This chapter will enable students to:
- Understand the concept and main elements of labour and social legislation
- Present a description of the factors and forces influencing the course of labour legislation
- Describe the provisions of the Indian constitution in regard to labour and explain their significance for labour legislation
- Explain the various principles of labour legislation
- Present a classification of various types of labour laws
Legislation is an instrument to control, restrain and guide the behaviour and courses of action of individuals and their groups living in a society. As such, legislation by the state is social legislation. It is rooted in the coercive power of the state, and the realization as well as acceptance by the individuals of its utility. It further rests upon the assumption that individual, groups and their associations, acting in absolute freedom to achieve their goals, interests and objectives may clash with each other, attempt to promote their self-interest at the cost of others and deviate into channels of action, which are considered at a particular time injurious to the society. It is the general apprehension of an undesirable course of behaviour and, in many cases, the actual adoption of such a course that leads the society, working through the state, to legislate for the purpose of controlling and guiding individual and group behaviour.
Legislation is only one of the many institutions which operate in the area of controlling and directing individual actions into desirable channels. Two of other such instruments are: (i) religious prescriptions and (ii) social customs, traditions and conventions.
All religious orders have prescribed courses of action for their members and their groups, laying down what is good and what is bad for them. They have laid down the goals and values of the individual and social life, prescribed the methods and means to achieve them, and prescribed others. The penalty for any deviation from the prescribed course has generally been the fear of hell and ex-communication from the religious order. Similarly, over a period of time, there have grown certain customs and conventions which also restrict the course of individual action and seek to prevent it from degenerating. In many cases, these customs and traditions become very deep-rooted and also very powerful, exercising an influence, sometimes even stronger than that of the state and state legislation. History is replete with illustrations where individuals have defied the authority of the state at the behest of their religious orders and social customs.
However, with the spread of the knowledge of modern science and the all-pervasive spirit of reasoning and scientific inquiry, the older religious beliefs and customs have come to be questioned and subjected to the test of reasoning. Many of these customs and beliefs have failed to stand the rigours of tests and have consequently fallen into disuse, no longer exercising the same influence as they did once. These orders and beliefs might have well served the prevalent dominant social needs and purposes and might have contributed to the stability of social order of the time. But as the society grows, new needs and urges develop and technology advances, religious traditions and customs tend to become out of date and fossilized. They lose the capacity of adaptation and become rigid, no longer serving any useful social purpose. Thus, one of the objectives of social legislation today is to modify some, eliminate a few, and replace many of these beliefs and customs.
Generally speaking, labour legislation constitutes a part of social legislation. Social legislation is mainly designed to meet the existing social needs and purposes, to anticipate the course of social progress and to give it a particular shape and content. However, legislation can be both progressive and regressive. Insofar as it attempts to meet the current social needs and problems, constantly seeks to keep abreast of changes in a dynamic society, and foresees the course of social progress, it is progressive in character. On the other hand, if it shelters and protects evil practices and exploitation of the under-privileged groups in society, it is regressive. Nevertheless, with the growing knowledge of the processes of social change and the growing control of the masses over the machinery of the state, the progressive features of social legislation are becoming more and more prominent.
All legislations are social in character. The Indian Penal Code, the Transfer of Property Act, the Indian Income Tax Act, the Companies Act and similar other Acts have their social implications and, therefore, cannot be said to be much different from legislations that relate to the control of beggary and prostitution, abolition of child marriage and untouchability, which are popularly considered to be social legislation. In common parlance, social legislation does not include the former category of legislations, though they are no less far-reaching in their social implications. The modern income tax laws with their progressive features leading to income redistribution, and the legislations relating to land-reforms and nationalization of industries in India have changed deep-rooted economic institutions and have caused many changes in the social order. If the definition given above is accepted, then all legislations will have to be discussed under the heading ‘social legislation’ because they are all meant to bridge the gap between the existing laws and the current needs of the society.
