ARRIVAL OF LABOUR CODES: OBITUARY OF WORKERS’ RIGHTS

S Raj //

Dismantling labour laws and all democratic rights of the working class has always been the top priority of any fascist government throughout history. Similarly, the Modi (BJP-RSS) Government had set the task of dismantling the mechanism of 44 central labour laws in the country and replacing them with 4 labour codes as one of its top priority when it assumed state power in the 2014 General Elections. Although it could not pass the codes in its first term despite introducing them in the Parliament. However, after coming back to power in the 2019 General Elections with an even bigger mandate, it has not left any stone unturned to demolish all democratic institutions in the country and implement its anti-people fascist policies, be it the empowering of the UAPA, passing the National Education Policy 2020 by bypassing the Parliament, forcibly passing the pro-corporate farm bills, formal revocation of ‘special status’ to Jammu & Kashmir, or providing open state support in creation of Ram Mandir, unprecedented rise in arrests and attacks on democratic voices, lynchings and crimes against women, minorities and dalits. Naturally, the Government also passed the 3 labour codes in Parliament on 23^rd September 2020.

It is appalling to know that not only these labour codes were passed in the Parliament in just two days (Lok Sabha on 22^nd Sep and Rajya Sabha on 23^rd Sep) without any real discussion, but it was done even without the presence of any Opposition who had boycotted the proceedings against the undemocratic nature in which the 3 farm bills were passed.

These codes were the Codes on: Industrial Relations, 2020; Occupational Safety, Health and Working Conditions, 2020; and Social Security, 2020. The remaining code out of the total four codes is the Code on Wages, 2019 which was passed in Parliament on 2^nd August 2019 itself. The Rules for Code on Wages will also be implemented in this month or so. These labour codes naturally replete with anti-worker and pro-corporate provisions have been passed rushingly by the Modi Government at a time when the already crisis-ridden capitalist system finds itself being pushed deeper into an abyss due to the onset of the Corona pandemic and the state of lockdown. However, since the lockdown has also adversely affected the subjective forces viz. working-class and mass movements from functioning on ground, the Government has abided by the declaration of their Prime Minister to turn this situation of ‘emergency into an opportunity’.

Code on Industrial Relations

The Industrial Relations Code replaces 3 existing central labour laws viz. Trade Unions Act, 1926; Industrial Employment (Standing Orders) Act, 1946; and Industrial Disputes Act, 1947. Along with wages code, it will be applicable to all industrial establishments with limited exceptions. It defines ‘worker’ to include, besides all persons employed in a skilled or unskilled, manual, technical, operational and clerical capacity, supervisory staff drawing up to ₹18,000 per month as salary. This is arguably the most detrimental code of all since it governs the status of the worker at the workplace and his/her relationship with the employer.

• First of all, it implements the ‘hire and fire’ policy by allowing factories employing upto 300 workers [increased from the already abysmal 100 as provided by the Industrial Disputes Act, 1947 for retrenchment and Industrial Employment (Standing Orders) Act, 1946 for layoff] to retrench their workers at their will i.e. without the permission of the government. According to the Annual Survey of Industries (2017-18), Ministry of Statistics and Programme Implementation, Government of India, more than 80% factories in India have less than 100 workers. This number is bound to increase if we increase the limit to 300 workers, which shows the extent to which ‘hire and fire’ will be applicable almost absolutely in the country.
• The Industrial Employment (Standing Orders) Act, 1946 requires employers to formally define conditions of employment under them if they have at least 100 workers. The new Code has increased this threshold to 300 workers. It also allows the government to further increase the threshold by notification.

• While the Industrial Disputes Act, 1947 maintained that notice of minimum 2 weeks is required for strike only for establishments in ‘public utility services’ (railways, airlines, water, electricity, telephone service), the Industrial Relations Code mandates such notice for all industrial establishments. It also prohibits strikes during the pendency of proceedings before a Tribunal or a National Industrial Tribunal and sixty days after the conclusion of such proceedings (increasing it from 7 days). Thus, elongating the legally permissible time frame before the workers can go on a legal strike, making a legal strike virtually impossible. Apart from this, strikes have also been prohibited during arbitration proceedings and 60 days after the conclusion of such proceedings.
• While the threshold for recognition of a sole negotiating union has been set a 51% i.e. 51% of workers in the factory should be members of a union for it to be recognized as the sole union for negotiation with the employer. However, in case no trade union meets these criteria, a negotiating council will be formed with representatives of unions that have at least 20% of the workers as members, which is an increase from the earlier threshold of 10%.
• The Code provides for a new form of short-term labour through something known as fixed term employment, which refers to a new system where workers are employed for a fixed duration based on a contract signed between the worker and the employer. FTE is a death knell for permanent jobs, security of tenure, basic benefits and all rights of workers associated with it and, that is why, the Central and State Governments have relentlessly attempted to implement it in one form or another.

