COLLECTIVE BARGANING

INTRODUCTION

Other than the continuing argument about the appropriate education for nurses, collective
bargaining is the most controversial and divisive issue in nursing. Some believe that collective
bargaining reduces the professionalism of nursing; others view it as a mechanism to prevent
employers from exploiting nurses. It has been seen as a complex legal issue, but dealt with by
attorney and other experts specifically trained to handle the problem it presents.

MEANING

Collective bargaining is a process between employers and employees to reach an agreement

regarding the rights and duties of people at work. Collective bargaining aims to reach a collective
agreement which usually sets out issues such as employees pay, working hours, training, health
and safety, and rights to participate in workplace or company affairs.

DEFINITION:

“Collective bargaining is an agreement between a single employer or an

association of employers on the one hand and a labour union on the other, which regulates the
terms and conditions of employment”

(Tudwig Teller)

“Collective bargaining is a process of discussion and negotiation between two

parties, one or both of whom is a group of persons acting in concest…. More specifically it is the
procedure by which an employer or employers and a group of employees agree upon the
conditions of work”

(The encyclopaedia of social science)

“Collective bargaining takes place when a number of work people enter into a
negotiation as a bargaining unit an employer or group of employer with the object of reaching
an agreement on conditions of the employment of the work people”
(According to J.H. Rishardwon)

HISTORY OF COLLECTIVE BARGAINING IN NURSING

■In the year 1913: The california legislature extended the eight hour law to pupil
nurses. Most hospital work at that times was performed by pupil nurses with 12 or
even 24 hour shifts .This is considered one of the first labor issues that nursing
confronted
 ■1919 – Formation of the union of stewards and Nurses.

■1930 – The national labor relation Act (NLRA) established the regulation of
collective bargaining.NLRA provides guidelines for the resolution of conflicts
between nurses employees and their employers

■1934 – ANA actively campaigned for the eight – hour day

■1941 – California state nurses association represented nurses concerns before the
labour Board.

■1946 – The California nurses association became the first nurses association to
represent nurses.

■In 1946, Trade union nurses in southern California went on strike .This led to call
for collective bargaining for nurses by a qualified and professional staff .Provided
by nursing organizations to allow collective nursing action

■ 1999 The ANA established the united American Nurses as the labor union for
registered nurses in the United States

OBJECTIVES OF COLLECTIVE BARGAINING

Collective bargaining has benefits not only for the present, but also for the future. The objectives
of collective bargaining are:
 To provide an opportunity to the workers, to voice their problems on issues related to
employment.
 To facilitate reaching a solution that is acceptable to all the parties involves.
 To resolve all conflicts and disputes in a mutually agreeable manner.
 To prevent any conflict/disputes in the future through mutually signed contracts.
 To develop a conductive atmosphere to foster good organizations relations.
 To provide stable and peaceful organization (hospital) relations.
 To enhance the productivity of the organization by preventing strikes lock – out ect.
CHARACTERSTICS OF COLLECTIVE BARGAINING

●It is a group process, wherein one group, representing the employers, and the other,
representing the employees, sit together to negotiate terms of employment
.
● Negotiations form an important aspect of the process of collective bargaining i.e.,
there is considerable scope for discussion, compromise or mutual give and take in
collective bargaining.

● Collective bargaining is a formalized process by which employers and

independent trade unions negotiate terms and conditions of employment and the
ways in which certain employment-related issues are to be regulated at national,
organizational and workplace levels.

● Collective bargaining is a process in the sense that it consists of a number of steps.

It begins with the presentation of the charter of demands and ends with reaching
an agreement, which would serve as the basic law governing labor management
relations over a period of time in an enterprise. Moreover, it is flexible process
and not fixed or static. Mutual trust and understanding serve as the by products of
harmonious relations between the two parties.

● It a bipartite process. This means there are always two parties involved in the
process of collective bargaining. The negotiations generally take place between
the employees and the management.

● Collective bargaining is a complementary process i.e. each party needs something

that the other party has; labor can increase productivity and management can pay

better for their efforts.

● Collective bargaining tends to improve the relations between workers and the

union on the one hand and the employer on the other.

● Collective Bargaining is continuous process. It enables industrial democracy to be

effective. It uses cooperation and consensus for settling disputes rather than

conflict and confrontation.

● Collective bargaining takes into account day to day changes, policies,

potentialities, capacities.

● It is a political activity frequently undertaken by professional negotiators.

UNION/LABOUR ORGANIZATION

An organization in which employees participate for the purpose of negotiating with the
employer about grievances, labour disagreement, wages, hours of work and conditions of
employment.

PREPARATION FOR COLLECTIVE BARGAINING

● Preparation should begin months before the contract talks.

● Chairperson should be establish and maintain pleasant relationship with union representatives
by treating them courteously in social situations, grievance hearing.

●Obtain information from other nurse executives about union activities in neighboring health
agencies.