Different authors, under different contexts and with specific purposes in view, have defined ‘social legislation’. (Social legislation embraces action by government authority to eliminate objectionable elements of the socio-economic system and provide elements for which the system does not make provisions. It exerts its force on social relationships.) A few of such definitions will be illustrative. According to John D. Hogan and Francis A. J. Ianni, ‘Socio-legislation embraces action by government authority to eliminate elements of the social-economic system which are “objectionable” and provide elements for which the system does not make provision. The medium on which social legislation exerts its force is social relationships’.1 The Encyclopedia Americana defines social legislation as ‘a general term enacted for the control of social problems arising through modern conditions of vast industrial enterprises and the changed mode of living arising there from’.2 Social legislation has further been defined as ‘legislation calculated to bridge the gulf between the existing laws and the current needs of society’.3
Though the words may differ, the content is the same in all the definitions. Jeremy Bentham, while talking of civil legislation, a term which he used to include all state legislations, mentioned four specific objectives of civil legislation. These are: (i) to provide subsistence, (ii) to aim at abundance, (iii) to encourage equality and (iv) to maintain security. These four objectives contain all the ingredients of modern social legislation as mentioned in the definitions given above.
Labour legislation is a form of social legislation but there are many points on which distinctions between the two can be made: it regards the individual as a worker, whereas social legislation considers him primarily as a citizen.4
Keeping in view the scope of social legislation in India, one may define it as legislation designed specifically to redress existing social evils and to protect the interests of the under-privileged and handicapped sections of the community. Thus, no legislation will be included under the term ‘social legislation’, unless it relates to specific social evils and the creation of a set of rights and privileges or to the removal of the handicaps blocking the progress of certain groups or sections in the community.
Labour legislation seeks to deal with the problems arising out of the occupational status of individuals. Consequently, such problems as hours of work, wages, working conditions, trade unionism, industrial relations, and so on, come to be the main subject-matters of labour legislation. Thus, regulation of the behaviour of the individual or his group is the function of labour legislation as of any other legislation. But under labour legislation, the individual is affected in the capacity of a worker or an employer. Therefore, persons who are neither employers nor workers are least affected directly by labour legislation. To make the point clear, a few examples are necessary. A legislation regarding working conditions such as the factory legislation may affect an individual in his capacity as a worker or an employer and, therefore, factory legislation is a piece of labour legislation. Similarly, laws regarding industrial relations or payment of wages or compensation for work-injuries or employment of women and children impinge upon the individuals as workers and employers. On the contrary, a law regarding ownership of property affects the individual as the owner of property; a law regarding franchise regulates the behaviour of the individual as a political citizen; a law relating to marriage affects him in the capacity of a family man; and a law with respect to sales tax bears upon him as the purchaser of a commodity.
Labour legislation refers to laws designed to improve the conditions of workers, to protect the rights of labour unions, as well as, to protect employers, and the public from possible excesses on the part of organized labour. Labour legislation regards the individual as a worker, whereas social legislation considers him primarily as a citizen.
Thus, individuals have different roles to perform and different laws are designed for regulating the different roles. Hence, it is the particular role of the individual, sought to be influenced by a piece of legislation that ultimately determines the character of that law. It is this role which decides whether a particular legislation falls under the category of labour legislation or social legislation or some other type of legislation. A few of the social legislations are directly concerned with workers, a few indirectly, while many others may not affect them at all. Insofar as social legislation aims at improving and altering social relations, labour legislation merges into social legislation. The protective aspect of labour legislation is concerned primarily with raising the lot of the working men, whereas its regulative aspect places emphasis on the exceptions to the general rules of freedom of contract.
