TUCI Press Statement on Corona Virus.
The New Corona virus has presented society with a fresh challenge. The fact that such a threat is recurring so frequently (like SARS in 2003 and MERS in 2012) shows that the ecology of the world is in a crisis caused by human wanton intervention. In the face of the unknown danger of COVID-19 the Government seems to have chosen the strategy of total shutdown. However, it is only being implemented in a half-hearted fashion. Factories and other industrial establishments have not been shutdown in many states. This is absolutely foolhardy and makes a mockery of the shutdown of schools, courts, government offices trains, etc. There is no value in isolation if factories are going to be allowed to function. Some states have called for shutting down factories and industrial establishments but that is also not enough. Workers are not in a position to bear the burden of the shutdown. It is necessary that all workers, including contract workers, casual workers, badlis and the like must be paid their full wages for the whole of the period of the lockdown.
Besides this, the workers, in many places are being made to stay in their residences and are not being allowed to move out of their residences (sometimes by the police force). It is necessary to provide for reaching essential items like food, medicines and sanitation materials to all persons at or near to their place of residence such that they can collect the same while maintaining appropriate social distancing.
At the same time TUCI assures the public at large that its workers who are engaged in essential services like municipal services, hospitals, banks, airlines (for evacuation of our citizens) etc will work diligently and ensure that they will do whatever is possible to help during these times.
To recap our demands of the Central and State Governments:
- Wherever it is necessary to impose a shutdown, such a shutdown must include also factories and other industrial establishments.
- All workers working in such shutdown establishments must be retained in service, including contract, casual, badli, etc workers.
- All such workers must be paid full wages for the full period of shutdown as if they had actually worked during those days.
- All workers in other areas which are not shutdown but who are unable to reach the places of work due to the shutdown must be treated as if they are in an area of shutdown.
- If the shutdown extends to the end of March, care must be taken to reach the wages of the workers to them immediately.
- Provision must be made to reach essential items like food, medicine, sanitation materials to all persons during periods of shutdown.
It is only in this fashion that we will be able to make use of the strategy of shutdown to fight this new menace.
- Workers of the world unite as never before to fight COVID 19!
- The World is for us to win and leave to the next generation. Don’t let the capitalist bosses destroy the world!
TRADE UNION CENTRE OF INDIA (TUCI)
The 2020 Union budget has failed to address the urgent priorities for working people of our country. Its spending plans are corporate friendly and aimed at exploiting the existing national wealth for the benefit of private national and international investment predators.
The investment strategy is devoid of measures to deal with the problems of growing economic insecurity among the working people, shrinking community health facilities, lack of affordable education and housing etc.
The Budgetary approach to deal with the situation of economic slump and lack of demand is clearly dictated by the pro corporate market oriented liberalization route. There is a clear attempt to protect the profit margins of the corporate houses which is evident from reduction in corporate tax rate from 30% to 25% just prior to the 2020 budget. It has been reduced further to 22 % in the current Budget. Instead of addressing the demand issue it is stressing more on concessions and favours to the corporates under the garb of revival of economy.
Improvement in wage earnings of the urban and rural population can help to create demand for consumption among the majority population. Increasing the days of work under the employment guarantee scheme and a wage rise under the scheme can solve the problem of boosting demand side in a recession hit market. Similarly economic upliftment of the rural producers via raising the minimum support prices for their produce and lowering the prices of inputs in agrarian production can also go a long way to ease the situation of lack of demand. However, the budget shows no such vision for improving the living standards of our people and improving the health of our economy at the same time.
The concession given to the small scale and medium industries with regards to self audit up to 5 crores from earlier 1 crore will work adversely for the employees in those establishments. The employers will arbitrarily manipulate the accounts to justify inability to pay decent wages.
There is no commitment to restore subsidised health care, instead the money allocated for health is marked for PPP route thus abandoning the welfare commitments in favour of profits for the private players.
Allocation for education sector also is based mainly on obtaining foreign direct investment in the sector. There again Government has declared no allocation for subsidised education. The announcement of NEP in this budget will deprive the working class children from pursuing academic education. The high cost educational institutions under the proposed PPP projects certainly are of no use for the common working population. The allocation for building 100 small cities overweighs the commitment for affordable housing.
