Common or general law did not recognize collective bargaining or any body that is entitled to represent the body of workmen in negotiations relating to employment, non-employment, the terms of employment or with the conditions of labour, of any person. That law had in view only an individualistic society recognizing relations between individuals as master and servant. Collective bargaining became a norm only when large scale industries developed and it became necessary to regulate the capital – labour relations with a view to better the working conditions of labour and sustain industrial peace in the country. When individual bargaining gave way to collective bargaining, who would speak for the collective body of workmen?
Legislature stepped in and enacted the Trade Unions Act, 1926, which provides for registration of trade unions and defines the law relating to registered trade unions. u/s 13 of that Act, every registered trade union is a body corporate with power to acquire and hold movable and immovable property and to contract; and can sue and be sued. Though this Act confers corporate personality on registered trade unions, the Act does not make it obligatory on the part of the employers to recognise even registered trade unions despite they are truly representative. (With a view to make it obligatory on the part of the employers to recognise truly representative registered trade unions the legislature has passed the Indian Trade Unions (Amendment) Act, 1947, Act XLV of 1947, but it does not appear to have been brought into force till now. This Act seeks to introduce into the parent Act, Chapter III-A provisions wherein, inter alia, enumerate the conditions required for such obligatory recognition, and provide for the machinery to obtain recognition and to resolve disputes relating to recognition). Therefore, obligatory recognition of trade union as the bargaining agent of its members is unknown to law-both common law and statute law.
As at present, the only provision in that behalf is that contained in Section 36 of the Industrial Disputes Act, 1947, where-under in any preceding under’ that Act a workman who is a party to an industrial dispute is entitled to be represented by “(a) any member of the executive or other office bearer of a registered trade union of which he is a member, or (b) any member of the executive or other office bearer of a federation of trade unions to which the trade union referred to in Clause (a) is affiliated”; and “(c) where the worker is not a member of any trade union, by any member of the executive or other office bearer of any trade union connected with…the industry in which the worker is employed and authorised in such manner as may be prescribed”. The result is: recognition by an employer of a trade union as a representative of its members and as their bargaining agent is a matter of volition on the part of the employer.
