1.1
As part of its mandate, the NCEUS is required to review labour laws in
the informal sector, consistent with labour rights, and with the requirements
of expanding growth of industry and services, and improving productivity and
competitiveness. Further, the Commission is required to review the social
security system available for labour in the informal sector, and to make
recommendations for expanding its coverage. Moreover, the Commission has been
asked to recommend measures necessary for bringing about improvement in the
productivity of enterprises and generation of large scale employment
opportunities. The present report on
comprehensive legislation to ensure minimum conditions of work and social security
to unorganised workers addresses some of these issues related to the informal
sector.
1.2
The Commission is aware that certain fundamental and foundational issues
such as the provision of education, health, rural roads, sanitation, housing,
provision of electricity and other basic infrastructure impact on the well
being and livelihoods of the workers in the unorganized sector. The provision
of these services and infrastructure is being addressed in various schemes of
central and the state governments. While recognizing the importance of these issues,
the Commission has chosen to focus on issues which are directly concerned with
unorganized sector workers qua
workers and the growth of enterprises in this sector.
1.3
In doing this, the Commission has followed a three fold approach. It has
first advocated a minimum level of protective social security for the workers,
which can be both supplemented and progressively enhanced. Second, it is
recommending, in this Report, a set of measures, most of which are incorporated, along with the proposed social security
measures, in two comprehensive Bills, for regulation of minimum conditions of
work in the unorganized agricultural and non-agricultural sectors. Third, it
has examined and made recommendations for the enhancement of employment and
incomes and livelihood promotion. The main recommendations, which in its
opinion should get overriding and immediate priority in the scheme of things
will be submitted soon to government in the form of an Action Programme for the
Unorganised Sector, which also address issues relating to the Unorganised
Sector in a holistic manner.
1.4
The Commission has examined the conditions of work of the Unorganised
Sector Workers at great length. Its findings form part of a detailed Report on Conditions of Work and Promotion
of Livelihoods in the Unorganised Sector, which will be submitted to
government within the next few weeks. Some of the findings of this Report which
have a bearing on the recommendations being made here are the following:
a) The Commission has defined the unorganised
sector in non-agriculture as consisting of all unincorporated private
enterprises owned by individuals or households engaged in the sale and
production of goods and services operated on a proprietary or partnership basis
and with less than ten total workers. In the case of agriculture, the
operational holding is treated as an enterprise. The Plantation sector is
excluded from this definition.
b)
According to the Commission’s definition, 64 per cent of the unorganised
sector workers are in agriculture, while the remaining are in non-agriculture.
A majority of these workers – 64.8 per cent of agricultural workers and 62.8
per cent of unorganised sector non-agriculture are self-employed. Casual wage
workers comprise 34.6 per cent of the agricultural workers, and 19.8 per cent
of the unorganised sector non-agricultural workers.
c)
Compared to the Commission’s estimates, other official estimates, such
as the Director General of Employment and Training (DGET) and the Annual Survey
of Industries (ASI) indicate that a much smaller share of the workforce is in
the organised sector. According to the DGET figures, the percentage of workers
in the organised sector in 2004-05 is 5.8 whereas the Commission’s estimate
indicates that this percentage is 13.7. The difference arises largely because
the DGET estimates do not reckon with informal
employment in the organised sector. The Commission finds that while these
unorganised/informal workers (casual, contract or even regular) may be employed
in the organised sector, they share the
characteristics of wage workers in the unorganised sector i.e. they do not have
any employment or social protection. Since existing official data describes
such workers as unorganised sector workers, and since they share all the
characteristics of informality, the ambit of our analysis and recommendations
extends beyond unorganised sector workers
to unorganised/informal workers.
d)
Unorganised workers constitute almost the entire universe of the poor.
