THE CONTEXT: India’s Parliament approved the Wages Code in August 2019, and the Code on Industrial Relations, Code on Social Security, and the Code on Occupational Safety, Health and Working Conditions in September 2020. It published these Codes in the Official Gazette for general information.
The four Labour Codes envisage strengthening the protection available to workers, including unorganized workers in terms of statutory minimum wage, social security and healthcare of workers. Some of the important provisions are as follows: –
SOME OF THE IMPORTANT PROVISIONS ARE AS FOLLOWS
CODE ON WAGES, 2019
- A statutory right for minimum wages and timely payment of wages has been made available to all workers to support sustainable growth and inclusive development.
INDUSTRIAL RELATIONS CODE, 2020
- To avoid multiple interpretations and litigations, a uniform definition of ‘wages’ across all the four Labour Codes has been provided that is simple, coherent and easy to enforce.
- Statutory provision has been made for the first time to issue an appointment letter to every employee of the establishment which leads to the formalized contract of employment that increases job security and enables a worker to claim statutory benefits such as minimum wages, social security etc.
CODE ON SOCIAL SECURITY, 2020
- Statutory provision has been made for the first time to issue appointment letter to every employee of the establishment which leads to formalized contract of employment that increases job security and enables a worker to claim statutory benefits such as minimum wages, social security etc.
- Provision of Re-skilling Fund for skill development of workers.
- The gig worker and the platform worker have been defined for the purpose of formulating schemes to provide social security benefits. Social security schemes can be formulated from the contribution of aggregators and the other sources can include funds from the Central and State Governments.
- The Central Government may extend benefits to unorganised workers, gig workers and platform workers and the members of their families through Employees’ State Insurance Corporation or Employees’ Provident Fund Organization.
- A worker engaged under Fixed Term Employment (FTE) is entitled for all the benefits which are available to permanent employees and has also been made eligible for gratuity if he renders service for a period of one year.
- Every worker is entitled to annual leave with wages after working for 180 days in comparison to 240 days at present.
- Applicability of Employees’ Provident Fund has been extended to all industries as against scheduled industries at present.
OCCUPATIONAL SAFETY, HEALTH AND WORKING CONDITIONS CODE, 2020
- Provision for annual health check-up and medical facilities has also been made which enhances labour productivity and increases life expectancy.
EFFECTS ON WOMEN LABOUR FORCE PARTICIPATION
While 75.1% of men, in the 15–59 age group, were in the workforce in 2018–19, for women in the same age group, it was only 25.0%, reporting a gap of more than 50 percentage points for the year.
The work participation rate (WPR) of women declined from 44.2% in 2004–05 to 25% in 2018–19. The decline in WPR for women is greater in rural areas compared to urban areas. Thus, the New code help in increasing the workforce participation of women by providing them equity in the working environment.
CONDITION OF UNEMPLOYMENT
- As per the estimates of PLFS 2018–19, out of the total employment 91.1% of women are informal workers which reflecting on their weak socioeconomic security.
- The increasing share of casual workers and self-employed women workers disadvantages them from regular employment contracts. The sectoral segregation and concentration of women in low-paying jobs have deprived them of employment protection.
- With regard to access to social security, it is evident that only 39.2% of women workers in regular salaried employment were eligible for any social security benefits while a majority 55.8% were not eligible.
- Labour on Social Security Code has included the unorganised worker in the definitions of “workers” .
- Protection through the labour regulations is critical for addressing the concerns of female labour force participation.
- The Parliamentary Standing Committee on Labour on Social Security Code had informed about the multiplicity of definitions of “workers” which might lead to confusion. Though the Unorganised Workers Social Security Act (UWSSA) intends to cover all unorganised sector workers, the domestic workers are still not included.
- Though the Social Security Code 2020 has tried to include domestic workers in the definition of “wage worker,” yet an exclusive definition has not been adopted.
REPRESENTATION IN DECISION MAKING IN THE ADVISORY COMMITTEE
- Prohibiting gender discrimination in wage payment has been incorporated into the Code vide Section 3 of the Code on Wages 2019. This is in conformity with ILO Convention 100 on equal remuneration and Convention 111 on discrimination (employment and occupation).
- It provides for the constitution of the Central Advisory Board and State Advisory Boards and stipulates that at least one-third members shall be women.
