HE Rajya Sabha recently passed three bills after the Opposition had walked out. The Industrial Relations Code 2020, the Occupation Safety, Health and Working Conditions Code 2020, and the Social Security Code 2020 that have long term consequences were among them.
The bills along with the Code on Wages 2019, which was passed in August last year. It was part of the Centre’s ambitious project to reform existing archaic labour laws with the objective to improve ease of doing business.
The bills were met with vociferous protest right from their introduction in 2019, both in the public sphere and the Lok Sabha.
Thereon, the bills were referred to the Standing Committee on Labour, which recommended a total of 233 changes. After including 174 of these changes, the new drafts were introduced in the Lok Sabha on September 22 for debate.
In the Lok Sabha, the bills were passed with no Opposition participation, due to the boycott in solidarity with the suspension of Rajya Sabha MPs. For the same reason, amendments moved by Opposition MPs were not taken up.
The Codes have also missed the opportunity to include workers who are in need of legal protection the most: domestic workers, self-employed workers, etc.
The introduction of the drafts with no-prior notice and the hurried passage of the bill with no substantial debate invited the ire of Members of Parliament. In the Rajya Sabha as well, the bills were passed through a voice vote with minimum debate.
Opposition members, who boycotted the session, registered their protest over this “unilateral passage” of the Code and sent a common memorandum to the President asking him to return the bill as the unilateral passage in the Rajya Sabha was flawed.
“These Bills affect the livelihood of crores of workers across the country. It will be a great blot on our democracy to have these Bills passed unilaterally today.” said the Members of Parliament.
Central Unions have criticised the absence of discussion prior to the passing of the bills too.
The Industrial Relations Code 2020
The Industrial Relations Code 2020 (“IR Code”) consolidates laws relating to conditions of industrial employment, with the aim of facilitating ease of compliance in labour laws by removing the multiplicity of definitions and authorities.
The aim of the Code is to create ample employment opportunities without compromising on essential safeguards.
The 2020 bill mandates that industrial establishments with 300 workers must seek government permission before laying off, retrenching workers and closure. There is an increase in threshold from the extant provisions as well as the 2019 draft which pegged it at 100 workers. Additionally, the 2020 bill empowers the government to only increase this threshold. The provisions put workers at a precarious position and exclude a whole chunk of workers employed in Micro, Small & Medium Enterprises (“MSMEs”).
Member of Parliament and Centre of Indian Trade Unions General Secretary Tapan Sen said that the provisions would “throw more than 74% Industrial workers and 70% of industrial establishments into the ‘hire and fire regime’ at the will of the employers.”
The provisions put workers at a precarious position and exclude a whole chunk of workers employed in Micro, Small & Medium Enterprises
The Indian National Trade Union Congress President G Sanjeeva Reddy hit out at the exclusion of the MSME sector, saying that the laws have been brought for only strengthening and helping capitalists and corporates, not workers.
The Code has introduced Fixed Term Employment (FTE), making fixed-term employees eligible for wages, allowances, gratuity (for a period of one year) and statutory benefits on par with permanent employees. However, the lack of minimum and maximum tenure for FTE has been criticised as moving towards informalisation and exploitation.
For the first time, the 2020 bill recognizes a sole ‘negotiating union’ as a trade union with 51% of worker membership.
The Code mandates 14 days notice for a strike or a lock-out, instead of limiting it to public utility services like the 2019 draft. Further, strikes are prohibited during the pendency of conciliation proceedings (up to 7 days) and adjudicating proceedings (up to 60 days after proceedings before a tribunal).
Former Minister of Labour and Employment, Mallikarjun Kharge criticized the provisions impacting the Right to Strike as having, “weakened trade unions and finished the security and safety for the workers…. The Codes are anti-worker, anti-labourer and it is important to agitate against them.”
The Standing Committee had recommended deleting this provision in the 2019 draft. Biju Dal MP Pinaki Mishra pointed out that similar provisions had been previously struck down by multiple High Courts.
The Court of Inquiry, Board of Conciliation and Labour Courts under the Industrial Disputes Act, 1947 are replaced with Industrial Tribunals to decide disputes and appeals and reduces the time limit for raising a dispute to two years. However, the government may modify or defer the enforcement of the Tribunal award on grounds of the national economy or social justice. The Standing Committee had recommended deleting this provision in the 2019 draft. Biju Dal MP Pinaki Mishra pointed out that similar provisions had been previously struck down by multiple High Courts.
The Occupational Safety, Health, and Working Conditions Code 2020
The Occupational Safety, Health, and Working Conditions Code amalgamates 18 Acts and covers laws related to safety, health, and working conditions of workers employed across Factories, Mines, Docks; employed as contractual workers, or are migrant workers. The Code has specific chapters for contractual workers, inter-state migrant workers, beedi and cigar workers, plantation workers, audio-visual workers, and factory workers.
One good provision was that all employers are mandated to provide free of cost annual health check-ups for employees.
