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21st Century Challenges To Labour Laws In India

Background
"Labor dignity must be our national duty; it must be a part of our nature." Workers and labourers are the members of our society who contribute to the implementation of great ideas born from the minds of geniuses. We tend to elevate such geniuses and benefit them with money and status. Behind-the-scenes workers are frequently overlooked.

Their rights, dignity, standard of living, and even a better working environment, all of which are essential for a human being's survival, are frequently ignored. From Independence to the present day, Indian labour laws have focused on workers' rights and benefits while excluding managerial level employees. Despite this, workers are still exploited by their employers after nearly 75 years.

The government, with good intentions, has tried to meet most of the workers' demands over the years by preparing and drafting numerous labour laws, but their minimal implementation remains a source of concern on the ground. The new labour codes attempted to cover most aspects, but challenges remain. Also to be seen is their implementation, as the Centre and the states must collaborate in framing rules in accordance with the codes and implementing them in their true spirit.

New concepts have emerged in this new era, such as the gig economy, platform workers, freelancers, and so on. In such cases, there is no contract with the employer, and the traditional employer-employee relationship is bypassed, making it impossible for workers to seek redress against the employer in the event of a dispute or exploitation.

On the other hand, invisible labour and gender inequality persist, which is a source of concern because it has an impact on the growth of our economy and, more importantly, the lives of women who suffer and are compelled to endure indecent lives. The need of the hour is to protect the rights of inter-state migrant workers affected by the COVID-19 pandemic. Most of them have lost their jobs and homes, and they are being forced to return to their villages because they have no other choice.

In this article, we will discuss briefly the new labour codes and their issues; the challenges faced by unorganised, gig, and platform workers; the prevalent invisible labour and gender inequalities; the conditions of inter-state migrant workers and the impact of COVID-19 on their lives; and, finally, the challenges that the current labour laws will face in the future.

Issue With The New Labour Code In India

(Wage Code For 2019)
The Wage Code, which was passed in 2019, replaced four laws. The following laws were repealed: the Minimum Wage Act of 1948, the Equal Remuneration Act of 1976, the Payment of Wages Act of 1936, and the Payment of Bonus Act of 1965. This Act was enacted to amend and consolidate the laws governing wages, bonuses, and related matters.

Some issues raised by the Wage Code include:- State governments are not permitted to set minimum wages lower than the floor price. The problem is that all state governments set their minimum wages above the legally binding floor price. Rather than establishing a binding floor wage, the government should establish a binding minimum wage rate to eliminate the dual wage rate.

A Gazetted Officer will hear and decide any disputes that arise, according to Section 45 of the code. It is concerning that the officers will hear complicated legal questions without legal knowledge. Section 52 of the Code adds a new provision stating that the power to impose a penalty will be with an officer not lower than the rank of a secretary, rather than a judicial magistrate. This section is in violation of Article 50 of the constitution, which requires the separation of the judiciary and the executive.

Section 56 of the Code further exempts employers from criminal penalties if they can "show that they used due diligence in enforcing the Code and it was the other person who committed the act without his knowledge, permission, or connivance."

The Social Security Code Of 2020

Social security is a human right that addresses the universal desire for protection from particular life dangers and social demands. Effective social security systems provide economic stability and health care, so aiding in the avoidance and elimination of poverty and inequality, as well as the promotion of social inclusion and human dignity.

The Code on Social Security is an Act that changes and consolidates social security legislation and extends social security to all employees and workers in organised, unorganised, and other sectors. It makes an attempt to meet the long-standing needs and demands of three types of workers: unorganised workers, gig workers, and platform workers. It combines nine prior Central Laws.

The following are some of the issues raised by the 2020 Social Security Code:
The code excludes a huge number of workers from the scheme because it only covers employees of enterprises with a minimum number of employees (such as 10 or 20 employees) and gives advantages such as pension and medical insurance benefits to such establishments. The other category of workers, which comprises unorganised sector workers with fewer than ten employees and self-employed workers, is left to be covered by other discretionary programmes as and when the government notifies them.

The code also says that additional benefits, including as provident funds, pension benefits, and medical insurance benefits, are only available to employees who earn more than a particular amount, as determined by the government. This provision effectively hangs the remainder of the staff out to dry.

There has been no improvement in the delivery of social security benefits. The Employees Provident Fund (EPF), Employees Pension Scheme (EPS), and Employees Deposit Linked Insurance (EDLI) Schemes will be overseen by a Central Board of Trustees, while the Employee State Insurance (ESI) Scheme will be administered by an Employees State Insurance Corporation.

Schemes for the unorganised sector will be managed by national and state-level Social Security Boards, and cess-based labour welfare will be administered by cess-based labour welfare boards. The code demands employees and workers to disclose their Aadhaar Card number in order to avail or obtain social security benefits from the career centre, which may be in violation of the Supreme Court's decision in the Puttaswamy-II case.

2020 Code On Occupational Safety, Health And Working Conditions

This legislation was signed by the President in September 2020, and it replaced 13 outdated central labour regulations. This code was created to combine and revise the laws governing occupational safety, health, and working conditions for those employed in a variety of settings.

