Unorganized Labour Welfare Projectreport Phase-Ii

UNORGANIZED LABOUR WELFARE

PROJECTREPORT

PHASE-II

(Assessment of Core Issues of Unorganized Labourers in 20 Districts of 10 States of India and Creating a Platform for Rightful Intervention in Securing Their Rights)

SUBMITTED TO

CSR HEAD

SUBMITTED BY

(Swami Agnivesh) Chairperson BandhuaMuktiMorcha 7, JantarMantar Road, New Delhi-110001 (India) Phone: +91-11-23363221, 23367943 Mob: +91-9810976705, Fax: +91-11-23367946 E-Mail: [email protected] www.bondedlabour.org

PREFACE

Inclusive Growth and Just Society is an important facet of Indian democracy. Victims of Bonded Labour system are one of the most exploited sections of the society, who have been deprived of their basic human rights and suffered considerably for a long stretch of time .Swami Agnivesh, the founder chairperson of BandhuaMuktiMorcha (BMM) has been at the forefront of working for the upliftment and welfare of the victims of bonded labour system and effective abolition of child labour in India for the past four decades.

In this backdrop, ONGC awarded BMM the project „to assess core issues of unorganized labour in 20 districts of 10 States of India and create a platform for rightful intervention in securing their rights‟. With these objectives the second phase of the project consisted of organizing meetings with Panchayati Raj institutions at district level; organising Legal Services Authority meetings both at National and State levels; and reaching out to public leaders like MLAs and MPs both at the State and at National Level. Besides, BMM was also mandated to organize a one day National Seminar on “Right to Work and Living Wage”, drawing on eminent personalities and activists from all sectors, to educate and create a network for the welfare of the poor, deprived and disadvantaged sections of the society.

It is my pleasure to report to you that BMM has succeeded in all these objectives. Our national seminar was a huge success, drawing people like former Chief Justice of India, Justice T.S. Thakur, General Secretary of CPI (M), Shri Sitaram Yechury, among many others. Even religious heads of different faiths voiced their support for the poor and deprived sections. Thus, it was a mission well accomplished. A summary of all the activities is listed in the present report, with visual evidence in the form of photographs.

I am also happy to report that our various activities were reported in both the national and local media, whenever and wherever the activities took place from time to time. With this, I hope our association for remainder phases of the project would continue unabated. We look forward to a strong partnership with ONGC in carrying this noble cause to logical and fruitful conclusions.

CONTENTS

 PREFACE

I INTRODUCTION

II NATIONAL SEMINAR- “RIGHT TO WORK AND LIVING WAGE” III MEETING WITH THE PANEL OF PARLIAMENTARIANS

IV MEETING WITH NATIONAL LEGAL SERVICES AUTHORITY V MEETINGS WITH STATE LEGAL SERVICES AUTHORITIES

VI MEETINGS WITH MLAS IN 10 STATES

VII MEETINGS WITH DISTRICT LEVEL PANCHAYATI RAJ INSTITUTIONS REPRESENTATIVES

VIII MEETINGS WITH NATIONAL PANEL OF SENIORBUREAUCRATS AND REVIEW

 ANNEXURE-1- LABOUR CODE ON SOCIAL SECURITY, 2018

 ABOUT BANDHUA MUKTI MORCHA (BMM)

I. INTRODUCTION

Is right to work a human right?

Article 23.1 of the Universal Declaration of Human Rights states: Everyone has the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment.

International Legislations:

The Right to Work is an important Human Right which has been explained in Articles 23 and 24 of the Universal Declaration of Human Rights. Everyone has the right to work and free choice of employment in just and favorable conditions.

 Everyone has the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment  Everyone, without any discrimination, has the right to equal pay for equal work.  Everyone who works has the right to just and favorable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.  Everyone has the right to form and to join trade unions for the protection of his interests.

PART III Article 6 The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.

The steps to be taken by a State Party to the present Covenant to achieve the full realization of this right shall include technical and vocational guidance and training programs policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual.

Article 7 The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favorable conditions of work which ensure, in particular:  Remuneration which provides all workers, as a minimum, with:  Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;

 A decent living for themselves and their families in accordance with the provisions of the present Covenant; Safe and healthy working conditions;  Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence;  Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays

What does the Indian Constitution say about the Right to Work?

The Indian Constitution refers to the right to work under the “directive principles of state policy”. Article 39 urges the State to ensure that “the citizens, men and women equally, have the right to an adequate means to livelihood”, and that “there is equal pay for equal work for both men and women. “Further, Article 41 stresses that “the State, shall within the limits of its economic capacity and development, make effective provision for securing right to work...”

Socialist Principles – Articles 38, 39, 41, 42, 43 and 45

Article 38: It directs the State to secure and protect a social order which stands for the welfare of the people.

Article 38(2): It directs the State to strive for minimizing inequalities in income.

Article 39 (a): Citizens (men and women) shall have the right to an adequate means of livelihood. Article 39 (b): Ownership and control of material resources of the community shall be distributed to as to sub-serve the common good.

Article 39 (c): Economic system shall operate in a manner that does not result in the concentration of wealth and means of production to the common detriment.

Article 39 (d): Equal pay for equal work, without any sex discrimination.

Article 39 (e): Health and strength of workers and tender age of children must not be abused.

Article 39 A: Equal justice and free legal aid.

Article 41: Right to work, to education and to public assistance in certain cases.

Article 42: Provision of just and human conditions of work and maternity relief.

Article 43 A: Participation of workers in management of industries.

Article 45: Provision for childhood care and education of children below age of six years

The Role of National Human Rights Commission (NHRC)

The National Human Rights Commission ever since its inception (1993) has been concerned about the Right to Work with equality and dignity. The Commission examines and monitors the implementation of various provisions of the Minimum Wages Act and the Mahatma Gandhi National Rural Employment Guarantee Act, besides reviewing the policies and programs particularly pertaining to women.

Wages have been classified into three categories:

(1) Living Wage

'Living Wage has been defined differently by different people in different countries. The best definition is given by Justice Higgins which reads "Living Wage is a wage sufficient to ensure the workman food, shelter, clothing, frugal comfort, provision for evil days etc. as regard for the skill of an artisan, if he is one". According to Fair Wages Committee Report: "The living wage should enable the male earner to provide for himself and his family not merely the basic essentials of food, clothing and shelter but a measure of frugal comfort including education for the children, protection against ill-health, requirement of essential social needs and measures of insurance against old age." Thus living wage means the provision for the bare necessities plus certain amenities considered necessary for the wellbeing of the workers in terms of his social status.

Article 43 of the Indian Constitution states that the State shall endeavour to secure by suitable legislation or, economic organization or, in any other way, to ensure that all workers earn a decent living wage, enjoy a minimum standard of life and have full social and cultural opportunities.

(2) Minimum Wage

The minimum wage may be defined as the lowest wage necessary to maintain a worker and his family at the minimum level of subsistence, which includes food, clothing and shelter. When the government fixes minimum wage in a particular scheduled employment, the main objective is not to control or determine wages in general but to prevent the employment of workers at a wage below an amount necessary to maintain the worker at the minimum level of subsistence.

Minimum wage in a country is fixed by the appropriate government in consultation with employees‟ organizations and trade unions. The law relating to the minimum wage either states clearly the minimum wage or, the determination of the minimum wage is left to an administrative commission which from time to time determines the minimum wage according to the varying economic conditions. For example-variations in the price level should be compensated with the variation in the wage rates, because the prime aim of the minimum wage law is to cover "minimum living cost." The authority entrusted with the task of fixing minimum

wage should consider such factors as local economic conditions, transportation costs and the size of the units in the industry in fixing minimum wage.

The Government of India passed a Minimum Wage Act in 1948 under which farm labourers‟ were to be paid a minimum wage between 66 paisa and Rs. 1.50 per day, keeping in view local costs and standards of living. Since conditions in various parts of the country were different, the law allowed different rates of wages to be fixed differently in respect of different scheduled employments in a poor country such as India. In practice, it was very difficult to enforce minimum wage effectively.

Minimum wages legislation is supposed to have the following benefits:

(i) The law should prevent unscrupulous employers from exploiting ignorant persons who have very little bargaining power. (ii) The law should abolish the competition of the lower strata of workers with the upper grades, and prevent depression of wages. (iii) The productivity of industry is increased by foreign employers who use the most efficient production methods and the most modern equipments to cut down on their expenditure. At the same time the workers are stimulated to increase their efficiencies, but without adequate compensation in return. (iv) Employers with high standards are protected against underselling, by avoiding competition with employers with low standards.