The Commission’s results show that there is layering of poverty, incomes and
employment among the unorganised workers. Agricultural labourers are the most
vulnerable, followed by other casual workers, marginal farmers in agriculture,
the self-employed in own account enterprises in rural and then in urban areas
etc.
e)
According to our findings, in 2004-05, 90.7 per cent of agricultural
labourers and 64.5 per cent of rural and 52,.3 per cent of casual
non-agricultural wage received a wage below the national minimum wage
designated by the Central government (Rs. 66 per day). Even 57.3 per cent of
unorganised regular workers in rural areas, and 47.2 per cent in urban areas,
received a wage below this minimum.
f)
Among workers in own account enterprises, the gross value added per
worker in 1999-00 was lower than the comparable minimum wage level for 57 per
cent of rural Own Account Workers (OAW) workers and 30 per cent of urban OAW
workers. Returns were much lower among the self employed in rural areas, and
among women headed enterprises.
g)
The Commission has noted that the socially deprived groups (SC, ST,
women etc.) predominate in the most vulnerable occupations. For example, SC/ST
workers are 43.5 per cent of casual labour. Women form a large (and growing)
chunk of homeworkers. Muslim workers, particularly low caste Muslims, predominate
in low earning self-employment oriented activities (19.4 per cent of
self-employed non-agricultural workers are Muslim).
h)
The Commission has also examined in depth the condition of farmers,
focusing on marginal and small farmers. Although these farmers are efficient
producers, due to small holdings and lack of support, their income from
agriculture is less than their meagre consumption expenditure; the debt burden
on them from informal lenders is very high; and the state support to them in
terms of marketing support, extension services etc. is very meagre and much
lower than that available to medium-large farmers. As with other unorganised
workers, they do not have any social protection.
i)
Casual wage workers and home workers, as also low paid regular workers
work for long hours, without health and safety regulations, and are not
entitled to overtime rates, weekly holidays etc.
1.5
These conditions indicate that there is a strong case for government
regulation and support in the case of these workers, However, we have noted
that a two fold approach is needed to improve the livelihoods and conditions of
work of these workers.
1.6
For those workers who are employed by others, we have observed that
there are some minimum standards of work that are being regulated for both
formal as well as informal workers in a large number of countries across the
world. These include subjects such as minimum wages, hours of work,
non-discrimination, payment of overtime, periodic paid holidays etc. The
Commission has taken the view that protecting minimum conditions of work is
both a matter of right and human dignity. However, we are also of the view that
this is entirely consistent with the needs of development as well as a growth
oriented economy.
1.7
We have examined the existing regulation of the condition of workers in
the unorganised sector in India and the laws that apply to wage workers in the
unorganised sector, fully or partially. The Commission has concluded that
existing laws cover the basic conditions of work of unorganised workers in a
piece-meal and inadequate manner.
1.8
Further, the Commission is of the view that focused attention is clearly
also required to enhance the earnings and livelihood of these workers. We have
considered the large number of initiatives that already exist to do this.
However, the Commission does not find the present scope of policies and
programmes adequate to protect and promote the livelihoods of these workers.
Indeed, several of the recent changes have made it more difficult for
unorganised workers in many sectors and locations to eke out a living and for
unorganised enterprises to survive and grow. This Commission views the
protection and promotion of livelihoods as a necessary condition for ensuring
decent conditions of work to the unorganised sector workers.
1.9
As part of our ongoing work, the Commission is finalising a number of
detailed reports on issues such as Credit, Marketing and Technology; Skills;
Growth Poles; Employment Strategy; as well as a Technical Report on Conceptual
Issues and Size and Contribution of the Unorganised Sector. At this stage,
however, as stated earlier, the Commission has formulated a number of
recommendations on employment and livelihood improvement which we will be
submitting soon to government in the form of an Action Plan.
1.10
However, the purpose of this Report is to focus on the rationale and
need for comprehensive legislative protection for both agricultural and
unorganised non-agricultural workers and to highlight the Commission’s
recommendations in these matters.
2. A Review of the Principal
Recommendations of Earlier Commissions
2.1
The Commission has examined the findings and recommendations of a number
of earlier Commissions and Committees and has attempted to situate its own
findings and recommendations in the context of these.