FORCES INFLUENCING MODERN SOCIAL AND LABOUR LEGISLATION
The beginning of modern social and labour legislation lies in the excesses of the early industrialism that followed the industrial revolution. It is well-known that the early phase of industrialization in the capitalist countries of the world in an era of unbridled individualism, freedom of contract and laissez-faire was characterized by excessive hours of work, employment of young children under very unhygienic and unhealthy conditions, payment of low wages and other excesses. Naturally, such excesses could not have continued for long without causing a protest from social thinkers and philanthropists and without a demand for reform measures. The early Factories Acts flowed from these excesses and manifested the desire of the community, in general, to protect its weaker sections against the effects of unregulated competition. It can be stated without any fear of contradiction, that modern labour legislation is the child of the industrial revolution and has followed industrialization everywhere.
Rise of Trade Unionism
The trade union movement which itself springs from industrialization has been another important factor contributing to the growth of labour legislation. Though the early trade unions suffered persecution and opposition from employers and suppression by the state, once they gathered strength and won recognition, they became a powerful factor in shaping the course of labour legislation. On the one hand, their demands for the protection of the interests of the working class led to legislation in the fields of wages, hours of work, workmen’s compensation, social security and other areas. On the other, their growth necessitated legislation for the regulation of industrial disputes, their prevention and settlement, and maintenance of industrial peace as well as trade union rights and privileges. Trade unions have been as much conditioned by labour legislation as they have conditioned it.
Growth of Political Freedom and Extension of Franchise
The industrial revolution created not only the era of economic individualism but also of political liberalism. The gradual extension and adoption of universal adult suffrage placed in the hands of the working class a powerful instrument to influence the course of state policy. Gradually, the working class started sending their representatives to legislatures who readily espoused the cause of labour and got progressive measures enacted. The emergence of labour parties in many industrial countries of the world generated such forces and supported and initiated such proposals of labour legislation as were beneficial to the working class. It is natural that workers, who constitute the majority of population in almost all highly industrialized countries, should use their political power offered to them by parliamentary institutions for the betterment and amelioration of their working conditions.
Rise of Socialist and Revolutionary Ideas
The growth of socialist ideas has been another important force conditioning the speed and direction of labour legislation in various capitalist countries. In his analysis of capitalism, Karl Marx showed that exploitation of labour was inherent in the capitalist economic system. He, therefore, advocated the overthrow of the capitalist economic system, as a necessary condition for the abolition of the system of wage-slavery and the liberation of the working class. The echo of the slogan, ‘Workers of the world unite, you have nothing to lose but your chains’ reverberating throughout the capitalist world, sent a shudder among the conservative and capitalist circles, to which ameliorative and protective social legislation came as a safe alternative. The Utopian and Christian socialists challenged the psychological and ethical assumption upon which the current defences of private property rested, and showed the inhumance and unnatural consequences of unrestrained competition. The Christian socialists of England emphatically declared that the miracles, parables and sermons of Christ showed ‘that His supreme interest was not in formal creeds and rituals but rather in seeing that the ordinary man was housed, clothed, fed, protected from distress, and enabled to live a temperate and decent life’.5 The spread of socialist ideas increasingly led to the realization of the need for enacting labour legislation for ameliorating the conditions of workers whose working and living conditions were miserable. The efforts of the Fabian Society of England and the establishment of socialist and communist parties in many countries and the first and second Internationals also strengthened the trend towards progressive labour legislation.
Growth of Humanitarianism, and Social Welfare and Social Justice
Any discussion of the factors shaping the course of labour and social legislation will be incomplete unless a reference is made to the spread of humanitarian ideas and the role of the humanitarians, the philanthropists and the social reformers. It is a known fact that the early Factories Acts resulted from the efforts of the humanitarians like Joseph Hume, Francis Place, Earl of Shaftesbury and others.
The cause of labour was just, but it needed the support of the humanitarians and social reformers who could preach and persuade people against the powerful social prejudices and barriers. In those early days, it required an immense moral courage and a powerful vision to visualize the evil consequences that would have resulted from the neglect of a large section of the community.
