There is a debate on what the New Labour Codes recently enacted by the Modi Government mean for the Working-class of the country. The government and the ruling party are claiming that nearly 29 labour laws of the country are simplified into 4 Codes without causing any prejudice to the existing rights and benefits of the workers and in a way that would lead to “ease of doing business” and attract more investments. They are also claiming that more workers, particularly those in the unorganised sector, are covered under the new codes in respect to minimum wages and social security like E.S.I., P.F and Pension etc.
Some quarters of the industry and business are hailing this as a historical change that would usher in a new era in labour sector. They base their arguments on certain numerical details which inform that the 44 central Acts have 1458 sections, 937 compliances and 135 filings whereas the new Codes have only 480 sections and that as per existing Acts 20 registers have to be maintained whereas it is enough with 1-2 as per the new Codes. Some are sceptical about the claims of the government regarding this “simplification” etc. They say that still a quarter of central labour laws are outside the new Codes and only one tenth of labour laws are those of the central government and many laws at the state level also need be changed.
On the other hand, the “left” and some other political parties, various Trade Unions and some others are complaining that the new Labour Codes are taking away many of the existing hard-won rights of the workers and making hire and fire of workers easier for the industrial managements.
Notwithstanding the hypocrisy involved, the following report gives a fairly objective picture of the Modi Government’s moves:
The BMS, an affiliate of the Rashtriya Swayamsevak Sangh (RSS), at its 19th National Conference, inaugurated by RSS chief Mohan Bhagavat, passed six resolutions seeking the “ withdrawal of anti-worker provisions in the new Labour Codes”; “ a consultation meeting with BMS and other trade unions”; resolved to organise country wide “warning week” and even “nation wide protests”. It threatened a “continuous agitation thereafter, including national level strikes to protect right to strike and other labour rights”. It spoke of “ imported predatory economic and labour reforms and defective policies of the capitalist paradigm are responsible for landing our job generation in a sorry state of affairs;” and demanded that central and state governments should stop the “brutal way of amending Labour laws, desist from indulging in ‘ordinance raj’ in labour sector and respect the views expressed by social organisations.” In a separate resolution, the BMS welcomed the Supreme Court decision of scrapping Gujarat labour reforms.
(Hindustan Times, October 06, 2020).
Ground Reality: Rights are more formal than real:
Any compliments or criticisms should be based on the ground situation what was existing before these Codes are enacted, what changes are actually made with respect to the rights of workers, particularly in the realm of Right to Organisation and Struggle, and what would be the implications of the changes. What is the ground situation? Almost a century after labour laws were made ( in British India), today, hardly 7–8 percent of workers are in organised sector, and the rest are unorganised being deprived of many basic rights. It shows how these laws are more on paper. Between 50 to 75 percent workers in all, including in Government and Public sectors, are working in categories such as casual and contract labour and are denied many rights, including “equal pay for equal work”, written as directive principles in 1950 Constitution, despite many Court judgements including the latest by the Supreme Court a couple of years ago. This is indicative of how labour rights in general are more formal than real, very much like India’s formal democracy.
It should be remembered that this matter of reforming the Labour Laws has been there since the Janatha party (1977-79) government, which tried in vain to bring about “the Industrial Relations Bill”. This again came on to the agenda after the Narsimharao Government ushered in the policies of “Liberalisation”, “Privatisation” and “Globalisation” (LPG). It is to be noted that even before this consolidation into 4 Codes, which was proposed back in 2002 by the central law commission, several amendments were made to the existing Labour laws that are prejudicial to the rights of workers, and to their disadvantage, in the wake of these LPG policies, particularly by various state governments.
Firstly, the claim of the government that the existing labour laws are “simplified” can not be accepted. In stead of simplification, certain existing laws were only just merged or amalgamated into four Codes, almost copying the old, thus just reducing the number of law books. There are some changes, modifications, deletions and additions which cannot be treated as simplification.
