Labour Laws and Migrant Workers during COVID-19

Bhumika Indulia

5 years ago

On 24-3-2020 the Prime Minister announced nationwide lockdown [1] in India. Such stringent action was taken as precautionary action to prevent large scale COVID-19 outbreak. What followed was the exodus of migrant workers across States. These migrant workers belonged to both the organised and unorganised sector. Majority of the migrant workers are daily wagers who worked at construction sites, rickshaw pullers, domestic workers, etc. They were dependent on a daily source of income for their day to day survival.

The Census of 2011 estimates the total number of internal migrants in the country to be 45.36 crores. Professor Amitabh Kundu of Research and Information System for Developing Countries has done a comprehensive study of Economic Survey 2017, Census of India 2011 and NSSO data. He estimates that there are a total of about 65 million inter-State migrants, and 33 per cent of these migrants are workers[2].

A writ petition [3]was filed by Harsh Mander before the Supreme Court requesting it to issue a direction to the Central/State Governments to ensure minimal wages for all the migrant workers, to prepare national and State disaster management plans for dealing with the COVID-19 epidemic or to pass any such orders that the Court may find appropriate. Meanwhile the Union Home Ministry directed [4] the employers to pay wages to their workers at their place of work without deduction during the period of lockdown. The order also refrains landlords from collecting rent from the migrant workers living in rental accommodation.

The Supreme Court vide order dated 31-3-2020[5] directed the Centre to ensure accessibility of basic necessities and medical facilities for migrant workers in view of the nationwide lockdown. The order was based on the status report filed by the Solicitor General Tushar Mehta on behalf of the Central Government apprising the Court of actions taken till now. However even after the Supreme Court’s order few contractors were not paying wages to their workers who were ultimately left destitute with no option but to leave for their hometown on foot.

At the time of writing this article the final order of the Supreme Court is still awaited. Meanwhile the COVID-19 crisis looms large on the entire world and it doesn’t appear to end any time soon. Hence it is imperative that the migrant crisis is rectified at the earliest. The same cannot be done without resorting to the existing labour legislation. However, the Indian labour legislations appear to be insufficient in this time of crisis, more so vis-à-vis migrant workers. We will try to point out laws governing such migrant workers and few of the fallacies associated with it during the course of this article. Migrant workers belong to both the unorganised and organised sectors. Majority of them work in the construction sector. A word of caution to the readers that the other labour legislations also apply to the organised sector migrant workers which are not dealt here for instance, the Minimum Wages Act.

The Unorganised Workers’ Social Security Act, 2008

The Unorganised Workers’ Social Security Act, 2008 was enacted on 30-12-2008 with an aim to ensure social security and welfare of unorganised workers and to implement the national Security Social Scheme. The Act specifically aims to cater to the needs of the workers of unorganised sector. Section 3[6] of the Act mandates the Central Government to formulate schemes for the unorganised workers on matters relating to:

Life and disability cover;
Health and maternity benefits;
Old age protection; and
Any other benefit as may be determined by the Central Government.

To enjoy the benefits of these schemes by the Central Government, the Act mandates the unorganised workers to get registered. Under Section 10 [7] of the Act, an unorganised worker is required to submit an application to the District Administration after which the District Administration issues an identity card by which the worker will be assigned a unique identification number (UIN). The unorganised worker is to submit a small contribution to get entitled for the benefits of the social security benefits. This is a time consuming process and in time of such pandemic it is expected that the Government make some modification and instead allow the District Administration to take cognizance of every unorganised worker in the area who is entitled to get the benefit of schemes like Pradhan Mantri Garib Kalyan Yojna and other schemes.

Schedule I[8] enumerates the schemes made for the welfare of the unorganised sector. One such scheme is Rashtriya Swasthya Bima Yojana[9] that aims to provide appropriate health insurance coverage to unorganised workers. The Scheme entitles people coming under BPL (Below Poverty Line) cashless insurance as they are provided a smart card by which they are entitled to get hospitalised in private as well as public hospitals.