Marginal increase in the infrastructural spend is not enough to improve the employment situation significantly as a major portion of 32% will be spent on defence purchases. Making way for assemble in India in place of make in India goes against the commitment for promotion of indigenous manufacturing. Thus this measure too does not help to improve the employment figures.
Declaration of disinvestment in LIC to contain the deficit figure spells loss of jobs for the employees at the cost of benefitting the private investors. Though, Raising the bank deposit insurance cover from one lakh to 5 lakh is a welcome step, it is not backed by stringent punitive measures against the manipulators of frauds in the banking sector. Projected figure of 3.5% fiscal deficit is bound to cause further inflationary pressure on the economy.
In short the budget disappoints the working people of urban and rural areas as it has no positives for employees insurance, good job creation, affordable housing, affordable health care, comprehensive pro people education policy and above all, it has no recipe for controlling the price rise.
(Statement by com. Pravin Nadkar, President, Maharashtra state committee of TUCI)
We have seen the public notice dated 13th January 2020 calling for suggestions and objections on the draft Bill on the Code for Industrial Relations 2019 (No. 364 Of 2019). In this regard we would like to state as under:
Firstly, there is an established practise in India of making new laws based on tripartite consultation. Most labour acts have been enacted on the basis of direct tripartite consultation or on the basis of reports of committees which have heard both managements and workers representatives (like the Bonus commission or the First Labour Commission). Though there is a brief mention in the report of the Second Labour Commission about the consolidation of laws into fewer codes, there has clearly been no consultation with the representatives of workers when drafting the codes. That this Government does not believe in consulting with representatives of labour is borne out by the fact that there has been no ILC (Indian Labour Conference) since 2015. It used to be an annual feature heretofore. We have learned that even the State Governments were not consulted when making the drafts of the proposed labour codes. This shows that the drafts are unilateral and based only on the
In this regard one may also ILO convention 144 which India has signed and ratified. The purposes for which tripartite consultation procedures are required have been spelled out in Article 5 of that convention. These purposes are wide enough to cover the changes sought to be made. For instance, the introduction of “negotiating unions” and “negotiating councils” sought to be made are clearly towards appropriate implementation of convention 87 and 98 which have neither been signed nor ratified by India. Such changes clearly require tripartite consultation.
Secondly, the very idea of “consolidation” is an exercise in futility. Laws come into being not as a result of somebody’s abstract thinking but as a measure to cure perceived problems. Different laws, to tackle different problems will have to have different definitions. An abstract intellectual exercise to make common definitions is bound to lead to problems. For instance, the way in which “employee” has been differentiated in this act from “worker” will lead to the unwanted consequence that only “workers” have the right to form trade unions and not “employees” as was before.
Further, under cover of “consolidation” of laws, many retrograde concepts which have been sought by managements have been sought to be introduced. “Fixed Term contracts” for employment are sought to be introduced. Definitions of “worker”, “employee”, “employer”, “contractor”, “industry”, “settlement”, “wage” etc, which are the very bedrock of industrial jurisprudence, are sought to be changed in favour of employers. This will clearly be against the working class and is in direct opposition to the mandate of articles 38, 39, 41, 42 and 43 of the Constitution of India.
In this context one has to keep in mind that all labour law is in the nature of an extreme form of welfare legislation. It is not based on the law of contract but rather on the principal of “contracting out”. Hitherto labour law has recognised that contracts between employers and individual employees are not fair and are unconscionable. This is because the worker in the constant threat of unemployment can never bargain at an equal level with the employer and especially not with large corporations which have huge resources. If they were left to their own devices, workers would be badly exploited. Hence all labour laws are postulated on the premise that only collective contracts are binding and the law will prevail inspite of individual contracts. The present draft seeks to create the myth that workers and employers can contract at a fair level by introducing new definitions like proposed for “fixed term” employment and “settlement”.
Lastly, the draft is ill thought out and ill drafted. For instance, as shown below, the definitions will lead to unwanted consequences. The new definition of “wage” will lead to reduction in retrenchment compensation. The new definition of “employer” will lead to an ambiguity as to who is he employer. At least some of these are clearly the result of not having thought out the consequences though many may be results desired by this government to favour the managements.