● Review other labour contracts negotiating in other agencies to determine what type of demands
were made by various worker categories.

● Keep ongoing recording agency’s employees grievances and analyse these before negotiation
begins.

● Research the wage salary structures of other health agencies in the community and compare
against agencies current wage package.

● Should read the act to identify limitations.

COLLECTIVE BARGAINING PROCESS

 Collective bargaining generally includes negotiations between the two parties (employees’
representatives and employer’s representatives). Collective bargaining consists of negotiations
between an employer and a group of employees that determine the conditions of employment.
Often employees are represented in the bargaining by a union or other labor organization. The
result of collective bargaining procedure is called the collective bargaining agreement (CBA).
Collective agreements may be in the form of procedural agreements or substantive agreements.
Procedural agreements deal with the relationship between workers and management and the
procedures to be adopted for resolving individual or group disputes.

This will normally include procedures in respect of individual grievances, disputes and
discipline. Frequently, procedural agreements are put into the company rule book which provides
information on the overall terms and conditions of employment and codes of behavior. A
substantive agreement deals with specific issues, such as basic pay, overtime premiums, bonus
arrangements, holiday entitlements, hours of work, etc. In many companies, agreements have a
fixed time scale and a collective bargaining process will review the procedural agreement when
negotiations take place on pay and conditions of employment.

The collective bargaining process comprises of five core steps:

 Prepare: This phase involves composition of a negotiation team. The negotiation team
should consist of representatives of both the parties with adequate knowledge and skills
for negotiation. In this phase both the employer’s representatives and the union examine
their own situation in order to develop the issues that they believe will be most important.
The first thing to be done is to determine whether there is actually any reason to negotiate
at all. A correct understanding of the main issues to be covered and intimate knowledge
of operations, working conditions, production norms and other relevant conditions is
required.

 Discuss: Here, the parties decide the ground rules that will guide the negotiations. A
process well begun is half done and this is no less true in case of collective bargaining.
An environment of mutual trust and understanding is also created so that the collective
bargaining agreement would be reached.

 Propose: This phase involves the initial opening statements and the possible options that
exist to resolve them. In a word, this phase could be described as ‘brainstorming’. The
exchange of messages takes place and opinion of both the parties is sought.

 Bargain: negotiations are easy if a problem solving attitude is adopted. This stage
comprises the time when ‘what ifs’ and ‘supposals’ are set forth and the drafting of
agreements take place.

 Settlement: Once the parties are through with the bargaining process, a consensual
agreement is reached upon wherein both the parties agree to a common decision
 regarding the problem or the issue. This stage is described as consisting of effective joint
implementation of the agreement through shared visions, strategic planning and
negotiated change.

MAJOR FUNCTIONS OF COLLECTIVE BARGAINING

 Selection of a bargaining agent.

 Certification to contract.

 Contract administration.

Selection of bargaining agent:

The process of establishing a union in any setting begins with the selection
of a bargaining agent certified to conduct labour negotiations for a group of individuals. This
process is known as a representative election and is presided over by the national labour
relationship board. For an election occurs, the union must demonstrate that interest is shown by
at least 30% of the employees affected by this action. Once the 30% level is reached, the union
can petition the national labour relations board to conduct an election. At the conclusion of this
meeting the board will have determined three things:

 Who is eligible to participate in the union: - This is problematic issue and not easily
resolved, because registered nurses employed as staff nurses are eligible for
collective bargaining but registered nurses employed as management are not.

 Whether the signatories are employees of the organization.

 A date for union election: - the election is conducted by the board within 45 days,
using a secret ballot. All individuals eligible for represent action by the union are
notified of the election time and date. On Election Day, eligible employees are
asked to choose not only whether they wish to be representatives of the union but
also which union they want to represent.

Many unions represent registered nurses in collective bargaining; therefore

the ballot may contain several choices for the bargaining agent. In addition to various state
nurses associations (SNAs), other major unions representing nurses are:

 American federation of, county and municipal employees (AFSCME).

 Service employee’s international union (SEIU).

 The election outcome is determined by the group receiving a simple majority of
the votes cast. The union winning this election certified to enter into contract negotiations with
the employer.

The process of selecting a bargaining agent produces a tense, emotional

climate that affects everyone in the organization. It is important for both nurse and managers and
staff nurses to remember that during this period, the rules of unfair labour practice apply. Staff
nurses also must be careful that their discussions regarding collective bargaining take place away
from the work site and not on work time.

Certificate to contract:

Certification by the National Labour Relations Board (NLRB) of a union to be the

bargaining agent does mean that a group of people have the right to enter into a contract with an
employer, a concept known as certification to contract.

The actual contract and its provision must be written and voted on by the union
membership a process that may take some time. Issues considered mandatory subjects of
bargaining are rates of pay, wages, hours of employment and grievance procedures.

Additionally, the contract may specify other areas provided that both parties agree
they should be included. These can include:

 A union among security clause.

