Section 38: Order for recognition of trade union of workers

38. Order for recognition of trade union of workers (1) The Tribunal shall, on an application made under section 36(5), determine whether the trade union or group of trade 802 Acts 2019 unions, as the case may be, has the support of at least 20 per cent of the workers forming part of the bargaining unit, or where the application is for recognition as a sole bargaining agent, has the support of more than 50 per cent of the workers in the bargaining unit, or otherwise. (2) For the purpose of an application made under section 36(5), the Tribunal may require – (a) the applicant trade union or group of trade unions to produce evidence that it fulfills the criteria for recognition as specified in section 37; (b) the employer to submit to the Tribunal and, where appropriate, to the applicant trade union, within 10 days of the receipt of the application – (i) a list of the category or grade of workers in the proposed bargaining unit; (ii) a list of the workplaces, where applicable, where the workers of the bargaining unit are posted; and (iii) the number of workers employed in each category at each workplace. (3) At the time of an application for recognition, any document signed by a worker of a prospective bargaining unit and submitted by an employer to show that the worker is not interested in joining the trade union or has ceased to be a member of the trade union, except where the worker has withdrawn from the trade union in accordance with its rules, shall not be admissible before the Tribunal. (4) Where the Tribunal is satisfied that the employer has failed to comply with subsection (2)(b), the Tribunal shall order the employer to remedy the failure within such period as may be specified in the order. Acts 2019 803 (5) Where an employer fails to comply with a remedial order made under subsection (4), the Tribunal may make an order for the employer to grant recognition to the trade union provided that the trade union satisfies the criteria for recognition specified in section 37. (6) Where a trade union and an employer agree on a bargaining unit and the trade union produces evidence that it has the support of not less than 20 per cent of the workers in the bargaining unit, the Tribunal shall make an order directing the employer to grant recognition to the trade union for the purpose of conducting collective bargaining in the bargaining unit as a bargaining agent or joint negotiating panel, as appropriate. (7) On an application made under section 36(5), the Tribunal may organise and supervise a secret ballot in a bargaining unit in an enterprise, an industry or a cluster, in order to determine which trade union the workers in the bargaining unit wish to be their bargaining agent, where – (a) a trade union or group of trade unions already has recognition in respect of that bargaining unit and the Tribunal is satisfied that the applicant trade union or group of trade unions has produced evidence that it is eligible for recognition in accordance with section 37; (b) the Tribunal has evidence from a majority of workers within the bargaining unit that they do not want the trade union or group of trade unions to conduct collective bargaining on their behalf; (c) the Tribunal considers that the membership evidence produced by the trade union or group of trade unions may not be reliable; or (d) the Tribunal is satisfied that a secret ballot should be held in the interest of good industrial relations. 804 Acts 2019 (8) Where the Tribunal decides to h tion 37; (b) the Tribunal has evidence from a majority of workers within the bargaining unit that they do not want the trade union or group of trade unions to conduct collective bargaining on their behalf; (c) the Tribunal considers that the membership evidence produced by the trade union or group of trade unions may not be reliable; or (d) the Tribunal is satisfied that a secret ballot should be held in the interest of good industrial relations. 804 Acts 2019 (8) Where the Tribunal decides to hold a secret ballot pursuant to subsection (7), the secret ballot shall be conducted at the workplace or workplaces, as appropriate, or such other place as the Tribunal may determine. (9) Where a secret ballot takes place under this section, a worker shall vote for one trade union only. (10) Where the Tribunal gives notice to an employer to organise a secret ballot, the employer shall – (a) grant such facilities as may be necessary to the Tribunal to conduct and supervise the secret ballot; (b) grant such facilities as may be necessary to the workers forming part of the bargaining unit to participate in the secret ballot; (c) give the trade union, as far as reasonably practicable, access to the workplace to meet and inform the workers forming part of the bargaining unit of the object of the secret ballot; (d) inform the Tribunal, as soon as reasonably practicable, of the name of any worker who has ceased to form part of the bargaining unit; (e) refrain from inducing any worker forming part of the bargaining unit not to attend any meeting of the trade union or group of trade unions; (f) refrain from taking or threatening to take any action against a worker on the ground that the worker attended or took part in activities of the trade union or group of trade unions seeking recognition. (11) Where