Collective Bargaining Agent And Donovan Commission Report – Part I
The Dublin observed that CBA as “the great social invention that has institutionalized industrial conflict” and by Donovan Commission as “a right which is or should be the prerogative of every worker in a democratic society”.
This paper will ascertain the following questions in connection with Collective Bargaining Agent (CBA):
1. What is meant by Collective Bargaining Agent (CBA)? And what is significance of Lord Donovan Report (commonly known as The Royal Commission on Trade Unions and Employers’ Associations, in developing the institution of Collective Bargaining Agent (CBA)?
2. Is it true that Collective Bargaining Agent (CBA) is sine qua non for the safeguard of the interests of workers? In a democratic system of governance, the Role of Collective Bargaining Agent plays an important role in industrial relations and ultimately enhance the economic growth?
3. Our Constitution under Article 17 has recognized the freedom of association and unions. How far governments of Pakistan has succeeded in implementation of trade union rights through their public policy?
Abstract
Lord Donovan Commission Report 1968 had recognized some of the new labour rights in its recommendation wherein Collective Bargaining Agent’s role was considered as a Positive Rights.The unfair labour practice from either side is a cause of discontent but in the disguise of unfair labor practice, the rights to join trade union cannot be curtailed. International Labour Convention barred it to intervene in the affairs of CBA and provided a detailed guidelines to safe the rights of labour class. The role of CBA is now a central role in the industrial relations and industrial peace is linked with the efficient functioning of CBA and Employers relationship. The right to freedom of association and trade union is a fundamental rights and government cannot evade its responsibility to provide adequate legislation in connection with Right to Union and Collective Bargaining Agent. Every trade is not CBA but every CBA is a Trade Union. The Constitution of Pakistan fully protect the right of association and trade union.
Introduction
The process of Collective Bargaining Agent is a negotiation between duly elected representatives and employers’ organization for the purpose of welfare of the workers and decent work, conciliation, within an agreed mechanism[1]. The Collective Bargaining Agent is bona fide body who works for safeguarding the legitimate interest of the workers.[2] Since, individually, it is difficult to save their rights thus Collective Bargaining Agent plays an important role in safeguarding the interests of workers.[3]To organize workforce at workplace is guaranteed by the provisions of Constitution[4] and International Convention[5]. The primary purpose of CBA is to safeguard the interests of the workers. But neoliberal pursuits tried to restricts this facility to labour. The gain achieved through barraging are being minimized by these liberal capitalist.[6]
Collective Bargaining Agent has a role of participation in Industrial business and through dialogues and negotiation it resolves the issues of labor, though it is not an arbitrary role where a third party decides the issue. Collective Bargaining Agent has the effect of improving industrial relations, this relationship can be at different level. The continuous dialogues can improve the relation at workplace between workers and unions on the one hand and employees on the other hand. It actually established a productive and healthy relationship between employers and workers which ultimately enhances the production and profits.[7]
To differentiate Collective Bargaining Agent from a trade union, a trade union must get a majority vote by adopting duly prescribed mechanism of voting, therefore it is rightly said that all Collective Bargaining Agent are trade unions but all trade union are not Collective Bargaining Agent.[8]
The Royal Commission on Trade Union and Employees’ Association, 1965-68 and CBA’s Rights
In the backdrop of Economic crisis in 1960s in the England, the Labor Government has constituted a commission[9] to examine the causes and sought recommendation to improve the condition of labor relations. This Royal Commission was also known as Donovan Commission; in the name of its Chairman, Lord Donovan, the High Court Judge, who was considered an independent member in the Commission. The Commission was represented by a broad-based and almost all stakeholders were the part of the Commission. Its twelve members included two trade unions and four management representatives, three industrial relations experts, three other individuals.[10]
The Commission has worked for three and half years to conclude this important Labor related report. They performed deliberations privately, government oral and written evidences, sought expert opinions from university industrial relations experts, and representatives of union management and concerned government departments. This information was also supplemented by Royal Commission’s research staff which compiled and commissioned a research study papers on industrial relations. Finally, the Royal Commission after three and half years long deliberations and evaluation, it had published its report in June 1968, which played a cornerstone in recognizing the Trade Unions rights in the economic activities of the country.[11]
One of the main purposes of this Commission was to bring reform in Collective Bargaining and its extension in British Industry and protection of rights of individual and union members. The Commission was so sensitive regarding the CBA, that it had dedicate eight out of fifteen chapters of the Report and it has dedicated a whole chapter on CBA and its role in industrial relations and growth of industry. The Commission in its conclusion has dubbed the role of CBA as “properly conducted, Collective Bargaining is the most effective means of giving workers the right to representation in decision affecting their working lives, a right which is or should be prerogative of every worker in democratic society”.[12] The Royal Commission Report of 1968, has some themes of previous reports conducted in the labor history of England viz; the Royal Commission of 1891, the Whitely Commission of 1917 and the Balfour Committee of 1926 but the significant difference of Royal Commission Report 1968 is that it has concluded the public policy should declare the Collective Bargaining as the positive Rights of every worker in British Industry. The Commission to some extent discouraged workers’ participation in management, wages council system, and joint consultation because these steps cannot be a proper substitutes of a voluntary CBA. The Commission pointed out that Britain has two system of industrial relations, one is formal and other is informal system of Industrial Relations, the Commission also acknowledged these two system prevalent everywhere in the country but in Britain it is prevalent more than elsewhere. The Commission lent its support to Collective Bargaining. It also observed that continuous conflict is due to the clash between these two systems.[13]
