The Parliament of India has enacted various labour welfare laws which secure labour rights and welfare provisions of working class mainly applicable to the organized sectors of employment. Bu the irony is that the vast majority of the workers in unorganised sector are practically unprotected and unsecured due to the absence of a comprehensive policy and legislation. The organized and unorganized sectors are distinguished based on the extent to which these laws apply to different sectors of employment. Though the workers in organized sector constituting a small fraction of the labour work force in the country, are usually protected by numerous labour laws, which guarantees job security, equal pay for equal work, wage revisions at periodic intervals, retirement and other pensionary benefits, there is still the absence of basic welfare amenities such as housing, medical facilities, education and public distribution system at the place of employment. Even though it is a remarkable feature of labour markets all over the world that certain jobs are performed only by men, while others are performed only by women, in most societies there still are other jobs which may be done both by men and women. This is virtually true off all agricultural jobs [1]. 

In villages, it is customary and a characteristic feature that certain jobs are specified for men and other for women, while some others are either jointly undertaken, or interchangeable between men and women. But still, in agriculture, women in general take up only specific jobs, which the male workers usually avoid. However, there have been instances where women themselves have forcefully insisted on low wages in comparison to their husbands to satisfy their ego and ensure peace at home [2]. It shows a tendency towards a system of job-segregation in the agriculture labour force throughout the country. Such job segregation has several ramifications. It creates a disparity in rates of wages between the males and females, the reservation of high prestige and high wage jobs for men and low prestige and low wage jobs for women workers. It therefore, constantly brings down the bargaining power of women workers at workplace and reduces them to the state of marginal, intermittent or reserve labour which is mostly unorganised and devoid of basic rights. Recently the High court of Delhi has ruled that Industry not paying minimum wages has no right to continue [3].             

“By this discrimination within the market, it is implied that workers who are distinguished by some characteristic (such as sex, caste, status, etc.,) that does not affect their present capacity but are treated less favourably in a given employment opportunities than others who are of no greater capability but are not marked off by the characteristic” [4]. In this paper, a comprehensive lay out of the various labour welfare legislations as enacted and amended from time to time will be discussed along with the women oriented welfare measures enshrined in those labour codes in past two years. The paper will also highlight the need for having a uniform labour code(s) and their salient features for securing the interests of labour class in India.

Statement of the Problem

The basic objective underlying the Constitution of India put in by the draft makers contemplates a social revolution, brought about through the use of law as an instrument of social change and social cohesion. The Constitution contains a number of welfare provisions for the empowerment of women. Besides, National Empowerment Policy for Women, the recent express endorsement by Government of India of the ambitious 2030 Sustainable Development Goals (SDGs) will further change the path of growth and development by addressing the key challenges of women. The purpose of these provisions is to raise social, political and economic status of womenfolk and the removal of imbalances and impediments in the participation of men and women in raising their standard of living and earning dignified livelihood for their families. The women oriented provisions and specific legislations on working women made for these weaker sections which have suffered through centuries of discrimination, exploitation by being kept out of power and depriving them of education, property and employment opportunities, workplace benefits, occupational health and safety standards and welfare privileges; and therefore specific provisions need meaningful implementation at the grass-root level more specifically in un-organised sector 

Important Labour Welfare Statutes in India

The idea of welfare state has prompted India to provide socio-economic protection to the working population through the passing of numerous labour welfare legislations enacted from time to time. However, there are a meagre number of legislations, which are directly applicable to the workers in the unorganized sector although the various labour standards such as the social security rights and grievance redressal mechanisms in these acts are few or non-existent. With the constant increase in the formalization of the organised sector, it is absolutely imperative that the labour rights and social security provisions in labour welfare statutes are substantially amended to keep pace with the changing socio-economic conditions so that they are applicable to all women workers irrespective of the kind of employment sector they are engaged in. While women constitute a substantial chunk of the available workforce in India, they are still lacking in work participation as well as quality of employment [5]. One of the reasons for this lack of female labour is the scarcity of suitable employment opportunities, i.e., the disparity between what they can do and what is available to them [6]. Although all welfare statutes are not pro-gender, the provisions of law affecting women workers have been significantly reviewed periodically and amendments carried out to keep pace with the emerging requirements of the society. Some Acts which have special provisions to safeguard women and their interests are:

