Sayed Sarfaraj Hamid
Assistant Professor, Faculty of Law
Northern University, Bangladesh
Department of Law
Northern University, Bangladesh
4th September 2008
Sayed Sarfaraj Hamid
Northern University, Bangladesh
93, Kazi Nazrul Islam Avenue, Dhaka-1215
Letter of Transmittal
It is a grate pleasure for me to submit the research paper on the topic of “Role of collective Bargaining Agent”. While doing this research, I tried my bets to make it to the required standard. I hope that this paper will fulfill your expectation.
I, therefore, hope that you would be kind enough to go through this research paper for evaluation.
I am always available for any clarification of nay part of this research paper at your convenience.
Department of Law
Northern University, Bangladesh
Some terms involved in this research
Collective Bargaining Agent:
Collective Bargaining Agent in relation to an establishment or group of establishments, means the trade union or federation of trade unions which is the agent of the worker in the establishment or, as the case may be, in the group of establishments in the matter of collective bargaining. (1)
In other sense Collective bargaining is the process of negotiation between representatives of workers and management to determine the conditions of employment. The collectively determined agreement may cover compensation, hiring practices, layoff s, promotions, working conditions and hours, worker discipline, and benefit programs. (2)
Trade union means a trade union of workers or employers, formed and registered and includes a federation of trade unions. (3)
Establishment means any shop, commercial establishment or an industrial establishment or premises or yard in which workers are employed for the purpose of carrying on any industry. (4)
1) Section 2 (25) The Bangladesh labor code, 2006 by Md. Abdul halim and Masum Saifur Rahman
3) Section 2 (31) The Bangladesh labor code, 2006 by Md. Abdul halim and Masum Saifur Rahman
4) Section 2 (15) The Bangladesh labor code, 2006 by Md. Abdul halim and Masum Saifur Rahman
Collective bargaining is specifically an industrial relations mechanism or tool, and is an aspect of negotiation, applicable to the employment relationship. As a process and the principles applicable to negotiations, are relevant to collective bargaining as well.
In collective bargaining the union always has a collective interest. Collective bargaining is not for one employer but for several, collective interests become a feature for both parties to the bargaining process.
In collective bargaining certain essential conditions need to be satisfied, such as the existence of the freedom of association and a labor law system. The nature of the relationship between the parties in collective bargaining distinguishes the negotiations from normal commercial negotiations in which the buyer may be in a stronger position as he could take his business elsewhere. In the employment relationship the employer is, in a sense, a buyer of services and the employee the seller, and the latter may have the more potent sanction in the form of trade union action.
Unfortunately the term "bargaining" implies that the process is one of haggling, which is more appropriate to one-time relationships such as a one-time purchaser or a claimant to damages. While collective bargaining may take the form of haggling, ideally it should involve adjusting the respective positions of the parties in a way that is satisfactory to all.
History of Trade Unions
A trade union or labor union is an organization of workers. The trade union, through its leadership, bargains with the employer on behalf of union members ("rank and file" members) and negotiates labor contracts with employers. This may include the negotiation of wages, work rules, complaint procedures, rules governing hiring, firing and promotion of workers, benefits, workplace safety and policies. The agreements negotiated by the union leaders are binding on the rank and file members and the employer and in some cases on other non-member workers.
Most unions claim a right of exclusivity. The union has the authority to determine who may be a member of the union and who may not. Most unions assert a right to mandate that only its members, and no others, may be permitted to work at certain jobs. Furthermore, the union contract is exclusive with regard to the employer, an employer is generally not permitted to seek out the services of another labor union or hire another competing labor union even if he is dissatisfied with the performance of the current labor union.
Over the last three hundred years, trade unions have developed into a number of forms, influenced by differing political and economic regimes. The immediate objectives and activities of trade unions vary, but may include:
Provision of benefits to members: Early trade unions, like, often provided a range of benefits to insure members against, ill health, old age and funeral expenses. In many developed countries, these functions have been assumed by the state; however, the provision of professional training, legal advice and representation for members is still an important benefit of trade union membership.
: Where trade unions are able to operate openly and are recognized by employers, they may negotiate with employers over and working conditions.
: Trade unions may organize or resistance to in furtherance of particular goals.
Political activity: Trade unions may promote legislation favorable to the interests of their members or workers as a whole. To this end they may pursue campaigns, undertake lobbying, or financially support individual candidates or parties (such as the in Britain) for public office.
The traces of trade unions existence could be traced from eighteenth century, that to in the Western society (with most changes occurring earliest in Britain) witnessed a transformation from an agrarian culture with craft-based production to a culture shaped by the first. Some of the changes brought on by this new order, such as new work methods and downward pressure on traditional wage structures, sparked rising alarm in the and of the time, who feared encroachment on their established jobs.
Additionally, the rapid expansion of industrial society was to draw women, children, rural workers, and immigrants to the work force in larger numbers and in new roles. This pool of unskilled and semi-skilled labor spontaneously organized in fits and starts throughout its beginnings, and would later be an important arena for the development of trade unions.
Origins and early history
Trade unions have sometimes been seen as successors to the medieval Europe, though the relationship between the two is disputed. Medieval guilds existed to protect and enhance their members' livelihoods through controlling of and the progression of members from to, and eventually to master and of their craft. They also facilitated mobility by providing accommodation for guild members traveling in search of work. Guilds exhibited some aspects of the modern trade union, but also some aspects of and modern corporations.
Additionally, guilds, like some craft unions today, were highly restrictive in their membership and included only artisans who practiced a specific trade. Many modern labor unions tend to be expansionistic, and frequently seek to incorporate widely disparate kinds of workers to increase the leverage of the union as a whole. A contemporary labor union might include workers from only one trade or craft, or might combine several or all the workers in one company or industry.
