthy industrial relations.
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