Mainstream, VOL LV No 8 New Delhi February 11, 2017
Labour Issues in the Current Milieu: An Introspection
Sunday 12 February 2017
by l. Mishra
Let me begin with a historic introspection.
“O mother! Why is it that I am black when everybody else around is white? The angels, the Tarzan, the little stars who twinkle are all white. The President’s residence is called ‘White House’. Why is this infatuation with white? Why is it that black represents evil while white represents all that is good and holy? Why should I join the American army to fight the Viet Cong in the Vietnam War (1958-73)? War entails a lot of bloodshed of women, men and children. I do not think wars are necessary to resolve problems of mankind.”
These questions, which reflect the murmurs of an agitated soul in moments of intense anguish, came from Mohammed Ali alias Cassius Clay who fought alligators and wrestled with whales and was also world champion in heavy-weight boxing a number of times in the 1960s and 1970s.
The above outpouring of a sensitive mind leaves two powerful messages for the working class as an outcry against discrimination and violence (arising out of war). Both are closely inter-related; both destabilise, debilitate and dehumanise human beings, human society and human civilisation. It is indeed an irony that even though both are antidotes of human dignity (including dignity of labour) we have been victims of both throughout history in the name of tradition, culture, religion, caste, colour and other primordial ties.
The minars and skyscrapers, the pyramids of the Pharaohs, the countless monuments of unmatched beauty and splendour (Angkor Wat, Taj Mahal, Konark, to name only a few) which have been feasts for the eyes of mankind all bear testimony to the ‘blood, sweat and tears’ of those exiles of civilisation who created them but were relegated to the dustbins of history soon after—unknown, unsung and unmourned.
This is what made Edwin Markham to write with all the pain of his sensitive heart in ‘Man with the Hoe’ and I quote:
“Bowed by the weight of centuries he leans
Upon his hoe and gazes on the ground
The emptiness of ages on his face
And on his back the burden of the world.”
For generations, ‘these hewers of wood and drawers of water’ have indeed carried the burden of the world to provide solace, comfort and strength to those denizens of human society who are the first to disown them.
Labour connotes service and the person rendering that service in ordinary parlance is a labourer. Such a service can be rendered in an environment which has two dimensions such as:
• Moral and ethical.
The physical dimension requires the workplace to be safe, clean, hygienic and free from dust, heat, fume, noise and toxic substances. The moral dimension entails respect for human dignity, decency, equality and freedom.
It is only when we have a combination of both that work becomes a source of excitement and joy; the desired motivation and trust are also instilled into the minds of women and men who render that service.
The motivation and trust will also be generated when the person rendering the service is a free entity and her/his life is not circumscribed by unacceptable conditions which are often arbitrarily imposed.
Only when a worker is free from such stifling conditions that he contributes to the growth of a stable, progressive and orderly society. This is what had prompted Frederick Engels to describe in Dialectics of Nature the importance of human labour and I quote:
“Labour is the source of all wealth......And it is the source next to Nature which supplied it with the materials that it converts into wealth. But it is even infinitely more than this. It is the prime basic condition for all human existence and this, to such an extent in a sense, we have to say that labour created man himself.” (Engels, 1883)
Nearer home and about four decades later, Punjab Keshari Lala Lajpat Rai, who had been elected in 1920 as the first President of the All India Trade Union Congress (AITUC), had extolled the supremacy of labour over capital in his first presidential address of the AITUC and I quote:
“Capital is organised on a worldwide basis. It is backed by financial and political strength. Its weapons are less perishable than those employed by labour. It presents dangers which universally apply. To meet these dangers Indian Labour will have to join hands with labour outside India. It has to organise itself at home. Our need is to organise and agitate.”
Needless to mention that these lofty thoughts had already found eloquent expression in the birth of the First International (1864-71), Second International (1872-89) and Third International (1919)—the last being coterminous with the birth of the ILO. The Philadelphia Declaration reinforced the ideas further in June 1944 at the 25th International Labour Conference by re-affirming principles such as:
• Labour is not a commodity;
• Freedom of expression and association are essential to sustained progress;
• Poverty anywhere constitutes a danger to prosperity everywhere;
• All human beings irrespective of race, creed or sex have to pursue both their material well-being and spiritual development in conditions of freedom and dignity, economic security and equal opportunity.
