Analysing the Migrant Labourers’ Crisis in the context of COVID-19: Labour Laws perspective.
Updated: Jul 2, 2020
Anjali Baskar, Student, School of Law, CHRIST (Deemed to be University), Bengaluru
Introduction - Impact of COVID-19 on Migrant Workers
Migrants suffer an additional burden because not only they are poor, they have to migrate from place to place for work, which results in the deterioration of their health. The Ministry of Urban Housing and Poverty introduced a working group for migration in 2017, which examined the migrant workers’ terrible state in the country and submitted its report to Central Government in 2017.
Problems faced by these migrant workers were about lack of access to basic needs, e.g. food, shelter, cutting of wages by employer now that work has been halted, fear of getting infected and anxiety about the security of their job. As a result, thousands of them started fleeing from various cities to their home towns. Many migrants died due to several reasons- gruelling tiredness from walking thousands of kilometres to their native place, hunger, accidents or suicide. A telephonic survey of more than 3000 migrants from North Central India shows that majority of the workers were the daily wage earners. At the time of lockdown, 42% had been cut off from ration, 33% were stuck at their destination with no access to food, water and money, and 94% were without a worker’s ID.
Those who reached their native villages were seen as potential carriers of the infection just because of their poverty level and were subjected to societal condemnation and police brutality. Recently, it was reported that a group of migrants who were on their journey to go back home were sprayed with chemicals to disinfect them for which the local administration apologised. Migrant workers are one of the most significant streams of mass return migration in the country, but they are still being taken advantage of. The very effort to stave off the pandemic turned into one of the greatest human tragedy in India’s recent history, and still has not been resolved.
The author seeks to examine the efficiency of existing labour legislation and the legality of the issues.
What are the labour welfare legislations can they seek relief from? Whether implementing these Acts will be time-consuming or ineffective?
Whether the Supreme Court planning to resolve this crisis by providing informed and systematic/detailed directives?
1. The Unorganised Workers’ Social Security Act, 2008
The Act was enacted to ensure social security and welfare of unorganised workers and to implement the national Security Social Scheme. Section 3 of the Act mandates the Central Government to formulate schemes for the unorganised workers on matters relating to old age protection, maternity benefits, life and disability cover, health and any other benefit as fixed by the discretion of the Centre.
The 2008 Act makes the registration of the unorganised workers compulsory in order to enjoy the benefits of these schemes by the Central Government. According to Section 10 of the Act, the District Administration issues an identity card by which the worker will be assigned a unique identification number (UIN) after an unorganised worker applies.
2. The Contract Labour (Regulation and Abolition) Act, 1970
The objective of this Act was two-fold: 1. prevent exploitation of contract labour and also to 2. introduce better conditions of work. Contract workers are indirect employees who are to be employed as contract labour when he is hired in connection with the work of an establishment by or through a contractor. The Act applies to establishments wherein twenty or more labourers were currently employed or in the past even for one day during preceding year as contract labour by the principal employer of an establishment or the contractor. It does not apply to the establishments where work performed is of intermittent or seasonal nature.
The rule laid down in Steel Authority of India Ltd. vs. National Union of Waterfront Workers & Ors. was that the contract workers would have no right to automatic absorption upon abolition. The Bench further added that when the concerned government notifies an issue under Section 10(1) which prohibits employment of contract labour in a given establishment, the contractor needs to offer work to his labourers in establishments where the contract labour system is permitted.
3. The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979
According to the Central Information Commissioner, this Act is aimed at monitoring the inter-state migrant workmen’s employment processes and to assure them help with their service conditions. One common misconception is that inter-state migrant workers are an addition to other workers, but instead they are to be included in the definition of workers. It applies to all institutions and contractors who hire five or more of passbook to every inter-state migrant workmen with relevant information. The provisions of the Act are meant to provide for their service conditions and matters connected to it.
According to this law, terms and conditions of the recruitment should be provided to the migrant workers by the contractors who are deploying the migrant workers, e.g. the
remuneration to be paid, working hours, determination/calculation of wages and other essential amenities.