The Bill provides for uniform thresholds for welfare provisions like canteens (100 employees), creches (50 workers), first aid for all (earlier limited to certain establishments), and welfare officers for factories, mines, plantations (250 workers). The Bill covers all establishments where any hazardous activity is carried out, regardless of the number of workers.
The Code seems to leave out a majority of welfare provisions for Building and Other Construction Workers (BOCW) – which were available under the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act 1996.
However, the Central Government and Offices of the State Government are exempted from the Code.
With respect to contractual employment, the Code will apply to establishments with minimum 50 contractual workers – a higher threshold from the extant provisions of the Contract Labour (Regulation and Abolition) Act, 1970 and the 2019 draft of 20 workers.
The Code seems to leave out a majority of welfare provisions for Building and Other Construction Workers (BOCW) – which were available under the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act 1996. The provisions for the BOCW cess are vague and involve self-inspection, which is counterproductive to worker’s rights.
In the Rajya Sabha, Biju Janata Dal’s Subhash Chandra Singh, who previously served as the Chairman of Odisha Building & Other Construction Workers Welfare Board (OBC & OCWWB) emphasized the danger of setting a minimum corpus of health and safety standard and leaving it to delegated legislation – “growth in economic activities cannot be at the cost of suspension of basic health and safety standards.”
The Code on Social Security, 2020
The Code on Social Security, 2020 subsumes nine Central Labour Acts that guaranteed comprehensive social security cover for workers and provided legal protection for gig workers, platform workers, and unorganized workers. ‘Social Security’ is defined as “the measures of protection afforded to employees, unorganised workers, gig workers and platform workers to ensure access to health care and to provide income security, particularly in cases of old age, unemployment, sickness, invalidity, work injury, maternity or loss of a breadwinner by means of rights conferred on them through Schemes, under the Code.”
Unionists have criticized the same as “cruel” and tone deaf to the realities of vulnerable gig workers.
However, this definition excludes Superannuation and Insurance Schemes (Life, Medical, Accidental, and Occupational), requisite housing facilities – as laid down in the International Labour Organization (ILO) Convention on Social Security (minimum standards) 1952.
The Code also makes Aadhaar mandatory for the registration of unorganized workers, gig workers and platform workers. In the Lok Sabha, Telugu Desam Party’s Jayadev Galla pointed out that mandating Aadhaar for availing benefits was a violation of the Supreme Court’s Order. Unionists have criticized the same as “cruel” and tone deaf to the realities of vulnerable gig workers.
Labour Codes criticised for excessive delegated legislation
A common thread running across the three codes is the excessive use of delegated legislation. For example, the power to modify appeals or industrial dispute awards in the IR Code, deferring contributions (to the Provident Fund and Employee State Insurance) in the SS Code, exempting establishments from the purview of the OSH Code, and so on. The Codes have left multiple important provisions to the central government or “appropriate government” and are close to encroaching on matters that might be better left to state governments.
The Codes have barred the Jurisdiction of Civil Courts.
While the Code aims at clearing ambiguities through amalgamation; it fails to provide clarity with specific terms, and at some spots fails to provide any definition at all. For example, the Codes mention separate definitions of ‘worker’ and ‘employee’ without any rationale for distinguishing both, the definition of ‘supervisor’ and ‘manager’ creating more ambiguity.
Lastly, despite the majority of the workforce belonging to vulnerable sections of society, the Codes fail to imbibe a non-discrimination principle.
The Codes have also missed the opportunity to include workers who are in need of legal protection the most: domestic workers, self-employed workers, etc. The Self-Employed Women’s Union (SEWA) staged a dharna to express their anguish at the exclusion of domestic workers. This includes the likes of Anganwadi workers and ASHA workers, who have been fighting for employment status for years, and in recent times, agitating for their right to work in a healthy environment.
Lastly, despite the majority of the workforce belonging to vulnerable sections of society, the Codes fail to imbibe a non-discrimination principle. An example is how the SS Code doesn’t provide any representation framework for scheduled castes, scheduled tribes, other backward castes, and female representatives on the Board of Trustees of the Employees’ Provident Fund Organisation; or how the IR Code missed an opportunity to make the Industrial Tribunal and the law on disputes sensitive to harassment and discrimination on the basis of caste and sex.
President Saji Narayan of the Bharatiya Mazdoor Sangh, the Labour wing of the RSS, said, “India needs bureaucratic reforms, not labour reforms. If they are thinking these will attract investments from China, they are in an illusion. These changes will make labourers more vulnerable to job losses when the entire industry is laying off employees…”
Union Minister for Labour Santosh Gangwar defended the Codes as reforms, “…that will bring investment, create industrial relations in the country, further industrial relations and protect the interests of workers…” Central trade unions joined the nation-wide protest on September 25 to protest the passage of the Farmer bills as well as the Labour Codes. However, the Centre seems unperturbed to the opposition and protests, releasing a statement revealing their plans to implement all four labour codes by December of this year.
(Riddhi Shetty is a law student at NALSAR University of Law.)