Since the publication of the (1894) by and, the predominant historical view is that a trade union "is a continuous association of wage earners for the purpose of maintaining or improving the conditions of their employment." A modern definition by the Australian Bureau of Statistics states that a trade union is "an organization consisting predominantly of employees, the principal activities of which include the negotiation of rates of pay and conditions of employment for its members."
Yet historian R.A. Leeson, in United we Stand (1971), said: Recent historical research by in Craft, Trade or Mystery (2001) puts forward the view that trade unions are part of a broader movement of, which includes medieval, , , , and other’s.
The 18th century noted the imbalance in the rights of workers in regards to owners Smith wrote:
As Smith noted, unions were illegal for many years in most countries (and Smith argued that schemes to fix wages or prices, by employees or employers, should be). There were severe penalties for attempting to organize unions, up to and including execution. Despite this, unions were formed and began to acquire political power, eventually resulting in a body of labor law that not only legalized organizing efforts, but codified the relationship between employers and those employees organized into unions. Even after the legitimization of trade unions there was opposition, as the case of the shows.
Many consider it an issue of fairness that workers be allowed to pool their resources in a special legal entity in a similar way to the pooling of capital resources in the form of.
The right to join a trade union is mentioned in article 23, subsection 4 of the Universal Declaration of Human Rights), which also states in article 20, subsection 2 that "No one may be compelled to belong to an association". Prohibiting a person from joining or forming a union, as well as forcing a person to do the same (e.g. "closed shops" or "union shops", see below), whether by a government or by a business, is generally considered a. Similar allegations can be leveled if an employer based on trade union membership.
19th century unionism
The National Labor Union was the first national union in the United States. It was created in 1866 and included many types of workers. This union did not include Chinese, and partially included blacks and women. This union won the right to an eight hour workday in government jobs. After this union crumbled, the Knights of Labor became the lead.
It was founded in the United States in 1869. Eventually over 700,000 workers joined the Knights. The (AFL) was founded by. By 1904, AFL-affiliated unions had a membership of over 1.4 million nationwide. Under Gompers's leadership, the AFL advocated an approach known as "business" or "pure and simple" unionism, which emphasized collective bargaining to reach its goals. Demands were centered on improvements to the immediate work environment, like better wages, hours and working conditions.
In and other European countries, socialist parties and anarchists played a prominent role in forming and building up trade unions, especially from the 1870s onwards. This stood in contrast to the British experience, where moderate dominated the union movement from the mid-nineteenth century and where trade unionism was stronger than the political labor movement until the formation and growth of the in the early years of the twentieth century.
Structure and politics
Union structures, politics, and legal status vary greatly from country to country.
Unions may organize a particular section of skilled workers), a cross-section of workers from various trades), or attempt to organize all workers within a particular industry (These unions are often divided into "and united in national. In many countries, a union may acquire the status of a "" (an artificial legal entity), with a mandate to negotiate with employers for the workers it represents. In such cases, unions have certain legal rights, most importantly the right to engage in with the employer (or employers) over wages, working hours, and other. The inability of the parties to reach an agreement may lead to, culminating in either or management, or binding arbitration. In extreme cases, violent or illegal activities may develop around these events.
In other circumstances, unions may not have the legal right to represent workers, or the right may be in question. This lack of status can range from non-recognition of a union to political or criminal prosecution of union activists and members, with many cases of violence and deaths having been recorded both historically and in the current day.
Unions are also delineated by and the service model union focuses more on maintaining worker rights, providing services, and resolving disputes. Alternately, the organizing model typically involves full-time, who work by building up confidence, strong networks, and leaders within the workforce; and confrontational campaigns involving large numbers of union members. Many unions are a blend of these two philosophies, and the definitions of the models themselves are still debated.
Although their political structure and autonomy varies widely, union leaderships are usually formed through democratic.
Some research, such as that conducted by the ACIRRT, argues that unionized workers enjoy better conditions and wages than those who are not unionized. On the other hand, in free market worker productivity is the single most important factor in determining wages, not union membership. In a free market, there can be very little difference in wages between union or non unionized workers.
History of Collective Bargaining Agent
Collective Bargaining as a process was introduced in Pakistan through Industrial Relations Ordinance, 1969 as a direct result of acute labor unrest prevailing then. It was meant to give a new impetus to the industrial relations system in the country. Collective bargaining was conceived as the key function of trade unions (Collective Bargaining Agents – CBA), and was designed to provide a set of common ground rules for work in the work place.
Collective Bargaining Agent is come out of teacher’s strike in the US in 1960s. Stories about the 1959 Wisconsin Collective Bargaining Law and how it passed are apocryphal and difficult to verify. Many say Wisconsin’s teachers gained their collective bargaining rights rather accidentally, as conservative lawmakers who opposed collective bargaining rights for public employees’ added teachers to the bill thinking that would convince moderates to vote against it. To the conservatives’ chagrin, the bill passed anyway, and apparently did so without the support or even the real notice of the Wisconsin Education Association.
What is not in dispute is that the 1959 law was the first collective bargaining law for public employees in the United States, and the first law of any kind that granted teachers anywhere the right to organize into unions.
The law lay dormant for a few years, as it was ignored by the administrator-dominated WEA and not well understood by most local teachers’ associations. When courts ruled that the law was constitutional and did, indeed, apply to teachers, isolated pockets of organizing activity started to take place throughout the state.
In February 1964, the Milwaukee Teachers’ Education Association (MTEA) became the first certified teachers’ bargaining agent. Other locals followed suit, and in a short period of time there were several instances of WEA-member teachers and WEA-member administrators sitting across the table in contentious bargaining negotiations. The first WEA-local teachers strike took place in 1969 in Ashwaubenon, when 83 teachers engaged in a four-day walkout.