These ideas were taken up by others and were supported by investigations into the living and working conditions of the toiling masses, conducted by persistent and persevering social researchers. Gradually, the ideas of social justice, implying that opportunities for development should be available to all and that the affluence of the few should not accrue at the cost of the many, spread in and took hold of the society. Researches in social sciences like sociology, psychology and anthropology exploded the myth of the natural elite and gave a powerful push to the movements for social reforms, social change and social legislation.
International Labour Organization (ILO)
The establishment of ILO in 1919 has been a very potent factor in conditioning the course of labour legislation all over the world. The acceptance of the ideas that ‘labour is not a commodity’, and the subsequent slogan that ‘poverty anywhere constitutes a danger to prosperity everywhere’, have influenced the course of labour legislation in all countries. The ILO, through persistent investigation of workers’ living conditions, has continuously established the need for ameliorative labour legislation.
It has initiated proposals for labour legislation, subjected them to elaborate discussions and reviews and has adopted conventions and recommendations. The conventions, whether formally ratified and accepted or not by the member states, have led to new legislations and modification of the existing ones. The ILO, by trying to establish uniform labour standards despite the diverse conditions and uneven economic developments of the world, has done a singular service in the field of labour legislation and labour protection.
India became a founder member of ILO and also a permanent member of its governing body since its inception. As such, ILO has a particular significance for labour legislation in India and has influenced its course. Though the number of conventions ratified by India is not large, the influence of ILO can be traced through the entire course of Indian labour legislation (see Chapter 32).
FORCES INFLUENCING SOCIAL AND LABOUR LEGISLATION IN INDIA
The foregoing gives a broad outline of the general forces shaping the course of labour and social legislation worldwide. The factors which are specific to India, in addition to those mentioned above, may be discussed under three heads:
- Influence of colonial rule
- Struggle for national emancipation and the adoption of Indian Constitution in 1950
- Old and archaic basis of the Indian social system
The conditions of life and labour in the early periods of industrialization in India were extremely rigorous—hours of work were excessive, and the industrial labour drawn from the rural areas was severely exploited. The British colonial rule in this country was primarily interested in protecting the interests of the British capitals invested in the Indian industries and not so much in protecting the workers.
It is well known that the early factory and labour legislation in India resulted from the need for protecting the interests of the foreign industrialists and investors. In the tea plantations of Assam and Bengal, where life and work became extremely intolerable, workers started deserting their place of work for their village homes.
The earliest piece of labour legislation, the Tea District Emigrant Labour Act, 1832, and Workmen’s Breach of Contract Act, 1859, were designed more for the purpose of ensuring a steady supply of labour to the tea gardens in Assam, than for protecting the interests of the labourers. The latter Act made the desertion of the tea gardens by the labourers, a criminal offence. This was despite that fact that the conditions of the life and work in the tea gardens were extremely difficult and strenuous. Similarly, the first Factory Act of 1881 resulted from the complaints of the Lancashire textile magnates against competition by the cotton textiles produced in the Indian mills because the labour employed by them was extremely cheap. The main idea behind this legislation was to increase the cost of production of Indian textiles by reducing the hours of work and improving other working conditions. Nobody denies the benefits which this legislation conferred on the Indian textile workers, but they were incidental to the main purpose of this legislation—the protection of the interests of the Lancashire industrialists.
The second influence of colonial rule on Indian labour legislation has grown out of the fact that the early administrators and the civil servants in India were drawn from England. They brought with them the pragmatism of the British society and were steeped in the English tradition. The result has been that the course and pattern of Indian labour legislation has closely followed that of England, though with a big time lag. Starting in the form of a trickle, rooted in an experimental approach, labour legislation in both the countries, gradually became a strong movement. The cotton textile industry was the first to come under the purview of the Factories Acts in both the countries, though their scope at the early stages was very restricted. Similarly, other pieces of labour legislations enacted during the period such as the various amendments to the Factories Act, Workmen’s Compensation Act, 1923, Indian Mines Act, 1923, Indian Trade Unions Act, 1926, Payment of Wages Act, 1936, Employment of Children Act, 1938, among others, have followed the British pattern.
