New Code on Work Conditions: Should a Workweek have Four Days or Six?

The new code on working conditions conflicts with its own Rules and both are out of sync with ground realities. The code and Rules give employers the option to have more days off every week in exchange for longer working hours on other days. But who will account for how brazenly rules on working hours and days of work are flaunted in India? AANCHAL SINGH AND GAURAVJEET NARWAN explore the ideal against the possible reality. 

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THE Occupational Safety, Health, and Working Conditions Code, 2020 (OSHW Code) was introduced to consolidate and amend thirteen laws that regulated working conditions in establishments so far.

The Ministry of Labour and Employment has notified draft rules for the OSHW Code, 2020 to elaborate on working hours, annual leaves, and wages. In this context, recently, the ministry also proposed a four-day workweek which would involve twelve hours a day of work in which the employees will get three paid days off every week.

Section 25(1)(a) fixes the number of mandatory working hours per day at eight hours. However, this section read with Rule 28 of the draft rules gives room to employers to expand these working hours to twelve. The maximum hours of work per week have been fixed at forty-eight and this seems to be sanctified by the new Code. Hence, if an employer wishes to keep six working days a week, it will mean eight work-hours a day, and if the employer chooses four working days a week, it will consist of twelve work hours a day.

EMPLOYER HAS THE CHOICE

It is pertinent that the option to pick the number of working days in a week is with the employer. An employer can choose to stick with the traditional six-day workweek format.

However, when the Code and the Rule are read together, the provisions related to working hours seem ambiguous and unclear. The language used in section 25(1)(a) of the Code specifically says no person shall be required or allowed to work in any establishment or class of establishment "for more than eight hours in a day", and…

The term "shall be required" along with "and" after the makes the eight-hour workday rule mandatory. Yet the rules give employers the freedom to extend the hours to twelve. As there is no other guidance or explanation for this ambiguity, the Code and the Supplementary Rules need to be read harmoniously, to discern how the rules will be put into effect by employers who wish to reduce the number of working days to four from six.

This change has been promoted as the need of the hour and to stay in tune with lifestyle changes among the working class. For, the shorter workweek will also entail two extra days of leave as opposed to one day in the prevailing system.

The ground reality is that the new labour laws are not exclusively for so-called world-renowned or state-of-the-art establishments that may have multiple tiers of grievance redressal mechanisms. They also apply to those workers and establishments who are in the massive unorganised sector of the economy.

MOST ESTABLISHMENTS FLOUTS RULES

Besides, a huge percentage of India's labour force works in establishments that may seem to be organised on paper, but are far from organised in practice. Moreover, the work culture in the country—especially in low to mid-size establishments—generally disregards rules for overtime wages.

In such establishments, the new rules may see labourers made to work twelve hours a day for more than four days a week and yet be denied adequate compensation. The strict condition that forty-eight hours a week of work cannot be exceeded may be overstepped in practice.

Assuming the majority of the workforce does not object to the established norms of their sector or industry or the wishes of their employers, then those who demand their rights to a shorter workweek instead of long hours of work might fear losing their livelihood. On the one hand, the new laws provide for "fixed-term employment" in which an employer can hire and fire on its whims and fancies. On the other hand, the rules assume that the workforce is empowered enough to stand against exploitative employers.

The proposed change assumes a highly-educated and well-informed workforce that has understood its rights and will grasp the implications of the four-working-days-a-week system; that it will feel able to demand overtime wages or three days of paid leave.

It also assumes that the current system was not already exploiting workers and making them work for six, even seven, days a week and not exceeding the eight-hour workday rule.

WILL WORKING CONDITIONS IMPROVE?

The objective of the new Code is to effectively focus on the working conditions and health of employees. Health also includes mental health along with physical well-being. Prolonged working hours for four days, without any guarantee of three days leave, will have a severe impact on the health of all workers in those conditions.

It will be detrimental to the employees who will be compelled to work more for lower pay unless it is somehow guaranteed that they would not be exploited.

If an employer wishes to follow the new system of three paid leaves for employees who complete forty-eight hours of work in four days, that would mean employees get three leave days to rest or work for overtime wages. Employees who work more than a normal working day or on a rest day, are entitled to overtime, which must be at least twice the normal wage rate.

As a result, the productivity of employees might decline, for they would be tempted to engage in prolonged working hours. This would affect the work output of the establishments as well.

Besides, an employer who follows the rules would have to provide additional facilities such as transport to and from the workplace, especially for women employees, extended creche facilities, and so on. These would entail additional costs to employers.

When seen in totality, the proposed change seems to be a more lucrative option for employees as well as employers, but the proviso is that one should be able to guarantee that the workforce will not be exploited and the output of the workforce—and their health—is not compromised in the process.

(Aanchal Singh and Gauravjeet Narwan are both practicing Advocates based in New Delhi. The views expressed are personal.)