Labour falls under the Concurrent List of the Constitution. Therefore, both Parliament and state legislatures can make laws regulating labour. The central government has stated that there are over 100 state and 40 central laws regulating various aspects of labour such as resolution of industrial disputes, working conditions, social security and wages.[1] The Second National Commission on Labour (2002) found existing legislation to be complex, with archaic provisions and inconsistent definitions.[2] To improve ease of compliance and ensure uniformity in labour laws, it recommended the consolidation of central labour laws into broader groups such as: (i) industrial relations, (ii) wages, (iii) social security, (iv) safety, and (v) welfare and working conditions.
In 2019, the Ministry of Labour and Employment introduced four Bills to consolidate 29 central laws. These Codes regulate: (i) Wages, (ii) Industrial Relations, (iii) Social Security, and (iv) Occupational Safety, Health and Working Conditions. While the Code on Wages, 2019 has been passed by Parliament, Bills on the other three areas were referred to the Standing Committee on Labour. The Standing Committee has submitted its report on all three Bills.[3] The government has replaced these Bills with new ones on September 19, 2020.
In this note, we first compare some significant changes made in the 2020 Bills as compared to the 2019 versions. Then we discuss some of the significant issues to consider regarding the three Bills.
PART A: Comparison of key provisions of the 2019 Bills and 2020 Bills
The following section discusses key changes in the 2019 Labour Bills (which have been withdrawn) and compares them with the new Labour Bills that the government introduced in Lok Sabha on September 19, 2020.
A.1 Common Changes across the 2020 Labour Codes
A.2 Code on Industrial Relations, 2020
Exemption
Standing Orders
Closure, lay-off and retrenchment
Negotiating Union and Council
New provision under the Bill
A.3 Code on Social Security, 2020
Social security entitlements
Provisions on appeals, assessment, and offences and penalties
Other changes
A.4 Code on Occupational Safety, Health and Working Conditions, 2020
Exemption
Threshold for coverage of establishments
Work hours and employment conditions
Inter-state migrant workers and unorganized workers
PART B: Issues to consider
B.1 Some common issues across the three Labour Bills
Definition of ‘appropriate government’
All three Labour Bills specify that the central government will act as the appropriate government for any central public sector undertaking (PSUs). The central government will continue to be the appropriate government for a central PSU even if the holding of the central government in that PSU becomes less than 50%. It is unclear as to why the central government should continue to exercise jurisdiction over an establishment in which it does not own controlling stake (even in cases where it has sold its entire stake). Note that while examining the earlier versions of the Codes on Industrial Relations and Social Security, the Committee had recommended that the central government should exercise powers only over those PSUs in which it has more than 50% stake.3
Delegated Legislation
Under the Constitution, the legislature has the power to make laws and the government is responsible for implementing them. Often, the legislature enacts a law covering the general principles and policies, and delegates detailed rule-making to the government to allow for expediency and flexibility. However, certain functions and powers should not be delegated to the government. These include framing the legislative policy to determine the principles of the law. Any Rule should also remain within the scope of the delegating Act.
The three labour Bills delegate various essential aspects of the laws to the government through rule-making. These include: (i) increasing the threshold for lay-offs, retrenchment, and closure, (ii) setting thresholds for applicability of different social security schemes to establishments, and (iii) specifying safety standards, and working conditions to be provided by establishments under the occupational safety Code. The question is whether the power to decide such matters should be retained by the legislature or whether these could be delegated to with the government.
While examining the 2019 Social Security Bill, the Standing Committee on Labour had noted that the Bill delegates various aspects for rule-making by the government, especially in relation to defining the entitlements, benefits and contributions under the Bill.3 It suggested that the Ministry review all such instances of delegation in the Bill.
Power to exempt establishments
The 2020 Bill on Industrial Relations provides the government with the power to exempt any new industrial establishment or class of establishment from any or all of its provisions if it is in public interest. The 2020 Bill on Occupational Safety also gives the appropriate government the power to exempt any establishment for a period to be specified in the notification. Further, it enables the state government to exempt any new factory from its provision in the interest of creating more economic activity and employment. Note that the Factories Act, 1948 permitted exemptions from its provisions only in cases of public emergency, and limited such exemption to three months.