What is the scenario seven decades later today? Globalisation of the economy has brought in restructuring of the production process, changes in employment relations from standard to a-typical and changes in work methods and procedures. It has brought in changes in distri-bution of work force characterised by decline in the share of the self-employed, decline in the wage employed and increase in the share of contract/ casual/ temporary or part-time employment. Restructuring has led to large-scale outsourcing. Even work, which is core to the enterprise and of perennial nature, is being outsourced. The atypical employment relations which are created have no stability and durability, entail a lot of occupational risks and uncertainties and are rendered insecure in the absence of any worthwhile scheme of social protection. As the Chairperson of the ILO’s Tripartite Committee on Contract Labour in 1997 and 1998, I have seen how employers have all along favoured recourse to contract labour as a stimulant of growth even though the same is perceived as an engine of exploitation.
The process of linking domestic economy with the global economy has four major consequences. These are:
First: It leads to import of technology and such technology may be rife with occupational risks and hazards. In the absence of risk-sharing and risk-communication, when an accident takes place within the plant using the said technology, workers will be taken completely unawares. This is what exactly happened in the Union Carbide Corporation’s pesticide plant at Bhopal on December 2, 1984. Due to leakage in the storage tank, water got into the methane icocynate gas causing a deadly reaction and severe explosion, killing 2500 workers on the spot and maiming/crippling several hundreds for life.
Second: Transfer of an undertaking from one country to another and eventual merger and acquisition with another enterprise within the latter country. Trade Unions bargaining at one end of the table will be handicapped to have adequate access to information about the international financial position and corporate plans of the employer of the enterprises with whom they are negotiating. The efficacy of collective bargaining at the enterprise level get seriously inhibited in such situations.
Third: Restructuring of production by firms and privatisation of State enterprises reduces the size of production units. It leads to rationali-sation, retrenchment and displacement of a large number of workers. There is no social safety net for rehabilitation of the retrenched and displaced employees through training, re-training, career counselling and redeployment. (The much-talked-about National Renewal Fund created in 1991-92 as a social safety net has since been wound up within a few years after its creation.)
Fourth: In a globalised work environment which is highly competitive, many industrial enterprises, being unable to compete, would turn sick (their net worth will be zero) and go in for a liquidation proceeding. Regretfully, in such a situation, the workers fail to get their statutory dues as these do not constitute the first charge on the assets of the company concerned which will be sold as a result of the liquidation process. Such sickness is progressively on the increase as would be evident from the number of cases filed before the BIFR.
It is generally stated that development to be meaningful should be pro-people, pro-Nature, pro-gender and pro-children. ‘People’ connotes a heterogeneous group. For a people-centred development approach, we need to focus on certain target groups such as small and marginal farmers, landless agricultural labourers, share-croppers, rural artisans, fisherwomen and men, handicrafts women and men, collectors of raw hides and skins, flayers and tanners in a leather works unit, beedi rollers, labellers and pockers, building and construction workers, brick kiln and stone quarry workers (including workers in stone crusher units), salt workers, scavengers, headload carriers, loaders and unloaders, hand-cart drivers, hawkers, venders, garment and incuse stick-makers, milk maids, tribal collectors of minor agricultural and forest produce and so on. They are the children of Nature and some of the finest specimen of humanity, simple, hospitable and guileless. They are yet to be polluted by the corrupting forces around them. They sing, dance and mourn. The songs composed by them are the finest outpourings of a sensitive human heart. But being unorganised and ununionised, they migrate and fall willy-nilly victims of the manipulative and fraudulent practices of malfunctional middlemen. The advances taken by them at the time of recruitment bind them indefinitely to the worksite at the destination point. Neither can they individually and collectively bargain for their rights nor can they extricate themselves from the shackles and fetters of tutelage which bind them.