But some critics of the minimum wage assert that it is impossible for a group of men to control the wages of labour by law because wages depend upon the supply and demand of labour. Minimum wage is a heavy burden on the society because persons unable to earn a living wage will be unemployed whereas earning of small wage is preferred to idleness or living on charity. Minimum wage law is not wrong if they are wisely framed and applied. It is perfectly feasible to fix a minimum wage and forbid employment below that figure. Some industries that cannot pay the minimum wages should be forced to wind up. Because what is the use of an industry, if it cannot even pay minimum wage to its workers. Therefore, all industries should be obliged to pay the statutorily notified minimum wage.

(3) Fair Wages

A fair wage is something more than the minimum wages. Fair wage is a mean between the living wage and the minimum wage. While the lower limit of the fair wage must obviously be the minimum wage, the upper limit is the capacity of the industry to pay fair wage which compares reasonably with the average payment of similar task in other trades or occupations requiring the same amount of ability. Fair wage depends on the present economic conditions as well as on its future prospects. Thus the fair wages depend upon the following factors:

 Minimum Wage  Capacity of the industry to pay  Prevailing rates of wage in the same or similar occupations, in the same or neighbouring localities

 Productivity of labour  Level of national income and its distribution.  The place of the industry in the economy of the country.

II. NATIONAL SEMINAR - “RIGHT TO WORK AND LIVING WAGE”

Under the aegis of BandhuaMuktiMorcha (BMM) a one day National Seminar was organised on 24th July 2018, from 10AM to 6PM, on “Right to Work and Living Wage” at Constitution Club, New Delhi, with support from ONGC.

(Photo: Justice Thakur giving the Keynote Address)

Justice T S Thakur, former Chief Justice of India, gave the key note address. In his address he exhorted the audience that there is no dearth of laws in this country on any issue, but the problem is of implementation. Giving the example of “Right to Education”, he said that though the Constitution guarantees it to all children between the age group of 6 to 14 years, it still remains to be implemented in spirit at the ground level. He referred to various Constitutional and legal provisions regarding Right to work like- Universal Declaration of Human Rights, expanding the scope of Article 21 of the Constitution by Supreme Court of India and even Directive Principles of State Policy (DPSPs). According to Article 41 of the Constitution, the government is requested to make provisions for right to work and assistance in case of unemployment, but there is a condition that it will do so within the limits of its economic capacity. Today, there are more than 40 crore population working in the unorganised sector in India. He suggested that next step should be to organize and educate the unorganized workers in specific sectors like domestic workers, dhaba associations, salesman and salesgirl working in shops and so on and so forth. If all of them get united, they have the power not only to change, but also to shake the very conscience of the nation. Organizations like BMM can become the voice of those who have generationally been exploited and suppressed, affecting their right to a dignified and decent life.

(Photo: Swami Agnivesh welcoming the Chief Guest Justice T.S. Thakur, former Chief Justice of Supreme Court of India) ````````````````````````````````````````````````````` Drawing the contours of the meeting, Swami Agnivesh, Chairman of BMM, argued that even though the State guarantees minimum wage, it is not implemented at the ground level even by government agencies. Giving the example of MNREGA, Swami ji drew the audience attention to the stark realities at the ground level. While addressing the issue on ensuring minimum wage and the clause stating State can give less than the minimum wage under MANREGA, he said it seems that above mentioned clause is diluting the very foundation of MNREGA. He said that out of 35 states and Union territories more than 25 states are paying less than the minimum wage, notionally Rs. 45 a day on an average. How the government expects a family to live with such meagre earnings? Moreover, MNREGA guarantees a minimum of 100 days of work in a year, but on an average it is not more than 42 days. With this backdrop, he questioned whether we are doing enough for the upliftment of the “poorest of the poor”, as envisioned by the Father of the Nation Mahatma Gandhi or our great social visionary Pandit Deen Dayal Upadhayay. He suggested that when a fourth grade government employee receives around Rs. 24000/- per month with more than 30 years of job security and other benefits, should it not become the standard for all the unorganised labourers across the country? There is a norm for payment of minimum wage by hour in civilised societies. There is a writ petition in the Honourable Supreme Court even in that regard. Why then the government can not throw its weight behind that to make it a law? Even if India is the fastest growing economy in the world, it still needs to a do a lot more on the Human Development Index front.

(Photo: Shri SitaramYechury, General Secretary CPI (M) giving the valedictory address)

Shri Sitaram Yechury, Secretary General of CPI (M) gave the valedictory address at the seminar. In his speech he urged the audience that Swami ji has taken up a great cause. CPI (M) was at the forefront in demanding right to work in 2004, which paved the way for national rural employment guarantee scheme. But this cause cannot be served by a single NGO or a group of NGOs. This cause can only be served by a larger political movement, drawing people from across political lines. He said that only 6 percent of the workers work in the organised sector and about 94 percent of the workers are in the unorganised sector. If we can organise these 94 percent working in the unorganised sector, we can create a great political movement. About 73 percent of GDP is enjoyed by 1 percent of the population, rest 99 percent survive on just 27 percent. Therefore the question is not of resources, but of distribution, of distributive justice. Hence the urgency for making Right to Work and Living Wage a fundamental right for all 50 crore unorganised sector labour.

Shri Suredra S. Rathi, Director NALSA, also emphasized on the problem of implementation of laws. He said that more the laws, more the lawlessness. It affects court‟s time, money and resources in a negative way. Giving the example of a case, where two labourers had died in gutters in Delhi, he highlighted how different government ministries tried to shirk responsibility by engaging in the blame game. He informed the audience about his organisation NALSA, which has been organising legal services camp to address the issues faced by the unorganised sector poor labourers. NALSA and its associated organisations at the State level (SLSA) are making an effort to take justice to the weaker sections of the society. If the poor cannot afford to get justice due to time, resources or knowledge constraints, it is the duty of justice to reach out to them. He further added that till 30th June NALSAs had organised 758 camps covering 25 lakhs labourers, out of which 9-10 lakhs labourers were from the unorganised sector.

(Photo: Distinguished audience paying full attention)

The gathering was also addressed by former Union Labour Secy Dr. L. Mishra; Dr. Mishra highlighted the importance of minimum wage for various categories & sub-categories of workers in the unorganised sector. He also narrated at length the current scenario where the provisions of Payment of Wages Act, Minimum Wages Act, Contract Labour (Regulation & Abolition) Act, Inter-State Migrant Workmen (Regulation of Employment & Condition of Service) Act, Building and Other Construction Workers (Regulation of Employment and Condition of Service) Act, were being flagrantly violated. He also referred to the salient principles behind fixation, review, revision and enforcement of minimum wage as laid down by the Hon'ble Supreme Court in series of judgements such as Asiad Workers case, Bandhua Mukti Morcha case, Reptacos Brett case, Salal Hydro Electric Dam case, Sanjit Bankar Ray of SWRC, Tilawnia case etc. and how the same were being honoured in the breach. The only way out of this regime of lawlessness, callousness and sensitivity is organisation of the unorganised through which the voiceless can get a collective voice and bargaining strength to claim, bargain and realise their irreducible barest minimum entitlement as laid down in the law and judgements of the court"

Shri Subhash Bhatnagar, co-ordinator- National Campaign Committee for Central Legislation on Construction Labourers (NCCCL), in his address talked about the importance of registration for unorganised sector labourers and the need for them to know the right clauses under which they can benefit from various governments‟ programs.

Director General Labour Welfare (DGLW) cum Joint Secretary Shri Rajit Puhani, talked about various welfare programs run by the government for the welfare of unorganised labour. Awareness generation at the state level and survey for identification programs at the district level is being supported by the government, for which not many proposals have come.

Social activist Shri Ram Charan Joshi talked about the changing nature of the political economy. He said that the nature of unorganised sector labourers has changed, resulting in an increase in forced labour, child labour and women trafficking like problems. In the present political

economy, spending on social sectors has been reduced, which has led to change in the nature of ways of exploitation of labourers. From a Welfare State‟ now the government has become a „facilitator‟, which has resulted in relaxation of labour laws, leading to attrition of labourers at the will of the employer.

(Photo: Audience, from the other angle)

The seminar was also addressed by Senior Supreme Court advocate Shri Mahmud Prachaji, former assistant labour commissioner Shri C.P. Audichyaji, Ms.Bharati from ILO, Shri Prem Bahukhandi from Friends of Himalayas, Ms. Padmini of BMM Mahila Morcha, and Col. Jaiveer Singh ji of Swaraj Aandolan, among others. Shri Mahmud Pracha informed about the upcoming legislations in the Supreme Court related to the unorganised workers. Shri C.P. Audichya educated the audience about the various laws related to Right to work and living wage, and distinctions between Right wage, Living wage and Fair Wage.