Therefore, the central and the state government have wide discretion in providing exemptions from these Bills. Every factory would generate employment, and public interest could be interpreted broadly. The exemptions could cover a wide range of provisions including those related to hours of work, safety standards, retrenchment process, collective bargaining rights, contract labour.
Certain workers not covered under the Bills
The Bill on Industrial Relations applies to all establishments, with separate thresholds for layoffs, retrenchment and closure, and for requirement of standing orders. On the other hand, the Bills on social security and occupational safety continue to apply to establishments over a certain size - the Occupational Safety Bill covers establishments with 10 or more workers while the Bill on Social Security requires only establishments over a certain size (typically, 10 or 20) to provide mandatory benefits (such as provident fund and pension). Further, the Bills on industrial relations and occupational safety allow the government to exempt any new establishment from their provisions in public interest. This raises the question of the extent to which establishments should be covered by the Bills.
It has been argued that the application of labour laws based on the number of employees is desirable to reduce the compliance burden on infant industries and to promote their economic growth.[4],[5] However, low numeric thresholds may create adverse incentives for establishments sizes to remain small, in order to avoid complying with labour regulation.4,5 To promote the growth of smaller establishments, some states have amended their labour laws to increase the threshold of their application. For instance, Rajasthan has increased the threshold of applicability of the Factories Act, 1948, from 10 workers to 20 workers (if power is used), and from 20 workers to 40 workers (if power is not used). The Economic Survey (2018-19) noted that increased thresholds for certain labour laws in Rajasthan resulted in an increase in growth of total output in the state and total output per factory.5 Note that the Bill on Occupational Safety makes similar changes to the size to the thresholds for factories - from 10 workers to 20 workers (if power is used), and from 20 workers to 40 workers (if power is not used). Further, it increases the threshold of applicability of provisions regulating use of contract labour from 20 workers to 50 workers.
On the other hand, some have argued that basic provisions for enforcement of wages, provision of social security, safety at the workplace, and decent working conditions, should apply to all establishments, regardless of size.2,4 Towards, this the 2020 Bill on Occupational Safety states that the applicability thresholds (of 10 or above) will not apply in those establishments in which hazardous or life-threatening activities (as notified by the central government) are being carried out. The Standing Committee while examining the earlier versions of the Bills on Occupational Safety and Social Security stated that: (i) the Occupational Safety Code should include a mechanism to notify provisions to safeguard the health and safety of unorganised workers and insert chapters in the Code specifying the safety, health and working conditions for inter-state migrant workers and plantation workers, (ii) the Social Security Code should provide a framework to achieve universal social security within a definite time frame. It made several recommendations towards expanding coverage.3 While the 2020 Occupational Safety Bill incorporates the recommendations of the Committee (provides for a social security fund for unorganised workers and adds separate chapters for migrant and plantation workers), the 2020 Social Security Bill does not address them.
In this regard, the 2nd National Commission on Labour (2002) had recommended a separate law for small scale units (having less than 20 workers) with less stringent provisions for conditions such as payment of wages, welfare facilities, social security, retrenchment and closure, and resolution of disputes. For unorganised sector establishments (which fall outside the purview of labour laws), the National Commission for Enterprises in the Unorganised Sector (NCEUS) made several recommendations to address the social security and minimum conditions of work for both agricultural and non-agricultural workers and suggested two Bills – one for each sector.[6] Note that the Economic Survey (2018-19) estimates that almost 93% of the total workforce is informal.5
Note that most countries do not exempt smaller enterprises from labour regulation entirely. The International Labour Organisation (2005) notes that only 10% of its member states had exempted micro and small enterprises from labour regulation altogether.[7] Most countries adopt a mixed approach to labour regulation. For instance, health and safety laws in the United States, United Kingdom, South Africa and Philippines provide universal coverage to all workers (except for domestic help in the US and UK).8 However, certain obligations under these laws are only applicable to enterprises with employees over a certain threshold. For example, record-keeping obligations for work-related accidents in the US only apply to establishments with at least 10 employees or in “low hazard” industries. In South Africa, only enterprises with 20 or more workers are required to designate a health and safety representative.[8]
B.2 Key Issues in the Industrial Relations Code, 2020
Strikes and lock-outs may become difficult for all establishments
The 2020 Bill requires all persons to give a prior notice of 14 days before a strike or lock-out. This notice is valid for a maximum of 60 days. The Bill also prohibits strikes and lock-outs: (i) during and up to seven days after a conciliation proceeding, and (ii) during and up to sixty days after proceedings before a tribunal. This may impact the ability of workers to strike and employers to lock-out workers.
