ITCILO Course A Principles of Collective Bargaining: basic concepts and modalities

Definition of collective bargaining The term collective bargaining refers to all negotiations which take place between an employer, a group of employers or one or more employers’ organisations, on the one hand, and one or more workers’ organisation, on the other, for: -Determining working conditions and terms of employment; and/or -Regulating relations between employers or workers; and/or -Regulating relations between employers or their organisations and a workers’ organisation or workers’ organisations.

Right to collective bargaining Fundamental human rights - a pre-requisite for promoting democratic labour relations at the workplace. Promoting dialogue that may result in mutually agreeable solutions while respecting each others needs - better alternative to legislating on every aspect of working conditions or ‘Court’ induced solutions. Developmental role – collective bargaining provides scope for sharing in the gains of growth, improve workers living & working conditions - creates conditions for widening ‘domestic markets.’ Improving the administration and enforcement of workers rights

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 Organise & Collective Bargaining (1949) 1998 Declaration on FPRW & its follow up – obligation on member States to respect, promote & realise in good faith fundamental ILO standards, even if not ratified Declaration on Social Justice for a fair Globalization – FoA & CB important to achieve four strategic objectives of ILO. Global Jobs Pact (June 2009) affirms this.

Factors that have affected CB Role and structure of State Globalization (capital mobility) Growing unemployment Industrial restructuring & growth of non-standard forms of work – subcontracting, flexibilization, & de-regulation of work, temporary contracts, precarious work Global economic crisis Trade union proliferation and fragmentation

Convention No. 98 Reflects the principle that – the best way to govern a relationship between parties is to allow them to regulate it themselves Recognises the power imbalance between capital & labour, and grants the following rights to workers in the employment relationship: - an individual right of workers - protection against acts of anti-union discrimination, - a collective right attributed to trade union organisations (protection against acts of interference); and - an individual right exercised collectively (the right of workers to be represented by trade unions in negotiating conditions of employment collectively.

Half the world’s workers do not have the Right to collective bargaining C 98 ratified by 159 countries (out of 183 member states), including 52 from Africa – Somalia has not ratified this Convention. Also, major countries such as Canada, China, India, Iran, Korea, Mexico, Thailand, United States and Vietnam have not yet ratified C 98. This implies approximately half of the world’s economically active population is still not covered by Convention No. 98.

Workers Rights & role of law Flexibilization and deregulation of work have encouraged the growth of collective bargaining at enterprise level. At the same time, there has been an increasing need for bilateral and tripartite agreements at national level, since certain issues of collective interest cannot be treated in enterprise or even branch level bargaining, especially when a country displays significant regional and sectoral differences. Changing nature of labour law and role of State in the free market economy has diminished the power of trade union and the scope of collective bargaining. Back to square one: working time issues, tendency of law to give precedence to individual rights over collective rights in employment matters, basic workers rights are still the issue today.

What are labour law reforms trying to do? Promote employment flexibility, increase management powers of bringing about changes at workplace & …what about the workers? In return for flexibility, higher compensation, training & redeployment for workers. BUT who takes over this responsibility?  While the costs of downsizing, insecurity of workers & investment in human capital (education & training) are sought to be passed on to the State, its role in regulating & legislating workers rights is being eroded.  What do unions need? Not just collective rights but also participatory rights!

Pre-conditions for collective bargaining  Respect of FoA and civil liberties  Appropriate rules governing the procedure  Workers’ organisations need to be representative of those for whom they collectively bargain (same goes for the employers)  Parties should recognise each other

Recognition may be: –Optional –Voluntary (agreements or practice) –Compulsory When compulsory: Objective and based on pre-established criteria Safeguards attached:  certification by an independent body  chosen by a majority vote of the workers  possibility of new election at reasonable regular intervals

Governing Principles Free & voluntary negotiations (Art 4 of C98): - Govt obligation to promote CB should not lead to measures of compulsion - State can set up machinery to support CB (provision of information, conciliation, mediation, arbitration) - State can prohibit unfair labour practices that hinder CB - State can impose conciliation & mediation within reasonable time limits in certain situations -Where representative union exists, law can make it compulsory to negotiate with such union

Free Choice of bargaining level Govts can take measures adapted to national conditions so as to facilitate CB at any level - Plant/Company/Industry wide/Sector wide/Regional/State/National; 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 an independent body; Representative union federations and confederations should be able to conclude CBAs.