Shri Prem Bahukhandi emphasized the need to break the „Vicious Cycles of Poverty‟, which shackles people to live a life of misery for generations, in order to meet their basic needs. One generation after the other is forced to take up any menial job to support basic needs of the immediate family. Therefore, Right to Work should be guaranteed in tune with the Right to Education and Right to health. Ms. Bharti in her address talked about ILO‟s efforts in dealing with the labour issues in the country. Ms. Padmini Kumar, raised the issue of migration and suggested that we should explore the possibility of raising awareness about labour rights of migrant labourers in schools as they are the front from where various working children and their parents can get benefitted. Col. Jaiveer Singh emphasized that it is the farmers and peasants who are the builder and feeder of the country; therefore it is important that they should not fight each other.

The gathering was also addressed by a number of religious leaders from different faiths like Goswami Sushilji Maharaj, Founder of Bhartiya Sarva Dharma Sansad, Swami Vivek Muni- Disciple of His Holiness Acharya Sushil Kumar JiMaharaj, Maulana A.R. Saheen Qasmi, General Secretary-World Peace Organization, Dharam Singh Nihang Singh- Founder of Sach Khoj Academy. All the religious leaders also exhorted the need to work for the welfare of the unorganised sector labour. Goswami Sushil ji talked about the need for all religions to work together for the betterment of mankind and the role of the Vedas in this regard. Vivek Muni ji emphasized the need „to live and let others live‟. He appealed to the audience to keep the environment clean and not to use plastics. Maulana Qasmi in his speech said that untill the labourers change themselves, they cannot get their due. Therefore, it is incumbent for labourers to first change themselves. Sardar Dharam Singh said that the biggest threat to mankind is from human being themselves, as all human rights violations are done by latter only. Therefore the mission of his organisation is „Truth Seeking‟.

The seminar was coordinated by Shri Vithal Rao ji, General Secretary of BMM. He also endorsed the need to work for the welfare of the unorganised sector labour. He informed the audience that this was Swami Aginvesh‟s first public appearance after the brutal attack on him at Pakur, Jharkhand on 17th July. He endorsed Swami ji contention that the attack on him in Pakur was related to usurpation of tribal‟s resources, as the State wanted to hand-over 350000 acres of land to the corporates, for which it has signed more than 210 MOUs with the capitalist class, without any consideration for local inhabitants, who have owned and subsisted on these resources for generations. The seminar was attended by a number of dignitaries from all sections of civil society.

III. MEETING WITH THE PANEL OF PARLIAMENTARIANS

Swami Agnivesh met with Hon‟ble Minister of State (Labour & Employment) Shri Santosh Gangwar to talk about issues related to unorganized labour on 4th April 2018. The meeting was also attended by Shri Karan Singh Yadav, Shri PrasnnaPatsani and Shri B.P. Mishra, all Hon‟ble MPs from the Lok Sabha.

(Photo: Meeting with Minister of State and MPs)

DGLW briefly explained about the rehabilitation policy which has been set in motion since 17th May 2016 for the bonded labourers and the social security measures taken by the Ministry for unorganized sector workers with reference to Unorganized Workers Social Security Act, 2008.

In the meeting Swami Agnivesh flagged the issue that that there are about 40 crores labourers in the unorganised sector comprising 93% of the workforce. Programmes for generation of awareness amongst unorganised workers should be undertaken through AIR and DD. National Minimum Wage should be made a fundamental right and may be fixed at least Rs18,000 pm on the criteria of pay of MTS after 7th CPC. The statutory notified minimum wage needs to be made applicable to MNREGA workers also. Provision of free legal service may be made for the poor labourers in the unorganised sector. Those workers who are not paid the minimum wage may be considered for inclusion in the category of bonded labour. Time limit may be prescribed for DM to declare a labour as bonded or otherwise. A case of full compensation of Rs 3lakh paid to a bonded labour was reported from Gujarat.

Shri Karan Singh Yadav added that besides minimum wages, health facilities may also be considered to be provided free to the poor labourers through ESIC . ESIC may consider the possibility of running a newly constructed hospital at Alwar, the infrastructure of which was completed 2 years ago.

Shri BP Mishra raised the issue of delay in payment to MNREGA workers. He also endorsed the view that minimum wages maybe made applicable to MNREGA workers. However, agricultural sector may be exempted from paying minimum wages as it is not possible for farmers to pay such wages.

Dr. L Mishra , former Union Labour Secy referred to S. 6 of MGNREG Act, 2006 which ruled out payment of notified minimum wages to labourers engaged in MGNREGA works. In two separate judgements, High Courts of AP and Karnataka have struck down this section on the ground that it is unconstitutional. The Ministry of Rural Development, however, have preferred an appeal against the orders of two High Courts and the Supreme Court. Referring to the earlier judgements of the Supreme Court in Crown Aluminium Works Vs their workmen; Express Newspaper Vs Union of India; Kamani Metals and Alloys Ltd Vs their workers and workmen of Reptacos Brett and Co. Ltd. Vs management ; Peoples Union for Democratic Rights and others Vs Union of India , Dr. Mishra observed that an industry which does not have the capacity to pay minimum wages has no right to exist. This seminal observation of the apex court should guide all our activities in relation to fixation, renew, revision and enforcement of minimum wage.

Ms. Rutuparna Mohanty, advocate Odisha high court said that minimum wages are not paid to plantation workers in Assam. Many of them are of Odiya origin living permanently in Assam. They are paid only Rs 135 per day. There should be a helpline for workers. Workers have a fundamental right to associate, owners should not object to forming of unions etc.

Secretary (Labour & Employment) informed the distinguished gathering that Plantation Act is being amended –only 15% of wages can be paid in kind. Welfare schemes like drinking water inside the plantation are to be provided. States have different problems, so an assessment survey needs to be undertaken before a model scheme is considered.

The Hon‟ble Minster thanked all the participants for their concern for the unorganised workers and requested them to submit their specific suggestion on the issue in writing for consideration of the government.

IV. MEETING WITH NATIONAL LEGAL SERVICES AUTHORITY

On 23rd April 2018, BMM officials met with NALSA officials at their office in Jamnagar House, Shahjahan Road, New Delhi. Swami Agnivesh led the meeting from BMM side, joined by Shri Alok Agrawal, Member-secretary NALSA; Shri Surendra S.Rathi, Director NALSA; Shri Sunil Chauhan, Project Officer NALSA; Sri G.B. Ravichandran, Consultant NALSA; Mahumud Pracha, Senior Supreme Court advocate; Agha Jilani, Supreme Court advocate; and Dalsingar, Bhanu Pratap,Charan Singh, from BMM.

The objective of the meeting was to explore opportunities for cooperation between the two organisations for the welfare of unorganised sector workers and create a permanent legal authority both at national and state level to work for promoting labourers cause.

(Photo: Meeting of BMM and NALSA officials)

Swami Agnivesh argued in favour of National Minimum Wage to be at least be Rs18,000 in accordance with recommendations of the Seventh Central Pay Commission which have since been accepted and implemented by the Union Government for the whole country in tune with salary of a fourth grade employee in the government service. He further added that State governments should not be allowed to fix wages lower than this. He also exhorted NALSA to explore possibilities of using mass media like Radios and televisions to create awareness among labourers about their rights, schemes run by the Central and State governments for their welfare and legal services which NALSA and SLSA could provide. He also emphasized the need of organising labour fairs at labour chowks and get labourers registered. Swami ji gave the reference of his earlier meeting with Hon‟ble Minister of Labour in the Shram Shakti Bhavan.

Mr.Alok Agrawal joining the deliberations said that NALSA‟s mandate was only to aise awareness. For this, they have even received cess from Railways. He said that in its awareness program he would try to get BMM involved. He further said that NALSA organises camps in all States once in a month, there even BMM can contribute its bit, in as much as two para-legals, one labour officer and one NGO official was needed.

Mr.Surendra S.Rathi talked about Social Security Act of 2008, and said that it is regretful that this Act is still to be implemented. Moreover, though labour help centre is under section 9 of the Act; none of the state governments‟ has even made a board for that purpose.If there are different

schemes for a labour in a State, a labourer needs to get himself registered in all the schemes to receive the benefit of these schemes. However, if a digital data of labourers is created linking them with their Aadhar cards, they can get benefit from all the schemes, avoiding the complexity of multiple registrations. Therefore Aadhar card should be made compulsory for registration of all the labourers.