• The Workmen’s Compensation Act, 1923

• The Trade Union Act, 1926

• The Payment of Wages Act, 1936

• The Minimum Wages Act, 1948

• The Employees State Insurance Act, 1948

• The Factories Act, 1948

• The Plantation Labour Act, 1951

• The Mines Act, 1952

• The Employees Provident Fund and Miscellaneous Provisions Act, 1952

• The Maternity Benefit Act, 1961

• The Beedi and Cigar Workers (Conditions of Employment) Act, 1966

• The Central Civil Service Rules of 1972

• The Payment of Gratuity Act, 1972

• The Contract Labour (Regulation and Abolition) Act, 1976

• The Equal Remuneration Act, 1976

• The Employees’ Deposit Linked Insurance Scheme, 1976

• The Inter-State Migrant Workmen Act, 1979

• The Factories (Amendment) Act, 1986

• The Employees’ Pension Scheme, 1995

• The Building and Other Constructions (Regulation of Employment and conditions of service) Act, 1996.

• The Mahatma Gandhi National Rural Employment Guarantee Act, 2005

• (MGNREGA)

• The Unorganized Workers Sector Social Security Act, 2008

• The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

The above mentioned list of legislations relate to regulation of employment in dangerous occupations/employments, prohibition of night work, hours of work, overtime work, conditions of service, restriction on carriage of heavy loads, wages, gratuity, maternity relief, minimum wages, equal pay for equal work, social security such as gratuity, insurance, provident fund, pensionary benefits, provision of canteens, crèches, rest rooms, washing facilities and other facilities such as health care, safety standards, housing, education, vocational training, prohibition of sexual harassment at workplaces etc. For the sake of convenience, the welfare provisions embedded in the labour laws has been divided in the following categories:

• Measures with regard to health, safety and welfare for women

• Social security measures for women

• Wage protection for women

   

Protective Provisions under these Laws

The protective provisions relating to women workers enshrined in various labour welfare legislations have been discussed in detail with respect to the below mentioned indicators:

Safety Measures

• Section 22(2) of the Factories Act, 1948 provides that no women shall be allowed to clean, lubricate or adjust any part of the prime mover or any of the transmission machinery in motion

• Similarly, Section 27 of the Factories Act, 1948 prohibits employment of women in any part of a factory for pressing cotton while it is in work

Prohibition of Night Work

• The Factories Act, 1948 also provides that no women shall be required or allowed to work in a factory except between the hours of 6 a.m to 7 p.m [7]

• Section 25 of the Beedi and Cigar Workers (Conditions of Employment) Act, 1966 states that no women shall be required or allowed to work in any industrial premises except between 6 a.m to 7 p.m

• Section 46(1) (b) of the Mines Act, 1952 prohibits employment of women in any mine above ground except between the hours of 6 a.m and 7 p.m

Prohibition of Sub-Terrain Work

The Mines Act, 1952 prohibits employment of women in any part of mine which is below ground [8].

Health Measures

Section 19 of the Factories Act, 1948, Rule 53 of the Contract Labour (Regulation and Abolition) Act, 1976, Section 20 of the Mines act, 1952 and Section 9 of the Plantation Labour Act, 1951 states to have separate latrines and urinals for working women.