The claim that more number of workers, even every worker in respect of minimum wages etc., are covered under the new laws is to be tested only after the government passes rules to implement the said laws and in their actual enforcement by the government. Until then, these new laws can at best be regarded as “statutory promises” made by the government. The experience shows that the present so called labour welfare and social security laws like Minimum wages Act, Bonus Act, Gratuity Act, E.S.I Act and P.F Act are not being implemented and enforced for lakhs of workers who are eligible for the benefits under these laws. Therefore the fate of “universalisation” claimed by the Modi government is to be imagined keeping this fact in view.
Let us then look into the criticism that the new Labour Codes are taking away many of the existing rights of the workers. There is a view that the existing Labour Laws are in favour of the Working-Class and they confer many rights on the workers. Many trade unions including those led by the official left parties subscribe to this view. Interestingly, this has also been the clamour of the Capitalist-Class in India.
However, in reality, the existing Labour Laws do not confer any real and effective rights on the Working-Class Vis-à-vis the Capitalist-Class or the Industrial Managements. On the contrary, the existing laws create many fetters on the Democratic Rights, of workers, to organise and struggle. Let’s see how.
The New Code and the existing Laws: A comparison:
I deal herein this article only with the “Code on Industrial Relations, 2020, into which existing Trade Unions Act, 1926 and the Industrial Disputes Act, 1947 are now merged, together with one other law. I wish to make a comparison between the Code on Industrial Relations,2020 and the said two existing Acts merged into it as they are the basic laws which have relevance to the basic democratic rights, such as rights to organise and struggle, of the working-class. These were enacted by the British colonial rulers before the “independence” and in different historical and political contexts. The British rulers wanted to show that they were following Rule of Law as in UK and that in India it was not an un-British Rule. Communists and Leftists, inspired by Russian Revolution (1917) were entering and organising working-class in India. The British thus faced a necessity of regulating and containing the working-class struggles that were rising against the exploitation and oppression by the new class of Industrial Capitalists, both foreign and native, as also against the colonial rule. The British wanted to stem the tide of working–class struggles and divert them from the path of strikes etc. also during and after the second world war. This is the background and basic purpose behind the enactment of the Labour Laws by the British.
The Trade Unions Act, 1926 does not confer any express and enforceable right on the workers for forming and organising a trade union nor provide any guarantee to the protection of such right. The fact that even today a very small section of workers in India are unionised confirms the same.
This Act mostly provides for certain procedures for registration of trade unions etc. and for related matters. (A registered Trade Union alone can seek any legal remedy before any forum instituted under various labour laws and a union which is not registered will not be allowed.) The absence of such express right and statutory guarantees and the political and economic conditions prevailing in our country makes it much difficult for the workers to form into and organise a trade union. They have to take up this task against several obstacles and measures of suppression by the employers helped and supported by the government machinery. It cannot be an exaggeration to say that almost every trade union in this country was not born a “Krishna” without being haunted by a “Kamsa” (Krishna and Kamsa are the characters in the epic Bhaghavatha).
The heartrending stories of the workers of the Regency Ceramics Ltd., Yanam(Pondicherry/AP) and of Maruthi Udhyog Ltd., Haryana are only fresh memories that describe how forming into a trade union is a hard task for the workers and the history of the birth of almost every trade union in the country is a story by itself. (FITU associated with the former where a union leader, named Murali Mohan, was killed in police action at the behest of the management.) There were many a workers/ leaders of trade unions who were killed, attacked, imprisoned, dismissed from jobs and repressed in many other ways. The Trade Union Act, 1926 could never come to their rescue, nor could the much celebrated Constitution where under its article 19(1) the “Fundamental Right to Association” is enshrined.
There is not a law nor any workable legal mechanism to restrain an industrial management from committing such suppression of the trade union democratic rights of the workers, simply to foil formation and registration of a union. The Labour Department of the government, the Political leaders of the ruling classes, the Police and the Courts, all, wittingly or unwittingly, have been acting against the workers in this regard, in majority of the cases.
