Practically, what can trade unions do regarding the Labour Codes?

NEARLY five years ago, the Union government enacted four Labour Codes - the Code of Wages (‘WC’) in 2019, and the Industrial Relations Code (‘IRC’), the Occupational Safety and Health and Working Conditions Code (‘OSHWCC’) and the Code on Social Security (‘SSC’) all in August 2020. Even though the Union government wanted to implement them on April 1 of various years like 2021, 2022, etc. it could not do so due to the non-formation of Rules under the four Labour Codes by many state governments. The few Rules that were framed suffered from several deficiencies and there were significant divergences across the states. I have written on these issues extensively, including for this publication. It is better to quote certain observations made by a study undertaken by the V. V. Giri National Labour Institute (‘VVNLI’), an autonomous research body attached with the Labour Ministry on the state of the Rules in 2023: “… an objective analysis of these rules also indicates that in respect of many of the aspects, there is too much of divergence not only between the Central and State/UT Rules but also among the State rules. The same needs to be minimised in order to bring the required uniformity. Similarly, many of the State/UT rules under these Codes have left some of the vital aspects uncovered. Further, the rules of some of the States/UTs prima facie seem to go against the basic ethos and spirit of the Codes and may defeat the objective sought to be achieved by these Codes. All these aspects require the attention and a re-look by the concerned governments.” Following this critical finding, stupendous efforts have been undertaken to rectify the errors and to frame the Rules in almost all the states. The Union government has been holding high-level meetings to assess the possibility of implementing the Codes by around March 31, 2025..Social Security Code Draft Rules, 2020: Is it Inclusive and Representative? [Part 1].Keeping aside for a moment the technical difficulties in the formation of the Rules, one fact is clear: the four Labour Codes will be simultaneously implemented one of these days, as they are, without any dilution. The Central Trade Unions (CTUs) and other unions across the industries are now holding conventions, joint meetings, and internal meetings. to decide on the future course of action. All of them, including the Bhartiya Majdoor Sangh (‘BMS’) and its allies, oppose the Codes on the cardinal principle that they serve employers’ interests and do little for workers’ interests. .Keeping aside for a moment the technical difficulties in the formation of the Rules, one fact is clear: the four Labour Codes will be simultaneously implemented one of these days, as they are, without any dilution..However, the CTUs are divided. On one hand, there is the Joint Platform of CTUs (‘JPCTUs’), established in 2009, comprising ten CTUs - Indian National Trade Union Congress (‘INTUC’), All India Trade Union Congress, Hindu Mazdoor Sabha, Centre of Indian Trade Unions (‘CITU’), All India United Trade Union Centre, Trade Union Co-ordination Centre (‘TUCC’), Self-Employed Women’s Association, All India Central Council of Trade Unions, Labour Progressive Federation and the United Trade Union Congress. On the other hand, the Confederation of Central Trade Unions (‘CONCENT’) comprising the BMS, and the National Front of Indian Trade Unions , a minor break-away faction of TUCC and INTUC. Both have been holding their course of actions independently with no joint synergy between the two factions in the trade union movement. .Industrial Relations Code and Standing Orders Act: A Deregulation that Spells Chaos and Hurts Workers.The proposed due date is approaching and the JPCTUs are holding a convention on March 18, 2025 and individual CTUs are making their jointly determined announcements in their outlets. What can the trade unions do to stop the implementation of the Codes? I don’t prescribe as to what to do as an outsider. But some observations by a long standing academic like me will help them hopefully. Theoretically, some of the options available are legal action (litigation), joint protest actions including strikes, political actions (petitioning, lobbying and contestation in the Parliament), holding negotiations with the government (social dialogue), international action (complaining to the International Labour Organisation (‘ILO’)), and sympathetic strikes by global union federations in various countries to express sympathy for the protests held in India. .Very importantly, while the JPCTUs demand the repeal of labour codes (an absolutist position), the BMS opines that Codes contain good and bad clauses from workers’ point of view.Till now the CTUs have been stridently and sustainably conducting a variety of protests, some localised at factory sites, others at a more country-wide level. CTUs have held more than twenty country-wide strikes reportedly involving between 10-20 crore workers. The high mobilisation of workers is highly commendable even as doubts arise over the huge number. They are planning to hold another massive strike and other actions in future if the government implements the Codes. To quote CITU:“the trade union movement [held]… massive protests and burnt the effigies of labour codes nationwide. This will be followed by a series of agitations and mobilizations and leading a countrywide general strike.”This is surely the stance of others in the JPCTUs. We do not know what CONCENT would do. Very importantly, while the JPCTUs demand the repeal of labour codes (an absolutist position), the BMS opines that Codes contain good and bad clauses from workers’ point of view and thus the government can amend the bad clauses and retain the good clauses. Given