Professional Documents
Culture Documents
ASSIGNMENT 1
Introduction
Slated to be the most populated country in the world by 2022 with a total workforce of 460
million, India’s labour law system is considered to be quite byzantine with a total of 44
federal labour acts and more than 200 ministerial and state-level labour laws. Enforcement
of labour laws by the state and local governments are important in regulating the market,
protecting employment and ensuring social security of workers. In this write-up, we will
attempt to give an overview of the evolution of Indian labour laws, present some
quantitative data from previous research carried out in this field, go over latest reforms and
conjectures about reforms in the pipeline.
The earliest British regulations were associated with workers in the government service,
including the military, and ‘forced labor’ for the performance of public works. However,
issues mainly in relation to work hours and the employment of women and children started
coming into consideration from 1880s onwards.
Several factors had combined to alter the industrial and political landscape, including the
emergence of a strong nationalist movement, the rapid development of trade unions, and
the emergence of Communist influence in the labor movement following the successful
Bolshevik revolution in Russia in 1917. At the same time, the newly created International
Labor organization began to have an influence on labor policy in India. The emergence of a
more modern approach to the regulation of Industrial relations was also seen in the period
because of below-mentioned enactments-
1. The Trade Unions Act 1926- Provided for the registration of trade unions, gave unions a
legal status and extended some protections against civil and criminal liability in the course
of industrial disputes.
2. The Trade Disputes Act 1929- To make provision for the investigation and settlement of
Industrial Disputes.
1930s
In the context of world economic depression and the associated rise in unemployment,
there was continued agitation for Indian independence in which the All India Trade Union
Congress played a major role. Mass dismissals were accompanied by a renewed wave of
strikes, especially as the economic depression took hold during 1928 and 1929. This
background precipitated the establishment of the Royal Commission on Labor in India. Also
two major factors began to put some further shape on Indian labor law-
1. Many recommendations of the Report of the Royal Commission were taken into
consideration in the new labor legislation between 1933 and 1939.
2. Popular expectation that more “labor”- or “union” friendly policies would emerge at the
provincial government level followed from the Government of India Act 1935.
Regulation in the World War II period appears against the background of considerable
industrial unrest and strike action against the conditions and effects of the war itself. These
circumstances brought into being several pieces of legislation designed to secure labor
cooperation in support of the war effort. These legislations included the passage in 1941 of
s.49A of the Bombay Industrial Disputes Act, allowing the Bombay government to refer
industrial disputes to compulsory arbitration by an Industrial Court, and banning all strikes
and lockouts prior to arbitration.
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In the immediate post-war period it was decided that the Indian central government would
be primarily responsible for labor legislation, and fostering labor interests, reflecting a
five-year plan of development “dealing with all phases of the worker’s life, of housing,
welfare, work, better working conditions, and fair wages”. In the first set of legislations,
various provisions were included like the Factories Act of 1947, the Contract Labour Act 1970
and various Shops and Commercial Establishments Acts were passed. There were two
further important pieces of legislation : The Child Labour Act 1986 and Bonded Labour System
Act 1976.
Under wages and remuneration, four pieces of legislation which were passed : Minimum
Wages Act 1948, Payment of Wages Act 1936, Payment of Bonus Act 1965 and Equal
Remuneration Act 1976.
There were three main legislations to provide security and welfare benefits : Employees State
Insurance Act 1948, The Employees Provident Fund and Miscellaneous Provisions Act 1952 and
Employees Compensation Act 1923. Other schemes also introduced in this legislation were :
Deposit Linked Insurance Scheme of 1976 , Maternity Benefit Act 1961 and Payment of Gratuity
Act 1972.
There is a widespread perception about the protective qualities of the Indian labor law
system that both the extent and content of regulation in the Indian labor market has placed
acute restrictions on the capacity of the Indian economy to develop, especially in the context
of economic globalization. The most important and ongoing movements towards
liberalization in labor law have taken place at the state government level which included the
relaxation of laws against the employment of women at night, greater ease in shift working,
and greater freedom for the use of contract labor.
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The risks and issues plaguing the labor and employment sector in India hinder the
competitiveness of the firms. Multiplicity of the employment laws across state and the
centre is a big problem as each differs in compliance and applicability criterias. This in turn
increases the burden on the firms to follow compliance for which they have to maintain
separate records. There is also a direct correlation with labour reforms and investments in
the form of new businesses. Archaic laws or the compulsion to go through multiple labour
authorities to get approvals for setting up a new business affects the timeline for setting up
a new business. Red tapism and bureaucratic setup affects the growth of the industry.