2.2
The First National Commission on Labour (FNCL) under the
Chairmanship of Justice P. B. Gajendragadkar submitted its Report in 1969. The
FNCL devoted attention to labour in the unorganised sector. The main
recommendations of the Gajendragadkar Commission included:
a)
First hand detailed surveys from time to time to understand the problems
of the different categories of unorganised labour.
b)
Legislative protection by the state for unorganised/ unprotected labour.
c)
Simplification of legislative and administrative procedures applicable
to small establishments.
d)
Expediting education and organization in the field of unorganised
labour.
e)
As there is no alternative to the existing implementation machinery,
what exists should be reinforced, and the inspection system should be
strengthened.
f)
Steps for the protection of workers against middlemen, and development
of self-help through co-operatives. Co-operatives should pay adequate wages and
bonus, and give employment opportunities to the underemployed and unemployed
among them (pp.434-35).
2.3
The National Commission on Self employed Women and Women Workers in the
Informal Sector (NCSEW), under the Chairpersonship of Smt. Ela Bhatt
submitted its report (Shramshakti: Report of the National Commission on Self
employed Women and Women in the Informal Sector) in 1988. The NCSEW recommended enlarging the definition of work
done by women to include all paid and unpaid activities performed within the
home or outside as an employee or on ‘own account.’
2.4
In the view of the NCSEW, the single most important intervention towards
improving the economic status of poor women working in the informal sector of
the economy would be to devise strategies which would enhance their ownership
and control over productive assets.
2.5
The NCSEW noted the flagrant violation of statutory provisions regarding
payment of wages, safety regulations, provision of housing and medical
facilities, accident compensation and so on. It felt the need for more
stringent observance of existing labour laws and the introduction of deterrent
penalty clauses. The NCSEW recommended simplification of judicial procedures,
particularly to enable unorganised workers to obtain legal redress without
undue harassment.
2.6
For domestic workers, the NCSEW recommended the introduction of a system
of registration. It felt that, in view of the existing trends of exploitation,
it was extremely important to fix a minimum wage, and to pass legislation to
regulate conditions of employment, social security and security of employment.
2.7
The NCSEW observed that the rates of minimum wage are low and have to be
increased keeping in view the requirements of the woman worker and her
family. Piece rates must be so fixed as
to enable women workers to earn for 8 hours of work a wage equal to the time-rated
minimum wage. Where work is carried out at home due to which the employer saves
on installation cost and equipment, an additional amount at 25 per cent of the
minimum wage should be paid. There should also be a national or regional
minimum wage. Despite the Equal Remuneration Act 1976, wage discrimination is
widely prevalent. This must be corrected through better enforcement and wider
dissemination of the law. The Commission concluded that there is a tendency to
classify the tasks generally done by women as those of a slightly inferior
nature. It recommended that this should be corrected, and one way of doing this
is to broad base into a single category the activities requiring work of a
similar nature.
2.8
The NCSEW recommended the setting up of an Equal Opportunities
Commission under a central law, and also that such a Commission should have
wide powers of investigation, direction, advice and monitoring.
2.9
It further recommended the establishment of Tripartite Boards, as no
law, however well conceived, would benefit women workers unless they had a
major hand in the implementation of the laws. The Tripartite Boards have to be
constituted in such a manner that workers have as many representatives as the
government and the employers. The Tripartite Boards will regulate
implementation of legislation and also contribute to making women workers
visible, and empower them to be equal partners and participants in the
production process.
2.10Another recommendation of the NCSEW
was that a separate wing should be set up in the Labour Department for
unorganised workers with adequate number of women employees at various places.
2.11 The NCSEW also felt that no
solution to the problems of women at work would be complete without taking into
account their reproductive functions, which can be effectively facilitated
through maternity benefit and childcare. Maternity benefits, on the scale
provided under the Maternity Benefit Act, should be universally available to
all women. The responsibility for this should be borne by all employers, irrespective
of whether or not they employed women, through a levy calculated as a
percentage of the wage bill, and placed in a separate fund from which maternity
benefit could be provided. In the case of a large number of women like
home-based workers and others, where the employer is not identifiable, the
responsibility for providing maternity benefits must lie with the State
governments.
