The legislatively designed troika of the industrial codes : Industrial Relations Code 2020, The Code of Social Security 2020 and The Occupational Safety, Health and Working Conditions Code 2020 , through creative touch of consolidating and amending legislative tools, replaces the prolixity, spatial spreads, procedural rigours and hierarchical technicalities of twenty five Acts, existing prior to 29th September 2020, with an object of critically purging the course of the labour- capital relations of the redundancy, asymmetry as well as trammels of jurisdictional technicalities.
The sensitivities, sensibilities, pains, amity, hostility, conflicts, intractability, anachronisms and asymmetry of the rough and shoddy terrains of industrial relations, has been a historical challenge for India for almost a century( Trade Unions Act of 1926). India, through a massive spectrum of 25 Enactments, strengthened with periodical amendments, continued to address the challenges of industrial relations from time to time. The text of these enactments was often enriched and expanded by judicial prudence. The ideal of harmonious relations in industry and the paradigms of abiding and self-sustaining phases of industrial harmony remained elusive.
Maxim Gorky, a Great Russian author who poignantly portrayed the pain and agony of suffering humanity trapped in the jaws of exploitative dynamics of labour-capital relations of his time, aptly says: “In the carriages of the past, you can’t go anywhere.”
India, for almost a century, has been struggling to reach the zenith of industrial harmony by amending and improving the extant statutory regulations governing and regulating the common domains of profit makers and wage earners. Even the tracks of skill development were belatedly added as an innovation to the normal routes of education, with an object of amelioration of the vulnerable sections of the stake-holders in these domains, while the idealised goal-post still remained out of reach. Certainly carriages of past were not leading to the ambience of ‘Gentle Breeze’ in the industrial climate.
It appears that the smoldering issues on the stage of industrial relations were critically pointing to the truth of Gorky’s aforesaid aphorism: “In the carriages of the past you can’t go anywhere.”
Thus seizing the moment, the legislature, a lofty institution of massive creativity, a grand locus of hopes and aspirations of India, a benevolent reformer, a great redeemer, stood up to replace the rickety carriages of the past, once for all, with a legislatively designed troika of the Codes. Thus the notifications dated 29th September 2020, epitomizing futuristic vision and bold legislative innovation to realize the ideals of constructive and positive industrial relations saw the light of the day . The contemplated industrial ecology through the regime of the triad of Codes, envisages well-being of labor , optimization of industrial output and making way for the gentle breeze of ease of doing business with an eye for economic growth.
The echo of Nelson Mandela’s sagacious words : ‘”it always seems impossible, until it’s done” turned clear and loud. The troika of industrial codes has replaced the multiple-horse carriage, of course a rickety carriage, of the past.
A glance at the salient features of the triad of codes would be conducive to grasp of the future regulatory regime in a comprehensive perspective.
1 The Industrial Relations Code 2020 ( Act 35 of 2020 : Containing 104 sections and three Schedules) replaces three existing Acts, namely ;
- Industrial Disputes Act1947,(ii) Trade Unions Act 1926 and(iii) Industrial Employment ( Standing Order) Act 1946.
This comprehensively drafted Industrial Relations Code 2020 has the following salient features;
a. The definition of worker ( Section 2 zr ) is now textually widened and expanded to include supervisory, clerical and operational employees and is made common definition for various categories such as working journalists, Sales Promotion employees etc. However, the employees drawing monthly wages higher than threshold limit of Rs 18000.00 (initially and revisable central Government) besides other enumerated categories are excluded from the definition.
b. The reach and scope of the expression ‘industry’ also widened. As per Section 2 (p) Industry is also de-linked from investment of capital. The centrality of the expression now stands on employer-worker relationship.
c. A fixed term employment concept added as a benevolent measure through Section 2(o).
d. Discipline- orientation is enhanced by including concreted casual leave in the definition of ‘Strike’ in section 2(zk).
e. the workers participation in the decision making processes in the industrial governance mechanism is widened and deepened.( Sections 3, 4 , 30(2), 40 )
f. A new feature for recognition of negotiating unions and negotiating councils for a smooth course of settlements is introduced. ( Section 14)
g. Remedy of appeal to trade unions against non- registration or cancellation of registration is provided.( Section 10)
h. Certification of standing Orders is now mandatory only where the threshold limit of workers is 300 in lieu of earlier 100, thus sparing the smaller units of the rigour of certification process/compliance formalities ( Section30).
i. For the industrial units who adopt model Standing orders of Central government the newly added clause of deemed certification would add to ease of doing business.( conjoint reading of Sections 29 and 30(3)
j. Now in lieu of various adjudicatory authorities only industrial Tribunals will remain in force
( Section 44 ).
