The new Labour Codes entrench the macro-patriarchal tenacity of the Indian State, one step at a time

In India, the conflict between labour and capital has been intensified with the replacement and codification of all labour laws into four Labour Codes in the name of ‘rationalisation’ and ‘ease of doing business’ in order to reduce the labour compliance burden of industries. This has deeply significant consequences for the rights of workers, especially women. The paradigm of growth-with-jobs has been replaced by one that not only pitches growth against employment, but in fact clearly states that the former can occur only by disregarding the latter and the corresponding labour rights. Today the majority of policies overtly support profits over wages and the control of capital over labour via State-supported centralisation of capital. The macro-patriarchal construct of the State and subsequently its policies, not only trivialises but also negates workers, men and especially women, as economic agents as well as citizens. This reinforces gender disparities that further lead to de-equalisation at multiple levels. Historically, the majority of women across the gendered work continuum are out of the ambit of labour laws, given that they are employed primarily in informal work, even more so than men. The central issue is, therefore, to examine the new Labour Codes through a feminist lens as located within the gendered reality where women are primarily informal, own account, are self-employed and are typically and simultaneously employed in fluid multiple economic activities that more often than not integrate paid, under-paid, unpaid and unpaid care work. The Codes were passed in Parliament between 2019 and 2020 in spite of vociferous opposition and under, what I term as, the camouflage of COVID-19, when the workers were involved in just basic physical survival..The central issue is, therefore, to examine the new Labour Codes through a feminist lens as located within the gendered reality where women are primarily informal, own account, are self-employed and are typically and simultaneously employed in fluid multiple economic activities that more often than not integrate paid, under-paid, unpaid and unpaid care work..The Code on WagesThe definition of ‘work’, ‘worker’, and ‘workplace’ under the Code on Wages (‘CoW’) restricts the definition of employee or worker to establishments or industries, consequently precluding employment in private households. Omitted, therefore, are the vast majority of especially women, workers: domestic workers, gig and platform workers, auxiliary nurses, apprentices, home-based workers, scheme-based workers including Asha, Anganwadi and MGNREGA workers, pashu sakhi, bank sakhi, ped sakhi, drone didi, and bhojan mata. Also left out of the definition of worker are establishments where five or less workers are employed: this implies the exclusion of 98.6 percent of agricultural establishments. A whole spectrum of protections attained by many long struggles hence become ‘non-applicable’. For instance, the historic movement of the beedi workers of Nipani where they obtained bonuses, subsidised housing, cancellation of wrongful deductions by contractors under the guise of ‘bad’ product, etc, is all but undone.The Code permits the extension of hours of work from the internationally accepted and ratified eight hours per day to nine to twelve to even sixteen hours under the guise of ‘spreadover’ and ‘emergency’. There are several implications of this: that an entire shift of workers will become unemployed, that such long working hours will result in faster burnout, that the prevalence and, indeed, increase in the unpaid burden of women will lead to their even faster exit from the workforce. .Decoding the Code on Wages, 2019.Minimum wages are fixed presuming a household consists of two adults and two children, that is, three adults. The gender bias is overt: a male is equated to one consumption unit, a woman 20 percent less at 0.8, even though she might in fact need more given that her work hours are at least one-third more if unpaid work is taken into account. Children are calculated at 0.6 consumption units each, less than what growing children would need if full physical and mental development is to be attained. In this connection, it is crucial to point out that children are the future workforce and not merely ‘non-adult dependents.’ Those dependents who are aged and physically and mentally challenged find no mention whatsoever. Neither do women headed households nor single person households. The word ‘shall’ has been replaced by ‘endeavour’ for computing ‘Cost of Living Allowance’ twice a year. Section 6(6)(a) categorises wages according to highly skilled (with 111 jobs specified), skilled (320), semi-skilled (127), and unskilled (123), with most women predictably perceived as being in the lowest skill sets. Totally missing are domestic workers from any of the 681 skillsets listed. What the CoW also does is deepen occupational gender stereotyping. For instance, while there is a category of ‘cattle man’ and ‘calf boy’, there is no equivalent category for women and girls despite the fact that they carry out at least 70 percent of dairy and livestock activities. The conditions of work are now to be checked not by the erstwhile ‘Labour Inspector’ but an ‘Inspector-cum-Facilitator.’ The fundamental ‘power of entry at any time (or even reasonable hours), any frequency and unintimated one’ has been removed, thereby violating ILO Inspections norms. The newly introduced Worker Form includes the name of employer and owner, but the worker has only an Identification Number, thereby dehumanising the workers and making them totally faceless, and by excluding gender, thus invisibilising them even further. The form also includes the names of the father and the spouse, which is in violation of the Supreme Court ruling. .The most cynical change is that in spite of the recent massive increase in violence against women, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act has been kept out of the ambit of this Code, thus denying a safe environment for women workers even in the organised sector..While the Equal Remuneration Act, 1976 has been retained, several significant alterations leading to dilution have been introduced. Two illustrations are: first, the deletion of gender-equality in conditions of service and also in existing entitlements concerning conditions of service after recruitment such as promotions, training, and transfers recruitment; second, the term ‘gender-based’ has been replaced by ‘male-female’, thereby excluding other genders. Further, the Technical Committee for Wage Determination has no representatives from workers’ organisations, nor does it mandate inclusion of women members. Similarly, the Advisory Board for Minimum Wages and the Committee for Increasing Employment Opportunities for Women have been merged into a single board, with one third being women, representing a reduction from the 50 percent stipulated under the ERA. Code on Occupational Safety, Health & Working ConditionsThe Code on Occupational Safety, Health & Working