INTER-STATE MIGRANT WORKERS are already leaving the country’s industrial hubs as shortages of commercial LPG and piped natural gas have disrupted access to affordable food, making survival in native places easier than in urban industrial areas. What is less familiar is that the law meant to protect these workers when crisis strikes is about to get weaker, not stronger.
As per reports, the Union government is preparing to notify the rules under all four labour codes, with implementation expected as early as April. The Occupational Safety, Health and Working Conditions Code, 2020 (‘OSH Code’), which subsumes and repeals 13 legislations, including the Inter-State Migrant Workmen Act, 1979 (‘ISMW Act’), is unlikely to benefit inter-state migrant workers. These workers are employed across multiple sectors, including construction, manufacturing, mining, agriculture and other related activities. The ISMW Act provided detailed provisions on the facilities and welfare amenities to be provided to migrant workers, including journey allowance, displacement allowance, the issuance of passbooks, and accommodation requirements. Several of these protections have been omitted under the OSH Code.
The selective reintroduction of a wage ceiling under the OSH Code for migrant workers undermines the protections previously offered to vulnerable migrant workers.
Inclusive in form, exclusionary in practice
The OSH Code defines an inter-state migrant worker as someone from one State employed directly or indirectly by the principal employer to work in another state. The OSH Code introduces a wage ceiling of ₹18,000 per month for migrant workers, excluding them from the Code's protections if they earn above it.
Migrant workers’ precarity is not determined solely by wages — it is shaped by other factors, such as poor working conditions, lack of workplace social security entitlements, and language barriers. A migrant worker earning more than the prescribed wage ceiling in a hazardous worksite does not cease to be vulnerable. In contrast, the Code on Wages, 2019, removed the wage ceiling for payment of wages and scheduled employment under minimum wages, thereby including a wider group of workers. The selective reintroduction of a wage ceiling for migrant workers undermines the protections previously offered to vulnerable migrant workers.
Raising the threshold, shrinking the net
The ISMW Act applied to employers and contractors that employed or hired at least 5 interstate migrant workers; the OSH Code has increased this threshold to 10 workers. This risks informalising and invisibilising workers, and undermines the constitutional vision of labour dignity and welfare. The original threshold of 5 reflected a deliberate legislative recognition that most migrant workers are employed in smaller factories and establishments that are usually excluded from the application of labour laws.
Over 90 percent of migrant workers are engaged in the informal sector. While the now-repealed Factories Act, 1948, applied to factories employing 10 or more workers, the ISMW Act was triggered even when 5 workers were engaged. This lower threshold for migrant workers was a conscious legislative choice to prevent smaller establishments from becoming sites of invisibility.
The ISMW Act applied to employers and contractors that employed or hired at least 5 interstate migrant workers; the OSH Code has increased this threshold to 10 workers. This risks informalising and invisibilising workers, and undermines the constitutional vision of labour dignity and welfare.
Removal of welfare provisions
ISMW Act’s provisions on the displacement allowance, cross-inspection (inspection in other states by authorities of the native State of the migrant worker), and other explicit welfare provisions, like temporary accommodation, have been abrogated under the OSH Code. The OSH Code is surprisingly silent on the employer's responsibility to provide free-of-cost accommodation to workers near worksites.
The ISMW Act gave broad powers to both the state of origin and the destination state to inquire into the conditions of work of migrant workers; the OSH Code omits these provisions entirely. Under the ISMW Act, 50 percent of the employee's monthly wages were paid at the time of recruitment as a displacement allowance. It provided crucial financial security for workers to arrange for their families before they migrate for work. Abolishing this provision goes against the very essence of the OSH Code.
The promise of portability
Securing rations through the Public Distribution System (PDS) schemes at destination states has remained challenging for migrant workers. The OSH code explicitly includes this, paving the way for the portability of PDS benefits for migrant construction workers through the Building and Other Construction Workers’ (‘BOCW’) Welfare Fund. Construction workers covered under separate provisions of the OSH code are offered a host of entitlement benefits through the labour welfare cess collected by BOCW State Welfare Boards (‘SWBs’). The SWBs collect 1-2 percent of the Construction cost as cess to roll out welfare schemes for construction workers. An RTI response received by The Hindu has revealed that approximately 70,000 crore rupees lies under-utilised across SWBs. Their failure to protect migrant construction workers during and after COVID-19 is a matter of record.
The OSH Code provides no inter-state coordination mechanism between SWBs for the effective rollout of the PDS scheme. The portability provision remains in question; neither the Code on Social Security Code, 2020, nor the OSH Code provides for the manner and time frame for fund utilisation.
Workers’ visibility
The crisis of migrant workers is not merely one of mobility, but of visibility within the State's regulatory imagination. The reverse migration during the COVID-19 pandemic was a stark reminder of the State's data apathy. In welfare governance, registration is the gateway to recognition; those outside the database often remain excluded and invisible.
The e-Shram portal, a nationwide database for unorganised workers, was operationalised after the Supreme Court’s suo motu cognisance in Re: Problems And Miseries Of Migrant v. Union Of India (2021), which mandated comprehensive registration. Yet registration mechanisms remain inconsistent across states, often requiring contractor certification rather than self-attestation. The e-Shram currently has more than 30 crore registered workers. The Code’s failure to integrate migrant workers' entitlements into the e-Shram database reflects a missed opportunity to transform visibility into protection.
The OSH Code’s failure to integrate migrant workers' entitlements into the e-Shram database reflects a missed opportunity to transform visibility into protection.
Inclusion not exclusion
Migrant workers continue to be a vulnerable group. Inclusions such as PDS portability, toll-free helplines, and safety studies are steps in the right direction, but they are insufficient scaffolding over a hollowed-out foundation. The toll-free number must be fully operational; PDS must be rolled out effectively and integrated with e-Shram. The mere existence of such initiatives cannot guarantee the safety, welfare and access to entitlements of migrant workers. As inter-state migration grows, these workers require legal protection more than ever — not exclusion from it.