What this means is, that an already harrowed labour class, the migrant labourers who have borne the maximum brunt of this pandemic due to non-payment of wages, absence of food security and any other social security (all made worse by the sudden lockdown) will suffer even more hereon. Not only will they be expected to work for longer hours but the hours that employers can demand in ‘over time’ has also been extended.
By Sanchita Kadam
There have been some tears some shed, and some stories told of a section of India that Indians, state and society, had invisibilised these workers. As thousands of migrant workers walked hundreds of kilometres back to their homes, many home states have repealed laws that ensure protection from exploitation at work. In 2020, these moves are likely to worsen their sufferings and add to their woes.
The Ordinance issued by Uttar Pradesh effectively dilutes several of the labour laws existing in the state. The Uttar Pradesh Temporary Exemption from Certain Labour Laws Ordinance, 2020 has been sent to the Centre for its approval since labour is a concurrent subject under the Indian Constitution. It should be a test for both the Modi 2.0 government as also the Adityanath government that faces an election in early 2022. The ease with which these steps have been taken however suggest the absence of this issue electorally.
What has the UP government done? It has brought in, what Central Trade Unions have dubbed, a “draconian” ordinance titled “Uttar Pradesh Temporary Exemption for certain labour laws ordinance 2020” under the guise of facilitating economic activities. In one stroke 38 laws have been made defunct for 1000 days (almost three years)! Of the remaining laws in force, only section 5 of Payment of Wages Act 1934, Construction Workers Act 1996, Compensation Act 1993 and Bonded Labour Act 1976 remain in force. The laws rendered defunct include the Trade Union Act, the Industrial Disputes Act, the Act on Occupational Safety and Health, the Contract Labour Act, the Interstate Migrant Labour Act, the Equal Remuneration Act, the Maternity Benefit Act etc.
Other states too, including Madhya Pradesh, Gujarat, Haryana, Himachal Pradesh, Punjab and Uttarakhand have also suspended some of their labour laws for a certain time period (Punjab is ruled by the Indian National Congress).
What has the BJP-led MP government done?
The Madhya Pradesh(MP) Government has brought in drastic changes in the Factories Act, the Contract Act and the Industrial Dispute Act. Due to these amendments, employers will be empowered to hire and fire labour at their will; the right to dispute raising and grievance redressal will be put on hold; the contractors will not be required to obtain license for supplying labour up to 49 persons and hence will function without any regulation and control; the inspection system will be virtually withdrawn and the entire enforcement machinery has been put under freeze –making whatever law is in vogue and the basic rights of the workers on wages, compensation, safety etc absolutely meaningless. Not only that, employers have ben also exempted from payment of Rs 80/- per labourer to the Madhya Pradesh Labour Welfare Board. The Shop and Establishment Act has been amended to let the shops function from 6 am to 12 at night; this means the go ahead for an 18 hour work day been given a go ahead by the MP government.
What this means is, that an already harrowed labour class, the migrant labourers who have borne the maximum brunt of this pandemic due to non-payment of wages, absence of food security and any other social security (all made worse by the sudden lockdown) will suffer even more hereon. Not only will they be expected to work for longer hours but the hours that employers can demand in ‘over time’ has also been extended. Some states have decreased the interval of rest and some have increased the period of continuous working, without any break. These amendments and ordinances reek of blatant violation of labour rights and abject disregard to human rights. The changes also mean health risks since no compulsory rest every six hours can affect strength and overall immunity to diease.
Which are the labour laws have been diluted? Which states are diluting laws? What does it mean for these labourers?
Let’s have a look:
The laws that will remain suspended for next 3 years, once this ordinance is in operation in the state:
Apprentices Act, 1961 – The main purpose of the Act is to provide practical training to technically qualified persons in various trades. The objective is promotion of new skilled manpower. The law aims to regulate and exercise control of training of apprentices. The employer is required to train the apprentice and pay minimum stipend and the apprentice is entitled to health, safety and welfare benefits as per Factories Act, Mines Act and so on.
Beedi and Cigar Workers (Conditions of Employment) Act 1966 – The objective of this law is to provide for the welfare of the workers in beedi and cigar establishments and to regulate the conditions of their work. It compels (on paper at least) factories/establishments to maintain cleanliness, ensure ventilation, prevent overcrowding, provide drinking water, urinals and other provisions that ensure both the good health and overall safety of the workers. Further it also limits working hours to up to 9 hours a day or up to 48 hrs a week provided the worker is allowed to take break after 5 hours of work. It also entitles the workers to get paid for overtime work.