Welfare Measures

• Section 57 of the Contract Labour (Regulation and Abolition) Act, 1970, Section 42 of the Factories Act, 1948 and Section 43 of the Inter-State Migrant Workmen Act, 1979 clearly points out to have separate washing facilities for female workers

• Similarly, Section 48 of the Factories Act, 1948, Section 44 of the Inter-state Migrant Workmen (RECS) Act, 1979, Section 12 of the Plantation Labour Act, 1951 and Section 35 of the Building and Other Constructions (Regulation of Employment and conditions of service) Act, 1996 elucidates to provide facility of Crèches for young ones of working women

Provisions for Equal Pay for Equal work

The Equal Remuneration Act of 1976 provides for equal pay for both men and women doing the same or similar work. It also forbids discrimination on the basis of sex at the time of recruitment and thereafter.

Maternity Benefit

• The Maternity Benefit Act, 1961 provides that no employer shall knowingly employ a woman in any establishment during the six weeks immediately following the day of her delivery or miscarriage, nor shall any women work during this period. Every such women shall be entitled to and her employer shall be liable for the payment of maternity benefits at the rate of the average daily wages for the period of her actual absence immediately preceding and including the day of her delivery and for the six weeks immediately following that day [9]

• Similarly, the Employees State Insurance Act, 1948 states that for the entitlement to maternity benefit, the insured women should have contributed for not less than 70 days in the immediately preceding two consecutive contribution periods corresponding to the benefit period in which confinement occurs. The daily rate of benefit is double standard sickness benefit rate, i.e. full wages [10]

• The Central Civil Service Rules of 1972 also provide maternity protection. However the scope of application and quantum of relief differs vastly from other above mentioned legislations

• Section 52 of the Mines Act, 1952 and Section 79 of the Factories Act, 1948 provides for the maternity leave for any number of days not exceeding 12 weeks.

• Similarly, Section 32 of the Plantation Labour Act, 1951 provides for the sickness and maternity benefits in case of the sickness being certified by a qualified medical practitioner

Prohibition of Sexual Harassment at Workplace

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 seeks to protect women from sexual harassment at workplaces in both organized and unorganized sectors working hours by creating a mechanism for redressal of complaints [11] in the form of Local complaints Committee. Non-compliance with the provisions of Act shall be punishable with a fine of up to Rs. 50000/-.

Critical Analysis and Need for Reformation

The administration of the various schemes underlying various labour welfare legislations has failed to achieve the desired results. Under the existing provisions there are a meagre number of authorities constituted for the enforcement of labour laws more particularly for women workers. It is suggested that the size of those enforcement agencies should be curtailed so as to make it efficient and working as large number of positions have created confusion in administering the welfare schemes. It is also necessary that the authorities who are administering various social insurance schemes should not indulge in disputes to defeat or delay the claims of benefits of the insured person and whenever such dispute arises it should settle it promptly and if the employee is found entitled, it should be offered without delay. It is also important that the persons entitled to benefits receive such benefits promptly. Expeditious disposal of the claims is the need of the hour and the administrative machinery underlying various laws is still lagging far behind of the countries of the world administering such schemes to ameliorate sufferings of the working population in the matter of prompt receipt of benefits.