For domestic workers there should be a government run centre, as placement agencies dealing with them charge Rs50-60 lakhs for their welfare from the government but what they give the actual worker is a pittance. Therefore, placement agencies should be abolished. Government should bring Real-Time Citizen Service Centre, in which welfare of all citizens could be ensured.

Sunil Chauhan giving the example of NALSA‟s work in Jamshedpur said that NALSA with the help of local labour department and State government got 1 lakh 90 thousand labourers registered within a month. As a result, labourers could receive Rs 95 crores in benefits from the government. Mahmud Pracha advocated that a PIL should be filed if the provisions made for the welfare of unorganised labourers are not being implemented. He and Agha Jilani also supported Swami Agnivesh proposal to go to labour chowks to get labourers registered.

Dalsingar talked about various schemes run by the UP government for the benefits of the unorganised sector labour. According to him, a worker once registered can get Rs3 000 as medical benefit . Women can get three months full minimum wage during their pregnancy. They can also getRs1000 a month for two years, for the child‟s nutrition, for two children. A girl can get Rs 60,000 during marriage, and in case of inter-caste marriage Rs65, 000. Moreover, there are a number of scholarships for labourers‟ children. A building construction worker needs 90- days work certificate for registration. Even if one does not have the certificate, he can get registered, if two already registered labourers certify that he is a labourer.

Charan Singh complained that the exploitation of unorganised labourers is currently at its peak. The assistant labour commissioners, who are supposed to look after labourers‟ welfare, work in the interest of factory owners, detrimental to the interest of labourers.

(Photo: Community awareness meeting in Muktigram)

V. MEETINGS WITH STATE LEGAL SERVICES AUTHORITIES

BMM officials also organised meetings with State legal services authorities in all the ten project states.

(Photo: SLSAs meetings in progress)

The salient points which came out in these meetings:

1.) Most of the labourers are not aware of various labour welfare schemes run by the central and respective State governments 2.) Recently, Delhi government passed a bill that an employer not paying minimum wage would be fined Rs 50,000 or, imprisoned for a period of 3 years, or, in extreme cases both. Even if one employer is punished under this Act in each district, it will send a strong message to all the employers, and they will dare not pay less than the minimum wage. Earlier the provision was a paltry fine of Rs 500 or 3 months punishment. The amount was so low that the employers used to pay fine and continued with their exploitation. 3.) If there is a minimum wage for Central and State government employees, why not for workers working under MNREGA, Aangawadi workers, Asha workers, Mid-day meal scheme etc? 4.) In tune with the seventh central pay commissions recommendation for a fourth grade employee, a labour should also be paid minimum Rs600 a day. 5.) Those labourers who are being paid less than the minimum wage should be identified as a bonded labourer and they should be freed and rehabilitated, and the employer needs to be strictly punished. 6.) Why state governments‟ are not utilising the „cess‟ collected in the name of labour welfare? Provisions should be made to collect more cess on that account from other sectors as well. 7.) Labourers are forced to migrate in search of work, which accentuates their exploitation. Therefore, employment opportunities at local levels should be promoted. 8.) Labourers should be made aware about various pension schemes for widows, old ,and handicapped 9.) It was suggested that agricultural labourers and small farmers should also be considered as unorganised labour.

VI. MEETINGS WITH MLA’S IN 10 STATES

BMM representatives met local MLA‟s in their States and made them aware about unorganized labour issues. Some of the MLAs took keen interest and promised to extend their full cooperation for the cause. State wise list of MLAs and their constituency with whom BMM representatives met are:

Bihar-Dr.Shameem Ahmed (Narkatiyaganj); Rajendra Ram (Harsidhi); Ramchandra Sahani (Sugauli); Faisal Rahman (Dhaka); JitendraRai (Madhaura); Bhai Birendra (Maner)

Delhi-Col. Devendra Sehrawat (Bijawasan); Alka Lamba (ChandaniChowk); Bandana Kumari (Shalimar Bagh); Vishesh Ravi (Karol Bagh); Madan Lal (Kasturba Nagar); Avtar Singh (Kalkaji); Rajendra Pal Gautam (SeemaPuri); NitinTyagi ( Laxmi Nagar); Narayan Dutt Sharma (Badarpur); Shiv Charan Goel (Moti Nagar)

Gujarat-Nathabhai Patel (Dhanera); Kanti Bhai Kharadi (Danta); Shashikant Pandya (Deesa); Parbat bhai Patel (Tharad); Jignesh Mevani ( Vadgam); Mahesh Patel (Palanpur); Bhurabhai Patel (Deodar); Dilip Thakur (Chanasma); Alpesh Thakur (Radhanpur); BachubhaiKhabad (Devgadh Baria)

Haryana-Lalit Nagar (Tigaon); UdayBhan (Hodal); Pt. Tekchand Sharma (Prithala)

Madhya Pradesh-Prahlad Bharti (Pohari): YashodharaRajeScindia (Shivpuri); K.P.SinghKakkaju (Pichhore); Mahendra Singh Yadav (Kolaras); Shakuntla Khatik (Karera);Mahendra Singh Sisodia (Bamori); Pannalal Shakya (Guna); Jaivardhan Singh (Raghogarh); Gopilal Jatav (Ashok Nagar)

Orissa- Krushna Chandra Sagaria(Koraput); Chandra Sekhar Majhi (Kotpad); Jeevan Pradeep Das (Balasore Sadar); Gobinda Das (Remuna); Sukanta Nayak (Niligir); Prasoram Dhada (Soro); Jyoti Panigrahi (Simulia)

Punjab- Sukhwinder Kumar (Banga); Baldev Singh Khaira (Phillaur); Nazar Singh (Mansa); RajkumarVerka(Amritsar West)

Rajasthan- Jairam (Alwar Rural); Banwari Lal Singhal (Alwar Urban); Gyandev Ahuja (Ramgarh); Ramhet Singh Yadav (Kishangarh Bas);Mangal Ram (Kathumar); Hem Singh (Thanagazi); ShakuntalaRawat (Bansur); JaswantYadav (Behror); MamanYadav (Tijara) Golma Devi (Rajgarhlaxmangarh)

Uttarakhand-Raghunath Singh Chauhan(Almora); Govind Singh Kunjwal( Jageswar); Karan Mahra (Ranikhet); Mahesh Singh Negi (Dwarahaat); Bishan Singh Chuphal (Didihaat); Prakash Pant (Pithoragarh); Blawant Singh Bhauryaal (Kapkot); Chandan Ram Das (Bageswar)

Uttarpradesh-Brijesh Kumar Prajapati (Tindwari); Prakash Dwivedi (Banda); Chandrika Prasad Upadhyaya (Chitrakut); R.K. Patel (Manikpur); Rahul Prakash (Chanbey); Ratnakar Mishra (Mirzapur)

VII. MEETINGS WITH DISTRICT LEVEL PANCHAYATI RAJINSTITUTIONS REPRESENTATIVES

The meeting with District level Panchayati Raj Institutions Representatives (PRI) was held in the BMM district offices in the month of July. The meeting was attended by village Sarpanchs, village Samiti, block and district level officials.

Major issues concerning unorganised labourers discussed in these meetings:-

1. Conditions of unorganized labourers and the problems they face. 2. Lack of proper implementation of existing social security schemes. 3. Lack of proper utilisation of „cess‟ collected by the government for the welfare of construction workers. 4. The absence of any such system of generating revenues for other unorganized workers. 5. Lack of awareness about various social security schemes run by the governments‟for the welfare of unorganized sector workers prevents them from availing these benefits. 6. State should take steps to identify labourers who are not getting minimum wage as victims of bonded labour system under section 2(9) of BLS (A) Act.. State should then work to get them released from the bondage and ensure their rehabilitation. Punishment for the bonded labour keeper should be proportional to the gravity of the offence and should be ensured without ifs and buts. 7. The need for compulsory registration of all unorganized workers. 8. The process of registration of unorganized workers, especially construction workers.

(Photo: PRI meeting in Progress in different states)

9. The information regarding documents required for registration i.e. 2 photographs, a copy of Aadhar card, bank passbook and nominal fees was also shared. 10. To need to extend the benefits of 7th Pay commission to unorganised sector labours like MGNREGA, agricultural labours, ASHA workers, Aanganwadi workers etc. 11. A common voice was also raised that as per 7th pay Commission's declaration the National Minimum Wage should be at least Rs 21,000 per monthi.eRs700 per day.