Conditions (‘COSH’) replaces thirteen laws. Similar to the CoW, employment in private households is omitted, leaving out yet again all homebased and domestic workers as well as apprentices. Night work for women workers (after 7 pm and before 6 am) is permitted ‘with her consent’, but without any obligation on the part of employers to provide safe transport. Existing health provisions in relation to crèches under the Factories Act have been dropped. With the repeal of the Plantation Labour Act, 1951, managements have been given the option to transfer their liabilities and responsibility that they had to themselves provide earlier onto Panchayats who are now expected to provide medical facilities, housing, and food supplies for plantation workers. The most cynical change is that in spite of the recent massive increase in violence against women, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act has been kept out of the ambit of this Code, thus denying a safe environment for women workers even in the organised sector. This Code withdraws the mandate guaranteed under the Factories Act, 1948, that all establishments engaged in hazardous processes must compulsorily constitute a ‘safety committee’, restricting the instituting of safety committee or ‘officer’ to establishments with more than five hundred workers. Further, there are no specific penal clauses for non-compliance. .Code on Social SecurityThis Code formally grants rights such as medical insurance, gratuity, EPF, and maternity benefits only to formal workers who constitute merely about 6 percent of India’s workforce, a small proportion of them women. The Maternity Benefit Act, 1961 is replaced by a section on Maternity Benefit that reiterates the provision for twenty six weeks paid maternity leave by employers, as introduced by the 2017 amendment to the Maternity Benefit Act which reasserted the provision of crèches with four visits a day for establishments with fifty or more workers, and all other health protective provisions under the original Act. A major amendment relating to access to crèche facilities under this Code negatively impacts women workers’ rights. It is stated that every establishment employing ‘fifty or such number of women employees as may be prescribed’ must establish crèches ‘within such distance as may be prescribed’ either separately or along with facilities. This change in the eligibility condition from ‘50 employees’ to ‘50 women employees’ hugely reduces the coverage of establishments required to have crèches. Also, now crèches are not guaranteed on-site within the workplace, as it is stated that ‘the crèche facility shall be located within the establishment or at an appropriate distance from the establishment such that it is easily accessible to the women employees including a woman employee working from home.’ .Social Security Code Limits Workers Access to Benefits Through Bureaucracy-Raj [Part 2].This Code, which purports to enhance social protection for workers especially women, does not even spell out any measures whatsoever for social security. It merely states that all schemes ‘as may be framed’ under existing social security organisations such as the Employees Provident Fund, Employees Insurance, etc will apply. The only saving grace, if any, is the definition of unorganised worker which includes home-based workers and domestic workers as ‘wage worker’. However, this inclusion too is problematic as both categories are not designated as workers along with many other categories in the main definition of ‘workers’ in the CoW.Code on Industrial RelationsThis Code significantly limits the rights of collective bargaining, formation and recognition of trade unions, as well as organisations focusing on labour and rights of women including women’s cooperatives and collectives. The changes proposed take away many major rights that unions and organisations have struggled for over the decades. The threshold for applicability, including for retrenchment and closure under the erstwhile Industrial Employment Act, has been increased three-fold, from one hundred to three hundred workers, consequently excluding almost 90 percent of working factories and around half their workers. This implies that now firms employing less than three hundred employees can discriminate between workers in several ways: in terms of conditions of employment relating to probation period, late coming or notice period, employment termination, quantum of leave, etc, availability of providing means of redress against unfair acts, framing of charges against ‘inconvenient workers’ as there is no Standing Order detailing misconducts, dismissal without inquiry, denial of payment of subsistence allowance to those suspended, etc.The Code extends restrictions on strikes and even mass casual leave to all sectors beyond public utility services. The State has bestowed upon itself extraordinary powers to ‘exempt’ an establishment or class of establishments, without specifying exemption conditions as was in the Industrial Disputes Act, 1947. Further, a trade union in industrial establishments must have 51 percent of the workers’ votes to be recognised ‘as the sole negotiating union which can make agreements with employers’. Where no trade union gets this 51 percent, ‘a negotiating council of trade unions shall be constituted for making agreements with employer’. Also, any individual will now be permitted to go to a tribunal to prevent a strike during which the workers will not be allowed to take any action whatsoever. For women the situation is even more problematic, given that it is much more difficult to organise women. .India also has the highest gender gap in employment rates at 57 percentage points, and the maximum gender wage gap at about 40 percent..The essentials of these fundamental changes in labour legislation connote the constraining of the long struggles for rights of workers from all sectors and sub-sectors. This is not to say that the situation of attainment of labour rights has been historically ideal, but that these Codes disregard and discard whatever rights had existed, all in favour of ‘ease’ of doing business. The impact is particularly negative for women workers, many of whom are being denied the status of a ‘worker’, and thus constrained from even judicial recourse. In this context it is crucial to point out that India has been falling consistently on all global rankings, especially those related to women. India’s rank in Global Gender Gap Report 2024 was 140 out of 156 countries, and in the Women’s Economic Participation & Health, 142 of 146. Over the last decade, all G20 countries, except for India and Indonesia, increased their female labour force participation rates. Among the G20 nations, India also has the highest gender gap in employment rates at 57 percentage points, and the maximum gender wage gap at about 40 percent. In the ultimate sense, therefore, what the Labour Codes do is reinforce the on-going process of gender de-equalisation in multiple forms, intensify patriarchal rigidities, deepen economic & extra-economic divides and increasingly exclude the most vulnerable and marginalised.