Labour laws have historically recognised the imbalance of power between workers and employers, and are thereby drafted to provide a framework of regulation of capital to ensure industrial peace. The commonalities in the 4 Labour Codes indicate a paradigm shift in the structure of regulation of capital.
First, the existing laws that were subsumed in each of the 4 Codes have been ‘simplified’ by transferring power to amend laws from the legislature (parliament) to the executive (appropriate government).
- Wage Code: Hours of work, length of a normal working day, constitution of technical committees for wage fixation, can now be notified by government, without going through the parliament.
- Code on Occupational Health, Safety and Working conditions: The detailed provisions of health and safety under each of the 13 laws subsumed in the Code specifying preventive measures to ensure safety at specified locations within a workplace has now been replaced by one section in the Code (Section 18(1)) that states that the central government can notify occupational safety and health standards relating to all workplaces, again without going through the parliament.
Thus in the name of simplifying and establishing uniformity, legislatively protected rights can now be changed arbitrarily by government, thereby strengthening the power of government while reducing the power of parliament/ state assemblies, and hence indirectly of the people.
Second, the primary charge against the existing laws has been regarding their limited applicability. The government repeatedly reiterated that the Codes will apply to all workers, especially unorganised workers.
Under the existing laws, no employment was legally excluded from the domain of the law. For example, the schedule of minimum wages was different for different states, where an employment such as domestic work is a scheduled employment in states such as Tamil Nadu, Kerala, Rajasthan while it is not in many other states. Similarly, PF or ESI can be extended to workers who are not traditionally covered under these laws under special circumstances. This allowed space for bargaining for extension of applicability to different categories of workers.
- Wage Code: Domestic workers employed in households employing less than 5 workers, agricultural workers employed in farms employing less than 5 workers, government scheme workers and ‘independent contractors’ are specifically excluded from the Code.
- OSH Code: The threshold for applicability of the code has been increased from 20 workers to 40 workers in factories using power, from 20 to 50 workers for contract labour, from 5 to 10 workers and under contractors for interstate migrant workers. Thus more workers will be outside the purview of the law under the code than earlier.
- Social Security Code: The Code defines 2 categories of workers: (i) organised, who are entitled to legislatively protected rights such as PF, ESI, Employees compensation, Maternity benefit, gratuity and (ii) unorganised, who will receive social security benefits through different government schemes, subject to budgetary constraints, thereby removing the possibility of extension of the legally protected rights for the unorganised workers.
- Industrial Relations Code: The threshold for applicability of the standing orders has been increased from 100 to 300 workers; and the threshold for prior government permission for layoff, retrenchment and closure has also been increased from to 300 workers. This will make it much easier for many more employers to hire and fire workers at will.
Each of these exclusions is a violation of our constitutional Right to Equality (Article 14) before law.
Third, despite the stated objective to minimise laws, the OSH Codes does not include the Shops and Establishment Act that broadly applies to all shops, hotels, eating houses, restaurants, theatres, places of public amusement or establishment and other commercial establishments as well as the Prevention of Sexual Harassment at Workplace Act, that ensures the right to a safe workplace for women workers.
Finally, in an effort to eliminate inspector raj, the Labour Inspector has been renamed an Inspector-cum-Facilitator. From issuing automatic registration of factories in case of delay, to removing surprise inspections by inspectors, to granting inspectors the additional power to pardon employers in the first offense, are all tiny pieces that comes together to frame the ‘ease of doing business’ model. In all cases of penalties under the codes, employers will be provided a chance to correct their ‘mistake’, and an offense will only be considered to be a cognisable offense in case of repeated commission but under no circumstances will the registration of the establishment be cancelled for committing this offense. Further, the fines imposed on employers fail to reflect the inflation over the years as well as their profitability.
Conversely, rules governing workers has become more stringent. The process of registration of a trade union requires workers to produce documentation subject to verification far more than a factory registration. There is no possibility of an automatic registration in case of delay. Mass casual leave, ‘go slow’ at work used historically by workers to negotiate better terms of work will now be treated as strike and can be declared illegal. In case of an illegal strike, workers, trade union leaders, sympathisers connected to the strike can all be fined heavily and jailed, along with the cancellation of the registration of the striking trade union. There is no provisions for ‘pardon’ in first offense or possibility of correcting their ‘mistake’.
These provisions not just violate the ILO convention on Inspection that has been ratified by India but also violates the constitutional right to freedom of association (Article 19(1)(c)).
The labour codes institutionalises a framework of lax regulation on employers and unsafe and insecure working environment for workers coupled with repressive laws against unionisation, thereby tilting the imbalance of power further against workers.
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