 A management rights clause.

 Seniority.

 Fringe benefits.

 Layoff and reduction in work language.

 ‘Floating’ procedure.

 Insurance.

 Retirement issues.

 Professional issues.

The contract is considered to be in effect when both management of the

organization and employees agree on its content. The final agreement is subject to a ratification
vote by the affected employees. Passage of the contract, or ratification, is obtained by a simple
majority of eligible members who vote.
Contract administration:

The role of administrating the contract then falls to an individual designated as the
union representative. The individual may be an employee of the union or a member of the
nursing staff. It is the duty of the union representative to provide fair and equal representation to
all members of the unit. The role of the union representative is explain the provisions of the
contract to the union membership and be available to help in the grievance process.

Obstacles on collective bargaining in nursing

1. Registered nurses who participate in organizing drives could be summarily fired.

2. Hospital could refuse to recognize and bargain with nursing organizations.

3. The associations spend years softening up the turf.

Issues of collective bargaining in nursing

♠It clearly affirms that state nurses associations are legitimate labour organizations.

♠States that ‘the presence of supervisors in the labour organizations is visually irrelevant in
determining its legal states.

♠Holds that the participation of management level nurse as association members of office.

♠Firmly place on the employer the burden of providing any particular case that there is unawful
interference by supervisory nurses.

Members involved in collective bargaining

1 .Registered nurses.

2. Physicians

3. Other professionals

4. Technical employees

5. Non-professionals

Collective Bargaining Agents

 Service Employees International Union

 State Nurses’ Associations of the American Nurses Association

 National Union of Hospital and Health Care Employees of the Retail, Wholesale and
Department Store Union
Collective Bargaining: Advantages

• Contract to guide standards

• Participation in decision-making process

• All union members and management must conform to terms of contract without
exception

• Process exists to question manager’s authority if member feels something was

done unjustly

 Disadvantages of collective bargaining

• Reduced individuality

• Other union members may outvote one’s decisions

• All union members and management must conform to terms of contract without
exception

• Disputes are not handled with individual and management only; less room for
personal judgment

• Must pay union dues even if one does not support unionization

The nurse manager’s role:

The nurse manager in a health care organization where nurses are organized into a
collective bargaining unit participates in resolving grievances, using the agreed upon grievance
procedure.

CLASSIFICATION OF GRIEVANCE:

Grievance can usually be classified as

 Those caused by misunderstanding.

 Those caused by intentional contract violations.

 Those caused by symptomatic problems outside the scope of the labour

agreement.
 Grievance caused by a misunderstanding usually stem from circumstances surrounding the
grievance, a lack of familiarity with the contract or an inadequate labour agreement.

Intentional violation of a contract is usually an effort to capitalize on ambiguous contract

language or past practices.

Symptomatic grievances are simply a means for the employee to show dissatisfaction or
frustration and stem from the human element in management / labour relationship.

THE GRIEVANCE PROCESS: an example;

The following steps comprise the typical grievance process:

Step 1:- the employee talks informally with her or his direct supervisor, usually as soon
as possible after the incident has occurred. A representative of bargaining agent is allowed to be
present. A written request for the next step is given to the immediate supervisor within ten work
days. The employee, supervisor, and agent will be present for any discussion.

Step 2:- if the response to step 1 is not satisfactory, a written appeal may be submitted
within 10 work days to the director of nursing. The employee, agent, grievance chairperson and
the top nursing administrator or designs can be provided in 5 work days subsequent to these
meetings.

Step 3:- the employee, agent, grievance chairperson, nursing administrator and director
of human resources meet for discussion. The 10 and 5 day time limits for appeal and answer are
again observed.

Step 4:- the final step is arbitration, which is invoked when no solution suggested is
acceptable. An arbitrator who is a neutral third party is selected and is present at these meetings.
The submission of grievance may be required within 15 days after step 3 is completed.

SUGGESTIONS HELPFUL IN HANDLING GRIEVANCE:

 The objective of the grievance process is not to achieve conquest. You have to
work with one another after resolution of the grievance, so treat each other with
courtesy and respect.

 Do not, whatever your position, allow disagreements or disputes among members

of your team to be public.

 Expedience is a must; delaying tactics serve only to heighten emotions. However

allow time to consider the facts.

 Stay objective: emotionalism usually leads to further problems.

  Implementing decisions or filing grievances requires planning. Get all the facts
and information’s, evaluated and anticipates the other party’s response. Seek
guidance from those higher in administrative positions.

 Never refuse to meet with the grievant representatives.

 The bargaining unit representative, though in a unique position, is not immune

from reprimand or discipline.

 Integral to bargaining are solutions that may also accommodate future changes
and needs.

 Be prepared to give or take acceptable compromises and alternate solutions

within the framework of the contract, no matter which party suggests them.

 Pat formulas do not settle grievance or solve problems.