The Municipal Employment Relations Act (MERA) was amended in 1971 in four significant ways. First, the amendment made it a requirement for districts to bargain with teachers, rather than simply allowing collective bargaining. Second, binding arbitration was included as a means for settling stalemates. The third amendment stipulated that the obligation to bargain did not expire once the school board offered a contract, but continued until the contract was signed. Previously, school board members would stop bargaining in good faith after making their first contract offer.
Finally, the MERA amendments of 1971 made Fair Share an item that could be bargained in local contracts. This made it possible for teachers to be included in their school districts’ bargaining units on the day they were hired, rather than being required to sign up to have the union represent them.
Another, mostly symbolic, change to MERA in 1971 established that supervisors would not be allowed membership in WEA as of January 1, 1974, making official what had already been happening for several years. By the time the law passed, most principals and other supervisors had already left WEA.
Other states in that first wave included Michigan, Illinois, Minnesota, Pennsylvania, Nevada, New Jersey, and New York. Those early activists and organizers turned WEA into the Wisconsin Education Association Council, an unincorporated labor organization
that represented teachers in contract negotiations and could legally collect and contribute money to political candidates. Without a national teachers’ union model to follow, WEAC’s attorneys consulted the AFSCME constitution in drafting their own.
WEAC formed WEPAC, Wisconsin Educators Politically Active and Concerned, asking every local to collect $3 from every member in order to build a political action committee. WEPAC was based on National Education Association recommendations for statewide political action committees and legislative programs. The new constitution and the creation of WEPAC both happened at the 1972 Representative Assembly.
WEPAC’s first foray into elective politics came in the 1973 superintendent of public instruction race between incumbent Barbara Thompson and former legislator Ernie Korpela. WEPAC endorsed Korpela, and bankrolled his campaign with $50,000 in borrowed money. Korpela lost, in part, many believed, because his opponent was able to brand him a “tool of the teachers union.”
Undeterred, WEPAC continued its involvement in the 1974 elections, making endorsement recommendations in every legislative district in Wisconsin. It did so with a painstaking endorsement process involving candidate interviews, voting record analysis and member balloting in each candidate’s district. This democratic, grassroots style of making endorsement recommendations takes more time and effort than the top-down endorsement strategy favored by many other organizations, but WEAC’s members and leaders preferred a more open process.
Eighty-eight percent of WEPAC’s endorsed candidates won their elections in 1974, and the gains made in the 1973–74 legislative session left little doubt as to the value and effectiveness of teacher political action.
Law changes saw the state government’s share of the costs of K-12 education increase from 17 percent to 27 percent, required that all schools provide an adequate education for children with physical disabilities and developmental disabilities, made substantial improvements to teacher retirement benefits, and established 13 minimum education standards for all school districts. Among the very first WEAC-backed bills to pass was the one that required equity for female high school athletes.
WEAC lobbied and fought hard for the school standards. Passage of the standards law was difficult and occurred only at the end of a long process. This often surprises those who rightly see the standards as basic common sense, but in the early 1970s, these were school quality issues that could not be taken for granted. Under the law, schools were required to meet all of the standards in order to qualify for state school aids. They included requirements that all teachers be certified by the Wisconsin Department of Public Instruction to teach in Wisconsin classrooms, and that every school include kindergarten, special education, guidance counselors, emergency nursing services and instructional materials that reflect the United States’ cultural diversity.
There were some 50 teacher strikes throughout the state between 1969 and 1974. As WEAC increased its membership and influence, teachers became more insistent of their rights, and school boards became more resentful and fearful of the teacher movement. Many school boards refused to bargain in good faith despite the state laws granting teachers the right to bargain collectively. Oftentimes, striking was the only way for teachers to convince their school boards to recognize them and address their bargaining issues seriously. Teacher strikes and bad-faith bargaining were illegal, but there was very little in the law to compel either side to comply.
The Trust is a one-of-a-kind "experiment" reaping enormous benefits for WEAC members. Recognizing that financial security was a top priority for Wisconsin’s public school employees, WEAC created the Trust to provide insurance and benefit plans tailored to fit members’ needs.
The trustees held their first board meeting in 1970 and began operations with just one employee and $5,000 in seed money borrowed from WEAC. The Trust’s structure is unique among teachers’ unions that have their own insurance trusts, because WEAC can get no income from the Trust. While other unions have financial agreements that redirect money back into the union’s operations, WEAC created and designed the WEA Trust to be independent and free of the appearance of conflicts of interest, and it has always remained so.
The Trust was not formed with the intention of becoming an insurance company. Originally, the Trust agreed to endorse Washington National’s short-term disability and life insurance plans, and in 1972 did the same for the WPS health plan. These were agreements reached with insurers in which WEAC encouraged members to bargain these private insurance companies into their contracts in exchange for lower premiums. WEA and its Welfare Committee had endorsed companies and products since the 1940s, but the Trust provided a place for doing so under the organization’s own name and brand.
Bolstered by the confidence and financial success of its programs, by 1976 the Trust was offering its own long-term disability and group health insurance plans to members. The Trust’s first programs were health, life, and disability plans. The success of these programs inspired WEAC to expand the Trust’s offerings, and soon it also offered automobile, home, and other casualty insurance plans to members. Retirement investment opportunities followed in 1978 with the creation of a tax-sheltered annuity program.
By 1978, the Trust had become Wisconsin’s thirteenth largest health insurer. It grew from one employee to 65 and moved to a 26,000 square foot building that allowed it to get its work done.
Nature of Collective Bargaining
The ILO Right to Organize and Collective Bargaining Convention No- 98), 1949 describes collective bargaining as:
“Voluntary negotiation between employers or employer’s organizations and workers organizations, with a view to the regulation of terms and conditions, of employment by collective agreements.”
Collective bargaining could also be defined as negotiations relating to terms of employment and conditions of work between an employer, a group of employers or an employers' organization on the one hand, and representative workers' organizations on the other, with a view to reaching agreement.
