This article has been written by Vaibhav Mehrishi, Second year student at VIPS, GGSIPU
The world this year witnessed one of the most gruesome pandemics in human history. It caused not only the loss of human life but also the breakdown of economic development. The labour class also became the prey of this pandemic as a result of the economic slowdown. The International Labour Organisation (ILO) stated this pandemic as the worst global crisis since the Second World War. As per Sixth Edition of ILO Monitor: COVID-19 and the world of work, the estimated total working hours in the world for the final quarter of 2020 is 8.6 per cent which means a loss of 245 million FTE (full-time equivalent) jobs. For lower-middle-income countries, the estimated working hours loss for the final quarter is 10.4 per cent which means a loss of 105 million jobs.
According to the World Bank’s country classification based on income for the fiscal year 2020, India falls under the category of lower-middle-income countries. Based on the ILO-ADB joint report, over 4 million youth lost their jobs in India due to the pandemic. Indian economy is predominantly dependent on the informal sector. As per Annual Employment-Unemployment Survey 2019-2020 conducted by the Ministry of Labour and Employment, in India, unorganized workers account for more than 90 per cent of the total workforce of the country. Similarly, the gig economy has generated more than 2 million jobs in India in the past few years.
To restrain the spread of coronavirus, a nation-wide lockdown was implemented. In accordance with the guidelines, all business activities and factories were shut-down because of which more than 80 per cent of unorganized workers lost their jobs. The gig workers also faced a financial crisis, as nearly 9 out of 10 workers earned less than INR15000 per month during the lockdown, compared to 1 in 10 before the crisis struck.
The abrupt COVID induced lockdown became a reason for a nation-wide migrant crisis. The workers during the lockdown period ran out of money and food. The government failed to provide the benefits of their schemes and was also unable to provide good transit service. Conservative estimates of reverse migration were put at 30 million by some labour experts which differs drastically from official estimates.
The migrant crisis compelled the government to re-think the social security schemes in India. As per the recommendations of 2nd National Commission on Labour report 2002, the government of India formulated three labour codes, including the Code on Social Security, 2020 (now referred as SS Code in this article). This article analyzes the challenges faced by the workers during the pandemic, loopholes in social security schemes and whether the government has been able to fill in these loopholes with the labour reforms.
RE-EVALUATING SOCIAL SECURITY SCHEMES:
The unprecedented nation-wide lockdown was just like adding fuel to the fire. The lockdown was hastily implemented without acknowledging the needs of migrant labourers. Although Unorganised Workers’ Social Security Act (UWSSA) was formulated in 2008 to cater to the needs of unorganized workers, it failed to define ‘what and why’ of the schemes. The government was empowered to formulate and notify schemes from time to time, but it never implemented.
The ambiguous and archaic act left unorganized workers helpless amidst this crisis. Although National Commission on Labour mentioned categories of unorganized workers as contract workers, construction workers, small-scale industry workers, beedi and cigar workers, self-employed workers, domestic workers, plantation workers, and other unprotected workers, still some workers were excluded from the labour laws.
The complexity of the labour laws is resolved by the unification of labour reforms, but it is still doubtful in terms of its inclusiveness. The definition of an ‘unorganized worker’ under Section 2(86) only includes self-employed workers, home-based workers, and wage workers. The Standing Committee on Labour, 2020 (SCL) suggested widening the scope of the definition by including gig workers, freelance workers, agricultural labourers, platform workers, and other part-time workers.
The Ministry of Labour, in its clarification, asserted that the definition of ‘wage workers’ is the same as defined under UWSSA, 2008. So the committee recommended removing the provision of deciding monthly wage amount for wage workers by the central government and state governments (under UWSSA, 2008) as it will be unfeasible to define the monthly wage for a domestic worker employed by a single employer. This will ultimately restrict the implementation of social security schemes.
The provisions regarding ‘gig workers’ and ‘platform workers’ are quite indefinite and have a wide-ranging concept. It may result in the exclusion of a specific category of workers. Thus, the SCL pointed out that definition of ‘gig-workers’ must include temporary work, part-time work, disguised employment relationships and dependent self-employment, etc. as defined by International Labour Organisation as Non-Standard Form of Employment.
Similarly, to avoid expulsion of platform workers, the SCL recommended to include work, employment, service and other activities and to incorporate a provision that authorised the government to include any other category of work in future.