The Bill requires prior notice before a strike or a lock-out, which has to be shared with the conciliation officer within five days. Conciliation proceedings will start immediately and strikes or lock-outs will be prohibited during this period. If the conciliation is not successful and there is an application to a Tribunal by either party, the period of prohibition on strikes or lock-outs will be further extended. This time could extend the beyond the 60-day validity of the notice. Therefore, these provisions may impact the ability of a strike or lock-out on the appointed date given in the notice.
The Industrial Disputes Act, 1947 contains similar provisions for public utility services. A public utility service includes railways, airlines, and establishments that provide water, electricity, and telephone service. However, the National Commission on Labour (2002) had justified the rationale of treating such industries differently, considering their impact on the lives of a vast majority of people.2 The rationale for extending the provisions on notice to all establishments is unclear. The Standing Committee while examining an identical provision in the 2019 Bill had recommended that the restriction on strikes should only apply to public utility services.3
Power to government to modify or reject tribunal awards
The 2020 Bill provides for the constitution of Industrial Tribunals and a National Industrial Tribunal to decide disputes under the Bill. It states that the awards passed by a Tribunal will be enforceable on the expiry of 30 days. However, the government can defer the enforcement of the award in certain circumstances on public grounds affecting national economy or social justice. These circumstances are when: (i) the central or state government is a party to the dispute in appeal, or (ii) the award has been given by a National Tribunal. The appropriate government can also make an order rejecting or modifying the award. The notification and the order will be tabled in the legislature. The question is whether such a provision would violate the principle of separation of powers between the executive and the judiciary, since it empowers the government to change the decision of the tribunal through executive action. Further, it raises the question of whether there is a conflict of interest, as the government may modify an award made by the Tribunal in a dispute in which it is a party.
The Industrial Disputes Act, 1947 had similar provisions. In 2011, the Madras High Court (affirming a 1997 Andhra Pradesh High Court judgement) struck down these provisions on constitutional grounds and held that the power to the executive to decline enforcing an award or to modify it, allows the executive to sit in appeal over the decision of the Tribunal, and therefore violates the separation of powers between the executive and the judiciary, which forms a part of the basic structure of the Constitution.[9],[10] This provision has been replicated in the Code. Therefore, it may violate the principle of separation of powers between the executive and the judiciary. The Standing Committee on Labour while examining an identical provision in the 2019 Bill had recommended removing this provision in view of these judgements.3
Provisions for formation of a negotiation council may be restrictive
Under the 2020 Bill, a sole union will be the negotiation agent with the management of the company. If there is more than one registered trade union of workers, the trade union having more than 51% of the workers as members would be recognised as the sole negotiating union. 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. Note that trade unions must have membership of at least 10% or workers or 100 workers, whichever is lesser, to be registered. It is unclear as to what will happen in case there are multiple registered trade unions which enjoy this support (of 10% of members) but no union has the required support of at least 20% workers to participate in the negotiating council.
Note that under the 2019 Bill, the threshold for participation in negotiating council was 10% instead of 20%.
Provisions on fixed term employment
The 2020 Bill introduces provisions on fixed term employment. Fixed term employment refers to workers employed for a fixed duration based on a contract signed between the worker and the employer. Provisions for fixed term employment were introduced for central sphere establishments in 2018.[11] We discuss below the pros and cons of introducing fixed term employment.
Fixed term employment may allow employers the flexibility to hire workers for a fixed duration and for work that may not be permanent in nature. Further, fixed term contracts are negotiated directly between the employer and employee and reduce the role of a middleman such as an agency or contractor. They may also benefit the worker since the Code entitles fixed term employees to the same benefits (such as medical insurance and pension) and conditions of work as are available to permanent employees. This could help improve the conditions of temporary workers in comparison with contract workers who may not be provided with such benefits.