The formation of union itself is a celebration for workers which exposes the ground reality. It is indeed the unity and struggles of the workers and their leaders, with many sacrifices, that ensured the exercise of this so called fundamental right.
It is not any exaggeration that many trade unions are allowed to live only at the mercy of the managements, only if the said unions agree to work within the confines prescribed by the managements and collude with the managements in the exploitation and suppression of workers. Or, the managements themselves create, get registered and recognise a fake rival union to counter the genuine union of the workers. Or, sometimes they get a union de-registered on some trumped up excuse, as it happened in Sanghi Industries, Hyderabad.
Such bureaucratic, capitulating and corrupt trade unions have added themselves to the number of adversaries confronted by the workers. Many such unions are bought over by the managements. All such unions could maintain their sway not by any power emanating from trade union and labour laws but only due to the patronage extended to them by managements and the ruling class parties.
The scenario was further deteriorated against the workers with the economic reforms after 1991 and with the contract workers outnumbering the regular workers in every industry. Without any amendment to the Trade Unions Act, 1926 itself, the emasculation of trade union movement in the country has been achieved. The factors that led to such development have to be sought from the political economy of the country, the polices of the governments, the level of political consciousness of the workers and the policies and practice of the so called left and working-class parties rather than from the Labour Legislations.
It is worth mentioning here that there are a good number of zealous and committed trade unions which functioned for years and conducted successful strikes, even without registration under Trade Unions Act, securing several rights and benefits to its member-workers. We had such experiences, as in a fertiliser unit at Kakinada and in a ceramic unit at Samalkot.
Predictably, the new Code also does not confer any such trade union rights and guarantees on the workers. The provisions relating to trade unions in the present “Code on Industrial Relations, 2020” are almost similar to that of the existing Trade Unions Act, 1926, albeit with some more fetters on the trade union rights of the workers. The procedure for registration of trade unions had been already made more complicated by an earlier amendment to the Trade Unions Act,1926, which stipulates a condition that 10% of the workers of the establishment or 100 workers, whichever is less, should be members of the union for registration. The new Code has reiterated the same. No time limit is prescribed for the authority for completing the procedure of registration of the union. The authorities are keeping the applications for registration for longer times and allowing the employers to suppress the union in the mean time.
The anti- worker and pro-employer attitude of the rulers can be seen from the fact that it is incorporated in the new Code on Occupational Safety, Health etc., that, if the application for registration of establishment of the employer is not disposed of in the prescribed time, the establishment shall be deemed to have been automatically registered. But no such condition is incorporated for registration of Trade unions.
In the existing Trade unions Act the definition of “trade union” includes an unregistered union, but as per the definition of “trade union” in the existing Industrial Disputes Act,1947, trade union means only “a union registered under Trade Unions Act, 1926”. In the present Code on Industrial Relations the definition of “trade union” is, mercifully, as it is in the existing Trade Union Act, but not as it is in the ID Act,1947. However, a definition of “registered trade union” is incorporated to mean “a union registered under the Code”.
Hitherto, there are no uniform legal provisions in all states to deal with a situation where multiple trade unions are operating. Of course, there is a “Code of Discipline”, formulated in accordance with a tripartite agreement between the Central Government, the Associations of Employers and Central Trade Unions, which is not a law, to determine the majority/recognised union for a period of two years to negotiate with the managements of the industries where more than one trade union are operating. Now, in the present Code, the provisions for this have been codified. The concepts of “negotiating union” and “negotiating council” have been enacted. However, in case single union is functioning, a condition that such union should have 51% of the workers on the rolls of the establishment as its members for securing the status of a negotiating union is prescribed, which would disqualify a considerable number of unions to attain the same in practice. ( A party like modi-led BJP can rule India with 38% vote, and a union needs 51% workers’ backing! India since 1951 election never had a ruling party that had 51% vote. In several countries a re-run poll is held to get 51% vote.) Further, where more than one trade union are operating, a negotiating council is to be formed with those unions who have 20% of workers of the establishment as its members. In practice most of the unions would become ineligible for taking part in the said Council.
