OSHWC Code: A Design to Impose Modern Slavery on Working People
THE BJP government, since assuming office for a second term in May 2019, has been working overtime to take away the rights of workers through codifications of labour laws, a euphemism for corporate unbridled process of profit maximisation. Accordingly, the labour minister introduced the Code on Wages and the Occupational Safety, Health and Working Conditions (OSHWC) Code in the Lok Sabha on July 23. The Code on Wages was passed by Lok Sabha on July 30 and got the Rajya Sabha nod on August 2. The president gave his assent on August 8. When the Code on Wages was moved in the Rajya Sabha, CPI(M) member Elamaram Kareem moved amendments to protect workers’ interest and pressed for voting. We got only eight votes! That much consensus neo-liberalism has got among our lawmakers to contain the wage and to keep it at the lowest possible level!! Now OSHWC Code is pending before Parliament as it was referred to the Standing Committee on Labour. The Cabinet has now approved the Industrial Relations Code on November 29 so as to introduce it in the ongoing winter session of Parliament.
The Occupational Safety, Health and Working Conditions Code seeks to amalgamate and subsume 13 enactments related to factories, mines, dock workers, building and other construction workers, plantation workers, contract labour, inter-state migrant workers, working journalists and other newspaper employees, motor transport workers, sales promotion employees, beedi and cigar workers, cine workers and cinema theatre workers. And while subsuming these legislations, the government has selectively incorporated mainly those provisions in the Code which will be advantageous for the employers. Some of the provisions relating to the rights and protection of the workers have been incorporated in extremely diluted form again to ensure advantage of denial or misinterpretations by the employers.
In the name of simplifying labour laws, the BJP government is trying to attack all categories of workers in the country - from the lowest paid to the highest, those who live in villages to those in towns and metropolitan cities, from those who work in the smallest firms and inside the households to those who work in the modern factories and offices. This is an attack on the entire working class.
The Statement of Objects and Reasons of OSHWC Code claimed to have relied on the recommendations of the 2ND Labour Commission, made in June 2002. These were all rejected by all trade unions. The language of the government gives the impression that it is statutorily bound by these recommendations and worse so, claims that the Code has emerged through a tripartite process!
DEFINITIONS OF EMPLOYEE AND WORKER
While discussing the so-called labour reforms the repeated theory that government advocated is to “simplify and rationalize” the laws with the objective of removing the ‘multiplicity of definition’. But if we see the overlapping definitions of ‘Employee’ and ‘Worker’ in the OSHWC Code, we could understand their ill-motivated duplicity. All these 13 parental Acts have all along defined ‘worker’ only. Nowhere we could find the word ‘employee’ with equivalent meaning for the term ‘worker’, except in the Beedi Cigar Act. The Sales Promotion Act and Working Journalist Act have got their own definition, according to their special nature of work. But now both these terms -- ‘employee’ and ‘worker’ -- are being used interchangeably.
Our apprehension becomes all the more relevant and evident when we see ‘sales promotion employees’ and ‘working journalists and other newspaper employees’ being excluded from the definition of ‘employee’; whereas in the definition of ‘worker’, these two categories have been included, meaning thereby that they are not at all considered as “employee” under this OSHWC Code. Thus the hidden motive behind this is to open the avenue for the employers to misinterpret and also to discriminate the working people as employee and worker and to keep some sections away from ambit of this Code itself. Moreover, both definitions exclude ‘Apprentice’ (other than Act Apprentice) and trainees who, in some industries, have been working in such a nomenclature for years together.
The OSHWC Code’s Statement of Objects and Reasons claims that “it provides broader legislative framework to secure just and humane conditions of work with flexibility”. It has nothing at all except with some empty words. This code does not stipulate even the basic humane working condition of eight hours work in a day, leaving the same to be decided by the appropriate governments. All these thirteen Acts, that the present Codes subsumes, invariably, have very categorically defined the working hours. Moreover, the concepts like daily working hours, Weekly working hours, Period of work, Intervals for rest, over time duty and spread-over hours –which all are well defined in the Factories Act, 1948 and in all the relevant Acts that have been removed by this OSHWC Code and left the workers at the mercy of appropriate governments.
HOLIDAYS AND LEAVES
There is an exclusive chapter VII on working hours, holiday and leave with wage etc... As such Section 26(1) says that “No worker shall be allowed to work in an establishment for more than six days in a week”, meaning that the remaining one day may be construed as weekly holiday. But immediately the very next Sec.26 (2) empowers the appropriate government to exempt any worker from availing the weekly holiday u/s 26(1). Another dangerous enabling Para is added u/s 26(1), which is empowering the employers of motor transport undertakings to keep the worker to remain in duty for ten days continuously on the pretext of “any dislocation of a motor transport service”. Given the job risk and associated safety aspect of transport crew members and commuting public, it is an untenable as well as a dangerous proposition.