There are several essential features of collective bargaining, all of which cannot be reflected in a single definition or description of the process:
It is not equivalent to collective agreements because collective bargaining refers to the process or means, and collective agreements to the possible result, of bargaining. Collective bargaining may not always lead to a collective agreement.
It is a method used by trade unions to improve the terms and conditions of employment of their members.
It seeks to restore the unequal bargaining position between employer and employee.
Where it leads to an agreement, it modifies, rather than replaces, the individual contract of employment, because it does not create the employer-employee relationship.
The process is bipartite, but in some developing countries the State plays a role in the form of a conciliator where disagreements occur, or where collective bargaining impinges on government policy.
Determination of the Collective Bargaining Agent (CBA)
The Bangladesh Labor code, 2006, deals with the provisions relating to the determination of Collective Bargaining Agents.
The Law provides for the following procedure:
Where there is only one trade union, that trade union shall be taken as the Collective Bargaining Agent (CBA) for that establishment but where there is more than one trade union in an establishment, the Registrar shall take necessary steps to elect the Collective Bargaining Agent, upon the application of any of the trade unions having members of more than one third of the total workers employed in the establishment.
Upon the receipt of the application as above the Registrar shall, by notice in writing, communicate to all the trade unions as to whether they would want to contest for the secret ballot for their representation in the CBA or not – giving a time limit of fifteen day. If a trade union fails to indicate within the time specified in the notice, its desire to be a contestant in the secret ballot, it shall be presumed that it shall not be a contestant in such a ballot/poll.
Every employer shall on being so required by the Registrar, submit to the Registrar a list of all workers employed in the establishment, excluding those whose period of employment in the establishment is less than three months or workers who are Badli. Provide such facilities for verification of the list submitted by her/him as the Registrar may require.
On receipt of the list of workers from the employer, the Registrar shall send a copy of the list to each of the contesting trade unions and shall also affix a copy thereof in a conspicuous place of her/his office and another copy of the list in a conspicuous place of the establishment.
(1) The Bangladesh labor code, 2006 by Md. Abdul halim and Masum Saifur Rahman
The objection, if any, received by the Registrar within the specified time shall be disposed of by her/him after such enquiry as he deems necessary. The Registrar shall make such amendments, alterations or modifications in the list of workers submitted by the employer as may be required by any decision given by her/him on objections received under previous sub-section.
After amendments, alterations or modifications, if any, made under above sub-section or where no objections are received by the Registrar within the specified time, the Registrar shall prepare a list of workers employed in the establishment concerned and send copies thereof to the employer and the contesting trade unions at least four days prior to the date fixed for the poll.
The list prepared under the aforesaid sub-section shall be deemed to be the list of voters and every person whose name appears in the list shall be entitled to vote to elect the Collective Bargaining Agent. Every employer shall provide for such facilities as are required by the Registrar to conduct the poll. No person shall canvas for vote within a radius of fifty yards of the polling station. For the purpose of holding the secret ballot to determine the CBA, the Registrar shall do the following:
a. Fix a date and intimate the same to the contesting trade unions and the employer
b. Set the sealed ballot boxes, which are sealed in presence of the representative of each of the contesting trade unions if any one present
c. Conduct the poll in the polling stations where the representative of the contesting trade unions shall have the right to enter
d. Count the votes in presence of the representative of the contesting trade unions if anybody is present
e. Declare the result and the name of the elected Collective Bargaining Agent.
Where a registered trade union is declared as the Collective Bargaining Agent, no such application for the determination of the CBA shall be entertained within the subsequent two years.
Rights and Privileges of Registered Collective Bargaining Agents
(Under The Industrial Relations Ordinance, 1969)
Where there is only one registered trade union in an establishment or a group of establishments, that trade union shall if it has as its members not less than one-third of the total number of workmen employed in such establishment or group of establishments, 45[upon an application made in this behalf be certified by the Registrar in the prescribed manner] to be the collective bargaining agent for such establishment or group.
Where there are more registered trade unions than one in an establishment or a group of establishments, the Register shall upon an application made in this behalf by any such trade union which has as its members not less than one-third of the total number of workmen employed in such establishment or group of establishments or by the employer 46[for the Government], hold 47[within fifteen days from the making of the application,] as secret ballot to determine as to which one of such trade unions shall be the collective bargaining agent for the establishment or group:
Provide that the Registrar may, in the case of a large establishment having its branches in more than one town, hold the secret ballot within thirty days from the making of the application.
Provided further that the Registrar shall not entertain any application under this sub-section in respect of an establishment or group of establishments, consisting of, or including, a seasonal factory within the meaning of Section 4 of the Factories Act, 1934 (XXV of 1937), unless such application is made during the month in which the number of workmen employed in such factory in a year is usually the maximum.]
Upon receipt of an application under sub-section (2) the Registrar shall, by notice in writing; call upon every registered trade union in the establishment or group of establishments to which the application relates:-
(a) to indicate whether it desires to be a contestant in the secret ballot to be held for determining the collective bargaining agent in relation to such establishment or group; and
(b) if it so desires, to submit to him within the time specified in the notice a list of its members showing, in respect of each member, his parentage, age, the section or department and the place in which he is employed, his ticket number and the date of his becoming of trade unions, a list of its affiliated trade unions together with a list of members of each such trade union showing in respect of each such member the said particulars.
(1) Every employer shall:-
(a) on being so required by the Registrar, submit a list of all workmen employed in the establishment excluding those whose period of employment in the establishment is less than three months and showing, in respect of each workman, his parentage, age, the section or department and the place in which he is employed, his ticket number and the date of his employment in the establishment; and
(b) Provide such facilities for verification of the lists submitted by him and the trade unions as the Registrar may require:
Provided that, in computing the period of three months referred to in clause (a) in the case of a workman employed in a seasonal factory within the meaning of Section 4 of the Factories Act, 1934 (XXV of 1934), the period during which he was employed in that factory during the preceding seasons shall also be taken into account.
