2012 Mar 26 Introduction To Collective Bargaining (Compatibility Mode)

Introduction to collective
Bargaining : concept & ILO

Principles
Federation of Trade Unions-Burma
ACTRAW
Programme for Workers Activities
International Training Center of the ILO-Turin, Italy
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Programme for workers Activities
International Training Center of the ILO-Turin,
Italy
FoA & Right to the Collective bargaining
fundamental human right a pre-requisite for promoting democratic labour relations
Promotes process of social dialogue for mutually agreeable solution while respecting
each others needs- 0ften better alternative than law or Court induced solution
Developmental role Provides scope for sharing in the gains of growth, improve
workers living & working conditions creates conditions for widening Domestic
markets
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Promoting recognition of the right to CB is part of ILO mandate
Declaration of Philadelphia, 1944 (part of ILO Constitution)-
C 98 Convention on right to Organize & Collective Bargaining (1949)
1998 Declaration on FPRW obligation of member states to respect,
promote & realize fundamental / core ILO standards, even if not ratified
2008 Declaration on Social Justice for a fair Globalization FOA & CB
important to achieve four strategic objectives of ILO
Global Jabs Pact (June 2009) affirms this
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ILO Convention No.98
Reflects the principle that the best way to govern a relationship between
parties is to allow them to regulate it themselves
Recognizes the power imbalance between K&L ,and grants following right
to workers in the employment relationship
Protection against acts pf anti- union discrimination,
Protection of union against acts of interference by employers and
the right of workers to be represented by trade union in negotiating
conditions of employment collectively
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But half the worlds workers do not have the Right to collective
bargaining
C 98 rarified by 159 counties ( out of 183 member states), including 19 from
Asia BUT
Major countries such as Canada, Chin, India, Iran, Korea, Mexico,
Thailand, Burma, Unites State and Viet Man have not yet ratified C98
Thailand, Burma, Unites State and Viet Man have not yet ratified C98
this implies approximately half of the worlds economically active
population is still not covered by Convention No.98>
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So. what is Collective Bargaining
a process whereby union & management negotiate the terms& conditions
of work of employees a means of joint regulation of work place
employment issues
Objective of the collective bargaining
Objective of the collective bargaining
1) Protect interests of the workers through collective action
2) Resolve differences through negotiations to arrive at acceptable solutions
3) To avoid third party intervention in matters relating to employment
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Enterprise level Collective Bargaining
Prevalent in many East Asian countries (Japan, Korea, Thailand,
Philippines, China, etc)
Advantage: flexibility & adaptability for setting enterprise specific working
conditions
Disadvantage: disparity between companies, enterprise level trade
Disadvantage: disparity between companies, enterprise level trade
unions may be too weak to negotiate with their employers at the
workplace at the workplace labour policy objectives of the State may
not be achieved
Source: Mr. Chang-Hee Lee, Sr Specialist IR and social Dialogue, ILO
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Industry wide bargaining
Widely prevalent in many European countries (Germany, Sweden,
Finland, France, Belgium, etc)-prevalent in public enterprises &in some
sectors like Sugar, Cement, Banking, insurance, etc in India; Port workers
in Japan;
Advantages: better solidarity among workers, less bargaining costs,
enterprises relatively free from hassle of negotiation & therefore conflicts,
easier to coordinate national wage policy for certain sectors.
Disadvantages: less flexibility & adaptablilty for each enterprise
Global Trend: Decentralization towards enterprise bargaining
Source: Mr.Chang-HeeLee,Sr Specialist IR and social Dialogue,ILO
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Forms of CB
Conjunctive / Distributive Bargaining : one side wins and the other loses
Cooperative / Integrative Bargaining : a win-win situation
Productivity Bargaining : both the parties must develop a productivity
linked scheme
Concessionary Bargaining: the objective is to give back to management
some of what the union has gained in previous bargaining in return for
some other demand
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Pre-requisites for CB
Respect of FoA and civil liberties
Suitable Farmework for functioning of Industrial Relations.