Observe the time limits. If you do not, the bargaining unit may

UNIONS IN NURSING:

Unions have been present in America since the 1970s.Skilled craftsmen formed early unions to
protect themselves from wage cuts during the highly competitive era of industrialization. The
history of unionization reveals that union membership and activity increase sharply during the
times of high employement and prosperity and decrease sharply during economic recessions and
layoffs.

Manager’s Role During Initiation of Unionization

 Know the law, and make sure rights of the nurses as well as management are clearly
understood.

 Act clearly within the law, no matter what the organization delegates to you as manager.

 Find out the reasons the nurses want collective action.

 Discuss and deal with the nurses and the problems directly and effectively.

 Distribute lists of disadvantages of unionization, such as paying dues.

 Distribute examples of unions that did not help with patient care issues.
Nurses’ Role During Initiation of Unionization

 Know your legal rights and the rights of the manager.

 Act clearly within the law at all times.

 If a manager acts unlawfully, e.g., by firing an employee for organizing, report the
employer’s actions to the National Labor Relations Board.

 Keep all nurses informed through regular meetings held close to the hospital.

 Set meeting times conveniently around shift changes and assist with child care during
meetings

Striking

 A collective bargaining agent cannot make the decision to strike.

 The decision to strike can be made only by a majority of union members.

 Most nursing collective bargaining agents put a no-strike clause in the contract.

 The 1974 Health Care Amendments to the National Labor Relations Act contain
provisions that guarantee the continuation of adequate patient care in a strike situation.

NURSES UNIONS AND ASSOCIATIONS

Since its inception, the ANA has had an active interest in the economics security of nurses.

 The original purposes of ANA was “to promote the useful and honor, the financial and
other interest of the nursing profession”- Flannigan-1976. Although this statement was
useful in helping to shape the role of the profession in supporting collective bargaining
for nurses, the ANA did not officially adopt an economic security program that included
collective bargaining for nurses through the Economics and General welfare program,
which currently is called the Department of labor Relations and work place advocacy.

 The ANA is a registered labor organization, but it does not engage in direct collective
bargaining. The actual certification of units, negotiation of contracts, and administration
of contracts is conducted by the SNA.

 The SNA have the freedom to independently decide their own level of participation
regarding collective bargaining.

 In 1983, the nursing leaders established their first organisation, the American Society of
Superintendents of Training Schools for Nurses, one of whose purpose was a
commitment to promote the general welfare of nurses.
  In early 1900s, working conditions and salaries for nurses were extremely poor.

 In 1929, some nurses began to recognize that protest and collective action were necessary
if the conditions of the nurse were to improve.

 In 1945, Shirley Titus, then the executive director of the California nurses association,
chaired a committee to study the employment conditions of nurses; as a result of the
findings of this committee, ANA adopted what was called the economic security
program.

GOALS OF PROFESSIONAL ASSOCIATIONS

■To make decisions on the basis of competence rather than community.

■To resolve conflicts through confrontation.

■To maximize collaboration.

■To develop interpersonal trust.

■To resolve communication block and to speed up communication.

■To create a climate where human growth and development become a function of

Organization.

American Nurses Association (ANA)

 The ANA is a full-service professional organization representing the nation’s entire

registered nurse population.

Functions of ANA

 Represents the interest of nurses in collective bargaining

 Advances the nursing profession by fostering high standards for nursing practice

 Lobbies Congress and regulatory agencies on health care issues affecting nurses and the
general public

