1. Collective Bargaining

2. Concept and Meaning

3. Collective bargaining concept
The British academic Beatrice Webb coined the term "collective bargaining" in the late 19th century.

4. Collective bargaining concept
Collective bargaining is the process whereby workers organize collectively and bargain with employers regarding the workplace.
Collective bargaining is a mechanism for resolving interest disputes arising from claims made by workers or trade union or trade unions representing workers.
An interest dispute arises when a claim for a new or improved right, benefit or entitlement or a change to an existing obligation which is in dispute because the claim has not been agreed to.
The purpose of collective bargaining is to enable a collective agreement to be made resolving the interest dispute or disputes.

5. Collective bargaining in ilo convention
The ILO Right to Organize and Collective Bargaining Convention (No. 98), 1949 describes CB
Voluntary negotiation between employers or employers' 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

6. essential features of collective bargaining
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.

7. Conditions for successful CB
Pluralism
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 or more of them on the one hand and the government on the other.
It therefore recognises these groups as the checks and balances which guarantee democracy.
It is natural that in labour relations in a pluralist society, collective bargaining is recognised as a fundamental tool through which stability is maintained, s

8. Conditions for successful CB
Freedom of Association
The freedom of association is the important because without the right of association the interest groups in a society would be unable to function effectively.
Through freedom of association 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

9. Conditions for successful CB
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 recognised for collective bargaining purposes.
The accepted principle is to recognise the most representative union, but what criteria is used to decide it and by whom may differ from system to system.

10. Conditions for successful CB
Trade Union recognition
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 representativeness may be decided by a referendum in the workplace or by an outside certifying authority (such as a labour department or an independent statutory body).

11. Conditions for successful CB
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 labour law system provides for sanctions for breaches of agreements, the labour 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.

12. Conditions for successful CB
Good Faith
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.

13. Conditions for successful CB
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

14. Advantages of CB
First, collective bargaining has the advantage of settlement through dialogue and consensus rather than through conflict and confrontation.
Second, collective bargaining agreements often institutionalize settlement through dialogue.
Third, collective bargaining is a form of participation. 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.

15. Advantages of CB
Fourth, 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.
Sixth, collective bargaining has valuable by- products relevant to the relationship between the two parties like trust etc
Seventh, in societies where there is a multiplicity of unions and shifting union loyalties, collective bargaining and consequent agreements tend to stabilize union membership.

16. Advantages of CB
Eighth - 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.

17. Good Faith Bargaining

18. Duty to bargain in good faith
When engaged in a collective bargaining, the parties involved in the interest dispute have a duty to bargain in good faith.
The duty to bargain in good faith is concerned with a fair, appropriate and effective bargaining process. The duty requires that the parties to the dispute use their best endeavours to reach an agreement.
Without limiting the meaning of the duty to bargain in good faith, this duty requires the parties to:
Meet at reasonable times and places for the purpose of conducting face to face bargaining;
State their position on matters at issue and explain that position;

19. Duty to bargain in good faith
Disclose in a timely way relevant and necessary information for bargaining including information that is reasonably necessary to support or substantiate claims or responses to claims made during bargaining; 
Act honestly and openly, which includes not capriciously adding or withdrawing items for bargaining and not doing anything that does or is likely to mislead or deceive the other party ;

20. Duty to bargain in good faith
Give thorough and reasonable consideration to the other’s proposals and respond to those proposals;
Bargain genuinely and dedicate sufficient resources to ensure this occurs;
Adhere to agreed outcomes and commitments made by the parties;
Respect confidences and information or proposals provided on a without prejudice basis; and
Bargain directly with the persons represented by another party and not undermine or do anything likely to undermine the bargaining or the authority of the representatives conducting the bargaining;

21. Duty to bargain in good faith
In addition the employer should:
Provide reasonable opportunities for the worker’s representatives to meet and confer with workers and union delegates about the bargaining;
Provide for the release from work of worker’s representatives to participate in bargaining; and
Provide reasonable facilities and resources for worker’s representatives to carry out their role in bargaining, including the opportunity to consult and to communicate with workers. 

22. Theories

23. Theories
A number of theories – from the fields of industrial relations, economics, political science, history and sociology (as well as the writings of activists, workers and labor organizations) – have attempted to define and explain collective bargaining.