2.12 The NCSEW noted that though
childcare facilities were provided in various labour laws, these were not being
implemented, and had in fact led to the retrenchment of women workers since the
employers wanted to avoid the statutory responsibilities that the law imposed.
Hence, it was necessary to introduce an extended system of childcare throughout
the country to reduce the burden on women and to facilitate the all round
development of the child.
2.13 The NCSEW emphasized the need for
regulating working hours in the informal sector where there is considerable
exploitation of the poor. It recommended that piece-rates be converted into
daily wages based on the normal quantum of work completed at a healthy pace,
and that health insurance including compensation for accidents should be
available to women workers. Every workplace had to assure safety to the
workers. The Commission recommended that a comprehensive law on health and
safety be formulated and enacted.
2.14 The National Commission on Rural
Labour (NCRL) was appointed in 1987 ‘to look into the working
conditions of this vulnerable section of our society and the implementation of
social legislation for their protection.’ The NCRL submitted its report in
1991. The Commission recommended a multi-dimensional strategy to lift rural
labourers out of poverty. This included creation of an infrastructure to
improve productivity and employment; enforcement of minimum wages and social
security; introduction of central legislation for agricultural labour providing
security of employment, prescribed hours of work, payment of prescribed wages
and machinery for dispute settlement; introduction of a system of registration
and to provide identity cards to these workers; and creation of a Welfare Fund
to set up with employers’ contribution in the form of a cess on land, and a
nominal contribution from agricultural labour.
2.15 The NCRL made specific recommendations
for various categories of workers, including handloom workers, beedi workers,
construction workers, brick kiln workers, toddy tappers, fishermen, leather
workers, sweepers, boned labourers and migrant labourers. It recommended a
change in the Beedi Cigar Workers Act 1966, in order to establish unambiguously
the employer-employee relationship in the case of homeworkers. It also
suggested some changes in the existing Inter State Migrant Workmen (Regulation
of Employment and Conditions of Service) Act, 1979 (ISMW). It recommended that
the definition of migrant workmen should be expanded to cover all migrants,
whether they come on their own or through contractors, or change contractors
after entering a recipient State.
Amendments should be made to allow third parties to file complaints. The
liability of the principal employer should be defined more clearly to prevent
him from escaping liability. The
contractor should be made liable for the breach of the Act either by him or by
the subcontractor.
2.16 The NCRL also recommended a minimum
wage of Rs. 20 per day at 1990 prices as the subsistence wage, further that no
employment should be allowed at less than this level.
2.17 The Second National Commission of
Labour (SNCL), which
submitted its Report in 2002, made a number of significant recommendations on
reform and simplification of labour laws in the country. It recommended the
grouping of laws into five broad categories and the new laws to cover workers
in industries employing twenty or more workers.
2.18 The SNCL was specifically asked to
make recommendations on umbrella legislation for the unorganised sector workers
and it made a specific proposal in this regard, which we discuss below.
2.19 Thus, the earlier Commissions have
tended to view the regulation of conditions of work and the protection and
promotion of livelihoods in an integral framework. This is also the approach of
this Commission.
3. Issue of Comprehensive
Legislation for the Unorganised Non-agricultural and Agricultural Workers
3.1
In the detailed Report on Conditions of Work, the Commission has brought
out the lack of comprehensive legal protection to minimum conditions of work
for unorganised sector workers. It is also clear that voluntary efforts to
ensure minimum conditions of work can, at best, supplement the primary efforts
by the state to ensure these conditions.
3.2
The approach towards ensuring minimum conditions of work through
legislation can follow one of three possible approaches viz. (i) extension of
coverage of existing laws to the unprotected sector; (ii) providing a
comprehensive legislation, replacing existing laws, to cover the existing
sector; (iii) providing a comprehensive legislation which extends protection to
the unprotected sector, and which provides a universal minimum, but which leaves
the ground open for them to secure better working conditions through existing
laws. In the discussion which follows, we note that all three approaches have
been under consideration from time to time.
