October 17, 2021

Restore Inter-State Migrant Workers Act

R Karumalaiyan

DURING the pandemic when the plight and sufferings of migrant workers had turned into the greatest human disaster, the Modi regime has, without any remorse, repealed the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 (ISMW Act, 1979) by “amalgamating” it with the Occupational Safety, Health and Working Conditions Code, 2020 (OSHWC Code). This is not an amalgamation in the ordinary sense of the term as the government claims, but a legal subterfuge to snatch the existing rights of the inter-state migrant workers and blatant illegality perpetrated against them so as to legalise their perpetual enslavement. In the name of subsuming, when we compare the existing Act with the Code, it seems to be the total erasing of all traces of the Act itself from the statute books.

The OSHWC Code virtually treats inter-state migrant workers as contract workers. That’s why the ‘contract worker’ is defined in such a manner so as to include inter-state migrant workers. Chapter XI, titled ‘Contract Labour and Inter-State Migrant Worker etc.’, in the OSHWC Code is devoid of any teeth and demolishes the entire migrant workers specific-cum-pro-worker provisions of the 1979 Act. It is against the very reasoning adduced by Parliament then while enacting the 1979 Act. To quote the statement of the Objects and Reasons of the 1979 Act, “The Compact Committee which was constituted in February 1977, therefore, recommended the enactment of a separate central legislation to regulate the employment of inter-state migrant workmen as it was felt that the provisions of the Contract Labour (Regulation and Abolition) Act, 1970, even after necessary amendments would not adequately take care of the variety of malpractices indulged in by the contractors/Sardars/Khatadars, etc., and the facilities required to be provided to these workmen in view of the peculiar circumstances in which they have to work”. Accordingly, the 1979 Act was enacted to address all peculiarities and specificities of the inter-state migrant workers. But, now, the OSHWC Code has omitted all vital provisions of the ISMW Act specifically connected to the migrant workers.

The ISMW Act steps in from day one -- at the initial stage of recruitment of the inter-state migrant worker itself. On the contrary, the OSHWC Code takes cognizance of migrant workers only after they are ‘employed’, that too as contract labour. That was why the ISMW Act defined the term ‘recruitment’ in relation to inter-state migrant workers that is totally absent in the Code. Accordingly, as per the 1979 Act, applications for recruitment as well as employment of migrant workers ought to be made separately in different forms to the authorities.

In order to get into the question of registration of migrant workers, we have to scrutinize the provisions on registration of establishment where all the details of the migrant workers have to be recorded. The registration of establishment has two aspects: i) registration of establishments employing interstate migrant workers and ii) issuance of a license to the contractor who recruits migrant workers. Both are mandatory under the ISMW Act. These provide legal status to the inter-state migrant workers and make them as legal entities eligible for protection and entitlements. This registration was migrant worker specific. So, the employment of inter-state migrant workers without registration of the establishment was strictly prohibited under the 1979 Act. On the contrary, Part II of Chapter XI of the Code which is supposed to deal with inter-state migrant workers has no provisions at all for separate registration of establishments employing them. Obviously, the Code has left the inter-state migrant workers in the lurch. Because in OSHWC Code we have to presume that Chapter II dealing with registration of establishments, in general, would also apply to the establishments employing inter-state migrant workers.

Then if we decipher the meaning of “establishment”, it will again cut the sorry figure. As per the 1979 Act, ‘establishment’ means a) Any office or department of the government or local authority; or (b) Any place where any industry, trade, business, manufacture or occupation is carried on. But the Code has omitted offices and the departments of the government or local authority from the definition of “establishment”.

Moreover, it may be recalled that the ISMW Act applies to every establishment in which five or more inter-state migrant workers are employed or were employed as well as to every contractor who employs or who employed five or more inter-state migrant workers. The Code has increased the threshold limit of workers in establishments from 5 to 10 or more, that too only to avail the so-called “facilities”. For the rest of the working conditions so on and so forth, we have to take recourse to the provisions related to the contract workers contained in the Part-I of Chapter–XI where the threshold is fifty or more. According to the Economic Census of 2016, establishments employing 10 or more workers accounted for only 1.66 per cent of the total establishments in the non-agricultural sector. As a result of this increased threshold, the majority of establishments and contractors are left outside the scope of regulation. Consequently, a large proportion of workers will be left without legal protection and will be vulnerable to exploitation without remedy.

Then comes the definition of “inter-state migrant worker” where another round of salt is being rubbed into the injuries. Now the OSHWC Code has added the wage threshold of Rs 18,000 to become eligible to be an “inter-state migrant worker”. Any migrant worker who is fortunate enough to receive a wage of Rs 18,001 would be out of the ambit of the Code. But the 1979 Act solidly rested upon the specific character of migrations that are mercilessly negated in the Code.

The Code, further, ignores the special character of contractors connected with inter-state migrant labour as mentioned in the statement of the Objects and Reasons of the 1979 Act. And more so the Code tries to equate the same with the general term of the contractor. There is no specific definition of ‘contractor’ in the Code exclusively connected with inter-state migrant workers. The applicability of the relevant provisions on contract labour is also got drastically reduced in the Code. The chapter dealing with contract labour in the OSHWC Code shall only apply to (i) the establishment in which fifty or more contract labour are employed or were employed on any day of the preceding twelve months through contract and (ii) the manpower supply contractor who has employed, on any day of the preceding twelve months, fifty or more contract labour.

The licensing of contractors engaging the inter-state migrant worker is also entirely different from those general licensing of contractors. As per the 1979 Act and Rules, every contractor should get two licenses: one for the recruitment of migrant workers and another for the employment of migrant workers.

Both applications for the grant of the two licenses should be accompanied by a certificate of the principal employer to the effect that he/she undertakes to be bound by all the provisions of the Act and the rules made thereunder so far as they are applicable to him/her in respect of the recruitment or employment of the migrant workmen, in respect of which the contractor is making the application.

Moreover, the 1979 Act mandates every contractor of ISMW with the specific duties and legal obligations: to furnish such particulars about the state from which an inter-state migrant workman is recruited and in the state in which such workman is employed, within 15 days from the date of recruitment, or, as the case may be, the date of employment and to issue to every interstate migrant worker, a passbook affixed with a passport size photograph of the worker and indicating in Hindi/ English/the language of the worker with all details including the name and place of the establishment wherein the worker is employed, the period of employment, the proposed rates and modes of payment of wages, the displacement allowance payable, the return fare payable to the worker on the expiry of the period of his employment and so on. The contractor shall maintain the passbook updated and cause it to be retained with the inter-state migrant workman concerned. 

Regarding wages as per the 1979 Act, the inter-state migrant worker should not be paid less than statutory minimum wages. Besides this, the 1979 Act mandates the employer not to discriminate against any migrant worker who is doing the same or similar kind of work with any other worker in terms of wage rate, holidays and working hours. The wages should be paid in cash. In addition, the ISMW Act makes the principal employer responsible not only for the prompt payment of wages but also liable to the non-payment of displacement and journey allowances. The Code has deliberately omitted all these provisions.

Thus, the ISMW Act has, indeed, dealt with all aspects of migrant workers -- recruitment, registration, journey, accommodation, fixation of wage and ensuring its payments, responsibility of contractor /agents and employers thereon. In the case of any dispute thereupon, it provided for the application of the Industrial Dispute Act and coverage of all social security Acts like WC Act, ESI & EPF Acts. By subsuming the ISMW Act in the OSHWC Code, the Modi-led BJP government has left the inter-state migrant worker a rightless lot. So, the fight for the restoration and strengthening of the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 should be done by exposing the criminality of this corporate servile regime.