 Initiates many policies pertaining to health care reform

 Publishes its position on issues

HEALTH CARE LABOUR LAWS

 The history of labour legislation in India is naturally interwoven with the history of
British colonialism. Considerations of British political economy were naturally paramount in
shaping some of these early laws. In the beginning it was difficult to get enough regular Indian
workers to run British establishments and hence laws for indenturing workers became necessary.
This was obviously labour legislation in order to protect the interests of British employers. Then
came the Factories Act. It is well known that Indian textile goods offered stiff competition to
British textiles in the export market and hence in order to make India labour costlier the Factories
Act was first introduced in 1883 because of the pressure brought on the British parliament by the
textile magnates of Manchester and Lancashire. Thus we received the first stipulation of eight
hours of work, the abolition of child labour, and the restriction of women in night employment,
and the introduction of overtime wages for work beyond eight hours. While the impact of this
measure was clearly welfarist the real motivation was undoubtedly protectionist! To date, India
has ratified 39 International Labour Organization (ILO) conventions of which 37 are in force. Of
the ILO’s eight fundamental conventions, India has ratified four – Forced Labour 1930,
Abolition of Forced Labour 1957, Equal Remuneration 1951, and Discrimination (employment
and occupation) 1958.
The organized and the unorganized
An important distinction that is popularly made nowadays in all discussions relating to
labour legislation is between workers in the organized/ formal sector and those in the
informal/informal sector. Many who make this distinction do so with ulterior motives, yet
we must reckon with it – especially because out of the total workforce in the country, 92
percent work in the informal sector while only eight percent work in the formal sector.
At the outset it must therefore be remembered that those who were unorganized yesterday
are organized today and those who are unorganized today aspire to become the organized
tomorrow. Moreover, many rights, benefits, and practices, which are popularly recognized
today as legitimate rights of the workers, are those that have accrued as a result of the
struggles carried out by the earlier generation of workers. The attempt, prevalent in some
circles to pit one section of workers against the others, must therefore be carefully
understood and deserves to be rejected outright.
Trade unionism and the Trade Union Act 1926
There are almost ten major central union organizations of workers based on different
political ideologies. Almost every union is affiliated to one of these. These central
organizations have state branches, committees, and councils from where its organization
works down to the local level.
The first central trade union organization in India was the All India Trade Union Congress
(AITUC) in 1920 – almost three decades before India won independence. At about the
same time workers at the Buckingham and Carnatic Mills, Madras went on strike led by B
P Wadia. The management brought a civil suit against the workers in the Madras High
Court and not only obtained an injunction order against the strike but also succeeded in
obtaining damages against the leader for ‘inducing a breach of contract’. This was
followed by widespread protests that finally yielded in the Trade Union Act 1926 giving
immunity to the trade unions against certain forms of civil and criminal action. Apart from
this aspect the Trade Union Act also facilitated registration, internal democracy, a role for
outsiders and permission for raising a political fund subject to separate accounting
requirements. The Trade Union Act facilitates unionizations both in the organized and the
unorganized sectors. It is through this law that the freedom of association that is a
fundamental right under the Constitution of India is realized.
The right to register a trade union however does not mean that the employer must
recognize the union – there is in fact no law which provides for recognition of trade unions
and consequently no legal compulsion for employers, even in the organized sector, to enter
into collective bargaining.
Yet in reality because of the strength of particular trade unions there is fairly widespread
collective bargaining, especially in the organized sector.
Wage determination in the an organized sector
Wage determination in India has been achieved by various instruments. For the
unorganized sector the most useful instrument is the Minimum Wages Act 1948. This law
governs the methods to fix minimum wages in scheduled industries (which may vary from
state to state) by using either a committee method or a notification method. A tripartite
Advisory Committee with an independent Chairman advises the Government on the
minimum wage. In practice unfortunately, the minimum wage is so low that in many
industries there is erosion of real wage despite revision of the minimum wage occasionally.
A feeble indexation system has now been introduced in a few states only.
Collective bargaining in the organized sector
An important factor that is not much recognized, but which still prevails in many organized
sector units is fixing and revising wages through collective bargaining. The course of
collective bargaining was influenced in 1948 by the recommendations of the Fair Wage
Committee that reported that three levels of wages exist – minimum, fair, and living. These
three wage levels were defined and it was pointed out that all industries must pay the
minimum wage and that the capacity to pay would apply only to the fair wage, which
could be linked to productivity. In addition to this the fifteenth Indian Labour Conference,
a tripartite body, met in 1954 and defined precisely what the needs-based minimum wage
was and how it could be quantified using a balanced diet chart. This gave a great boost to
collective bargaining; many organized sector trade unions were able to achieve reasonably
satisfactory indexation and a system of paying an annual bonus. It is now the law, that a
thirteenth month of wage must be paid as a deferred wage to all those covered by the
Payment of Bonus Act. The minimum bonus payable is 8.33 percent and the maximum is
20 percent of the annual wage.
Strikes and lockouts
Workers have the right to strike, even without notice unless it involves a public utility
service; employers have the right to lockout, subject to the same conditions as a strike. The