Representative & strong unions (and Employers bodies)
Recognition of trade unions
ATITUDE ( Enlightened Self Interest) & GOOD FAITH
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Governing Principles
Free & voluntary negotiations (Art 4 of C98)
- Obligation on govts to promote CB should not lead measures of
compulsion, does not mean enforcing CB
- State can set up machinery to support CB ( Provision of
information , conciliation, mediation , arbitration) of voluntary
nature
- State can prohibit unfair labour practices that hinder collective
bargaining
- State can impose conciliation & mediation within reasonable
time limit in certain situations
Where a union can show representativity, law can make it
compulsory to negotiate with such union
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Free Choice of bargaining level
The level at which CB is to be conducted should be a matter for parties to
the negotiation to decide ( should not be imposed by law or by a decision
of administrative authority) when this question is decided by another
body, then it is essential to ensure that it is truly independent body;
Govts can take measure adapted to national conditions so as to facilitate
CB at any level- Plant/ Company/ Enterprise/ Industry wide/ Sector wide/
Regional / State/ National
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Recognition of unions may be:
- Optional
- Voluntary ( agreements or practice)
- Compulsory
When compulsory:
- Objective and pre- established criteria
Safeguards attached
Certification by an independent body
Chosen by a majority vote of the employees
Possibility of new election after reasonable period
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Violations of the principle of free &
voluntary negotiations
Intervention of Public authorities
In the drafting or administrative approval of CBAs
In cancellation of agreements because they are contrary to national
economic policy
economic policy
In compulsory extension of the period for which collective agreements are
in force
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Good Faith Principle
Necessary but cannot be imposed by law, has to come
voluntarily
Implies making every effort to reach an agreement,
conducting genuine negotiations, avoiding unjustified delays,
complying with the agreements which are concluded and
applying them in good faith
The recognition of representative trade union organization &
mutual respect for commitment made
Unions must have a possibility of going on strike in the event
of break down of negotiations
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Compulsory arbitration?
Voluntary arbitrations is legitimate BUT compulsory arbitration is against the
principle of voluntary CB. Arbitration imposes solution, not an agreement
voluntarily reached
It is admissible only in
Essential services (in the strict sense of the term), with regard to public
Essential services (in the strict sense of the term), with regard to public
servants engaged in administration of state affairs, in case of deadlock, in
national crisis situation.
In case of legal disputes over Implementation / interpretation of CBAs
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CB v/s Contract of employment
Collective Bargaining Agreement should bing the parties to the agreement
& those on whose behalf the agreement is signed
CBA provisions supersede anything contrary in the contract of
CBA provisions supersede anything contrary in the contract of
employment, except those conditions in contract of employment that are
more favorable to the workers
Binding nature of CBAs can be established by law or by CBA itself-
depending on the practice followed in each country
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CABs concluded with non- unionized groups of workers
Representatives of workers can negotiate and sign CBA in a situation
where there are no unions in the enterprise
Existence of elected worker representatives should not be used to
undermine the position of the TUs concerned of their representatives (
C154, R91, C135).
CBA with non- unionized workers or a minority union where a
representative union exists is a violation of Art of C98 and Art3 of C87 (
FoA right of workers)
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R91, C135).
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._ .~_ ~~ ~ ~ . ._ ..,. ~ ~ ~ Art 4 of C98 and
Art 3 of C87 ( FoA right of workers) ~ ~ ~ ~ ~ . .. ~_ . ,
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Issues dealt by CB
Traditional issues- wage rate / pay, working hours & other working
conditions, employment policies, productivity settlement
New areas: demanding equity in matter relating to work norms,
employment levels, staffing standards, environmental hazards, company
employment levels, staffing standards, environmental hazards, company
management issues such- as outsourcing, sub-contracting clauses,
investment policies, management decisions over diversification, choice of
technologies, etc since all these affect workers employment ;
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Concluding Remarks
FoA and CB are not just above workers rights but are also instruments of
state policy to achieve objectives of social justice & for promoting
sustainable economic growth
It should not be limited to industry or company level but this principle (of
promoting social dialogue) should be extended to national level over issues
promoting social dialogue) should be extended to national level over issues
of policies- labour, social & economic- this will promote social harmony and
social stability.
Need to move from mere collective bargaining over wage to participatory
right in industry as also the economy
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Issues for discussion
Is there a law supporting collective bargaining right in your country? What
does it say?
What is the criteria and/ or procedure for recognition of unions for
collective bargaining?
Refusal to recognize a representative union: Is it a unfair labour practice?
Refusal to recognize a representative union: Is it a unfair labour practice?
Can an employer be penalized for this ?