24. Economic
One theory suggests that means to maximize wage rate and other employment benefits.

25. Rationale for cb as a human right
The rationale for considering collective bargaining to be a human right
The right to bargain collectively with an employer enhances the human dignity, liberty and autonomy of workers by giving them the opportunity to influence the establishment of workplace rules and thereby gain some control over a major aspect of their lives, namely their work.
Collective bargaining is not simply an instrument for pursuing external ends…rather it is intrinsically valuable as an experience in self-government.
Collective bargaining permits workers to achieve a form of workplace democracy and to ensure the rule of law in the workplace. Workers gain a voice to influence the establishment of rules that control a major aspect of their lives.

26. CB as a human right
One theory suggests that collective bargaining is a human right and thus deserving of legal protection.
Article 23 of the Universal Declaration of Human Rights identifies the ability to organize trade unions as a fundamental human right.
Item 2(a) of the International Labor Organization's Declaration on Fundamental Principles and Rights at Work defines the "freedom of association and the effective recognition of the right to collective bargaining" as an essential right of workers.

27. Legal Framework of Collective Dispute and CB

28. Collective dispute (section 116)
When grievances are submitted by a union, or by a large number of workers, it turns into collective disputes, also known as interest disputes.
Any enterprise employing 10 or more than 10 workers shall have a Collective Bargaining Committee as follows:
a team of representatives appointed for negotiation on behalf of the elected authorized trade union of the enterprise
where an election for the authorised trade union could not be held or the term of the elected authorised trade union has expired, a team of representatives nominated through a mutual agreement of all the unions in the enterprise;
where an authorised trade union or a team of representatives could not be formed, a team of representatives supported with the signatures of more than 60% of the workers working in the enterprise.

29. Collective dispute (section 116)
Collective Bargaining Committee, on issues relating to the interest of workers, may submit collective claims or demands in writing to the employer.
On the basis of the number of workers, a Collective Bargaining Committee may have a maximum of three to eleven members as specified.

30. Negotiation (section 117)
On submission of collective claims or demands, the concerned employer shall give a notice in writing to the Collective Bargaining Committee within seven days from the date of submission of such claims or demands stating the place and time for the consultation.
Members of the Collective Bargaining Committee shall be present for consultation at the place and time stated.

31. Negotiation (section 117)
The dispute relating to the collective claims or demands shall end if any agreement, between the concerned two parties, is achieved.
The agreement signed shall be binding for both the concerned parties.

32. Mediation (section 118)
In the following situations, any concerned party may give an application to the Office for the settlement of collective bargaining claims or demands through mediation:
where an employer fails to give any notice to the Collective Bargaining Committee for consultation within the period prescribed ; or
where an agreement could not be reached in the consultation held within 21 days from the date of submission of claims or demands.
However, there shall not be a constraint to extend the time through consent of the parties in case there is continuity in the negotiation.

33. Mediation (section 118)
In the following situations, any concerned party may give an application to the Office for the settlement of collective bargaining claims or demands through mediation:
where an employer fails to give any notice to the Collective Bargaining Committee for consultation within the period prescribed ; or
where an agreement could not be reached in the consultation held within 21 days from the date of submission of claims or demands.
However, there shall not be a constraint to extend the time through consent of the parties in case there is continuity in the negotiation.

34. Mediation (section 118)
The proceeding of mediation shall be completed within 30 days from the date of application for mediation in the Office. However, the time through consent of the parties may be extended in case there is continuity in the negotiation.
The dispute relating to the collective claims or demands shall end if any agreement, between the concerned two parties, is achieved in the negotiation held in presence of the Office.
The agreement signed shall be binding for both the concerned parties.

35. Arbitration (section 119)
Where the dispute is not resolved through mediation, such dispute relating to the collective claims or demands shall be settled through arbitration as follows:
if the Collective Bargaining Committee and the employer agree to settle the dispute relating to collective claims or demands through arbitration;
if a collective dispute arises in an enterprise providing essential service;
if a collective dispute arises in an enterprise located inside the special economic zone; or
in a situation where strike is prohibited due to imposition of emergency under the Constitution.

36. What is essential service?
‘Essential service’ means any service, if interrupted, may have an adverse effect on the life, health and safety of the people of the entire country or the people living in any part of the country.

