LABOUR LAW MATTERS IN THE SUPREME COURT OF INDIA
Ø CONSTITUTION AND LABOUR LAWS
Under the Constitution of India, Labour is a subject in the Concurrent List and, therefore, both the Central and the State governments are competent to enact legislations subject to certain matters being reserved for the Centre. Under Union List, Entry No. 55 of the Seventh Schedule of the Constitution of India dealing with Regulation of labour and safety in mines and oilfields; Entry No. 61 dealing with industrial disputes concerning Union employees and Entry No. 65 dealing with Union agencies and institutions for – (a) professional, vocational or technical training, including the training of police officers; or (b) the promotion of special studies or research; or (c) scientific or technical assistance in the investigation or detection of crime. Under Concurrent List, Entry No. 22 of the Seventh Schedule of the Constitution of India dealing with Trade unions; industrial and labour disputes; Entry No. 23 dealing with Social security and social insurance; employment and unemployment and Entry No. 24 dealing with Welfare of labour including conditions of work, provident funds, employers’ liability, workmen’s compensation, invalidity and old age pensions and maternity benefits.
In 2019, the Central Government introduced four bills on labour codes to consolidate 29 central laws. These are:
1. Code on Wages
2. Industrial Relations Code
3. Social Security Code
4. Occupational Safety, Health and Working Conditions Code
While the Wages Code was passed in 2019, the other three bills were referred to a Standing Committee on Labour. As per the recommendations of the Committee, the government replaced these bills with new ones in September 2020, and these were passed in the same month.
Code on Wages, 2019
The Code on Wages Bill was passed by the Parliament in 2019.
· The Wages Code seeks to regulate wage and bonus payments in all employments where any industry, business, trade or manufacture is carried out.
· This code replaces the following laws:
· Minimum Wages Act, 1948
· Payment of Wages Act, 1936
· Payment of Bonus Act, 1965
· Equal Remuneration Act, 1976
· Coverage of the Code on Wages:
· The code will apply to all employees.
· The Central Government will take decisions on wages for employments in mines, railways, oil fields, etc.
· For all other types, the state governments will make the decisions.
· Wages include salary, allowance or any other monetary component. It does not include bonuses and travelling allowances.
· Floor wage
· As per the code, the Central Government will fix the floor wages considering the workers’ living standards.
· The floor wage may vary depending on the geographical location.
· The minimum wages decided by the central or state governments should be above the floor wages. In case the existing minimum wages are higher than the floor wages, the central or state governments cannot reduce the minimum wages.
· While fixing the minimum wages, the government should take into account the difficulty level of the work, and the workers’ skill levels also.
· Also, the minimum wage fixed will be reviewed by the government at least every five years.
· Employers cannot employ people on less than the minimum wage.
· The number of working hours will be fixed by the central or state governments. In the case of overtime work, the worker is entitled to overtime compensation which should be at least twice the normal wages.
· The employer can fix the wage period as either daily, weekly, fortnightly, or monthly.
· The employer can deduct wages for the following. However, the deductions should not exceed 50% of the worker’s wages.
· Fines
· Absence from duty
· Accommodation given by the employer
· Advances given to the employee
· All employees whose wages do not exceed a specific monthly amount will be entitled to an annual bonus.
· The Code prohibits gender discrimination in wages and recruitment of people for the same work or work of similar nature.
· Work of a similar nature is defined as work for which the skill, effort, experience, and responsibility required are the same.
· Advisory boards
· Advisory boards will be set up by the central and state governments. These boards will consist of an equal number of employees and employers, state government representatives and independent persons.
· One-third of the boards will be women members.
· These boards will advise the governments on minimum wage fixing and increasing the employment opportunities for women.
· The Code specifies penalties for offences committed by an employer.
· Contravention of any provision of the Code
· Paying less than the minimum wage
· The maximum punishment is three-month imprisonment along with a fine of Rs. 1 lakh
Industrial Relations Code, 2020
Some of the provisions of the Industrial Relations Code, 2020 are mentioned below.