Good Faith Principle A necessary condition but should not be imposed by law. Implies making every effort to reach an agreement, conducting genuine & constructive negotiations, avoiding unjustified delays, complying with the agreements which are concluded. The recognition of representative trade union organisations & mutual respect for commitments made - “collective agreements should bind the signatories thereto and those on whose behalf the agreement is concluded” (Recommendation No. 91). Unions must have a possibility of going on strike in the event of break down of negotiations.

Role of machinery to facilitate negotiations/CB Legal framework, existing machinery & procedures should facilitate bargaining between the two sides but leave them free to reach their own settlement. Certain rules and practices can facilitate CB e.g. right to information relevant for CB on enterprises and economy, provisions in law that enables the dispute resolution procedure to be set in motion either by the parties concerned or by conciliation machinery, etc. The bodies appointed for the settlement of disputes between the parties to collective bargaining should be independent, and recourse to these bodies should be on a voluntary basis.

Violations of the principle of free & voluntary negotiations  In the drafting of collective bargaining;  Requiring administrative approval of freely concluded collective agreements;  In cancellation of agreements because they are contrary to national economic policy;  In compulsory extension of the period for which collective agreements are in force.  Intervention of public authorities are considered as violations:

Compulsory arbitration Should there be compulsory arbitration? In what situations? When parties do not reach agreement or when strike has gone on for too long – one of the parties or govt seeks compulsory arbitration – arbitration imposes solution, not an agreement voluntarily reached (ex in case of essential services, public services) Compulsory arbitration may also be stipulated in CBA as a mechanism for settlement of dispute Dispute resolution machinery should have an option of suspending compulsory arbitration if parties wish to resume negotiations.

Intervention by Authorities Intervention by the public authorities in the drafting of collective agreements is not compatible with the spirit of Article 4 of Convention No. 98, unless it consists exclusively of technical aid. A situation which requires prior approval of collective agreements by the public authorities amounts to a violation of the principle of the autonomy of the parties to negotiation. Refusal by authorities to register or approve a CBA – is permitted only on grounds of errors of pure form or procedural flaws or where the collective agreement does not conform to minimum standards laid down by general labour legislation.

Intervention by Authorities Unilateral imposition of conditions and restricting the scope of CB – only in exceptional circumstances of national emergency, should be minimum, limited in time & accompanied by some guarantees to protect minimum standards of living of workers – prior consultation with workers organisations. The public authorities could also envisage a procedure to draw the attention of the parties in certain cases to considerations of general interest that might call for further examination by them of proposed agreements, provided, however, that preference is always given to persuasion rather than coercion.

CBA versus Contract of employment Collective Bargaining Agreement should bind the parties to the agreement & those on whose behalf the agreement is signed. CBA provisions supercedes anything contrary in the contract of employment, except those conditions in the contract of employment that are more favourable to the workers (contract of employment is usually not between two equal parties). Binding nature of CBAs can be established by law or by CBA itself – depending on the practice followed in each country.

CBAs 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 or at higher level having membership in the enterprise concerned. Existence of elected worker representatives should not be used to undermine the position of the TUs concerned or their representatives (C154, R 91, C135). CBA with non-unionized workers or a minority union where a representative union exists is a violation of Art 4 of C98 and Art 3 of C 87 (FoA rights of workers).

CB in the public services C151 Labour Relations (Public Service) Convention, 1978: An important step forward in requiring States to promote machinery for negotiation or such other methods as allow representatives of public employees to participate in the determination of their terms & conditions of employment. According to Article 1, the only categories which can be excluded (apart from the armed forces and the police are “high- level employees whose functions are normally considered as policy-making or managerial” and “employees whose duties are of a highly confidential nature.” C154 (Collective Bargaining Convention, 1981): extends the right to CB in both private sector and the public service (with the exception of the armed forces and the police) and allows, for the public service, the fixing of special modalities of application of the Convention by national laws or regulations or national practice.