The majority of the migrant workers cannot avail the benefits of Public Distribution System (PDS) since they migrate from one State to another State. Hence, they do not enjoy the benefits under many schemes formulated under the Act.

The Contract Labor (Regulation and Abolition) Act, 1970

After independence, India tried to build up its self-sufficient economy. The global industrialisation had its effect on India as well and hence there was a demand for workers in not just agricultural field but also in large industrial plants, mines, etc. Thereby a large chunk of workers migrated from less developed States (UP, Bihar) to industrial States (Gujarat, West Bengal, Orissa) and cities. There was hence felt a need to regulate the working conditions of such migrant workers, thus this Central lobour legislation was enacted.

The Contract Labour (Regulation and Abolition) Act, 1970 (CLA) aims to safeguard the interests of contract labourers who indulge in all forms of contract labour in certain establishments and its abolition in certain circumstances. Section 2(1)(b)[10] defines contract labour as:

“A workman shall be deemed to be employed as “contract labour” in or in connection with the work of an establishment when he is hired in or in connection with such work by or through a contractor, with or without the knowledge of the principal employer.”

Exodus of migrants was witnessed on the streets of Delhi amidst the lockdown due to COVID- 19. The migrant workers were returning to their homes because these workers were not ensured food[11], health[12] and payment of wages[13]. The workers told the media that contractors were not paying or were paying minimal amount and asked them to leave.

License to the contractors enlists conditions[14] that mandate the contractors to fulfil all the essential amenities as the Government may deem fit to impose in accordance with the rules, under Section 35[15]. As it has been highlighted in the news that contractors are not paying wages to the daily wage workers due to the lockdown despite the Government guidelines this would have attracted violation of the Act and such licenses should have been revoked[16]. But no such action was initiated.

The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979

The 1979 Act was brought as the Contract Labour (Regulation and Abolition) Act, 1970 proved to be insufficient in dealing with the plight of the contract workers and failed to curb the malpractices indulged in by the principal employer/contractor/sardar/khatedars, etc. The Act went on further to deal with inter-State migrants which was not dealt with by the previous Act. The Act provided for, among other things, equal/similar wages for the similar nature of work applicable to the local workmen (Section 13), displacement allowance of 50% of monthly wages or Rs 75 whichever is higher (Section 14), home journey allowance (Section 15) for inter-State workers. The Act also provides for the right to raise industrial disputes in the provincial jurisdiction where they work or in their home province.

Apart from the requirement of registration that was required under the CLA this Act makes the availment of benefits contingent on the action of the contractor including providing passbook and registration ID. In addition to it the Act provides an escape route to principal employers if they can show that transgressions were committed without their knowledge. The aggrieved workers, as mentioned above, can approach the adjudicatory authority under the Industrial Disputes Act, 1947 (IDA). However, the record of prosecutions or dispute settlement is almost nil. The reason is obvious.

Relief to construction workers

The relief package of Rs 1 lakh 70 thousand crores (Pradhan Mantri Garib Kalyan Yojana) was announced by the Finance Minister. It aimed to provide economic relief to ease the suffering of the people belonging to different sector including farmers, old age, women, construction workers, etc. To ease the plight of the construction workers which form the majority of the migrant workers, the Government directed the use of Building and Other Construction Workers Welfare Fund under the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996(BOCW). However there are only 3.5 crore registered workers in the Fund. This fund is collected by the States by levying 1-2% cess on construction establishments under the BOCW Welfare Cess Act (the Cess Act) of 1996.

2018 Judgment

In 2018, the Supreme Court dealt[17] with the status of the implementation of the BOCW Act. The Supreme Court reprimanded the Central Government, State Governments and the Union Territories Administration (UTA) for sheer ignorance and official apathy shown over the plight of the construction workers. The Supreme Court took cognizance of several problems associated with the implementation of the BOCW Act.

