Lockdown and Labour Law Amendments: Misuse of Power by the States

Posted on June 24, 2020

The article reveals the impact of the changes in labour laws (LL) on workers. As India is also grappling with COVID-19 pandemic, therefore, the lockdown has been imposed to minimise the spread of it. However, lockdown is negatively influencing workers engaged in the informal nature of employment. It further emphasises on how amendments and suspensions of LL make deleterious effects on the working force. Least attention has been paid to the concerns of workers about safeguarding their interest against exploitative practices of employers/contractors. It performs that the very changes, which have been proposed or adopted by the appropriate governments in LL will indubitably, benefit only big multinational companies, corporate persons and different stakeholders (except workers) engage in it.

According to the COVID-19 livelihood survey conducted by Azim Premji University, about 80% of urban workers lost their jobs and average weekly earnings fell by 61% during the lockdown^[1]. The act of different governments gives the impression as if they are playing politics in and around helpless migrants. For the state, the lives of workers are used merely for vote banks; it means as citizens they can only exercise voting rights and they do not have any other rights as a citizen.

About 198^[2] migrants have breathed their last on their way to homes. Here we can see how “sensitive” our state is towards addressing plights of migrants or their basic human rights as citizens during the lockdown. Standing (2014) defined migrant workers as “urban nomad” and uses the category ‘denizen’ in contrast to citizens who often denied certain rights or prevented from obtaining or retaining them. In this context, further sections will discuss amendments in LL in lockdown, and the precarious condition of informal workers and legislations.

Amendments, Exemptions and Suspensions of Labour Laws under the Guise of Covid-19

In India, numerous LL are existing to protect the health, safety, welfare, wages, and other social security rights of workers. As ‘labour’ is a subject of the concurrent list, hence the central, as well as state governments, are free to make laws. Recently, some state governments proposed, some have suspended and some have made amendments in LL at the wake of a pandemic. For instance, the Rajasthan government issued a notification^[3] to extend the working hours of factory workers from 8 hours per day (six days a week) to “12 hours per day”. The additional 4 hours shall be paid as overtime (overtime limit is 24 hours a week). It has extended to 72 hours a week.

The very amendment objects to the restoration of essential goods and ensuring the minimal presence of people in manufacturing and distribution facilities. It would limit the movement of people from work to home and back during the day by half. It will only happen once during the day and night. Section 65 (2) (3) of the Factories Act 1948^[4] empower the state governments to amend sections 51-52, 54 and 56 subject to following conditions –

(i) The total number of hours of work in any day shall not exceed 12

(ii) The spread-over, including rest intervals, shall not exceed 13

(iii) The total number of work-hours in any week, including overtime, shall not exceed 60

(iv) no worker shall be allowed to work overtime, for more than seven days at a stretch and the total number of hours of overtime work in any quarter (three consecutive months) shall not exceed seventy-five (Factories Act, 1948 p. 39).

While the state government mentioned the maximum hours of work to be 72 hours, which is not permissible. Section 59 of the Act mentions that for overtime work, the workers have to be paid twice their ordinary rate of wages. However, there is no clarification on whether the extra work will be taken as overtime work and does not specify wages. No mention of fatigue, physical stress and mental health issues of the workers can be found. Indeed, this is the violation of the basic principle of work i.e. 8 hours of work. It was the first state, which brought out an exemption order. The many States are following, as even the Prime Minister praised the state government and asked other states to follow^[5].

In another case, Punjab^[6] has also extended working hours in a day to 12 hours for optimum utilisation of labour in the COVID crisis. However, no clarity on ‘hours of work’ in the week will be permissible. Similarly, Gujarat Government has amended in section 5 of the factories Act which provides power to the State Government to exempt any factory or class or description of factories from all or any of the provisions of the Act in situations of Public Emergency (ibid. p. 5).

The act defines, ‘public emergency’ is a grave emergency whereby the security of India or any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance^[7].” This order has exempted all factories registered under the Act from various provisions relating to weekly hours, daily hours, intervals of rest, etc. However, this section is intentionally misinterpreted thereby the order might not be legal as according to the Act. Hence, the legality of the order in itself can be challenged.

Madhya Pradesh state came up with an amendment in section 18(b)^[8] in the Factories Rule, 1962. The section explains the need for medical expertise to check whether an establishment is hazardous or not. The state sought exemption from the section for 1000 days. More interestingly, an amendment accepted the ‘third party evaluation’ for the same purpose. It will reduce the very power of inspectors for a raid in case of changes in conditions incur due to the hazardous nature of work. By giving power of approval to third parties looks like manipulation with the certification process. It will lessen the accountability pertinent to working conditions and going to affect the rights of the workers.

The state further provides an exemption of all sections of the Factories Act 1948 in M.P. Whole Act will not be applicable on major industries except some sections. Nobody can bring litigation against any factory. Now trade unions and factory managers will be able to resolve disputes as per their convenience. They will not have to go to the labour court for resolving disputes. Establishments employing less than 50 workers have been excluded from inspection under various LL.

Similarly, under the factories Act, units, which run without power, have to be registered on employing 20 labourers. Now a proposal sought to remove the limit on the number of workers. Under the Contract Labour Act, contractors had to register for employing 20 labourers so far. Now they will be required to have 50 workers or more. The Industrial Disputes Act has been made effective on the establishment with 300 workers instead of those employing 100 workers^[9]. The government is issuing notifications for each LL individually and suspending only certain provisions which they think are necessary for ensuring ease of business. There may be long-term consequences if laws are suspended for three years.