3.3
In the 37th session of the Labour Ministers Conference in
1987, it was generally viewed that the problem was not of lack of Central
Legislation, but the implementation of the existing laws such as the Minimum
Wages Act, the Equal Remunerations Act and other such laws that are applicable
to the unorganised sector workers including workers in agriculture. However, since then, the issue of a new and
separate regulation for workers in the unorganised sector have been discussed
in successive sessions of the Labour Ministers’ conference and the Indian
Labour Conference, and this has consistently been recommended by various
commissions and committees.
3.4
We have earlier noted that whereas the National Commission for
Self-employed Women favoured simplification of existing laws and strengthening
of the tri-partite structure of implementation, the National Commission on
Rural Labour had recommended a Central legislation for agricultural workers.
3.5
Following upon the recommendations of the NCRL, the Ministry of Labour
and Employment (MOLE) proposed a comprehensive legislation for regulation of
employment, conditions of service and provides for welfare measures of
agricultural workers in 1997. The Bill
contained provision for regulation of conditions of work, welfare, and social
security. The definition of agricultural workers covered wage workers only.
For carrying out the welfare provisions, the Bill provided for registration of
labourers and issue of identity cards and the constitution of Agricultural
Welfare Boards. The provisions with respect to regulation of conditions of work
included regulation of hours of work, overtime rates, payment of ‘prescribed’
wages, continuity of employment, child-care facilities, safety measures as
prescribed. It also prohibited unfair labour practice interfering with the
right of agricultural workers to enrol or continue as union member,
discriminating against, restraining, or coercing any agricultural worker
because of trade union activity, and victimizing any agricultural worker. For
dispute resolution, the Bill provided for a three-tier structure with
conciliation officers for mediating in and promoting settlement of agricultural
disputes, appointment of arbitrators at second level and appellate authorities
at the third level.
3.6
The Second National Labour Commission (SNCL) was specifically asked to
examine the issue of comprehensive legislation for unorganised sector workers.
The SNCL proposed an Act to consolidate and amend the laws relating to the
regulation of employment and welfare of workers in the unorganised sector in
India and to provide protection and social security to these workers. The comprehensive legislation proposed by
the SNCL was thus intended to cover social security and welfare, regulation of
employment and conditions of work, as well as promotion of livelihoods. The
legislation was intended to cover employments, both in the agricultural and
non-agricultural sectors, which were to be listed in the Schedule appended to
the Act.
3.7
The essence of the proposed Umbrella legislation was the removal of poverty of the working population
of India through improving their productivity, quality of work, enhancing
income earning abilities and increasing its bargaining power. Its aim was to
improve the quality of employment, provide a decent life to the workers and
integrate them with the growing opportunities in the country. The basic
approach of the legislation is recognition and protection for all types of
unorganised sector workers regardless of industry, occupation, work status, and
personal characteristics.
3.8
The provisions covered by the umbrella legislation included social
security, health and safety, working
hours, holidays, prohibition of child labour, workers right to access
the common natural resources to develop and increase his productivity through
work, traditional right related to work
and space, protection from unfair labour practices, retrenchment without a
reasonable cause, education, training
and skill development. The proposed legislation also recommended record
maintenance such as a register of workers employed, muster roll cum wage
payment register and wage slips to be issued to the workers with the seal of
the employer. The SNCL recommended that the Umbrella legislation should be
integrated into other existing laws, policies and schemes that basically
control the economies of these sectors to be more effective.
