Labour

Labour Reform is Fine But Who Holds Employers to Account When Government Fails?

A new community media platform in Delhi-NCR provides an unusual database of accounts by workers of the kinds of violation and enforcement failure encountered daily.

India’s labour law is under reform at a scale not seen since the 1970s. The Wage Code Bill has been tabled in the Lok Sabha and awaits the winter Session. The Industrial Relations Bill is ready for tabling, though press reports indicate that it may not be heard before the 2019 elections.

Opinions differ on what impact the new Wage Bill will have on wage benefits. While press reports argue the Bill hands to the Centre greater powers to set minimum wages across the board, labour researchers argue that wage standards will be weakened, permitting a race to the bottom by states. On the other hand, there is little doubt that the Industrial Relations Bill will finish the work already begun by amendment to the Industrial Employment (Standing Orders) Central Rules, namely that flexible hire and fire will be the norm across India.

Other than this basic shift in the standard job due to industrial workers, activists have argued that the two bills will reduce the liability of both employer and government to deliver fairness and justice to workers. What’s considered punishable – and the tools to punish – are both being reduced through reform. And yet this reduced accountability of government for rights at work is not compensated by a greater role for worker representatives, in fact quite the opposite. Unions will be fewer and weaker and worker consultation in the factory will also reduce.

For the workers filling India’s factories in Delhi-NCR, Pune, Chennai and Gujarat, the job standard and even the tools in the government’s hand may matter less than what the government chooses to enforce. Labour rights activists argue that the reforms show a slipping commitment to enforce. But the government is vociferous on smart governance and has argued the case for reforms largely in terms of a rationalisation of legislation and a fixing of the ‘plumbing’ of implementation. We must wait to see whether workers will be compensated with better enforcement for a diluted job standard. What is clear is that access to rights and entitlements is weak and there are few signs yet of smart governance pushing through to help.

A new community media platform in Delhi-NCR provides an unusual database of accounts by workers of the kinds of violation and enforcement failure encountered daily. Operating through voice (IVR) on simple mobile handsets, Saajha Manch provides workers useful information on accessing their entitlements and an easy means to share local news and experience. Powered by Gram Vaani, Saajha Manch asks listeners to dial a dedicated number – 92111 53555 – which triggers a call back. Receiving the call, listeners then access and navigate an audio playlist, much of which is contributed by other workers. At any time, they can press ‘3’ and offer their own contribution which will be published after moderation by Gram Vaani’s staff. While on the call, listeners also volunteer to partake in surveys administered over the IVR, where they select responses from a multiple choice by pressing digits.

Saajha Manch’s publicity poster. Credit: Author provided

The size of the problem

Since it launched in August 2017, Saajha Manch has been heard by 9,000 workers across the capital’s industrial regions, many dialling in to listen regularly. The over 1,500 listener contributions published on Saajha Manch show widespread and basic violations in the organised factory sector. More than a third of these contributions talk about wages, including bonus and overtime. Another 15% of these contributions focus on the Provident Fund which – for its heavy bureaucracy and snail-pace of change – functions more like a hefty tax on already paltry wages.

Saajha Manch’s survey of listeners in February 2018 provides further evidence of the scale of enforcement failure. Seventy percent of the 434 respondents were hired in their factories casually and through contractors with no job security, in spite of being engaged in regular and year-round tasks. Thirty-seven percent of these had no proof at all of where they were employed, making it impossible for them to file a grievance. A shocking 61% of respondents reported they were paid under the legal minimum wage and only 7%, above it. Among the vast majority doing regular overtime, only 20% were correctly paid for it (i.e. double the normal rate). With respect to the Provident Fund, only 23% of respondents were confident that their PF contributions were deposited and knew how to access their balance.

Do workers – facing such widespread violations – seek redress?

Yes, if they’re willing to risk their jobs.