(2) The Registrar shall, after verification of the lists submitted by the trade unions, prepare a list of voters in which shall be included the name of every workman whose period of employment, is not less than three
months and who is a member of any of the contesting trade unions and shall, at least four days prior to the date fixed for the poll, send to each of the contesting trade unions a certified copy of the list of voters so prepared.
(3) Every workman who is a member of any of the contesting trade unions and whose name appears in the list of voters prepared under sub-section (5) shall be entitled to vote at the poll to determine the collective bargaining agent.
(4) Every employer shall provide all such facilities in his establishment as may be required by the Registrar for the conduct of the poll but shall not interfere with, or in any way influence, the voting.
(5) No person shall canvass for vote within a radius of fifty yards of the polling station.
(6) For the purpose of holding secret ballot to determine the collective bargaining agent, the Registrar shall:-
(a) Fix the date for the poll and intimate the same to each of the contesting trade unions and also to every employer;
(b) On the date fixed for the poll so placed in the polling station set up for the purpose the ballot boxes which shall be sealed in the presence of the representatives of the contesting trade unions as to receive the ballot papers;
(c) Conduct the poll at the polling station at which the representatives of the contesting trade unions shall have the right to be present;
(d) after the conclusion of the poll and in the presence of such of the representatives of the contesting trade unions as may be present, open the ballot boxes and count the votes; and
(e) After the conclusion of the count, 51[certify] the trade union which has received the highest number of votes to be the collective bargaining agent:
Provided that no trade union shall be 50[certified] to be the collective bargaining agent for an establishment or group of
Establishments unless the number of votes received by it is not less that one-third of the total number of workmen employed in such establishment or group:
Provided further that, if no trade union secure such number of votes in the first poll, a second poll shall be held between the trade unions which secure the two highest numbers of votes in the first poll and the trade union which secures a majority of the votes cast at the second poll shall be certified in the prescribed manner to be the collective bargaining agent:
Provided further that, if the number of votes secured by two or more trade unions securing the highest number of votes is equal, further poll shall be held between them until one of them secures a majority of the votes cast at such further poll.
(7-a) If no trade union indicates under clause (a) of sub-section (3) that it desires to be a contestant in the secret ballot, the Registrar shall certify the trade union which has made the application under sub-section (2) to be the collective bargaining agent.
(8) Where a registered trade union has been certified under clause (e) of sub-section (9) to be the collective bargaining agent for an establishment or group of establishments, no application for the determination of the collective bargaining agent for such establishment or group shall be entertained within a period of two years from the date of such certification 30except where the registration of such a registered trade union is cancelled before the expiration of that period.
(9) A collective bargaining agent may, without prejudice to its own position, impaled as a party to any proceedings under this Ordinance to which it is itself a party any federation of trade unions of which it is a member.
(10) The collective bargaining agent in relation to an establishment or group of establishments shall be entitled to:-
(a) undertake collective bargaining with the employer or employers on matters connected with employment, non-employment, the term with employment, non-employment, the term of employment or the conditions of work 55[other than matters which relate to the enforcement of any right guaranteed or secured to it or any workman by or under any law, other than this Ordinance, or any award or settlement;]
(b) Represent all or any of the workmen in any proceedings;
(c) Give notice of, and declare, a strike in accordance with the provisions of this Ordinance; and
(d) nominate representatives of workmen on the Board of Trustees of any welfare institutions or Provident Funds and of the Workers' Participation Fund established under the Companies Profits (Workers Participation) Act, 1968 (XII of 1968)].
The Right of the Collective Bargaining Agent
The Collective Bargaining Agent in relation to an establishment shall be entitled to-
- Undertake collective bargaining with the employer on matters connected with non-employment, the term of employment or the condition of work.
- Represent all or any of the workers in any proceedings.
- Give notice of, and declare, a strike in accordance with the provision of the labor code 2006.
- Nominate representatives of workers on any welfare establishment or provident fund and on the board of Trustees of participation fund established under labor code 2006.
- Conduct cases on behalf of any individual or group workers.
- The Bangladesh labor code, 2006 by Md. Abdul halim and Masum Saifur Rahman
Conditions for Successful Collective Bargaining
Pluralism and the Freedom of Association
A pluralistic outlook involves the acceptance within a political system of pressure groups (e.g. religious groups, unions, business associations, political parties) with specific interests with which a government has dialogue, with a view to effecting compromises by making concessions. Pluralism implies a process of bargaining between these groups, and between one and more of them on the one hand and the government on the other. It therefore recognizes these groups as the checks and balances which guarantee democracy.
It is natural that in labor relations in a pluralist society, collective bargaining is recognized as a fundamental tool through which stability is maintained, while the freedom of association is the sine qua non because without the right of association the interest groups in a society would be unable to function effectively. Thus pluralism's "theme is that men associate together to further their common interests and desires; their associations exert pressure on each other and on the government; the concessions which follow help to bind society together; thereafter stability is maintained by further concessions and adjustments as new associations emerge and power shifts from one group to another."
There can, therefore, be no meaningful collective bargaining without the freedom of association accorded to both employers and workers.
Trade Union Recognition
The existence of the freedom of association does not necessarily mean that there would automatically be recognition of unions for bargaining purposes. Especially in systems where there is a multiplicity of trade unions, there should be some pre-determined objective criteria operative within the industrial relations system to decide when and how a union should be recognized for collective bargaining purposes. The accepted principle is to recognize the most representative union, but what criteria is used to decide it and by whom may differ from system to system.
In some systems the issue would be determined by requiring the union to have not less than a stipulated percentage of the workers in the enterprise or category in its membership. The representative ness may be decided by a referendum in the workplace or by an outside certifying authority (such as a labor department or an independent statutory body). There could be a condition that once certified as the bargaining agent, there cannot be a change of agent for a prescribed period (e.g. one or two years) in order to ensure the stability of the process.
