The term labour law is a generic expression. It is synonymous with the law of employment insofar as it seeks to regulate employment, conditions of service including wages, conditions of work, health, safety, work environment, welfare, social security, settlement of disputes and other related matters. They confer certain rights on the workers and certain obligations on the employers and to a certain extent, on the Governments as well. There are a large number of labour laws in India and there is a feeling that they are much too large in number and that labour is over protected and pampered at the expense of the industry.
There is no doubt that the number of laws is quite large. Under the Indian Constitution, labour is a concurrent subject. The Central government as well as the State governments can legislate on the subject. Accordingly, the Governments at all levels have enacted laws concerning labour. It cannot however be stated that these laws provide excessive protection to workers because firstly, the scope of these laws is very much limited to specified
industries, employments and/or classes of establishments of specified size and are applicable mainly to the working class. Although the scope of these laws has gradually been extended to more and more industries, classes of establishments and activities, including agriculture, cottage and village industries, the selfemployed as well as the administrative and supervisory staff, the labour laws in India are still in an early stage of development as compared to those in the developed industrialised countries, where the bodies of law originally intended for the protection of the working class have gradually been transformed into broader welfare legislation and with the gradual extension of the laws to the self-employed, the scope of the laws has gone beyond employment relationship and covers a much wider ground aimed at improving the living and working conditions of all disadvantaged groups, who need protection. Secondly, the laws and practices in India also fall short of the various international standards set by the International Labour Organisation and the United Nations so much so the
Government has not been able to ratify most of the international Conventions and Recommendations The labour laws seek to regulate employment, conditions of service including wages, conditions of work, safety, health and work environment, social security and welfare, labour relations and other related matters. They are called as labour laws or as industrial laws but are essentially laws relating to employment. Employment may be in a Government or outside Government. Services under the Union and the States are regulated by law or rules framed under Art 309 of the Constitution. Employment of labour and other classes of personnel outside Government are regulated by laws framed under other the relevant entries in the Seventh Schedule of the Constitution of India. The origin and growth of labour legislation in India is ascribed to the development of organized industry, where considerable number of men, women and children are employed under conditions detrimental to their health, safety and welfare. It has become a duty of the State to enact measures to control their working, and in some ases even living, conditions and to mediate or arbitrate in their relations with employers whenever necessary. The first labour laws were enacted more in the interests of the employers than the workers to regulate employment of labour under the indenture system and penal sanctions. These were the Bengal Regulation of 1806 and the Indian Emigrant Act of 1837. The Bengal Regulation which legalized forced labour and made breach of contract a criminal offence was eventually abolished The Indian Emigrant Act 1837, which provided for recruitment of Indian labour for employment in British Colonies in replacement for slave labour under the indenture system was replaced by the Indian Emigration Act, 1922. The origin of labour egislation as a measure to protect labour is traced back to 1881 when the first Factories Act was passed to regulate employment of labour under civil contract. Since then many more laws have been enacted.
Many of the labour laws have been enacted by Parliament but the State Legislatures have carried out local amendments to those laws for application within their respective territories. There are also some State laws such as the Bombay Industrial Relations Act, 1946 (Bombay Act No XI of 1947), Karnataka Shops and Estab-lishments Act and the Tamilnadu Manual Workers (Regulation of Employment and Conditions of Work) Act, 1982. The laws enacted by Parliament are broadly of two types – those concerning certain specific classes of stablishments, industries, employments or workers such as Factories Act, 1948, Plantations Labour Act, 1951, Mines Act, 1952, Beedi and Cigar Workers (Conditions of Employment) Act, 1966 etc., and those concerning certain aspects of the law, which are of general application such as the Minimum Wages Act, 1948. These laws may also be classified on a different basis into two groups as r egulatory and administrative. Regulatory laws are those, which lay down the ground rules and which the employers are expected to observe in their relationship with their employees or workmen, e.g., Minimum Wages Act, 1948. Administrative laws are those which have been enacted for administration of welfare or other program such as the Employees State Insurance Act, 1948. In the former case, the responsibility for implementation of the laws rests on the employers and the function of the Government is to enforce the laws. In the latter case, the responsibility for implementation of the laws rests on the Government itself or on an agency of the Government created for the purpose which is also responsible for their enforcement.