parties may sort out their differences either bilaterally, or through a conciliation officer
who can facilitate but not compel a settlement which is legally binding on the parties, even
when a strike or a lockout is in progress. But if these methods do not resolve a dispute, the
government may refer the dispute to compulsory adjudication and ban the strike or lockout.
Conciliation, arbitration, and adjudication
When parties engaging in collective bargaining are unable to arrive at a settlement, either
party or the government may commence conciliation proceedings before a government
appointed conciliation officer whose intervention may produce a settlement, which is then
registered in the labour department and becomes binding on all parties. If conciliation fails
it is open to the parties to invoke arbitration or for the appropriate government to refer the
dispute to adjudication before a labour court or a tribunal whose decision may then be
notified as an award of a binding nature on the parties. Disputes may be settled by
collective bargaining, conciliation, or compulsory adjudication.
Colonial dispute settlement machinery
The Industrial Disputes Act 1947 (IDA) provides for the settlement machinery above. The
framework of this legislation, which is the principle legislation dealing with core labour
issues, is of colonial origin. This law originated firstly in the Trade Disputes Act 1929,
introduced by the British, when there was a spate of strikes and huge loss of person days
and secondly through Rule 81A of the Defence of India Rules 1942, when the British
joined the war efforts and wanted to maintain wartime supplies to the allied forces.
Interestingly the interim government on the eve of formal independence retained this
framework by enacting the IDA, which still remains on the statute book.
Developments after independence
Even though the IDA was primarily meant for industry in the organized sector, its present
application has now extended well into the unorganized sector, through judge-made law. Its
pro-worker protection clauses and safeguards against arbitrary job losses have evolved
over a period of time both through the process of sustained legislative amendments and
through the process of judicial activism spread over more than five decades.
The original colonial legislation underwent substantial modification in the post-colonial era
because independent India called for a clear partnership between labour and capital. The
content of this partnership was unanimously approved in a tripartite conference in
December 1947 in which it was agreed that labour would be given a fair wage and fair
working conditions and in return capital would receive the fullest co-operation of labour
for uninterrupted production and higher productivity as part of the strategy for national
economic development and that all concerned would observe a truce period of three years
free from strikes and lockouts.
Regulation of job losses
Space does not allow a detailed discussion of this transformation in labour policy and
consequent amendments to labour law, but provisions that deal with job losses must be
noted. Under the present law any industrial establishment employing more than 100
workers must make an application to the Government seeking permission before resorting
to lay-off, retrenchment, or closure; employers resorting to any of the said forms of
creating job losses, is acting illegally and workers are entitled to receive wages for the
period of illegality. The Reserve Bank of India commissioned a study into the causes of
sickness in Indian industry and they reported cryptically, ‘Sickness in India is a
profitable business’. This chapter in the IDA, which has been identified as offering high
rigidity in the area of labour redundancy, has been targeted for change under globalisation
and liberalisation.
Protection of service conditions
A feature of the IDA is the stipulation that existing service conditions cannot be
unilaterally altered without giving a notice of 21 days to the workers and the union.
Similarly if an industrial dispute is pending before an authority under the IDA, then the
previous service conditions in respect of that dispute cannot be altered to the disadvantage
of the workers without prior permission of the authority concerned. This has been
identified as a form of rigidity that hampers competition in the era of the World Trade
Organization.
Removal from service
A permanent worker can be removed from service only for proven misconduct or for
habitual absence – due to ill health, alcoholism and the like, or on attaining retirementage.
In other words the doctrine of ‘hire and fire’ is not approved within the existing legal
framework. In cases of misconduct the worker is entitled to the protection of Standing
Orders to be framed by a certifying officer of the labour department after hearing
management and labour, through the trade union. Employers must follow principles of
‘natural justice’, which again is an area that is governed by judge-made law. An order of
dismissal can be challenged in the labour court and if it is found to be flawed, the court has
the power to order reinstatement with continuity of service, back wages, and consequential
benefits. This again is identified as an area where greater flexibility is considered desirable
for being competitive.
Almost all pro-worker developments that accrued since independence are now
identified as areas of rigidity and in the name of flexibility there is pressure on the
government of India to repeal or amend all such laws. Interestingly, if such a proposal is
fully implemented, labour law, especially for the organized sector, will go back to the
colonial framework where state intervention was meant primarily to discipline labour, not
to give it protection.
Globalisation-The most distinctly visible change from globalisation is the increased
tendency for offloading or subcontracting. Generally this is done through the use of
cheaper forms of contract labour, where there is no unionization, no welfare benefits, and
quite often not even statutorily fixed minimum wages. Occasionally the tendency to bring
contract labour to the mother plant itself is seen. This is very often preceded by
downsizing, and since there is statutory regulation of job losses, the system of voluntary
retirement with the ‘golden handshake’ is widely prevalent, both in public and private
sectors.
Regulation of contract labour
The Contract Labour (Prohibition and Regulation) Act 1970 provides a mechanism for
registration of contractors (if more than twenty workers are engaged) and for the
appointment of a Tripartite Advisory Board that investigates particular forms of contract