these major differences, we are staring at a significantly fragmented protest agenda. So if the proposed nationwide strike takes place, BMS and its three allies would likely not join. By a calculated estimate, of the 90 million claimed union members of the top ten CTUs, 17-20 million belonging to CONCENT would not participate. The highly inflated figure of 20 crore strikers' participation comes from the assumed participation of the millions of unorganised workers (more than 400 million in number) and the “support” given by them. Even if we assume that all the 20 crore workers participate, which means a nation moving, how productive will it be, and how have similar mass-protests impacted the government in the past?.Limitations of general strike in the neo-liberal era.The government has apparently remained unmoved and mainstream media did not provide the kind of coverage it should have when 200 million workers were on strike. The government did not call them for social dialogue or change its policies significantly at all. What we can say with confidence is that these strikes, on a minimal note, stalled reforms for a long time, and more recently, have delayed the implementation of the Codes. Of course, it was the government’s inefficiency which was more responsible than labour militancy in causing the delay to implement the labour codes. In fact, recently, the farmers’ movement has extended support to the struggles of the JPCTUs as industrial workers’ unions showed solidarity with the farmers’ struggle. So a synergetic interface has emerged between the movements led by farmers and industrial workers. Then the “impact” of the joint struggles will depend on the nature of support by farmers. The CTUs are relying heavily on the support from the farmers’ movement which, if full and strong, will cause concern to the government. But one thing is clear: one or two days’ demonstrations and non comprehensive work stoppages would achieve little. Having been a student of workers’ strikes for over three decades, I am clear that the composition of the strikers, whether small or big, matters. The cardinal principle, as academics argue, is that strikes are efficient only if they “hurt” their target, i.e. employers/government. Strikers’ composition, duration, timing, etc. determine the outcome of the strike. General strikes have their own dynamics, especially the preparations and coordination till the last worker standing. If the strike is efficient, then negotiations may resume or suitable actions would take place. Numerous inefficient strikes prove counterproductive. .The trade unions do litigate for their rights (from Anganwadi workers to casual workers). However, some court decisions on contract labour and the right to strike have cautioned trade unions from approaching the judiciary..To be clear, I am not against strikes. In fact, they are an important constituent of the repertoire of the trade union movement. It is a huge signalling device and a great tool for enriching workers’ consciousness apart from many other functions. But the fact is that the Union governments (irrespective of which part in majority is in-charge) have not paid significant response to these 20-odd stupendous struggles. Similarly the government will not be bothered about the burning of effigies of the Labour Codes. But these acts of resistance add intensity to the protest and thus may be conducted. If there is one thing that remains clear, it is that the NDA will not repeal the Codes merely because of protests The probable absence of BMS in these will also be a factor for concern. But these need not deter the trade unions. Protest is the essence of rule-making in industrial relations. However this time, the repeal of the farm laws and the successful struggles of the farmers’ united movement must have boosted their confidence and hence they are on a more aggressive war path. It is up to the trade union movement to do what it seeks might and right, but the concerns raised above must be kept in mind by them while making future decisions. Struggle is their legitimate right and they perform many positive functions. I am not for a moment arguing that struggles are a social and economic waste, but what is needed are complimentary actions and not sole reliance on protests. Combining litigation with protestsOf the State’s organs, the judiciary is the one that inspires confidence in the minds of the common people and academics alike, though conditionally. The trade unions do litigate for their rights (from Anganwadi workers to casual workers). However, some court decisions on contract labour and the right to strike have cautioned trade unions from approaching the judiciary. The judiciary’s verdict becomes a law. Then to reverse the effects of the verdict, we require legislative action which is a political process for which the trade unions do not have numbers. So they are cautious to litigate. However, in this case, trade unions need to carefully analyse the Codes and consult brilliant legal minds sympathetic to labour causes before considering to file a writ petition in the Supreme Court. It is probable that the CTUs are waiting for the notification of the Codes so as to challenge them. Litigation, as a strategy, must crucially complement organised assertions and protests, since it remains a potent option. We must expect to see a combination of strike action with legal challenges to the Code in the upcoming months. .The trade unions must “somehow” bring the government onto the negotiation table and hold meaningful discussions..Lack of social dialogueGlobal interventions in terms of ILO’s intervention, and solidarity strikes by global union federations can only “widen the visibility” of the movement. While ILO’s “interventionist” nature and scope are