The immensity of the human tragedy which had taken place on December 15, 2013 affecting the lives of two innocent and hapless dadan labourers of South Odisha—Niyal (22) and Dhangda Majhi (32)—is still fresh in human memory. They had to bear the brunt of the middlemen’s wrath for their refusal to submit to a unilateral change of destination point. They were dragged and their right hands were chopped off deep inside a forest in Belpada in Balangir district.
It is inexplicable as to why one set of human beings derive such sadistic pleasure by torturing the lives of other living creatures. By chopping off the hands of two innocent and guileless workers, the middlemen were simply playing on the fears of the SC and ST community (to which the victims belong) that has long lived on the psychosis of such fear. Human appetite for such wanton cruelty is beyond reflection, beyond comprehension and beyond analysis. Public memory for such savagery is so shortlived that it becomes the best defence for the crime committed. It keeps justice at bay and or makes the battle for justice long winded.
That the perpetrators of this banal crime have recently been convicted by the District and Sessions Judge, Balangir is no consolation. We can never bring back what these innocent and defenceless labourers have lost. It is a tragic commentary on the perverse conscience of mankind that while the victims are left alone to nurse their wounds, the perpetrators of crime often escape with impunity and if convicted, the penalty is seldom proportional to the severity of the crime.
The working class in the subcontinent numbering 487 million (seven per cent in the formal and organised and 93 per cent in the informal and unorganised sector) is in the midst of a terrible turmoil. As they enter the market at 12 million annually they are repulsed (as they are either illiterate or unskilled) and they enter the informal sector which is a low skill, low wage, low protection and low or nil social security syndrome. Laws like Payment of Wages Act, Minimum Wages Act, Contract Labour (Abolition and Regulation) Act, Payment of Gratuity Act, EPF and MP Act, ESI Act, Employees Compensation and Maternity Benefit Act may be applicable to them but such conditions are created which make enforcement of laws extremely difficult, the law remains on the statute book as a dead letter and they are denied these statutory benefits.
There are a number of ways by which statutory obligations are either evaded or circumvented by the offending employers. The net consequence which follows is two-fold. One, the workmen are denied their irreducible barest minimum entitlements. Second, if the evasion/circumvention/non-implementation is challenged through a PIL by some well-meaning trade union or NGO, it gets locked up for years in protracted litigations in a court of law. Even when a public interest litigation (PIL) is enter-tained as a WP and directions are issued by the courts, they come back to the very same enforcement machinery whose callousness and insensitivity had warranted the filing of the PIL.
Even though labour inspections constitute a tool of securing compliance from an otherwise non-complying establishment, such inspections are decried on the alibi of Inspector Raj. Therefore, fewer inspections are filed and fewer still are the convictions where a paltry fine is imposed which the offending employer can afford to pay and continues with the unscrupulous game of violation of statutory provisions without batting an eyelid.
Like land for a landless person, wage for a wage labourer is the prime capital, the mainstay wherewithal for meeting sundry needs of a biological existence. Wage constitutes the basis for contribution to the EPF and ESI, the basis for calculation of retrenchment compensation, employees’ compensation, maternity benefit, bonus and the very definition of a workman. Wage could be minimum wage, as notified under the MW Act, or living wage, as in Article 43 of the Constitution and elaborated by the Supreme Court in the Replacos Brett Case (1997). Denial of minimum wage was equated with forced labour as in Article 23 of the Constitution by the Apex Court in Asiad Workers Case (WP No. 8431 date of judgment September 18, 1982). All these notwithstanding, wages are not paid on time, wage periods are not fixed, wage-slips are not issued, weekly off and OT wages are denied to the workmen and the representative of the principal employer seldom remains present at the time of disbursement of wages of contract labour and deductions from wages for payment of middlemen’s commission continue unabated without any qualms.
Safety of workers at the work place is not a routine compliance with the statutory provisions (Factories Act, Mines Act, Plantation Labour Act, Health and Safety of Dock Workers Act) but a recognition of the dignity, sacro-sanctity and worth of human life. Tragically enough, today in the age of science and technology, modernisation and innovation, about 250 million workers all over the world annually become victims of accidents in course of their employment and over 300,000 are killed by these accidents. Taking those who succumb to occupational diseases (pneumoconiosis, silicosis, pleurisy, TB, asthma, bronchial asthma etc.) into account, the death toll would be over one million annually.
