Unorganised Workers’ Social Security Act 2008
A Beginning for Bigger Struggles!
[This piece is a sequel to the commentary on the unorganized labour bill that appeared in the April 2006 and July 2007 issues of Liberation. It has been prepared by V Shankar with inputs from B Sivaraman.]
At last, the Parliament has passed the Unorganized Workers’ Social Security Bill 2008. The UPA Government has brought into effect an Act which does not have any binding on the government, and yet which it hopes to cash in the coming election.
The Labour Minister said, “when the income of our people is only Rs. 20, our Parliament, through this Bill, has given an income of two dollars a day to our people in the rural areas. Anybody can stand up and say that I want a job. You get a job of two dollars a day. What a jump it is from Rs.20 to Rs.80, and to Rs.135 in states like Delhi, Haryana and Punjab!” Perhaps, the minister wanted to conceal the fact that the workers had to fight a major battle even to get the declared wages of Rs.80 even in the much trumpeted NREGA.
In the government’s own reply to the debates, the Minister has clarified that the scheme will be implemented in a phased manner to cover six crore unorganized workers, and in turn their family members of 30 crore people, over a period of five years, extending benefits to 1 crore 20 lakh workers per year. This makes it amply clear that the Act is only an eyewash and intends to cover just 6 crore workers out of the total workforce of more than 42 crore.
Any legislation is meant for guaranteeing certain legal commitments on the part of the state; this Act, instead, leaves the implementation entirely to the whims of governments of the day.
‘Unorganised Workers’ National Advisory Board Act’
The name itself is a misnomer because the Act does not provide any social security (except mere registration) to any section of workers. It would have been more appropriate to call it an ‘Unorganised Workers’ National Advisory Board Act’. The Act does not guarantee anything other than the formation of an advisory board at central- and state-level and making the respective Labour Ministers the chairpersons of the same. This is the highest ever fraud on unorganised workers, who not only constitute one third of the entire population but contribute two third of our national income.
Neither Regulation nor Social Security!
It has been a decade since the Second National Commission on Labour proposed umbrella legislation for unorganized workers in 1999 in order to restructure the labour market conditions to match liberalization and globalisation. The Congress-led UPA government claims that the National Commission on Enterprises in Unorganised Sector (NCEUS) led by Arjun Sengupta was formed in 2004 as part of the implementation its National Common Minimum Programme that promised welfare legislation for unorganized workers. The National Advisory Committee (NAC) headed by Sonia Gandhi came up with a draft bill in 2005, which was followed by two bills prepared by NCEUS after elaborate discussions with trade union leaders. Still, all of them were thrown into the dustbin and the Labour Ministry brought out its own Bill that was a much- watered-down version of NAC draft. Again, the Finance Ministry struck down the proposals of any scheme in the Bill that might require financial commitment on the part of the government. Then, the Bill was again redrafted and introduced in the Rajya Sabha in 2007 and in turn, referred to the Parliamentary Standing Committee on Labour. Crucial recommendations of the standing committee were discarded and the bill was further referred to a Group of Ministers. Finally, a Bill has been passed that neither provides for regulation of conditions of employment nor any social security schemes; neither encompasses agrarian labourers nor extends to all unorganized workers; neither makes a categorical definition of unorganized workers nor binds the government to any commitment; neither provides a mechanism for implementation nor suggests penalty for non-implementation; neither creates a corpus fund nor makes a categorical promise of generating resources.
Ambiguity in Definition
The original name of the Bill was changed. The word “Sector” was dropped and the Unorganised Sector Workers Social Security Bill 2007 was changed to Unorganised Workers Social Security Bill 2008. At first sight, this might be misleading as a move to extend the coverage of the Bill to the informal workers in the organised sector as well. But, the change in title does not have any concurrent implication for the definition of unorganized workers. The Act says, “unorganised worker” also includes a worker in the organised sector, who is not covered by any of the Acts mentioned in Schedule II of this Act”. At the surface level, it might appear that unorganized workers of organized sector are also covered by the act. But, it says that the workers covered under the purview of ESI Act (and also PF Act, ID Act, Workmen Compensation Act, Maternity Benefits Act and Gratuity Act) will not come under the ambit of the present legislation, which implies that 2.92 crore casual and contract workers in the organized sector will be completely left out of the purview of the present legislation. Furthermore, it has defined unorganized sector as enterprises employing less than 10 workers.