Also read: The Ugly Underbelly of Make in India

Ram Karan, a skilled tailor from central Uttar Pradesh who volunteers with Saajha Manch, has worked in the capital for nearly three decades. Called to work on August 15, he went into a Gurugram factory fearing consequences if he exercised his right to refuse. At 5 pm, he tried to leave. Barred by locked doors, he and many other workers were informed they needed to do overtime. Ram Karan objected and got into an altercation with a supervisor which ended in his being fired from his job. In distress, with advice from Saajha Manch he tried to file an FIR against the employer. The police forced him to wait several hours, then refused to file, arguing this was a ‘civil’ and not ‘criminal’ matter. They later changed their stance and told him to ‘come back tomorrow’. Unassured, he instead filed a complaint with the assistant labour commissioner Gurugram. On September 4, he had his first hearing and reported it on Saajha Manch:

People from the company’s management came, claiming that I had never worked for them. The card they make is a punching card which only has a number and a photo, with no address of the company. So I explained to the commissioner that they never write the company’s address on the card, neither do they give joining letters. The commissioner spoke to the company management and warned them that their representatives are called to the labour court on September 17.

Filing an FIR against an employer who had forced workers to work a 12 hour shift on August 15, 2018, in
 Sector 14, Gurugram. Credit: Author provided

As Ram Karan’s story shows, the reasonableness of a worker’s request has little bearing on the response he can expect.  Just over half of the surveyed workers filed a complaint in the last two years, of whom 60% subsequently lost their jobs. Contrary to their declared procedures, government departments consistently fail to protect the names of complainant workers and whistleblowers.

Power concedes nothing without a demand

In this context – of the most basic violations – is the role of unions. At the outset of free India, trade unions were viewed suspiciously – by Gandhi as stoking avoidable class conflict, and by Nehru as a feature of laissez faire capitalism far from the state socialism to which he aspired. The post-colonial state has maintained a huge mandate in inspection, arbitration, conciliation and adjudication, in a paternalistic framework of maintaining industrial peace and protecting workers. But in keeping this role for itself – and curbing the role of unions – the state has spectacularly failed to deliver. And it will not deliver unless the subjects of this protection rise up and force it to. It is to ensure the state’s own basic commitments in law – rather than to bargain for anything more – that collective action is required. Frederick Douglass, former slave and American abolitionist, said in 1857, “Power concedes nothing without a demand. It never did and it never will”. Rights are secured when they are claimed by the rights holders, not when they are written in law.

The odds are stacked against such collective action and solidarity. In 2012, 35% of the workforce of organised industry was hired through contractors and rising, and one of the fastest-growing forms of employment is “regular salaried employment without social security and other nonwage benefits”. The capital region’s crowded market of labour contractors ensures those raising questions can be removed and protects the main employer from accountability to his workers. It also ensures maximum competition between workers – a ‘perfect’ labour market, in the textbook economics sense – wherein wages are bargained down to the minimum. The workforce – ever more comprised of migrants from other states – are not well placed to object.

Migrant citizens

While India’s constitution guarantees full citizenship for Indians across the country, the federal structure means that locals and outsiders are treated differently. Migrants to the capital region find themselves impeded from access to welfare entitlements and basic services because they lack local address proof. As outsiders and non-voters, they are poorly equipped to address the violations and service failures which plague their workplaces and residences.

The three lakh-strong worker settlement at Kapas Hera is built around open drains. Credit: Author provided

Sleeping account holders

Designed for an India of stable job-holders, the Employee State Insurance (ESI) and the Provident Fund (PF) today have a subscriber based largely composed of low-wage migrants, undemanding yet vulnerable, who struggle to push for a better service.

As more workers come under its net, the ESI scheme has been increasing its members (and so revenue) steadily since 2002. And yet its expenditure has not kept pace as subscribers fail to avail the service. Safe in India specialises in compensation for victims of industrial accidents in the automotive supply chain in Gurugram. Their approach is to get so close to the ESIC’s systems that they effectively track and monitor performance on its behalf, submitting regular reports on file status, attending the ESI’s regional Suvidha Samagams (complaint hearings) and reporting back on the forum’s effectiveness. With more than 1,300 workers’ claims delivered in 18 months of operation, the approach is working.

The PF’s equivalent to Suvidha Samagams is the Bhavashiya Nidhi Adalats. Meant for subscribers, it is attended only by employers and a few white-collar staffers pushing their complaints. Gurgaon’s regional commissioner explained to Saajha Manch, “To reach workers, we’ll need a partner to set up the meeting, a tent house on the street. We can’t do it alone”.