According to the National Statistical Office’s (NSO) Periodic Labour Force Survey 2017-18, a majority of workers in the country have been working more than 48 hours in a week, which is more than ILO’s prescribed time-limit. The survey showed that salaried or regular-wage earners worked around 53-56 hours a week. Self-employed people worked 46-54 hours a week, while casual workers worked 43-48 hours a week. Now, in the OSHWC Code, the government has removed the relevant provisions that specify and restrict the number of hours a worker is allowed to work overtime in the extant laws and left the matters to be decided by the appropriate government -- in the sense at the whims of the employers’ class. It means that employers have given unfettered rights to compel the workers to work beyond their scheduled working hours on overtime, perpetually. The Code also fixes overtime wage at twice the ordinary wage and annual leave with wage, without defining ‘wage’ at all.
OCCUPATIONAL SAFETY AND HEALTH
The chapter IV which purportedly to deal with the integral part of this OSHWC Code, have nothing specific on safety and health of workers except one i.e. the National Occupational Safety and Health Advisory Board substituting, nay, swallowing six statutory bodies like the Tripartite Central Advisory Committee for Dock Workers, Tripartite Committee in Mines and Construction Workers Central Advisory Board, etc., under different extant enactments. Every industry has got its own vulnerability and risks. Accordingly, industry-wise OSH tripartite committees were constituted and functioning well. For instance, tripartite committee in Mines is not only an advisory committee, given its specificity, it has got the power for direct inspections. Through Sections 16 to 23, all matters of safety and health have been left to the governments to decide. Sections 125 and 126 also giving extensive power to the governments to make rules for implementing the Code, including those related to health and safety.
While the government claims that the Code has universal applicability, in reality in respect of safety, health and welfare measures, the threshold limits of employment have been raised to the level where they can easily escape from whatever obligations are there under the code. For instance, no Safety Officer for the factory or building and other construction work wherein less than 500 workers are working; in the case of welfare officer it is 250; for canteen, the threshold is more than 100; Crèche is required only where more than 50 women workers are working; restrooms and lunch rooms, if workers strength is more than 50 only; Ambulance is must, if 500 workers working- whereas in the lesser case it is not necessary. The present Code seeks to abolish the National Safety Council which is, as a tripartite body, related to International OSH organizations, must continue.
Any law has become meaningful through its effective enforcement and particularly, in case of labour laws, periodic inspection and/or inspection on receipt of complaint is the lifeline of enforcement. The system of labour inspection to ensure the effective application of the relevant extant legal provisions has been given a virtual go-bye in this Code. The Chapter IX, by changing of the nomenclature of the ‘Inspector’ into ‘Inspector-cum- Facilitators’ itself sets the tune of its dilution. The Inspector-cum-Facilitator so appointed, “shall conduct such inspection including web-based inspection in such a manner as may be prescribed by the appropriate Government”. It is basically against the ILO’s Labour Inspection Convention which mandates the member country to put in place a system of labour inspection whereby “workplace shall be inspected as often and as thoroughly to ensure the effective application of the relevant legal provisions”. Where does the web-based inspection come from? The OSHWC Code presupposes that the “use of technology will reduce the violations”. In reality, the excuse of using technology is a blatant attempt to dilute the entire system of inspections in order to protect and indulge the employers’ community who are, by nature and practice, the violators of all labour laws instead of being compliant.
Moreover, the employers are no longer bound by law to cooperate with Inspectors. The newly designated ‘Inspector-cum-Facilitators’ under the OSHWC Code are seems to be assigned to the task of assisting or facilitating the employer more to violate, rather than, to comply with law. There is nothing in the Code to ensure better compliance and enforcement. According to the Factories Act, 1948, the District Magistrates/ Collectors shall be the Inspectors of factories within their jurisdiction. As per the new Code no longer they are Inspectors except, in the case of mines. On the other hand, in their mad drive for ease of doing business, the OSHWC Code empowers the government to empanel the third party “experts” to do the job of Inspection in the start-up establishments. Thus, the binding character of the provisions of inspection/enforcement is totally punctured making other provisions of the law practically meaningless to workers.