12. A new law introduced by the Delhi government declared Rs. 50,000/- as penalty and 3 years imprisonment for people not paying minimum wage to the labourers. It was argued that all States should also amend their laws on the lines of Delhi government‟s direction. 13. At the PRI meeting in Danapur, Bihar the labour department authorities informed the participants that in case of a worker‟s death under natural circumstances he/she becomes eligible for compensation of Rs 30000; whereas in the case of an accidental death the compensation amount is Rs. 1 Lakh. 14. At PRI meeting in East Champaran, a suggestion for opening up of the counselling centres for dealing with the issues of unorganized workers also came up. If such a centre is established, it can also help the labourers in getting all the benefits run by the government under various schemes. 15. Need to make MNREGA more efficient and effective was also discussed. 16. Benefits under various schemes run by the governments‟ both at the Central and State levels was also shared at PRI meeting of Faridabad, Haryana. In case of pregnancy Rs.3600, in case of a daughter‟s marriageRs.1 lakh, for a labour‟s child education, uniform, books there is a provision forRs.20000 and several other social security schemes. 17. The process of getting employed under MNREGA was discussed at PRI meeting in Jalandhar. It aims to enhance the livelihood security of people living in rural areas, by guaranteeing hundred days of wage-employment in a financial year to a rural household whose adult member is ready to do unskilled manual labour.

VIII. MEETINGS WITH NATIONAL PANEL OF SENIOR BUREAUCRATS AND REVIEW

Under the leadership of Swami Agnivesh, a review meeting was organised to take stock of the “Status of Unorganized Labourers in Delhi and to explore the Way Forward”. The meeting was attended by a number of dignitaries including Mr.Lakshmidhar Mishra, Former Union Labour Secretary; Mr.Surinder S. Rathi, Director, National Legal Services Authority (NALSA); Ms.Padmini Kumar, Assistant Director of Joint Women‟s Programme, Noida;Mr.Vikash Ranjan, BandhuaMuktiMorcha; Mr.Dalsingar, Project Coordinator cum State President Bandhua Mukti Morcha U.P.; Mr. Bhanu Pratap, District Coordinator South Delhi; Mr.Charan Singh, District Coordinator Central Delhi; Mr. Karan Paul, Hamari Ummeed; Md. Z. Jawed, BMM; Mr.Vinod Tripathi, PTI; Nasir Mohammad, Qaumi Patrika; Sanjay Kumar, The Sikh Times; Ms.Samahita Biswaland others.

(Photo: Some participants of the meeting)

Drawing the contours of the meeting, Chairman Swami Agnivesh, exhorted the participants to work for the welfare of the unorganised labourers, who constitute about 93% of the total labour force of India. Though they constitute the backbone of the Indian labour force their needs remain unattended due to lack of civil society support, illiteracy, poverty and other factors. In this regard he suggested to raise awareness about labourers rights among labourers and other stakeholders like employers, government officials and others. The basic aim of the whole effort is to ensure that labourers get „fair and living wage‟ in accordance with the Minimum wages for the class-IV employees in the 7th pay Commission.

He told the participants that Supreme Court in workmen and Reptacos Brett & Co. Ltd Vs Management 1992 LLJ 340 had laid down norms for fixation of minimum wage in which it was stressed that children‟s education, health and medical care , minimum recreation and provision of old age as also marriages should constitute 25 PC over and above the minimum wage fixed on the norms laid down by the Tripartite committee of Indian Labour conference held at New Delhi in 1957. But till date no step has been taken in that regard. Even in a state where minimum wages have been fixed it is ridiculously low, unscientific and irrational. The Delhi government‟s decision to fix the Minimum wages is the best till date, nearer to the norms as laid down by the Supreme Court in 1992. According to the rule, an unskilled labourer should get about Rs 14,000 per month, a semi-skilled labourer Rs 15,000 per month, a skilled labourer Rs 16,000 per month and highly skilled labourer Rs 17,000 per month. However, the challenge is to ensure that this is actually implemented at the ground-level and does not remain just on a piece of paper. Delhi government has also imposed Rs 50,000 fine or, 3-yrs imprisonment or both in cases of default. Earlier under the Minimum Wages Act of 1948, there was very little provision for punishing the defaulters with just Rs 500 fine or, 6 months‟ imprisonment. The low amount of fine and almost negligible enforcement of punishment was not a deterrent factor. The labourers continued to be exploited and their welfare was never taken into account, so much so that generations and generations of labourers were forced to live in poverty and slavery like conditions.

(Photo: Audience involved in animated discussion)

Swami ji time and again emphasized that in accordance with the Delhi government‟s decision, we should try to make Delhi, a model state. For this, dissemination of information about these acts should be our first priority. For this all available mechanism only court pronounce rulings , Central and State Government to take decisions should be utilised like putting banners and posters, training program for volunteers, advertising on social and mass media and others. Towards this end it was decided that BMM will work with NALSA to explore the training of volunteers and making and airing of labour rights program.

Mr. Rathi, the Director of NALSA assured Swami ji that he will try to help as much as possible in his just and noble cause and explore whether joint making and airing of programs can be taken under NALSA aegis. They also agreed to explore the possibility of celebrity endorsement for their programs, as common people connect and value more a celebrity having mass appeal.

However, both Mr. Rathi and former Union Labour secretary Dr. L Mishra pointed out the practical difficulties in implementing the Minimum Wages. They argued that at the practical level it becomes very difficult to ensure the Minimum Wages, due to the problem of sub- contracting system. Even though one can force principal employer to pay minimum wage, how to ensure that contractors and sub-contractors actually enforce what was originally agreed. Sub- contractors pay the labourers much-much less than originally agreed with the principal employer, and in that it becomes difficult and complicated to fix the responsibility. Moreover, the varied nature of works also makes it difficult to ensure proper and timely enforcement of the contract. For example, in Delhi there are workers from all over the country. How to differentiate between local and migrant labourers? Delhi in general consists of 100% migrant labourers. Because then the employer would need to ensure the labourers travel from their native place to the place of work, find accommodation and other amenities; which no employer likes to adhere to. Many of the labourers might be living in Delhi for a long time, but they are still migrant workers. Therefore, the first problem arises to recognise the nature of workers and the type of employment. The second problem arises in adjudication. In cases of dispute, the law will take its own course, which may consume a lot of time. Therefore, even in cases of dispute the immediate effort should be to ensure that the labourer gets his due. For a person living at bare subsistence level, it would be denial of justice, even if he wins the case after a long time span. Therefore, the effort should be to create facilitation centres around work sites, at district and state levels that these grievances are redressed at the spot.

The third problem the former Union labour secretary – Dr. L Mishra raised was of Special Economic Zones (SEZs). There the rules of labour do not work. Employers are within their right to hire and fire as they like. How to address those challenges?

Moreover, the problem becomes acute as a brazen denial by the State Governments and all the bodies created by Govt. that there is no such thing as bonded labour, child labour, trafficking, child marriage and various other social evils flowing there from. We forget that time is the essence and that today thing has to be attended to only today with a lot of urgency and seriousness of concern as tomorrow will be too late. Procrastination, indecisiveness and delay are the orders of the day. Our attitude and approach are prosecution oriented and not relief oriented.

Even in the matter of prosecution, the punishment awarded by the courts is seldom proportional to the gravity of offences committed. It is precisely on this account that most the perpetrators of crime prefer to commit crimes pay a paltry sum as fine and escape with impunity. The culture of impunity is growing and getting stronger day by day. Most of the employers prefer to take recourse to litigation which is protracted and achieves precious little except embittering human relations (instead of graciously conceding the just and fair entitlements of labour). The poor often think and perceive that the law which has been enacted in their favour always tends to take away something instead of giving them anything. It is precisely for this reason that they look upon the law as their enemy and not as their friend. Those who are responsible for enforcing the law act in the words of Justice Sri P. N. Bhagwati „indifferently, irresponsibly and sometimes dishonestly‟. Public Interest Litigations which were conceptualized in 80s as a departure from the Anglo-Saxon system of jurisprudence and were to be used as instruments to provide relief and succour to the poor, deprived, displaced and disadvantaged have miserably failed in ensuring the realisation of the irreducible barest minimum entitlements of the labour ; they have become instead private interest litigations. What we need today is structural, systemic and attitudinal transformation (not mere change). But more than this, we need to create a confluence of creative, positive and constructive forces, a confluence of creative thinkers, writers, artistes social and educational activists and more than anything else a combination of professional competence (complete command over law and empathetic understanding of the law) with sensitivity (ability to interpret the law in a manner which makes it beneficial for those poor and deprived sections of the society for whom the law has been enacted).