However, unequal bargaining powers between the worker and employer could affect the rights of such workers since the power to renew such contracts lies with the employer. This may result in job insecurity for the employee and may deter him from raising issues about unfair work practices, such as extended work hours, or denial of wages or leaves. Further, the Bill does not restrict the type of work in which fixed term workers may be hired. Therefore, they may be hired for roles offered to permanent workmen. In contrast, under the Contract Labour (Regulation and Abolition) Act, 1970 the government may prohibit employment of contract labour in some cases including where: (i) the work is of a perennial nature, or (ii) the work performed by contract workers is necessary for the business carried out by the establishment, or (iii) the same work is carried out by regular workmen in the establishment. Note that the 2nd National Commission on Labour (2002) had recommended that no worker should be kept continuously as a casual or temporary worker against a permanent job for more than two years.2
The Standing Committee on Labour examined identical provisions in the 2019 Bill and recommended the conditions under which, and areas where fixed term employment may be utilised should be clearly specified.3 Further, a minimum and maximum tenure for hiring fixed term employees should be specified.
The ILO (2016) noted that several countries restrict the use of fixed term contracts by: (i) limiting renewal of employment contracts (e.g., Vietnam, Brazil and China allow two successive fixed term contracts), (ii) limiting the duration of contract (e.g., Philippines and Botswana limit it up to a year), or (iii) limiting the proportion of fixed term workers in the overall workforce (e.g., Italy limits fixed term and agency workers to 20%).[12]
Table 1 below compares the provisions of fixed term employment, permanent employment and contract labour.
Table 1: Comparison between fixed term employment, permanent employment and contract labour
Feature |
Fixed Term Employee |
Permanent Employee |
Contract Labour |
Type of employment |
|
|
|
Term |
|
|
|
Nature of work |
|
|
|
Sources: Contract Labour Act, 1970; Industrial Disputes Act, 1947; Notification GSR 976(E), Ministry of Labour and Employment, October 7, 2016, Notification GSR 235(E), Ministry of Labour and Employment, March 16, 2018; 2020 Bill; PRS.
Certain terms not defined in the Code
The 2020 Bill defines a ‘worker’ as any person who work for hire or reward. It excludes persons employed in a managerial or administrative capacity, or in a supervisory capacity with wages exceeding Rs 18,000. However, it does not define the terms ‘manager’ or ‘supervisor’ in this context. These terms are also used in the remaining three labour Codes, i.e., on Occupational Safety and Health, Wages and Social Security. The Standing Committee which examined the OSH Code recommended that the terms ‘supervisor’ and ‘manager’ be clearly defined in the Bill as it determines the categories of persons who would be excluded from the definition of ‘workers’.
Further, the Bill uses the term ‘contractor’ while defining certain terms. For example, ‘employer’ is defined to include a contractor. However, the Bill does not define the term ‘contractor’. Note that the remaining three Bills define the term to include persons who deliver work using contract labour, or supply manpower through contract labour. Similarly, the Bill defines the term “industrial establishment” to mean an establishment in which industry is carried on. However, it does not define the term ‘establishment’. The remaining three Bills define the term to refer to any place where an industry, trade, business, manufacture or occupation is carried on.
B.3 Key Issues in the Code on Social Security, 2020
Purpose of the Bill
The 2020 Bill replaces nine laws related to social security. The National Commission on Labour (2002) (NCL) had emphasised the need for universal and comprehensive social security coverage to avoid deprivation of basic needs of workers, and recommended the simplification and consolidation of existing laws towards this end.2 The Statement of Objects and Reasons of the Bill states that it seeks to simplify and amalgamate the provisions of these laws in line with the NCL recommendations.[13]
The NCL recommended that: (i) the social security system should apply to all establishments, (ii) the existing wage ceilings for coverage should be removed, and (iii) there should be a functional integration of the administration of existing schemes. Further, every employer and employee may make a single contribution for the provision of all the benefits, with a ceiling prescribed for such contributions. However, the Bill largely retains the current set up and does not fully implement these recommendations.
