By Dr. Gyan Pathak
ILO’s Committee of Experts on the Application of Conventions and Recommendations has sought latest data and information from the government of India regarding the concerns raised by national and international trade unions regarding violation of international labour standards’ obligations.
The ILO’s 2023 report of the Committee of Experts on the Application of Conventions and Recommendations has stated some of the concerns in the report itself while adding that the committee is raising other matters in a request addressed directly to the Government of India.
However, the issues appeared in the report has more than exposed the real intention of the ruling establishment in India. Even the concerns raised by the trade unions in 2019 were not replied by the government in time and the Committee had to reiterate it request. Finally, the Committee received information from the government and found them not sufficient in several cases.
The Committee noted that the Code on Wages provides that inspectors-cum-facilitators shall, before the initiation of prosecution for an offence, give employers an opportunity to comply with the provisions of the Code within a certain time limit. However, the committee recalls that article 17 of the Convention, with certain exceptions, persons who violate or neglect to observe legal provisions enforceable by labour inspectors shall be liable to prompt legal proceedings without previous warning, and that it must be left to the discretion of labour inspectors to give warning or advice instead of institution or recommending proceedings.
The Committee has even requested the government to take the necessary measures to ensure that labour inspectors are able to initiate legal proceedings without previous warning, in conformity with Article 17 of the Labour Inspection Convention.
Concerns over the Occupational Safety and Health (OSH) and Working Conditions Code were referred to as having particular relevance to labour inspections, including the use of the term “inspector cum facilitator” instead of “inspector”, which had been opposed by the central trade unions and the distinction between “inspections” and “surveys” as referred to in the Codes. The government gave clarification on these or several other issues raised by CTUs, however, the committee notes that the government did not provide an answer to the question related to section 110 of the OSH and Working Conditions Code, according to which prosecution proceedings against an employer for any offence shall not be initiated by inspectors-cum-facilitators before an opportunity is given to the employer concerned to comply with relevant provisions of the Code within a period of thirty days from the date of notice, except for the case of an accident or a violation of the same nature repeated within a period of three years from the date on which the first violation was committed.
The Committee has noted several of other observations made by the International Trade Union Confederation (ITUC) and by the Indian Central Trade Unions (ICTUs). Long back in September 2020, ITUC had raised the issue of changes made in the labour laws by some states including Uttar Pradesh, Madhya Pradesh, Rajasthan and Gujarat by way of amendments, ordinances or executive orders, bypassing tripartite consultations and parliamentary debates, which were violations of international labour conventions. Government of India did not replied to the concerns and therefore the Committee had to reiterate the issue for an early reply.
Finally, though delayed, Government’s reply reached the committee in May 2021. In reply to the ITUC concerns, the government said that the ordinances amending the labour law, which were adopted by some of the states in 2020 in response to COVID-19, did not enter into force as the central government, which has concurrent legislative competencies on labour matter, did not concur with any of them.
With regard to the executive order by the Madhya Pradesh Government, which exempted the application of several provisions of the Factories Act, the Government informed that the order had a limited validity of three months and was not extended. In the case of Gujarat, the decision to increase overtime hours from 8 hours to 12 hours a day, without payment of overtime, was struck down by the Supreme Court of India.
With regard to the direct contacts mission requested by the Committee on Application Standards (CAS), the government organised digital technical meetings due to the pandemic. The committee has now noted the ITUC’s call on the government to accept a direct contacts mission of the ILO to assess the implementation of Convention No 81 in law and in practice and to provide the necessary technical assistance.
The concern about labour inspection in Special Economic Zones (SEZs) were raised and the ITUC and ICTUs had expressed their continuing concern about a lack of effective labour inspection, with continuous violations in the SEZs. ITUC also expresses concerns over the fact that inspections are being carried out by development commissioners, who also have a responsibility to promote investment in the SEZs. Moreover, the ICTUs indicate that trade unions are restricted in entering the SEZs and filing complaints, and that they are not informed of inspections conducted in these zones. Moreover, there were no data about inspections and the actions taken. Government has informed that the requisite information were unavailable due to the pandemic disruptions but will be made available after resumption of normalcy in industries. The committee have sought detailed information regarding the concerns raised by the trade unions.
As for the statistical information to be made available to the committee, the government had merely referred to the annual reports of the Ministry of Labour and Employment published on its website, and other initiative through several other portals. The committee ‘appreciated’ the government but requested it to send date directly to them and also noted the concerns of ITUC and ICTUs that the statistical data provided on the web does not allow for an assessment of the effective operation of the labour inspection services.
The committee has noted the continuing concern expressed by ITUC that the human and material resources of the labour inspectorate remain inadequate, and therefore requested the government to provide updated information in this regard, apart from other latest data on workforce and the issues and concerns raised by trade unions. (IPA Service)