Adding to the debate, Ms. Padmini Kumar, head, a Noida based NGO, suggested that we should explore raising awareness of labour rights in schools as they are the front from where various child workers or their parents can get benefitted. Through career counselling, they can be trained about child rights, juvenile crimes, labour issues, etc.

The way forward: 1. Dissemination of information about labour rights issues utilising all types of media and at all platforms including schools. BMM to explore working with NALSA for the making and airing of labour rights program on Akashwani and Doordarshan. 2. BMM and NALSA would also cooperate in training of para-legal volunteers at district and state levels. BMM to identify 10 volunteers in each of the 20 districts in 10 states for training, who will subsequently work in that area. 3. Conduct a survey in all 11 districts of Delhi to explore the effective way of implementation of Minimum Wages- including naming and shaming and punishing the employer. 4. Ways to find whether from the cess collected by the Delhi government for labourers‟ welfare, a small amount can be used for raising awareness about labourers rights? 5. Bringing all institutions working for the welfare of labourers on one platform to ensure the broader coverage, join force and removal of duplication works. 6. Scope for tripartite model of agreement to ensure labourers get their due. 7. Using modern technologies for greater transparency and enforcement.

Annexure- 1

Labour Code on Social Security, 2018 Ministry of Labour & Employment, GOI

Registration

The primary responsibility of registration of a worker is that of the employer. In case of own- account-worker, he can register himself. However, safeguards have been provided that if the employer fails, the worker can register by himself, and also obligation has been provided to the State Board to undertake proactive campaigns / surveys to cover left-over workers, if any.

The Registration of a worker is a once in a lifetime activity, thereafter any change in status, employment etc. is to be done through amendments of Registration. Aadhar has been made mandatory so that true identification of the worker (especially in case of migration) can be made at the time of granting benefits. Also Aadhar will prevent malpractices of multiple registration of same person.

Registration is common for organized and unorganized workers – that means present concept of IP (of ESIC), UAN (of EPFO) and UWIN (of Unorganised workers‟ SS Act) will merge into one. The Code provides for Socio-economic classification of workers at the time of Registration based on parameters that will be determined in Rules. This Socio-economic Classification will enable the governments to handle various classes of people differently, especially in the matters of collection of contributions.

A common & universal Registration system implies that all the workers (organised or unorganised) shall be covered under the same set of Basic Schemes. The only difference would be the manner in which the contribution (or subscription charges for the schemes) shall be collected, and who would pay such contribution.

A (worker‟s) registration shall remain active till he indulges in proactive work (in India). If he retires, or does not engage himself in work, the registration gets de-activated. The worker‟s registration ceases when he dies (or migrates out of country).

It is understood that in-spite of best efforts to cover all the workers under Registration fold (and consequently within the scope of social security schemes) there will be persons who are left out. This will specially be true in case of persons who are old and infirm at the time of application of Code and cannot be taken into fold of a contributory system. For such persons, the Code envisages (state government funded) social assistance program, and for that purpose there is a concept of „Special Registration‟ of such persons. For persons who can-not be covered as workers but need to be provided Social Assistance (meaning fully government funded support) there is a provision of Special Registration. For example, persons who are currently old and

infirm, and not in workforce will be registered under „Special Registration‟. Such special registered persons will be eligible for Social Assistance program of the state government.

As regards registration of entities is concerned, Code prescribes for Registration of all kind of employers – be it establishments (that have a commercial purpose) or households (that employ domestic workers). An „own-account-enterprise‟ will be registered both as employer and worker automatically. The objective is to bring all kinds of employers in the fold of a universal social security system.

There is a TDS like concept for collection of Contribution (to ensure better and automatic compliance) in the Code. Therefore, entities (who may otherwise not be covered under the code, but are required to do TDS) are also required to be registered and obtain a „TAN – like‟ number. A manpower contractor or a placement agency too is compulsorily required to be registered.

Upon Registration, the establishments are classified in four categories based upon Occupational Safety and Health (OSH) standards of the establishments, based upon parameters that will be determined in Rules. This is done to empower the government to collect differential contribution on the basis of OSH standards. This will improve OSH compliance in establishments as there will be a financial incentive for higher OSH standard.

For implementing such a vast and universal registration system, the Panchayats and Municipal Bodies are given the task of registration of workers and entities. The State Boards will provide necessary finance. For this purpose, Facilitation Centres shall be established so that registration can happen at grassroots level. SOCIAL SECURITY BENEFITS

This Part of the Code makes provision for establishing social security fund in the States, Union Territories wherein State Board has been constituted. It also makes provision for establishing State Gratuity Fund.

The code lays down the maximum limit (17.5% of monthly income up to wage ceiling) of contributions payable by the employer while providing that Central Government may notify such rate of contribution that are not exceeding the said maximum limit. There is power to levy lesser rate of employer‟s contribution where any cesses have been levied on such class of employer. Similarly, employer‟s contribution can be lesser for establishments that are classified as those maintaining higher OSH standards.

In addition, employers (where gratuity applies) need to pay 2% of the wages as contribution to gratuity Fund. The principal employer is made liable for payment of gratuity contribution even for workers employed through contractors. The Gratuity Fund is maintained in the name of Principal Employer (and not individual employee).

Employer can also pay contribution on optional basis in respect of a person who is an Indian citizen in the event that such member is deployed to work in another country with which India does not have a social security agreement.

The employees‟ contribution is also limited to a maximum rate (12.5%). However, if the employee belongs to Socio-Economic Classification (SEC)-IV category, the Employee‟s contribution shall be zero (i.e. single contribution from employer only be collected in such cases).

In case of own account worker (and owner-cum-worker of an enterprise), there is no „employer‟, and hence a single contribution from the worker himself (maximum 20% of income) is prescribed. However, if the worker is of SEC-IV, the contribution to be paid is zero (it is expected that government will contribute on his behalf). Further, in case of such own account worker belong to SEC-III, a lump-sum contribution is to be paid by the worker (without going into actual income of such worker).

The Code enjoins the employer to pay his own contribution as well as on behalf of the worker employed by him directly or by through contractor in the first instance. Contributions are to be paid on monthly basis; However, for simpler compliance provision, households (employing domestic workers) can pay consolidated contribution for quarter, semester etc. Own account workers too have to pay contributions on monthly basis, however, they too have option to pay consolidated contributions.

The code empowers the Central Government or the State Government to establish contribution augmentation fund as deemed necessary by the Central or State Government, as the case may be. The contribution augmentation fund would be administered by the respective State Board. The State Boards are empowered to credit to the state Social Security Fund from the State contributions on behalf of workers by general or special orders.

There is also a „Social security Reparation fund‟ which will also be administered by the State Board. Such fund shall be expanded for payment of any reparation awarded to a worker for failure to provide any service to such worker or for deficiencies in the services provided. The Credits to this fund shall be from the penalties and damages recovered under the Code. The code empowers the Central Government to prescribe and frame schemes in consultation with the National Council for providing social security for workers or employees. These will be general, basic schemes under which all the workers throughout the country shall be covered. This scheme will be uniform throughout the country and portability of benefits under these schemes shall be provided.

The State Governments have also been empowered to prescribe one or more supplementary schemes in addition to the schemes made by the Central Government in respect of workers who are not covered or not adequately covered by the schemes made by the Central Government. The code stipulates establishing a separate fund for each of the schemes framed under it.

A consolidated contribution is to be made by the Employer / worker into the State Social Security Fund. He need not bifurcate it Scheme-wise while paying the contribution. This

contribution received in the State SS Fund will be credited in the name of each individual worker‟s account (called VIKAS). This VIKAS Account acts like an escrow account for each worker, and from the said account, subscription amount in respect of each scheme will be debited, and credited into the Scheme fund.

The code provides for establishing a National Stabilization fund which will be used for harmonizing the Scheme Funds across the country. National Stabilization Fund will be managed by the Central Boards. Any actuarial surpluses in any scheme or unclaimed amounts will be credited to the National Stabilization Fund, and it will be used if any state‟s scheme fund falls in distress. It can use for providing loans or grants to State Boards in case of deficit found in any scheme after actuarial evaluation.

The code provides that while the State Scheme Funds will vest in the States, for the purpose of professional investment of scheme fund, Central Board shall provide the investment services to the State Boards. The State Boards shall therefore transfer the current surpluses to the Central Boards for professional investments, who will invest the amounts on behalf of the State Boards. In case of any current deficits, State Boards can draw such amount as may be required from the invested amount.

