This article is written by Sushmita Soren who is pursuing a Diploma in Labour, Employment and Industrial Laws (including POSH) for HR Manager from Lawsikho.
The recent labour reforms in India have stirred up the working class since the National Democratic Alliance (NDA) government took its seat in 2014. Twenty-nine central labour laws have been put under four broad labour codes: The Code on Wages, the Code on Industrial Relations, The code on Occupation, Safety and Health, and the code on Social Security. The codes aim to facilitate ease of doing business and reduce complexity to provide a simpler labour law regime. But, ever since the draft codes have been made public, there has been wide opposition from trade unions regarding its implementation stating that the laws are not favouring the working class and aim to favour the employer rather than the employees, especially the contract labourers.
On May 14, 2020, ten central trade unions had written to the International Labour Organization (ILO) seeking their intervention in the labour law amendments and stated that the NDA government had violated ILO convention no. 144 in the process of reforming the labour laws. In response, ILO said that they will surely appeal to the Prime Minister of India to intervene and give a clear message to the state on international commitments. But a few months later, upon enquiry, the labour ministry informed Lok Sabha that they have not received any comments on India’s lack of compliance in the implementation of the four labour codes.
What is ILO convention No 144?
India was one of the 42 founder members of the International Labour Organization (ILO), founded in the year 1919. Our country has some of the highest ratifications in the ILO too. India has ratified the Tripartite Consultation (International Labour Standards) Convention, 1976 (i.e. the Convention No. 144) and the spirit of the convention is that the government should consult with the representative organisations of the employers and employees. It is a social dialogue to encourage discussions of issues related to labour and arrive at a solution regarding those issues. ILO Consultation (Industrial and National Levels) Recommendation, 1960 (convention no. 133) specifies the modus operandi for joint consultations.
Before the 1990s, ‘tripartism’ a form of social dialogue majorly contributed to labour laws and policymaking. Its significance has however reduced after the post-reform period and later, it began to be completely ignored. It is also strange to know that “reforms” are being done in spaces where social dialogues are nominal or merely non-existent.
In line with the ratification of the ILO convention no. 144, India has the Indian Labour Conference (ILC), an apex level tripartite consultative committee in the ministry of Labour and Employment to advise the government on the issues concerning a country’s working class. It had held its first meeting in 1942 and so far, total of forty-two sessions have been held.
But, in the post-reform period (after the 1990s), it was evident that the state was using the ILCs to convey its ideas of liberating labour laws and often pitted the organised sector employees with those in the unorganised sector. They have acted as a forum for reiterating “ideological positions” of the labour market and economic condition, rather than being a forum for the exchange of information between the tripartite actors. So, instead of social dialogues, it became a platform of ideological monologues.
Therefore, the rather united trade union movement tried to block what they saw as the state’s neoliberal agenda, which has hindered the much-needed reforms to take place in the labour laws. Trade unions are now seen as obstructing any labour reforms. But the fact remains that the government has rather stopped having tripartite consultations while reforming the labour laws.
Under the Constitution of India, Labour is on the concurrent list, where both the Central and State government are competent on the laws related to labour. States like Andhra Pradesh, Maharashtra, Gujrat, during the 2000s, Rajasthan, Haryana, Maharashtra, Jharkhand since 2014, and most recently during the covid times, Madhya Pradesh and Uttar Pradesh have affected reforms ranging from partial but significant to considerable dilution or even suspension of a couple of labour laws, like industries were allowed to retrench workmen without permission where the organization has up to three hundred workers.
The parliamentary committee had even asked for an explanation from these states regarding the dilution of the labour laws, but no response has been received, especially from BJP led states like UP. States have more or less introduced the reforms unilaterally, thereby showcasing that the dialogue mechanisms are either minimal or non-existent. As mentioned before, it is known that the tripartite dialogues mechanism is weak at both the centre and state levels.
But at the national level, time and again, the trade unions have been assured that any changes in labour laws will be made in consultation with the unions but nothing has actually happened. The last ILC took place in 2015 and it has been thereby postponed owing to BMS threatening to boycott NDA led BJP government.
In the recent codification of labour laws too, no state has been able to implement the code yet. For example, the president gave assent to the Code on Wages bill in 2019, thereby making it an act. Its draft rules were out in 2020. To date, no state has been able to implement the act, as they have had no consensus on the draft rules. Code on wages was supposed to be implemented in April 2021, but has yet to see the light of the day, the main reason being the nature of unilateralism in framing the rules of the codes.
There are various concerns of the trade unions and the working class like the working hours may be extended up to twelve hours in a day (which even violates ILO convention no. 30; India has ratified it.), workers need to give 60 days strike notice, exclusion of many workers from social security net in bigger enterprises through contract and muster roll system, and in smaller enterprises, by making social security rules, not applicable at all, the introduction of fixed-term employment, which may lead to more unemployment during economic upheaval situations like the covid-19 pandemic.
The above examples are the basic rights of a worker. Labour law is being reformed in a large and organised way after 75 years of independence of India. Instead of just amending the existing laws and reorganising the labour laws so as to have uniform definitions across all acts, the reforms could have been freshly framed keeping in mind the labour-intensive nature of our country, to begin with.
Lately, all the reforms have been regarded as having a capitalist outlook and ignores labour. The labour reforms have been tried to be implemented too fast without having to engage experts for fear of non-endorsement of its reform agenda by independent minds.
The lack of dialogues in labour reform has also led to situations where the codes and state government’s ordinances read so poorly and are often incomplete and ill-conceived legal documents. For example, the law does not formulate the substantive provisions and leave them to rule-making processes, as also mentioned earlier like in the case formation of safety committee under code on occupation, Safety and Health lies with the state unlike earlier prevalent in Factories Act, 1948.
The trade unions hardly refer the matter to the court as they perceive it to be partisan and not as reliable as it once used to be. The judiciary’s handling of labour in general and migrant workers, in particular, has been widely criticised.
The eventful labour market governance system is non-reflective of empirical realities, unresponsive to the needs, and ill-suited to promote all-around benevolent outcomes in the Industrial Relations System. Thus, the law will not promote a conducive Industrial relations environment, intensify informality, produce inordinate delays in the resolution of industrial disputes and eventually will not assist in achieving ease of doing business. Simply put, ignoring social dialogues will lead to poor labour market governance.
The Indian government and on many occasions disregarded social dialogues with trade unions. PM Modi has time and again emphasised the ILC as a ‘Labour Parliament,’ and the centre has always assured that the trade unions will be consulted and worker’s interests will be protected. But it is not how the labour reforms are being done. Indian needs to honour the ILO convention on social dialogue and also effectively continue the glorious tradition of tripartism. The prevalence of Trade unions, or for that matter any representative body, is a sign of a healthy environment to promote any new reforms and practices.
India is known to be the largest democracy globally, but the recent development in the country’s politics has left that status dwindling. And that has gone to show in the labour reforms as well. There cannot be a better alternative to the social dialogue or tripartism in a pluralistic and democratic society. And we should not forget, India is still one such society- a fact that perhaps needs gentle reminding.
- Statistics on Union Membership- ILO: Trade Union density rate in India is 12.8% only.
- Statistics ob Collective Bargaining- ILO: India has no collective bargaining coverage rate.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join: