Shortfalls of the Labour Codes, 2019-20 (Part I)

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SHORTFALLS OF THE LABOUR CODES, 2019-20 (PART I)

Pratyush Jena, Subhajit Lodh Chowdhury; 2nd Year, B.A. LL.B(Hons.), West Bengal National University of Juridical Sciences Kolkata

Editorial Note: This is the first in a two-part series highlighting the shortfalls of the recently passed Labour Codes in India. In this part, the author analyses the Industrial Relations Code, 2020 and the Occupational Safety, Health and Working Conditions Code, 2019, and the various issues relating to both.

Introduction:

Recently, the Parliament passed codes on labour law, amidst harsh criticism and vociferous protests from opposition parties and various trade unions. The three codes, Industrial Relations Code, 2020[1], the Occupational Safety, Health and Working Conditions Code, 2020[2] and the Social Security Code, 2020[3] along with the Code on Wages, 2019[4] which was passed last year, replace and amalgamate several diverse laws on the subject and are hailed as much needed reform and rationalization of labour laws in India. The main objective of these reforms, as contended by labour law activists and trade unions, is to dismantle previously granted labour rights and protections in order to make labour market more efficient and flexible for employers. The lawmakers have refuted these claims by arguing that the labour codes will energize the industry and spur economic activity.They also contend that the earlier labour laws were remnants of an archaic pastand adversely affected the economic interests of both the employers and employee and therefore, are best dismantled.[5]

Codes and the Areas of Concern:

 The Industrial Relations Code, 2020 (‘IRC, 2020’) 

The IRC, 2020 was brought in place by the Central Government as a means of amalgamating the provisions of three Central legislations i.e. The Trade Unions Act, 1926, The Industrial Disputes Act, 1947 and The Industrial Employment (Standing Orders) Act 1946that presently govern industrial relations in the country. The Code is perceived to give a much-needed leeway and flexibility to businesses in conducting their operations through its provisions.[6] However, in doing so, speculations for eroding labour protection has also been making rounds.[7]We shall study the most concerning of these provisions and their subsequent implication on labour protection in India. 

Exempting Power of the Government: 

Section 96 of the IRC, 2020 empowers the appropriate Government to exempt, conditionally or unconditionally, an industry or a class of industry from the provisions of the code in pursuit of public interest.[8] Similar provisions of granting powers of exemption upon the Government are present in other codes as well.[9] 

The cause of concern arises when one combines the wide discretionary power that the Code grants upon the State and the Central Government to define what a wide and vague term like ‘public interest’ amounts to. The setting up of factories and industries would naturally give rise to employment opportunities and the same could fall under the definition of public interest as defined in the code and wide-ranging exemptions related to work hours, safety standards, retrenchment process etc. Could very well be granted to the factories or industries in question.[10] Further, in the absence of any check from the Legislature, the power of exemption solely lying at the hands of the Government can lead to arbitrary decision-making.

Such provision only serves to strip the workers of the adequate coverage of working in such exempted establishment, making them vulnerable to exploitation.

Curbing the power of calling Strikes:

Section 62 of IRC, 2020 requires that all the employees working in an industrial establishment, before calling a strike, must give a prior notice of 14 days[11] and this notice shall be valid for a period of 60 days.[12] While similar provisions also existed under the Industrial Disputes Act, 1947, the same was only limited to public utility service like railways, airlines and establishments providing water, electricity etc.[13]However, imposing such limitation on the aforementioned industries was justified as they impacted the lives of large number of people.[14]The reason of extending such strict provisions to all industrial establishment is unreasonable and can only be seen as a step to curb workers’ right to strike.