k. Industrial tribunals will have additionally administrative members besides a judicial member. Section 44(2)
l. The reference by central government stands dispensed with, except in the case of reference to a National Tribunal.( Section 47 (2) and47( 3)
2 The Code on Social Security 2020 ( Act 36 of 2020 )through the statutory scheme contained in 164 sections and seven schedules repealed the following Acts;
- The Employees’ Provident Funds and Miscellaneous Provisions Act, 1952
- The Employees’ State Insurance Act, 1948
- The Employees’ Compensation Act, 1923
- The Employees’ Exchanges ( Compulsory Notification of Vacancies) Act 1959
- The Maternity Benefit Act, 1961
- The Payment of Gratuity Act, 1972
- The Cine-Workers Welfare Fund Act,1981
- The Building and Other Construction Workers’ Welfare Cess Act, 1996
- The Unorganized Workers Social Security Act,2008
It is worthwhile to glance through the salient features of the Code on Social Security 2020. These features include ;
- Extension of social security benefits even to the unorganized segment of workers ( Section 2(78)
- Introducing enabling provisions to extend the scope of responsibilities of the Employees Provident Fund and employees state Insurance corporations to take care of voluntary coverage of the below-threshold level establishments.( Sections 15, 33,44)
- Widening the social security measures by extending the same to the newly introduced arena; career centers, aggregators, gig workers, platform workers and by widening and expanding the definition of the expression ‘employees’.( Sections 112,113 and 114)
- Registration, electronic registration as well exit options and consequential cancellation of registration by the establishments made procedurally convenient.( Section3)
- Social security organizations constituted and enabling provisions introduced to saddle these organizations with responsibilities to safeguard even unorganized sector(Section 109).
- To strengthen the medical education institutions as well as training institutions within the fold of ESIC.( section40)
- To cover up self-employed persons under the social security cover.( Sections 141)
- To introduce appellate jurisdictions to the adjudication process.( Sections 23, 52, 99, 105, 126)
- To introduce the concept of pro rata gratuity payment in lieu of continuous service of five years
- ‘Gig worker’ is defined as a person who earns by performing work and participation in work outside traditional employer-employee relationship ( Section 2(35)
- ‘Home based worker’ is defined as a worker engaged in production of goods and services but not based at the workplace of the employer and has no relation to providing or non-providing of any equipment etc by the employer ( Section 2 (36)
- A career centre is defined in Section 2(9) to connote any office or portal for providing career-related services as enumerated in the definition whether such services are manual, digital or virtual.
- Aggregator is defined in Section 2 (2) as digital intermediary or a market place for a buyer or user of service to connect with the seller or the service provider.
3 The Occupational Safety, Health and Working Conditions Code 2020 ( Act 37 of 2020 having textual spread over 143 sections and three Schedules) replaces the following Acts
- Factories Act, 1948
- Mines Act, 1952
- Dock Workers (Safety, Health and Welfare) Act, 1986
- Building and Other Construction Workers ( Regulation of Employment and Conditions of Service) Act, 1996
- Plantations Labour Act, 1951
- Contract Labour (Regulation and Abolition) Act,1970
- Inter-State Migrant Workmen ( Regulation of Employment and Conditions of Service ) Act, 1979
- Working Journalist and ( Fixation of Rates of Wages) Act, 1958
- Motor Transport Workers Act, 1961
- Sales Promotion Employees ( Condition of Service) Act, 1976
- Beedi and Cigar Workers ( Conditions of Employment) Act,1966
- Cine-Workers and Cinema Theatre Workers (Regulation of Employment ) Act, 1981
The new code unravels a deeper and expansive treatment of Occupational Safety, Health and Working Conditions in the industrial scenario as revealed by the following features;
a ) upgrading health, safety welfare and working conditions with technology and other dynamic factors( Sections 17, 18, 19 )
- b) journalists of electronic media , including e-paper are recognized as working journalists.(Section 2zzm)
c)Employment of the workers to be formalized by issuance of appointment letter.( Section 6) )
- d) Free-of –cost health checkups on annual basis for early detection of disease.( Section 6 )
f)The working conditions of inter State migrant workers to be regulated effectively and their data to be maintained as per prescribed procedure.( Sections 60, 61, 62 , 63,64 and 65 )
- g) National Occupational safety and health Advisory Board to be constituted to assist the Central government for formulation of policies for the safety, health and working conditions of workers.( Section16 )
- h) State Occupational safety and health Advisory Board to be constituted to assist the State governments for formulation of policies for the safety, health and working conditions of workers.(Section 17 )
- i) safety Committees to be constituted by the establishments.(Section 22 )
- j) To expand for women the employment opportunities by allowing them to work in any establishment and for any time . The earlier restrictions of time and nature of work stand obliterated.( Sections 43, 44 )
- k) Dispensing with formality of multiple licensing and to provide for a common licence for Factory, Beedi and Cigar Establishments as well as Contract labour ( on all India basis for 5 year period)( Sections 47, 48 and section 74 read with section 119 )
- l) Provision to compensate victims out of the fines recovered by Courts to the extent of 50% of fine recovered.( Section 103 )
- m) Social security cover to include the workers. In unorganized sector (Section115 )
Industrial law, according to Roscoe Pound has “dominant political, economic, social , scientific and philosophical features.” In the multilayered domains of Industrial law, Industrial worker is the focal point of any legal enquiry in the industrial relations.
Professor Forkosch opines and rightly so : “ The sociologist may see the worker as a human being caught in the congeries of frustrations, complexes and urges- a mind that cannot cope with the baffling contradictions of the modern society”.
Professor Otto Kahn Freund says : “everywhere a constant need for finding a judicium finium regundorum between the collective bargaining and legislation of all kinds as instruments for the regulation of the conditions of employment-wages and hours, holidays and pensions, health, safety and welfare and even increasingly social security…….. the case law can only deal with pathological situations. The rules which are needed in labour relations must work ex ante…case law operates ex post; it does establish rules but not before something has gone wrong”
This newly launched troika of Codes symbolises this judicium finium regundorum and operates as an upgraded carriage for the onward journey on the terrains of Industrial relations, beyond the shadows of legal pathology.