May Day 2020: COVID Pandemic Places Spotlight on Seven Glaring Labour Rights Issues

Had existing laws and draft codes on migrant labour, construction workers, food security, unorganised workers and safety of healthcare personnel been properly followed up, the lockdown would not have been so catastrophic.

This year, ‘May Day’ will be celebrated through virtual and other coronavirus-proof modes – through windows and on top of terraces, as individuals shout slogans and hold placards –  but no less intense than in the past.

In fact, after a long time, this year is when worker solidarity should resonate throughout humanity stronger than ever before, as COVID-19 poses threats to the ‘lives and livelihoods’ of billions of people across the world. For long, there have been debates on the convergence of ‘human’ and ‘labour’ rights. Now, the pandemic demands it.

The novel coronavirus has impacted tremendously the world of work and exposed its institutional and legal inadequacies. This May Day presents an occasion not only for recalling labour’s contribution to India, but also to shine a spotlight on how the effects of the national lockdown on workers should spark a renewed call for reform.

Anganwadi, ASHA and other scheme-based workers

India’s frontline healthcare workers have been tested heavily in the last few months. An estimated 1.33 million anganwadi workers and helpers (AW/AH) are employed under the Integrated Child Development Services (ICDS) which has been around since 1975. Another 1.05 million ASHA workers are engaged under the National Rural Health Mission (NRHM), which has been in existence since 2005, and have rendered sterling service during normal times.

More recently, both types of workers have been at the forefront of a number of special services like community surveillance, educating people about safe practices and tracking potential COVID patients in remote regions.

Anganwadi workers receive a meagre honorarium of Rs 3,500-Rs 4,500. ASHA workers do not even receive fixed pay – they instead get a tasks-based variable honorarium with no career progress, no social security and the tragic joy of being called a ‘volunteer’. 

In the past, anganwadi workers have conducted numerous struggles in many cities in India. Their major demands include: recognition as “workers”, regularisation of their services and status as government employees, fixed and enhanced pay (ranging from Rs 12,000 to Rs 18,000), and grant of wage arrears, pension benefits and so on. 

Interestingly, in 1990, the Hind Mazdoor Sabha (HMS) under the Rural Workers’ Organisation Convention (C.141, 1975), which India ratified in 1977, complained to the ILO’s Committee of Experts on the Application of Conventions and Recommendations (CEACR) that by treating the anganwadi workers as “honorary workers” the government deprives “them of adequate pay scales and service conditions”. The government of India took the view that they are volunteers from a local village to serve people therein and work for four hours a day as visualised under the ICDS and hence “treating them as government employees negates the very basis of ICDS.” 

 The “service conditions, wages and social security for various categories of workers employed in different Central Government and State Government schemes” were discussed in the 45th Indian Labour Conference (ILC) in 2015. The tripartite conference committee constituted by it recommended that they should be recognized as “workers” and not as honorary workers or as volunteers, paid minimum wages, get social security benefits like gratuity, maternity benefit, pension, ESI and EPF coverage.

But the government repeated the same arguments above concerning the anganwadi workers: ASHA workers, it said, are honorary workers under the NRHM who only receive performance based incentives.

The arguments of the government are indefensible at the best of times and especially now that they are being pressed into service as ‘corona warriors’. It is essential that both types of workers get the status and labour market security that they deserve. 

Frontline healthcare employees

In India, medical and healthcare employees – especially  doctors, nurses (and ASHA workers) –  have been shockingly subjected to various forms of harassment and even assault.

On April 20, 2020 the president issued an ordinance amending the Epidemic Diseases Act, 1897 which provides imprisonment for violence and damage caused to the defined health care personnel and medical property. The ordinance came rather late in the day, but it would not have even been necessary had the government enacted the proposed ‘Healthcare Service Personnel and Clinical Establishments (Prohibition of violence and damage to property) Bill, 2019’ which had, in some cases, even tougher provisions than the ordinance.

The Bill is also more expansive in certain areas  and like the ordinance should also include ‘community health workers’ in its coverage.

Violence against healthcare workers especially doctors is not new and medical personnel have often gone on strike demanding protection to their lives. The passage of this law must be high on the agenda in the coming months.

