Published: 08th October 2020
Labouring over India's new labour codes: Why academics, experts believe that it needs a lot more 'work'
Various labour unions have raised their voices against the floor wages being introduced by the new codes but not too many of them have been very vocal about the OSHWC Code
Fact #1: India is a labour-abundant country but has convoluted legislations.
Fact #2: Labour is a subject of the Concurrent List which means that both the state government and the centre are allowed to come up with legislation
Reading between those two facts, you will understand why we have about 40 central laws and over 100 state laws to regulate labour and employment. Understandably, there has been a longstanding call for change and that demand has been answered by the Modi government. The Ministry of Labour and Employment created four codes — Code on Wages, Code on Industrial Relations, Code of Social Security and the Code on Occupational Safety, Health and Working Conditions (OSHWC) — which will subsume various laws and make a streamlined set of laws that are not confusing or overlapping.
One code to unite them all
The code aims to simplify and combine 13 preexisting laws and covers factories, mines, dock workers, building and construction workers, plantation labour, contract labour, inter-state migrant workers, working journalists, motor transport workers, sales promotion employees and cine workers. But trying to streamline 13 different laws will have its repercussions. "It is very clear that the government is prioritising these labour law reforms to solve the unemployment problem and see to it that the industries flourish. At a time when we have faced the largest migrant labour exodus, the code does not talk about ensuring safer migration. How can a code that talks about the safety of workers and migrant labourers be silent on human trafficking and exploitation? The traffickers exploit the loopholes in the migration laws to their benefit and it was very important that the code addresses that but it did not," said Pompi Banerjee, a Psychologist and a researcher who is a part of Sanjog, an NGO which works with labour reform.
While the OSHWC Code subsumes the Contract Labour (Regulation and Abolition) Act, 1970 and the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979, it does not take in the Bonded Labour Act and this can create a vacuum in the legislation, said Dr Avinash Kumar, Associate Professor at Jawaharlal Nehru University's Centre for Informal Sector and Labour Studies. "The Bonded Labour act and the Contract Labour Act can't be interpreted separately. Bonded labourers don't come out of a vacuum. They are offered a contract which is then convoluted to restrict them at their workplace. If you don't mention bonded labourers in your OSHWC Code it leaves a big gap as to where these bonded labourers are coming from," he added.
Protecting the working woman
The 21st century has seen attempts of empowerment of women from every stratum of society and laws coming in place to ensure their security. "The OSHWC Code does not talk about the safety of women in workplaces other than when there is a threat to life from the type of work they do. There is no provision in place for the women to fight the constant misogyny and harassment that they are subjected to," said Banerjee. "The 2019 code went so far as to bar women from working in dangerous workplaces but now the 2020 code says that the firms will have to provide 'adequate safeguards prior to the employment of women for such operation'. But it again misses out on mentioning the same for the men," she added.
Sanjog and Tafteesh, both non-profit collectives, had come up with a study of the OSHWC Code draft and a comparison of the draft and the 2020 bill. "The 2020 code has done away with the provision of paying a displacement allowance to the Inter-state migrant worker which was there in the 2019 Code," noted their comparative study. When it comes to journey allowances, the code prescribes that the amount would be given in a lump sum annually and would consider minimum service for "entitlement, periodicity and class of travel and such other matters". "That means that the journey conditions would be prescribed by the government, based on which the amount would be decided. This leaves too much for delegated legislation. The provision also takes away the entitlement of payment of wages to the migrant worker during the period of such journeys as if he were on duty," it read.
What's in it for the worker?
The code talks about social security, safety net and health benefits which are a good addition — but then there is no mention of how this is going to be implemented. "No corporate entity will pay for these benefits on their own and the code does not talk about the budgetary allocation or even mention the role of the state in all this. The state has to pay a part of it but it has no mention of that. You need legislation in place to make sure these benefits are provided. There is no checking agency here," said Dr Suman Nath, Assistant Professor at the Dr APJ Abdul Kalam Government College in Kolkata who specialises in Social and Cultural Anthropology. "Except for a few big corporates, none of the firms want to include the workers in their payroll so that they don't have to pay these benefits. This will remain till the time we have an excess supply of employees and a dearth of employers. The employers have an enormous basket to choose from unless the worker is highly skilled," he added.
The code does take care of safety at the workplace but does not see to it that the onus is not put on the workers. The reality of thier situations ensures they forego safety measures in most cases. Dr Amrita Ghatak, Assistant Professor of Economics at the Gujarat Institute of Development Research, who has been working with labourers and their working conditions for quite some time, said, "If you stand outside a factory anywhere in India you will find workers coming out drenched in grease and soot. They simply do not wear protective gear. In some cases, there is not enough awareness, and they do not wear them because they feel stuffy and they can't work in suits and boots. The other reason is that they are given protective gear but if it is damaged, the cost comes out of their salary. Why would they want to risk that? There need to be rules in place for something as intricate as this."
Where is the Achille's Heel?
The United Trade Union Congress (UTUC) General Secretary Ashok Ghosh said that the code excludes many branches of economic activities, "Most notably, the agriculture sector which employs more than 50 per cent of the total working population of India. Further, the employees in other unorganised sectors such as small mines, hotels, machinery repairs, construction, brick kilns, power looms, fireworks, carpet manufacturing and also those employed as informal workers in organised sectors, including new and emerging sectors such as IT and ITES, digital platforms, e-commerce, have also not found coverage under the Code. We demand that the OSHWC Code should ensure universal coverage of all economic activities and types of workers including domestic workers, home-based workers, trainees and volunteers," he said.
Dr Ghatak says that the unions too, on the ground level, do not understand or care much about the OSHWC Code and are more concerned about the floor wage and other issues. "If the unions don't care, how will the workers even begin to know about it? The function of a union is not just to do dharnas. The unions could have been a big help to track the migration of workers because it is not possible to do it with Aadhaar or electronic tracking as this sector is very volatile. But the government never tried to do that. The safety and health conditions in most sectors is abysmal. Long term illnesses like asbestosis or different forms of tuberculosis are prevalent in factory workers and these can only be avoided if labour standards are strictly maintained. We will only know if the code further worsens the issue six months or a year after it is implemented," she added.