The Code provides for a provision for providing Social Assistance to persons who cannot be covered under the regular contributory schemes. For Social Assistance, the person will be registered under „special registration‟ and through the Funds received from the State Governments, social assistance to such persons shall be provided. Any payment or benefit under the code shall not be transferrable or assignable. It further, provides that payment of any benefit, assistance or gratuity under this code shall not be liable for attachment in execution of any decree or order of any Court or under any Act.

The code provides that benefits can be paid to an entitled person even in the case where an employer fails to register an employee or neglects to pay any contribution in respect of the employee. In such instances, the employer shall be liable to pay the present value of the long term and short term benefits as well as any cost of medical benefit or long compensation as well as the contribution payable by the employer including interest and damages.

Provisions have been made for the manner, form and procedure for portability of benefits under the scheme in the event of change in employment from one state to another state. Thus any change in employment or state of work will be seamless in terms of availing of benefits.

Building and Construction Workers (BOCW) This provides for a levy of Building and Construction Cess, on all construction works above a certain threshold. This is for the protection of Building & Construction workers, as generally it is found that these workers are not engaged in formal employment relationship basis.

The liability of payment of BOCW cess has been imposed on the landlord (i.e. the person who commissions construction work) as the entire cost of construction has to be ultimately borne by the landlord, who commissions the construction work. The cess shall be collected by the

Commissioner and proceeds of the cess shall be credited further to the Building and Other Construction Workers Contribution Augmentation Fund set up by the State Government. The landlord may pay an amount of cess in advance which shall be adjusted in the final assessment. The Code also provides for a general power of Central Government to levy Cess on other products and services.

As such, the provision of Cess has been kept only as an alternate mechanism to collect contributions (of employers / employees). The Government does not intend to levy cess on any sector, as the normal Employer‟s and EmployeeContribution levied under Part D should be sufficient to meet the Social Security requirement. However, it is understood that certain sectors are very prone to informality, due to which number of employees are not declared by the employers, leading to their exclusions from social security. In order to handle such sectors, the powers to levy cess has been kept, so that in sectors where employers are escaping their obligations, the concerned workers can be protected by levy of cess, and providing their contribution from this collection of cess.

There is a corresponding provision wherein it has been specified that in sectors where Cess is levied, the Government may reduce the Employer‟s Contribution percentage so as to avoid double taxation in such sectors.

The code also permits exemption from levy and collection of cess in any State or part thereof, provided that the Central Government, after consultation with the concerned State Government, is satisfied that there is in force a law which has adequate provision for the financing of activities to promote the social security of such persons for whom any particular cess is being collected.

This chapter lays down the duties of various persons under this Code. Every Employer and Contractor is obliged to deliver returns to the State Board providing detail about the employees in respect of whom contributions become due. A self-employed worker or household file a simpler return-cum-challan. The frequency will be specified in Rules. Return is also to be filed by a person who is obliged to do CDS (Contribution deduction at source). The part also obliges employers & contractors to maintain registers.

Administrative Charges are to be paid by the employers. The manner of calculation of contribution has been changed slightly as compared to EPF system. Instead of certain percentage of wage, the Administrative charges shall be certain percentage (less than 4%) of contribution. In case of State (i.e. government) contribution, same administrative charges will be deducted from the government‟s contribution.

Interest on delayed payments of dues is payable @ simple interest at 12% rate. Similarly, refunds, if due will be payable with interest.

If a person claims or receives benefit to which he was not entitled to, the beneficiary is obliged to return the said amount of benefit with interest.

This part also provides for a concept of Contribution deduction at source (CDS), which is on the same lines as TDS of income tax. Any person awarding a (high value) works contract to any

other agency, he is obliged to deduct, from the payment due to the contractor, certain amount as CDS and deposit to SS Board. This payment goes in the credit of the said contractor, and can be utilised for payment of contractor‟s liability to pay contributions.

The Part also obliges the principal employer to pay contributions and administrative charges in respect of every employee, including those engaged through contractors. The principal employer can deduct the said payments of contributions and administrative charges made to the SS Fund from the payments made to the contractor, to furnish certificate to the contractor about such deductions.

Employer cannot reduce the wages of any employee on account of employer‟s liability to pay contributions to the Social Security Fund. In case of transfer of ownership of any establishment, the transferor and transferee are both jointly and severally liable to pay the outstanding dues under this Code.

The Code ensures confidentiality of returns etc. No person can intentionally disclose, transmit, copy or otherwise disseminate any information collected in the course of implementing the provisions of this Code, to any person not authorized under this Code. Similarly Code prohibits unauthorised access, download, steal, tamper or destroy the data of any Social Security Organisation (SSO).

This chapter classifies as “confidential” the data and information produced during the implementation of this Code and lays down the exceptions where this restriction of confidentiality shall not apply to the Governments, their agencies and the Courts.

Gratuity

This part pertains to payment of gratuity on the lines of the provisions under the Payment of Gratuity Act, 1972. The provisions under the code in respect of applicability of Gratuity Scheme, entitlement of gratuity, payment in lump-sum amount of gratuity, entitlement of an employee to receive better terms of gratuity under any award or agreement or contract, calculation of amount of gratuity & continuous service, interest in delay in payment of gratuity are similar to those already exists under the Payment of Gratuity Act, 1972. However, the code does not specify the minimum number of employees that should be employed in an established for applicability of gratuity scheme and the same is to be provided for in the Rules.

However, there is complete shift in the code wherein it is purposed to create State Gratuity Fund from the contribution of employer @ 2% of wages. Monthly contribution of the employer will be collected by the State Board to be credited to the individual account of the employer in the State Gratuity Fund. Thus, the State Gratuity Fund will comprise of accumulation of contribution of individual employer, which would not be a pooled fund. It has been envisaged to make employer compulsorily save for payment of gratuity, whenever required so as to ease burden on employer at the last of moment, when gratuity is to be paid.

If funds are available in the Employer‟s Gratuity Fund, and any employee of the said employer becomes entitled to gratuity, the Commissioner shall release the said gratuity amount due to the

employee from the amount standing in the Credit of the employer in the State Gratuity Fund. If sufficient amount is not available in the gratuity fund account of the employer, the Commissioner shall direct the employer to pay the gratuity to the employee from his own funds within 15 days. Therefore, in the proposed scheme of things, the maximum period for payment of gratuity has been enhanced to 60 days.

The most important aspect of this part of the code is to count qualifying continuous services rendered for a Principal Employer, who will be liable to pay gratuity, though under different contractors or under a contractor, who will be liable to pay gratuity, may be under different Principal Employers. This is to ensure portability of service rendered by an employee under the same Principal Employer or under the same contractor. This will benefit the employee, whose services were otherwise not counted for becoming eligible for payment of gratuity even when working under the same Principal Employer or under the same contractor.

Maternity Benefits

The Code stipulates that the Maternity benefit scheme will be applied to all employees employed by the establishment whether employed directly or through contractor as well as own-account workers and also to those SEC-IV workers on whose behalf, the government contributes. Maternity benefits shall be payable (in normal case) for 26 weeks.

Basically, the liability of Maternity Benefits will be taken care of by the Maternity Benefit Fund, in which the subscription amounts will come from the contribution received. However, if the employer fails to cover his employee under the maternity benefit scheme, the worker shall be provided the benefits from the fund, and recoveries shall be made from the employer under section 28.

Employer is bound not to employ any woman who has given child-birth (etc.) for a period of six weeks. He is also bound not to employ pregnant woman in arduous work, provide nursing break to woman, provide paid leave for (extended) period in case of illness arising out of confinement.

Employer can-not dismiss a woman on account of absence due to pregnancy etc. Commissioner has been given powers to investigate into complaints of wrongful dismissals in this regards and order corrective measures. Employer cannot discriminate against women during recruitment.

Pension Schemes- Retirement, Disablement and Dependent benefits

This contains elaborate provisions of the social security provided to the workers in the form of old age pension upon retirement or on account of their disablement and pension to the dependents of a deceased worker.

The basic objective of this part is to provide comprehensive coverage to the workers throughout their active service life and a guarantee of old age, disability or dependent pension. Further, this part does not distinguish between death/disablement due to employment injury or otherwise as for a worker and his family, occurrence of such a contingency brings a lot of grief and mostly, where the worker is the sole breadwinner, his death or disability pushes the entire family into

scarcity. Thus, by making a provision for pension through the pension schemes as may be instituted, it provides an income security to the worker and his family in times of distress.

The benefits to the workers are guaranteed and if any employee becomes disentitled from availing benefits under the Pension Scheme on account of non-coverage by the employer, the benefits are to be paid by the Commissioner in the first instance and subsequent recovery to be made from the employer in accordance with section 28 of the code.