What issue do unions include in the collective agreement?
What are the main difficulties in exercise of collective bargaining right for
unions?
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Annexure slides
Annexure slides
ILO instruments dealing with collective bargaining & related
issues
Collective Agreements Recommendation, 1951 (No.91)
Freedom of Association and protection of the right to organise
Convention, 1948( No. 87)
Right to Organize and collective Bargaining Convention , 1949 (No.98)
Workers Representatives Convention, 1971 (No. 135)
Voluntary Conciliation & Arbitration Recommendation, 1951 (No. 92)
Voluntary Conciliation & Arbitration Recommendation, 1951 (No. 92)
Rural workers Organizations Recommendation 1975(No. 149)
Labour Relations (Public Service) Convention, 1978 ( No. 151)
Labpur Relations (Public Service) Recommendation, 1978 (No. 159)
Collective Bargaining Convention, 1981 (No.154)
Collective Bargaining Recommendation, 1981 (No. 163)
Right to organize and collective Bargaining convention , 1949
(no.98)
Complements C87, deals with relations between workers & employers
Provides For:
- Protection of worker against anti-union discrimination (Art 1)
- Protection of workers & employers organization against acts of interference
by each other (Art 2)
by each other (Art 2)
- Promotes collective bargaining (Art 4)- right of workers to be represented by
TUs in negotiating conditions of employment collectively
Scope: all workers except armed forces, police and public servants engaged
in the administration of the state
160 countries have ratified C98 BUT NOT BY India, China, US, Thailand,
Vietnam, Canada, Iran, Korea, Mexico
CB in Public Services
C151 labour Relations ( Public Service) Convention, 1978:
Permits the possibility of opting between CB & other methods for
determination of terms & conditions of employment in public admn
Requires Govt to promote machinery for negotiation / CB for public
employees to determine their terms & condition of employment
Can be excluded- police, armed forces & high level policy making or
managerial officials or employees with duties of confidential nature
managerial officials or employees with duties of confidential nature
Public service employees negotiation & role of parliament, public budgets,
service rules, duties CBAs of public employees should be respected by
legislature
C154 (Collective Bargaining Convention, 1981) : extends the right to CB
to public admn, for which special modalities may be fixed.
CB definition as per C154 (Article 2)
The Term collective bargaining extends to all negotiations which tale place
between an employer, a group pf employers or one or more employers
organizations, on the one hand, and one or more workers organizations,
on the other, for:
(a) Determining working conditions and terms of employment; and/ or
(b) Regulating relations between employers and workers; and/ or
(b) Regulating relations between employers and workers; and/ or
(c) Regulating relations between employers or their organizations and a
workers organization or workers organization.
ILO on CB Summary principles
CB is a Fundamental right endorsed by member States & they have obligation
to respect & promote
Its a right of employers & their organization and organization of workers
only if organization of workers does not exist,
Then representatives of workers can conclude CB
Applies to all police, armed forces & Public servants involved in admn of
State can be excluded
State can be excluded
Purpose- to regulate terms & conditions of employment and relations between
parties
CB is binding (except where terms under CB are less favorable than individual
contract or violate labour law)
For effective CB, workers organizations must be independent, free from
employers and govt intervention
Exclusive bargaining right can be given to majority union
Good faith implies recognition of representative organizations, engaging &
constructive negotiations and mutually respecting the commitments made
CB must be voluntary and procedures set up must recognize this level of
CB must be decided by the parties and not imposed by authorities
Conciliation & mediation can be imposed by law, provided reasonable
time limits are put.
time limits are put.
Voluntary arbitration is legitimate BUT Compulsory arbitration is country
to the principle of voluntary CB and is admissible only in essential
services (in the strict sense of the term), with regard to public servants
engaged in admn of State affairs, in case if deadlock, in national crisis
situation.
Govt intervention in CB are normally against the principles of C98
(annulling, modifying the contents of CBAs, suspension of CBAs w/o
agreement of parties, requiring renegotiations of CBAs, compulsory
extension of CBAs- not allowed except in emergencies and for short
durations)
Restrictions on future CBAs only allowed in exceptional circumstances
(economic emergencies), with consultations with parties, for short
(economic emergencies), with consultations with parties, for short
duration, with provisions for protecting the standards of living of those
affected

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Introduction to collective

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