Colin Gonsalves, a senior advocate and founder of the Human Rights Law Network, said that the recent proposals to amend the Factories Act, 1948 (“Factories Act”) and the Minimum Wages Act, 1948 (“Minimum Wages Act”) indicate the “anti-labour direction in which this government is going”.
The failure of the Factories Act and the Minimum Wages Act
He used three cases to illustrate how labour statutes were not being implemented. First, the case relating to occupational safety at thermal power plants before the Supreme Court illustrated the failure of the Factories Act, 1948 (“a very old statute”) and the Workmen’s Compensation Act, 1923. The workers, he said, “were suffering in the most terrible conditions” from cancer, asbestosis, and other crippling diseases and there was no medical check up or compensation. The case relating to the Commonwealth Games before the Delhi High Court illustrated the existence of bonded and slave labour and the failure of the minimum wages law. “Wages were not paid, helmets were not given, protective equipment was not there, the helpline…or the lifeline which protects you when you fall was not there, they were living in places where there were bunks without mattresses, without fans, toilets without doors, toilets without water…”. In another case pending before the Supreme Court, the Directorate General of Factory Advice, Service, and Labour Institutes did not have a response when the Court asked what was being done about the plight of the lakhs of workers working in the construction, stone crushing, and marble industries who suffer from the debilitating disease of silicosis for which there is no remedy. “Lakhs of workers dying, dying because of that ingestion of that fine silicon dust which goes into your lungs…no action at all.”
Mr. Gonsalves said that it was elementary to any democracy that minimum wages should be paid and that when you work in a factory, you must work in a secure environment. He argued that labour reforms should address the issue of why these statutes are not being implemented, and the amendments should cover the loopholes in the law and make them foolproof. That however, was not the thrust of the proposals contained in the notifications of June 5 and June 17.
Proposed amendments to the Factories Act
He pointed out that there was a proposal to lengthen work hours and overtime, which went against the global trend. “In the era of globalisation where the hours of work shrink, you come from fourteen hours to twelve hours; to ten hours to eight hours… all across the world it will be eight hours, as a norm. You will do overtime as an exception to the rule. The amendment suggests a spread over of twelve hours. Can you imagine?” He said that it was inhuman for a person to be locked into employment for twelve hours even if he does not work for that long. Further, the limit on overtime, which is now seventy-five hours per quarter, is now proposed to be raised to one hundred hours per quarter. “So the amendment is not only to make you work longer hours in the day, but to make you work longer hours overtime – as of right of the employer! The employer can say work overtime, and you can’t refuse to work!”
Mr. Gonsalves also expressed his disappointment on the issue of women working after seven. “We thought that the law would be amended and make it progressive and say – all right women can work.” But instead, he is disheartened to see the amendment says, “that if the employer has this facility, and this facility, and this facility, and this facility…then, the government may consider issuing a notification allowing women to work, so instead of saying women can work, and the employer must do this, this, this, this, otherwise he’ll be punished…” He said that this meant that the government accepts that “women should generally not work”.
He also noted that the government has proposed a “climb down from the strict liability standard in the Bhopal case”, regarding hazardous substances in factories. The Supreme Court had placed a strict liability upon the employers, but now the amendment suggests that “the employer will try as far as practicable, that’s the term used, ‘as far as practicable’ to ensure that things are safe in this factory.”
He also laughed at the proposed amendments on child labour. “If children are found working in your factory, the parents are going to be punished! The amendment says they’ll catch the parents and punish the parents!”
Proposed Amendments to the Minimum Wages Act
The Minimum Wages Act does not specify a minimum wage for everyone. Instead, it notified wages in an industry-wise schedule. Most industries therefore, are not covered by the Act.
Mr. Gonsalves said that the government’s proposal for a national minimum wage was “a trick”. Firstly, the national minimum wage will be the lowest wage of the unskilled worker and will be specified at an appalling “starvation-level”. Secondly, a national minimum wage would lead to a move to reduce the minimum wage even in states such as Kerala where the minimum wage is higher. He said that even though the proposal does not directly state that the wages in the schedules will be reduced to the national minimum wage, the implication is exactly that. “The gains of the workers in getting minimum wages at particular levels in particular states must not be reduced, but that seems to be the tendency.” He suggested that there be a residual minimum wage instead. A residual clause will say that any worker working in an industry not specified in the schedule will have a minimum wage. “Once you do that, then everybody gets covered, those in the schedule, those not in the schedule, everyone will have a minimum wage.”
The actual shortcoming of India’s minimum wages law is that millions of workers who are not in traditional factories including domestic workers, are not included under the law. Further, the law contains no deterrent. “No person, no employer has ever gone to jail for failure to pay minimum wages in this country.”
Broaden the system of inspection
Mr. Gonsalves said that the implementation of the Factories Act and the Minimum Wages Act through the system of inspectors was ineffective. “Now the inspector system is basically this, and any worker will tell you, inspector comes to the factory, the factory owner warmly greets him, takes him to his cabin, gives him a cup of tea and biscuits and gives him an envelope, which he takes back home. Right? And that’s the end of your inspection. And if you ask the question as to why is that the Factories Act has remained unimplemented for decades, or the Minimum Wages Act unimplemented for decades, the answer is the system of corruption. Therefore these inspectors have failed.”
He suggested that as “the system of inspectors, government inspectors, has failed. And you need to replace it by a wider, civil society concept”. A trade unionist from a recognised union or even a senior teacher could be automatically designated as an inspector. “You need to enlarge the concept of monitoring and inspection and get out of the system where government officials make huge amounts of money by carrying out the so-called routine and farcical inspections in the factories.”
Agenda for reform
Mr. Gonsalves then outlined the agenda for the reform of India’s labour law. Firstly, he said that trade union elections should be held using secret ballot. “Once every five years, all the workers of the establishment come and elect their union as their recognised union for a period of five years.” The method used, like in all other sections of society, should be that of the secret ballot.
Secondly, there should be direct access to the courts for the adjudication of labour disputes. “Every section of society goes directly to court, but not the working class. The working class will be told to go and take permission and to take permission you spend five years in the Labour Commissioner’s office.”
Thirdly, there should be an amendment to reverse the decision in Uma Devi’s Case, a “horrible judgment” by a five-judge, constitution bench of the Supreme Court, which “sanctioned slave labour [and] bonded labour in the public sector”. A simple amendment in the law can state that if a worker works as a casual ad hoc worker on a perennial basis, in a government establishment public sector undertaking etcetera, that workman will be regularised. Two-line amendment.”
Fourthly, there should be an amendment to recerse the Supreme Court’s “awful, anti-labour judgment” in the Steel Authority of India Limited Case, where the Supreme Court said that where the contract labour system is abolished, the workers cannot be regularised. Mr. Gonsalves suggested that there should be a simple amendment, which states, “when the contract labour system is adjudicated upon and abolished contract workers will be recognised”.
Fifthly, child labour has to be abolished up to the age of eighteen. At the moment, child labour is only abolished up to the age of fourteen in specified hazardous industries.