First, the Bill continues to retain thresholds based on the size of establishment for making certain benefits mandatory. Benefits, such as pension and medical insurance, continue to be mandatory only for establishments with a minimum number of employees (such as 10 or 20 employees). All other categories of workers (i.e., unorganised workers), such as those working in establishments with less than 10 employees and self-employed workers may be covered by discretionary schemes notified by the government. This is similar to the current system where unorganised workers are governed by a different law (being subsumed by the Bill) under which voluntary schemes are notified for such workers.[14] A large numbers of workers may continue to be excluded. 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.[15]
Second, the Bill continues to treat employees within the same establishment differently based on the amount of wages earned. For instance, provident fund, pension and medical insurance benefits are only mandatory to employees earning above a certain threshold (as may be notified by the government) in eligible establishments.
Third, the Bill continues to retain the existing fragmented set up for the delivery of social security benefits. These include: (i) a Central Board of Trustees to administer the EPF, EPS and EDLI Schemes, (ii) an Employees State Insurance Corporation to administer the ESI Scheme, (iii) national and state-level Social Security Boards to administer schemes for unorganised workers, and (iv) cess-based labour welfare boards for construction workers.
The Standing Committee on Labour (2020) had examined the 2019 Bill with similar provisions and recommended that the Code should provide a framework for achieving universal social security within a definite time frame.3 It made several recommendations for expanding the coverage of establishments, employees, and types of benefits. These include: (i) re-considering establishment-size based thresholds and expanding the definition of “establishment” to include other enterprise categories such as agricultural and own account enterprises, (ii) expanding definitions of “employees” to include Asha and Anganwadi workers, and “unorganised workers” to include agricultural workers, (iii) creating a separate fund for inter-state migrant workers, (iv) introducing unemployment insurance for unorganised workers and (v) and re-introducing labour welfare funds for workers in certain industries such as iron ore mines and beedi establishments.
Table 2 below compares the 2019 Bill, the recommendations of the NCL, the recommendations of the Standing Committee, and the extent to which the 2020 Bill incorporated these changes.
Table 2: Comparison of Bill with existing laws and NCL recommendations
Feature |
NCL Recommendations |
2019 Bill |
Standing Committee Recommendations |
2020 Bill |
||
Coverage |
|
|
|
|
||
Registration |
|
|
|
|
||
Portability |
|
|
|
|
||
Delivery |
|
|
|
|
Sources: Existing social security Acts; 2nd Report of NCL; Report of the Standing Committee on the 2019 Bill; 2019 Bill; 2020 Bill; PRS.
Provisions on gig workers and platforms workers are unclear
The 2020 Bill introduces definitions for ‘gig worker’ and ‘platform worker’. Gig workers refer to workers outside the “traditional employer-employee relationship”. Platform workers are those who are outside the “traditional employer-employee relationship” and access organisations or individuals through an online platform and provide services for payment. The Bill also creates provisions for unorganised workers. An unorganised worker is defined as one who works in the unorganised sector, and includes workers not covered by the Industrial Disputes Act, 1947, or other provisions of the Bill (such as provident fund or gratuity). It also includes self-employed workers. The Bill mandates different schemes for all these categories of workers. However, there may be some overlap between their definitions. We illustrate this below.
Consider the example of a driver working for an app-based taxi aggregator. Here, there is no employee-employer relationship. For example, appointment letters are not issued, social security benefits are absent, work hours are not regulated by the employer, and the driver may choose to work for a competitor taxi aggregator. Therefore, the nature of the work involved may lie outside the purview of a ‘traditional employer-employee relationship’, making him a ‘gig worker’. However, the driver is able to pursue this job only through an online platform. This would meet the definition of a ‘platform worker’ as well. Such a driver may also be an ‘unorganised worker’ as he may be self-employed. With such overlap across definitions, it is unclear how schemes specific to these categories of workers will apply. The Standing Committee on Labour examined similar provisions in the 2019 Bill and recommended: (i) expanding the definition of “unorganised workers” to include gig and platform workers, (ii) making the definition of “gig worker” more specific to avoid misinterpretation, and (iii) expanding the definition of “platform worker” to enable inclusion of future models of work.3 The 2020 Bill only incorporates the last recommendation.
Provisions on gratuity for fixed term workers unclear
Under the 2020 Bill, gratuity is payable if the employee has served a continuous period of five years. However, this time period will not apply if the contract term of a fixed term worker expires. The Bill further 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 Bill, 2020 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 Bills 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 Code on Social Security, 2020.