A major characteristic of the laws is that the application of the laws is generally restricted in various ways. The Minimum Wages Act is applicable to the employments listed in the Schedule to the Act. The EPF Act is applicable to the industries and employments listed in the Schedule to the Act. The ESI Act is also applicable to certain specified classes of establishments. The Workmen’s Compensation Act, the Maternity Benefit Act, the Payment of Gratuity Act and the Payment of Bonus Act are applicable to the classes of establishments listed in the Schedules thereto Some Acts specify certain threshold limits for application of the laws with reference to the number of employees employed. In some cases, there is provision for extension of the scope of the Acts to smaller establishments. There are wage ceilings for application of some of the laws. The basic reason for the limitation of the application of the laws is the widely varying economic conditions obtaining in the country, reflected in lack of continuity of employment, low rates of income and allied phenomena.
One of the criteria in framing a law or expanding the scope of a law is its enforceability. The question of enforceability has two dimensions – one is the ability of the target population to honour the requirement of the laws and the other is the capacity of the administrative machinery to enforce the law. There is also a third dimension, and that is the respect for law.
Multiplicity of Laws and their Consolidation
There are widespread comments on the multiplicity of the laws, and a demand for their consolidation. The question is whether, in the circumstances obtaining in the country, it is practicable to have uniformity of the laws Uniformity can be brought about in two ways. One is to have a comprehensive law in the form of a Labour Code covering every aspect of labour management relations as has been done in countries like the Philippines. The other is to have uniformity in respect of each separate law among the Centre and the States. We could also consider integration or consolidation of several laws which are interrelated, e.g., we could have one law for industrial relations, one law for wages, one for social security, working conditions health and safety, etc. Or we could aim at uniformity in the administration of, say, the Minimum Wages Act throughout the country; or again we could consolidate all the laws relating to social security into one law; that is, we can put together the ESI Act, the EPF Act, Coal Mines PF Act, Seamen’s PF Act, Assam Tea Plantations Act, the Maternity Benefit Act, the WC Act, the Gratuity Act, etc. Attractive Ideas All the above ideas are very attractive. Let us, however, consider the various possibilities in practical terms. What does the comprehensive labour law mean? It means that the terms used will be common, coverage will be common, system of administration will be common, and the judiciary will be common. In other words, the law would have to be applicable to all types of economic activity or certain types of activity will have to be excluded from the protection of all types of law, which they are now enjoying. For example, the arrangements for settlement of disputes, the system of collective bargaining and the laws relating to bonus, etc. would have to be extended to agriculture, or some of these activities will have to be excluded totally from the purview of the law or the law will have to have a series of schedules indicating what provisions will be applicable to which activities. Would such uniformity be possible in a Federal State like India? If such uniformity were to be achieved, either there should be uniformity on all aspects of labour administration among the Centre and all the States, as also all sections of people, or labour should be come a central subject.
It would seem that bringing about uniformity of this nature, it would be necessary to make structural changes in our constitutional set up. This does not seem to be in the realm of possibility in the near future Assuming therefore that consolidation of all laws is not practicable, let us consider the second possibility of having uniformity in respect of each separate law between the Centre and the States. The idea of having a Central law on a concurrent subject is to ensure a measure of uniformity in its application. Even so, it may not be possible to have absolute uniformity. While there is a Central law, the States are allowed to make modifications therein so long as they are not repugnant to the general principles governing the law. For example, while the Central Government has enacted the Minimum Wages Act, the States are allowed to carry out their own amendments to it in response to local needs. In this context, the question is whether such variations are desirable. Variations exist, firstly, in the list of employments included in the Schedule to the Act, in the methods adopted for fixation or revision of minimum wages, in the rates of wages prescribed and in the arrangements for enforcement of the minimum wages The Study Group on Wages, Income and Prices headed by Mr. Bhootalingam had recommended introduction of a national minimum wage at Rs. 100 to be raised to Rs. 150 eventually. Today the rates of minimum wages for unskilled workers vary widely ranging from Rs. 66 in Tripura to Rs. 322 in Kerala (Annual Report: Union Ministry of Labour) If we have to introduce a national minimum wage, at what level would it be, at the lowest level of Rs. 66 or at the highest level of Rs. 322 or at an intermediate level of, say, Rs. 160? What would be the consequence of having such a uniform rate of wages? If we have a national minimum wage at the level of Rs. 66, all those having higher wage would have to bring it down to that level or they will have to be allowed to continue the existing rate until the national minimum wage is raised above these levels. If we have a national minimum wage at Rs. 322, all those having lower rates of wages will have to raise them to that level. This makes nonsense of the entire procedure of fixation of minimum wages, the essential ingredient of which is consultation with workers and employers. Would all employers all over the country be willing to pay such a wage? Let us consider the third possibility of consolidating groups of laws. In the past, several attempts have been made to integrate the various social security measures and it has not been found practicable. In fact, the Second National Commission on Labour had recommended consolidation of the laws group wise but these recommendations have also been shelved.