The following are the two most critical issues that must be addressed in this Code:
It only addresses the working circumstances of select specialists, such as stating that working journalists cannot work more than 144 hours in four weeks and mentioning that sales promotion staff receive supplementary leave. This appears to be discriminating toward other employees.
This code does not apply to charitable or non-profit organisations.

2020 Code On Industrial Relations

"Industrial Relations deal with either the connection between the state and employers and workers groups or the relationship between occupational organisations themselves," according to the International Labour Organization (ILO). The Code on Industrial Relations is an Act to consolidate and revise the laws relating to Trade Unions, working conditions in an industrial establishment or undertaking, the investigation and resolution of industrial disputes, and matters connected with or incidental thereto.

The following are some of the concerns addressed by the Industrial Relations Code:
  1. Workers' capacity to strike and employers' ability to lock out workers will be harmed since the Code requires all persons working in an establishment to give 14 days' notice before a strike or lock-out that is valid for a maximum of 60 days. Strikes and lockouts are also prohibited in two situations: during and up to seven days after a conciliation proceeding, and during and up to sixty days following proceedings before a tribunal.
     
  2. The Code expressly states that honours awarded by an Industrial Tribunal are enforceable after 30 days. In any event, the public authority may grant the honour requirement under particular conditions affecting the national economy or social fairness.

Unorganised Workers, Gig Workers And Platform Workers

"Unorganized workers, gig workers, and platform workers are peas in a pod," not literally, but their difficulties are very similar. Only approximately 8% of total employment in India is in the organised sector, while more than 90% of employees are employed in the unorganised sector, which is mostly outside the range of any social security benefits such as health benefit schemes, pension schemes, and provident fund benefits, and also faces other hurdles such as restricted access to institutions and other support facilities.

Because of job uncertainty, they are reliant on a variety of jobs. Such employment is influenced by a variety of factors such as climate change, location, and so on, forcing people to switch jobs every 3-6 months. Article 23 of the Indian Constitution forbids employing workers for pay less than the statutory minimum wage, as this results in compelled labour.

The Supreme Court supported the right of a poor worker to directly approach the Supreme Court under Article 32 of the Indian Constitution for the enforcement of rights created under various labour laws in the case Peoples' Union for Democratic Rights v. Union of India. The Supreme Court expanded the interpretation of Article 21 of the Indian Constitution (Right to Life) to include the right to a livelihood as well as the "right to live with fundamental human dignity."

Despite certain provisions, workers are not paid the minimum wage required by law, making their lives miserable and insecure. "Gig workers" and "platform workers" are concepts that have emerged in the last few decades. To put it bluntly, the big businesses devised a strategy to circumvent worldwide labour regulations and limit their accountability for such workers' rights.

The gig economy hired using a carrot-and-stick approach 13, which means that the economy offers people stuff in order to convince them to do something and then punishes them if they reject. Similarly, informal sector workers were enticed with bigger incentives (carrot-and-stick technique), raising their standard of living and leading them to take out loans. Finally, when firms reduce incentives, it makes workers dependent, which breeds resentment among such workers.

There appears to be an overlap in the definitions of all three in the new codes, which may hinder future implementation of the codes. A driver for Uber, for example, operating without an employment letter, working hours that are not controlled, and so on, suggests that there is no "conventional employer-employee connection," therefore falling within the description of the gig worker.

However, they are hired and work with Uber through the "Uber app," which is an online platform, making him a platform worker as well. As a result, it's unclear how the exact methods for each of them would work.

The Code on Social Security 2020 does not precisely identify such workers' benefits and entitlements. It lacks a consistent registration process for all employees as well as a compliance platform. The Standing Committee proposed that a minimum entitlement' be supplied across multiple states for construction workers and unorganised labourers in order to enable portability14, but this recommendation was not implemented.

We should consider implementing what French entrepreneur Nicolas Colin refers to as a "new social contract," which would protect workers from the new risks of the day, such as the inability to rent housing in cities when your income is derived from gig platforms; and access to loans when and where you need them, not necessarily to buy a car but rather to learn new skills when it's time to move on.

The Issue Of Gender Inequality And Invisible Labour

Unpaid work is commonly referred to as Invisible labour. Jobs such as childcare, housework, and caring for the elderly, to name a few, are examples of unpaid employment that constitute invisible labour. Women account for 90 percent of this unseen labour. Invisible labour is defined as work that goes unobserved and unrecognised, and so is unregulated.

With the implementation of the four new codes, none of the new codes address the issue of invisible labour. Invisible labour has the most arduous job profile, with no weekends off, no working hours, no vacations, no recognition, onerous chores, and are, of course, unpaid.

When looking at the facts and data, it's worth noting that the National Statistical Office (NSO), which is part of India's Ministry of Statistics and Programme Implementation, reported in its inaugural Time Use Survey (TUS) from January to December 2019 that 38.2 percent of people aged six and up were working or involved in related activities. 16 According to the research, 57.3 percent of males in the country were engaged in employment and related activities, while 18.4 percent of girls were.