In case of ineligibility of an employee to receive the dependent/disablement benefits due to non- completion of the qualifying service or conditions, the employer would be liable to pay compensation which would be determined by calculating the capitalized value of the pension which would have been admissible to the worker in case of disablement or to the dependents‟ in case of his death.

Therefore, while the provisions of this Part make compensation for personal injuries a fund based liability; it adequately protects the rights of the employee to receive compensation from the employer as well, if necessary.

Occupational diseases have been included as part of personal injury to protect the interests of the workers working in hazardous environment and compensation is admissible on the happening of such disease. The Central Government has been given the powers of fixing the minimum and maximum amounts of compensation admissible under this Part.

Any question of disablement and its extent would be determined by a medical board and the medical board shall also conduct periodical medical examination of the persons receiving disablement benefit every five years for the purpose of assessing the improvement or aggravation of disability. No such review would be required in respect of persons who have attained the age of sixty years.

Other major provisions of this Part:-

(i) Distribution of compensation through Commissioner; direct payment to the employee not admissible;

(ii) Statutory duty of the employer to maintain and make entries in the accident notice book in the prescribed manner;

(iii) Notice of claim to Commissioner through employer in case of employee and by the non- employee himself or any of his dependents in case of a non-employee;

(iv) The Commissioner entrusted with the responsibility of disposing the matter relating to compensation under this Code within a period of three months from the date of reference and communicating the same to the worker.

Sickness Benefits and Medical Benefits

Code endeavours to provide Sickness Benefit and Medical Benefit to all category of workers as per prescribed contributory conditions. Sickness benefit will be available only to low income workers as per wage ceiling. Medical benefits will be applicable only in notified areas.

While the Sickness Benefit attempts to cover loss of wages during sickness requiring abstention from work on medical advice, the Medical Benefit provides appropriate medical care.

The code envisages funding from the contributions of wage workers, self employed persons and State contributions in respect socio-economically weaker members, separately for Sickness Benefit Fund Account and Medical Benefit Scheme Fund. The subscriptions to both schemes shall be mandatory.

The code lays down modalities of certification of sickness and abstention required from work by authorized/recognized medical practitioners for claiming Sickness Benefit.

The code also provides for medical care to persons and their spouse who cease to be in insurable employment on account of permanent disablement or who vacate employment consequent upon superannuation, when the normal contribution ceases to be payable. The persons who retire under a Voluntary Retirement Scheme or take premature retirement are also included. In such cases, on fulfilment of certain conditions, the members have to pay contribution as specified in Medical Benefit Scheme.

On part of the employers, safeguards have been provided to prevent dismissal, discharge, reduction and penal action against an employee during his abstention on account of certified sickness or medical treatment. For early recovery from illness/sickness, the insured employee has to observe medical advice.

The State Governments are expected to meet the incidence of Sickness Benefit if it is in excess of subscriptions received. In case of shortfall, the Central Govt. may step in to cover the deficit on justified/bonafide grounds.

Similarly, the Labour Commissioner may intervene in case the incidence of sickness is abnormally high in any establishment owing to insanitary working or lodging conditions. If he is convinced, he may determine the excess expenditure incurred on Sickness Benefit and recover the same and recoup the State Sickness Fund Account.

The code enables the State Governments to establish, designate, utilize health care infrastructure and share with that of other State Governments for reasonable medical/surgical and obstetric treatment. The State Board can also designate Intermediate Agency through third party participation for providing medical care to its members and their families.

Further, the State Governments can also allow the non-members to use its unutilized heath care infrastructure on user changes as per its notified protocol. The user charges would replenish the MBS Fund.

Alternate Coverage Mechanism

The objective is to allow any establishment to operate its own PF / Gratuity Fund in lieu of such Fund framed under this Code for the benefit of employees and workers. The thumb rule for an establishment to qualify to run such an alternate mechanism is to ensure that the benefits to the employees and workers are at par or better than the benefits envisaged in the concerned scheme of this Code.

The permission to run the alternate coverage mechanism shall be granted by the concerned State Government after the consultation with the concerned State Board. However, the Central Government can also allow certain establishments to operate the alternate coverage mechanism.

Following qualifying conditions are required to be fulfilled by the establishment seeking to run its alternate coverage mechanism:

(i) The establishment must have complied as a covered establishment under this Code without any violation for a continuous period of five years immediately before the date of seeking the permission.

(ii) The establishment must employ one hundred or more employees.

If alternate coverage mechanism is sanctioned, the contribution payable to the State Social Security Fund by the employer of such an establishment shall be reduced by appropriate percentage.

The Code requires that when permitted to run its alternate coverage mechanism, the employer of the concerned establishment shall establish a Board of Trustees for the administration of the respective Scheme Fund and the said Board of Trustees shall perform the duties laid down upon it u/s-95.1 of the Code. The employer of such establishment also shall perform the duties laid down upon it u/s-95.2 of the Code.

The Code has made provisions for appropriate penalty against the Trustees and the Employer who fail to observe the duties cast upon them under the Code, including the provision to cancel the permission to operate the alternate coverage mechanism. In the event of cancellation, appropriate mechanism to transfer the accumulations to the credit of employees is envisaged under the Code.

ABOUT BANDHUAMUKTIMORCHA (BMM)

Name and registered BandhuaMuktiMorcha address of 7, JantarMantar Road, implementing New Delhi-110001 (India) agency Phone: +91-11-23363221, 23367943 Fax: +91-11-23367946 E-Mail: [email protected] Website:www.bondedlabour.org Legal status of Legal status of the Registered under The Societies agency and date of organization Registration Act 1860 registration Society registration number S/26763/94

Date of registration 05th October, 1994

Saving Account No. 1098101027301 (For Foreign) 1098101026571 (For India) IFSC CODE – CNRB0001098 SWIFT CODE – CNRBINBBDDP PAN AATB0985H FCRA registration number No.:231650802 Under the FCRA, 1976. Date of registration 15/05/1996

12 A registration number 559/ 5th Sept. 1994

Income tax registration 3167/Del – BE21570-08032010 number 80 G Name of the contact Swami Agnivesh Person for this Chairperson Proposal BANDHUA MUKTI MORCHA Mobile: 09810976705 Goals andObjectives of the Agency as per Vision Memorandum of To strive towards a society where there is equality. In a larger perspective, association/ by laws. abolition of bonded labour system is only one aspect of the many ills facing Articles of our society. There are scores of other issues such as untouchability, gender association. discrimination, female foeticide, child marriage, dowry, superstitions, drug abuse, minimum wage etc. However, the core area of work for BMM remains bonded labour with a two-fold objective: one, to eradicate bonded labour with more emphasis on children and two, to ensure rescued labourers get full

benefits of rehabilitation package as provided by the law. This is the only way of preventing the possibility of affected families getting into the exploitative trap of bonded labour once again.

Mission

1. Identification of Bonded and Child Labourers across the length and breadth of this country and then work for their release and rehabilitation. 2. Lobby with the government to come up with a National Wage Policy and implement a National Minimum age for all labourers across the country. 3. Work for organizing the labourers in the unorganized sector. 4. Initiate non-violent movements against all forms of oppression, discrimination and marginalization. 5. Enforcement of free and compulsory elementary education to ensure that all children under the age of 14 avail themselves of quality education based on a curriculum, which is socially relevant and pedagogically sound and stimulating. The Government, and not the poor parents, to assume responsibility for implementation. Urgent steps to be taken to establish community managed schools wherever such facilities are not available. All schools, including the existing formal ones, to be run on the model of neighbourhood schools. 6. Given the nexus between poverty and child labour, the parents of child labourers to be covered by National Minimum Wages norms i.e. at par with the wages of class IV employees in the Government. A minimum of 240 days of employment to be guaranteed at National Minimum Wage level. As a matter of fact, this is mandated through Article 43 of our Constitution. 7. All means of mass communication, particularly the Media and the Social media to disseminate information on all aspects of NMW in all languages and dialects on regular basis and entertainingly through folk art and music. This will empower the voiceless and unorganized labour to galvanize and united fight for a rightful place in society. The resources of the mass media also to be used effectively to raise public awareness concerning the evils of child labour and to motivate the parents and the community at large to help all children under 14 to attend schools, with particular emphasis on girl children. 8. Both Government and the civil society to be galvanized to abolish the abominable caste system and fatalistic attitudes and socio-religious customs which tend to perpetuate gender inequality. 9. Implementation of TOTAL PROHIBITION to eradicate poverty and child labour. (Article 47 of Indian Constitution)

TEAM BANDHUA MUKTI MORCHA

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