The tragic sight of lakhs of migrant workers painfully making their way back to their homes during the national lockdown last year shook the conscience of the nation. Several people questioned why there were no laws in place which could have compelled governments at the Centre and in the States, as well as employers, to take care of these people in a time of intense crisis.
After all, with 20 per cent of the total workforce made up of migrants, they are the very backbone of the economy. Like human beings from times immemorial, these workers migrate to states with growing economies that can provide them with more work opportunities. As a crucial segment of the mainstream workforce, a comprehensive regulatory framework is therefore a key imperative.
The tragic truth, however, is that such a framework already exists. The work conditions of migrant workers and benefits entitled to them are governed by the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 (ISMW Act), the Building and Other Construction Workers’ (Regulation of Employment and Conditions of Service) Act, 1996 (BOCW Act), the Building and Other Construction Workers Welfare Cess Act, 1996 (BOCW Cess Act) along with the schemes framed thereunder. There are no exceptions.
The ISMW Act is applicable to every establishment in which five or more inter-State migrant workmen are employed or who were employed on any day of the preceding year. The Act is also applicable to every contractor who employs or who employed five or more inter-State migrant workmen on any day of the preceding year, irrespective of whether or not such workmen are employed by the contractor or in the establishment.
An ‘Inter-State Migrant Workman’ (ISMW) is defined under the Act to mean any person who is recruited by or through a contractor in one State for employment in an establishment in another State. It doesn’t matter whether such employment is with or without the knowledge of the principal employer.
Sadly, lack of awareness and some unintended loopholes in the system have meant that when these rules were put to the test during the course of the current pandemic, they were found to be wanting. Thus, the law states that to be treated as a migrant worker, the recruitment should have been made in one State through a contractor and the person then brought to another State in which the establishment is located. However, if a person directly approaches an employer for employment in another State, and if hired by the employer, such an employee is not covered by the ISMW Act.
This rule has been manipulated by contractors who avoid compliance by mentioning a local address of the worker instead of the permanent address in the State from where he has migrated. In any case, a vast majority of the migrant workers are not routed through licensed contractors, who thereby avoid the associated compliance costs, resulting in most of them being excluded from availing any benefits provided under the ISMW Act.
Potential employers, with exceptions, have also failed to do their bit, despite specific responsibilities outlined for them. For instance, the Act mandates that in case a migrant worker performs the same or similar kind of work as is being performed by any other workman in the establishment, the wage rates, holidays, hours of work and other conditions of service of an ISMW should be the same. The Act also stipulates clear responsibilities with regard to timely payment of wages, the primary responsibility for which lies with the contractor. However, in case the contractor fails to make payment of wages within the prescribed period or makes short payment, the principal employer is liable for the wages in full, and can recover it from the contractor.
On ground, the rule isn’t followed for a variety of reasons, with the result that migrant workers have had to depend on the benevolence of their employers for even basic necessities and are often at the mercy of contractors for holidays and hours of work.
There have also been serious administrative failures in the implementation of the BOCW Act and the BOCW Cess Act which were aimed at ensuring that building and construction workers are guaranteed such basics as education for their children and access to medical facilities. For this purpose, the BOCW Cess Act enables the State governments and the Union Territory administrations to collect a cess from every employer. However, State governments have repeatedly expressed helplessness in utilising the money collected as cess.
There is increasing awareness of the massive cost to the economy of such errors of omission. Companies that saw workers return home during this period testify to the enormous price of the disruption to production as well as the enormous efforts needed to restore their confidence such that they would come back to work as soon as possible. Recognising this, in many sectors companies are now mounting much-needed programmes to vaccinate their staff along with their families. Sadly, at the bottom of the pyramid this still remains a distant dream for migrant workers.
A more robust regulatory framework in the form of The Occupational Safety, Health and Working Conditions Code 2020 was published in the Gazette of India on September 29, 2020 after receiving the assent of the President. The Code subsumes the existing ISMW Act and states that a migrant, who comes on his own, to the destination State to work in the establishment, now falls within the ambit of Inter-State Migrant Worker. Further, it provides for registration of ISMW on the portal on the basis of self-declaration and Aadhaar. This gives portability benefits to workers.
While these provisions will hopefully pave the way for a more effective implementation of the regulatory framework there is still some distance to cover. As per the earlier notification of the Government of India, the Labour Codes were to be effective from April 1, 2021. Now, however, it has been reported that the Government has deferred implementation of labour codes citing delay on the part of States to finalise the rules.
As should be evident from the repeated waves of the migrant workers’ crisis, only a proactive and coordinated effort by the Central and State governments, along with key stakeholders including employers, will bring a sustainable and just solution to this problem.
– Pooja Prabhakar, Managing Partner & CEO