This was pointed out by the Commission that Britain had experience a rising incidents of unofficial and unconstitutional strikes which were not concerned by agreement.[14] The unwritten understanding between the unions and employers associations created problems for the industrial relations. Due to unwritten agreements the untimely increase in the pay in different times created unrest and economic problems. This could not be controlled by the National Unions or employers’ association.[15]The Commission’s another recommendation is the extension of CBA in British Industry, and removal of hurdles in recognition of unions. The Commission encouraged the workers to join union to protect their rights against the abuse of employers.[16] For highlighting the importance of CBA, the Commission observed as under:
“There is a new dilemma for public policy. Collective Bargaining is recognized as the best way of conducting relations and as depending on trade union organization. The proportion of employees who are organized has however been declining. Employment is increasing in areas which have proved difficult to organize, so that the effect of obstacles to the development and recognition of unions in these areas is assuming greater importance for the future of Collective Bargaining. The evidence is that if these obstacles are to be surmounted more effective means of dealing with problems of trade union recognition are needed.”[17]
The Commission also gave the recommendation for the protection of membership rights of individual and members. The Commission admitted there is no widespread abuse by the members, thus commission supported that public policy should recognize adequate safeguard of membership rights.[18]
The Commission also recommended in the light of the ILO Conventions, to provide safeguard against dismissal of workers which was not done in the observance of the due process. The Commission termed such dismissal as invalid which is based on sex, color, race, religions, union’s membership, political opinions and activities, national extraction or social origin.[19]On dismissal, the Commission has recommended as following:
“(i) It is provided for by collective agreement between parties to collective bargaining arrangements and enables joint or independent decisions on dismissals to be reached; and
(ii) It either enables such decisions to be reached before dismissal takes effect (thus effectively safeguarding the employee against the risk of unfair dismissal) or provides for compensation on condition no less favorable than those laid down in the statute as an alternative to reinstatement in the event of a dismissal which has taken place being found to be unfair.”
The Commission’s recommendation were so realistic that the British government rejected only two recommendations: one is the status to trade union as a Corporate Body[20] and other is the legal protection for inducing breaches of contract as provided under the Trades Disputes Acts 1906 and 1965 should be limited to registered trade union or unions of those individuals acting on their behalf, their making unofficial strikes liable under the law.[21] By answering the questions, during the debate on Royal Commission Report in the UK Parliament, Mrs. Castle, Secretary of Labor told the Parliament, that Lord Donovan Report not only emphasized the importance of a strong Collective Bargaining but also urged trade unions to be responsible for the good Industrial Relations.[22] The Labor Government 1974-9, adopted labor related legislation in the light of Lord Donovan Report and enacted followings laws to support the laborers and workers. These enactments include as; Trade Union and Labour Relations Act (TULRA) 1974; Trade Union and Labour Relations (Amendment) Act 1976; Employment Protection Act 1975; Sex Discrimination Act 1975 and Race Relations Act 1976.
Who is a Collective Bargaining Agent (CBA)
Since the role of Collective Bargaining Agent in modern day labor management relations is of paramount importance in safeguarding the interests of workers, therefore, it is important to know who is a legitimate Collective Bargaining Agent? Whether every registered union is Collective Bargaining Agent or there are some conditions attached to become a bona fide Collective Bargaining Agent? To answer this question, as has been said above that every CBA is a union but every union is not a CBA. In every industrial group or groups if there is a single registered union and it secures the support of 1/3rd of the total workers then on the prescribed application by such union to the Registrar Trade Union, it will declare CBA in that industrial group or groups. But in case, there are more than one unions, then on the application by any one of them to Registrar, The Registrar will arrange secret ballot and the majority vote receiver, but not less than 1/5th of the total workers, shall be declared bone fide Collective Bargaining Agent.[23] Therefore it is mandatory to receive Certificate from the Registrar to become a lawful representative of the workers. Further, to understand as to who is a bona fide Collective Bargaining Agent, a case titled Azad Employees v Registrar Trade Union Sindh[24], needs to be seen in which the petitioner applied for the issuance of certificate as a Collective Bargaining Agent but on the refusal by the Registrar who has sent his case to Law Department for legal opinion, during the pendency of the decision, the Union filed a petition in Sindh High Court for directing Registrar to issue Certificate. The petition was rejected being misconceived and premature, hence Certificate of CBA was not issued.[25]
