Labour codes: Are protections for migrant workers migrating too?

In March, as Prime Minister Narendra Modi announced a strict nationwide lockdown to prevent the spread of the coronavirus, India’s migrant workers suddenly came into sharp focus. As lakhs of workers began streaming down the nation’s highways in a desperate attempt to get home in the absence of public transport, media reports began to highlight the conditions in which these mostly-invisible Indians work.

Over 70% of India’s workers in the services and industry sectors have informal jobs, according to the National Commission for Enterprises in the Unorganised Sector. In a situation where 68% of all Indian workers earned about half the national recommended minimum wage of Rs 375 in 2017-’18, the workers in the informal sector are particularly disadvantaged. Often missing the oversight of labour laws, they lack social security and face low wages, unsanitary or hazardous work conditions and long hours.

Against this backdrop, the government’s attempt to simplify labour regulation by amalgamating 44 labour laws into four comprehensive codes, which is expected to be discussed in the session of Parliament underway, should have had a special focus on Indians employed in the informal sector – especially migrant workers.

But instead of guaranteeing greater protections to this vulnerable group, the codes fail to place adequate focus on them. In fact, some key provisions from the existing legal frameworks will be lost in the transition.

Simplifying laws

The government is undertaking this amalgamation exercise to simplify the complex web of labour laws acting on the recommendations of the Second National Commission on Labour in 2002. It aims to bring cohesion between laws and promoting ease of doing business.

The Code on Wages was introduced in 2017 and passed in August 2019. Three more – on Occupational Safety, on Health and Working Conditions popularly known as COSH, on Social Security and on Industrial Relations – are at various stages of legislative development.

The Code on Industrial Relations is primarily concerned with industrial disputes and employer-trade union relations. The other two together subsume 22 existing acts, many of which govern key provisions to prevent exploitation, create safety nets and protect migrant workers. These are the codes that significantly impact migrant workers.

Many labour laws are 50-70 years old and need to be overhauled in light of socio-economic and technological advancements. However, the focus of the codes is on bucketing existing legislations together and promoting cohesion between various laws. Besides, they fail to adequately address the problems with implementing the existing laws. Labour rights experts also fear that these codes may tilt the scales towards employers instead of those safeguarding labour interests, especially migrants.

The proposed Code on Occupational Safety, Health and Working Conditions does not adequately address concerns related to occupational safety and working conditions for most workers within the unorganised sector, as it fails to provide any concrete legal framework for agriculture workers (other than those on plantations) and workers in small establishments.

There are several more specific problems for migrant workers. For instance, several provisions of the Inter-State Migrant Workmen Act are being lost in the transition to the COSH. The act, for example, required employers to provide a passbook to employees to ensure their awareness of key employment conditions such as wages, place of work, workdays and more details. This passbook is often the only credible record for workers, and can reduce chances of exploitation. But COSH no longer prescribes this.

In addition, the Inter-State Migrant Workmen Act required employers to furnish details to the Labour Department of both the home and destination state, upon recruitment as well as cessation of employment of a migrant worker. This process, which creates data and records of migrant workers, finds no mention either.

Key provisions lost

Instead of being dropped, these provisions should probably have been doubled down on, with technology playing an enabling role. These omissions are cause for concern, particularly after India witnessed the manner in which migrants struggled to get home during the lockdown. Data on migrant workers, their numbers and where they were working would have been handy in organising relief efforts and ensuring their safe return.

The present COSH Bill has a combined section on specific provisions related to contract workers and migrant workers. But even the Parliamentary Standing Committee on Labour has recommended that a new chapter be introduced in COSH specifically on migrant workers to spell out provisions relating to health, safety and welfare of this group. This would be welcome

Under the Factories Act, regular working hours were strictly defined as eight hours a day. However, in COSH, limits to hours of work “may be notified by the appropriate government”. This moves core labour rights away from legislative certainty to government discretion. The codification of 50-year-old laws in the 21st century should not take us back to losing progressive rights that the world fought for in the 1800s.

The Code on Social Security also has holes. For example, the Building and Other Construction Workers Act creates a welfare fund for construction workers. Funded through a cess on employers, the fund is collected and administered at state government level. But several commentators have pointed to the lack of clarity on the inter-state portability of benefits from this fund. Many construction workers are migrants and often shift from one state to another, tied to their contractors and their projects. This makes portability of benefits crucial. But this is among the many things the Code is silent on.

Notably, similar cess-based welfare funds like the one above, in other sectors do not feature in the Code on Social Security. The Standing Committee has suggested some provisions in the Code on Social Security targeting migrant worker welfare. Chief among these are a national database of migrant workers and a separate welfare fund for migrant workers financed through contributions from home and destination state governments, contractors, employers and workers. This would significantly strengthen the code.

Some recommendations

Simplifying India’s complex labour system is a welcome step but clubbing the laws into four codes was never going to be an easy task. As the new codes are discussed, these are some ideas for promoting migrant worker welfare that may be considered.

• Bihar has a Migration Tracking System at the panchayat level that registers migrant workers and keeps track of their identity, contact details, details of destination, purpose of migration. These registrations are undertaken with the support of community vigilance committees at the village level and often with cohesion between panchayati raj institutions, civil society organisations and labour departments at district level. Collaborative mechanisms like this promote data collection and the welfare of migrant workers. COSH should consider a similar mechanism. - 
•   In the interest of flexibility and dynamism, the Code on Social Security does not prescribe any specific social security schemes for the unorganised sector. It would nonetheless be useful to include key parameters such as the nature of benefits to guide the development of schemes.  
•   The implementation of legal provisions for registering, protecting and for the welfare of migrant workers has been lax. This process of codification is a good opportunity to address this by including provisions in both codes to incentivise implementation, leverage technology for data collection and management, promote accountability and put in place reporting mechanisms for progress review.    

Anirudh Chakradhar is Partner at Pragma Development Advisors LLP. His email address is anirudhc@pragmalaw.in.
Neha Mallick is an independent researcher covering governance, labour and human trafficking. Her email address is neha.mallick26@gmail.com.