Cine Workers and Cinema Theatre Workers Act 1981– This law protects the interests of cine workers. Cine worker is on who is employed in connection with the production of a feature film to work as an artiste (including actor, musician or dancer) or to do any work, skilled, unskilled, manual, supervisory, technical, artistic or otherwise and whose lump sum salary does not exceed Rs.15,000 per month. It forbids the employment of cine worker without an agreement in writing. The law also deals with disputes arising between cine workers and producers.
Contract Labour Act 1970 – This Act regulates contract labour and also lets the government decide in which industries such contract labour may be prohibited. For instance, If the work for which contract labour is employed is incidental to and closely connected with the main activity of the industry and is of a perennial and permanent nature, the abolition of contract labour should be justified. The law also provides for granting licenses to contractors for employing contract labour. For the benefit of contract labour, there are provisions that make it mandatory for the contractor to provide the labour with canteens, rest rooms, sufficient drinking water, first aid and so on.
The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979
It regulates the employment of inter-State migrant workmen and provides for their conditions of service. It applies to every establishment and contractor employing more than 5 inter-state migrant workers. Every establishment employing inter-state migrants needs to be registered as per provisions of this law. The law also provides that the wages should be at par with the same or similar kind of work as is being performed by any other workman and cannot be less than the wages provides for under the Minimum Wages Act, 1948. It also mandates payment of displacement allowance to the migrant worker and at the same time provide them with medical facilities, residential accommodation, protective clothing (wherever applicable) and so on.
Industrial Disputes Act, 1947 – This act covers 12 sectors that amount for four-fifths of manufacturing output in the state. The law says that a 30 to 90-day notice period is required before firing workmen. It also says that in the case of manufacturing units, plantations and mines with 100 or more persons, lay-offs require the approval of the government. The Act provides for settlement of disputes between employer and employees. It also has provisions related to retrenchment process of the employees, procedure for layoff, procedure and rules for strikes and lockouts of the company.
Minimum Wages Act – This Act, allows the government to fix minimum wages to be paid to employees in certain industries. These are updated from time to time by the labour ministry.
Payment of Bonus Act 1965 – This Act provides for the payment of bonus to persons employed in certain establishments, employing 20 or more persons, on the basis of profits or on the basis of production or productivity. Any employee working for more than 30 days can receive bonus and is entitled for at least minimum bonus
Trade Unions Act 1926– This Act provides for registration, regulation, benefits, and protection for trade unions. The right of collective bargaining is granted to workers through trade unions and these trade unions protect the workers interests and become a link between employer and workers.
The Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 – The Act regulates certain conditions of service of working journalists and other persons employed in newspaper establishments. It deals with retrenchment, payment of gratuity, hours of work and so on.
The Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 – This Act is effectively a welfare scheme for employees whereby both employer and employee contribute a certain amount into PF account of the employee who gets the matured amount at the time of retirement. Every establishment having more than 20 employees ought to have provision for deduction and contribution towards Provident fund.
It is pertinent to note here that even though UP submitted in Allahabad High Court that it has withdrawn its decision to extend working hours as per Section 5 of Factories Act, its ordinance proposing similar timings is still in place and once it receives President’s assent will also come in operation.
The inapplicability of the abovementioned laws means that migrant workers will not receive any kinds of benefits, there will be no government interference to see whether workers are treated well and provided with basic amenities like clean drinking water, rest rooms and in case of migrants, residential accommodation. There will effectively be no regulation on bonuses to be paid, beedi factory workers, cine workers will remain unprotected. Basically, employers of all establishments have been given a free hand vide this ordinance to treat its workers as they please, showing complete apathy towards the poor labourers, their welfare and their rights.
Madhya Pradesh promulgated Madhya Pradesh Labour Laws (Amendment) Ordinance, 2020 on May 6. Vide this ordinance it amended two state laws, namely the Madhya Pradesh Industrial Employment (Standing Orders) Act, 1961, and the Madhya Pradesh Shram Kalyan Nidhi Adhiniyam, 1982.