labour, which if found to be engaged in areas requiring perennial work connected with the
production process, then the Board could recommend its abolition. A tricky legal question
has arisen as to whether the contract workers should be automatically absorbed or not after
the contract labour system is abolished. Recently a Constitutional Bench of the Supreme
Court held that there need not be such automatic absorption – in effect this ‘abolishes’ the
contract Labourer and has given rise to a serious anomaly.
Phase between organized and unorganized
We are already witnessing a reduction in the organized labour force and an increase in the
ranks of the unorganized. The above law is a kind of inter-phase in the process of
regulating the transition from regular employment to irregular employment. If contract
labour is seen as introducing a form of flexibility, a strict enforcement of this Act could
have had a salutary effect on the transition process. Instead the enforceability of the Act is
now diluted and consequently even the minimum protection envisaged under this law to
contract Labourer is in jeopardy. Dominant thinking in relation to globalisation is having
its effect on the judicial process also, ignoring Directive Principles of State Policy
contained in the Constitution of India.
Employment injury, health, and maternity benefit
The Workman’s Compensation Act 1923 is one of the earliest pieces of labour legislation.
It covers all cases of ‘accident arises out of and in the course of employment’ and the rate
of compensation to be paid in a lump sum, is determined by a schedule proportionate to the
extent of injury and the loss of earning capacity. The younger the worker and the higher the
wage, the greater is the compensation subject to a limit. The injured person, or in case of
death the dependent, can claim the compensation. This law applies to the unorganized
sectors and to those in the organized sectors who are not covered by the Employees State
Insurance Scheme, which is conceptually considered to be superior to the Workman’s
Compensation Act. The Employees State Insurance Act provides a scheme under which the
employer and the employee must contribute a certain percentage of the monthly wage to
the Insurance Corporation that runs dispensaries and hospitals in working class localities. It
facilitates both outpatient and in-patient care and freely dispenses medicines and covers
hospitalization needs and costs. Leave certificates for health reasons are forwarded to the
employer who is obliged to honour them. Employment injury, including occupational
disease is compensated according to a schedule of rates proportionate to the extent of
injury and loss of earning capacity. Payment, unlike in the Workmen’s Compensation Act,
is monthly. Despite the existence of tripartite bodies to supervise the running of the
scheme, the entire project has fallen into disrepute due to corruption and inefficiency.
Workers in need of genuine medical attention rarely approach this facility though they use
it quite liberally to obtain medical leave. There are interesting cases where workers have
gone to court seeking exemption from the scheme in order to avail of better facilities
available through collective bargaining. The Maternity Benefit Act is applicable to notified
establishments. Its coverage can therefore extend to the unorganized sector also, though in
practice it is rare. A woman employee is entitled to 90 days of paid leave on delivery or on
miscarriage. Similar benefits, including hospitalization facilities are available under the
law described in the paragraph above.
Retirement benefit
There are two types of retirement benefit generally available to workers. One is under the
Payment of Gratuity Act and the other is under the Provident Fund Act. In the first case a
worker who has put in not less than five years of work is entitled to a lump sum payment
equal to 15 days’ wages for every completed year of service. Every month the employer is
expected to contribute the required money into a separate fund to enable this payment on
retirement or termination of employment. In the latter scheme both the employee and the
employer make an equal contribution into a national fund. The current rate of contribution
is 12 percent of the wage including a small percentage towards family pension. This
contribution also attracts an interest, currently 9.5 percent per annum, and the accumulated
amount is paid on retirement to the employee along with the interest that has accrued.
Unfortunately the employee is allowed to draw many types of loan from the fund such as
for house construction, marriage of children, and education etc. As a result very little is
available at the time of retirement. This is also a benefit, which is steadily being extended
to sections of the unorganized sector, especially where the employer is clearly identifiable.
Women labour and the law
Women constitute a significant part of the workforce in India but they lag behind men in
terms of work participation and quality of employment. According to Government sources,
out of 407 million total workforce, 90 million are women workers, largely employed
(about 87 percent) in the agricultural sector as labourers and cultivators. In urban areas, the
employment of women in the organized sector in March 2000 constituted 17.6 percent of
the total organized sector. Apart from the Maternity Benefit Act, almost all the major
central labour laws are applicable to women workers. The Equal Remuneration Act was
passed in 1976, providing for the payment of equal remuneration to men and women
workers for same or similar nature of work. Under this law, no discrimination is
permissible in recruitment and service conditions except where employment of women is
 prohibited or restricted by the law. The situation regarding enforcement of the provisions
of this law is regularly monitored by the Central Ministry of Labour and the Central
Advisory Committee. In respect of an occupational hazard concerning the safety of women
at workplaces, in 1997 the Supreme Court of India announced that sexual harassment of
working women amounts to violation of rights of gender equality. As a logical
consequence it also amounts to violation of the right to practice any profession,
occupation, and trade. The judgment also laid down the definition of sexual harassment,
the preventive steps, the complaint mechanism, and the need for creating awareness of the
rights of women workers. Implementation of these guidelines has already begun by
employers by amending the rules under the Industrial Employment Standing Orders Act
1946