Any new updation or change to be implemented in the working policies regarding the
employment terms involves multiple approvals. The labour authorities seek pre-approval
from the firms before any change can be made.
The Industrial Disputes Act of 1947 is a set of legislation that protects the industry workers
from exploitation in India. The firms face a lot of legal risks in cases of wrongful termination.
Employers should ensure that the workers are apprised of their rights and responsibilities.
Proper notice period and severance guidelines should be followed in such cases and the
management is briefed on the proper termination procedures.
Employers that have more than 100 workers need to get approvals from the government in
case of closure of the business. In case the business is not able to provide satisfactory
reasons for their exit then the closure is termed illegal. All the employees become entitled to
all the benefits again as before the closure notice of the company.
There are also cases where issues arise in enforcement of non-compete clause in the
employment contracts. In India, although it is enforceable during the period of employment,
it doesn't hold valid for post-employment period. Upon the termination of contract, it
cannot be enforced upon the employee to not work in a competing business.
There are inherent risks whenever contract employers are involved in a work as the onus is
on the principal employer, not the contractor. The PE has to ensure that the wages are paid
and all the obligations are fulfilled by the contractor as directed in the Contract Labour
(Regulation and Abolition) Act 1970. There is a fine line when it comes to regulating these
contract labourers by the principal employer as more engagement may start changing the
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dynamics of the relationship of the employer with the contract laborer being deemed as an
employee.
There are always constant threats of strikes and labour unrest in cases where the terms of
the employment are not met. It leads to decrease in productivity.
Apart from the above risks and labour related challenges, recent happenings have
highlighted the permanent establishment issue of foreign companies. Hiring an Indian runs
a risk of being termed as a permanent establishment which may have tax implications. In
cases where foreign nationals come in India to work, they face the issue of compliance in
both the countries and extra social security costs are incurred.
Quantitative Representation
Deakin and Sarkar(2011) tapped into the Labour Regulation Index (LRI) of Centre for
Business Research at the University of Cambridge which seeks to cover changes in the law of
a number of developed and developing countries for the period 1970-2006. India is one of
the countries in this index. The LRI consists of 40 indicators grouped into five areas of labour
law regulation: the law governing the choice of alternative forms of the employment
contract (dependent versus contract labour, part time work, fixed-term employment, agency
work), working time, dismissal, employee representation and industrial action. A 0-1 scale is
used to score each indicator, with higher scores indicating a higher level of worker
protection. Justifications for the choice of indicators, their grouping into sub-indices, and the
definition of the coding protocols, are set out in Deakin, Lele and Siems (2007). The full
dataset, which contains detailed explanations for the codings and references to the primary
legal sources on which the scores are based may be consulted online (CBR, 2007).
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Figure 1 shows the broad trend in the evolution of Indian labour law over the period 1970 to
2006 in comparison with those in the four other countries coded by Deakin et al. (2007). The
figure indicates movement in the average totals (out of 40) for each country over the period
of the study. It can be seen that India’s labour regulation is highly protective by international
standards. At the outset of the period in the early 1970s, it was comparable to that in
France, and above those of the other three countries . Over time, there was some moderate
strengthening of worker protection in the Indian case, while that in Germany fell slightly, and
that in France rose.
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Figure 2 represents the scores for the sub-indexes on dismissal protection. Here, India
appears as having the most protective score of all the five countries. India has a system of
labour regulation that is pro-worker with respect to international standards. The effect is
largely due to its laws on termination of employment.
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Figure 3 makes the same point in a different way: breaking down the Indian scores with
respect to the individual sub-indices, the subindex on dismissal protection scores more
highly than any of the others.
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different from the whatever is present in the law. Thinking about Labour law in India
requires us to think not merely about the application of a set of legal or regulatory
conventions governing labour in a particular society. It also requires us to think about what
“Labour law” might mean in varying economic and social contexts.
One of the major roadblocks in the Indian business scenario has been the complexity and
redundancy of several labor and industrial laws. But in the past few years there has been a
realization of the increased need to improve the ease of doing business and make the
business environment more dynamic. This has put the spotlight on labor laws reforms. In
the past year, several employment law changes took place - changes which were hailed as
progressive and business- friendly. The key developments which took place in the domain of
labour and employment law in 2017 are listed below:
· Increased Maternity benefits: The amendment to the Maternity Benefits Act, 1961
came into force on 1 April,2017.Under the new provisions, the mandatory maternity leave
was increased from 12 weeks to 26 weeks for women employees with less than two
surviving children. Any employer with more than 50 employees is also required to provide
crèche facilities to the employees returning from maternity leave. The amendment also
provided for adoption and surrogacy leave for up to 12 weeks.