Observance of Agreements
Especially in developing countries where there is a multiplicity of unions, unions are sometimes unable to secure observance of agreements by their members. Where a labor law system provides for sanctions for breaches of agreements, the labor administration authorities may be reluctant to impose sanctions on workers. Where there is frequent non-observance of agreements or understandings reached through the collective bargaining process, the party not in default would lose faith in the process.
Support of Labor Administration Authorities
Support by the labor administration authorities is necessary for successful collective bargaining. This implies that they will:
Provide the necessary climate for it. For instance, they should provide effective conciliation services in the event of a breakdown in the process, and even provide the necessary legal framework for it to operate in where necessary, e.g. provision for the registration of agreements.
Will not support a party in breach of agreements concluded consequent to collective bargaining as far as is practicable, secure observance of collective bargaining agreements.
Provide methods for the settlement of disputes arising out of collective bargaining if the parties themselves have not so provided.
Collective bargaining is workable only if the parties bargain in good faith. If not, there will be only the process of bargaining without a result viz. an agreement. Good faith is more likely where certain attitudes are shared among employers, workers and their organizations e.g. a belief and faith in the value of compromise through dialogue, in the process of collective bargaining, and in the productive nature of the relationship collective bargaining requires and develops. Strong organizations of workers and employers contribute to bargaining in good faith, because there would be some parity in the bargaining strength of the two parties.
Proper Internal Communication
Both the management and union should keep their managers and members respectively well informed, as a lack of proper communication and information can lead to misunderstandings and even to strikes. Sometimes managers and supervisors who are ill-informed may inadvertently mislead workers who work under them about the current state of negotiations, the management's objectives and so on. In fact, it is necessary to involve managers in deciding on objectives and solutions, and such participation is likely to ensure greater acceptance – and therefore better implementation – by them.
Advantages of Collective Bargaining
Firstly, collective bargaining has the advantage of settlement through dialogue and consensus rather than through conflict and confrontation. It differs from arbitration where the solution is based on a decision of a third party, while arrangements resulting from collective bargaining usually represent the choice or compromise of the parties themselves. Arbitration may displease one party because it usually involves a win/lose situation, and sometimes it may even displease both parties.
Secondly, collective bargaining agreements often institutionalize settlement through dialogue. For instance, a collective agreement may provide for methods by which disputes between the parties will be settled. In that event the parties know beforehand that if they are in disagreement there is an agreed method by which such disagreement may be resolved.
Thirdly, collective bargaining is a form of participation. Both parties participate in deciding what proportion of the 'cake' is to be shared by the parties entitled to a share. It is a form of participation also because it involves a sharing of rule-making power between employers and unions in areas which in earlier times were regarded as management prerogatives, e.g. transfer, promotion, redundancy, discipline, modernization, production norms. However, in some countries such as Singapore and Malaysia, transfers, promotions, retrenchments, lay-offs and work assignments are excluded by law from the scope of collective bargaining.
Fourthly, collective bargaining agreements sometimes renounce or limit the settlement of disputes through trade union action. Such agreements have the effect of guaranteeing industrial peace for the duration of the agreements, either generally or more usually on matters covered by the agreement.
Fifthly, collective bargaining is an essential feature in the concept of social partnership towards which labor relations should strive. Social partnership in this context may be described as a partnership between organized employer institutions and organized labor institutions designed to maintain non-confrontational processes in the settlement of disputes which may arise between employers and employees.
Sixthly, collective bargaining has valuable by-products relevant to the relationship between the two parties. For instance, a long course of successful and bona fide dealings leads to the generation of trust. It contributes towards mutual understanding by establishing a continuing relationship. The process, once the relationship of trust and understanding has been established, creates an attitude of attacking problems together rather than each other.
Seventhly, in societies where there is a multiplicity of unions and shifting union loyalties, collective bargaining and consequent agreements tend to stabilize union membership. For instance, where there is collective agreement employees are less likely to change union affiliations frequently. This is of value also to employers who are faced with constant changes in union membership and consequent inter-union rivalries resulting in more disputes in the workplace than otherwise.
Finally – perhaps most important of all – collective bargaining usually has the effect of improving industrial relations. This improvement can be at different levels. The continuing dialogue tends to improve relations at the workplace level between workers and the union on the one hand and the employer on the other. It also establishes a productive relationship between the union and the employers' organization where the latter is involved in the negotiation process.
Current Trends in Collective Bargaining
Collective bargaining may take place at the national, industry or enterprise level. In no country does it take place exclusively at one level only. However, in many industrialized countries, especially in Europe, the existence of strong employers' organizations and trade unions have resulted in many important agreements being concluded at the national or industry level, supplemented by some enterprise level bargaining. In the USA, however, bargaining at the enterprise level has been the more usual practice, other than in specific sectors such as coal, steel, trucking and construction.
In Japan national level bargaining has been the exception, and it has been supplemented by a substantial amount of enterprise level bargaining, facilitated partly by union structures which are enterprise-based. In many Asian countries relatively low rates of unionization have militated against national and industry level bargaining, and enterprise level bargaining has been more common. This accounts for the relative non-involvement of some Asian employers' organizations in collective bargaining. Japanese employers and workers have demonstrated how a combination of enterprise level bargaining and shop floor mechanisms (such as joint consultation) enables the parties to take into account specific enterprise conditions and also to increase productivity.
The tendency during the last decade – and especially in the 1990s – even among industrialized countries with a highly centralized bargaining system, is towards enterprise level bargaining. This is true of even a country like Sweden with a strong employers' organization, a strong trade union movement, and a previous tradition of centralized bargaining. In the 1990s the avowed policy of the Swedish Employers' Confederation has been to move negotiation to the enterprise level. Decline in union membership and an increase in corporate power in Europe have contributed to this trend.