questionable, the government may “handle” it suitably as it has done on occasions. This leaves us with social dialogue. CTUs are justified in relying so much on struggles since there has been a complete absence of social dialogue. Since 2015 the Indian Labour Conference (‘ILC’) has not been convened and if consultations took place they were not significant and wide enough to be called a social dialogue . This is the huge “voice void” in the Indian industrial relations system and this, in fact, forcefully defines the actions and perceptions of the trade union movement. But in a democratic pluralistic polity like India, what else is the option for stakeholders? The trade unions must “somehow” bring the government onto the negotiation table and hold meaningful discussions. To make it successful, there must be significant give and take on both sides. In my opinion, at the moment, the forum is failing to do this. .Union government has failed to use the G20 summit to press for wage protection of Indian overseas workers, lament activists and trade unionists.There are two important aspects of labour law reforms we cannot ignore. One, owing to the “look at the other side” policy that the state governments have introduced, there have emerged numerous employment practices at the firm level, like higher contract labour (the percentage of contract labour being more than 50 percent in many places), using of government scheme workers (like the National Employability Enhancement Mission, or the ’Learn and Earn Scheme for Minorities’) as ‘employees’, reduction in the permanent workers’ strength via Voluntary Retirement Scheme, individualising of negotiations, replacing of collective bargaining, non existence of union policy (for instance, the recent Samsung Electronics strike refused to recognise a majority trade unions), and using of company union/workers’ committees in place of trade unions. So in many medium and large firms the managerial strategies have already delivered substantial labour flexibility. So who needs labour laws?Repugnancy between the Labour Codes and state amendments?Owing to the strident protests for over two decades the Union government shifted the onus of labour law and governance reforms (inspection reforms) to the state governments since ‘Labour’ is on the Concurrent List, under the Seventh Schedule of the Constitution. Trade unions stridently protested policies like hire and fire, ‘contractisation’, and raising of the thresholds of laws like the Factories Act and the Contract Labour (Regulation and Abolition) Act, 1970. But several state governments have carried out these reforms. It is reported by the government that eighteen states have already implemented the reforms that the employers wanted. It has to be noted that amendments introduced by state governments have obtained the President’s assent, thus becoming legitimate law, even if the amendments are contrary to the Union law on the same subject. The immediate concern that might arise is that the Labour Codes may remain abandoned as theoretical documents, as labour rights have already been taken away by the state-level amendments..The Codes need to be repealed for their numerous shortcomings, poor drafting, lack of legal sense, and lack of a perspective. .Is it worthwhile, then, to fight so much against flexibility if the flexibility is already available to the employers in 18-20 states? I would argue that this is important. Article 254 of the Constitution states that with regards to “matters enumerated in the Concurrent List”, if any provision made by the State legislature is “repugnant” to provision of a law made by the Parliament, the Parliament’s existing law “shall prevail”. The State’s law, on the other hand, would be void to the extent of the repugnancy. Thus, by constitutional design, the Labour Codes will prevail over the state amendments and could not be abandoned as ‘theoretical documents’.Further, the national Labour Codes make reforms easier while state level reforms would take much more time, assertion and effort. Of course, the trade unions must adopt a two-pronged struggle strategy, at the central and the state levels. They should intensify the action at the regional levels. There is no doubt that the Labour Codes are very badly drafted, inconsistent, often vague, leaving many substantive aspects to the rule-making processes, and taking away the historically established labour rights. As legal documents, they do not completely address all the relevant issues (say for instance, with regard to gig workers). There are a litany of serious complaints. .Delay and complexities plague labour reforms.The composition of the Codes, as a legal exercise, is an embarrassment to Indians who revere the Constitution. For the common workers, the Codes are a devilish set of legislations, threatening to rob them of their rights. Experts have also opined that the Codes will not even attract local investors, let alone foreign ones.The Codes need to be repealed for their numerous shortcomings, poor drafting, lack of legal sense, and lack of a perspective. But the trade unions have a serious and gigantic challenge to confront, one that will remain to be so for the foreseeable future. At any rate, the Codes are going to create chaos even if they are implemented. It is not whether trade unions win or lose - the whole responsibility of workers’ welfare and employers’ ease of doing business are vitally important and this can only be assured by competently drafted strong labour codes. Amendment may be a good option if the government is open to it. This is a more plausible ask than the repeal of the Codes. The coming months will define the direction of the trade union movement and the course of the industrial relations system. These are going to be momentous times.