Do Labour Reforms Empower or Weaken Workers’ Rights and Safety?
The recent lockdowns revealed a complete lack of policy for protection of workers in the event of an emergency.
Between 2018 to 2020, the Union Ministry of Labour and Employment (MoLE) created four draft codes to replace twenty-nine labour laws. This long-pending exercise was done also in alignment with the recommendations of the Second National Commission on Labour (1999-2002). The Commission had found existing labour legislation to be complex, with archaic provisions and inconsistent definitions across laws.
The Commission had recommended improving and easing compliance and ensuring uniformity in existing labour laws. The legislations did neither adequately recognise nor provide for the evolving forms of labour, or the more than 90 percent of India’s informal and/or unorganised sector.
The recent pandemic-driven lockdowns, which saw millions of workers being forced to walk thousands of miles to their hometowns, also revealed the complete lack of policy to accord them some protections in the event of an emergency.
When the four Labour Codes were tabled in the Parliament, they replaced 29 existing Acts. In terms of their trajectories in the Parliament, all four Codes were first tabled, and then referred to the Parliamentary Standing Committee on Labour. The Code on Wages was passed by the Parliament in 2019, while the Industrial Relations Code, the Code on Social Security, and the Occupational Safety, Health and Working Conditions Code were tabled again in the Parliament in September 2020 and passed just a few days later.
Analyses of the Codes, their earlier iterations, and the Standing Committee’s reports have found that overall, the provisions in all four Codes are unanimously weakening the position of workers, as compared to the provisions of the Acts they had subsumed. The resounding welcome given to these Codes by India Inc. appears to support this assessment, as well.
There are certain clauses in the legislations that apparently do not harmonise with, or are directly contradictory to, clauses in other existing legislations, including the Codes themselves. For example:
a. The Code on Wages does not talk about the informal sector even though most workers are employed in this sector. The formula for calculating minimum wages is also incredibly outdated, and does not take many factors into account.
b. The Code on Social Security covers gig workers, home-based workers, platform workers, etc., but does not cover workers in certain mines, ASHA and Anganwadi workers, and beedi workers. There are no schemes for laid-off, retrenched, or unemployed workers. Further, while the Code covers occupational diseases, its Schedule is very different from the Schedule of Occupational Diseases in the OSHWC Code.
c. In the OSHWC Code, there are no protections for domestic work, the informal sector, seasonal or family migration, and specifically against physical/sexual violence for women workers. It allows the employment of adolescents in places where hazardous or toxic substances/procedures are in use. There also appears to be a direct contradiction in the matter of debt recovery: The Code says that a migrant worker’s debt is extinguished on finishing employment, but the Code of Wages explicitly states that any advance given must come from the first wage.
d. The Industrial Relations Code has weakened workers, while favouring businesses. For example, it requires that workers give a fortnight’s advance warning of a strike, and that a strike cannot go beyond 60 days. It also empowers employers to lay off or retrench up to 300 workers at a time.
e. For inter-state migrant workers, the Codes remain mostly mute, and do not talk of specific provisions, rights, or protections for them.
The OSHWC Code, which replaces the Inter-State Migrant Workmen Act, 1979, does not echo even the basic protections of the Act, such as the workers’ passbook. Migrant workers are now covered under the category of ‘contract workers’, which does not take into account the concerns and issues peculiar to them, such as the entire process of migration, and ensuring their safety against trafficking and/or exploitation.
There are no social security schemes provided specifically for unorganised or migrant workers, either. Most tellingly, there are no emergency provisions for any workers under the Codes.
OSHWC Code, the Bonded Labour Act, and the Child and Adolescent Labour Act
None of the Labour Codes have established any forward linkages with existing legislations, either – not even those that look to the rights and protections of some of the most exploited groups, namely bonded labour and children and adolescent labour.
An analysis has found that there are many complements, conflicts, and even gaps between the OSHWC Code and the Bonded Labour Act, as well as the OSHWC Code and the Child and Adolescent Labour Act. Despite the legislations and procedures set in place in states to ensure that there are no instances of bonded or child/adolescent labour, tens of thousands of such workers are still caught in such situations, mostly in the unorganised sector.
The OSHWC Code does not relate directly to the Bonded Labour System (Abolition) Act, 1976. However, both contract labour and migrant labour are under the purview of the Act.
Further, the specific Acts related to these two groups, namely, Contract Labour (Regulation and Abolition) Act, 1970, and the Inter-State Migrant Workmen (Regulation of Employment and Conditions of service) Act, 1979, have now been replaced by the OSHWC Code.
This makes the conflicts between the legislations a matter of some worry, especially since they include fixing liability, vigilance about bonded labour, and the permissibility of police action.
Neither laws have a provision for maintaining databases of defaulters/convicted criminals. They are equally silent about regular monitoring of work-sites by the appointed officials. There is also a grave lack of any special provisions for the rights and protections of Dalit-Bahujan-Adivasi workers and other marginalised communities, nor is there recompense provided, in the event of physical or sexual assaults/violations.
The OSHWC Code is far more aligned with the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986. Both legislations recognise the age of 14 as a threshold, with people under 14 being children and above 14 (but under 18) being adolescents. Children are also categorically prohibited from working in any occupation or process. Employers carry the burden of proof that their employee is not underage, and both laws empower officials to periodically inspect work-sites where employment of children and adolescents is prohibited.
However, there also exists many conflicts between the two laws: The Child Labour Act prohibits employment of adolescents in hazardous occupations, but the OSHWC Code allows people aged 16 and above as apprentices in mines. While the Child Labour Act penalises parents for child or adolescent labour, the OSHWC Code only penalises the employer. The Schedules of Hazardous Processes vary in both the laws, too.
The analysis of both legislations also reveal that the major gap is the lack of provisions and protections for adolescent migrant workers. As they still need some amount of adult supervision, they are left extremely vulnerable when the parents migrate for work. Neither legislation looks after their higher education or their accommodation, either in the parents’ native place or, if they migrate with their parents, the work-site. Further, while the Child Labour Act permits adolescents to conditionally work in family enterprises, it has no provisions for their protections in such businesses; the OSHWC Code does not cover the informal sector or family businesses.
The OSHWC Code has ignored the recommendations of the Parliamentary Standing Committee on Labour and has remained silent on safety against trafficking or exploitation of these worker groups. Bonded/indentured labourers, and children and adolescent migrants continue to be left extremely vulnerable in these legislations.
A lot of responsibilities has been put on states to frame rules, schemes, programmes, etc. Therefore, some solutions to minimise these gaps can come from the model rules, and the state rules.
(Pompi Banerjee and Mishty Varma are members of the Indian Leadership Forum Against Trafficking (ILFAT). As part of ILFAT’s #LetsTalkLabour Awareness Campaign, they have analysed the recently introduced Labour Codes.)
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