It is noteworthy that veteran and illustrious working-class leaders like Com.Vuppuluri Subbarao (founder of FITU, AP) have made valuable and successful experiments in the workers’ movements to form “joint negotiating committees”, of various unions of workers where multiple trade unions were operating and led united, militant and victorious struggles of workers. ( in A.P.PAPER MILLS, RAJAHMUNDRY, AP, in 1980s). Eventhough there was no law in favour of these experiments Com.Subbarao could do it, the workers of the industry concerned followed it and the other trade unions had to fall in line with the workers. Now the provisions of the present Code in this respect only create legal impediments to such initiatives of the working-class to get united themselves.
In the present Code, the number of outside leaders i.e., non-workers permitted in the committee of office bearers of unions in organised sector is reduced to one third from the existing 50% of the total number of office bearers. There is a judgement of Supreme Court holding that it is the fundamental right of a management not to negotiate with an outside/non-worker leader. When there is no statutory obligation on the part of the management to entertain a non-worker leader and with the said judgement of the apex court, the difference in the composition of the committee of office bearers is of no consequence. The code, however, hands out a piece of carrot that the retired or dismissed or retrenched workers shall not be considered as outsiders in this regard.
The Central government and the State governments are empowered by the new Code to recognise a Central Trade Union and a State Trade Union, the procedure for the same and the procedure to resolve any dispute in respect of such recognition are to be prescribed by the government. There would be possibility of marginalisation of unions other than so recognised and those who would not be affiliated to such recognised unions. Ruling parties at the centre and in states could encourage the unions owing political allegiance to them and suppress the other unions.
The fact that about 90% of the workers are in unorganised sector and have no unions makes irrelevant any debate on the differences between the existing Trade Unions Act and the related provisions in the new Code.
The existing Industrial Disputes Act,1947, which was amended several times by both the central and various state governments, is regarded as conferring some rights on the workers, particularly with regard to retrenchment/termination of services of workers and lock-out, lay-off and closure of industrial establishments.
Section-25F of that Act prescribes certain conditions to be fulfilled by an employer before retrenching (termination of services) a workman who completes 240 days of service during 12 months, namely issue of prior notice and payment of Compensation. The first notable point in this is that if the said conditions are followed every retrenchment becomes legal, though not justified. Secondly, in the early days, to circumvent the law, several managements discontinued workers for a brief period before completion of the said 240 days and reappointed thereafter, so that they could remove them from service without following the prescribed conditions. This practice went on for many years and was given up by many managements after the apex court held the same as abuse of law in a number of cases. Thereafter, an exception to the definition of “retrenchment” under section 2(oo)(bb) was added by means of which the employers can retrench a workman without fulfilling the conditions mentioned above, if there is a term in the contract of employment stipulating the period of expiry of the contract. This exception was abused by many managements and only a few workers, thus removed from service, could get relief from courts after prolonged litigation. The field experience is that these provisions cannot prevent any management to retrench (remove from service) at will any worker.
When a workman is retrenched in violation of these provisions there is not any authority or mechanism to ensure his immediate reinstatement. An industrial dispute has to be raised before a Labour Commissioner who can not direct the employer to reinstate the worker but only can advise and can forward it to the government which in turn “may” refer the dispute to a Labour Court for adjudication. The procedures to be followed in this regard makes it much difficult for a considerable number of individual workers to seek this legal remedy.
As per the central Act, until an amendment has been made in 2015, a retrenched workman cannot directly approach the Labour Court and he has to approach the Labour Commissioner who acts as mentioned above. There are state amendments in this regard like in AP in 1984 which facilitate a retrenched/dismissed worker to directly approach the Labour Court. If the Labour Commissioner or the government commits any technical or procedural mistake in referring the dispute to Labour Court the said reference would be rejected as bad in law. Further the workman has to prove before the Labour Court that he is a “workman” as per the Act and that he completed 240 days of service. The burden of proof lies on the worker. Many employers do not leave any documents of proof with the workers in this regard.