· The Industrial Employment (Standing Orders) Act, 1946 had made it mandatory for employers of industrial establishments with 100 or more workers to define the conditions of employment and rules of conduct for workmen, by way of standing orders/services rules and to inform the workers of the same clearly.
· However, under the new Code, the minimum number of workers employed for an establishment to have standing orders has been raised to 300.
· With the increased threshold, it becomes more flexible and easier to hire and fire thus leading to increased employment according to the government.
· Prior permission of the government is mandated before closure, lay-off, or retrenchment of employees in establishments having more than 300 workers.
· The Code also introduces new conditions for conducting a legal strike.
· Employees are prohibited from going on strike without giving a 60-day notice.
· Employees are also prohibited from going on strike during the pendency of proceedings before a Tribunal or a National Industrial Tribunal.
· They should also not go on strike before 60 days are completed after the tribunal’s proceedings.
· The new Code also proposes the setting up of a re-skilling fund for training retrenched workers with contribution from the employer, of an amount equal to 15 days last drawn by the worker.
Code on Social Security, 2020
Some of the key provisions of the Social Security Code, 2020 are discussed below.
· The definition of employees has been widened to include inter-state migrant workers, construction workers, film industry workers and platform workers.
· The gratuity period for working journalists has been reduced from 5 years to 3 years.
· The Code talks about setting up social security funds for unorganized workers, platform workers, and gig workers.
· There is a provision for the central government to decrease or defer the employer’s or employee’s contribution towards the PF or ESI for up to 3 months in the event of a pandemic, national disaster or an epidemic.
· The Code proposes the establishment of a National Social Security Board for recommending to the central government the formulation of schemes for the various sections of unorganised, gig and platform workers.
OSH Code (Occupational, Safety, Health and Working Conditions Code) – 2020
Various provisions in the OSH Code will ease the lives of the Inter-State Migrant Workers.
Anomalies of the Inter-State Migrant Workers Act, 1979 have been comprehensivelyaddressed in the OSH Code. Earlier only workers appointed by a contractor were recognized as Inter-State Migrant Workers. However, under the new provisions of the Code, workers can be Aatmanirbhar as they can now register themselves as Inter-State Migrant Workers on the national portal.
By this provision, the worker would get a legal identity which would enable them to get benefits of all social security schemes.
Ø A provision has been made for employers to provide travelling allowance annually to an Inter-State Migrant Worker for undertaking a to-and-fro journey to his native place.
Ø Providing of appointment letters to the workers has been made mandatory.
Ø Mandatory, free annual health check-up of the workers to be provided by the employers.
Ø For a worker engaged in building and other construction work in one State and moving to another State, benefit from the Building and other Construction Workers’ Cess fund will be provided.
Ø Under the “One Nation - One Ration Card”, an 17 New Labour Code For New India Inter-State Migrant Worker would get ration facility in the State he is working in and the remaining members of his family would be able to avail of the ration facility in the State where they reside.
Ø Mandatory helpline facility in every State for resolution of Inter-State Migrant Workers’ grievances.
Ø National database to be created for the InterState Migrant Workers.
Ø Instead of 240 days, now if a worker has worked 180 days, he shall be entitled for one-day leave for every 20 days of work done
INTERNATIONAL LABOUR ORGANIZATION
India is the founder member of International Labour Organization (ILO) and has been actively contributing to evolution of global policy on labour welfare. International Labour Organization which came into existence in 1919 and has been a permanent member of the ILO Governing Body since 1922. At present the ILO has 187 Members. A unique feature of the ILO is its tripartite character. At every level in the organization, Governments are associated with the two other social partners, namely, the workers and employers.
The three organs of the ILO are –
(1) International Labour Conference- General Assembly of the ILO
(2) Governing Body- Executive Council of the ILO and
(3) International Labour Office - a Permanent secretariat.