Overall, 53.2 percent of survey participants provided unpaid domestic services to household members. Females made up 81.2 percent of those in the group, while males made up 26.1 percent. Females engaging in unpaid domestic activities for household members in rural areas were 82.1 percent higher than in cities, at 79.2 percent. The fight that invisible labour has already had to endure has been enormous.

With the virus affecting the entire world, the fight multiplied threefold. People spent time with their families and enjoyed the leisure they sought during the first few months when schools and offices were closed. This relaxation, however, was restricted to those who were not unpaid. With the pandemic came more housework, no personal time, no resting hours, and no days off. The load on invisible labour has always been huge, but what adds to their weight is the fact that they are unrecognised. It's like a gruelling race with no end in sight. Migrant Workers and the COVID-19 Pandemic's Impact on Their Lives

Negative Impact Of Pandemic On Migrant Workers

In the International Labour Organization (ILO) instruments, a "migrant worker" is defined as a person who migrates from one country to another (or has travelled from one country to another) with the intention of being employed other than on his own account, and includes anyone who is routinely allowed as a migrant seeking employment. Case Study: The Negative Effects of COVID-19 on Migrant Laborers. The Covid-19 Pandemic has taken serious consequences.

According to the World Economic Situation and Prospects as of mid-2021, the global crisis has "obviously exacerbated poverty and within-country inequality," and it is anticipated to "leave long-lasting scars on labour markets while reversing progress on poverty and income disparity in many nations."

Two UN Special Rapporteurs issued a warning in June 2020 about the "well-being of more than 100 million internal migrant workers facing hardship as a result of COVID-19 regulations forcing them to trek long distances home, many on foot." When the first 21-day lockdown was declared in the year 2020, all schools, offices, businesses, construction sites, and so on were expected to remain closed. Migrant labourers who were away from their homes and families and relied on daily salaries had no choice but to return home when their source of money dried up.

They couldn't afford to live elsewhere. Due to the closure of transit facilities, these workers were also compelled to trek back to their states and homes. The condition of these workers, who were going back home with their families on highways barefoot and with little or no food, was just awful. Many workers were killed in the struggle to get to their destinations. Some employees migrate from one state to another, in addition to workers who migrate from one country to another.

An inter-state migrant worker is defined as a person who: I has been recruited by an employer or contractor for work in another state, and (ii) draws wages within the maximum amount notified by the central government, according to the Code on Occupational Safety, Health, and Working Conditions, 2020. It also adds that any person who moves to another state on his own and finds work there is also considered an inter-state migrant worker.

Only those persons earning a maximum of Rs 18,000 per month, or such a larger sum as the central government may notify, will be deemed inter-state migrants, according to the legislation. The draught Migrant Labour Policy from the Niti Aayog is a clear statement of purpose to better recognise and support migrants' contributions to the economy. It recommends a new National Migration Policy as well as the establishment of a specific unit inside the Labor Ministry to collaborate with other ministries.

The new organisation would offer much-needed convergence across line departments and would be a big step toward a universal understanding of migration's causes and impacts, as well as the remedies that are required. It goes over the Equal Remuneration Act, the Bonded Labour Act, the Building and Other Construction Workers Act, and the Interstate Migrant Workmen Act, among other things. After witnessing the migrant workers' plight during the first wave of coronavirus, it became clear that a policy that protects and assures migrant workers was urgently needed.

Concluding Remarks
According to the Periodic Labour Force Survey Report (2018-19), 70% of regular wage or salaried employees in the non-agricultural sector have no formal contract, and 52% have no social security benefit.

The existing labour laws framework, according to the NITI Aayog, does not foster the expansion of labor-intensive sectors as a matter of scheme or structure. These laws must be revised in such a way that they provide an incentive for increased labour absorption. The flaws are addressed in four new labour codes that have yet to be adopted.

The guidelines have been produced by the Ministry of Labour, according to the Central Government's announcement, although several states have yet to develop and frame the rules. The implementation of the regulations is also being slowed by political factors in India, such as the upcoming election in Uttar Pradesh (expected in February 2022). It feels like we've been locked in an endless loop for a couple of decades, asking for the same basic recognition of our humanity.

The Codes' early and efficient implementation would provide a lifeline to the COVID-19-affected workers. The majority of the Codes' clauses deal with prior requests and inconsistencies, functioning as redress for past wrongdoings. The Code should have taken a future approach to protecting employees and addressing conflicts linked to automation and robotics, AI-powered workforces, and bioengineering, all of which have the potential to impede workers' rights in the next decades.

References:
  1. Code on Social Security, 2020, Preamble
  2. Code of Occupational Safety, Health and Working Conditions 2020, Preamble
  3. Code on Industrial Relations 2020, Preamble
  4. Code on Industrial Relations 2020, s 6
  5. The Code on Social Security 2020; PRS
  6. Niti Aayog, Employment (Vision 2020)
  7. Minimum Wages Act 1948, s 2(h)

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