3.9
The SNCL proposed a Central Board at the centre and State Boards at the
State Levels for the administration of the Act. It recommended employment based
Boards at the State levels. It has also recommended a district level Boards at
the District level and Worker Facilitation Centres (WFCs) at lower level. The
State Board (SB) was placed with responsibility of arbitration in disputes
between the employers and workers’ organisations if agreed by the parties and
conciliate and arbitrate in disputes pertaining to the use of common property
resources by the workers in the event of the matter being brought before it by
one or more District Boards. The SB
also had the responsibility to ensure payment of minimum wages to workers as
prescribed under the law by the Central or the State Governments and also
ensure timely payment of dues of such workers. In relation to the self- employed workers, the SB was to take
suitable measures to ensure they earn fair incomes, receive benefits of social
security, training, and other development services, facilitate a support system
that provide access to financial services, market infrastructure, and
infrastructure like power, roads, warehousing, workplace, information and skill
development interlinked in a holistic way. The District Boards had the responsibility to ensure
implementation of the Act and other relevant labour legislations; conciliate or
arbitrate in disputes pertaining to common property resources in the event of
such matter being brought before it by one or more WFCs. The WFC had the
responsibility to resolve any dispute arising out of employment relating to
wages and working conditions through tripartite or multipartite conciliation.
In case of failure of conciliation, WFCs should undertake arbitration to
facilitate speedy resolution of disputes. They may also take the help of Lok
Adalats or Labour Courts.
3.10No
separate grievance redressal mechanism was suggested in the draft Bill of the
SNCL. However, the Board was to encourage the parties to settle their issues and
disputes relating to wages and conditions of work peacefully by bi-partite or
multi-partite negotiations. The labour court or Lok Adalat having
jurisdiction over that area shall be empowered to hear disputes and try offences
under this Act. The State Government shall constitute the concerned Appellate
Authority for the above matters.
3.11As a follow up to the SNCL
recommendations, the MOLE also proposed a comprehensive legislation for
regulation of employment and conditions of service of unorganized sector
workers and to provide for their safety, social security, health and welfare
(The Unorganised sector Workers Bill, 2004, subsequently also revised by the
Ministry in 2005). This Draft Bill
drew upon the recommendations of the SNCL and covered both wage workers as well
as self-employed workers, in all sectors. However, only workers in scheduled
employments were proposed for coverage. The Bill provided for Schemes of social
welfare to be funded through contributions by governments and workers and their
implementation through Workers Facilitation Centres (WFCs) and State/Central
Welfare Boards. The Bill also has
provisions for minimum conditions of work, including an eight hours work day
with half an hour break, overtime at rate of twice his ordinary rate of wages;
and payment of wages at prescribed rates not less than the Statutory Minimum
Wages. No separate dispute resolution mechanism was been provided in the Draft
Bill.
3.12Another comprehensive legislation
for regulation of employment, conditions of service, and provision of welfare
measures of agricultural workers has been made in a private member’s Bill
(Hannan Mollah 2001) The definition, coverage and the main provisions of the
Bill are broadly similar to the MOLE Bill (1997). It, however, proposes a
system of enforcement by inspectors and a two tier dispute resolution structure
consisting of the conciliation machinery and an agricultural tribunal.
3.13Two Bills proposing comprehensive
legislation for regulation of employment and conditions of service, social
security and welfare of unorganized sector workers have also been proposed by
National Centre for Labour and the National Campaign Committee for Unorganised
Sector Workers in 2005. The Bills cover wage workers, home-based and
out-workers duly registered under the Act but do not include agricultural,
plantation, sericulture, horticulture, poultry farming, animal husbandry
workers and other allied workers and the persons employed in factories and
mines. The Bills provide for the right to livelihood including the right over
common properties and natural resources. They also include provisions for
regulation of working conditions, provide for continuity of employment, bonus
and social security, non-discrimination, and provisions against harassment of
women workers. They also provide for the right to have a uniform social
security card; occupational and other safety measures; vocational training and
guidance, and ensuring special protection for migrant workers. The tri-partite
Boards formed under the proposed Act will be responsible for its
administration. Enforcement will be through a system of inspections and trade
unions will be vested with powers of inspectors. For dispute resolution, the
Bill provides for Dispute Resolution Councils and appellate authorities.