Further and equally regrettable, these accidents are seldom reported as required under the law and employees’ compensation is seldom voluntarily deposited with the Commissioner, Employees Compensation.
Like safety, social protection is a tool of recognition of the vast potential of every worker to contribute the best of his/her time, energy and resource to the enterprise on the one hand and provision of a blanket cover in the winter of the life of every workman, regular or casual, permanent or temporary, on the other. It has been viewed, and rightly so, as a tool for the creation of a healthy, stable, productive, contented and motivated work force.
This lofty intention of the framers of the social protection laws has not been, regretfully, translated into action so far.
To illustrate, Provident Fund contribution is just not a scheme of forced saving; it is a sacred trust employers of covered establishments, who deduct the PF contribution from the wages of the employees but who do not deposit them in the corpus of the PF account of the member concerned, will be forfeiting that trust and committing a criminal breach of trust punishable under sections 406 and 409 of the IPC. This is what has actually happened. While we have thousands of crores of rupees of PF arrears in both exempted and unexempted establishments, even the most stringent and deterrent legal and penal action against the offending employers has not produced the desired result.
Children constitute our finest human resource, finest gift of the creator, strongest asset to humanity and our succeeding generation. Childhood is the most tender, formative and impressionable stage in the cycle of human life meant for singing, dancing, painting, cartooning, playing and learning but certainly not a stage for being pushed involuntarily into harsh, arduous, drudgerous and hazardous work. All these notwithstanding, notwithstanding the laudable provision in Article 39(e) of our Constitution, judgment of the Supreme Court in J.P. Uinniknshnan versus State of Andhra Pradesh (1993) (SC 2178), 86th Amendment to the Constitution in 2002, insertion of Article 21A in the Constitution and passage of the Right to Free and Compulsory Education Act, 2009, and its coming into force with effect from April 1, 2010, India continues to have the single largest number of working children in the world numbering 10 plus million (2011 census) (it was 13.6 million in 1981, 11.8 million in 1991, 12.59 million in 2001).
The existence of child labour is being tolerated on one plea/ allibi/ excuse or the other. Even the latest amendment to the Child Labour (Prohibition and Regulation) Act, 1986 in January 2016 has not gone in for universal prohibition inasmuch as it permits children to assist parents in household work outside school hours and family enterprises during vacation. These perverse mindsets have been responsible for not according children their due place in society.
Our children have been victims of bizarre practices like trafficking for forced/ bonded labour, sex abuse, pornography, pornographic performances, drug peddling, forced begging, forced adoption, forced marriage and forced transfer of organs—all of which constitute an ugly and obscene affront to human dignity and decency. Victims of trafficking (boys, girls, women) are traumatised, they lose confidence in others, in themselves; their mental and emotional status becomes one of malevolence, helplessness, dissociation, psychiatric disorders including post-traumatic stress disorder and depressive disorder etc.
What is the way out of this extremely disquieting scenario? We do not have any tailor-made solution to many of the mind-boggling issues affecting labour but an honest attempt may nevertheless be made.
To start with, we have to change the paradigm of development. Development is not to be measured merely by the length of roads, bridges, culverts, flyovers, skyscrapers, satellite communi-cation, transmission towers, hydro-electric projects, thermal and nuclear power plants alone. True development is total development of the human spirit in a climate of freedom and spontaneity. True development is replacement of the culture of acquiescence, conformism, obscurantism and serf-like submissiveness by a culture of objective and dispassionate scrutiny to ensure that our working class become the torch-bearers of a rational and scientific temper while fighting for their in alienable labour rights against tyranny, injustice, and oppression on the one hand and for justice, equality, security, dignity and freedom on the other. True development is replacement of the culture of silence and helpless dependence by a culture of self-reliance. True development is replacement of the culture of intolerance, mindless hatred, cruelty and violence by a culture of self—abnegation. True development is not giving doles of charity but enabling, facilitating and empowering the poor denizens to develop strength, courage and confidence to perceive, internalise and do the right thing in the right manner at the right time. True development, to respond to the queries of an agonized Mohammed Ali as in the introductory paragraph of this piece is replacement of the policies of irrational and unprincipled segregation, differentiation and discrimination by a culture of equality and equity.
