SUMMARY

The suit was instituted by Vipul Shah, against trade unions such as the All India Film Employees
Confederation, Federation of Western India Cine Employees (FWICE) and its affiliated associations,
as well as Producers’ Associations, comprising the Indian Motion Picture Producers Association, the
Film and Television Producers Guild of India, and the Indian Film and Television Producers Council.

THE FINDINGS OF THE COMPETITION COMMISSION OF INDIA IN

In respect to the contravention of the provisions of Sections 3(3)(a), 3(3)(b) and 3(3)(c) of the
Competition Act, the CCI’s findings have been set out below:

 The Trade Unions Act did not preclude the application of the Competition act subsequent to the
SC ruling in CCI V. Sail,1which deemed the CCI to be an expert body.
 Further, unlike the Monopolies and Restrictive Trade Practices Act, 1969, the Competition Act did
not expressly exempt trade unions from its provisions.
 Moreover, the Supreme Court’s had observed in Competition Commission of India v Co-
ordination Committee of Artists and Technicians of W.B. Film and Television and Ors. 2, that a body,
while backing the cause of enterprises, could not be considered to be exempt from scrutiny under
Section 3 by merely giving it a cloak of trade unionism. Further, they stated that Section 3 applies not
only to trade unions but also to association of enterprises and association of persons. The CCI noted
that since each of the artists provided services in return for remuneration, they were engaged in
economic activity and were enterprises, consequently, making the trade union an association of
enterprises.

 The CCI observed that Clauses 6 and 18 of the MoU were in the nature of limiting the supply and
distribution of films on account of (i) the mandatory requirement under the MoU to obtain a no
objection certification from the trade associations availing the services of the non-members; and (ii)
restricting the producers to provide/avail only those services that were specifically permitted under
the MoU. Therefore, these practices were held to be in violation of Section 3(3)(b) of the
Competition Act.

 Clause 8 of the MoU, which related to fixation of wages, payment for extra shifts, etc, could have
the effect of fixation of prices when read with Clause 6 of the MoU. However, given that wages and

1
(2010) 10 SCC 744.
2
AIR 2017 SC 1449.
 increment were also conditions of labour, they could fall within the realm of legitimate trade union
activity. Therefore, this was not held to be in contravention of Section 3(3) of the Competition Act.

 The CCI observed that the Restrictive Resolutions, inter alia, had the effect of (i) forcing the
producers to hire workers in the aforementioned ratio regardless of workers having the required
skills; (ii) limiting and controlling the provision of services; and (iii) allotting services on the basis of
geographical area. Accordingly, the Restrictive Resolutions were held to be in contravention of
Sections 3(3)(b) and 3(3)(c) of the Competition Act.
 In terms of penalty, the CCI, noted that issuance of cease and desist orders would be sufficient to
meet the ends of justice.

ANALYSIS

The holding of the CCI enables producers to hire their own team, including technicians, dancers and
junior artists etc. and the rules and regulations that the producers were bound by, in terms of ratio of
workers etc. would also not be applicable anymore. There are several questions that need evaluation.
Firstly, the objectives of competition law need to be evaluated. Secondly, the tussle between the
freedom of association and the objectives of competition law needs to be elaborated upon to highlight
their importance. Thirdly, the implications of including trade unions within the ambit of the
Competition Act need to be explored. Lastly, the impact of this decision on the specific category of
stunt artists and body doubles will also be dealt with.

To being with, the competition law can be seen as a broad set of rules which are required to create an
efficient market economy and as such competition law cannot be considered in an isolated manner.
Two models for the objectives of competition law are typically proposed. The first regards
competition law as being solely concerned with economic efficiency. The second regards the
objective of the law to maximise the “public interest.” The public interest is usually defined as
including economic efficiency, consumer welfare, a balanced development of the economy and
perhaps maintaining employment, technical progress and exports. In practice, the distinction between
the two models is overstated with no economy actually following a rigid economic efficiency
objective.3

Considering the goals of coemption law, the tussle between collective bargaining and regulating trade
unions within the framework of the competition law is not new. However, while not entirely immune
3
WOLF SAUTER, COMPETITION LAW AND INDUSTRIAL POLICY IN THE EU (Clarendon Press ; Oxford University
Press) (1997).
to the rules of competition law, it is widely acknowledged that collective agreements concluded in
good faith, dealing with core labour subjects such as wages and working conditions are in principle
legal and therefore fall outside the scope of competition law.4 However, the freedom to form trade
unions falls within the right of association which belongs to the “first generation of human rights”
which includes civil and political individual rights and is based on the value of liberty. This right is
also protected under Article 19(1)(c). In the backdrop of the following standards and principles, the
specific inclusion of trade unions needs to evaluated.
The guilds that were found guilty of collision here can be characterised as ‘below the line guilds.’5
While above the line guilds deal with the activities of directors, producers etc., below the line guilds
are associations of individuals such as makeup artists, stunts men, junior actors etc. 6 Guilds are
essentially collective bargaining agreements which find place in a number of film industries across
the globe. They are predominant in the United States where such agreements stipulate the parties’
rights and obligations.7 Much like in India, the US model is also based upon extensive collective
bargaining between the film studios and production houses on one side and creatives, who are
represented by the guilds on the other. In the US too, the guilds play a major role in determining the
minimum compensation, regulating work hours and conditions etc. They also have residual clauses
in the United States which enable individuals to negotiate over and above the specified contract.8