The Act says that unorganized worker means a home-based worker, self-employed worker or a wage worker in the unorganized sector but it is also subjected to the condition of a ceiling on monthly earnings which is not defined. It could be the ceiling for determining BPL (Rs.300 in rural areas and Rs.500 in urban areas) or could be the extent of landholding or could be anything which is unknown and yet to be notified by the government.
It is also becoming clear that agricultural labourers will also be excluded. The Parliament rejected the amendments for clarification while the Labour Minister claims to have included agricultural labourers as well. Replying to the debates, Oscar Fernandes said, “I would like to clarify that ‘unorganised worker’ means every worker in this country who is not in the organized sector. I have referred to 94 per cent of our people and this includes every agriculturist. Specifically, I would like to say that the migrant worker is one who does 150 days of agricultural work and then goes to the cities and works there as a mason or unorganized worker. So, the Bill covers totally the unorganized sector workers. Agricultural workers are also getting the benefit.” If this is what the government means to be the coverage of agricultural labourers, it is obvious that all those who are engaged in agricultural work have been effectively excluded. Hence, the claim that the Act covered rural agricultural labour is an utter lie.
Social Security: A Mirage
The Act has mentioned that the government would periodically notify schemes related to life and disability cover, health and maternity benefits, old age protection and any other benefit as may be determined by the central government. It has also mentioned ten schemes in the schedule which includes Aam Admi Bima Yojana, Rashtriya Swasthya Bima Yojana, Janshree Bima Yojana, Janani Suraksha Yojana, Old Age Pension, Family Benefit and schemes related to weavers, artisans and master crafts persons. None of these schemes are new and are mostly applicable only for BPL families. Most of the urban unorganized workers may not fall under the BPL category. The BPL income of Rs 500 is too less even for bare existence in urban areas. Moreover, most of these schemes are insurance schemes which are to be sourced from workers and operated by insurance companies. The only possibility is that the central and state governments may subsidise contributions from BPL workers at a ratio of 75:25. Beyond this, there appears to be no plan for the government to fund the entire social security schemes.
The state governments have been given a free hand to design their own schemes related to provident fund, employment injury benefit, housing, education, skill upgradation, funeral assistance and old age homes. It can be noted that none of them are mandatory on any government.
Unknown Resources and Notional Schemes
Nowhere in the Act can one find explanation of the scope of the Act, targeted beneficiaries, implementation and grievance redressal mechanisms, penalties for violation or any other common features expected in any act worth the name. But, it says that all these will be taken care of by the (notional) schemes that would be notified by the central government from time to time.
From where will one get the requisite funds for the operation of those ‘notional’ schemes? The Act is too vague on this score as well but for indicating possible sources. Schemes may be funded partly by the central and state governments, partly by the contributions from workers and from employers. Not only are the workers but also are the so called ‘employers’, an unknown quantity.
The Hoax of Boards
There is a lot of hue and cry over the formation of social security boards. Oscar Fernandes’ main achievement is that he managed to get rid of the ‘National Advisory Boards’ and replaced it with the formation of National and State Social Security Boards. But, it is again a misleading change only, as the fundamental nature of those boards is only recommendatory and advisory in nature. They are toothless and they cannot take any decision on their own but for recommending possible schemes and advising on issues of administration to the government. They may also review issues related to the registration of workers and monitor schemes notified by the government. The board has no power, no authority over anything. If forming such advisory boards is the intention of the government it does not require any legislation, just a government order would have sufficed.
The function of registration of workers, the ‘biggest’ advantage of the entire Act too is left to the state governments to be performed through the bureaucracy at district level. Any unorganized worker of above 14 years of age can register himself/herself with the worker facilitation centre by giving a self-declaration. By getting a unique identification number and smart card that are portable, the worker will be eligible for suitable social security schemes if he/she would pay the prescribed contribution.