3.14The comprehensive Bill formulated by
the Ministry of Labour and Employment, was forwarded to this Commission for
review and comments. The National Advisory Council of the government formulated
a stand alone Bill on social security for unorganised sector workers which was
also forwarded to this Commission for review. The Commission deliberated on the
issues of social security, conditions of work and livelihoods, and prepared two
separate Draft Bills on social security and conditions of work which were
circulated for feedback.
3.15These Bills, along with the Bills
prepared earlier by the Ministry of Labour and the National Advisory Council
were considered in the 40th Indian Labour Conference, which is the main
tri-partite consultative forum, in its meeting held in December 2005. The
Conference suggested that the NCEUS Draft Bill be used as a basis for further
discussions. It, however, suggested that social security and conditions of work
be integrated in the same Bill and that separate Bills be formulated for
agricultural and non-agricultural workers.
3.16The Commission considered the views
of the ILC, along with the views and feedback from other stake holders and the
States and in May 2006, the Commission finalised its report on social security
and its recommendations on a Bill and a National Social Security Scheme to
which all unorganised workers would be eligible within a period of five years.
It may be noted that the Commission submitted a stand alone proposal on social
security at this stage because it was considered that such a proposal would be
institutionally feasible and implementation could begin within a short period
of time.
3.17The Commission’s proposal on social
security has been considered by the Ministry of Labour and Employment and by
the Cabinet. The views of the Ministry and the government have been summarised
in the Ministry’s report to the 41st ILC held in April 2007.
4.1
The preceding discussion indicates that there has been a growing
consensus on the need for a comprehensive legislation. There is also some agreement among the stake
holders that the new law needs to have a different implementation mechanism
involving tripartite regulatory bodies and having inbuilt systems of
self-regulation. There is also some consensus that the needs of the
agricultural and non-agricultural workers with regard to their working
conditions are very different and that the new proposed bill should address the
needs of agricultural and non-agricultural workers separately either within the
same bill or in two distinct bills one each for agriculture and
non-agricultural sectors.
4.2
The Commission has examined these proposals in the light of its own
findings on the condition of unorganised sector workers, and its analysis of
the existing state of regulation of conditions of work, as well as protection
and promotion of livelihood of the workers in the sector as a whole. It is
noted that the existing proposals differ in scope, coverage and institutional
mechanisms. The general scope of these proposals extends to working conditions,
social security and welfare, and protection and promotion of livelihoods. The coverage
of these proposals varies in as much as some of them are confined only to
agricultural wage workers, while some cover both wage and self-employed workers
in the non-agricultural unorganised sector only, and some encompass all workers
in both the agricultural and non-agricultural sectors. Further, the coverage
may also be confined to listed schedules of employment.
4.3
The Commission concurs with the need for a comprehensive legislation for
the unorganised sector. With regard to social security, the Commission has
already recommended a National Minimum
Social Security Scheme for all unorganised sector workers, which can be
added upon by the states, and has suggested a Draft legislation. Issues
contained therein are already under consideration of government. The Commission
therefore proposed a legislative framework to ensure minimum conditions of work
for all unorganised workers, with special attention being paid to the special
needs of vulnerable sections of the unorganised workers (women, migrants, and homeworkers).
However, given the differences between agricultural and non-agricultural
workers, the Commission recommended two separate Bills (for the agricultural
and non-agricultural workers). Part 1 of these Bills related to conditions of
work. The Commission also made
recommendations with respect to the aspect of livelihood promotion in Part 2 of
the Bills. These two Draft Bills were
publicised by the Commission in February 2007, and a series of state level,
regional and national consultations were held with all stake holders on the
contents of these Bills. In particular, two national consultations were
held with Central Trade Unions and other national organisations representing
unorganised sector workers. A number of views emerged in these consultations which
have been helpful in finalising these Bills. Views received by the Commission
have also been appended to this Report.
