The Supreme Court has dismissed a Special Leave Petition filed by the Indian National Trade Union Congress (Dubey Group) over representation of individual trade unions affiliated to INTUC in an organisation or industry.

Upholding the Kolkata High Court verdict passed on February 10, 2023, the Bench of Justice Sanjay Kishan Kaul, Justice Manoj Misra and Justice Aravind Kumar on Wednesday allowed the SLP filed in the matter.

The Apex Court further permitted the Indian National Mineworkers Federation (Respondent no.1) to participate in the Joint Bipartite Committee for the Coal Industry (JBCCI)-XI as the communication issued by the Ministry of Labour and Employment on October 18, 2021 clarified that the Office Memorandum dated January 4, 2017 was not against the representation of individual trade unions affiliated to INTUC in an industry or organisation.

The Apex Court said it did not find any justification in depriving members of the petitioner Union, which concededly commanded the majority of employees of WC from participating in negotiations and proceedings of the statutory and non-statutory Committees of the Western Coal Fields Limited.

Noting that the communications dated January 11 and 28, 2017 were issued by the Ministry of Coal in view of the interim order of the Delhi High Court, which had ceased to operate now, the Supreme Court stayed the communications till final disposal of the petition.

It said it did not find any justification in depriving members of the petitioner Union, which concededly commanded the majority of employees of Western Coalfields, from participating in negotiations and proceedings of the statutory and non-statutory Committees of the Western Coal Fields Limited.

The Bench allowed the petitioner/Union be to avail the check-­off facility till disposal of the petition and negotiate with respondent no.4 (­Western Coal Fields
Ltd).

The petitioner union shall be entitled to be members of the statutory and non-­statutory committees of respondent no.4­, added the Apex Court.

The petition had contended that JBCCI was constituted by Coal India Limited (CIL) with the approval of the Government and in accordance with the guidelines issued by the Department of Public Enterprises.

The JBCCI was a committee consisting of the representatives of management and Central Trade Unions operating in the coal industry, which negotiated and decided the wages/ salaries and other allowances for the workers of the coal industry.

In 1973, a Joint Bipartite Wage Negotiations Committee for the coal industry was set up, which later came to be known as JBCCI. The tenure of one JBCCI existed till the next committee was constituted, it added.

Senior Advocate S.B. Upadhyay and Advocate-on-Record (AOR) Neeraj Shekhar appeared for the petitioners, while Senior Advocate Sanjoy Ghose, Advocate-on-Record (AOR) Mayuri Raghuvanshi and Advocate Vyom Raghuvanshi represented the Indian National Mineworkers Federation, (Respondent No. 1).

Case title: Indian National Trade Union Congress (Dubey group) vs Indian National Mineworkers Federation & Ors

By Shivanand Pandit

Around the world, stable business sustainability has been fatally hit by the deadly pandemic. The economic disaster shaped by the contagion has placed the livelihood of billions of people in a hazardous position. Such circumstances call for substantial reforms by the government such as strong employment strategies and wide-ranging social protection schemes to safeguard the functioning of business entities and the health and welfare of every worker. For that reason, there is a need to strengthen diverse or old labour laws and reinforce reforms.

With the government preparing the platform for the four new labour codes, there are signals of a staggered execution with an early launch of two codes—The Code on Wages and The Code on Social Security. These are expected to be followed by the other two—The Industrial Relations Code and The Occupational Safety, Health and Working Conditions Code—at a later juncture. 

Parliament has passed the three labour codes in the pandemic-induced short duration monsoon session held in September 2020. The Industrial Code Bill, 2020, the Code on Social Security Bill, 2020, and the Occupational Safety and Health and Working Conditions Code Bill, 2020, are the new varieties of labour codes. Earlier in August 2019, Parliament had passed the Code on Wages.

For nearly thirty years, India has lacked robust labour reforms. This has called for radical changes in the country’s antiquated labour laws. Since 2004, UPA-I and UPA-II tried to execute labour reforms, but strong political opposition paralysed their intention. Although Yashwant Sinha, who was the finance minister in the Atal Bihari Vajpayee government, had proposed few modifications, massive criticism compelled him to retrace his steps. Even the Narendra Modi government having a comfortable majority in the Lok Sabha took a long time to alter the nation’s labour rules. After a long wait, some labour laws have ultimately been introduced and many central laws have been included in the new codes.