the Tribunal is satisfied that an employer has failed, without any reasonable excuse, to comply with any of the requirements of subsection (10), and as a result of which the secret ballot is not held, the Tribunal may order the employer to take remedial action within such period as may be specified in the order. Acts 2019 805 (12) Where the Tribunal is satisfied that the employer has failed to comply with an order made under subsection (11), and as a result of which the secret ballot is not held, the Tribunal may, subject to section 37, order that the trade union be granted recognition to conduct collective bargaining on behalf of the bargaining unit. (13) Subject to section 37, where an application is made under section 36(5) or 37(4), the Tribunal shall – (a) make an order granting recognition to the trade union as a bargaining agent, joint negotiating panel or sole bargaining agent, as the case may be; (b) where the application is for recognition as a sole bargaining agent, make an order granting recognition to the trade union as a bargaining agent where the Tribunal finds that the applicant trade union does not have the support of more than 50 per cent of the workers in the bargaining unit but has the support of not less than 20 per cent of the workers in the bargaining unit; or (c) set aside the application where the trade union fails to produce evidence that it fulfills the eligibility criteria for recogntion. (14) (a) The Tribunal shall determine an application made under section 36(5) or 37(4) not later than 30 days after the date of receipt of the application. (b) The Tribunal may, in exceptional circumstances, extend the delay specified in paragr rkers in the bargaining unit but has the support of not less than 20 per cent of the workers in the bargaining unit; or (c) set aside the application where the trade union fails to produce evidence that it fulfills the eligibility criteria for recogntion. (14) (a) The Tribunal shall determine an application made under section 36(5) or 37(4) not later than 30 days after the date of receipt of the application. (b) The Tribunal may, in exceptional circumstances, extend the delay specified in paragraph (a) for another period of 30 days. (15) (a) Where the Tribunal makes an order granting recognition to a trade union, the order shall – (i) specify the name of the employer and the trade union to which it relates; (ii) specify the composition of the bargaining unit; 806 Acts 2019 (iii) state whether the trade union shall be recognised as a bargaining agent, sole bargaining agent or joint negotiating panel, as the case may be; and (iv) require the trade union or the joint negotiating panel and the employer concerned to meet at specified intervals or at such time and on such occasions as the circumstances may reasonably require, for the purpose of collective bargaining. (b) The Tribunal shall submit a copy of an order made under paragraph (a) to the supervising officer for record purposes. (16) Where a trade union is recognised as a sole bargaining agent, or a group of trade unions is recognised as a joint negotiating panel, in respect of a bargaining unit, the trade union or group of trade unions, as the case may be, shall supersede any other trade union recognised as the bargaining agent of the workers in the bargaining unit. (17) Where recognition is granted under this section, no application for recognition or revocation or variation of recognition in the same bargaining unit shall be entertained by the Tribunal before the expiry of a period of 12 months from the date of the order granting the recognition. (18) The Tribunal may, where the recognition of a new trade union gives rise to the revocation of the recognition of another trade union, enquire into the independence of the trade unions in relation to the employer. (19) (a) Where an employer fails to comply with an order for recognition made by the Tribunal under this section – (i) the trade union or group of trade unions may apply to the Tribunal for compensation and the Tribunal shall make an order for Acts 2019 807 the payment of a compensation which shall not be less than 500 rupees per day so long as the order is not complied with; (ii) the trade union may apply, on behalf of the workers forming part of the bargaining unit, to the Tribunal for an award setting out the conditions of employment of the workers as proposed by the union. (b) Where the conditions of employment are specified in an award of the Tribunal made under paragraph (a), the conditions shall become the implied terms of the contract of employment of the workers. (20) In circumstances other than those provided in this section, where an application is made to the Tribunal in a matter relating to the recognition of a trade union or group of trade unions, the Tribunal may organise and supervise a secret ballot in a bargaining unit in order to determine, subject to section 37, which trade union the workers in the bargaining unit wish to be their bargaining agent. where an application is made to the Tribunal in a matter relating to the recognition of a trade union or group of trade unions, the Tribunal may organise and supervise a secret ballot in a bargaining unit in order to determine, subject to section 37, which trade union the workers in the bargaining unit wish to be their bargaining agent.