In Uttar Pradesh too, the laws related to industrial disputes, factories, trade unions, contract workers and migrant workers will remain suspended for three years^[10]. The UP government proposed an ordinance using its executive power under Article 213. It aims to provide “easy conditions for businesses to restart and set up”. The ordinance will withdraw all social security and welfare laws. Workers have to be available for work for an unlimited number of hours a day without surety of extra wages. It means that employers can fire employees at will. Besides that, there will be no notice pay, gratuities and other entitlements. Hence, it can be determined that changing the LL by the states in the guise of lockdown ostensibly appears like ushering elite corporates, politicians and different stakeholders to perish the workers. Nevertheless, LL meant to be impartial and unbiased on the part of labourers. As Bhowmik (2015) asserted, “penalties are imposed on individual workers for illegal strikes, but for illegal lockouts, the fine is borne by a collective entity; this is but one of many unequal provisions.”

Legislations and Precarious Employment of Informal Workers

In the last six decades, it has been observed that employers have evaded the Acts for instance, in the case of the Factories Act, engaging less than 9 or 19 workers. There are already cases of non-compliance that can be observed. In this context, by giving relaxation in LL, it altogether appears like the governments are pro-corporate and anti-workers. The proposed amendments and ordinances, which will never be indicative of workers-oriented governance for the welfare of the majority workforce.

Today vast sections of informal labour are not adequately covered by LL. They are unable to get any legal protection. Perhaps the entire judicial process pertaining to labour/industrial court looks more inclined towards the employers’ side. Nevertheless, trade unions hardly support workers in a suitable manner, with which their plights remain unaddressed. Hence, landless workers generally and lower caste migrants particularly will be going to get directly affected due to changes in LL.

As it was difficult to assure welfare with LL, however, it will be much more obscure to assure the same without LL. Little attention is given to changes in the administration and other legal frameworks forming an integral part of the government machinery. The major challenge would be the suspension of health and safety norms that violates the fundamental working rights in the name of a pandemic.

There is no scope at all that can raise the voice of workers and accelerate ceaseless fights against employers. Thus, it can be widely observed that the changes in LL are shaped by the authority to meet the needs of employers and foreign investors within the purview of ‘ease of doing businesses’. In contrast, it will perish working rights. Perhaps the transition from ‘migrant’ to ‘citizen’ remains incomplete due to exclusion that lower caste migrants experience in terms of permanent housing, employment, education, and regular access to other amenities (Shah, 2006).

The LL are indeed unable to keep pace with the changes in the labour market or respond effectively to globalisation, legal and administrative requirements. Hence, India, being a “welfare state”, should guarantee that the state shall be adhered to follow the welfare and development in terms of social, economic, education and political well-being of the working population in India. The state should intervene rather than entertain such steps of the states which will menace the future of workers’ welfare in India.

Vicky Nandgaye is a PhD Scholar at School of Management & Labour Studies, TISS – Mumbai

Payal Karwade has done her MA from TISS. She is working on violence against women in Jan Sahas Org.

Bibliography

Bhowmik, S. K. (2015). Protecting Employers against Workers and Trade Unions New Bill on Industrial Relations. Economic & Political Weekly, 15-18.

Standing, G. (2014). A precariat charter: From denizens to citizens. A&C Black.

Shah, S. P. (2006). Solicitation, Migration and Dry Wage Labour: Gender, Sexuality and Negotiating Work in the City. Women and Migration in Asia, 2.

Madya Pradesh, Uttar Pradesh stay labour laws for 3 years in the name of COVID-19 pandemic –https://www.nationalheraldindia.com/india/madhya-pradesh-uttar-pradesh-stay-labour-laws-for-3-years-in-the-name-of-covid-19-pandemic

UP-MP labour reform: Wooing investors post-lockdown or taking advantage of Covid crisis https://theprint.in/talk-point/up-mp-labour-reform-wooing-investors-post-lockdown-or-taking-advantage-of-covid-crisis/417163/

Doctrine of Repugnancy – https://lawcorner.in/doctrine-of-repugnancy/

UP suspends major labour laws for 3 years to attract investors https://www.newindianexpress.com/nation/2020/may/08/up-suspends-major-labour-laws-for-3-years-to-attract-investors-2140784.html

Madhya Pradesh updates labour laws: All you need to know about what has changed https://www.moneycontrol.com/news/business/economy/madhya-pradesh-updates-labour-laws-all-you-need-to-know-about-what-has-changed-5240621.html

MP labour law changes: Relaxed licence norms for contract workers

https://www.business-standard.com/article/economy-policy/mp-labour-law-changes-relaxed-licence-norms-for-contract-workers-120051000529_1.html

Madhya Pradesh Amends Labour Laws, Announces Steps To Revive Economy – https://www.bloombergquint.com/coronavirus-outbreak/chouhan-announces-slew-of-steps-to-revive-economic-activities

Notes

^[1]. Retrieved on 5 June 2020 https://www.thehindu.com/data/data-80-of-urban-workers-lost-jobs-during-coronavirus-lockdown-survey/article31569572.ece (80% of urban workers lost jobs during coronavirus lockdown survey)

^[2]. Retrieved on 4 June 2020 https://www.hindustantimes.com/india-news/198-migrant-workers-killed-in-road-accidents-during-lockdown-report/story-hTWzAWMYn0kyycKw1dyKqL.html (198 migrant workers killed in road accidents during lockdown: Report).

^[3]. The states of Gujarat, Punjab and Himachal Pradesh have also issued similar notifications.