Implementation of labour laws

The Ministry of Labour has the responsibility to protect and safeguard the interests of
workers in general and those constituting the deprived and the marginal classes of society in
particular with regard to the creation of a healthy work environment for higher production and
productivity. The Ministry seeks to achieve this objective through enacting and implementing
labour laws regulating the terms and conditions of service and employment of workers. In
1966, the Ministry appointed the First National Labour Commission (NLC) to review the
changes in the conditions of labour since independence and also to review and assess the
working of the existing legal provisions. The NLC submitted its report in 1969. The important
recommendations of NLC have been implemented through amendments of various labour
laws. In the areas of wage policy, minimum wages, employment service, vocational training,
and worker’s education, the recommendations made by the NLC have been largely taken into
account in modifying policies, processes, and programmes of the government. In order to
ensure consistency between labour laws and changes in economic policy, and to provide
greater welfare for the working class, the Second NLC was constituted in 1999.All labour
laws provide for an inspectorate to supervise implementation and also have penalties ranging
from imprisonment to fines. Cases of non-implementation need to be specifically identified
and complaints filed before magistrates after obtaining permission to file the complaint from
one authority or the other. Very few cases are filed, very rarely is any violator found guilty,
and almost never will an employer be sent to prison. Consequently these powers are used by
corrupt officials only for collecting money from employers.
This does not however mean that no labour laws are implemented. On the contrary
experience has proved that the implementation of such laws is directly proportional to the
extent of unionisation. This generalization is particularly true of the informal sector.
The unorganized sector
Many of the laws mentioned above apply to the unorganized sector also. In some cases a
separate notification may be necessary to extend the application of a particular law to a
new sector. It is useful to notice that some pieces of legislation are more general in
character and apply across the board to all sectors. The Trade Union Act 1926, The
Minimum Wages Act 1948, The Contract Labour (Regulation and Abolition) Act 1970, The
Workman’s Compensation Act 1923, and The Payment of Wages Act 1936 are examples of
this type. In certain cases, even the IDA 1947 would be included. In addition to the above
there are special sectoral laws applicable to particular sectors of the unorganized. Under
this category are laws like the Building and Construction Workers Act 1996, the Bonded
Labour System (Abolition) Act 1976, The Interstate Migrant Workers Act 1979, The Dock
Workers Act 1986, The Plantation Labour Act 1951, The Transport Workers Act, The Beedi
and Cigar Workers Act 1966, The Child Labour (Prohibition and Regulation) Act 1986,
and The Mine Act 1952.Broadly speaking these sectoral laws either abolish or prohibit an
abominable practice like bonded labour or they seek to regulate exploitative conditions by
regulating working hours and conditions of service.
A recent trend has been to seek the creation of a welfare fund through the collection of a
levy from which medical benefits or pension provisions are made. Workers and
management may contribute and attempt to set up tripartite boards for implementation of
welfare benefits. In some states like Kerala a large number of such boards have already
been set up to take care of welfare in different sectors of employment. Another
contemporary effort is to provide an umbrella statute to take care of employment
conditions and social welfare benefits for all unorganized sections. Common central
legislation for all agricultural workers is also on the anvil. Many powers are vested in
quasi-judicial authorities, labour courts, and magistrates’ courts. The power of review is in
the High Courts and finally in the Supreme Court.

The general experience, with the occasional exception, is unbearable delay. Even where
statutes prescribe reasonable time limits, they are not adhered to. Frustration with labour-
related justice is heightened by these unlimited delays. A case of dismissal takes almost ten
years for the labour court to decide and if the parties decide to seek judicial review in the
higher courts there can be unlimited delay.

For the unorganized sector a renewed attempt to focus on the core labour standard
identified by the ILO in its Declaration on Fundamental Rights at Work would still be
worthwhile, especially if we take steps to ensure the implementation of the first of those
core labour standards namely the freedom of association and the right to collective
bargaining. It is only through the organization of potential beneficiaries that we can hope
for some benefits at least to percolate down into the hands of the needy.

JOURNAL REFERENCE

“Traditional and Non-traditional Collective Bargaining: Strategies to Improve the

 Patient Care Environment.”
ABSTRACT
Acquiring organizational autonomy and control over nursing practice,
through a combination of traditional and non-traditional collective bargaining (CB)
strategies, is emerging as an important solution to the nursing shortage crisis. For the
past 60 years, nurses have improved their economic and general welfare by organizing
through traditional CB, particularly during periods of nursing shortages. During the
past decade, however, the downsizing of nursing staffs, systems redesign, and
oppressive management practices have created such poor nursing practice
environments that improvement in wages no longer is viewed as the primary purpose
of CB. Much more essential to nurses is assuring they have a safe practice environment
free of mandatory overtime and other work issues, and a voice in the resource
allocation decisions that affect their ability to achieve quality health outcomes for
patients. The thesis presented in this article is that traditional and non-traditional CB
strategies empower nurses to find such a voice and gain control over nursing practice.
This article describes the current shortage; discusses how CB can be used to help
nurses find a voice to effect change; reviews the American Nurses Association’s
(ANA's) history of collective action activities; explains differences between traditional
and non-traditional CB strategies; and presents a case study in which both strategies
were used to improve the present patient care environment

BIBLIOGRAPHY

Marquis B L, Huston CJ. Leadership roles and management functions in nursing .4 th edition.
Lippincott Williams and Wilkins .Pge 413-435.

Basavanthappa BT. Nursing administration .Jaypee brothers Publications, 2000.Pge 500,312-

315.

E-SOURCE

 www.ncbi.nlm.nih.gov/pubmed/10947406

 www.unionhealth.org/ -

 www.communitycatalyst.org/.../nonprofit_health_care_organization_..

 http://www.legalindia.in/labour-law-in-india