· Introduction of a common platform for complaints of sexual harassment: The
Government has launched an online platform called SHE-box (Sexual Harassment Electronic
Box) for women employees to lodge complaints of workplace sexual harassment. This
initiative seeks to give women employees a common platform to raise complaints of sexual
harassment.
· Introduction of a new law on persons with disabilities: The Rights of Persons with
Disabilities Act, 2016 was brought into effect on June 15, 2017 to replace the erstwhile
disabilities law. The meaning and scope of disability has been expanded significantly to
include 27 different types of disabilities as opposed to the previous law which covered only
7 types of disabilities. This Act is applicable to all private establishments and prohibits
discrimination with respect to recruitment, employment and promotion on the basis of a
person’s disability.
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· Increased trade union activity in the IT sector: Trade Unions are usually
prevalent in the manufacturing sector but the year 2017 saw organized trade unions gain
recognition in the IT sector. Karnataka became the first state to have an information
technology-specific trade union registered under the Trade Unions ACT, 1926-the Karnataka
State IT/ITES Employees Union. Maharashtra has also followed suit and Forum for IT
Employees (FITE) has become a registered union in the state.
· Simplification of Employment Law Compliances: To reduce the cumbersome
compliances of various overlapping legislations, the Government in February 2017,
introduced the Ease of Compliance to Maintain Registers under Various Labor Laws,
2017.The purpose behind this was to allow employers to maintain consolidated registers for
9 central employment laws, some of which are the Payment of Wages Act, 1963, the
Contract Labour (Regulation and Abolition) Act, 1970, Minimum Wages, 1948.
There are also several key reforms lined up for implementation in the year 2018:
· Consolidation of Labour Laws: In its election manifesto in the 2014 general
elections, the Government had pitched the consolidation of 44 employment legislations into
4 labour codes:
2. Labour Code on social security and welfare: This code would consolidate social
security laws such as the Employees Provident Funds and Miscellaneous Provisions
Act,1952, the Employees’ State Insurance Act,1948, Maternity Benefits Act,1961 etc.
4. Code on Wages: This code would cover the Minimum Wages Act, 1949, the Payment
of Wages Act, 1936, Payment of Bonus Act, 1965 and Equal remuneration Act, 1976.
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The rationale behind proposing this was to reduce the multiplicity of employment
legislations and keep them in sync with the requirements of the evolving labour market.
· Enhancement of the gratuity ceiling: The Payment of Gratuity (Amendment) Bill,
2017 was introduced in Lok Sabha on December 18,2017 as an amendment to the Payment
of Gratuity Act ,1972 which entitles employees who have been in continuous employment
for a period of 5 years to gratuity at the rate of 15 days wages for every year of continuous
service, capped at INR 10,00,000. The Bill if passed will allow the Government the discretion
to prescribe the gratuity ceiling and the period of maternity leave that would be deemed to
constitute continuous service.
· Changes in laws governing Factories: Amendments to the Factories Act are being
planned for the past few years. These are aimed at allowing the state governments to
increase the number of overtime hours that employees can work and to prescribe rules in
relation to exemptions that could be given to various employees.
These reforms in the labour laws are a welcome change as some of the labour laws dated
back almost half a century and were becoming obsolete, thus becoming a hindrance for
businesses trying to stay competitive in today’s dynamic scenario. But there is still a vacuum
in this domain as the laws are failing to keep pace with the new trends of increased
automation and creative forms of workforce engagement such as gig/on call working. So in
conjunction with the above mentioned reforms, there is a need for new legislations that
accommodates these key trends of innovation and entrepreneurship.
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REFERENCES
1. Sarkar, Prabirjit, and Simon F. Deakin. “Indian Labour Law and Its Impact on
Unemployment, 1970-2006: A Leximetric Study.” SSRN Electronic Journal, 2011,
doi:10.2139/ssrn.1913609.
2. Indian employment law reforms: The lineup for 2018 , Article by People Matters, 19th
March 2018.
3. Mitchell, Richard, Petra Mahy, and Peter G. Gahan. 2013. "The Evolution Of Labour
Law In India: An Overview And Commentary On Regulatory Objectives And
Development". SSRN Electronic Journal. doi:10.2139/ssrn.2297160.
4. Labor & Employment Law Strategic Global Topics - EY, Fall 2017 edition.
Anuj 41129
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