There are forewarnings of a deep economic crisis in the wake of the severe second wave of the Covid-19 pandemic. For what they are worth, the protective provisions of new labour codes fashioned by the present government must kick into action. If not, the pre-existing social security assurances for migrant workers must be immediately implemented, write ANUSHA R and TANVI SINGH.
THE migrant crisis haunts India again, along with the sight of thousands of migrants leaving Maharashtra and other states to head home. While the capitalistic legislative intent of the new labour codes is much-talked-about, the immediate administrative focus right now needs to be on extending at least some of the fringe benefits of these codes.
Discrimination through SS Code
Under the new labour regime, workers are ensured social security through the Social Security Code, 2020 (SS Code). This code has created two distinct categories– first, employees and second, unorganised workers and construction workers. The social security of unorganised workers is now entirely dependent on schemes introduced by the government.
This a drastic shift from the regime under earlier legislation such as the Plantations Labour Act 1952, Building and Other Construction Workers Act, 1996, the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979) where this was a responsibility of the principal employer.
The legislative intent is very clear: the dignity of people drawing a salary of a particular limit is a right guaranteed by the principal employer, whereas, for the others, it is at the mercy of the government.
Further, the principal employer would stand divested of its social security obligations towards workers employed in the lower rungs of the supply chain. When social security is extended through schemes, the benefits become subject to fluctuating budgetary allocations.
Registration During the Transition
Labour is a concurrent subject under the Constitution, i.e, both the Centre and the states would have to notify rules under the new codes to bring them into force in their respective jurisdictions.
However, due to Assembly elections, the rise in Novel Coronavirus infections, and other administrative delays, the rules are unlikely to be notified anytime soon. It is pertinent that the government ensures that ad hoc mechanisms are in place so that the rights of workers are not undermined due to legislative delays.
The first step in ensuring social security benefits (however unjustifiably inadequate they might be) to any targeted group is identifying them and enabling their registration. The Inter-State Migrant Workmen Act (Regulations of Employment and Conditions of Service) Act, 1979 (ISMW) did not provide for labour registrations but the registration of principal employer and contractor.
However, the ISMW Act is now replaced by the Occupational Safety, Health and Working Conditions Code, 2020 (OSH Code), which finally provides for direct labour registrations.
Section 21(1) of the OSH Code says that the Central Government and the State Government shall “collect, compile and analyse occupational safety and health statistics in such form and manner as may be prescribed”. The proviso says that an Inter-State migrant worker “may”register himself (or herself) as an inter-state migrant worker. However, this provision is a castle in the air until the requisite portal is made available/updated.
Under the SS Code, a person who wishes to avail of any social security benefit must establish their identity. Section 142, which deals with the procedure to establish identity, was notified on 5 May by the Ministry of Labour and Employment. As the codes aim to unify registration, any worker registering under the OSH Code will have to also prove his/her identity by submitting their Aadhaar number, to access social security benefits. The data acquired through this step will be compiled to create a central database.
One such database developed by the National Informatics Centre is called the National Database for Unorganised Workers (NDUW), which is at an advanced stage of development. Logically, until the new/updated portal for direct registration is made available, the existing portals should remain operational and legal.
An efficient transition to the new labour codes would ideally ensure that any right identified and provided in them should be available immediately until the new infrastructure gets developed.
The codes identify the need for the self-registration of workers. Therefore, to ensure there is no legislative vacuum, direct registration of migrant workers should be immediately allowed through the existing portals.
These authors were able to identify two online portals for registrations under the ISMW Act,
Shram Suvidha (Ministry of Labour and Employment, Government of India)
E-Shram Seva (Labour and Employment Department, Government of Gujarat)
Under the Government of India portal, only Form XIII is available to submit details regarding the establishment, principal employer and the contractor. Similarly, theState government portal directs any new applicant under the Act to the investor facilitation portal, implying that it, too, does not provide for direct registration of migrant workers.
The government should immediately allow the self-registration of migrant workers on these portals so that they can claim the rights guaranteed to them.
Last year, in a landmark case, the Supreme Court directed all states and Union Territories to identify and maintain a record of all migrant workers who had arrived in villages, towns and cities across states. The court directed the state to simplify and speed up the registration of migrant workers and to set up help desks wherever they are stranded. Our field experience in Gujarat, Chhattisgarh, and Jharkhand establishes that state authorities made no effort to ensure registrations in most districts.
Disproportionate bargaining power
The ISMW Act enjoins the principal employer and the contractor to fulfil specific duties and obligations under section 51. Workers are entitled to displacement allowance in addition to their wages and provision for residential accommodation, medical facilities, washing facilities, lavatories, urinals, and drinking water facilities.
The applicability of the ISMW Act [under section 1(4)] is restricted only to registered establishments and contractors that engage five or more migrant workers.
Further, convincing establishments and contractors to extend benefits to workers (by making the ISMW Act applicable to them) is very difficult, not just for workers but civil society organisations that facilitate labour registrations too. The reason is that establishments possess disproportionate bargaining power and do not harbour the fear of sanction. Hence, direct registrations should be enabled and encouraged by the state other than mandating registration of establishments and contractors that employ inter-state migrant workers.
Jharkhand allows direct registration of migrant workers on its online portal, Shramadhan. Our volunteers could get many workers registered under the Act, and as a result, they could access entitlements such as accident and death insurance.
A two-pronged measure ought to be carried out by the government to protect the rights of migrant workers.
First, it must enable self-registration for migrant workers in the existing portals. Direct registrations will help the government keep a record of establishments that employ migrant workers. This will allow the government to impose penalties on establishments that do not comply with the rules.
Second, it must strictly impose penalties on contractors and establishments that employ migrant workers but have not registered under the ISMW Act.
The penalty for contravening the Act is imprisonment of up to one year or a fine or both (section 25). The government must start punishing the violators to ensure maximum registration.
Strategy for self-registration
A genuine concern regarding the extension of the registration facility to the workers is their access to the portals. This can be ensured by conducting registration drives at the district level in collaboration with the Legal Service Authority (LSA).
Workers in the unorganised sector belong to the deprived and vulnerable sections of society. They cannot mobilise the system alone. Doing this is the job of the LSAs, who must support them and bring justice to their doorstep. The NALSA Scheme (section 5(4)of theLegal Services to the Workers in the Unorganised Sector Scheme, 2015) entitles them to such support. To identify and register unorganised workers is another duty under section 4(3) of the 2015 NALSA Scheme.
LSAs are legally obliged to facilitate the constitutional rights of unorganised sector workers: right to work, just and humane conditions, a living wage, maternity relief, and decent standard of living. Further, LSAs must be watchdogs against administrative inaction.
In coordination with the panchayats, the Labour Department and the DLSA volunteers can register all the returning labourers and visit establishments that employ migrants to register those migrants who have not returned.
As section 142 of the SS Code has been notified, these registration drives can also facilitate Aadhaar-related services (biometric mismatches, spelling mistakes, change of address, etc) that have now become mandatory for registration, albeit tragically.
Apart from this, as perSection 63 of the OSH Code, the appropriate government should also set up a toll-free helpline for the inter-state migrant workers to facilitate the registration process.