But most importantly, restructuring of enterprises flowing from intense competition has created the need to focus on enterprise level issues such as flexible working time, removal of narrow job classifications, new work organization, promotion of more worker involvement schemes and decentralized decision-making. Many employers view centralized bargaining as facilitating more equal distribution of incomes, but depriving employers of the ability to use pay as an instrument for productivity enhancement and to compensate for skills and performance.
The push by employers for flexibility in the context of increasing global competition has raised many issues which are more appropriately dealt with at the enterprise level. Some of the many concerns of employers such as productivity and quality, performance, and skills development to retain or gain competitive edge and to make rapid changes to adapt to the global marketplace are likely to increase the movement towards more enterprise level negotiation.
Issues of Concern
Historically, collective bargaining has addressed equity issues from the point of view of employees – issues such as a fair wage, working conditions and the equal distribution of wage increases to all. Until recently, considerations of efficiency important to productivity were either not addressed, or were accorded relatively little importance. Increasingly employers wish to utilize the collective bargaining process to effect workplace changes in the interests of competitiveness.
Hence the view of employers that the process should address not only how the gains of improved performance should be shared, but also how to increase the productivity 'cake' so to speak, This is the only way in which regular pay increases can be absorbed without eroding profitability and jeopardizing competitiveness.
However, collective bargaining is relatively more conflict than some other forms of negotiation and consultation. Therefore, to reduce the conflict issues it is more effective for employers and their employees to establish joint consultation mechanisms to achieve an understanding on how to increase the productivity 'cake'. In that event, in collective bargaining the areas of dispute would be narrowed, and both parties would be likely to share a common view about the issues and even arrive at a basic agreement on them. In this connection the joint consultation system in the larger Japanese enterprises which fulfill this function is worth noting.
Collective bargaining in Japan results from constitutional guarantees, by the Trade Union Act, the obligation to bargain in good faith and the right to strike. Joint consultation, on the other hand, is a voluntary system which is an outcome of arrangements between the parties based on the mutual acceptance of the need to avoid conflict through strikes or other similar actions.
Joint consultation schemes have been the corner-stone of information sharing between management and labor and of labor-management cooperation in Japan where "unions and employers …. have long been aware of the importance of information sharing in an industrial relations system … after bitter and protracted strikes in the forties and early fifties, both management and labor made concerted efforts to restore industrial peace and to develop a stable industrial relations system … these efforts led to the development of key aspects of the modern Japanese industrial relations system, including the joint consultation, a corner-stone of labor-management information sharing."
Japanese joint consultation systems had their origins in the 1950s when it was promoted by the Japan Productivity Centre. It is estimated that by 1990 about 84 per cent of unionized enterprises had set up joint consultation schemes, and 44 per cent of the non-unionized ones had joint consultation arrangements. These mechanisms, which are an aspect of two-way communication, deal with a variety of issues. In both unionized and non-unionized establishments the most common subjects which come within consultation are working conditions, working hours, leave, safety and health, welfare and cultural activities, bonus, pension and retirement payments, work scheduling, education and training, recruitment, transfers, lay off, job assignment. There are also a range of management issues which fall within joint consultation, but on these matters management merely provides information and explanations. These management issues include business plans and policies, introduction of new technology, organizational changes and production and sales plans. Many establishments have two levels of communication. Quality circles and shop floor committees represent the mechanisms at the shop floor level, and joint consultation committees represent the mechanisms at the corporate level. These committees supplement collective bargaining in the sense that they provide the forum for information-sharing prior to wage negotiations.
In Japan the frequency of joint consultations varies. But on an average in unionized firms there may be 15 meetings and in non-unionized firms about 8 per year. Research suggests that information sharing through the joint consultation system has had a positive effect on profitability, labor productivity and on reducing labor costs, especially in the manufacturing sector (ibid.). Recent evidence suggests that the larger American corporations "share more business and financial information with their unions and employees than is required by law, and that information sharing within the non-union sector – where the statutory requirement for information disclosure is much less stringent – is as extensive as in the union sector." (ibid. at 37).
In Japan different views on the effectiveness of joint consultation exist in relation to unionized and non-unionized firms. About 75 per cent of unionized firms find joint consultation effective, while less than 50 per cent of non-unionized firms find it so.
“Effective areas of JC among the unionized establishments are: improved communication between the management and the union (78 per cent), followed by more smooth business operation, and improved work environments. Improving job satisfaction and increasing interest in management did not score high points. In contrast, the non-union establishments report that employees developed greater interest in management (45 per cent), followed by improved business operation, communication and job satisfaction.”
One of the significant characteristics of joint consultation in Japan is that collective bargaining and joint consultation serve different objectives and are therefore not in conflict with each other. Bargain able issues are dealt with under collective bargaining and non-bargain able ones under joint consultation.
If during joint consultation some issues become bargain able (which could happen in relation to matters on which it is not clear whether they are bargain able ones or not), they will be transferred to the collective bargaining forum. It is also an important characteristic of the joint consultation system that it does not handle individual grievances, which are dealt with under grievance handling procedures.
Joint consultation has made a significant contribution to enterprise level labor relations by creating mutual understanding on a range of management issues which impinge on the lives of employees. This in turn has had an effect on collective bargaining, which tends to take place in an atmosphere in which workers have been informed of management objectives, so that the areas for misunderstanding and conflict are considerably reduced. In effect, therefore, collective bargaining takes place from a point at which some degree of common objectives have been agreed upon. Since information on wage criteria is also shared, differences in wage negotiations (which in most countries are highly contentious) are narrowed, facilitating acceptable compromises and negotiations without disputes. Joint consultation has motivated employers and employees to generate gains and to share them for their mutual benefit.