For all the above reasons we reject the new draft outright and call for it to be scrapped altogether. To elaborate some of our points we are setting out our comments on this draft in more detail. Also annexed is a Schedule which shows the actual changes and our comments on the same which is self explanatory.
One of the most insidious changes sought to be made is the institutionalisation of “fixed term contracts” as a tenure of employment. Earlier, labour law had recognised only five tenures – permanent, temporary, casual, badli and probationer. All were well defined. In 1984, for the first time, the seed of the concept of “fixed term” was introduced by the introduction of section 2(oo)(bb) in the Industrial Disputes Act 1947 which removed the termination of the employment of such “fixed term” employees from the definition of “retrenchment”. However, this was only a partial change in so far as “retrenchment” was concerned. “Fixed term” was not made into a tenure of service. However, now it is sought to be made into such. This has already been done by the Industrial Employment (Standing Orders) Amendment (Rules) 2018, with effect from March 2018. Now, with the present proposed code it is sought to be made a part of the Act itself. As is well known, workers, under threat of unemployment are forced to enter into contracts for a “fixed term”. It was recognising such a mischief as undesirable that the Government of Maharashtra had introduced changes in standing orders requiring that all workers who had worked for 240 days of continuous service, must be made permanent even though they may have tenures as “casual” or “temporary” or “badli”. The present step is clearly a retrograde step. It will go against the mandate, inter alia, of article 39 and 41 of the Constitution of India.
The changes in the definition of “employer”, “employee” and “worker” taken together are confusing, self-contradictory and unworkable. “Employer” includes “contractor” but “contractor” is not defined for this draft. If we proceed on the footing that “contractor” is the same as defined in the code on social security, then the consequences are even more dangerous. There the definition of “contractor” has been changed from what is accepted today to include even a clearly “sham and bogus” contractor. Thus the concept of “employer” will have been divorced from the concept of “master and servant” which is the basis of much of labour jurisprudence. Again this change forgets the basis of labour law being to protect workers. It allows sham and bogus contractors to be employers forgetting that workers are forced to accept employment in such form though they are actually workers of the principal employers.
Further, the changes to the definitions of “employee”, “employer” and “worker” lead to the consequence that the contract worker is also the worker of the principal employer and the contractor. Hence who is the “employer” is ill defined. It will not be possible for such workers to pinpoint the responsibility of “employer” on any one person. Even the definition of “employer” is internally self-contradictory. The employer may be the person who employs or the person who has ultimate control of the affairs which may not be the same juristic person. The person employing may be a body corporate such as a company whereas the occupier of the factory may be a particular manager. This will lead to confusion as to who is to be responsibe for implementation of the provisions of the act and what if they act in opposition. For instance, what if the body corporate wants to retrench but the occupier does not follow the procedure? Who is to be held to account is unclear.
The change in the definition of “worker” leaves out apprentices who were earlier explicitly included. It is true that the Apprentices Act of 1960 held that apprentices are not workers. However, the workers have long demanded that this should be changed and they should be included in the definition of workers. On the contrary, the Government now sees fit to change the definition of worker to exclude apprentices. This is clearly not going to foster “equal pay for equal work” or other similar principles in the Directive Principles of State Policy. They leave workers open to exploitation under the guise of apprenticeship.
The definition of “settlement” includes individual settlements. This is clearly against the very concept of collective bargaining. At least here, the ILO convention on tripartite consultation is binding. Further, the change unsettles the very basis of collective bargaining that individual settlements are unfair and unconscionable. Far from being based on the concept of “contracting out”, it makes a mockery of the concept of contracting out.