Again there will be High Courts and Supreme Court from which the employer could obtain stay-orders against the awards passed by the Labour Courts. The employer could meet all the expenditure of court and litigation and purchase many things meeting the same from out of the company-funds and what would be the capability and position of a poor removed workman in this respect can only be imagined.
With regard to Lay-off and Closure of industrial establishments there are two different chapters in the existing I.D.Act, one is applicable to establishments with workers above 50 and below 100, and the other to those with 100 and above workers. As per both these two chapters the workmen laid off or retrenched on account of Closure are entitled for notice and compensation. However the compensation of payment of 50% wages for the laid off workers is limited for 45 days only and no compensation is to be paid for further period of Lay-off. It shall be lawful for the employer, as per this Act, to retrench the workers under such circumstances. No compensation shall be paid to workers in an establishment where below 50 workers are working and to those who are working in establishments of a seasonal character, when they are laid off. Thus a large chunk of workers who are employed in these units are excluded.
Then, the important difference between the two chapters is that, in the establishments with 100 and above workers, the employer is required to obtain the prior permission of the appropriate government to effect a Lay-off or a Closure, failing which those acts will be illegal and the workers will be eligible for full wages for the period of illegal Closure. ( This is not required in respect of industries with workers below 100 and in respect of workers in an establishment of seasonal character). These provisions are shown as the major stumbling block for the employers to hire and fire the workers. The reality is otherwise. If the government does not dispose of an application by an employer for permission to close down an establishment, within 90 days, then, the permission will be deemed to have been granted. There were number of instances where industrial establishments were closed without obtaining the required permission from the government and not even paying any compensation to the workers at least. Again the workers have to run around the authorities and courts. They could do it only if they have a functioning union.
Several managements are borrowing loans from banks by way of mortgaging the properties of the company, diverting them in fraudulent methods, driving the industry into bankruptcy and closing down the establishment illegally without making payments of compensation and other statutory dues to the workers, leaving the latter in lurches. The Banks would initiate recovery proceedings under the Securitisation Laws and would sell away the properties of the company. The Banks and the Debt Recovery Tribunals concerned will have a legal obligation to apportion the money realised through the sale of properties with the dues payable to workers only when the company concerned is de jure liquidated. Many employers won’t file any winding up petitions at all in appropriate courts. Even if a winding-up petition is filed, unless the Company Court does not pass an order of liquidation of the company, the workers will not become eligible to claim their dues from the sale proceeds of the property. The workers have to fight not only with the employer but also with the Banks which becomes a herculean task for them. Many a time the employers and the Bank officials are colluding with each other depriving the workers of their statutory dues. There are numerous cases pending for decades before different courts ranging from Labour Court to Supreme Court in respect of many illegal Closures.
The plight of the workers of Kirlampudi Sugar Mills at Pithapuram in A.P. is a glaring example. It is a story by itself that needs to be told. (The author of this write up is the President of the union of the said workers.) The said workers have been relentlessly fighting for their statutory dues like closure compensation etc. for the last 20 years, running around several courts. 83 workers out of 421 died during this period and, a few days back, the Managing Director of the company also passed away and yet the matter is still pending. Fearing all these hurdles and hardships, the workers of several closed industries are succumbing to employers and their agents including corrupt trade union leaders and satisfying themselves with whatever was paid to them, whether it is in accordance with law and justice or not. It is not that there are no employers at all who followed the provisions of the Law, they can only be an exception.
Now in the present Code on Industrial Relations, the above mentioned number of workmen in respect of “50-100” is increased to “100-300” and in respect of “100” and above is increased to “300” , meaning that no prior permission of government is required for Lay-off and Closure of any establishment with workers below 300. (The Andhra Pradesh state government had raised this ceiling from 100 to 300 in 2015 itself). As with the modernisation and technological changes and as the number of regular workers is increasingly being downsized the above mentioned change in the law implies that an overwhelming number of workers will be outside the net of the said statutory protection. What is going on in practice hitherto is legitimized with the new Code. In the absence of enforceable trade union democratic rights and with the weakening of trade union movement it is highly unimaginable that even in the case of establishments with 300 workers and above the Law will see implementation. Violations have little by way of punishments for the employers. So they violate with impunity.