In another case, to resolve the dispute who is legitimate CBA is? Justice Mrs. Naisar Iqbal, while deciding a case[26], wherein a Registered union sought relief against Registrar, who issued CBA Certificate for another registered trade union, wrongly. The petition was allowed and the case was remanded back to Registrar, for holding secret ballot on receiving application for the same.[27] In another case,[28] the Registrar of Trade Union, has been reminded of his duties to examine and verify the lists of members presented to him for conducting election to determine bona fide CBA in any industrial group. The failure of such statutory duties by the Registrar, High Court ordered afresh election be conducted by the Registrar after fulfilling all the necessary formalities.[29]
CBA is for the Workers’ Welfare and not against them
The Collective Bargaining mechanism is primarily established for the purposes of safeguarding the interests of workers and that is the reason the CBA is allowed to represent the workers of the industrial group. The CBA is barred to enter into a contract which abridge or curtail the rights of employees/workers. In Baluchistan Engineering Workers Ltd v Muhammad Aslam case[30], Collective Bargaining Agent contracted with management to reduce the age of retirement by two years, for their own benefits to get from management. Brief details are that Forty-two workers declared surplus and 30 out of 42 opted for golden handshake scheme introduced by the management. The remaining 12 who did not opt voluntary separation from employment were laid off on the pretext of financial crisis in the company. But during this period, the management has regularized the four contractual employees. The company was a group of companies and the respondent failed to prove any financial crisis in the company and it was furthered observed by the Court that there are other places in the group to adjust surplus workers and when company facing no financial crunch rather contrarily they are regularizing workers, it proves good financial health of the company.[31] While deciding the age of retirement, the learned Judge declared that Collective Bargaining Agent has failed to perform their core function i.e. to work for the safeguarding the interests of the workers and invalidated the clause 16 of the Settlement with Management and quoted another judgment to strengthen their views:
“It is an admitted fact, that in a settlement arrived at between K.T.C. and C.B.A. on 30th May, 1988, the retirement age of K.T.C. workers was fixed at 58 years. The C.B.A. has no power to enter into any agreement with the management by which rights already conferred upon the workman could be taken away to their disadvantage. Even otherwise the agreement reached between the C.B.A. and the K.T.C. in 1988, could have prospective application, but cannot adversely affect the terms and conditions of service of the workman who was already in service, who would be governed by the terms and conditions of service existing before such settlement if they are more favourable.”[32]
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References:
[1] ILO Right to Organize and CBA Convention No.98 of 1949.
[2] Section 20 (1) of Industrial Relations Ordinance 2002 read as “Where there is only registered trade union in an establishment or a group of establishments or industry, such 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 or industry, upon an application made in this behalf of the certified by the Registrar in the prescribed manner to be the collective bargaining agent for such establishment or, as the case may be, group of establishments and (2) Where there are more registered trade unions than one in an establishment or a group of establishments or industry, the Registrar shall, upon an application made to him in this behalf by any such trade union, hold within fifteen days from the making of the application, a secret ballot to determine as to which one of such trade unions shall be the collective bargaining agent for the establishment or group of establishments…….”
[3]Collective Bargaining Agent, Pakistan Worker Federation, Union Plaza Rawalpindi Edition, 2013.
[4] Article 17 of the Constitution 1973.
[5] International Labour Organization (ILO) Convention No.98.
[6]Ghayur, Sabur, “Freedom of Association and Right to Organize and Bargaining Collectively: Current situation and Recommendations for Labour Law Reform in Pakistan: A Study undertaken on Behalf of Pakistan Workers Federation for the International Trade Union Confederation. Asia Pacific (ITUC-AP)”, ITUC-AP Cross Study on Labour Law Reform, February 2010 Islamabad Pakistan.
[7] De Silva, Sriyan, “Collective Bargaining Negotiation”, 1996, ILO, ACT/EMP Publication
[8] Mayhem, Ruth, “Difference between a Trade Union and a Collective Bargaining Agent” available at http://work.chron.com/difference-between-trade-union-collective-bargaining-agent-30626.html last accessed on 21 March 2016.
[9]Royal Commission on Trade Union and Employees’ Association 1968
[10] Robert F. Banks, “The Reform of British Industrial Relations. The Donovan Report and the Labor Governments Policy Proposals” Industrial Relations, Vol.24, 1969, Pages 333-382.
[11] Ibid at Footnote No.20.
[12] Royal Commission Report, Para No.212.
[13] Ibid Para Nos.46-52.
[14] Ibid at Footnote at 20.
[15] Ibid at Footnote No.23, Para Nos.65-69.
[16] Ibid Para Nos.213.
[17] Ibid Para No.224.
[18] Ibid Para Nos.588-602.
[19] Ibid Para No.545.
[20] Ibid Para No.111.
[21] Ibid Para No.88.
[22] Para No.1279 of UK Debate on Royal Commission Report.
[23] Punjab Industrial Relations Act 2010, Section 24, published by Government of Punjab 2010.
[24] 2006 PLC 4.
[25] Ibid, Para No.9.
[26] 2007 PLC 366.
[27] Lucky Textiles Mills through Managing Partner v Mazdoor Unions of Lucky Textile Mills through General Secretary, 2007 PLC 366.
[28] 2014 PLC 312.
[29] Ibid at Para No.14.
[30] 2003 PLC 330.
[31] Ibid.
[32] 2003 PLC 330.
This paper on the Collective Bargaining Agent And Donovan Commission Report consists of two parts. Part II is also available in the Commentary section of the website.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.