37. Arbitration (section 119)
The Ministry may form an arbitration panel ensuring representations from workers, employers and the Government of Nepal.
Any party wanting to settle the dispute through arbitration shall submit claims in writing to the arbitrator/s as prescribed.
The arbitrator/s shall send a copy of such claims to the other party and provide an opportunity to such party to file a written statement in response to that.
Hearing shall be conducted by the arbitrator/s.
The arbitrator/s shall deliver the decision within 30 days from the date of ending of the hearing.

38. Arbitration (section 119)
If any collective dispute is settled by arbitration, the decision so given by arbitrators shall be binding to the concerned parties.

39. Validity of collective bargaining agreement or decision of arbitrators
Collective agreement or decision of arbitrators need to be registered in the office for the purpose of record and enforcement.
The validity period of collective agreement shall be two years
from the date of effectiveness if specified in the agreement or
it shall be from the date of signing of the agreement if the date of effectiveness is not mentioned in the agreement
or from the date of decision of arbitrators if such decision has been made and it shall have the validity of law.
Unless amended or annulled by another collective agreement or decision of the arbitrators, the provisions in the existing collective agreement or the decision of the arbitrators shall continue to be effective.

40. Right to strike
A Collective Bargaining Committee may, where any of following situations prevails, organize strike for the settlement of collective dispute:
if no condition exists for compulsory arbitration;
if an arbitrator/s does not perform the functions of arbitration;
if an arbitration panel could not be formed within 21 days from the date of application in the Ministry or decision is given against the need for such arbitration;
if a decision is not given by arbitrators within the prescribed time;
if the employer refuses to enforce the decision of arbitrators or challenges such decision on legal grounds;
except where compulsory arbitration is to be adopted, if any party dissents with the decision given by the arbitrator/s in any dispute ordered by the Ministry for its settlement through arbitration.

41. Right to strike
In order to organize a strike, a written notice along with claims or demands and the date from which the strike is to commence shall be submitted to the employer 30 days before organizing such strike and the Office of the Local Administration as well as concerned Labour Office shall also be informed accordingly.
However, workers deputed as watchmen or guards for the security in any enterprise shall not be permitted to get involved in strike during the time they are assigned in the work and engage in picketing and assemble.

42. Lockout
A lockout is a work stoppage in which an employer prevents workers from working in order to put pressure on them to come to a settlement of dispute through negotiation.
This is different from a strike in which workers refuse to work to put pressure on the employer to fulfill their collective demands.

43. Right to lock out
Where a strike is organized without giving a notice pursuant to this Act or continues the strike or collective dispute could not be settled through the procedure prescribed in the Act, the management may, by giving justifiable grounds, lockout the enterprise after acquiring an approval from the Department.
Before carrying out lockout, the management shall issue a notice of at least seven days along with a date for the lockout to the workers in case they do not end the strike.

44. Right to lock out
However, if there is a possibility of causing loss to the enterprise because of gherao, physical unrest or any such type of act by the workers during the period of strike, the management may lockout the enterprise. The notice along with justifiable reasons regarding such lockout shall be given to the Office or Department or Office of the Local Administration within 3 days.

45. Right to lock out
The Department may at any time declare the lock-out of an enterprise illegal in case it appears unjustifiable or it is likely to disturb the peace and security of the country or it is likely to cause adverse affect on the economy of the country.
However, lockout is prohibited in enterprises providing essential services.

46. Provisions relating to picketing and mass assembly
With the objective of exerting pressure to fulfil the claims or demands when the strike or lockout is continuing, the workers may picket or assemble at the gate of the workplace or enterprise peacefully.
In situations other than strike or lockout, workers may picket or assemble before or after the working hours or during the rest time without disturbing the work in the workplace or enterprise.
During picketing or assembling, the workers shall not be permitted to do any act of prohibiting others from entering or leaving the workplace or enterprise or causing damage to the workplace.

47. Remuneration for strike and lockout period
Workers shall not be entitled to receive remuneration for the period of strike if such strike is organized in contravention to the prevailing laws.
Workers shall be entitled to receive full remuneration for the period of lockout if such lockout is organized in contravention to the prevailing laws by the employer.
Except otherwise agreed in relation to the payment of remuneration in the collective agreement, workers shall receive half remuneration for the period of strike or lockout organized in compliance with the procedure prescribed in this Act.
If any dispute in relation to the legality of strike or lockout arises, the Department, after conducting necessary inquiry, shall settle the dispute within 35 days.