Mandatory linking with Aadhaar may violate Supreme Court judgement
The 2020 Bill mandates an employee or a worker (including an unorganised worker) to provide his Aadhaar number to receive social security benefits or to even avail services from a career centre. This may violate the Supreme Court’s Puttaswamy-II judgement.[16] In its judgement, the Court had ruled that the Aadhaar card/number may only be made mandatory for expenditure on a subsidy, benefit or service incurred from the Consolidated Fund of India. Applying this principle, the Court has struck down the mandatory linking of bank accounts with Aadhaar. Since certain entitlements such as gratuity and provident fund (PF) are funded by employers and employees and not by the Consolidated Fund of India, making Aadhaar mandatory for availing such entitlements may violate the judgement. Note that the Employees’ Provident Fund Organisation (EPFO) had made Aadhaar linking with PF accounts mandatory in 2015. After the judgement, the EPFO issued orders against the enforcement of these provisions.[17] Further, the rationale for seeking mandatory linking of Aadhaar for availing career centre services is unclear. Note that while examining the provision on mandatory linking of Aadhaar for registration of unorganised workers (in the 2019 Bill), the Standing Committee noted the government’s assurance that this provision will be re-examined.3
Recommendations of the Standing Committee
The Standing Committee on Labour (2020) had given certain other recommendations on the 2019 Bill. Further, some of the Committee’s recommendations on the 2019 Occupational Safety, Health and Working Conditions (OSH) Code, 2019, also applied to the 2019 Bill. We summarise these recommendations below and the extent to which the 2020 Bill incorporates these recommendations:
The 2020 Bill also defines the term ‘employer’ to mean a person who employs any persons and specifically includes certain categories of workers. In the case of a factory, employer means the occupier of a factory, i.e., the person with ultimate control over the affairs of the company. However, the remaining three labour codes define the term ‘employer’ to include occupier as well as the manager of the factory. It is not clear why managers of factories have not been included in the definition. Further, the Bill also does not define certain terms used to define an ‘establishment’. These include the terms ‘industry’, ‘trade’, ‘business’, ‘manufacture’ or ‘occupation’.
B.4 Key Issues in the Code on Occupational Safety, Health and Working Conditions, 2020
Rationale for some special provisions unclear
The 2020 Bill replaces 13 laws regulating health, safety and working conditions of workers. The National Commission on Labour (2002) recommended consolidation and simplification of these laws.2 Further, the Statement of Objects and Reasons of the Bill states that it seeks to simplify and amalgamate the provisions of the 13 Acts.[18] While the Bill consolidates existing Acts, it falls short of simplifying their provisions. We illustrate this below.
The Bill contains general provisions which apply to all establishments. These include provisions on registration, filing of returns, and duties of employers. However, it also includes additional provisions that apply to specific type of workers such as those in factories and mines, or as audio-visual workers, journalists, sales promotion employees, contract labour and construction workers.
It may be argued that special provisions on health and safety are required for certain categories of hazard-prone establishments such as factories and mines. It may be necessary to allow only licensed establishments to operate factories and mines. Similarly, special provisions may be required for specific categories of vulnerable workers such as contract labour and migrant workers. However, the rationale for mandating special provisions for other workers is not clear.
For example, the Bill requires that any person suffering from deafness or giddiness may not be employed in construction activity which involve a risk of accident. The question is why such a general safety requirement is not provided for all workers. Similarly, the Bill provides for registration of employment contracts for audio-visual workers, raising the question of why there is a special treatment for this category.
Further, the Bill specifies additional leave for sales promotion employees. It also specifies that working journalists cannot be made to work more than 144 hours in four weeks (i.e. an average of 36 hours per week). For all other workers covered under the Bill, the minimum leave and maximum work hours are prescribed through rules. The rationale for differential treatment with regard to working conditions between working journalists and sales promotion employees on the one hand, and all other workers on the other hand, is unclear.
Note that, if any sector-specific provisions are needed, the Bill empowers the government to notify them.
Table 3 below sets out the general provisions in the Bill applicable to all workers and the additional special provisions applicable to specific categories of workers and establishments under the Bill.