Concerns have been raised, and rightly so, that the IR Code would virtually convert the industrial workers into slaves at the mercy and whims of their employers (new owners).

Code on Occupational Safety, Health and Working Conditions

The Occupational Safety Code replaces 13 existing central labour laws viz. Factories Act, 1948; Mines Act, 1952; Dock Workers (Safety, Health and Welfare) Act, 1986; Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996; Plantations Labour Act, 1951; Contract Labour (Regulation and Abolition) Act, 1970; Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979; Working Journalist and other Newspaper Employees (Conditions of Service and Miscellaneous Provision) Act, 1955; Working Journalist (Fixation of Rates of Wages) Act, 1958; Motor Transport Workers Act, 1961; Sales Promotion Employees (Condition of Service) Act, 1976; Beedi and Cigar Workers (Conditions of Employment) Act, 1966; and Cine-Workers and Cinema Theatre Workers (Regulation of Employment) Act, 198.

The Occupational Safety Code has defined inter-state migrant worker as one who has come on his/her own from one state and obtained employment in another state, earning up to ₹18,000 a month.

• While the existing Factories Act, 1948 was applicable to any premises where manufacturing process is carried out with 10 workers (if using power) and 20 workers (if not using power), the Occupational Safety Code increases the threshold of workers from 10 to 20 (where power is used) and from 20 to 40 (where power is not used). Thus, more establishments will be left out of any safety, health or work conditions norms and regulations which will risk the already precarious lives of even more workers. According to the aforementioned ASI Report, more than 47% of factories in India employ less than 20 workers and even more factories employ less than 40 workers. Hence, as per modest estimates, around half to two-thirds factories would be left out of the purview of any safety regulations as a result of the implementation of this code.
• Instead of addressing concerns of contract workers, who have largely been denied basic protections such as assured wages and benefits, the Code allows that contract labour laws will be applicable to only those establishments which employ at least 50 contract workers and to contractors who supply at least 50 workers, increasing the earlier limit of 20 provided in the Contract Labour (Regulation and Abolition) Act, 1970.
• Also, while the new Code prohibits employment of contract workers in any core activity, it allows for their employment in a specified list of non-core activities such as canteen, security and sanitation services.
• The Code bars the civil courts from hearing any matter arising as a dispute under it. Rather, it provides for an administrative appellate authority to be notified. Therefore, the judicial mechanism which was earlier present has been done away with and the executive gets an immediate say on the disputes.

Code on Social Security

The Social Security Code replaces 9 existing central labour laws viz. Employees’ Provident Funds and Miscellaneous Provisions Act, 1952; Employees’ State Insurance Act, 1948; Employees’ Compensation Act, 1923; Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959; Maternity Benefit Act, 1961; Payment of Gratuity Act, 1972; Cine-workers Welfare Fund Act, 1981; Building and Other Construction Workers’ Welfare Cess Act, 1996; and Unorganised Workers Social Security Act, 2008.

• A large number of workers may continue to be excluded from the purview of social security.  Note that the Periodic Labour Force Survey Report (2018-19) indicates that 70% of regular wage/salaried employees in the non-agricultural sector did not have a written contract, and 52% did not have any social security benefit.
• The Code states that in the case of fixed term employment, the employer will pay gratuity on a pro rata basis (i.e. proportionate to the fixed term period). However, the Industrial Relations Code while defining fixed term workers, states that such workers will be eligible for gratuity only if they complete a one-year contract. Therefore, the two Codes contain different provisions on gratuity for fixed term workers and it is not clear whether a fixed term employee with a contract of lesser than one year will be entitled to gratuity under the Social Security Code.
• The SS Code mandates an employee or a worker (including unorganised, gig or platform worker) to provide his/her Aadhaar number to receive social security benefits or to even avail services from a career centre. This is in violation of the Supreme Court judgment of 2017 in K. S. Puttaswamy v. Union of India, in which Right to Privacy was held as a fundamental right and it was promulgated that Aadhaar card/number may only be made mandatory for expenditure on a subsidy, benefit or service incurred from the Consolidated Fund of India.