48. Legal provisions relating to CB
Section 11 of Trade Union Act
In order to become the authorized Trade Union, a majority vote of the workers of the enterprise should be obtained in an election. The elected Trade Union receiving the majority vote is entitled to present collective claims/demands and initiate collective bargaining process with the management on behalf of the workers.

49. Prohibition on submission of collective demands
Submission of collective claims or demands on the following matters is prohibited:
which is contrary to the Constitution of Nepal;
which may adversely affect the interest of any other person because it is based on groundless allegation without any proof;
any matter which may affect the personal behaviour of any employer or worker;
matter which is not related to the enterprise;
where a collective agreement has been made and the period specified in the Act for such agreement has not expired yet;
relating to contribution rate and benefits specified for social security schemes;

50. Subjects for CB
Collective bargaining may cover a variety of subjects. They may include terms and conditions of employment, union rights, criteria for recognition of a union in a workplace, welfare facilities, dispute settlement procedures etc.
The aim of collective bargaining is to achieve Collective Bargaining Agreement.
Examples of what CBAs can encompass:
Wages and salaries
Bonuses
Hours of work
Types of leave and leave procedures
Redundancy and lay-off principles and procedures
Safety and health provisions
Misconduct and disciplinary procedures

51. Subjects for CB Types of employment Retirement benefits and gratuity
Welfare facilities
Retirement
Termination of employment
Union issues
Grievance and dispute settlement procedures
Effective date and duration of agreement

52. Sectoral bargaining (section 123)
Trade union associations which are active in the tea estate, carpet sector, construction business, labour provider, transportation sector or any other group of manufacturers producing similar nature of products or service providers providing similar nature of services or businesses as specified may, by forming a Collective Bargaining Committee as prescribed, submit collective bargaining claims or demands to the employers' association of concerned group of industries.
In relation to enterprises where such collective agreement is applicable, the act of submitting collective claims or demands and entering into agreement is prohibited.

53. Employment contract will not be violated
The act of organizing strike or lockout or picketing or filing a complaint in accordance with the law by any worker shall not be considered as violation of his /her employment contract and during the period, the employment contract shall continue to be effective

54. Prohibition on filing of case against loss
Where any financial loss is caused to any employer or worker because of strike or picketing or lockout organised lawfully pursuant to this Act, filing of a case in any court against the workers, Collective Bargaining Committee or trade union or employer involved in such strike or picketing or lockout in relation to the loss so caused is prohibited.
Notwithstanding anything stated above, a legal proceeding under the prevailing law against any person or group involved in the destruction of the workplace, in the act of arson or destruction of property in any other way or in the act of causing physical damage may be initiated and an amount equivalent to the loss so caused may be recovered.

55. Collective Bargaining Agreement (CBA)

56. Collective Bargaining Agreement (CBA)
Written
Legally enforceable contract
For specified period
Between management and employees through representatives

57. Collective Bargaining Agreement (CBA)
Sets down and defines conditions of employment
Wages
Working hours
Working conditions/benefits
Overtime
Procedure for dispute resolution

58. Collective Bargaining Agreement (CBA)
Improves or modifies an individual employment contract rather than replaces
It is meant to settle disputes rather than raise them

59. Collective Bargaining Agreement (CBA)
Must contain a clause for interpretation of the agreement and settlement of differences
Both the union and management agree to execute what is signed

60. Legal validity of CBA
For the concerned parties (employees and management), CBA has the validity as good as that of law and are bound by its content.

61. Validity period Validity period
2 years from the date, if specified) from which the agreement will be effective
2 years from the date of signing of the agreement
2 years from the date of decision by arbitrators

62. Mechanism for enforcement
Registration of CBA or decision of arbitrators at the labour office
Concerned party may file a compliant at the Labour Office in case CBA is not enforced
Labour Office will accordingly enforce the CBA by following the procedure mentioned in section 25 of the Labour Act

63. Cannot achieve what laws prohibit
Limitations
Cannot achieve what laws prohibit
Cannot waive duties imposed by the laws
Purely governed by existing Labour Act