The new Code retains the conditions to be fulfilled by an employer before retrenchment of a workman.(provisions under section 25F of existing Act.) However, the exception to the definition of “retrenchment” under section 2(oo)(bb) of the existing act, that is being abused by some employers to evade notice and compensation when a workman is retrenched, is now further expanded with one more exception by introducing the category of “fixed term employment”. (This is euphemism for ever increasing contractualization of work force.) This empowers an employer to retrench a workman, who is appointed with a fixed term of employment, without issuing prior notice and paying compensation. It is obvious that these exceptions will be made rule by the employers. This is the art mastered by the rulers of this country, of making “rules” in favour of workers and killing them with “exceptions”. The rulers are somewhat generous to stipulate in the new Code that the hours of work, wages, allowances and other benefits of a worker appointed under the “fixed term appointment” shall not be less than that of a permanent worker doing the same work or work of same nature and the worker under fixed term employment is entitled for gratuity after completing one year service. ( This is a sugar coating for the bitter pill of contractualization. A fixed-term employee can not raise his voice against any violation of these conditions. )
The definition of “industrial dispute” in both the existing I.D.Act and the new Code makes an individual workman ineligible to raise a dispute on any matter except on the question of discharge and dismissal from service. ( Individual rights of a liberal democracy are thus denied to working-class ). Either a trade union or a group of workers has to raise such disputes. Further, a retired worker is not treated as “workman” in respect of any dispute other than discharge and dismissal. If there is no union or other workers do not support him, the individual workman cannot raise a dispute. These difficulties in the existing Act were not removed in the new Code. Employees working with the designation “supervisor”, receiving wages more than certain amount, are excluded from the definition of “workman”, both in the existing and new laws. Several employers designate employees as supervisors, officers and jr.officers etc. though they work as workman, to make the law inapplicable to the latter. No labour official is empowered to inspect their actual nature of duties and ensure proper designation, leaving it open for camouflage or subterfuge of a “higher” designation.
Right to Strike: A legal mirage:
With regard to right to strike, it is a notable fact that it is not guaranteed under any provisions of the Constitution. There are laws like ESMA which can be used by the government to prohibit any strike and punish those who participate, even help those participate, in a strike so prohibited. The Existing Industrial Disputes Act,1947 is not conferring any right to strike on workers. It is only a deduced right. On the contrary it is containing clauses prohibiting strikes in “public utility services”, by way of prescribing certain conditions to go on a strike. The relevant section(22) of the Act is literally designated as “prohibition of strikes and lock-outs”. Another section 23 is designated as “General prohibition of strikes and lock-out”. According to these provisions worker shall not go on strike,
- Without giving a notice before 14 days,
- After expiry of six weeks from the date of such notice,
- Before the expiry of the date specified in such notice,
- During pendency of conciliation proceedings before the labour authority,
- Until completion of seven days after such conciliation proceedings are closed,
- If the government refers the demands of the strike to a labour court, during the pendency of proceedings before the Labour Court,
- Until completion of adjudication of the demands by the Labour Court
- If an award is passed by the Labour Court, irrespective of the fact whether it is wrong or right, during the operation period of such award.
Thus it is like hurdles race for the worker, each of the above being a hurdle. Then, when can a worker go on a strike, it is anybody’s guess. Thus the existing Act itself created numbers of strong fetters on the birth right to strike of the workers. Of course it may be argued, rightly so, that these are applicable only to the workers in industries designated as public utility services. It is the prerogative and discretion of the appropriate government to designate a particular industry as a public utility service. A considerable number of industries are brought under this category. Further, in many industries other than public utility services, “standing orders”, which in several cases are patently unconstitutional and illegal but are an effective deterrent, will be there which prescribe similar conditions in respect of strikes.