Migrant workers

The World Bank estimates that 40 million internal migrants have been impacted in India due to the COVID-19 lockdown,

The distressing  exodus stories in the media over the last month have been quite disturbing. Migrant workers have been stripped of their livelihoods, may or may not be getting food and shelter in the states where they are currently trapped, even as their home states fear the spread of infection. This assume tragic proportions as their ‘host states’ benefit greatly due to their contributions.

At the same time, spontaneous protests have erupted in a few places – in Surat, hundreds of migrant workers protested in a very public manner at least three times. A clutch of public interest litigations and others have been filed in the Supreme Court and inat various high courts.

It took the intervention of the apex court for the Central government to issue directions on April 12 to all state governments and Union Territories about “proper arrangements for food, clean drinking water and sanitation” and for “sensitive handling” of the mental state of migrant workers. On April 27, the SC directed the Central government to submit an action plan to enable the return of the migrant workers tested negative for COVID-19. Finally, on April 29, the Union home ministry issued an order allowing willing state governments to arrange for the movement of their migrant workers.

The dynamics of this workforce and how they have been dealt a raw hand by the lockdown reveal a few dark realities.

The pandemic has starkly exposed the utter non-implementation of the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979. While the Act has its own problems – in that it covers only workers brought into a different state by contractors and excludes voluntary migrants – if it had been implemented even a bit, Indian authorities need not be scurrying for a database regarding migrant workers at both the home and host state levels. Contractors who are registered formal entities could have been held accountable for extending necessary relief to them.

It takes a crisis of this magnitude for the issues of ever-vulnerable migrant workers to be featured on prime time TV and steal headlines in the mainstream media. The insensitivity of administrators and even the judiciary in dealing with migrant workers is appalling.

What they require above all is formal visibility in terms of either a portable ration card, an employment card, or a smart card if they are in the unorganised sector. Livelihood and labour market security including social security – like EPF and medical insurance – along with formalising their identities must be a major demand in the coming days.

Food security

Another reality revealed by the national lockdown – and reinforced by the Comptroller and Auditor General and Supreme Court – is that the scope and implementation of the National Food Security Act, 2013 (NFSA) is far from ideal.

There is little doubt it should be universal and there are problems in terms of identification of eligible beneficiaries and other logistical issues that continue to bedevil the public distribution system.

The working class movement should continue to fight for effective and universal implementation of the NFSA along with the PDS as it is not just a labour but a human right.

Construction workers

It is well-known that many of the migrant workers land up in jobs in  the construction sector. The Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 (BOCWA) provides for social security and welfare of registration of construction workers. The money comes from the cess corpus collected at the rate of 1%-2% of the cost of construction incurred by an employer, minus the cost of collecting it under the Building and Other Construction Workers Welfare Cess Act, 1996.

It is disconcerting that the Supreme Court had to issue orders to governments to implement the BOCWA in 2009, 2010, 2014 and 2018.

In 2018, the apex court issued detailed directions for implementation of the laws after more than two decades of their enactment.

It is estimated that in 2017-18, 54.3 million workers were employed in the construction sector, out of which the Central government claims that 35 million workers are registered under the BCOWA.

On March 24, the Centre directed states to transfer money to the registered workers from the unspent amount of Rs 56,000 crore lying in the cess fund. These workers suffered for want of administrative action even though laws and fantastic cash resources were in place.

In fact, the 2018 draft of the proposed Social Security Code Bill 2019 (SSC) drew strong criticism from academics and activists as it would have dismantled existing institutional structures and required fresh registrations involving a little over five crore construction workers and other unorganised workers. The revised draft does not address those concerns.The working class movement should embrace demands for protecting and securing their legal entitlements even if the insensitive and non-comprehensive SSC is enacted.

Unorganised workers

In India, 419 million (90.50%) out of a total of 465 million workers were informal workers according to the Periodic Labour Force Survey of 2017-18.

These workers are spread across the urban sector – housekeeping and restaurant industry (3 million), street vendors (2 million), garbage collections (1 million) and so on. In the non-farm sector, about 84% of workers are informal.