The whole study will considered as irrelevant if the Employees State Insurance Act of 1948 as being one of finest piece of social insurance law in India is not analysed in detail here. Although the laws in the form of Employees State Insurance Act and Maternity Benefit Act are covering the same field of maternity benefit yet they are not uniform in contribution periods and actual benefits provided and there is a lot of confusion prevailing in the schemes underlying [12]. Government policies related to maternity and child care are Maternal and Child Health Centres, Integrated Child Development Service, Cash Benefit Schemes, Indira Gandhi Matritva Sahyog Yojana which is a Conditional Maternity Benefit Program, Rajiv Gandhi National Creche Scheme for the Children of Working Mothers.2 [13]. The scope of the term ‘employee’ could have curtailed the coverage of the ESI Act but the judicial process has considerably widened the scope of the term. The term has been further widened to include dependent contractors for availing the benefits under the Act. This is most welcome in a welfare state like India wherein Part-IV of the Constitution spells out the socio economic objectives of national policy and declares that “state shall strive for public assistance in case of unemployment, old age, sickness and disablement [14]”. Further the wage ceiling of Rs.15000/- fixed under the Act is not adequate enough and this bar should be raised to Rs.25000/- to cover more and more employees including the government employees. Similarly the term ‘employment injury’ has been widened to include the list of occupational diseases and the injuries sustained out and in the course of employment. The judicial interpretation of the term ‘dependent’ has also received liberal interpretation so as to include a number of dependents for claiming the benefit under the ESI scheme. The payment of dependent’s benefit needs urgent attention because with the death of the employee his family needs urgent disposal of the claims for such benefits. Quite apparently, there is a need of enhancing the benefit periods including the quantum of benefits under the ESI scheme. The inclusion of rehabilitation allowance, vocational rehabilitation, old age medicare, medical bonus and supply of physical aids is an attractive measure provided under the scheme but much more needs to be done at the grass root level so that the facilities are availed by a large chunk of worker population. The inclusion of the maternity benefit under the ESI scheme is definitely an improvement over the maternity benefits provided under the Central as well as State Maternity Benefit Acts. The problem of disablement cannot however be solved by curative measures. Preventive measures should be immediately taken. The ESI Review committee 1982 also noted that the prevention of accidents would ultimately lead to less claims for disablements and less expenditure on employment injury. The ESI Corporation [15] should therefore encourage and provide grants to bodies undertaking research in this direction. Immediate steps should be taken to provide full medical care to the families of all IP’s (insured persons). Further inspite of the certain improvements in the medical benefit scheme, the qualitative aspects of the scheme still requires improvement. Further, Lump sum payments should be made to the insured person where there is no facility for hospital, dispensary etc.

Therefore one may come to the conclusion that the workers in the sweated and unorganized sectors of employment are in greater need of social security benefits than those in organized sectors. In spite of the repeated notices by the Regional offices of various authorities constituted such as ESI Corporation [16], EPF Organisation [17] and other authorities to hospitals, universities, government corporations, and public sector undertakings employing more than ten persons through contractors to get registered under the concerned provisions of various laws, nothing substantial has been done at the ground level. The authorities so constituted, therefore, should find a way to provide them at least medical, disablement and the dependent’s benefit if the entire social security schemes cannot be extended to them. Some such scheme should also be made for smaller establishments and necessary amendments should be made to enable the extension of those schemes to seasonal factories.

The working of all those labour welfare provisions mentioned above on careful examination reveals that there are many loopholes and impediments in its proper implementation and enforcement. The in-depth study on the working of various schemes reveals the inadequate enforcement and implementation of the provisions of the Act. The findings show that the overall utilization level is very low due to; perceived low quality drugs/facilities, long waiting periods, insolence of personnel, long waiting spells to unusual delays in reimbursement of money spent on treatment outside, lack of or low interest of employers, low awareness of procedures and ultimately the lesser number of claims. The findings also reveal the lack of awareness about the benefits provided under the various schemes even though the contributions are being regularly deducted from the wages of employees. The findings further reveal the lack of knowledge about the adjudicating machinery provided for the settlement of claims and disputes under various labour welfare statutes. The Penal provisions of these enactments are not deterrent enough to prevent the employer from violating them. The machinery for inspection and enforcement is inadequate and ineffective. These findings may reflect the existing problems with the operation of those schemes, the reimbursement and the referral systems adopted by the scheme. More specifically if the working population or the enrolees are less likely to access their insurance benefits when seeking care, then one might wonder why do the organizations will voluntarily purchase insurance coverage for their workers. However, whatever may be the shortcomings, the labour welfare laws passed by the parliament of India from time to time has so far done much to ameliorate the sufferings of the poor working class population. We the people of India can legitimately expect that these premier labour welfare schemes with certain modifications of our country can be a model for other countries of the world. Further, it is pertinent to note that various other laws enacted with the sole purpose of enabling workers to avail several privileges have not conferred enough adequate powers on the enforcement officers. For the effective implementation of those powers, it is submitted that the powers of enforcement officers/social security officers should be increased so as to enable them to inspect the factories and other establishment’s violating the provisions of labour statutes. Further the existing penal provisions should be made more deterrent in order to compel the employers of factories/establishments to comply with the provisions of the various Acts. Regarding the adjudicating machinery, it is generally found that the proceedings were generally prolonged, cumbersome and formal and that the Courts followed the pattern of ordinary civil courts which was not suited to schemes of social insurance. The execution proceedings of the insurance court should be simple and instead of settling disputes through traditional legal procedure, informal tribunals consisting of an independent chairman and a representative each of employer and employee should be established. However, the labour welfare laws, Government welfare programmes and schemes are meaningless and beyond their imagination on account of ignorance, illiteracy, lack of information social and economic backwardness [18].

