OPPOSE ANTI-WORKERS LAWS BEING ROLLED OUT UNDER COVER OF COVID-19 - SANJAY SINGHVI

04 June 2020

Since the past week the Central and various state Government have been issuing various notifications curtailing the rights of workers.  As many as 10 states have issued notifications amending the Factories Act, 1948. Most of these (States like Uttarakhand, Gujarat, HP, MP etc) have been issued using the powers under section 5 of the Factories Act. This is clearly misconceived. The powers under section 5 can only be used in a “public emergency” which has been defined to mean “… a grave emergency whereby the security of India or any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance.” It is clear that this provision for exemption from the provisions of the factories act is only to be used in times of war or civil war or such similar

Some states, like Maharashtra and Goa, have exercised power under section 65 (2) of the Factories Ac. This is closer to the satiation as it exists. This allows relaxations from certain provisions of the act concerning hours of work, weekly off, etc “…to deal with an exceptional press of work”. But here too, the exemption is to be given to the workers, not to the factories. Further, it has to be to deal with an exceptional press of work. This is not the case with the notification of the Government.

Given below is a table showing the changes made in various states

State

Hrs/Day

Total Hrs/ Wk

Overtime

Hrs/ Qtr

Other Changes

Gujrat

12

72

No limit

1. Maximum 6 hrs continuous working and then a break for min 30 mins

2. Female workers not allowed between 7:00 pm to 6:00 am

3. Wages to be paid in proportion of existing wages

Himachal Pradesh

12

72

No limit

Maximum 6 hrs continuous working and then a break for min 30 mins

Valid till 20th July

Punjab

12

60

75

1. Spreadover shall not exceed 13 hrs/day (usual being 10.5 hrs)

2.Wages for additional hours will be twice the ordinary rate paid for 'overtime'

3. Valid for 3 months

Rajasthan

12

72

No Limit

Additional 4 hours per day shall be paid as overtime subject to a 24hr/week limit. Valid for 3 months

Madhya Pradesh

12

72

No limit

Overtime wages paid as per S.59 of the Factories Act.1948. .Valid for 3 months

Haryana

12

    72

No limit

Overtime wages paid as per S.59 of the Factories Act.1948.
Valid till 30th june 2020

Uttarakhand

11

18 (over-time work)

 

1. Two shifts of 11 hrs each in a day with separate set of workers 

2. One hr break between the two shifts

3. Three hours overtime to pe paid as per rules

4.This shall apply only to those factories where permission by administration is given, in view of Covid 19

5.Valid for 3 months

Maharashtra

12

60

115

1. Two shifts of 11 hrs each in a day with separate set of workers

2.Wages for additional hours will be twice the ordinary rate paid for 'overtime'

3. No working shift shall be more than 13hrs including the break

4. No overtime for 7 consecutive days

5. Valid till 30th June

 

Many of the statements in the table above are not mentioned in the notifications themselves but deduced from the law. For example, Punjab has only exempted from the provisions of section 54 (daily duty limit enhanced to 12 hours) and section 56 (daily spreadover extended to 13 hours). From this we can deduce that the weekly limit of overtime of 60 hours remains unchanged. As one can see the notifications are arbitrary and varying. Only the Punjab notification is within the bounds set by section 65 (2). The Maharashtra notification also broadly follows these bounds but is based on the amendments to the Factories Act made by the State in 2016, which are themselves under challenge by various unions.

Besides this, the UP Government has come out with an ordinance granting blanket exemption to all employers for three years from all labour laws barring a few. The few laws which have been kept are section 5 of the payment of wages act (when wages are to be paid), the workmen’s compensation act, the bonded labour act, the building and other construction workers act (because the government collects huge cess from all builders from this act) and laws relating to women and children.

Firstly such a notification is clearly unconstitutional. The constitution says that “labour welfare” is a subject on the concurrent list. However, if both that Centre and the state make laws on the same subject then the central law will prevail unless the state law has got the assent of the President. Only then will the state law prevail over the central law in that state. The ordinance does not show that any assent of the President has been obtained.