The definition of industry has been the subject of much industry by the judges of the Supreme Court as testified by the judgements in the case of Safdarjung Hospital, Madras Gymkhana Club etc leading finally to the judgement of 7 judges in the case of Bangalore Water Works. The present definition seeks to undo not just the judgements but the jurisprudence behind the judgements. It is submitted that this jurisprudence was in keeping with Articles 38, 39 and 41 to 43 of the Constitution. However, now this is sought to be undone. This is clearly objectionable. Further, concepts such as “charitable”, “philanthropic”, “social”, etc are undefined and will lead to confusion. A manufacturer of sanitary pads or toilet paper may well claim to be a social activity and therefore not an industry. As far as “sovereign function” goes, the Indian Constitution is unique in so far it specifically allows the state to make laws to carry on any trade, business, industry or service under Article 19 (6) (ii). As such, when the state is specifically allowed to carry on an industry, it would not be fair to deprive the employees of that industry the protection of labour laws. Further as the first Law Commission has noted, the difference between sovereign function and non-sovereign function no longer exists. In the case of Shyam Sundar v State of Rajasthan the Hon’ble Supreme Court held as far back as in 1974 that famine relief is also not a sovereign function as private parties also do it. The courts has well recognised the question of sovereign function without this definition. As such it is unnecessary and confusing.
The change in the definition of “wage” is also clearly either badly thought out or made with malicious intent. This will have the effect of reducing retrenchment compensation, subsistence allowance etc. This is unacceptable. Further, if the employee is paid part of his wage in kind, then only 15% of such wage is to be reckoned as paid in kind. There is no justification for this and it is not workable. It is not clear as to 15% of what amount is to be calculated.
The provision for a Grievance Redressal Committee is also objected to. An individual worker has been given the right to raise a dispute concerning terms of employment and conditions of service but whose terms of employment or conditions of service is not specified. Firstly such a dispute would not be an industrial dispute, however, such worker will have the right to enter such dispute into conciliation after 30 days. No provision has been made to enforce the decision of this committee. The decision is not even made binding on the employer. Further, if it is meant that an individual worker can raise a dispute on terms of employment and conditions of service, this would go against the very concept of collective bargaining which the law has so far stood by. The moot question here is also how the representatives of workers are to be chosen. This will have to wait for the rules for our comments. Further, no provision has been made for a Vishakha Committee as directed by the Supreme Court.
The provisions of the proposed section 27 are clearly unconstitutional as no guideline has been provided as to which union has to be recognised.
As regards the provisions for Standing Orders under Chapter IV, it is alarming that the employer is permitted to make standing orders even on matters other than those in the schedule prescribed. There is no provision for displaying the standing orders in the establishment in the language understood by the majority of the workers. As regards standing orders, the workers of Maharashtra have gained such provisions by state amendments as were considered necessary to stop the evil of continuing workers as casual, badli, temporary for years. These have been held by the Hon’ble Supreme Court to be inamenable to change. The draft does not make clear what is to become of such state amendments.
As regards notice of change, clause (c) to the proviso to Section 40 states tht the employer may be exempted from giving notice of change in emergent situations “in consultation” with the Grievance Redressal Committee. This is unclear. It must be “in accordance with the decision of the Grievance Redressal Committee taken as per provisions of sub-section (7) of Section 4”. Otherwise “consultation” is reduced to mere window dressing.
The limitation of three years for an industrial dispute is clearly unreal. In many cases, poor workers are not even able to unionise so as to know their rights. In our country with over 50% being illiterate and with law books other than English being so unavailable, such a provision is only way of defeating the legitimate rights of workers. Even otherwise industrial relations are always fluid. Workers may not raise a certain dispute in certain circumstances like some of them not being made permanent or not getting minimum wages. Once they attain permanency and minimum wages, they may want to raise such a dispute. Stopping this would be clearly unfair and unjust. In many cases of sham and bogus contracts or of enforced casualness, workers have only organised and attained their rights after several years or even decades.
The provisions relating to strike are clearly as good as prohibiting strikes in all establishments, not just in public utilities as before. This is taking away the right to strike altogether.
The limitation of section 72 of “one year” in place of the earlier section 25H is clearly giving the employers a method of bypassing the law. Similarly the exemption of establishments where less than 50 workers were employed on any day in the preceding 12 months from the provisions of Section 74 (corresponding to section 25FFA of the I. D. Act) are clearly again giving concessions to employers.
Section 90 of the proposed code (corresponding to section 33 (1) of the Industrial Disputes Act, 1947) gives further concession to the employers that if a dispute is pending, they may make a change with regard to any matter connected with the dispute or may discharge or dismiss any worker for any misconduct connected with the dispute by giving notice of change under section 40. (Corresponding to section 9A of the ID Act). This will render the protection against arbitrary change totally toothless. The original idea was that there should be total protection against an arbitrary change which could only be made by settlement or award. Now the manager is literally left free to make any change he desires and it is left to the workers to challenge it in court and bear it till the outcome of the court.