India’s New Labour Codes

One of the last bastions to fall in the regulatory reform landscapes in India is the labour legislations. Some of them date back to 1926, and the law has certainly not kept up with the realities faced by Indian enterprise today. Through 4 acts (hereinafter referred to as the ‘Labour Codes’), notified on August 2019 and September 2020, the Government of India has set the stage for a landmark reform in the Indian labour law landscape [19]. 29 separate labour laws will make way for 4 new acts comprising a modern labour code which is designed to improve the working conditions and wages of labour and enhance the ease of doing business in the country. As is the case in all such structural reforms, enterprises need to be informed, prepared and comply with the new Labour Codes that are targeted to be implemented from April 1, 2021. The various labour law codes and their key highlights are as follows:

The Code on Wages, 2019

An Act to amend and consolidate the laws relating to wages and bonus and matters connected therewith or incidental there to.

Key Highlights

• Definition of ‘employee’ excludes an apprentice under the Act of 1961 and includes any person employed to do:

• Any skilled, semi-skilled or unskilled,

• Manual, operational, supervisory, managerial, administrative, technical or clerical work

• For hire or reward, whether the terms of employment be express or implied (The Chapter dealing with Payment of Wages is applicable to all ‘employees’)

• Definition of ‘worker’ includes skilled, semi-skilled, unskilled, manual, operational, supervisory, managerial, administrative, technical or clerical and excludes an apprentice under the Act of 1961 and also those

• Who are employed mainly in a managerial or administrative capacity or

• Employed in a supervisory capacity drawing wage of exceeding fifteen thousand rupees per month. 

• Wages: Sec 2(y) defines ‘Wages’ which was replicated in other codes:

‘Wages’ means all remuneration whether by way of salaries, allowances or otherwise, expressed in terms of money or capable of being so expressed which would, if the terms of employment, express or implied, were fulfilled, be payable to a person employed in respect of his employment or of work done in such employment, and includes [20]:

• Basic pay

• Dearness allowance and

• Retaining allowance, if any

• National Floor Wage: A floor wage will be fixed by Central Government for different regions which will be the basis for the State Governments to fix the minimum wage. No State Government shall fix the minimum wage below the national floor wage

• While fixing the floor wage the Central Government will consult the Central Advisory Board and State Governments

• If any State Government is already paying more minimum wages, it cannot reduce it so as to bring it on par with national floor wage

The Code on Social Security, 2020

An Act to amend and consolidate the laws relating to social security with the goal to extend social security to all employees and workers either in the organized or unorganized or any other sectors or for matters connected therewith or incidental there to.