The impediments in the way of integration of the laws are that their coverage has not been uniform, and it has not been possible to bring about uniformity in their coverage. For, coverage of the ESI Act is limited by non availability of adequate medical facilities for providing medical care to the insured persons according to prescribed norms. Construction of hospitals and dispensaries has not been keeping pace with the growth of insured population. For example, in Delhi while the medical facilities exist for certain number of insured persons, the
number of insured persons within the sectors of employment to which the ESI Scheme has been extended in that territory has increased to manifold. The attempts made by the ESI orporation to put up more hospitals and dispensaries have not been successful so far owing to difficulties in getting land and other requisites . In the circumstances, while the EPF Act covers over 60 million workers, the ESI covers less 15 million It would be seen that the major obstacle to uniformity among the labour laws is the difficulty in bringing about uniformity in coverage. There can be no doubt that workers would welcome the extension of all laws to all types of economic activity without any limitation as to the number of persons employed or the wage ceilings. Government would equally be happy to extend them. But would the employers be prepared for such extension? If there cannot be uniformity on the basis of universal coverage, what other basis can we evolve acceptable to all sections of the society? Unfortunately, uniformity in labour legislation has another dimension, which concerns Centre–State relations. The employers are of the view that the concurrent jurisdiction of Central and States in the field of labour has led to passing of separate legislations by the State Governments, creating problems for the management.
This view calls for some analysis with reference to specific laws for a better appreciation of the situation Labour being a concurrent subject; it is certainly true that both the Centre and States can legislate on the subject. The question is whether it has created any major problem for management or labour, and if so, how the problems can be solved As stated earlier, there are different classes of laws – Central laws, State laws, Central laws administered by States wholly or partly. It seems there would be no overlapping of functions insofar as the first two classes of laws are concerned, except that in the case of companies having branches or units in different states, different State laws can create difficulties. In the latter case, the position of a company would be analogous to that of a multinational company operating in different countries. It is doubtful if such difficulties can ever be resolved so long as India remains a federal state and labour continues to be in the Concurrent list. At the same time, it may not be feasible take labour out of the Concurrent List and put in the Union list. That would be contrary to the current trends towards greater devolution of powers to States. The only way to resolve this type of difficulty is to make submission to State authorities at appropriate times through State tripartite advisory bodies, if any, and effective intervention in State legislatures As regards those subjects on which, there are Central laws and the States, who wish to have their own laws, the position is slightly different. In such cases, the States cannot enact the laws without the approval of the Central government.
