While the Industrial Relations Code, 2020 (‘ IR Code’) ensures that industries continue to work smoothly by adopting a range of flexible labour market practices and easing regulatory burden for employers, it fails to address some key issues that disempower the individual worker. India is a founder member of the International Labor Organization (ILO), and its approach regarding international labour standards has always been positive. Therefore, it becomes important that it addresses some key issues that highlight the need to protect workers. This article aims to shed light on some of them.
Provision on Strikes
The IR Code prohibits strikes in all industrial establishments without notice. No person or group of persons can go on a strike before giving a prior notice of 14 days. The validity of the notice lasts for 60 days. The Code further prohibits strikes i) during and up to 7 days after a conciliation proceeding, and ii) during and up to sixty days after proceedings before a tribunal. This has an impact on the worker’s right to strike. The notice must be shared with the conciliation officer within 5 days, immediately after which conciliation proceedings will begin during which time the workers will be prohibited to strike. In case the conciliation is not successful, and there is an application to a Tribunal by either party, the period of prohibition of strikes will be further extended.
While similar provisions were laid under The Industrial Disputes Act, 1947 for public utility services, the rationale behind them was clear. As public utility services include the railways, airlines and establishments that provide water and telephone services, these industries needed to be treated differently owing to the nature of their work, upon which a vast majority of people’s daily lives depend. The rationale behind extending these provisions for all industrial establishments is, however, unclear.
The International Labor Organization’s (ILO) Committee on Freedom of Association from its inception has declared that to be able to strike is a right and has laid down the basic principle underlying this right, which recognizes the right to strike to be one of the most important means by which workers promote and defend their interests. While the right to strike is not set out explicitly in ILO Conventions, the ILO Declaration on fundamental principles and rights at work “…declares that all Members, even if they have not ratified the Conventions in question, have an obligation to respect, promote and realize the principles concerning the fundamental rights which include freedom of association…”
Provision on Fixed Term Employment
The IR Code introduces fixed-term employment. Fixed-term employment is where workers are employed for a specified and fixed time based on a contract between the employer and the worker. It allows the employer flexibility in hiring workers according to their requirements. While it may also benefit the worker, considering the IR Code entitles fixed-term employees to the same benefits as permanent employees, it is pertinent to consider the unequal bargaining power between an employer and a fixed-term employee. As the power to renew the employment lies with the employer, fixed-term employees out of job insecurity may not raise issues regarding unfair work practices such as payment of less than minimum wages or being overworked beyond stipulated work hours. Another facet of this issue that needs to be addressed is how there is no restriction imposed on the employer in hiring fixed-term workers even for work that may be perennial in nature. The ILO states that adequate safeguards must be provided against recourse to contracts of employment for a specified period. The 2nd National Commission on Labor had specifically recommended that no worker can be kept as a temporary worker continuously against a permanent worker for more than 2 years.
In this regard, the ILO noted that countries restricted the use of fixed-term contracts in several ways. Such as
- limiting how many times employment contracts can be renewed; for instance, China and Brazil do not allow employment contracts to be renewed after two successive terms,
- limiting the duration of the contract- for instance, Philippines and Botswana limit it up to a year),
- limiting the number of fixed-term employees concerning the entire workforce- for instance, Italy limits it to 20% of the workforce.
Power of Government in Modifying or Rejecting Tribunal Awards
The IR Code lays down that the appropriate Government may constitute Industrial Tribunals and National Industrial Tribunals (for matters involving those of national importance or parties that may be concerned with more than more states) for adjudication of industrial disputes. According to Section 55 of the IR Code, an award made shall be enforceable on the expiry of thirty days from the date of its communication. However, the government can defer the enforceability of this award where it believes that passage of the same would be unfair on public grounds, affecting the national economy or social justice. The two circumstances in which it can do so are i) when the central or state government is a party to the dispute or ii) the award has been given by a National Tribunal. This raises a serious question regarding the principle of separation of powers and whether such a provision violates it.
Interestingly, the Madras High Court had struck down a similar provision in the Industrial Disputes Act on constitutional grounds and held that the power of declining enforceability of an award, or to modify it, allows it to sit in appeal over the decision of the Tribunal, thus violating the separation of powers between the executive and the judiciary. A fundamental aspect that ILO emphasizes on is a tripartite system that aims to ensure that any dialogue involves three main stakeholders, namely employers, workers and States. Allowing the State powers over the enforceability of awards, where it is a party in an industrial dispute, makes the foundation of the tripartite system that the ILO envisions, shaky.
The Industrial Relations Code deviates from international labour standards in the following ways-
- By extending the provision on strikes for all industrial establishments, it impedes the workers’ ability to strike, which the ILO recognizes as an effective tool with which workers promote and defend their interests;
- By allowing the possibility of unfettered use of fixed-term contracts, it overlooks ILO’s desire to ensure a safeguard against recourse to fixed-term contracts; and
- By allowing the government to defer the enforceability of an award by the Industrial and National Tribunals, it goes against the principle upon which the ILO functions, which is the importance of cooperation between governments and employers’ and workers’ organizations. The very structure of the ILO demands the maintenance of a tripartite system where all three stakeholders have an equal voice.
The government must ensure all its people that they are entitled to the right to pursue their “material well-being in conditions of freedom and dignity, of economic security and equal opportunity”. In doing this, it must respect the spirit of the ILO Conventions and fulfil its obligations under ILO standards in good faith and consultation with social partners.
– Sukanya Hosmani, Advocate and Associate