Now, in the new Code this prohibition of strikes and the related conditions are made applicable to all establishments i.e., to all workers. Thus the doctrine of equality is followed in creating fetters on the right to strike of workers. Further, the definition of “strike” was broadened to include a mass casual leave by more than 50%of workers of an establishment also as strike.
Both the existing Act and the new Code treat both a “lock-out” by (a mighty) management and a “strike” by (weak) workers on equal footing. As per this, a lock-out declared in consequence of an illegal strike is legal and a strike declared in consequence of an illegal lock-out is legal.. Thus the employers are handed out a weapon in the name lock-out to suppress a strike calling it illegal. An employer can declare a lock-out to defeat the strike by workers. But what would be the use for workers in declaring a strike when they were already thrown out by a lock-out, legal or otherwise? This is hailed as equality before law! Given the above described hurdles, it is almost impossible for the workers to take up a “legal” strike. Several courts including the Supreme Court upheld the principle of “No work No pay” in respect of wages for the period of strike, legal or otherwise. With this principle a justified and legal strike for enforcement of statutory rights also gets punished with denial of wages for the strike period.
In addition to these fetters there will be several other acts of victimization on the striking workers in many ways by the managements. Stopping payment of due wages is one such measure. The managements use all unjust and unfair, sometimes heinous, methods to defeat the strike. They call new workers to break the strike. The police would come into the scene, help and collude with management and restrain the striking workers in many ways. Several High courts would intervene and direct workers to call the strike off. These are all not assumptions but what had taken place in reality several times. The judgement of Supreme Court in the case of Tamilnadu government employees, though not applicable to industrial workers, well informs the attitude of the courts in respect of right to strike. (The Tamilnadu Government (2003) dismissed more than 1.7 lakh employees at one pen stroke for participating in a strike prohibited under ESMA, without calling for any explanation and conducting any enquiry. The government brought about an overnight and unconstitutional amendment to the provisions of ESMA empowering itself to dismiss the employees from service in such a way. The Supreme Court, instead of examining the illegality and unconstitutionality of these actions of the Tamilnadu government, stated in its judgement that the government employees have no legal, constitutional, moral and equitable right to strike.)
One more existing Act that is merged into the present Code on Industrial Relations, 2020 is the Industrial Employment (Standing Orders) Act,1946. This Act provides for procedures for certification of “standing orders” (like service rules) which define certain matters relating to the conditions of employment viz., category of employees, age of superannuation, leaves, shift working hours, holidays, disciplinary actions like suspension and dismissal and list of misconducts on the part of workers etc. The existing Act is applicable to establishments with workers 100 and above whereas the related provisions in the New Code are applicable only to establishments with 300 and above workers. Therefore there will not be any statutory service conditions for a majority of workers.
However, it is the reality that most of the workers would come to know about these “Standing Orders” mostly when they face a disciplinary action by the management when the later quotes those orders in the Charge Sheet or Suspension order etc. Instead of ensuring better service conditions, these Standing orders are mostly designed and drafted to be useful to the managements for victimising the workers in the name of disciplinary actions. There are often unconstitutional and illegal conduct regulations in the standing orders, particularly in respect of Government and PSU employees, making them second rate citizens denying political rights available to a citizen.