Unavailability of cash in hand during the pandemic deprived the workers of fulfilling their needs like food and shelter, and in order to outlive these crises, they started returning back to their homes. Even after the joblessness, the workers could have sustained with the help of ‘unemployment allowance’, if there existed such a provision.
The Employment State Insurance Corporation (ESIC) provides ‘unemployment allowance’ under the ambit of Rajiv Gandhi Shramik Kalyan Yojana and Atal Beemit Vyakti Kalyan Yojana (ABVKY). The provision for unemployment allowance has not been provided for the unorganized workers which is a gross violation of ILO’s Employment Policy Convention, 1964 (No. 122). It defines protection against unemployment as a right of the worker. Apart from that, the ESIC coverage has been defined under Schedule 1 of the Code. It restricts the scope to only those establishments that have ten or more workers employed.
Applying an upper limit may exclude workers working in establishments having less than ten workers employed. The SCL suggested that the provision permitting membership in ESIC on a voluntary basis must be omitted. The workers need to enter into an agreement with the employer in order to avail the benefits. Thus, the committee recommended making it mandatory to achieve the desired outcome.
The joblessness and no cash in hand left workers abandoned. According to the Chief Labour Commissioner’s report, there were 26 lakh migrant workers stranded during the lockdown period. The report claimed that 10 per cent of these workers were staying in relief camps, 43 per cent were staying at their workplaces, and 46 per cent were staying in other localities where workers were jam-packed. This indicates that loss of livelihood not only deteriorated their standard of living but also increased their chances of becoming a prey to the virus.
The migrant crisis signifies the need for universal rental housing schemes for the migrant/unorganized workers. The SS Code incorporates the provision of housing schemes for unorganized workers under Section 109(2), but the SCL observed that it had been incorporated on the same grounds of UWSSA, 2008. The Code empowers the government to notify schemes in future. Thus the scheme has been introduced in a recommendatory manner and will not ensure legally binding enforcement.
The inter-state migrant worker movement resulted in the death of approximately 971 workers. These deaths were non-covid deaths which were caused due to starvation, accidents or heat strokes. The central government claimed in the parliament that they do not have any data on the deaths of migrant workers.
The provision for registration of workers was introduced under (UWSSA), 2008. Section 9 of this act incorporate ‘Workers Facilitation Centres’ for registration, but these centres were overcharged with activities like awareness programmes and regulating application process. The WFC’s could have been confined to the registration process. Thus the act failed to capitalize on the use of facilitation centres. A similar process has been adopted in the present Code under Section 112, thus repeating flaws of old laws.
THE WAY FORWARD:
The pandemic has outrightly impacted the socio-economic circumstances in the country. The labour class has been one of the most worst affected sections of the society. The pandemic turned out to be an eye-opener, and highlighted numerous lacunae in the labour laws and need to modify these laws. The government with the labour reforms endeavoured to replace the archaic laws with the modified laws but lacked somewhere in its definitiveness.
In the author’s opinion, the government must reconsider the recommendations made by SCL and NCL to promote definitiveness and inclusiveness in the code. In other words, more clarity is required in provisions relating to gig workers, platform workers and unorganized workers.
The author believes that the lack of an effective database system was the major cause of migrant workers’ vulnerability during the pandemic. The database of migrant workers should be the foundation of any social security schemes. The government should strengthen the registration of workers at the local level in every state comprising of municipalities and ward offices. The registration must encompass the different patterns of migration like circular, long-term, seasonal migration, and intra-state migration.
Portability of social security schemes helps to disseminate the benefits in pandemic like situations. Portability ensures access to social security benefits to inter-state migrant workers not only in the origin state but also in the destination state. ‘One Nation One Card Scheme’ has been introduced to promote portability but it ran into trouble with its mandatory Aadhaar requirement.
The pandemic is going to change the future of jobs in an economy. The lockdown emphasised the need of digitalised services like Swiggy and Zomato. Thus, the gig economy is going to grow more in the upcoming years, stressing upon the need of an effective legal framework for it. In my opinion, a separate legal framework regarding the gig workers or platforms workers must be formulated to ensure comprehensiveness. This will also ensure adherence to the laws by digital platforms.
Thus, it can be articulated that Code on SS do provide a framework intertwined with numerous provisions of old laws, but a lot more needs to be done to prevent the next migrant crisis from brewing.