That the State Governments had not framed statutory rules in terms of Section 62 of the BOCW Act.
That in the absence of the registration of establishments involved in construction activities, it would be extremely difficult for the authorities under the BOCW Act to implement the provisions of labour laws (Section 7).
That there has been no constitution of the State Building and Other Construction Workers‘ Welfare Board under the provisions of Section 18 of the BOCW Act in many States. One of the more important functions of the Welfare Board is to constitute a fund called the Building and Other Construction Workers‘ Welfare Fund.
That the crux of the implementation is registration of workers under Section11 of the Act but unfortunately the State Governments and UTAs have paid little attention to it.

The Supreme Court also took cognizance of the slew of directions issued by it since 2008 and affidavits filed by the respective Governments informing the Court of the status of implementation. The Supreme Court noticed the sorry state of affairs and the Governments’ ignorance in implementing the BOCW or using the fund collected under the BOCW cess that stands at around Rs 30000 crores or more.

The Supreme Court issued four directions on 19-3-2018[18]:

To put in place and strengthen the registration machinery, both for the registration of establishments as well as registration of construction workers.
To establish and strengthen the machinery for the collection of cess as there is a tremendous amount of construction activity going on and it is unclear whether the pay the cess or not.
The Ministry of Labour and Employment to frame one composite Model Scheme for the benefit of construction workers in consultation with all stakeholders including NGOs.
The Ministry of Labour and Employment, the State Governments and the UTAs to conduct a social audit on the implementation of the BOCW Act so that in future there is better and more effective and meaningful implementation of the BOCW Act.

In addition to the aforesaid direction, the Courts also issued general directions for responsible implementation of BOCW; constitution of advisory committee by State Governments and UTA; establishment of welfare board, issuance of Universal Access Number to construction workers and more. In pursuance of the directions, the Ministry of Labour and Employment formulated the Model Welfare Scheme for Building and Other Construction Workers and Action Plan for Strengthening Implementation Machinery which was uploaded on its website. How will the fund be used by the States for the migrant workers who are stuck in States other than their home State is yet to be seen as there is still no clarity on it.

Limited definition in organised sector labour legislations

The Industrial Disputes Act serves as an umbrella legislation which provides overlapping definitions and also provides the adjudicatory forums for dispute settlement between employer and employee. The IDA is limited in its scope, first for it is only applicable to 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 wider section of workers however the position has remained unchanged since Bangalore Water Supply case[19]. There have been two conflicting opinions of Court in Chief Conservator of Forest v. Jagannath Maruti Kondhare[20] and State of Gujarat v. Pratamsingh Narshinh Parma[21]. A reference is made to the Supreme Court to finally settle the matter which is still pending.

Majority of the migrant workers work as contract workers who are employed by a contractor who in turn is employed by the “employer”. To avail the benefit under social welfare legislation the migrant workers must fall under the definition of “employee”. For Section 12 of the erstwhile Workmen’s Compensation Act, 1923 holds the employer vicariously liable even for the injury caused to the workman in the course of his employment of the contractor, employed by him. For the purpose of this Act, an inter-State migrant workman shall, on and from the date of his recruitment, be deemed to be employed and actually worked in the establishment or as the case may be, the first establishment in connection with the work of which he is employed (see Section 21 of the Act). If a workman encounters an occupational disease it is considered to be an injury by accident under the Workmen’s compensation Act making it eligible for compensation by the employer.

Migrant workers may also be said to be entitled under the Employees’ State Insurance Act, 1948. However, the Supreme Court judgment in Calcutta Electric Supply Corporation Ltd. v. Subhash Chandra Bose[22] has left the ambit of “employee” uncertain vis-à-vis contract labours. Even assuming its applicability the ESIC comes with its own set of contingencies including but not limited to contribution from the employee side monthly wage cap (an employee earning more than Rs 3000 will not be covered under the Act). The same is true for the Employees’ Provident Funds and (Miscellaneous Provisions) Act, 1952. .