A Bhavashiya Nidhi Adalat convened by provident fund for its members, Gurugram. Credit: Author provide

User facing versus hollow marketing

These institutions’s processes are not only opaque but also poorly publicised. Marketing material is published and claims are made, but there is scant focus on making information practical and detailed enough for users to act on it. The government has become adept with respect to publicity and social media. But there is an urgent need to check and filter this information to arrive at a realistic and honest estimate of what it takes to use which service.

With hollow publicity, the accountability loop is breaking: the government can issue details which don’t function and is not held to account. Take for example, the claims made by government regarding the safety and ownership of biometric data on the Aadhaar card, exposed by hackers. Last week’s verdict reaffirmed the government’s responsibility as sole custodians of this data at the highest level.

What can a workers’ media platform like Saajha Manch do to address these failures?

Claims checking

One of the simplest functions of Saajha Manch is to filter the claims made in government advertising of entitlements, helplines and facilitation services, and then post accurate and detailed information so that listeners can get access. Saajha Manch staff and volunteers call up helplines, file online complaints and apply for schemes in order to see if and how they work, and the platform solicits and shares the experience of workers who have used these services. No information goes out unless it is verified.  We have learned, for example, that the Provident Fund’s helplines don’t work, while its online complaints procedure is good; the gas helpline works, from where you can initiate a gas connection and make a complaint; the Aadhaar helpline gives useful information about changing details and linking one’s card but is unable to clarify when and for what purpose a local address is required, and complaints filing online in the Gurugram labour office is much slower and less effective than going in person.

Tailoring As to Qs

The demand for this ‘information about government information’ is striking. On matters relating to the Aadhaar card alone, Saajha Manch received more than 30 queries and grievances in July and August. But it is just the tip of the iceberg of what workers want and need to know. The greater demand, we have learned, is for help with specific queries and grievances. Answers tailored to questions.

Seventy percent of those surveyed were hired in their factories casually and through contractors with no job security, in spite of being engaged in regular and year-round tasks. Thirty-seven percent of these had no proof at all of where they were employed, making it impossible for them to file a grievance.

Saajha Manch’s ‘Pucho aur Jaano’ service provides customised responses to workers who have contributed their questions and problems over the platform. The responses are procured from a network of experts – lawyers, activists, advisers, officials – who either send in their own recorded message or provide the text then recorded by Gram Vaani. When the response is in (up to a week after the query) it is published for all to benefit from and, the original contributor gets a call to inform him/ her. The close to fifty queries received in August ranged from how to acquire local address proof for inter-state migrants, to clarifications on complaint filing for Provident Fund, to how to register a trade union, reservations for disabled people, and how to tackle employers who resort to violence. Responses provide legal, procedural and tactical information and sometimes ask contributors to provide further details to plan the course of action.

Q: Gauruddin works in Gurgaon and banks are refusing to open a local account for him because the address proof on his ID card is from the village.

A: Local address proof will be required. If you don’t have it (e.g. tenancy agreement, utility bill etc), then take a letter from a local guarantor. If this is not possible, issue a signed application to your local MLA or councillor and this person will give you.

Q: Upendra Singh reports how workers seeking to leave his company discover their personal details have been mis-entered in the employer’s PF page, even though the correct details were shared with the employer. The company tells the workers they must change the original details (Aadhaar etc) before it will assist them with PF. [This appears to be a strategy to avoid depositing PF]

A: Gather all those affected and speak with HR. If this doesn’t work, you can file a complaint with the PF office but at least one of you must have proof of working in the unit

Q: Adizhul is a small tiling contractor in Ghaziabad. He took on a job along with a handful of workers, taking no wage advance on trust. After completing the work, he found the builder reluctant to pay him. After returning several times for his money, he was met by goons showing him their lathis.

A: You’ll need to inform us whether the work was being done on a commercial or domestic property. If commercial, you can file a case in the labour office, if domestic, you can file in the civil court. And as for the goons, please file an FIR in the local police station.