Characteristics of CB in the public service Conditions of service designed to achieve uniformity, which are in general approved by Parliament, and which often contain exhaustive regulations covering the rights, duties and conditions of public servants, leaves little or no room for negotiation. Associations which participate in negotiations in the public service are very often subject to directives or the control of external bodies, such as the Ministry of Finance, inter-ministerial committee, the parliament and municipal authority.

Characteristics of CB in the public service The duration of collective agreements in the public sector does not always coincide with the duration of the budgetary laws – a situation which can give rise to difficulties. There difficulties, such as the determination of the subjects for negotiation and their distribution between the various levels within the complex territorial and operational structure of the State, as well as the determination of the negotiating parties at these levels.

Issues for Discussion  Is there a law supporting collective bargaining rights in your country? What does it say?  What is the criteria and/or procedure for recognition of unions for collective bargaining?  Is refusal to recognise a representative union considered as an unfair labour practice? Can an employer be penalized for this?  Collective bargaining agreement is signed at what level - at company level and/or industry-wide?  Do federations of unions sign agreements or are the agreements signed only by company level unions?  What issues do unions include in the collective agreement?  What are the main difficulties in exercise of collective bargaining right for unions?

Issues for Discussion In your country, does the law or Government: Set the level of bargaining – whether company or industry or national for certain issues? Exclude certain matters from the scope of CB? If yes, what? Are these matters decided after tripartite consultations? Make CB agreements subject to prior approval of the administrative or budgetary authorities? What are the ‘means’ available to unions to enforce workers rights, especially the rights to organise & negotiate?

Annexure slides

ILO instruments dealing with collective bargaining & related issues Collective Agreements Recommendation, 1952 (No. 91) Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) Right to Organise and Collective Bargaining Convention, 1949 (No. 98) Workers’ Representatives Convention, 1971 (No. 135) Voluntary Conciliation & Arbitration Recommendation, 1951 (No. 92) Rural Workers’ Organisations Recommendation, 1975 (No. 149) Labour Relations (Public Service) Convention, 1978 (No. 151) Labour Relations (Public Service) Recommendation, 1978 (No. 159) Collective Bargaining Convention, 1981 (No. 154) Collective Bargaining Recommendation, 1981 (No. 163).

Complements C87, deals with relations between workers & employers Provides for: –Protection of workers against anti-union discrimination (Art 1) –Protection of workers’ & employers’ organization against acts of interference 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 Right to organize and collective Bargaining convention, 1949 (no. 98)

CB in the public services C151 Labour Relations (Public Service) Convention, 1978: An important step forward in requiring States to promote machinery for negotiation or such other methods as allow representatives of public employees to participate in the determination of their terms & conditions of employment. According to Article 1, the only categories which can be excluded (apart from the armed forces and the police are “high-level employees whose functions are normally considered as policy- making or managerial” and “employees whose duties are of a highly confidential nature.” C154 (Collective Bargaining Convention, 1981): extends the right to CB in both private sector and the public service (with the exception of the armed forces and the police) and allows, for the public service, the fixing of special modalities of application of the Convention by national laws or regulations or national practice.

CB definition as per C 154 ( Article 2) The term “collective bargaining” extends to all negotiations which take place between an employer, a group of employers or one or more employers’ organisations, on the one hand, and one or more workers’ organisations, on the other, for: (a) determining working conditions and terms of employment; and/or (b) regulating relations between employers and workers; and/or (c) regulating relations between employers or their organisations and a workers’ organization or workers’ organisations.

ILO on CB – summary principles CB is a fundamental right endorsed by member States & they have obligation to respect & promote It’s a right of employers & their organizations 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 Purpose – to regulate terms & conditions of employment and relations between parties CB is binding (except where terms under CB are less favourable than individual contract or violate labour law) For effective CB, workers organizations must be independent, free from employers and govt intervention Exclusive bargaining rights can be given to majority union

ILO on CB – summary principles Good Faith implies recognition of representative organizations, engaging in genuine & constructive negotiations and desire to reach agreement, avoiding unjustified delays and mutually respecting the commitments made CB must be voluntary and procedures set up must recognise 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. Voluntary arbitration is legitimate BUT Compulsory arbitration is contrary 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 of deadlock, in national crisis situation.

ILO on CB – summary principles 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 duration, with provisions for protecting the standards of living of those affected.