Consultations between the Central and State Governments do take place at various stages and very often Presidential assent is withheld or the State Government is required to modify their proposals. In such cases, diversity of views may be resolved by discussion. If the difference persists, one may have recourse to the Courts. Administration of the Laws After so much about enactment of new laws, what about the implementation of the laws? Administration of labour laws has aspects other than the question of bringing about uniformity. In the main, it involves the question of the form of machinery to be created for administration of the laws, its strength and composition, its competence, its powers and responsibilities. The form of machinery to be created for administration of the laws depends upon the nature of the law. Regulatory laws would require machinery for inspection, settlement of disputes by conciliation, adjudication or arbitration and for imposition of penalties for their contravention. Laws meant to provide certain types of benefits would require machinery for collection of contributions and administration of benefits to be provided, the rates or scale of benefits to be provided, the rates or scale of contribution to be collected, collection of contributions, dealing with defaults and administration of the benefits, such as, the medical benefit, sickness benefit, disability benefit, dependents benefit, etc., under the ESI Act. Laws meant for providing service to the workers would require altogether a different form of administration. While talking about administration of labour laws, it needs to be mentioned that there are cases where the responsibility for administration of programmes is shared by the Central Government or its agencies and the State governments as in the case of the Medical Benefit under the ESI Scheme. Such division of responsibilities is not conducive to the effective administration Whatever be the nature of the law, the administrative machinery in India is burdened with the numbers involved. To provide administrative machinery adequate to provide satisfaction to the growing number of workers covered by the laws is a major concern of the governments at the Centre as well as the States. The difficulty is compounded by the tendency on the part of several people to evade or avoid the law by any means, fair or foul. There is a general feeling that while we have several laws, they are merely on paper. This feeling has been generated by the extensive violation of the laws and inadequacy of the administrative machinery to enforce them. Violation of the laws could be deliberate or due to ignorance; it could also be due to genuine difficulties. In any case, the machinery will have to be extremely alert and forceful. At the same time, it has to be imaginative and constructive in its approach. No social law can be administered echanically. There has to be a human touch. Unfortunately, in the social milieu in which we are working, any softness on the part of the law enforcement machinery is apt to be viewed with suspicion. It calls for the highest degree of integrity and rectitude on the part of the officials to be able to act with courage according to their convictions. Administration of the social laws, particularly the beneficial laws, requires that the administration concerned should be infused with the social purpose. They should realize that before every application for a benefit, there is a human being in dire need of sympathy, understanding and assistance.
But it is too much to expect that all the persons engaged in this activity will be imbued with this kind of spirit. No administrative machinery will ever be found to be adequate to administer the laws as a police operation so as to detect and to punish every single instance of violation, and to ensure that every single person who is entitled to the benefit under the law derives that benefit. Implementation of laws depends to a large extent on the goodwill of the employers. In my humble opinion, labour laws should be self enforcing. The enforcement machinery should only exercise a random check, and when it does so, the punishment for infractions of law should be exemplary and highly deterrent. Such an arrangement can succeed only where people are generally law abiding. The organisation of employers can render useful service to its members as well as the society by inculcating among their members, the respect for law and adopting measures for self discipline. On the other hand, the workers also need to be educated to play their due role in society. Workers Education, therefore, plays a crucial part in the system of administration of labour laws. It is important that they should know their rights and their duties, the nature and problem of economic activity they are engaged in, the value of increasing productivity, the means of increasing it and how they can benefit from it, how they will suffer if there is continual increase in the wage cost without corresponding increase in productivity and so on. Much of the labour problems can be attributed to the fact that the trade union movement is generally in the hands of professional trade unionists. It is necessary for the health of the movement that they should in due course be replaced by leaders thrown up from within the industry/organization, who have worked in it and know the strength as well as the weaknesses thereof, and are able to better appreciate their problems and negotiate from the position of strength derived from knowledge.
Administration of labour laws has also another aspect relating to manning of the labour department and the organizations working there under and their training. There is a general feeling that the State labour Departments are very weak and are not well staffed. Obviously, the enforcement machinery of the Departments of labour and the adjudication machinery need to be strengthened. The working conditions of the officers and staff of the Departments of Labour in the States are not comparable with those of Central government staff. These differences can only be resolved if there is a National Wage Policy. The National Tripartite Conference held a few years ago had recommended that a committee should be appointed to evolve a National Wage Policy, and this recommendation has been under consideration of government for long.
The weakness in the Labour Department in the States as well as at the Centre lies in the growing number of problems they have to handle, which in itself is the major problem of the abour administration. As the strength of the labour force, the number of trade union organizations, the number of members of the Provident Funds, the number of insured persons and other related numbers grow; the number of persons employed for the administration of the Department also needs to grow. More important is the training of the staff employed in the Department. They need firstly to know the laws, rules and procedures. Since they will be dealing with men they also need to be acquainted with the behavioural sciences. They should be infused with the sense of service. Training for management of business or industry would be different from the training for management of social services. The training system would need to be suitably oriented. Some of the staff employed in the Department of Labour will be involved in educational training of workers and in research. Workers Education is not everybody’s cup of tea. It calls for special training; the methods and techniques of Workers Education need to be developed.
Research in the field of labour also requires special training One cannot remain content with the introduction of new programmes for the welfare of workers. We have to build up a monitoring system to see how the programmes are being executed and arrange for periodical evaluation of the programmes.
0 comments:
Post a Comment