Q: We are a group of visually impaired workers with an NGO in Nagpur. How do we go about registering a trade union?

A: Under the Trade Union Act, 1926, the quorum required to register is 10% of workforce or 100 workers. You will need to file a written application to the Registrar of Trade Unions, along with a copy of the union’s constitution, its meeting timings and minute book. After scrutinising these things, the Registrar will get the union registered.

The tailored responses offered by Saajha Manch are popular. Listeners have called to express appreciation, of the value of being able to ask one question after another, and others than those who logged the original query have called to thank the platform for responses which they were also able to benefit from. Over time, Gram Vaani envisages a bank of responses which can be allocated to questions with increasing speed, as the overlap between old and new queries, and the network of expert respondents both grow.

Also read: How to ‘Skill India’ When the Jobs are Bad

In all this detail, there are persistent messages which press home the fundamental rights at work. The responsibility of the principle employer, for example. Whether a contractor is in-between or not, the duty of compliance lies with the person who runs the establishment. Another is the right of all workers to evidence of where they work, i.e. a payslip or an ID card or an appointment letter. This stands regardless of their contract. A third, even though they are given no choice but to subscribe, workers are customers of the PF and ESI services. The services are for them and they must therefore insist that they are welcomed and served correctly. A fourth, that all workers have a right to associate freely and join a union regardless of their contract. They also have a right to be represented in court by a union of which they are not a member. A fifth, India’s constitution grants equal citizenship to all and has no grounds of discrimination against those residing outside their home state. The discrimination shown to inter-state migrants has no basis in law.

In disseminating information and advice, from tactical detail through to foundational values, Saajha Manch hopes to democratise knowledge so that workers can make better use of it. And it is this promise which brings on board expert contributors, aware that they have scant ways to share their experience outside the limited audience of poorly attended hearings and courts. “The use of a media platform like this to raise issues related to labour is a necessary initiative and needs commending”, says Padam Kumar, advocate and expert contributor.

Referring workers to help offline

Workers’ problems are of course not solved by information and advice alone. They may take initial steps only to be faced with a stonewall or tactical dilemma. They may be ready to file a case and need representation. Even if they’ve managed to file, how can they possibly attend on one date after the next as the case hearing is delayed?

Ajmer Singh has worked in the Gurugram court for 18 years helping workers to file and get relief through conciliation and court. “It’s very hard for workers to manage here without help”, he says. “You need to have the contacts, you need to know how to push things”. By attending court on all the dates before a case finally gets heard, Ajmer substantially reduces a worker’s loss in daily wages. Pankaj Pandey requested for such help on Saajha Manch. “I can’t go alone to make a complaint”, he explained. It’s not just that he’d likely lose his job (and therefore fail in carrying the other workers along with him); it’s that he can’t manage the time. Ajmer Singh replied on Pucho aur Jaano, “It’s a simple process to put a complaint if you just write the details and submit to the local labour department… If you were to go together with your co-workers, it would help to create pressure and push the matter to a speedy resolution.”

Swift results for individual wage-related cases are relatively easy to secure, says Ajmer Singh. More difficult are cases of dismissal or layoff which pertain to the Industrial Disputes Act. Anyone who can prove themselves a ‘workman’ (a term used to denote regular or continuous workers of both genders!) can benefit from due process and compensation at layoff or closure, wrongful dismissal and a list of other ‘unfair labour practices’ of employers. But employers work hard to ensure casual and contract workers don’t qualify as ‘workmen’ especially since rulings often have consequences for large numbers of workers. Such cases are especially challenging for workers to take up without outside help. Unions are provided for under the Act, but casual and contract workers are normally prevented from joining unions of permanent workers and must make their own, tricky in an environment when any signs of organising will cost them their jobs.

In January 2018, Saajha Manch published a news item on the sudden lay-off of 54 workers at a factory in Okhla. After covering the story, we put the workers in touch with CITU, a trade union federation with the right to represent non-member workers. With CITU’s help, a proportion of the workers have since won three months’ compensation pay where they would have otherwise been left with nothing. A month earlier in December 2017, 14 regular workers were laid off from another Okhla factory without notice. Following no response to their protests from management, the workers decided to file a case. Here also, the CITU union stepped in to assist with representation and filing. On arriving at court, the company asked the workers to drop the case and come for talks. Along with CITU representatives, workers negotiated to get their jobs back.

