This article is written by Dhanshree Sharma, Student, Rajiv Gandhi National University of Law, Patiala.
At the dawn of the industrial revolution, it was observed that capital and labour were the two essential factors of production in the process of industrialization. Subsequently, with the rise of capitalism in the west, it was considered imperative to integrate labour welfare in the general agenda of the government; and thus a need for labour standards emerged.
Any national substructure of labour laws is a result of the socio-political variables, legal maturity and tradition. And as it progresses it does not rely upon the theoretical scheme of practice, instead, it tries to make the market conform to the law while being oblivious, to some measure, to the pressure exerted by the market to make the law adapt to the economic changes. This duality generates a divide between the labour laws and the labour market, which is closely followed by disequilibrium in the system. But it moves in tandem with the labour market perpetually advancing against labour laws. This means that the labour law causes an imbalance in the advancement due to lack of social security. And the duality, even now, reflects the tension between the labour laws and the labour market, where the former demands ‘decent work’ while the latter insists on modernization.
Decent work under International Labour Organization
In 1999, in the International Labour Conference, it was declared by the International Labour Organisation that, “the primary goal of the ILO is to promote full, productive employment and decent work for all globally. Decent work is the availability of employment for both men and women in conditions of freedom, equality, security and human rights”.
In furtherance of this, decent work was understood to be the ambition of the people at their workplace. It would entail the indispensable components along the lines of the Maslow’s need hierarchy, that is, physiological, safety and security, self-esteem and self-actualization needs.
The ILO, later, put together four vital components of decent work need for fairer globalization and reduction of poverty.
Right at Work
The right at work is a concrete representation of the legal framework ensuring equality, freedom, adequate remuneration and representation, social security and dignity of the workers. The rights to form associations and prohibition of child labour are the foundational rights identified by the ILO.
The definition of decent work under employment has a wider ambit than what is most commonly understood by ‘employment’; like the full-time, part-time and the casual labour work done by women and children. In order to meet the requisite standards, there should be adequate wages and salaries with enough personal disposable income, to satisfy a worker’s basic needs, corresponding to sufficient employment opportunities.
Subject to the unprecedented contingencies and exigencies during a worker’s lifetime, decent work aims to provide security against it; with a separate plan catering to the needs of the disabled, orphans and single parents. It is considered that it is up to the discretion of the government, to strategize the social protection of its citizens in view of the identified contingencies to be covered against.
The social dialogue is an opportunity for the people to promote and defend their interest, voice their grievances, engage in discussions on socio-economic policies with all the members of the concerned trade and labour unions. The balancing power must vest with neither trade union nor with the employer, to avoid any chances of exploitation or influence over the weaker.
Though this paradigm was alert and awake to the reality of the developing countries and their legal and democratic maturity, without regard for the social security rights the labour law and labour market cannot be in tandem with each other. The above four strategic objectives are for the ease of setting standards by the ILO to implement declarations, review and measure performance, and recommend the suited course of action to the deficient countries. These standards do not account for any judicial perspective and a legal implementation might just prove to be ineffective in its absence.
The decent work is more of an assumption that a guarantee at the workplace, just as dignity at work is an assumption of decent work. Many critiques believe that this is the ‘juridical syllogism’ of decent work and dignity; dignity and social security thus social security and decency. Such a ‘juridical syllogism’ may be unable to create a social environment to protect the workers.
Decent work for the workers in the informal sector
There are approximately about 300 million people in India that are a part of the active informal sector workforce. The workers in the organised sector are in the administration and usually in modern industries. The benefits of decent work and social security do not reach the forlorn workers of the informal sector. Besides, theses worker are often unionised unlike the workers in the informal sector and they are subject to various discriminations, women are paid less than men in terms of their subsistence wages and due to traditional caste disparity, the workers are made to menial jobs for meagre wages. In the urban and rural sector, the workers are engaged in contractual relations i.e. casual work or even bonded labour which is to work due to debt and other obligations.
The workers in the informal sector do not enjoy the benefits of decent work, primarily because the state has not enacted any law or if it has, those laws were not effectively implemented by the state organs.
Many acts were brought into force to improve the working conditions of the Dalit workers like Manual Scavenging (Prohibition) Act, 1991 and Dalit Atrocities (Prevention) Act, 1989, but despite its tremendous potential to improve the conditions, the results after implementation have been very underwhelming.
The National Rural Employment Guarantee Act, 2005
In 2005 The National Rural Employment Guarantee Act was introduced, to regulate the labour relations with the market and end the discrimination against women in terms of wages. Prior to this legislation many NGOs and social activists had campaigned rigorously for the right to work, under which the government would provide employment in the rural areas for 200 days. The workers first had to register themselves after which they would be given job cards and would be employed within 15 days of registration. The wages were not below statutory minimum wages, with 7 hours of man hours, while men and women were paid equal wages. There was social audit as the representatives are entitled to procure any information regarding The National Rural Employment Guarantee Act.
This act has certainly changed the dynamics of the rural employment and has prevented rural migration. By providing the right to work, equal wages for men and women and unemployment allowance, it has taken a step towards ensuring decent work. It has created employment, provided social security to the workers and has realised essential labour rights. But since the government does not endow a specific right to the workers to form unions, representation of these workers as well as the workers in the informal sector is neglected.
Essential Steps needed
The Indian government under the aegis of the ILO had coupled the 12th Five Year Plan with the Decent Work Country Programme 2013-17. It has chalked out an exhaustive plan to ensure decent work to the workers, especially women.
- Skill Development-The imperative for economic growth, combined with the distinct demographic advantage and concerns over the social consequences for its large young population, have led the government to invest heavily in skills development and pursue new models to increase participation and improve the quality and relevance of education and training. There are shortages of skilled labour in many sectors, highlighting the supply-demand gap that exists.
- Promotion of Enterprises for Inclusive Growth– Sustainable enterprises are necessarily the principal source for employment creation and the importance of issues relating to productivity need to be addressed. Strategies for entrepreneurship development, leading to the establishment of micro and small enterprises, can strengthen the overall promotion of enterprise sustainability.
- Gender Equality-The plan endeavours to increase women’s employability in the formal sector, improve the conditions of self-employed women and take other steps to ensure decent work for them, including equal pay for work of equal value. It also aims at extending labour protection for women in the informal economy, strengthening the implementation of the Equal Remuneration Act 1976, Maternity Protection Act 1961 and other related legislation, and envisages special efforts for scaling-up of efforts for skills development of women.
- Child Labour Policy-The Plan also mentions that the Child Labour (Prohibition and Regulation) Act 1986 will need to be amended in line with the Right to Education Act 2009 as it makes a distinction between hazardous and non-hazardous categories of work for children under 14 years. It further emphasizes the need for transition measures and support for families, enhanced opportunities for skills development, vocational training, and rehabilitation of children.
- Safety at Workplace– Comprehensive safety and health statutes for regulating occupational safety and health at workplaces exist in India for four sectors: mining, factories, ports and construction. The adoption of National Policies on Safety, Health and Environment at the Workplace; HIV/AIDS in the World of Work and amending the Factories Act, 1948, in line with international labour standards, are major steps of the government towards improving the safety, health and working conditions.