The Modi government has united 29 central labour laws and around 100 state laws that are akin to several central laws into four codes on wages, social security, occupational health and industrial relations. Although it declares that the four codes are the prime movers in the process of labour improvements, the central trade unions have organized many general strikes against the codes until now, asserting that the codes will result in snatching away whatever little social and economic security is left in the employment sector. The farmers’ associations had also favoured the trade unions in their protests and objections. The employers’ associations, too, had mixed reactions towards the codes.

The Opposition-governed states have also said that the codes are “poorly drafted”. The Opposition had protested against the way the codes were passed in Parliament in just two days without much debate. Kerala Labour Minister V Sivankutti said in the Kerala assembly that the state prepared the draft rules cautiously as many of the provisions in the codes are “anti-worker”. Industry experts were optimistic that the codes would come into effect on April 1, 2022. The government has stated that the postponement in execution is due to the delay in outlining rules by the states. The government also said that it has offered assistance to the states so that the codes can be implemented from July 1, 2022.

Recently, Union Minister of Labour and Employment Bhupender Yadav mentioned that only a few states have not yet outlined the rules. As per the recent report, till now 24 states have issued draft rules for all the four codes. The labour ministry has indicated that it would like to execute the codes over the next few months and assures a mid-year rollout. Minister of State for Labour and Unemployment Rameswar Teli had recently notified the Rajya Sabha that, as per the existing report, 31 states and Union Territories have pre-issued the draft rules under the Code on Wages, 2019; 26 on the Industrial Relations Code, 2020, and the Code on Social Security, 2020; and 24 on the Occupational Safety, Health and Working Conditions Code, 2020.

The delayed implementation may be construed as “preparatory time” taken by the industry to bring about an attitudinal shift towards employee welfare, rework human resource policies and plan the consequential impact on operating costs. However, a major worry is that with the 2024 general elections not too far away, the rollout of the codes should not be deferred. The codes should be implemented at the earliest so that the advantages in terms of reinforcement of the workforce, ease of doing business and streamlining of the controlling ecosystem can start to flow in. Any amendments that are required can be done once the codes are implemented.

To a large extent, the ratifying of labour codes was viewed as a breakthrough that came after several years of deliberations between the government, industry, trade unions, and other patrons. The new codes introduced may fabricate a novel setting for job creation due to the mass applicability of the law to approximately 580 million workers along with other policy reforms such as Shram Suvidha Portal, Micro Units Development and Refinance Agency, Startup India, Make in India, Skill India, digitization of labour law compliances, etc. The involvement of the female labour force is a mainspring for any nation’s rapid growth. For a long time, the dwindling women’s workforce in India has been a matter of grave concern. By allowing the employment of women in night shifts for all nature of work, the new labour law has brought in major change.

The induction of new labour reforms has been welcomed by the business community and many believe that restructurings will enhance entrepreneurship and investments which are vital for stimulating India’s economy. According to the Confederation of Indian Industry, all codes are reformist and aid to construct a future of work that is securer, rational, simpler, and more buoyant. It has also mentioned that the reform measures deal with the fundamental needs of the revival of the economy and eradication of barricades to growth of business firms.

Numerous transformations introduced in the inspection rules, specifically a web-based randomized electronic inspection scheme, jurisdiction-free inspections, calling of information electronically for inspection, compounding of offenses, etc are progressive. In addition, several registers, returns and forms can be filed and maintained electronically in a single template. Many corporate entities will profit by this move.

At the same time, the codes have a dark side too. They have bestowed excessive autonomy on establishments relating to the appointment and dismissal of employees which will adversely affect the genuine claims of trade unions. Enhancement of the threshold of standing orders will dilute the labour rights for workers in minor business firms having less than 300 workers and this indicates that the government is very eager to give enormous volumes of elasticity to the employers in terms of hiring and firing and employers can misuse this freedom of dismissal or retrenchment for any economic reasons. This will lead to widespread destruction of employment security and safety. Stretching the lawfully allowable time frame before the workers can go on a legal strike will make the legitimate strike practically dreadful and more challenging.

Moreover, these codes have given massive liberty to governments to exempt industrial units from the ambit of the law and define the boundaries within which they will perform their business activities. The strong evidence for this is how Uttar Pradesh lately attempted to exempt employers from many labour reforms by a decree. The codes do not forbid many erroneous actions, like not keeping a register and allow compounding penalties to be paid instead. Expansion of the scope of codes to all segments of workers is also dubious. The codes are not focused on reducing the number of operational laws recognizing ongoing actualities.