Key Highlights

• ‘Fixed term employment’ – Fixed term employment was not defined under any earlier labour legislations. The Code defines it as engagement of an employee on the basis of a written contract of employment for a fixed period

• ‘Gig-worker’ means a person who performs work or participates in a work arrangement and earns from such activities outside of traditional employer-employee relationship

• ‘Home-based worker’ means a person engaged in, the production of goods or services for an employer in his home or other premises of his choice other than the workplace of the employer, for remuneration, irrespective of whether or not the employer provides the equipment, materials or other inputs

• ‘Platform worker’ means a person engaged in a work arrangement outside of a traditional employer-employee relationship in which organizations or individuals use an online platform to access other organizations or individuals to solve specific problems or to provide specific services or any such other activities which may be notified by the Central Government, in exchange for payment

• Social Security for Unorganized workers etc.

• The Central Government may frame the scheme for unorganized workers, gig workers and platform workers and the members of their families for providing benefits under Employees State Insurance.

• The Central Government shall frame and notify, from time to time, suitable welfare schemes for unorganized workers on life and disability cover; health and maternity benefits; old age protection; education; provident fund; employment injury benefit; housing; educational schemes for children; skill upgradation of workers; old age homes; funeral assistance etc.

• Similar provisions for gig workers and platform workers

• Registration of gig workers etc.: Every unorganized worker, gig worker or platform worker shall be required to be registered to get covered under above welfare schemes

• Provident Fund

• The contributions paid by the employer to the fund shall be 10% of the wages payable towards each of the employees (whether employed by him directly or by or through a contractor)

• The employee's contribution shall be equal to the contribution payable by the employer in respect of him/her and may, if any employee so desires, be an amount exceeding 10% of the wages, subject to the condition that the employer shall not be under an obligation to pay any contribution over and above his contribution payable under the Code

• The Code reduces employers’ contribution from 12% to 10% but there is a possibility to bring it back to 12%

• Employee State Insurance (ESIC)

• ESIC benefits will now also extend to all enterprises in hazardous industries, even if it employs only one worker

• The Government reserves the power to defer or reduce employer’s contribution, or employee’s contribution, or both with respect to EPF and ESI for a period up to 3 months at a time as the case may be in the event of pandemic, endemic or national disaster

• Gratuity

• The completion of continuous service of 5 years shall not be necessary where the termination of the employment of any employee is due to- “expiration of fixed term employment or happening of any such event as may be notified by the Central Government”

• Pro-rata Gratuity: In the case of an employee employed on fixed term employment or a deceased employee, the employer shall pay gratuity on pro rata basis

• As per the code, the gratuity is now to be calculated on 50% of the gross wages and not only on basic and DA as done earlier

• The maximum gratuity payable currently remains at INR 20 lakhs

• Note: Since the wages are defined at 50%, any calculations (leave encashment, gratuity, PF etc.) under this Code may have to be at 50% instead of earlier calculations of only on basic and DA

The Industrial Relations Code, 2020

An Act to consolidate and amend the laws relating to trade unions, conditions of employment in industrial establishments or undertaking, investigation and settlement of industrial disputes and for matters connected therewith or incidental thereto.

Key Highlights

• Fixed Term Employment: Engagement of a worker on the basis of a written contract of employment for a fixed period

• The hours of work, wages, allowances and other benefits provided to a fixed term employee shall not be less than that of a permanent worker doing the same work or work of similar nature. He/she shall be eligible for gratuity if services are rendered under the contract for a period of 1 year

• Standing Orders are made applicable to industrial establishments employing 300 workers as against 50/100 at present. The employers are permitted to adopt Model Standing Orders of the Central Government as relevant to his establishment. No other certification under the Act is required

• Permission for lay-off, retrenchment, closure: The applicability under the earlier Chapter V-B has been increased to 300. In effect, the Code allows industrial establishments with up to 300 workers to lay off etc. without having to seek government’s prior approval

• When over 50% of workers take concerted leave (‘Mass Casual Leave’), it shall be considered as a strike

• Workers cannot go on strike without giving a notice of at least 60 days. Similar provisions for lock out

• The Government proposes to set up a reskilling fund with the contributions of the employer equal to 15 days wages last drawn by the worker

• Negotiating Union/Council: The Code provides for negotiating union or negotiating council in every establishment wherever there is a registered trade union

• If majority of the negotiating council reaches an agreement it will be construed as a binding settlement

The Occupational Safety, Health and Working Conditions Code, 2020

An Act to consolidate and amend the laws regulating the occupational safety, health and working conditions of the persons employed in an establishment and for matters connected therewith or incidental thereto.