Other Labour Law ‘Reforms’

Apart from these 4 labour codes, the Modi Government has made numerous dangerous changes to labour laws ever since assuming power first in 2014. In its first term itself, it amended the Apprentices Act, 1961 by allowing skilled workers to be employed in any industry in the guise of unskilled workers, and the Child Labour (Prohibition and Regulation) Act, 1986 by allowing minors aged 14-18 to get employed in all industries except only ‘mining, or those industries using flammable and explosives, and other hazardous procedures.’ What could not be implemented by the Central Government was successfully implemented by the various state governments, including Congress-ruled states, like changes in the Factories Act, 1948, Contract Labour Act, 1970 etc.

Even in these Covid times, apart from the innumerous examples of State apathy and criminal commissions in some cases which led to inhumane hardships and unprecedented crisis to the workers (especially of unorganized sector and migrants), various state governments, both BJP and non-BJP ruled, introduced severely anti-worker reforms in the name of turning ‘emergency into opportunity’.

As many as 13 states increased the daily working hours from 8 to 12 hours, namely Rajasthan, UP, Gujarat, Madhya Pradesh, Haryana, Punjab, Himachal Pradesh, Maharashtra, Goa, Odisha, and Puducherry, Uttarakhand (11 hours) and Karnataka (10 hours). Out of these, Gujarat and UP governments have explicitly stated that for the extra 4 hours of work, “proportionate” rate of wages will be applied as against the prevailing law (as per the Factories Act) which mandates double rate of wages for the overtime period beyond 8 hours.

BJP state governments of Uttar Pradesh, Gujarat and Madhya Pradesh also suspended all of their labour laws with negligible exceptions for proposed periods of as long as 1200 days or 3 years. Additionally, the Central Government employees and pensioners (1.1 crore in number) have also not been left untouched as the government has ordered to freeze their Dearness Allowance (DA) and Dearness Relief (DR) respectively at current rates for 18 months. The state governments of Delhi, Uttar Pradesh, Tamil Nadu, and Nagaland have followed suit and implemented similar orders on DA and DR freeze for their employees.

Aftermath?

Since labour laws denote the balance of power between the capitalist class and the working class, implementation of these labour codes, starkly replete with pro-establishment and dangerously vague provisions, would be the most vicious attack on the Indian working class that would not only hammer in the last nail in the coffin of the rights and safeguards enjoyed hitherto by the limited section (less than 10%) of workers employed in the organized sector, but would spell even bigger doom for the workers in the unorganized sector who are largely outside the protection of labour laws even now.

The Central Labour Minister has explicitly stated that Government intends to implement all the 4 labour codes in one by December this year. It should be noted that these labour laws need the President’s assent and then the formulation and notification of respective rules before they can come in force. The desperation of the Modi Government to implement these Codes in order turn the working class into slaves under the absolute control and mercy of the capitalist-imperialist forces is striking.

It is clear that in its desperate attempts to sail its masters out of the existing deep and permanent economic crisis, the Modi Government is leaving no stone unturned to smoothly implement laws which can extract the last drop of blood and sweat of the working class for keeping the wheels of profit running. In the name of Ease of Doing Business, Skill India, Make in India, FDI et al, the obituary of the working class is being written. Labour laws and rights were not given to the working class as charity or acts of benevolence, rather they were achieved through decisive and blood-soaked struggles as well as sacrifices which have coloured in red the pages of history of the revolutionary working class movement. Today when fascism is rapidly and successfully strengthening its hold over the state machinery after already assuming state power, it is no longer possible to protect or secure the existing rights through symbolic demonstrations and short-term struggles. This fight of the workers has been ingrained with the fight to achieve the historical aim of the working class, which is a fight against the very basis of exploitation and inequality to usher in a new society devoid of these. For this, the working class must prepare itself for a continuous and decisive struggle against the capitalist system based on exploitation which also provides fertile ground for the seeds of fascism which has so viciously grown in the last few years.

Originally published in The Truth: Platform for Radical Voices of The Working Class (Issue 6/ October ’20)