Accountability

There are other grievances whose solution is so intractable as to require a bigger campaign to muster political and media pressure. The residential problems faced by the capital’s migrant workers fall into this category. Mohammed Alam reported in September on the landlord-tenant relationship prevailing in Kapas Hera, the three lakh-strong workers’ settlement bordering Gurugram’s Udyog Vihar. Landlords typically lease out 50 rooms charging Rs 2,500-3,000 per head per month as rent, he explained. Over and above this they charge for water and electricity at high rates. Tenants are forced to buy groceries from landlords’ shops and if they refuse, they are asked to leave.

Locked taps selling water from illegally sunk bore wells, Kapas Hera. Credit: Author provided

Building links with local bureaucrats and elected officials, Saajha Manch is poised to explore such civic and residential issues for migrants which in turn affect their ability to negotiate in job markets. Armed with audio testimony, its reporters play back these worker voices to local officials and demand a response. When Sudana Mehta described in mid September how Kapas Hera’s mosquitoes were so flourishing that hospital beds were no longer available, Anil Yadav, Municipal Councillor at the SDMC, responded, “The main problem is the open drainage system… But fogging has started today. We are even informing parents during the school parent-teacher meetings that water tanks should be covered… Anyone can approach us regarding fogging issues, we will work on it.”

Governmentt school kids march in kapas hera to raise awareness on vector borne disease. Credit: Author provided

The more active the complainants, the more accountable the officials. Nayab Singh Saini, Haryana’s minister of state for labour, is used to speaking with the press, but perhaps not in response to the audio testimony of workers. “Before we came to power, the whole system was not functioning properly. We can’t say that we have improved 100%, but a lot has been done and we are still working on it. We have created the website to speed up the process… I don’t think workers feel that the government is only working for the capitalists”.

Also read: For Two Years, Whistleblower Has Pursued MNC on PF Misappropriation, To No Avail

Harish Yadav, regional commissioner for the Provident Fund Gurgaon, responded to a worker who – with no PF number nor wage slip – is uncertain whether his PF is being deposited or not. “It is the responsibility of employers”, he said, “to issue a PF and a UAN number to all employees. If you’re not given one, you can come to our office and file a complaint and we will take legal action. An employer who does not deposit PF is liable under the IPC and we can file an FIR against him”. In a separate comment, he explains what he sees as the value of a platform like Saajha Manch. “Workers face a lot of difficulties due to lack of employers’ cooperation and inadequate information. A service that provides PF-related information and helps to remove the hindrances faced by workers to avail these benefits, is highly commendable”.

Looking ahead

Publicising saajha manch at the mazdoor kishan rally, September 5. Credit: Author provided

The set of workers’ rights enshrined in law is being cut back. Can workers be assured a trade-off, that those rights left will be better implemented? It is unlikely, for enforcement necessarily depends on workers’ collective action, and it is collective action through unions which will face the biggest hit with reforms. Even if contract and casual workers defy odds to build solidarity in the face of threats to their jobs, unions will find their space to operate has shrunk.

Paradoxically, in such an environment, the space opens up for collective action outside unions, as workers find themselves increasingly in the same boat of bad jobs, entitlement failure and deprivation as migrant citizens. Can platforms like Saajha Manch help to promote and instigate collective action, even in the face of repression of unions?

We hope so. By not only informing, guiding and referring, but also connecting workers in a way which is convenient and manageable within the enormous constraints of time and public space in which they operate. The base of Gram Vaani’s community media is stronger in migrant source regions like Jharkhand and Bihar than in destination regions like Delhi-NCR. In these states, Gram Vaani’s audio platforms play a key role in pushing accountability of government and employers. It is the scope to link source and destination, intra-state and inter-state, on which we hope to build as we move forward.

Orlanda Ruthven  is with Gram Vaani community media. She has worked on labour standards and employment in India for many years.

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