Remarks

Uttar Pradesh and Bihar contribute major chunk of this migrant workers workforce. According to Professor Kundu’s estimates[23] around 1.8 to 2.8 migrant people will be moving to Bihar during this lockdown. Bihar has the biggest per capita migrant worker population. Hence, we approached the Bihar Representative of India Trade Union Congress Mr Gajnafar Nawab who remarked that no such help is being provided by the Government. He informs that Bihar Chief Minister has announced a relief package of Rs 100 crores for migrant workers however they need to provide their Aadhar card for the same. He also points out that many workers cannot avail the befit of PDS as many of them don’t have the ration cards. Mr R.N. Thakur, member of All India Trade Union Congress points out that around Rs 1700 crores of cess is pending under the BPOCW cess which is not being used.

The above discussion allows us to contend that the current labour legislation does not provide the requisite relief to the migrant workers. In addition these Acts have hardly addressed the issue of migrants due to lack of mediators to pass on the information and communication gap. The legislations governing such workers are already limited in quantity and quality.

India has been a committed and founding member of the International Labor Organisation (ILO) and hence it expected to implement the social welfare legislation. The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 1990[24] was introduced with an objective of welfare of migrant labourers across the world. Apart from International mandate, as per the Directive Principles of State Policy also the State is required to secure for the citizens, both men and women the right to an adequate means of livelihood, equal pay for equal work for both men and women, protection against abuse and exploitation of workers, economic necessity, protection of their health and strength, to secure for children opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and protect children and youth against exploitation and moral and material abandonment (Articles 39, 41 and 43).

Thereby it becomes imperative for the Supreme Court to devise an extraordinary remedy for this extraordinary time. The welfare of millions of such workers hangs in balance. We would like to leave the readers with these lines:

“Recall the face of the poorest and the weakest man/woman whom you may have seen, and ask yourself, if the step you contemplate is going to be of any use to him/her. Will he/she gain anything by it? Will it restore him/her to a control over his/her own life and destiny? In other words, will it lead to Swaraj (freedom) for the hungry and spiritual starving millions?”

Mahatma Gandhi

*Animesh Upadhyay & Shashank Pandey are Fourth Year students, BA LLB (Hons), Dr. Ram Manohar Lohiya National Law University.

[1] Business Standard, PM Modi announces nationwide 21-day lockdown, appeals for social distancing; https://www.business-standard.com/article/current-affairs/pm-modi-announces-nationwide-21-day-lockdown-appeals-for-social-distancing-120032401687_1.html (April 2, 2020, 1:25 pm)

[2] The Indian Express, Explained: Indian migrants, across India, https://indianexpress.com/article/explained/coronavirus-india-lockdown-migran-workers-mass-exodus-6348834/

[3]. Harsh Mander v. Union of India, WP (Civil) Diary No(s). 10801/2020

[4]. https://mha.gov.in/sites/default/files/MHA%20Order%20restricting%20movement%20of%20migrants%20and%20strict%20enforement%20of%20lockdown%measures%20-%2029.03.2020pdf

[5].Alakh Alok Srivastava v. Union of India, 2020 SCC OnLine SC 345

[6].The Unorganised Workers’ Social Security Act, 2008.

[7] Ibid

[8] Ibid

[9]. https://www.india.gov.in/spotlight/rashtriya-swasthya-bima-yojana#rsby1

[10].The Contract Labour (Regulation and Abolition) Act, 1970.

[11] Ibid, Section 16.

[12] The Contract Labour (Regulation and Abolition) Act, 1970, Section 19.

[13] The Contract Labour (Regulation and Abolition) Act, 1970, Section 21

[14].The Contract Labour (Regulation and Abolition) Act, 1970, Section 12