Madhya Pradesh Industrial Employment (Standing Orders) Act, 1961– The Act regulates working condition of workers in establishments employing more than 50 workers. After the amendment, this limit has been increased to 100 workers, thus exempting establishments with 50 to 100 workers
Madhya Pradesh Shram Kalyan Nidhi Adhiniyam, 1982 – The Act provides for constituting a fund that finances activities related to labour welfare activities. The amendment allows the state government, at its own discretion, to exempt any establishment from the application of this Act by way of notification.
Industrial Disputes Act, 1947 – The government has exempted all new factories from some provisions of this Act. While Provisions related to lay-off and retrenchment of workers, and closure of establishments continue in operation, provisions related to industrial dispute resolution, strikes and lockouts, and trade unions will cease to apply for the next 1,000 days i.e. 33 months.
Factories Act 1948 – The state has exempted all factories from provisions of this Act that regulate work hours.
On April 29, Haryana exempted all factories under the Factories Act, 1948 from provisions related to
- Weekly hours (sec 51) – which restricted working hours for the entire week to 48 hours
- Daily hours (sec 54)- which restricted per day working hours to 9 hours
- Interval of rest (sec 55) – which requires to give workers a break after 5 hours of work and a mandated break of 1 hours before the next 5 hours of work.
- Spreadover (sec 56) – The periods of work of an adult worker in a factory shall be so arranged that inclusive of his intervals for rest under section 55, they shall not spreadover more than ten and a half hours in any day
Haryana has increased working hours from 9 hrs to 12 hours for the next 2 months and has exempted factories from abovementioned provisions which means workers’ rest hours, weekly hours will not be regulated by the government giving a freehand to factories to exploit the workers and make them work continuously for 12 hours if they please.
Uttarakhand has also exempted factories from the same provisions, weekly hours, daily hours, spread over and interval of rest. It has increased daily hours from 9 hours to 11 hours with one-hour break between two shifts. This shall remain applicable until July 20.
The state has exempted its factories from abiding to provisions, weekly hours, daily hours, spread over and interval of rest of the Factories Act, 1948. This means that the upper limit on weekly hours i.e. 48 hours and daily hours i.e. 9 hours shall no longer apply. Also, a break of one hour, known as interval of rest, after 5 hours of work also ceases to apply.
Daily working hours have been extended to 12 hours and weekly hours, from 48 hours to 72 hours, with interval of rest of half an hour between 6 hours shift. This too shall remain applicable until July 20 i.e. for 3 months.
In Gujarat, new industries which will be given clearance within 15 days will not have to abide by any labour laws except Minimum Wages, Act, Industrial Safety Rules and The Employee Compensation Act for the next 1,200 days which means, for about 3.5 years from now. The state is yet to promulgate an ordinance to that regard, but it is expected soon.
This means that these new industries will have no government intervention, giving a free hand to employers to hire and fire anyone and anyhow they please. If the ordinance also gets rid of application of Factories Act, it would mean the workers will be exploited to a large degree, with no government regulated working hours or intervals of rest or upper limit on working hours. Until an ordinance from Gujarat comes along it is unclear if some regulations will come in place but at the outset it seems like labour rights will have no place in new industries of Gujarat.
The Gujarat government has also taken the illegal decision of increasing working hours from 8 to 12 hrs and also desires to go the UP government way and suspend several laws for 1200 days. The Govts of Assam and Tripura and several others have been actively preparing to take the same route.
Punjab has extended its daily working hours to 12 hours and spread over to 13 hours a day (increased from 10.5 hours a day as per the Factories Act, 1948). The workers shall be provided wages at the rate of twice the ordinary rate of wages as provided for overtime under Section 59 of the Factories Act.
Rajasthan and others
Further, states like Rajasthan, Goa and Assam have also diluted their labour laws in some manner. On April 11, Rajasthan extended daily working hours to 12 hours, vide a notification. On May 8, Assam and Goa issued notifications extending working hours to 12 hours and further exempted application of provisions under sections 51, 54 and 56 of the Factories Act, as mentioned in the section for Haryana.
A total of eight state governments(Gujarat, Himachal Pradesh, Haryana, Odisha, Maharashtra, Rajasthan, Bihar and Punjab) have enhanced the daily working hours from eight hours to 12 hours through an executive order in violation of the Factories Act, taking advantage of the lockdown situation.