It is pertinent to note that all the changes proposed are in favour of managements. We cannot see a single change in the proposed code which can be unequivocally be declared to be in favour of the workers or employers. This itself is clearly in violation of the directive principles of the Constitution mentioned above.
We specifically state that what is stated above is not exhaustive and we wish to be heard personally. We request you to call us for a personal hearing.
(Above comments on bill on Code of Industrial Relation was prepared by comrade Sanjay Singhvi, GS of TUCI. The ad came on 13th Jan. In some ads it was to be given in 15 days or in 30 days hence confusion. This draft has also been adopted by AITUC, CITU, BKS and other from Maharashtra.) n
Let us intensify Protests, opposition to the CAA, NPR/NRC!
Let us make the 8th January all India hartal call a Bharat Bandh, for workers’ rights, jobs and livelihood, against sky-rocketing prices and rates of essential commodities and services, and against ever-intensifying state terror and fascistization!
The Citizenship Amendment Act has triggered protests across the country after it was passed in Parliament on December 11. At least 26 people have died in the protests, including 19 in UP itself. The legislation provides Indian citizenship to religious minorities from Pakistan, Bangladesh and Afghanistan, except Muslims, who have entered the country on or before December 31, 2014. But it is silent on the nearly one lakh refugees from Sri Lanka who are leading a miserable ife for three decades or about the Rohingyan refugees fleeing from torture in Myanmar, or refugees from Nepal. The law has attracted widespread criticism as it makes citizenship religion based. The non-BJP-ruled states have refused to implement it. Even allies of the BJP such as the JD (U) have also expressed reservations about it. Tens of millions of people are coming out in the streets, with the students and youth playing the vanguard role, challenging it, fighting for the secular democratic values.
But Union Home Minister Amit Shah said that even if all other parties come together to oppose the CAA, the BJP-led government will “not move back even an inch”. He accused Opposition parties of spreading misinformation, and said they could continue to do so, but the Act would not be repealed. According to Shah, the government is forced to organise outreach rallies in favour of the CAA because the agitators have been spreading misinformation about it. Like Modi, Shah is also repeating false sories that there has been no greater violation of human rights than the one against refugees who the Act grants citizenship. He said that the refugees, who were once millionaires, now have no place to live. Shah added that the refugees once had a lot of land, but now they have nothing to eat. But he is silent about the fate of the vast majority of the Hindus who are already living in this country from the time of their birth! Modi govt have resorted to unprecedented state terror, especially in UP and Delhi, to terrorize the agitators, especially Muslims, to create fear psychosis, to spread the calumny that only Muslims oppose it. Though the RSS parivar spread lies after lies using the captive media about the CAA, NPR/NRC. But by now the picture is clear: the three are integrally linked; Already Karnataka government has started the NPR to find out the ‘doubtful citizens’ from 1st January; all other states are asked to make preparations and to start it from 1st April. Then based on the number of doubtful citizens found out by the NPR, the NRC shall be started as it was done I Assam, using CAA as the criteria and demanding documents including birth certificates from all. Thus not only Muslims, but as happened in Assam, large numbers of Hindus also will be among the crores of stateless people! They will be thrown to Detention Camps, the construction of which are already started.
Along with this the attacks on the working class, all toiling masses, peasantry and youth and students are reaching unprecedented levels in various forms, especially in the context of galloping recession; prices of all essential commodities and rates of essential services are sky-rocketing further impoverishing the masses. Coupled with this, the CAA, NPR/NRC and the fascist attacks on those who oppose these have created a dangerous situation. It calls for all out resistance from our part.
So, uniting all these struggles, let us make the 8th January all India hartal a Bharat Bandh uniting with all the forcs who are in the field of struggle. The present situation demands that all the struggling forces should join the ongoing great countrywide upsurge, making it stronger day by day, with the determination to intensify it continuously as a protracted people’s movement to compel the Modi government to reverse its draconian policies.
K N Ramachandran
CPI (ML) Redstar
4th January 2020