Further, it is clear while reading this ordinance that it has been made after downing two quarters. What is meant by saying that all labour laws are suspended for three years? What will happen to the ESI hospitals in the state? Will they close down? Who will pay the wages of the doctors, nurses and other workers in the ESI hospitals? Managements will not have to pay any contribution for three years. Will there be no law to provide for drinking water and urinals? The Factories Act which provides for this has been suspended. What will happen to my PF which is already accumulated? At what rate will interest be paid on that? This can only be fixed under the Act. If the act is suspended, then how can such rates be fixed? Will workers not have to give 14 days notice to go on strike? What will happen to latecomers? The timings and penalties are all fixed under the Standing Orders Act which is also suspended. What will happen to Judges and staff of labour and industrial courts? Will they have a holiday for three years? If they will continue hearing old cases, what will happen with the result. The award of the Industrial Tribunal only becomes enforceable under the Industrial Disputes Act, which is suspended! It is obvious that none of this has been thought of.

The MP Government has come up with another slightly different approach but which is almost equally idiotic.   The MP Government  has issued a notification purportedly under section 36 B of the Industrial Disputes Act, exempting “such industries” of the state from the provisions of the Industrial Disputes Act except for the provisions of Chapter V-A and the sections 25 N, 25O, 25P, 25Q and 25R. The condition for such exemption, as per the notification is that “adequate provision are made by such industries for the investigation and settlement of industrial disputes of the workmen employed by them.” Firstly, section 36 B only gives the power to exempt establishments or undertakings carried on by a department of that government. Secondly, such exemption is to be given only when the Government is satisfied that adequate provisions exist for the investigation and settlement of industrial disputes in such establishment. It cannot be given earlier on condition that such machinery will be set up later. Thirdly, the notification again makes no sense. 25P applies only to establishments closed before 1976. This has been continued. On the other hand, the provision for declaring a strike or lock-out illegal will not remain. The provision that prohibits financial aid to illegal strikes and lock-outs is also suspended. That means that anybody can go on strike or lock-out whenever they feel like it. There will be on conciliation, or reference of any matter to any labour court or IT. No provision has been made for if the management does not set up an adequate machinery. This will only lead to anarchy, open street fighting and murders. The whole machinery to enforce any settlement that may be reached will not exist.

Here too. What will happen to the labour officers, labour commissioners,  labour courts and Industrial Tribunals? Since the very law that creates them is suspended, can they continue to function? Will no notice have to be given before effecting any change in service conditions? What about existing awards and settlements? These are binding under section 18, but the provisions of section no more apply!

Further, the industries which were under the MPIR act (as opposed to being under the ID Act) have been removed from the MPIR act. This means that all industries come under the amended ID Act as mentioned above.

The MP Government has gone further and purporting to act under section 5 of the Factories Act (as we mentioned above section 5 is only for situations of war, civil war or such) it has exempted all factories from all sections of the factories except for sections 6 to 8 (which pertain to registering of factories and appointing inspectors), sections 21 to 41H (about safety) and some other provisions of times of work. This is also without any application of mind. This means that there is no need for any urinals or drinking water to be provided.

During the course of writing this article, a new notification has been brought to our notice that UP also issued a notification like the Gujarat notification for the Factories Act. The main UP ordinance is still awaiting the assent of the President. Many unions including TUCI will be challenging these notifications in the courts. The way that the courts have been responding of late does not leave one with much hope in the courts. However the main question is that this is a clear attempt to put the whole burden upon the working class. This is an attempt to test how strong the working class in India is. It is up to us to show them. We have to use this opportunity to unite the working class of India and come together to fight this menace in any method possible. 

Even before this present covid crisis, the economy was seeing a downturn. Even then the attempt was to put the burden upon the working class. This was to be done through amendments in the labour laws and also through measures like GST, etc. Then came covid. The responses of the Government were clearly without any coherent plan. Now the mess is compounded. Industries have lain closed for months. The crores of workers in this country and their families are starving. Lakhs have walked for hundreds of miles to reach their homes only to find destitution and misery there also. Factories are being restarted with no care for the safety for the workers. See what happened in Vizag, Neyveli and Chhattisgarh? Capitalism has shown that it will not only destroy the workers but also all of humanity. Today is the time for all workers to come together not only to save the lives of workers but to save humanity itself. n


 

The Communist movement in India has a history of almost a century after the salvos of October Revolution in Russia brought Marxism-Leninism to the people of India who were engaged in the national liberation struggle against the British colonialists. It is a complex and chequered history.