In essence, joint consultation has become the means through which information is shared, mutual understanding is promoted, participation in arriving at decisions is facilitated, and working conditions are negotiated. As such, it is an essential component of Japanese enterprise level labor relations. The enterprise level union system significantly contributes to the workability and effectiveness of the joint consultation system.
Criteria for Wage Increases
Traditionally, the factors or criteria which have influenced pay increases through collective bargaining include enterprise profit, job evaluation, seniority, cost of living, manpower shortage or surplus, the negotiating strength and skills of the parties. Performance measures such as productivity or profit related to groups or individuals have not featured prominently in collective bargaining. Further, though wage rates negotiated through collective bargaining do reflect wage differentials based on skills, such differentials have not been geared to the encouragement of skills acquisition and application. Therefore a major concern for employers is the need to negotiate pay systems which are strategic in the sense that they achieve strategic objectives flexible in the sense that their variable component can absorb downturns in business and reduce labor costs oriented towards better performance in terms of productivity, quality, profit or whatever performance criteria are agreed upon capable of enhancing earnings of employees through improved performance capable of reducing the incidence of redundancies during times of recession or poor enterprise performance through the flexible component of pay able to reward good performance without increasing labor costs as a part of total costs through enhanced productivity able to attract and retain competent staff able overall to control or stabilize labor costs.
These objectives have come to the forefront, particularly due to pressures flowing from globalization. Therefore wage increases through collective bargaining need to be based on a wider range of criteria than has traditionally been the case. Otherwise once collective bargaining is over, the employer may be left without the financial capacity to adjust pay based on group or individual performance, as well as on skills acquisition and application.
Levels of bargaining
Originally collective bargaining at the national or the industry level was viewed by employers as a means of reducing competition based on labor costs through standardized wage rates. Employers no longer view collective bargaining from this perspective. Instead, centralized and industry level negotiation is considered as depriving enterprises of the needed flexibility to compete on the basis of adjustments at the level of the enterprise in relation to pay, working hours and conditions, work organization, manpower utilization and so on. The efficiency gains are considerably greater – and more easily realizable – when negotiations take place at the enterprise level. Therefore, the major thrust in all countries where the pattern hitherto was national or industry level bargaining, towards increased enterprise-level bargaining, has been by employers. Not all unions favor this trend; their power position can be automatically eroded by this trend, just as it is enhanced through centralized or industry level bargaining.
Even where there is a single union structure, there should be recognition criteria applicable to the union for collective bargaining purposes. The union should be representative of a minimum percentage of employees, as the employer cannot reasonably be expected to conclude an agreement with a union which is not representative.
The need for recognition criteria is all the greater where there is union multiplicity. In countries with union multiplicity and rivalry, recognition disputes have been a cause of major disputes, and practical problems often arise. One is the issue of the continued applicability of an agreement to workers who subsequently leave the negotiating union and join another union. Another issue relates to the status of a collective agreement where, during the duration of the agreement, the union loses its membership and is replaced by another union in the workplace. Employers expect the legal framework to provide for such issues, so as to overcome uncertainty and avoid disputes.
Extension of Agreements
The principle of extension of collective agreements to cover employers and employees not parties to, or covered by, such agreements, is embodied in some labor law systems. The issue can arise only where negotiations are above the level of the enterprise, but can nevertheless be undesirable from several points of view.
First, extension of collective agreements deprives an employer of the opportunity he would have had, had he been a party to the negotiations, to take account of workplace conditions and needs. This is particularly important at a time when enterprise level bargaining is the trend.
Second, it is inconsistent to speak of voluntary collective bargaining on the one hand and provide for involuntary coverage on the other. An extension of coverage should occur, if at all, only where both parties agree to it.
Third, extensions are impractical – and can be harmful – in countries with large regional disparities.
Disputes Arising out of Agreements
Employers expect disputes connected with collective agreements, whether they relate to interpretation or non-observance, to be settled in accordance with procedures agreed to and contained in the agreement, or through other machinery with conciliation as a first step.
Consequences of not having Collective bargaining Agent
1. Many manager-employee problems remain unresolved.
2. Some managers feel they are placed in the conflicting role of representing their employees to management.
3. Managers are sometimes drawn into small, distracting, time-consuming disputes.
4. Some managers tend to avoid direct interaction with public employee groups and lose opportunities to foster improved relations.
The Character of Negotiations
5. Negotiations take place under conditions of unbalanced power relationships.
6. Negotiations are not eliminated in public agencies. Sometimes negotiations simply proceed outside formal channels but without formal rules.
7. Failure to negotiate group grievances can result in multiple individual grievances, choking the system of dispute resolution for everyone.
8. Failure to negotiate sometimes escalates into costly class-action lawsuits.
9. Forces negotiation of salary, working conditions, and sometimes very minor matters into the General Assembly.
10. Many intermediate-level matters are never negotiated (those which affect numerous employees but which aren't suitable for an individual grievance. Matters relating to the exercise of professional judgment are often also excluded).
11. Negotiating with the General Assembly is less focused than negotiating with one Executive Department.
12. Low-level disputes can escalate into broader problems thereby reducing morale, increasing unnecessary turnover, and lowering productivity.
13. Conflict is fostered between departments as they vie for wages, working conditions, or other perquisites.
14. Produces inequities from one department, agency, or jurisdiction to another.
15. Suppressed conflict has negative impact on individual and organization goals.
16. Encourages a system of personal retribution against those employees who attempt to speak out on behalf of their group.
17. Encourages unnecessary privatization of public services as a means of eliminating management-employee conflict.
18. In the face of privatization, doesn't protect employee rights, including the rights of managers.
19. Doesn't protect the legal and constitutional safeguards of some classes of employees, particularly women and minorities, whose jobs are often the target of privatization.
The sources used for this research paper to prepare are-
The Bangladesh labor code, 2006 by Md. Abdul halim and Masum Saifur Rahman