Author: Saloni Subanshi, IV year of B.A.,LL.B(Hons.) From National University of Study and Research in Law, Ranchi.
The various lockdowns imposed during the COVID-19 period exhibited the plight of the migrant workers in the country. A number of migrant workers travelled on foot to their homes, ate nothing for many days, found no support from the government and many of them died as well. The Occupational Safety, Health and Working Conditions Code, 2020 (hereinafter referred as “OSH Code”) and The Code on Social Security, 2020 (hereinafter referred as “Code on Social Security”) have provisions relating to inter-State migrant workers. These provisions with certain modifications and additions have been inserted in the new labour codes from The Inter-State Migrant Workmen (Regulation of employment and conditions of service) Act, 1979 (hereinafter referred as “ISMA”) which is an exclusive legislation intended for migrant workers. This blog aims to analyse whether the new labour codes provide for sufficient well being of migrant workers as the recent plight of the migrant workers due to COVID- 19 have exposed them to vulnerability and very testing times. Moreover, it tries to find out whether provisions of the new labour codes are better or for the worse vis-à-vis the previous code and exposes lacunae in the new labour laws
What is in store for migrant workers in the new labour laws?
Chapter- XI of the OSH Code is relating to Special Provisions for Contract Labour and Inter-State Migrant Worker, etc, and the Part-II of the same exclusively deals with Inter-state migrant workers in the OSH Code. The Code on Social Security also has certain provisions which would within its ambit include the migrant workers. In the following sections we would delve into the major changes which have been brought by these codes along with critically analyzing the same.
Who is to be termed as a migrant worker?
Both, OSH Code under S. 2 (zf) and Code on Social Security under S. 2 (41) have widened the scope of who is to be termed as an interstate migrant worker by including persons who move from one state to another for employment on their own in addition to those workers who are recruited by contractors from one state to another for employment, which means the definition now includes ‘self employed’ workers as well.
In India, there are both inter-state and intra-state migrant workers. According to available census data, approximately 85 percent of migrant workers were intra-state migrant workers. Because the majority of migrant workers travel within the state, legislators wasted an opportunity by failing to include any provisions for this group of workers. As a result, the Parliament has rendered millions of intra-state workers absolutely defenseless. The inclusion of Intra-State migrant workers could have broadened the scope of the Act and the same would have set apart the OSH Code from ISMA.
What is the registration procedure?
Chapter II of the OSH Code provides for the registration of Inter-State migrants on a portal that the Central government and the state governments have been mandated to set up. S. 21 of the OSH Code deals with Collection of Statistics and portal for Inter-State migrant workers and states that the Central Government and the State Governments shall maintain the database or record, for inter-State migrant workers, electronically or otherwise in such portal as may be prescribed by the Central Government, provided that an inter-State migrant worker may register himself as an inter-State migrant worker on such portal on the basis of self-declaration and Aadhaar.
The fallacious presumption which is being made under this section is that inter-State migrant workers will be in possession of smart phones or may very well understand the procedure of registration so as to do this on their own and secondly, all of them will be having aadhar cards. Instead of introducing an internet based registration procedure, the legislation could have introduced a telephonic self-registration process as the same would have been feasible and comparatively easier for the migrant workers.
The ISMA also had various provisions regarding registration; however, the law was hardly implemented as was also seen during lockdown 1.0 that the Government had no data regarding the inter-State migrant workers which had resulted in great suffering as well as vulnerability. It becomes important that the procedure of registration is strengthened by the OSH Code by not letting such procedure exist only on paper, but by making sure that the process of registration is followed in reality.
The Public Distribution System
The provision relating to Public Distribution System is what sets apart the OSH Code from ISMA as the latter had no provision relating to it. S. 62 of the OSH Code states that the appropriate Government shall make schemes to provide option to an inter-State migrant worker for availing benefits of public distribution system either in his native State or the Destination State where he is employed, which means that it is obligatory upon the government to take steps in this regard so as to enable migrant workers to receive rations in their origin state or destination state. This provision has the potential to be a watershed moment for India's migrant workers, provided that the States can achieve inter-state mobility of rations.
Social Security Provisions for the migrant workers
The first Schedule under Code on Social Security states that maternity benefits will apply to any factory, mine, or plantation, including any such institution owned by the government, as well as any shop or establishment with ten or more employees, this means that a number of migrant workers working under such establishments with less than ten workers will be left out. It's worth noting that the Sixth Economic Census for the years 2013–2014 revealed that 70 percent of Indian businesses employ fewer than six people. Thereby, meaning that there are millions of workers who will now be excluded from availing the benefits offered by provisions of this Code.
Lost provisions of ISMA
As it is known that the new labour codes have been formulated by amalgamating various labour law legislations, it is bound to happen that a few provisions of the parent act may be lost. However, several provisions of ISMA which otherwise would have been termed as significant have not been included in the OSH Code or have been altered for the worse.
Chapter – IV of the ISMA states the Duties and Obligations of Contractors and under S.12 prescribes that it shall be duty of every contractor to issue to every inter-State migrant workman a passbook which would indicate significant information like the name and place of the establishment wherein the workman is employed, the period of employment; the proposed rates and modes of payment of wages; the displacement allowance payable, etc. This passbook was used as a credible source of information for the workers and ensured awareness of the employment conditions of the contractor, under which they are working, thereby, reducing their chances of exploitation to certain levels. However, we find no such provision in the OSH Code. This provision would have helped not only the migrant workers, but it may also have aided as an instrument for the process of registration, wherein any migrant worker may have provided the passbook in case of not being in possession of an Aadhar card. Various welfare provisions which were included under Chapter-V of the ISMA find no mention in the OSH Code. Provisions relating to wage rates, duty of the contractor to ensure regular payment of wages, equal pay for equal work, provide for medical facilities, protective clothing, etc are completely absent in the OSH Code.
By the amalgamation of various codes under the OSH Code, there are certain changes which have been introduced in relation to provisions dealing with the Inter-State migrant workers, some of which are for the good and some for the worse. The Public Distribution System which has been introduced for the very first time by the OSH Code can prove to be a bliss for the migrant workers, but only if properly implemented; the same can be done when there is enough co-operation between the states for inter-state portability of rations and if the migrant data is strengthened, which can only be done via proper compliance of registration procedure. Certain welfare provisions could have been borrowed from ISMA. The OSH Code as well the Code on Social Security have certain provisions which can be seen as a welcome step, however overall these both codes have lacunae which leave issues relating to the plight of the migrant workers unaddressed and further, leaves scope for their exploitation.