Table 3: Comparison of the general provisions and special provisions in the 2020 Bill
Feature |
General Provisions |
Specific provisions |
Duties of Employers |
|
|
Working conditions and welfare facilities |
|
|
Dangerous operations |
|
|
Inspector |
|
|
Licenses and other registration requirements |
|
|
Work hours |
|
|
Leave |
|
|
Disability |
|
|
Age |
|
|
Sources: Bill on Occupational Safety, Health and Working Conditions, 2020; PRS.
Civil Court barred from hearing matters under the Code
The 2020 Bill bars civil courts from hearing any matters under the Bill. In some matters where persons are aggrieved by the orders of authorities such as, by the order of the Inspector-cum-facilitator in the case of factories, or by the revocation of a license for contractors, the Bill provides for an administrative appellate authority to be notified. However, it does not provide a judicial mechanism for hearing disputes under the Bill.
Under the existing 13 health and safety laws, claims which affect the rights of workers such as wages, work hours, and leave, are heard by labour courts and industrial tribunals. However, the Bill bars the jurisdiction of civil courts, and does not specify that such disputes arising under it may be heard by these labour courts and tribunals.
Further, there may be other health and safety-related disputes. For example, an employer may wish to challenge an order passed by an Inspector which identified certain safety violations at the workplace. In such a case, the employer may file a case in the civil court for seeking remedy against the orders passed by the Inspector. Appeal may be filed before the High Court and ultimately before the Supreme Court. However, the Bill bars civil courts from hearing any dispute under the Bill. As a result, employers who are aggrieved by the orders of the Inspector and by the notified administrative appellate authority will not be able to challenge it in a civil court. The only recourse available to them would be to directly file a writ petition before the relevant High Court. It can be argued that the bar on civil courts from hearing matters under the Bill may deny aggrieved persons an opportunity to challenge certain issues before a lower court.
[1]. List of Central Labour Laws under Ministry of Labour and Employment, Ministry of Labour and Employment.
[2]. Report of the National Commission on Labour, Ministry of Labour and Employment, 2002, http://www.prsindia.org/uploads/media/1237548159/NLCII-report.pdf.
[3]. Report No. 4: “Occupational Safety, Health and Working Conditions Code, 2019”, Standing Committee on Labour, Lok Sabha, February 11, 2020; Report No. 8: “Industrial Relations Code, 2019”, Standing Committee on Labour, Lok Sabha, April 23, 2020; Report No. 9: “Code on Social Security, 2019”, Standing Committee on Labour, Lok Sabha, July 31, 2020.
[4]. “Towards an optimal regulatory framework in India”, Implementation Group, Planning Commission, 12th Five Year Plan.
[5]. “Reorienting policies for MSME growth”, Economic Survey 2018-19.
[6]. “Report on Conditions of Work and Promotion of Livelihoods in the Unorganised Sector”, NCEUS, August, 2007.
[7]. “Labour and Labour-related Laws in Micro and Small and Enterprises: Innovative Regulatory Approaches”, International Labour Organisation, 2007.
[9]. Union of India vs. Textile Technical Tradesmen Association (2014), Madras High Court, 2014 (6) CTC 427.
[10]. Telugunadu Work charged Employees State Federation vs. GOI, Andhra Pradesh High Court, 1997 (3) ALT 492.
[11]. Notification GSR 235(E), Ministry of Labour and Employment, March 16, 2018 https://labour.gov.in/sites/default/files/FTE%20Final%20Notification.pdf.
[12]. “Non-Standard Employment Around the World”, 2016, International Labour Organisation, https://www.ilo.org/wcmsp5/groups/public/---dgreports/---dcomm/---publ/documents/publication/wcms_534326.pdf.
[15]. Periodic Labour Force Survey Report (2018-19), Ministry of Statistics and Programme Implementation, June 2020.
[16]. Justice K.S. Puttaswamy Vs. Union of India, Supreme Court, Writ Petition (Civil) 494 of 2012, September 26, 2018.
[17]. Seeding KYC details in UAN Portal, Employees’ Provident Fund Organisation, October 18, 2018.
[18]. Statement of Objects and Reasons, The Occupational Safety, Health and Working Conditions Code, 2020.
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