From The Hindu

July 14, 2014

Mean and petty labour reforms

COLIN GONSALVES

Even decades after independence, the introduction of a ‘secret ballot’ for labourers to recognise trade unions remains elusive

The National Democratic Alliance government, on June 5 and June 17, notified the proposed amendments to the Factories Act, 1948 and the Minimum Wages Act, 1948. Given that the process of amendments began in 2008 and went through a number of expert committees, one would have expected the amendments to be carefully thought-out. On the contrary, they are petty, anti-labour and poorly conceived. Given also that these are the Narendra Modi-led government’s first pronouncements on labour, one can only lament the absence of a vision that a global power ought to have: that increased productivity comes from having satisfied workers, who produce quality products.

One would have thought that since these two statutes have hardly been implemented, the emphasis would have been on bringing in amendments to make them effective. The Thermal Power station case, decided by the Supreme Court recently, had on record data showing hundreds of workers dying prematurely and over 50 per cent of the workforce suffering from lung diseases, deafness and other occupational illnesses. The Commonwealth Games case decided by the Delhi High Court found workers living in conditions akin to bondage — without safety equipment, sleeping in sheds without mattresses and fans, and using toilets without doors and water. This is the reality of labour in India.

Unfair to women

So what do the amendments to the Factory Act suggest? Instead of suggesting that in globalised India, where workers ought to work for eight hours as per the international norm, they suggest that Section 56 be amended to increase the working day to spreadover 10/ hours to 12 hours; that under Section 65(2), compulsory overtime be increased from 50 hours per quarter to 100 hours, and that under Section 66, women not be allowed to work after 7 p.m., unless a specific notification is issued qua a particular factory that is capable of demonstrating that it has facilities in place to guarantee the safety of women workers.

Thus, instead of statutorily making it the norm that men and women work equal hours, women have been penalised. Though the Supreme Court has laid down that storage in factories of hazardous substances attracts strict liability or no excuse standard for liability, Section 7(b) lays down that the employer must ensure — “as far as practicable” — that the substance is safe. Section 99 enables an employer to employ children.

Any person up to the age of 18 is a child under the Juvenile Justice Act. Under the Factories Act, however, the ceiling continues at the obsolete level of 14 years. Moreover, the parents will be punished, not the employer.

The Minimum Wages Act, 1948, was enacted to progressively introduce minimum wages in a situation where industries were gradually being established. Thus, it did not cover all workers, but only workers in notified industries — only a part of the workforce. Domestic workers, for example, are not covered. In a globalised economy one needs to shift to universal coverage. What was needed was a simple amendment saying that those not covered by the existing notifications would be covered by a residual notification. This seems to be coming in by amendment. However, this residual minimum wage will be the lowest of all the minimum wages notified.

There is also nothing to indicate that the widespread non-implementation of this Act will be corrected, or that the endless litigation in courts, at the end of which a petty fine is levied for non-payment of minimum wages, will be replaced by a different procedure. The exclusion of contract workers, who now cover 75 per cent of the workforce, from the minimum wages enforcement seems destined to continue. The failure of the Act to effectively cover home-based and other forms of unorganised labour will also continue.

For reform

The labour movement also has its agenda for reform. Labourers demand the introduction of a ‘secret ballot’ for determination of trade union recognition. It is unfortunate that even decades after independence, this simple democratic right remains elusive. They also demand that their right to go to court should not be restricted by the requirement that they take permission from the government under Section 10 of the Industrial Disputes Act. Seeking such permission delays litigation by years. They also demand that, by amendment, the two anti-labour judgments of the Supreme Court in the Umadevi case and the SAIL case be reversed, so that non-permanent workers who have put in long years in government services are entitled to regularisation, and that when the contract labour system is abolished by the Board, the contract workers will be regularised. The Supreme Court had condemned these categories of workers to permanent servitude. They demand that child labour be abolished. These are some of the long-standing democratic reforms pending consideration of the government.

(Colin Gonsalves is a senior advocate in the Supreme Court and founder of the Human Rights Law Network.)