During the next ten years, India is projected to have the largest working populace in the world. About 10 million youths will enter the workforce per annum. The employment capability of the industry is indispensable to unleash the true latent of such a robust workforce. Therefore, instead of beating the drums, the government must introduce utilitarian labour laws to address the complexities and managerial encumbrance in the labour regime. The new amendments prescribed in the labour laws are not a sufficient stipulation for accomplishing the envisioned objectives. Credible changes are necessary to lower the cost of factory land, transport and electricity for industrial consumers, streamline elucidation of tax and other decrees, preserve a suitable exchange value for the rupee, etc. Failure to do all this will have the opposite of the anticipated outcome and workers’ earnings will get pressed down completely.

It is time to recognize that the issue of “employee welfare” is closely connected to the nation’s health. Undue delay in the implementation of the codes and uncertainty about the “effective dates” will defer the gains for the employees and very likely make it difficult for industries to adopt the new codes in a timely manner. 

—The writer is a financial and tax specialist, author and public speaker based in Margao, Goa

An intervention application has been filed by several Trade Unions before the Supreme Court opposing the writ petition filed by Nagreeka Exports Limited to set aside orders from the Ministry of Home Affairs (MHA) and Maharashtra Government that full wages be paid to workers during the lockdown

The writ petition was filed by Nagreeka Exports limited for quashing of Government Order dated 29.03.2020 issued by the Ministry of Home Affairs, Government of India and subsequent Order of Government of Maharashtra dated 31.03.2020, directing payment of full salary to employees and workmen who are unable to work in industries and establishments inoperative due to the ongoing COVID-19 lockdown.

The intervention application has been filed by some of the largest Trade Unions in Maharashtra and the Maharashtra chapters of some of the largest Trade Unions in India , like HMS, AITUC, CITU, INTUC, etc. who are interested in the present writ petition as the issue of payment of wages during the present nationwide lockdown and closure of workplaces directly affects the sustenance and livelihood of its members. The applicants have also stated they wish to respond with a complete reply before the Court when the stage arises.

According to the applicants, the impugned order has been passed under the Disaster Management Act, 2005, which provides for the passing of orders in an emergent situation to deal with a disaster, and such a disaster clearly exists giving State the power to issue such an order under the said Act. In the present situation, most workers cannot survive such a lockdown without wages, which is why the Government has deemed it necessary to have a lockdown, clearly as a measure to make the lockdown effective. The government order merely recognizes the right of the workers to get their making the authorities responsible to see that such wages are paid.

The application also states that the contract of service of these workers is valid and subsisting during the lockdown as well, and therefore these workers are entitled to wages under such a contract. For workers where such contracts do not subsist, the Government has the right to create a contract or to create such conditions in an existing contract of service as may be required in the present situation under labour law and especially under such an emergent situation under the Disaster Management Act, 2005. Even, under the Industrial Disputes Act, 1947 wages of workers cannot be rescued without following proper procedure of law.

The application states that these workers are also faced with extra expenses for extra sanitation necessities and hygiene products such as soaps, masks, gloves etc. for adequate personal protection. Despite the closure of most functions, all expenses of the workers remain fixed and unchanged, which include school fees, rent, loan repayments, electricity, food, etc. Most of these workers are poor with barely any savings, being forced to borrow money from money-lenders.

According to the applicants, the workers in the present situation, are ready to work but are not being allowed to, and they do not deserve to be punished for the same, and any change of service conditions of the workers without following proper procedure under the law and an arbitrary pay cut would be illegal. The interests of the most affected stakeholders for whom the impugned Government Order and Resolution was passed, which are the workmen of the country and the State of Maharashtra, must be considered.

It is wrong to state that there is no intelligible differentia in classifying workers into a class. When the Legislature of our country, and all countries in the world have done the same throughout history by enacting legislation to afford protections to workers (such as the Industrial Disputes Act,1947 itself) which are not available to other citizens or employees of the country.

The application adds that the Government Resolution dated 31.03.2020 directing employers to refrain from deducting wages during the lockdown period are appropriate measures that are meant to safeguard the basic rights and sustenance of poor and neglected workers considering the social and economic hardships caused by the COVID-19 lockdown. 

The applicants have prayed to be permitted to intervene in the writ petition and address and assist the on the legal issues arising in the petition.

-India Legal Bureau