The UPA-1 government spurned the industrious efforts put in by the National Commission for Enterprises in the Un-organised Sector (NCEUS) headed by Arjun Sengupta and enacted the Unorganised Workers’ Social Security Act, 2008 (UWSSA), which has been criticised by many.

The Act among others provides for registration of 14+ aged workers on self-declaration and the issuance of a portable and smart identification card. Workers’ Facilitation Centres along with the local administration would register them. The Social Security Boards at the central and the state levels will among others advise social security schemes and review the process of registration and issue of identity cards.

However, it was only in June 2018 that the Centre initiated the process for introducing a single unified sanitised database which will assign a ten-digit Unorganised Workers Identification Number (UWIN) to every worker.  According to the government’s National Platform of Unorganised Workers – which was last updated in August 2018 – the UWIN process underway in Maharashtra is a sample. The Social Security Boards are ineffectual. All of this shows the limited progress in implementation of the Act and widening of social security as envisaged by it.

While poor in substantive content, the logistical system envisaged in the Act if used effectively would have created a comprehensive and rich database which would have enabled direct cash transfers by now. More than a decade has passed, however, and the government is still groping for the basics of delivery of social security.

Two of the three labour codes that are pending –  the Social Security Code, 2019 (SSC) and the Occupational Safety and Health and Working Conditions Code, 2019 (OSHWC) – must take care of the much of the above and other issues.

The SSC is a patchwork of sorts and does not have a comprehensive picture and suffers from major shortcomings like rehashing existing laws with the same thresholds seen in the EPF and the ESI laws, etc. even after nearly seven decades after Independence. In fact, the Indian Labour Conference in 2015 gave in-principle agreement to universalisation of ESI coverage, including for the self-employed and reducing the threshold of the EPF Act from 20 to 10 workers.

COVID-19 as occupational disease

The International Trade Union Confederation (ITUC) representing 200 million members of 332 affiliates in 163 countries and territories has recently declared that COVID-19 should be deemed an “occupational disease”, given that the probability of contracting it while working and travelling to the workplace is high and will be higher as relaxations will be issued soon in many countries.

In India, the Factories Act is a major law that addresses occupational diseases. The right to remove oneself from a potentially dangerous workplace is not present in our laws, though S.41H empowers the workers to be warned of imminent danger in a factory engaged in hazardous processes. The list of notified diseases under the Act mentions a biological hazard –  Anthrax – but it does not cover all potentially dangerous biological agents as possible occupational diseases. However, S.89(5) of the Act empowers the government to add a disease to it and the government must suitably include an item to cover the novel coronavirus pandemic.

Despite this, even if the laws mention all the diseases, unless they are transmitted through occupational exposure, they may not be classified as occupational diseases. Even the ILO in the document “ILO Standards and Covid-19” has admitted that their instruments do not comprehensively address the issues concerning biological agents and hazards and more importantly do not contemplate “the prevention” of diseases caused by these hazards.  In fact, some academics have called for declaration of  “workplace safety” as a fundamental right. Thus, workplace safety should be declared as a fundamental right and be comprehensively covered by the forthcoming OSHWC.

It is ironic that in 2020, the Indian labour movement will still be fighting for a 8-hour shift – some 135 years since the Haymarket affair took place in Chicago and the struggle for 8-hours began. Several state governments capitalising on the COVID-19 induced crisis have legally increased maximum working hours from 8 to 12 in a day and from 48 hours to 72 in a week, which has been severely criticised. In the meanwhile, the COVID-19 months have witnessed a loss of jobs, incomes and even shelter for many workers. There have been calls from employers for labour law reforms including prohibition of trade unions for a year and the government has indicated its keenness to effect them.

Who knows, maybe even the IR Code will be passed with provisions disentitling historically acquired labour rights. The challenges for labour rights in a post-pandemic world are clear and can only be solved through greater dialogue. COVID-19 has redefined the existing landscape and calls for a “new normal”

Trade unions should pick their battles in this ‘new normal’. A good place to start may be with an inclusive Industrial and Social Charter that addresses many of the shortcomings revealed by this current crisis.

K.R. Shyam Sundar is a professor at XLRI, Xavier School of Management, Jamshedpur. He can be reached at krshyams@xlri.ac.in