Further, the provision prohibits calling for a strike during and 7 days after a conciliation proceeding,[15] during and 60 days after the conclusion of a proceeding before the tribunal[16] and similar provision operates for arbitration proceedings too.[17]Similar provisions exist on the part of the employers with respect to lock-outs as well.[18] The section further requires the employer to share such notice of strike or lock-out to the appropriate government and the conciliation officer within a period of five days.[19] Any strike or lock-out in contravention to the provisions of Section 62 of IRC a would be illegal.[20]

The aforementioned provisions make it extremely difficult to successfully call a strike and communicate the demands of the vulnerable workforce. For instance, a strike or a lock-out cannot be done during  conciliation proceedings and upon the failure of such proceedings, if either party makes an application to the Tribunal then the prohibition on such strikes or lock-outs are further extended beyond the 60-day validity of the notice period thereby rendering the production of such notice ineffective in the first place.[21] 

Although prima facie reading of the provisions would convey that the IRC, 2020 rightly places similar restrictions on the employers too from announcing a lock-out, recent trends show that more man-days are lost due to lockouts than strikes. As perthe Labour Bureau, over the period of 2005-2014 the frequency and man-days lost due to strikes have continuously fallen and a comparatively increased frequency and share of lockouts towards lost productivity has been observed.[22] Therefore, imposition of stringent conditions on strikes with falling trends in their frequency along with declining share in work disruption fails to protect the workers’ interest when they want to call a strike founded on legitimate grounds and demands. Such stringent provisions are comparatively more appropriate on lockouts than strikes in the present scenario.

Other concerning provisions include, widening the definition of strikes so that it now include concerted casual leave on a given day by fifty per-cent or more workers employed in an industry.[23]This, along with provisions of enhancing fines on account of ‘illegal strikes’[24] further curbs on the workers’ power to go on strikes that may arise out of genuine concerns. Such practice of imposing penalties for calling strikes based on justified grounds has also been deprecated by the ILO.[25] 

The Occupational Safety, Health and Working Conditions Code, 2019 (‘OSHWCC, 2019’) 

The OSHWCC, 2019seeks to regulate health and safety conditions of workers in establishments with 10 or more workers, and in all mines and docks. It replaces 13 labour laws pertaining to safety, health and working conditions. Like the IRC, 2020, there are some key issues with this law as well. 

Ineffective provisions for the Safety Committee: 

The code also has provisions for a safety committee, which may be set up by the appropriate government. It will be composed of representatives of the employees and workers and deal with safety and health issues. However, the provisions of safety committee will only be applicable to establishments hiring more than 250 employees. The code does not consider that the majority of the unorganized workers work in small establishments and cliques, which means that they will be outside the purview of the safety committees.

It is a well-established fact that industrial workplaces are very hostile and are prone to accidents, killing more than 40,000 workers every year.[26] However, the code fails to provide appropriate measures to fix the said problem. First of all in cases of death due to workplace accidents, the monetary liability of the employer is limited by the code to a meagre rupees one lakh. Further, the code fails to provide apposite criminal liability on employers who blatantly disdain safety norms and regulations, which inevitably causes death and injury to the workers.Such shortfalls in the code will significantly hamper the safety prospect of the workers in the already hostile workplace. Therefore, the code should be amended to include stricter norms, which will increase the safety quotient of the workplace. Provisions, which will increase the liability of the employers, should be included so that they operate with caution and care in order to maintain proper safety standards in their organisation. Furthermore, the lawmakers should undertake required actions so that the compliance of the safety norms and provisions is properly exerted by the employers. Such changes will go a long way in dealing with the safety gremlins faced by the workers in the workplace.[27]. 

No provisions for the Intrastate Migrants:

The disastrous consequences of the COVID-19 pandemic forced the government to inculcate provisions dealing with the inter-state migrants in the Code. The new code mandates that the employers must provide suitable conditions for work, medical facilities, housing, displacement and journey allowance and other essential benefits to inter-state migrant workers. However, there has been no mention of intra-state migrants, which constitute nearly 80% of the country’s migrants.[28]The main reason behind the incorporation of provisions related to the migrants was to ensure that they do not face any major predicaments during adverse situations. However, if the intra-state migrants are not included in the scheme of things, then the whole purpose of the code will be defeated, since they will not have an effect on the major part of their target group. Therefore, appropriate provisions should be inculcated in the code so that the intra-state migrants are also taken care of. 