Key Highlights

• Applicable to establishments – any industry, trade, business, manufacturing or occupation with 10 or more workers

• Applicable to contractor’s establishment employing 50 or more contract labourers. The definition of contractor includes sub-contractor

• Applicable to any establishment engaging 10 or more inter-state migrant workers. Employers shall cover them under social security and pay a lump-sum amount of fare for travel to his/her hometown every year

• Definition of ‘Factory’: Increase in number of employees for coverage from 20 to 40 without power and, 10 to 20 with power

• Definition of ‘Industry’: Same as those laid down in the case of Bangalore Water Supply – Triple test

• Definition of ‘Principal Employer’: In case of a factory, it is the Occupier. In case of other establishments, it is the authority which has ultimate control over the affairs of the establishment and where said affairs are entrusted to a Manager or Managing director, such Manager or Managing Director

• The Code defines ‘Core-Activity of an establishment’: ‘Any activity for which the establishment is set up and includes any activity which is essential or necessary to such activity’

• Employers are required to create safe working environment for female workforce. Women are permitted to work in all types of work, during the night shift with their Consent

• Certain procedures are being digitized. These include: (a) Electronic registration (b) Electronic notice of commencement/cessation of operation (c) Option to electronically maintain register, issue wage slip and file returns (d) web-based inspection scheme etc.

• Concept of “single” registration for establishments having 10+ employees

VII-Key Issues with the Codes and Immediate Action Needed

• The new definition of ‘wages’ will be likely to increase the wage bill significantly for some employers:

• The employers need to re-look at some of the traditional salary components (allowances/benefits) under the new definition to ascertain whether each component is included/ excluded from the definition of ‘wages’

• The above may have an impact on the cost to be incurred by companies on components such as provident fund, gratuity, leave encashment, overtime, statutory bonus etc. Further with these changes, the net take home of the employee may also get reduced. The cost to the company may also increase to some extent

• If the exclusions allowed under the Code on Wages are less than 50% in a salary structure, the ‘wage’ under the definition could be higher

• Employers need to have clarity on what amounts to ‘sum paid to the employed person to defray special expenses’ under the definition of wages

• For instance, there is a possibility to exclude uniform maintenance allowance from the definition of ‘wages’ for entities having a company policy to wear uniform at workplace as per the demands of the business requirement

• The review of Compensation/salary structures remain a highly component specific exercise and no hard and fast rules be applied unless the stipulated factors for respective components suggest the need for exclusion or are specifically excluded

• Under the Code on Social Security, 2020, gratuity will have to be paid on the basis of the definition of wages for the entire tenure of employment of the employees (including the past period). This may result in a substantial increase in the cost to the company on account of the incremental base on which gratuity will be calculated

• The provisioning for gratuity, including contributions to be made by the company, will have to be done accordingly, based on the actuarial valuation as per the terms of gratuity policy of the respective entity

• Under the OSHWC Code, 2020 an employee qualifying as a ‘worker’, is entitled to encash unutilized leave at the end of a calendar year:

• This will be an additional cost to the employer as under the current laws, workers are eligible to encash their unutilized leaves only upon termination of employment.