With regards to the inclusion of trade unions within the ambit of the Competition Act, the CCI
observed that immunity is granted under the Trade Unions Act in relation to proceedings regarding
certain limited actions and under specified statutes. The Act does not state that it does not apply to a
trade union or other association of workers or employees formed for their own reasonable protection.
The immunity offered to trade unions under Section 18 of the act relates only to civil proceedings and
is therefore inapplicable to proceedings before the CCI, which is an expert body. They stated that
Section 3 applies not only to trade unions but also to association of enterprises and association of
persons. The CCI noted that since each of the artists provided services in return for remuneration,
they were engaged in economic activity and were enterprises, consequently, making the trade union
an association of enterprises. This goes against what more developed competition law jurisdictions

4
Shlomit Yanisky-Ravid, Collective Bargaining and Competition Law: A Comparative Study on the Media,
Arts, and Entertainment Sectors, SSRN ELECTRONIC JOURNAL (2012), http://www.ssrn.com/abstract=2132660
(last visited Oct 18, 2019).
5
Kleingartner Archie, Collective Bargaining: Hollywood Style, 9 New Labor Forum (2001).
6
Ibid.
7
Amit Datta, Collective bargaining agreements in the film industry: U.S. guild agreements for Germany, 2
Berkeley J. Ent. & Sports L. (2013).
8
Ibid.
have adopted. 9According to the jurisprudence in the EU, trade unions involved in collective
bargaining do not fall within the ambit of competition law. For instance, in Jean Claude Becu10 the
Court of Justice held that workers are, for the duration of their employment relationship, incorporated
into the undertakings that employ them and thus form part of an economic unit with them; as such
they do not constitute undertakings within the meaning of EU competition law. The court ruled this
way as it considered the social objectives that that trade unions are supposed to achieve would be
seriously undermined.

Similarly, in the case of Albany International BV v Stichting Bedrijfspensioenfonds Textile

industries,11 it was held that a trade union would not be an undertaking when engaged in collective
bargaining. The court held that the collective agreements are exempt from EU competition rules
where such an agreement is agreed between the management and labour and is has its objective as
improving the conditions of work and employment.12

It must also be noted that the trade unions were instituted in the first place as the producers and
directors, are predominant in the industry and further, have more bargaining power against individual
technical artists. Some context about the history of these trade unions/guilds is important to gauge
and objectives they were created for. The FWICE, for instance, which is OP-2, is the mother body of
about 22 crafts organisations in west India was formulated in 1956 with the objectives of securing the
security of service and wages, better working conditions, and raising the workers status.13 The
formation of the FWICE marked the reorientation in the outlook of the technicians who began to
organize themselves on trade union lines with the object of improving their conditions of work and
securing prompt payment and adequate salaries.14 The decision of the CCI might lead to a dilution of
the role of the trade unions. This sort of a reduction in the bargaining power, membership and
influence of trade unions in the film industry was seen in the United States as well when the closed
shop was banned in 1982.15

Specifically, stunts men and body doubles will be adversely affected. Stunt artists are highly
unionised with rules that are similar to the ones that are struck down. An important provision that
9
RICHARD WHISH & DAVID BAILEY, COMPETITION LAW (Oxford University Press Ninth Edition) (2018) 92.
10
[2001] 4 C.M.L.R. 96.
11
[2000] 4 C.M.L.R. 446, [AG206].
12
Ibid.
13
Chanana Opender, The Missing 3 in Bollywood, UNI Global Union (2011).
14
Ibid.
15
Helen Blair et al., From London to Los Angeles: a comparison of local labour market processes in the US
and UK film industries, The International Journal of Human Resource Management (2003).
generally regulates the conduct between union members and producers is that the latter cannot
employ people from outside a particular region. For stunt artists their unions are saviours.16 There are
about 500 stunt artists in working in the South Indian film industry who are members of the South
Indian Cine and TV Stunt Directors and Stunt Artists Union. 17 Out of this, the estimated number
which is also a part of the Telegu Stunt Union is uncertain. There is also a tussle between the general
interests of the Telegu industry and the South Indian Unions, which is symptomatic of how
rationalistic the industry tends to get. However, these unions are instrumental in safeguarding the
interest of stunt artists and body doubles. Aside from setting wages and coordinating payments and
working hours, they ensure that artists who are injured get adequate and timely compensation.

A dilution in the bargaining power of unions, would adversely affect the rights of these individuals
who are otherwise treated by the producers as replaceable. In my opinion, the CCI, before assuming
jurisdiction, should have looked at the past cases and other jurisdictions to adjudge how the terrain of
trade unions is usually left untouched due to the socialist goals that need to be achieved from their
successful functioning. Bringing trade unions within the ambit of competition law will have adverse
effects on the individual rights of the workers who are already disadvantaged, such as stunt artists.

16
“I NEARLY DIED IN A FIRE SCENE”: STUNT MASTERS REVEAL THE STORIES BEHIND THEIR SCARS THE NEWS
MINUTE, https://www.thenewsminute.com/article/i-nearly-died-fire-scene-stunt-masters-reveal-stories-behind-
their-scars-75275 (last visited Oct 12, 2019).
17
Supra note 5.