The second strategy lies in understanding and translating into action the true import of the theory of surplus value propounded by the philosopher, dialectician and reformer—Karl Marx. Simply stated, every worker through his contribution at the workplace creates a new value. He does not have any control over that value while full control is exercised by those who own capital. Every work is to be performed for a prescribed duration of, say, nine hours a day and 48 hours a week. It is seldom the case that work comes to an end at the end of the period specified by law. The worker continues to work much longer than the one prescribed. A new value is generated on account of such additional input of labour. (Service) What the worker gets, however, is much less than what is due to him as a result of such additional input of labour. That surplus value is appropriated by those who own and invest their capital in the production process. We have to ensure that the surplus value computed in terms of money is paid to the worker as a just and fair recognition of the contribution made by him/ her.
The third strategy is to put a stop to mindsets that labour laws are anti-trade, anti-industry, anti-growth and anti-development. Such a thinking is wholly misconstrued. Laws are enacted by Parliament or the State Legislatures in pursuance of the provisions of the Union list, State list and concurrent list in the Seventh Schedule of the Constitution or directions of the Apex Court or fulfilment of the obligations emanating from ratification of an international treaty. Neither Parliament nor the State Legislatures have any option or discretion not to go in for enactment of a law which is called for in a given situation by the dictates of the Constitution or those of the Supreme Court or compulsions of a ratified international treaty.
Equally obnoxious are the mindsets that certain laws which on account of their age have become archaic or obsolete should be repealed. It may be clarified that a law, like the Payment of the Wages Act, Employees Compensation Act or Pledging of Labour (Children) Act, does not become irrelevant merely on account of its age. Similarly, the contention that labour laws have over-protected labour is ill-perceived and not borne out by facts.
A rational and scientific understanding of laws with development of an element of empathy and sensitivity towards the marginalised is un-doubtedly the surest answer to the malady of the current milieu characterised by a lot of distrust, suspicion and intolerance on the one hand and permissiveness and licentiousness on the other.
It may be noted that culture is a dynamic and not static concept. Issues like minimum age of entry to the world of work/child labour and child marriage have evolved over a period of time from toleration to absolute prohibition. These and many other related issues (child labour, child marriage, denial of access to educational opportunity, obsession with male offsprings resulting in amniocentesis, foeticide, female infanticide, adverse sex ratio etc.) which are irrational ones bordering on cruelty and violence cannot be tolerated any longer on account of social or cultural moorings.
Similar should be the attitude towards a perverse practice in Odisha called ‘bartan’ which is a vestige of customary bondage. Such practices, which are abhorrent to civilised conscience, should be abolished lock, stock and barrel. Equally perverse is the custom ‘dadan’ or advance obtaining in parts of Odisha and elsewhere which robs people of their basic human dignity and binds them to tutelage. This is nothing short of trafficking for forced/ bonded labour prohibited in Article 23 of the Constitution and constitutes a non-bailable offence under the Criminal Law (Amendment) Act of April 2013.
Equally regrettable is the strange attitude of destination States towards inter-State migrant workmen. ‘They come of their own and go back of their own. We are not responsible for their poverty and backwardness,’ is the common refrain which smacks of apathy, insensitivity and cruelty. The destination States need to ponder over and ask themselves: where would they have been and where their agricultural and industrial enterprises would have been but for the ‘blood, sweat and tears’ of inter-State migrant workers? If they get the right answer, they must stop the step-motherly attitude towards the latter forthwith. The country is one and indivisible and none can question the right of people to move from less endowed to well endowed pockets for a slice of the national cake to which they are fully entitled under Article 19 of the Constitution.
Dr L. Mishra, Ias (Retired), is a former Union Labour Secretary.