4.4
Two main views emerged,
however, which had a bearing on the structure of the Draft Bills as prepared by
the Commission in February 2007. First, it
was argued by the trade unions and national organisations that, although they
welcomed the Commission’s proposals, the Indian Labour Conference (40th
Session) had resolved for composite Bills incorporating both social security
and conditions or work proposals. Second,
a number of responses stated that the Commission’s proposals on livelihood
promotion could be dealt more appropriately through recommendation of policies
or programmes, rather than through legislation.
4.5
The Commission deliberated at length on these two issues. With respect
to the first issue, while the Commission could have left it to government to
synthesise the two proposals if it so desired, the Commission felt that it
could also itself combine its earlier proposal on social security with those on
conditions of work in the two separate Bills for agricultural and
non-agricultural workers. As far as the government was concerned, nothing would
be altered as far as the social security proposals of the NCEUS were concerned.
But the synthesised Bills would be in
line with the Tri-partite conclusions and would, therefore, have greater
acceptability among the stake holders. Further, it was felt, that since the UPA government had clearly committed itself
to a comprehensive protective legislation for agricultural workers in its
Common Minimum Programme, the new synthesised Draft Bill for agricultural
workers would also be more in line with this commitment. For these reasons,
the legislative content of the social security proposals have been incorporated
in the two final Bills.
4.6
As regard the second issue, the Commission has given some responsibility
for welfare and livelihood promotion to the Social Security and Welfare Boards
proposed in the final draft of the Bills. However, the principal
recommendations of the Commission with respect to livelihood promotion are now
being suggested outside of the proposed legislative framework. They will form
part of the detailed Report on Conditions of Work and Livelihood Promotion and
will also be submitted to government in the form of an Action Plan.
5. Need for Separate Bills for
Agricultural Workers and Non Agricultural Wage Workers
5.1
The Commission has proposed two draft Bills regarding the
conditions of work and social security. These are the Agricultural Workers Conditions of Work and Social Security Bill, 2007 (hereafter
referred to as NAWB), and the Unorganised Non-Agricultural Workers
Conditions of Work and Social Security Bill, 2007 (hereafter referred to as
AWB). The first Bill is applicable
to the unorganised agricultural workers (all agricultural wage workers
excluding those eligible for protection under the Plantation Workers Act, and
all marginal and small farmers). The second Bill is applicable to the
unorganised non-agricultural workers i.e. non-agricultural workers in the
unorganised sector as well as unorganised workers in the organised sector who
are not protected by existing laws applicable to that sector, subject to an
income ceiling. Although most of the conditions of work specified under the
Agricultural Workers Bill and the Unorganised Non-agricultural Workers Bill are
similar, the two separate Bills have been provided to take care of specific
issues being faced by the two different sets of workers. The working conditions
differ and separate sets of conditions have been proposed wherever considered
necessary.
5.2
Further, in some States like Tamil Nadu, the present machinery for
enforcement of labour laws for agricultural and non agricultural workers is
different. The laws relating to non agricultural workers are enforced by the
Labour Department whereas for non agricultural workers enforcement is carried
out by the Revenue Department or by another separate machinery. For this
reason, the two Bills prescribe different provisions for the dispute resolution
machinery in the agricultural and non-agricultural sectors.
5.3
As discussed above, each of the Bills incorporate provisions for
regulation of conditions of work and social security. Chapter II of the Bills
deals with conditions of work of the unorganised non agricultural and
agricultural workers respectively. Chapters III to VIII of the Bills relate to
Social Security, Constitution of the Social Security Funds, Constitution,
Powers and Functions of the National and State Social Security and Welfare
Boards; provision for registration and implementation of the Scheme. The
provisions with respect to the National Social Security Scheme, the National
Social Security Fund and the National Social Security and Welfare Boards are
identical in the two Bills and are based on the earlier proposals of the
Commission to the government. The Dispute Resolution mechanism for settlement
of disputes arising due to non observance of provisions relating to conditions
of work are specified in Chapter IX of the respective Acts.
5.4
Some of the main recommendations (covered by the Bills) are discussed
below. We also discuss those recommendations which are not part of the proposed
Bills.
6. Main
Recommendations Relating to Conditions of Work
6.1