The much awaited Unorganised Workers’ Social Security Act has become a major farce of the millennium. The new legislation can, however, be taken as a beginning – an opportunity to raise working class struggles to newer heights by involving crores of unorganized workers. It is for the working class and trade union movement to take up the challenge to create waves of bigger and bigger struggles for a really meaningful and comprehensive legislation for unorganized workers and agricultural labourers that can cover not only social security but also wages, rights, job security and the conditions of employment. q
The NSSO 61st Round report put the number of non-regular workers in the organised sector at 2.92 crore and they include contract, casual workers probationers and “trainees”, para workers and temps etc. [According to 61st Round of National Sample Survey in 2004-05, the number of unorganised workers in the Indian economy stood at 42.26 crore, of which 39.35 crore are in the unorganised sector of economy and 2.92 crore are unprotected workers in the organised sector of economy. According to the same sample survey 6.26 crore of workers are employed in the organised sector of economy. This means one-third of workers in the organised sector who enjoy no job security or social security or wage security have been left out from the purview of the bill for the sole “fault” of working in the organised sector. Unorganised workers in the cooperative sectors have been totally excluded. India has 1.38 crore workers in the cooperative sector including self-employed workers like weavers. All of them have been left out. There are 6.5 lakh anganwadi workers and an equal number of helpers under the ICDS programme alone covering 6.49 lakh anganwadi centres in the country. Besides these workers, there are mid-day meal workers in many States covering primary school children. All over the country, around 17 lakh workers are involved in this scheme. There are about 2.4 million para workers including para health workers and para teachers and non-regularised employees of local bodies including municipal workers. Neither the governmental or quasi governmental bodies employing them provide comprehensive social security to them nor have they been brought under the ambit of the Bill. So, nearly 50 million workers already stand excluded from social security by this “inclusive” government.
MAJOR LIMITATIONS OF THE ACT
• Neither agricultural labourers have been brought under the purview of the Act nor a separate bill for agricultural labourers tabled. But, the minister claims that they are also covered.
• NCEUS had prepared two Bills, one on social security and the other on working conditions. The latter has been dumped and the Bill passed confines itself only to social security in its most diluted/truncated form.
• The 2008 Act appears to have excluded vast sections of unorganized workers like agricultural labourers, the unorganized labourers in the organised sector including contract labourers and the informal labourers in the formal sector, the anganwadi workers, para workers like ASHAs and parateachers, and those the cooperative sector. This exclusion reveals the true colours of the “Politics of Inclusiveness” of the UPA.
• The Act is applicable only to a small section of unorganized labourers whose income limit is expected to be notified by the government. There is every possibility that the subsequent notification will include parameters to exclude good number of unorganised workers from the applicability of the law and the schemes.
• The workers in the construction sector are exempted from making any payment because a cess was collected from the sector for providing health insurance and other facilities. But there is no provision to collect a mandatory cess from the employers in other sectors. Only the BPL unorganized workers have been exempted from paying any premium only in the case of one scheme – 'Rashtriya Swasthya Bima Yojana – providing for a paltry health insurance cover of up to a maximum of Rs.30,000 for a family of five. As a result, workers in other sectors would have to pay the premium amount.
• The passage of the Act is not accompanied by any legally stipulated guarantee for the establishment of a Central Welfare fund.
• There is no provision for penalties in the Act to punish those employers who violate it.
• “Social Security” to the unorganized workers has been narrowed down to ten paltry social security schemes. Most of these schemes like old age pension or maternity benefit (or even the meagre Bima Yojana, for that matter) are already existing/ongoing schemes and there is nothing new in them.
• As a result of dropping the Bill on conditions of work prepared by the Arjun Sengupta Commission, working conditions of unorganised workers including hours of work, mandatory holidays, industrial safety, job security, industrial relations and trade union rights, guaranteeing minimum wages, bonus etc., would remain unregulated and unenforced.
• The government has not acknowledged the principle of unemployment allowance in the case of job losses for unorganised workers or any form of employment and wage/income guarantee. It was recognized in the case of NREGA and the State governments in West Bengal and Tamil Nadu introduced a meagre payment of Rs.500 per month for organised industrial workers in case of loss of jobs but a comprehensive unemployment/job-loss allowance is yet to take shape in India as in the West. What is social security in the absence of unemployment allowance?
• The national and state boards for unorganised workers provided for in the Act are advisory bodies and like the National Labour Commission they are toothless bodies. While implementation is left to the district bureaucracy, there is no independent enforcement or watchdog/oversight body with representation from unions and there is no appellate authority even.
• Not only there is no penalty against the defaulting employers, there would be no action against the bureaucrats who refuse to register any unorganised worker under any of the twin scheduled schemes.
• The special problems of migrant workers, especially inter-State migrants, among unorganised workers, especially the problem of security, has been totally ignored by the Act.
• The special problem of women unorganised workers do not figure in the Bill. The problems of security, sexual harassment, proper accommodation for migrant women workers, issues relating to nature of work and industrial safety, gender wage gap, non-payment of wages, childcare facilities at work spot etc., have been totally neglected.