May Day: 12-hour working day notifications

What an irony. Just as trade unions prepare to (virtually) celebrate the May Day this year, a number of state governments have passed amendments to the Factories Act, 1948 reversing the very origins of May Day – the right to an 8-hour working day. The question is, are the amendments lawful?

THE history of May Day has huge significance for Indian workers during the COVID-19 Pandemic. It commemorates the struggle of 19th-century workers in the United States for an 8-hour working day. But not only this – it was a struggle waged by lakhs of largely migrant workers who had migrated to the US from around the globe searching for work during the Industrial Revolution. Living in grim hovels and ghettos, malnourished & exhausted, a common working day was 10 to 16 hours. Thousands died each year of poor working conditions and long hours.

In the mid-1800s workers started demanding a shorter working day,  without pay cuts. In 1884 at its national convention in Chicago, the Federation of Organised Trades & Labour Unions (the latter-day American Federation of Labour) unilaterally declared that on and from May 1, 1886 "eight hours shall constitute a legal day's labour". An estimated 3 lakh workers in 13000 businesses across the US downed tools on May 1, 1886, in support of the call. Chicago was the epicentre of the struggle and by May 3 the number of striking workers had swelled to around 1 lakh. The protests were overall peaceful but on May 3 several workers of McCormick Reapers Works were killed and wounded in a police firing.

A protest meeting at Haymarket Square was held the next day. Just as the meeting was winding down, the police moved in and an unidentified person threw a bomb, leading to a police firing. At least 8 protesters & 8 police officers were killed. The bomber was never identified, and the unions maintained it was an agent provocateur working for the police. What did follow was the unleashing of a national wave of repression. Eight of the leaders were convicted, in spite of there being no reliable evidence against them (five of them were not even present at the meeting).

Ultimately four were hanged & one committed suicide. The other three received a pardon 6 years later from the new Governor of Illinois, on the ground that much of the evidence given at the trial was pure fabrication and that not only forced confessions had been extracted from workers by the police but inducements of employment & money had also been used for the same. It is this struggle which May Day commemorates and has been celebrated as International Workers' Day by trade unions and workers throughout the world for more than a century.

History of 8- hour day legislation

In most countries, it wasn't until after the First World War that legislation was passed restricting the working day to 8 hours (though where trade unions were strong enough some companies introduced it on an individual level). Uruguay was the first country to adopt it in 1915 – but only for certain work. Spain was the first (1919) to lay down a universal 8-hour working day.

In setting up the International Labour Office (now known as the International Labour Organisation – ILO) the Treaty of Versailles specifically declared the 8-hour working day to be an international goal. It was then the very first issue discussed by the ILO, leading to the Hours of Work (Industry) Convention, 1919.

Most interestingly, the First World War proved to industrialists what labour researchers & trade unionists had been claiming for years – that longer working hours do not lead to increased productivity. Great Britain & the United States especially, desperate to maximize production of munitions for the war, commissioned a number of scientific studies on the correlation between hours of work and productivity. The results confirmed what similar studies in France & Germany had found – that returns from overtaxed and tired workers rapidly diminished.

The Ford Motor Company famously acted on these findings in 1918, reducing the working day to 8 hours and reportedly doubling the wages of the workers. To the shock of many, production increased, with lesser hours worked, and Ford's profits doubled within 2 years. India's legalised 8 hour working day came with the 1946 Amendment to the Factories Act of 1934 – a result of the Bill introduced by Dr Babasaheb Ambedkar as Labour Member in the Viceroy's Executive Council.

The present ordinances

On April 7, 2020, the Gujarat State Government issued a Notification under the Factories Act, 1948, amending sections 51,54 & 55 of the Act to provide that for the period April 29 to July 19, 2020, workers in Gujarat can be made to work 12 hours in a day, 72 hours in a week with a 30 minutes break after 6 hours. The Factories Act, 1948, otherwise provides that workers can only be made to work 9 hours in a day – but 48 hours in a week, with 1 weekly off – thus coming to 8 hours in a day (sections 51, 52  & 54), with 30 minutes break after 5 hours (section 55).

Most alarmingly the Gujarat Notification also enacts that no overtime will be paid for the extra four hours – these will be paid for at the usual hourly rate. The Notification expressly states that wages for the extra hours will be paid "in proportion to the existing wages (e.g., if wages for eight hours are 80 Rupees, then proportionate wages for twelve hours will be 120 Rupees"). This is directly against section 59 of the (unamended) Act which provides that wages must be paid at double the ordinary rate for hours worked in excess of 48 in a week.

The Rajasthan Government followed with a Notification on April 11, allowing a 12-hour working day for 3 months, but providing for overtime pay for the extra hours worked – "up to a limit of 24 hours a week" – i.e, 12 hours a day for a straight 6 days. The rationale given is to reduce the manpower requirement for manufacturing in those factories exempted from the lockdown.

The Notification actually states that this will allow for "full capacity with around 60-65% of normal manpower". Punjab vide Notification dated April 20 has permitted a 12-hour working day for 3 months, with payment of overtime for the additional 4 hours. Himachal Pradesh has gone on similar lines allowing a 12-hour working day for the period April 21 to July 20, 2020, up to 72 hours in a week, but with overtime payment. However, this has been allowed for "all factories in the State" and not just essential services or those exempted under the Lockdown.

The first question that arises is the source of the power for the passing of such Amendments. Labour being on the Concurrent List under the Constitution of India (List III, Seventh Schedule), both the Centre & State Governments can enact labour legislation, and a Central Act can be amended by a State vis-a-vis that particular State.

Ordinarily, a State Government amendment of a Central Act, if it is in contradiction to (repugnant to) the latter, will only come into effect if given the assent of the President of India (Article 254(2) of the Constitution). However the present amendments have been passed under section 65(2) of the Factories Act,1948, itself (see below). This section empowers State Governments to grant exemption from any or all of the provisions of sections 51, 52, 54 and 56 (48 hours a week; weekly holiday; daily hours & spread-over) "to enable the factory or factories to deal with an exceptional press of work".

Even presuming that catching up with production lost during the Pandemic Lockdown could be classified as "dealing with an exceptional press of work", all of the present Notifications issued by the State Governments have gone beyond the powers conferred under this section. Section 65(3) lays down a number of conditions for the granting of an exemption. Section 65(3)(iii) prohibits the total number of hours of work in any week, including overtime, from exceeding 60. Thus a 12-hour day can only be done thrice in a week. All of the State Notifications provide for up to 72 working hours in a week – i.e, 12 hours a day, 6 days a week. The Gujarat Notification is further in blatant violation of section 65(2) as this section doesn't provide for an exemption from section 59 of the Act –  which provides for double pay for overtime worked.

The Notifications of the four State Governments are thus absolutely illegal, being in breach of the very section they are purported to be passed under, as well in the case of the Gujarat Notification, of the strictly binding Convention of the International Labour Organisation. Moreover, they provide for workers working a 12-hour day, for at least the next 3 months, at a time when the most basic medical and scientific advice to avoid contracting the deadly COVID-19 is to take rest and stay as healthy as possible. This new regime ensures the complete opposite. That too as we move into the monsoon season when disease and viruses are notoriously rampant, and most alarmingly for COVID-19, bronchial & lung issues abound.

(Advocate Jane Cox practises at the Bombay High Court on behalf of workers & Trade Union)