- This will increase in the about force participation rate
- It also has an important role to play in determining and fixing minimum wages.
GENDER AND MATERNITY RIGHTS
- A majority of workers in the informal sector do not have access to institutional social security. This convention talks about social security schemes, which are partially being fulfilled by state governments through the Unorganised Workers Social Security Act 2008.
- The most important social security provision for women workers that is provided in the new code is maternity benefit. The code on Social Security 2020 subsumes the existing Maternity Benefit Act (MBA) 1961 and maternity benefit provisions are detailed in Chapter VI of the said code. Existing provisions, in MBA 1961, have been kept intact in the new code and included as a chapter. The quantum of maternity benefits has been enhanced through an amendment in 2017
- The Code on Social Security 2020 does provide maternity benefits in the form of maternity benefit scheme for unorganised workers and it is being extended for gig and platform workers (a sub-set of the broader unorganised labour). The term social security is explicitly defined in the new code and maternity benefit for unorganised, gig and platform workers has been included within the purview of social security.
- The definition of unorganised workers includes home-based and self-employed workers where women are engaged in greater numbers. As per the code definition, “unorganised worker” means a home-based, self-employed or a wage worker and includes a worker in the organised sector who is not covered by the Industrial Disputes Act, 1947
- However, in the Social Security Code 2020, informal women workers are not covered for the institutional maternity benefit as the specific act is applicable for establishments having 10 or more workers. Thus, maternity coverage in true sense of the term is limited to formal women workers only. Informal women workers are covered under the social security scheme.
THE WAY FORWARD
In the case of self-employment and ambiguous employer–employee relations, the state needs to be involved in the provision of maternity entitlements through appropriate schemes. Labour welfare boards, health departments, and anganwadi centres have to be involved and their activities coordinated.
REPRESENTATION OF WOMEN IN TRADE UNIONS
Industrial Relations Code 2020 is gender neutral. Representation of women in the decision-making body is imperative for raising issues specific to women workers which were not prioritised in the earlier legislations.
OCCUPATIONAL SAFETY AT THE WORKPLACE
The OSH Code has amalgamated 13 labour legislations including the Factories Act 1948, which had earlier prohibited night work for women. But, the new code has introduced a special provision for women wherein it has enabled consenting women to work beyond 7.00 pm and before 6.00 am, subject to employers’ compliance with the conditions relating to safety, holidays and working hours be prescribed by the government. However, the government can prohibit the employment of women in some operations that are dangerous to their health.
Section 67 of the draft rules, for facilitating night working hours for women employees, transport facilities need to be arranged by the employer.
ISSUES: OSHWC Code 2020 is applicable to establishments having 10 or more workers, women workers in the informal sector would not get legal protection as provided in the POSH Act 2013. Also, broadly, because of this applicability threshold (10 workers or more), women informal workers, including migrant women workers, are excluded from the health, safety and working condition provisions outlined in the OSHWC Code 2020. They are also outside the coverage of health and safety legislation.
The new code requires that employers make sufficient arrangement for latrine and urinal accommodation to male, female and transgender employees separately and maintain hygiene therein and include provision of separate bathing facilities along with a locker room.
ISSUES: OSHWC Code 2020 is its selective applicability. As per Section 2(v) an “establishment” means (i) a place where any industry, trade, business, manufacturing or occupation is carried on in which 10 or more workers are employed.8 This implies that for establishments employing less than 10 workers, provisions of this code would not apply.
THE WAY FORWARD
- There is a need for comprehensive coverage of women through women-centric initiatives. This will help in solving the problem of exclusivity problem of women in the Workspace related issues. The code should comprehensively cover all the establishments.
THE CONCLUSION: In all four codes, the term “worker” or “employee” has always been referred to as “he,” which implies how workers are perceived as male entities by the lawmakers. This itself is problematic and needs to be rectified in the first instance. The new labour codes have the potential to protect certain rights of women workers but are plagued with significant gaps that need to be addressed urgently. Some of these gaps can be filled by the state governments while finalising the rules. The discourse on labour rights for women needs to move beyond the economic rights and also focus on rectifying the larger issues of human rights violations that are embedded in the social structures.
- What are the steps taken in the New labour Code for the increase in the labour force participation of women?
- What are the issues in the labour code that restrict women’s equal participation in the economy?