• Hence, employers, depending on role and profile of employees in various entities, need to analyze who qualifies as a ‘worker’, before determining applicability of this provision

• There is no definition of Managerial/Supervisory personnel in the Codes. The employers may have to analyze and understand who would fall under the definition of ‘worker’, ‘supervisor’ and ‘managerial’ basis earlier judicial pronouncements

• The employers need to gear up for 100% compliance of the new Labour Codes without exception

Immediate Action Points Needed

• Set-up an Internal Taskforce (HR, Legal, Finance etc.) to review various aspects of the Labour Codes with Labour Law experts

• Re-structure the employment mix, if required to ensure compliance and efficiency

• Financial impact assessments on various scenarios – The implications of the definition of ‘wages’/Social Security/ Salary components/Fixed Term Employees/Consultants etc.

• Reviewing included/excluded components in the salary structure to understand the cost implications.

• Incorporating Labour Code impacts within 2021 salary budgets

• Focus on full compliance

In India, it has been well realized now that the effectiveness of law, social reforms and legislatives measures in the form of women welfare programmes and schemes can be successful and seen only in a situation when there is social sanction, social acceptance and mass support/mandate in its implementation at State level. Women in this part of world were highly backward and under-developed in the recent past. However, a substantial degree of change and development have positively been experienced by the women of state, while majority of them mostly working class still lack most of the basic facilities of human development. The opportunity and representation provided through the passing of various labour welfare provisions for women also recommends a call for solving socio-economic and gender issues deep rooted in our society. The persistent continuance of sharp gender inequalities in many different forms is one of the most striking aspects of our society, and it yields disparities in well-being as well as differences in power and participation in decision making authority. The position is same in almost all the states including J&K State. Paradoxically, every State with its lower gender scenario is equally marked by the invisibility of women at political decision-making levels thereby indicating the hindrances faced by the working women in general to claim for their rights. The women are still at the receiving end, however, to find their placement in the society, the impact of reservations and their participation in employment opportunities and the reforms needed for the proper administration and implementation of various labour welfare schemes is the crux of the present study. The Government of India’s plan to introduce a uniform labour code regulating terms and conditions of employment comprising of code on wages, industrial relations, social security, safety and working conditions in the recent years is a welcome step in empowering the labour class, especially the women workers. The reform will serve the cause only if it is aimed to ensure the neutrality in the balance of power between the labour and capital.

1. Savitra Arputhamurthy. (1990). Women work and Discrimination. Ashish Publishing House, New Delhi, p.2.

2. Gender Equality of the Second Report of the Administrative Reforms Committee. (July 2006). Unlocking Human Capital, Entitlements and Governance - A Case Study.

3. Hindustan times, Nov 06 2017, New Delhi. ‘Industry not paying minimum wages has no right to Continue’: Delhi High Court.

4. Henry Phelps Brown. (1977). The Pay Inequality. Oxford University Press, Walton Street, New York, p.145

5. Bhasin. L. (2007). Labour and Employment Laws of India. Oxford University Press, New Delhi, pp. 10-11.

6. The Hindu, Feb-12-2014, New Delhi. ‘India’s Urban Work Boom is leaving Women Behind’: A. Rathi.

7. Section 66(1)(b) of the Factories Act, 1948.

8. Section 46(1) (b) of the Mines Act, 1952.

9. Section 4 of the Maternity Benefit Act, 1961.

10. Section 46 of the Employees State Insurance Act, 1948.

11. Section 6 of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

12. Dr. G.Q. Mir. (2001). Women Workers and the Law. Valley Book House, Srinagar, 1st Ed., p.20.

13. Shashi Bala, Labour Market Participation of Working Women Post Maternity. NLI Research Studies Series No. 098/2012, V.V. Giri National Labour Institute.

14. Art.41 of the Constitution.

15. Section 3 of ESI Act, 1948.

16. Ibid.

17. Section 5A of Employees Provident Funds and Miscellaneous Provisions Act,1952.

18. Dr. V.G. Goswami. (2011). Labour and Industrial Laws. Central Law Agency, vol. -1, Ninth Edition, p.848.

19. Retrieved from https://www.dropbox.com/s/eutgg0gf68s54wm/Wages non inclusion.pdf?dl=0.

20. Ibid.