The wages of the migrant workers should be equal to or higher than the wages mentioned in the Minimum Wages Act. If all the States had implemented the ISMW Act 1979 (arguably considered as a “dead letter” nowadays) faithfully, they would have had full data on immigrant workers regarding their home State and other particulars.
4. Limited Legislations
The Industrial Disputes Act functions as blanket legislation which facilitates definitions which overlap in other Acts and serves as an adjudicatory guide for settling disputes/ grievances between employers and employees. The scope of the act is limited for two reasons: first, only applicable to the organised sector and second, restricted interpretation of “industry” [Section 2(j)]. The Supreme Court has tried to expand the definition to give relief to a broader section of workers; however, the position has remained unchanged since the case of Bangalore Water Supply Bangalore Water Supply and Sewerage Board v. A Rajappa.
Migrant workers can seek relief from the provisions of the Employees’ State Insurance Act, 1948. To the contrary, in Calcutta Electric Supply Corporation Ltd. v. Subhash Chandra Bose, a Supreme Court case, has left the ambit of “employee” uncertain against contract labour. Even if we apply this Act, it comes with its own set of conditions including, but not limited to, the contribution from the employee side monthly wage cap (an employee earning more than Rs. 3000 will not be covered under the Act), like the Employees’ Provident Funds and (Miscellaneous Provisions) Act, 1952.
5. Occupational Safety, Health and Working Conditions Code, 2019
This 2019 code, introduced in the Lok Sabha, has the objective of dissolving13 labour codes in the country in order to strengthen protection for labourers. The Code states that the principal employer directly employs all labourers contracted by him/her if a contractor is yet to obtain a licence. The Code also emphasises the significance of the displacement allowance equal to 50% of the wage to facilitate any emergency that arises. In February 2020, the bill was subject to review by a committee, where they agreed to provide a chapter solely on the protection of migrant labourers and unanimously agreed to implement the provisions of the bill.
Amendment of Labour Laws/Labour Reforms in the Various States
The Uttar Pradesh Temporarily Exempted Certain Labour Laws Ordinance, 2020 suspended the activity of all work laws in the state for the following three years, except for the Bonded Labour System (Abolition) Act 1976, Section 5 of the Payment of Wages Act 1936 (which identifies with the convenient instalment of wages) and the Employees Compensation Act 1923. Provisions of the Factories Act and the Building and Other Construction Workers Act 1996, ascertaining the wellbeing and security of labourers have been reserved.
Kerala has a long history of several thousands of its citizens working abroad. Kerala has introduced pioneering schemes such as Kerala Migrant Workers Welfare Scheme, 2010 that offers financial support for treatment of illness of migrants, education grants for their children and benefits of retirement policy given to those who have worked under the scheme for 5 years. Kerala set into motion another health insurance scheme called “Awaaz” which was set up in 2017 with two objectives: first, to provide health insurance coverage to migrants and second, prepare an extensive and thorough database of migrant labourers state-wise.
The Madhya Pradesh government has declared that “the legitimacy of the license will be for the period as applied for” under the 1973 Contract Labour Act. At this moment, contractual workers, who assist organisations with getting contract labourers, need to acquire numerous licenses for various firms inside a state. The Madhya Pradesh government has hindered the relevance of a maximum part of provisions of the Industrial Disputes Act, 1947 for new assembling units that will come up in the following 1,000 days.
The primary identification of the tenets of being a “labourer” is still undefined in India, with over 250 state and central overlapping legislations that can be called labour laws. Hopefully, the 2019 Code repeals the rest. The 7th Schedule Union List along with Article 217 states that the Central Government alone is empowered to deal with Item 81 in general, where inter-state migrant workers are to be protected in virtue of their responsibility. The list of states’ powers and responsibilities do not expressly mention inter-state migrants, but that does not excuse them from total responsibility, as they receive labour and exporters as well.
Conclusion and Policy Recommendations
The employees that work in the formal tier, which comprise of less than 10% of the workforce, enjoy considerable protections, while those in the informal tier get almost no protections. 50% of migrant workers had either no rations left or only sufficient for less than a day, according to a survey. The Supreme Court is set to pass an order for the migrant worker crisis on June 9th, 2020. Those companies that have maintained labour camps must be advised to continue with all facilities (food, water, sanitation and hygiene) during the lockdown.
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