[1]The Industrial Relations Code, 2020.

[2] The Occupational Safety, Health and Working Conditions Code, 2020.

[3] The Social Security Code, 2020.

[4]The Code onWages, 2019.

[5]The wire, Here’s why workers, opposition parties are protesting against the 3 new labour laws, 23rd September, 2020, available at https://thewire.in/labour/labour-code-explainer-unions-strike-workers-opposition-parties(Last visited on December 14, 2020).

[6] Aditya Gaggar, Decoding the Industrial Relations Code, 2020, October 25, 2020, available at: https://www.scconline.com/blog/post/2020/10/25/decoding-the-industrial-relations-code-2020/(Last visited on December 14, 2020).

[7]Economic and Political Weekly, New Labour Codes and Their Loopholes, October 3, 2020, Vol. 55(40), available at: https://www.epw.in/journal/2020/40/editorials/new-labour-codes-and-their-loopholes.html(Last visited on December 14, 2020).

[8]The Industrial Relations Code, 2020, §96(2).

[9]The Occupational Safety, Health and Working Conditions Code, 2020, §127.

[10] PRS Legislative Research, Issues for Consideration: Labour Codes – Three Bills on Occupational Safety and Health; Industrial Relations; and Social Security, 2020, September 21, 2020, available at: https://www.prsindia.org/billtrack/occupational-safety-health-and-working-conditions-code-2020(Last visited on December 14, 2020).

[11]The Industrial Relations Code, 2020, §62(1)(b).

[12]Id, §62(1)(a).

[13]PRS Legislative Research, Issues for Consideration: Labour Codes – Three Bills on Occupational Safety and Health; Industrial Relations; and Social Security, 2020, September 21, 2020, available at:https://www.prsindia.org/billtrack/occupational-safety-health-and-working-conditions-code-2020(Last visited on December 14, 2020).

[14]PRS Legislative Research, Report of the National Commission on Labour, Ministry of Labour and Employment, 2002,also available at:http://www.prsindia.org/uploads/media/1237548159/NLCII-report.pdf.(Last visited on December 14, 2020).

[15]Id,§62(1)(d).

[16]Id, §62(1)(e).

[17]Id, §62(1)(f).

[18]Id, §62(2).

[19]Id, §62(6).

[20]Id, §63.

[21]PRS Legislative Research, Issues for Consideration: Labour Codes – Three Bills on Occupational Safety and Health; Industrial Relations; and Social Security, 2020, September 21, 2020, available at:https://www.prsindia.org/billtrack/occupational-safety-health-and-working-conditions-code-2020(Last visited on December 14, 2020).

[22]Ministry of Labour & Employment- Labour Bureau,Statisticson Industrial Disputes, Closures, Retrenchments and Lay-offs In India During The Year, 2014, Pg. 22, 24,January 2017, available at: http://labourbureaunew.gov.in/UserContent/ID_Review_2014.pdf?pr_id=FfR6mn4XUVE%3D(Last visited on December 14, 2020).

[23]The Industrial Relations Code, 2020, §2(zk).

[24]Id,§86(13), §86(15), §86(16).

[25]Ramapriya Gopalakrishnan, The Industrial Relations Code, 2020: Implications for Workers' Rights, October 24, 2020, available at: https://www.livelaw.in/columns/the-industrial-relations-code-2020-implications-for-workers-rights-164921(Last visited on December 14, 2020).

[26] Ravi Srivastava, There is much in the labor codes that needs to be discussed and debated, October 3, 2020, available at:https://indianexpress.com/article/opinion/columns/economic-crisis-migrant-labour-bills-covid-19-change-6671565/(Last visited on December 14, 2020).

[27]Id

[28]Anya Ram, The Code on Occupation Safety, Health and Working Condition, July 31, 2019, available at https://www.prsindia.org/theprsblog/explainer-code-occupation-safety-health-and-working-condition(Last visited on December 14, 2020).


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