The most notable change made in the New Code in respect of this Act is that, it diluted the right of a worker to receive “subsistence allowance” (50% of basic wages) when he is placed under suspension pending a departmental enquiry into charges levelled against him. In the existing Act, this right is directly incorporated under section 10-A of the Act. A workman, covered under the existing Act, is thus entitled for the said allowance notwithstanding the fact that a specific provision in this respect is not incorporated in the “standing orders” of the particular establishment in which he is working. In the present new Code this direct provision has been removed and it is prescribed that the “standing orders” of any establishment covered under the Code shall provide for payment of the said “subsistence allowance”. There will be “model standing orders” to be prescribed by the government and they would contain necessary provisions in this regard. A direct statutory right has been made indirect and thus weakened. Many managements are using suspension as a means of victimization and intimidation of workers, particularly those who actively participate in trade union activities. We have seen in APSRTC, that at any given time, a few thousand workers are under suspension, often on frivolous charges, which fact was also admitted by the management. ( unions and co-workers cannot go on strike with a demand to revoke “suspension pending enquiry” imposed against any workman, as such suspension is not considered as a punishment, according to the existing laws itself). The new Code prescribes, as an eye-wash, that a departmental enquiry shall be completed in 90 days.
Thus a close and comparative reading of the new code, with the existing enactments, combined with ground experiences, shows us that under the mask of simplification, the new code has imposed more fetters, obstacles, difficulties and repressive measures by managements as well as by governments, to suit the policies in favour of foreign imperialist capitalists and a handful of Indian Big Capitalists. Even the BMS says that the labour reforms are “imported”.
There is no room in the existing laws for the working-class of India to nurse any illusions. Nor they should feel fettered by the new Labour Codes. Strike is a birth right of the working-class, law or no law. They must unite and fight; there is no other easy way.
The plight of the working-class of India finds its explanation more in ever growing unemployment and retrenchments and in lack of enough industrial development which would result in shrinking their bargaining capacity vis-vis with the employer class. Under these circumstances the workers are not able to be in a position to exercise whatever rights said to be conferred on them formally by Law. Further, when governments at both the Centre and the states are pursuing the policies in favour of foreign imperialists capitalists and a handful of Indian Big comprador and crony Capitalists and treating the workers’ rights and welfare as obstacles to “development” what labour law, however beneficial it may seem to be, could be hoped to be implemented? More so when the whole labour administration and machinery including courts are callous if not hostile towards workers.
Likewise, the fundamental impediment for the entrepreneur class in India in the way of developing industry and trade is not the labour laws and rights of workers.
Strikes in India have been fewer and fewer and far between: Annual man-days lost due to labour disputes in early 1990s averaged around 27 million. By 2010 the average dropped by about 30% despite an expanded labour force. In 2017, only 11.73 lakh mandays were lost due to strikes, despite low wages, and no security of service, with more and more of casualization of work force. They were never a hurdle for industrialisation.
It is really a stagnant economy, despite all measures for ease-of-business. There is a lack of vibrant domestic market, consumers having poor purchasing capacity, which cannot be expected to grow unless and until the rural people, the overwhelming majority (nearly 70%) of the population of the country, are liberated from the yokes of semi-feudal and all kinds of exploitation and oppression in the villages. Unless there is an agrarian revolution, abolition of landlordism and distribution of land to the tiller, this stagnation will not leave India, despite all liberalisation, FDI and incentives.
In the final analysis, the new Code on Industrial relations leaves a stern warning to the working-class that the present government in power at the centre imposed labour laws which are more draconian, anti-worker and pro-capitalist, than the laws ushered in either by the British or by all successive Indian governments. It reminds the working-class of India that united struggles in a proper path are only the way to exercise and protect their rights and interests.. The working-class and those genuine and national capitalists in the country as well need to fight for independent and democratic economic, industrial and political policies which guarantees their democratic rights.
The all India Strike proposed for Nov 26 opposing these labour law amendments, which needs to be supported by one and all, is only one token step in the much needed efforts in order to compel the BJP led NDA government at the centre to roll back the new Labour Codes and to activate the trade union movement that should become more political and militant against the ruling classes.
( A discussion on the other three new Labour Codes can be seen in Part.2, as a sequel to this article.)
Ch.S.N.Murthy is a Trade Union Leader, General Secretary of Federation of Independent Trade Unions, FITU from Andhra Pradesh. He is a functionary of UCCRI-ML founded by veteran communist revolutionaries D.V.Rao and T.Nagireddy. He can be reached at: [email protected]
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