As far as contract labour is concerned, in the process of codification, they literally have been robbed off all hitherto available minimum statutory protections. It’s more evident that the government is hell-bent on changing the employer-employee relation so as to facilitate the corporate profit maximization. There has been a virtual war-cry since long for equal remuneration for equal work. The Code should have addressed and ensured that in the case of contract worker performing work similar to that performed by permanent worker, they should be entitled to the same rate of wage, hours of work and other social security benefits. Furthermore, whenever a contract worker is engaged through a contractor, the contract agreement between the principal employer and the contractor must clearly indicate the wage and other benefits to be paid by the contractor. None has been addressed in the code; instead, it has excluded the Contract Labour from the scope of “worker” and “employee”. This is an important departure from the Factories Act, Beedi Workers Act and Plantations Labour Act wherein the definition of “worker” and “employee” included the contract labour in clear terms. Even the Contract Labour (Regulation and Abolition) Act, 1970, does not speak as ‘contract labour’, but defines as “workman” as defined in Factories Act. The Code has conveniently dropped that aspect/provision.
Under the extant law, the validity period of contractor license is prescribed under the state-specific rules. Though it varies across states, generally, the validity period is one year. Now the OSHWC Code provides for a ‘uniform’ validity period of five years. It means that the contractor has got the liberty for five years to violate the minimum legal safeguard that is provided for the contract labour. Again, in the name of “uniformity”, the Code abolishes the Contract Labour Advisory Board which was a statutory one.
SPECIFIC PROVISIONS ON ‘COVERAGE’
Though government claims that this Code has, in certain respects, extended the coverage to all establishments (where any industry, trade, business, manufacture and occupation is carried on including IT establishment or establishments of service sector) employing ten or more workers, except mines and dock where the Code would be applicable even with one worker. Similarly, the definitions of working journalists and cine workers have also been modified to include the workers employed in electronic media and all forms of audio-visual productions. The definition of inter-state migrant workers proposed to be modified to include those migrant workers who are being employed directly by the employer from other states without contractor or agent.
Nevertheless, the exclusions are more in numbers than inclusions. Section 2(u) which defines the ‘establishment’ does not include units where less than ten employees are working. Similarly, the definition of factory [2(v)] excludes the factories with less than ten workers, if power used and less than 20 workers without power. Let us see the Annual Survey of Industries (ASI) 2016-17 report. Total factories, as defined in Factories Act, 1948, are 2,34,865 in which 1,16,62,947 ‘workers’ are working. The same ASI report unfold a tragedy that 1,49,11,189 workers are working in the name of ‘total persons engaged’, that is excluding the ‘worker’. Here lies the criminality of ruling class to keep that vast exclusion intact even in the OSHWC Code. Similarly, the Code will not apply to the ‘plantation’ below five hectares.
Finally, the drastic alterations of labour laws are becoming an important component in their war on labour unleashed by the fascistic RSS controlled-rightwing government at the Centre at the behest of capital -- both domestic and foreign. Critical reading into the “reformed” drafts tell us that the ruling class is determined to intensify the labour exploitation process by increasing precariousness of the working condition. In theoretical terms, labour law reforms would result in generating more relative and absolute surplus value by heightening the exploitation of labour in an unprecedented manner. The government has posed “simplification” as the main purpose of the Codification exercise, but that is a corrupt and dishonest posture dictated by their honesty, sincerity and commitment not to labour interest who create the actual value and wealth, but for the employers community who always enjoy a free lunch at the cost of the labours’ value creation. Through this codification exercise, the violation and loot on workers by the employers are being sought to be legitimized.
The Code subsumes 1) The Factories Act, 1948. 2) The Mines Act,1952, 3) The Dock Workers(Safety, Health and Welfare) Act,1986, 4) The Building and Other Construction (Regulation of Employment and Conditions of Service) Act,1996, 5) The Plantation Labour Act, 1951, 6) The Contract Labour (Regulation and Abolition) Act, 1970, 7) The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979, 8) The Working Journalist and other News Paper Employees (Conditions of Service and Miscellaneous Provision) Act, 1955; 9) The Working Journalist (Fixation of rates of wages) Act, 1958; 10) The Motor Transport Workers Act, 1961; 11) The Sales Promotion Employees (Conditions of Service) Act, 1976; 12) The Beedi and Cigar Workers (Conditions of Employment) Act, 1966, 13) The Cine Workers and Cinema Theatre Workers Act, 1981.
To be precise, this is a frontal attack on the working class with a design to impose modern slavery on the working people. The only option before working class is to fight back and defeat this barbarous and unscrupulous exercise through all out united struggles.