WORKERS AND WORKER’S RIGHTS ARE ALWAYS UNDER ATTACK in the profit system. In our country, far too many workers do not receive the minimum wage and work many hours longer than eight each day without overtime pay or a weekly off. There are today more contract workers in formal workplaces than there are regular or permanent workers.
Trade union recognition is very hard to come by. The mechanisms for social security make it difficult to access and are both restrictive and discriminatory. Additionally, all labour legislations are open to interpretation and subject to multiple jurisdictions. Despite these weaknesses in the law, sustained workers’ agitation through much of the twentieth century, led by strong democratic trade unions, brought gains that came to be upheld by the courts including the Supreme Court. Hence labour law came to be read more closely with the case law or legal precedents set by courts. The judiciary, in some measure, though without questioning the profit system, recognised that the unequal power relationship between employers and their employees must be taken into account in a democracy that seeks a modicum of fairness in employment relations.
Since the 1990s, with the changing geopolitical map of the world which shifted the balance of force, this recognition of the imbalance in power relations has come under challenge. In 1991, India moved from a dirigiste economy to one that privileged the profit system over all else and especially workers. This process went forward in the workplace as the tripartite labour machinery declined at all levels, and with changes in the views of the judiciary, even as there were no significant changes in labour legislations in our country. Both the executive, that entirely abdicated its responsibility for ensuring fairness and worked determinedly to attract investment, and the judiciary, that protected the executive, have provided employers, including government itself, the impunity to do as they pleased.
The Labour Codes are, in effect, a codification of employment practices that are violative of basic labour rights. Hence what is de jure today will become de facto when the Labour Codes come into effect. There are seven overarching principles cardinal to labour rights won over the past century and protected by statute, case law or accepted practice, which the Labour Codes will undermine to the enormous disadvantage of workers.
First the Codes place trade unions and their members on an unequal footing before law vis-a-vis employers and their companies. Trade unions under the Codes may be proscribed (denied their registration) for a violation of the omnibus Industrial Relations Code. No such punitive measure is envisaged against a company under the Companies Act or any other law. This provision for deregistration of trade unions, when taken together with the virtual impossibility on the right to strike, will force workers and their trade unions to resort to extra-legal platforms in order to advocate and agitate their cause. This amounts to the legislature pushing the working class towards criminalisation for making reasonable and lawful demands.
Second, the Codes create a clear legislative divide between the so-called ‘formal’ and the ‘informal’ (including contract workers). Such workers who do not have ‘formal’ employment relations, whether in an incorporated or unincorporated enterprise, will remain beyond the pale of law only to ‘benefit’ from ‘schemes’ that government ‘may’ introduce that will not be justiciable under law. Hence while the government accepts the natural tendency of the concentration of capital, the legislature has sanctioned constant and greater dispersal of labour ensuring that the vast majority of workers will continue to remain beyond the pale of law and without access to judicial remedy.
Third, the Codes undermine the federal character of the labour legislation and implementation in so far as there is an omnibus central law leaving states with little room for manoeuvre. Rather than advancing the constitutional value wherein issues on the Concurrent List allowed for states to legislate regarding higher standards and better conditions for workers, the Codes open space for doing just the reverse. By opening up, for instance, hours of work to state specific legislation and rulemaking power, the Codes, in fact, open the race to the bottom. For instance, states will compete with each other for longer working hours, breaching the right to an eight-hour work day completely.
Fourth, as is the case with all other legislations under the present government, the Codes erode the mandate of the legislature thereby passing on the power to amend significant workers’ rights protected by law onto the executive. From access to information on a private company’s finances to the formula for computing the annual bonus to the factory safety legislation following the Bhopal gas tragedy, all the way to the health and safety protection won through decades of struggle by construction workers, the Codes have, in one stroke, transferred these from existing legislative protection to the executive’s prerogative.
Fifth, despite the claims, the Codes are far from comprehensive in their reach. The Codes are discriminatory and restrictive. They virtually keep all agricultural and domestic workers outside the scope of their implementation. The Shops and Establishments Acts for states remain outside the scope of the Codes, thereby leaving out a vast body of workers in offices, retail and other commercial areas of employment. The Codes address the night shift for women’s work but do not address the ubiquitous sexual harassment and violence that takes place in the workplace.
Notably, sexual harassment is still left to the POSH Act. It has no connection with the Codes. Violations also have not been separately legislated under the Codes. Hence, these violations will continue to lie beyond the remit of the labour law enforcement machinery. This will contribute to the persistent and increasing harassment of and violence against women. These grave violations will not be addressed as a labour rights violation. Hence harassment of women will remain an active mechanism for ‘disciplining’ and ‘controlling’ in the workplace. Also, alarming is the non-inclusion of the Child Labour (Prohibition and Regulation) Act, 1986 which, through a recent amendment under the present government, legitimised the employment of children who are ‘family’ members of the establishments’ owner.
Sixth, the Codes are violative of internationally acceptable core labour standards, as agreed upon by member states of the International Labour Organisation. Of course, it might be said that many of these conventions have not been ratified by earlier governments. Yet, what the current violations symbolise is stark. The Codes violate ILO Convention No. 1 on Hours of Work. This convention was adopted at the founding convention of the ILO in 1919 and ratified by India’s colonial government in 1921. The young independent India ratified 1949 ILO Convention No. 81 on Labour Inspection. If the labour inspection system was in tatters ten years ago, today it is completely demobilised. Tripartite consultations (government-employers-trade unions) is now a thing of the past, despite a consultative machinery being put in place in pre-independent India. Similarly, we have ratified the 1978 ILO Convention No. 144 on Tripartite Consultation but there have been no consultations with trade unions in a decade and certainly not on the codes.
And finally, the framework of creating an environment of ‘ease of doing business’ has meant the elimination of punitive measures against employers for violation of law. All of this has been done in the name of ‘decriminalising business’. Under the existing Minimum Wages Act, 1948, non-payment of minimum wages is a criminal offence punishable including with imprisonment. Non-payment of wages is widely accepted as amounting to forced labour and has been upheld by the Supreme Court as such. Under the Codes this offence can now be settled with a monetary fine. The Labour Codes, in effect, give employers a licence to practice forced labour. This is just the tip of the iceberg.
Realistically speaking, for the overwhelming majority of workers in the country the Codes are already a living reality whether or not the legislation is in force. There can be no denying that the existing laws have not brought relief to the many. The task of challenging the Codes, reversing them and winning strong rights in the workplace will and must remain the task of workers through their trade unions.
As we go forward in addressing our task, we must, learning from both our history and from the experience across the world, recognise that the rights we win will be meaningful and substantive only if they are truly universal in their reach and leave no worker unprotected under law. Therein lies our challenge.
Note: An earlier version of this essay appeared in Decoding the Labour Codes: A handbook for Workers, available here.