Struggle for National Emancipation and the Adoption of Indian Constitution
The struggle for national emancipation from the colonial rule necessitated the welding together of the various sections of the Indian population. In order that the struggle could take roots and become a mass movement, the workers, the peasants, the Kisans and other downtrodden sections of the Indian population, including the untouchables and the backward classes had to be aroused and enthused with the dreams of a better future after independence. The struggle for national independence picked up socialist and communist influence generated by the Russian Revolution, and came to be closely identified with the interests of the workers and peasants. Industrial workers were organized into trade unions and the peasants were encouraged to form their own organizations. The organized industrial workers demanded improvement in their working conditions and consequently, laws had to be passed to protect them from excessive exploitation. The records of the debates in the Indian Legislative Assembly show how the nationalist members made tireless efforts to get protective labour legislations enacted. The Indian Trade Unions Act, 1926, was enacted in response to the demands of the Indian trade union movement supported by its nationalist leaders. The appointment of the Royal Commission on Labour (1929), which considerably influenced the course of subsequent labour legislation, was partly the result of the pressures exerted by the nationalist and trade union forces.
The leaders of the nationalist movement had promised the establishment of a better and just social order after Independence. In this connection, the resolution adopted by the Indian National Congress in the Karachi session of 1931, is of particular significance. The resolution elaborated a number of rights of labour,6 which were incorporated in the Indian Constitution, adopted in 1950. The provisions of the Constitution having a bearing on labour and social legislations have been dealt with later in the chapter.
Old and Archaic Basis of the Indian Social System
The old and archaic Indian social structure and practices have deeply influenced social legislation in India. It is well-known that the beliefs, customs and social practices, originating in the social needs of a particular time, become outdated and ineffective if allowed to continue even after they have outrun their use. The older the society, the more widespread are such practices, breeding injustice and social evils. A modern welfare state which aims at creating a just social order has to Act against such practices. National integration demands that such beliefs and practices that cause social conflict, shatter social harmony and lead to moral degradation be banished as quickly as possible. A few of such customs and traditions which have demanded and continue to demand immediate attention are the following: (i) The practice of child marriage; (ii) the dowry system; (iii) subordination and suppression of the rights of women; (iv) caste system resulting in untouchability and social and economic backwardness of many castes and community; (v) slavery, indentured, forced, bonded and begar labour; (vi) devadasi system and kuleena system, reet system resulting in immoral traffic among women and girls; and (vii) beggary.
These problems have received attention of the state and laws have been enacted against them, though many of them still continue to fester the body politic of India and demand further corrective measures.
As social order grows and changes, new problems arise which cannot be allowed to get aggravated. Such problems like juvenile delinquency, new forms of crime, injustices arising out of inequality of income and wealth, problems of social security and poverty, have to be tackled through legislative measures. This brief review of the many facets of social problems facing the country indicates the widening horizon and the fields of social legislation in India.
INDIAN CONSTITUTION, AND SOCIAL AND LABOUR LEGISLATION
The Indian Constitution contains important provisions which have a direct bearing on the course of social and labour legislation in the country. These are mainly incorporated in the Fundamental Rights and Directive Principles of State Policy. Fundamental Rights are justiceable. The Directive Principles, though not justiceable, are ‘fundamental in governance of the country’ and it is ‘the duty of the state to apply these principles in making laws’. These principles lay down that the state should strive to promote welfare of people by securing and protecting as effectively as it may, a social order in which social, economic and political, shall inform all institutions of national life.
Right to Equality
The state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. No citizen shall, on these grounds, be subject to any disability, liability, restriction or condition with regard to access to shops, public restaurants, hotels and places of public entertainment or the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of state funds, or dedicated to the use of the public. However, nothing in this article shall prevent the state from making any special provision for women and children and for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes [Art.15].
There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State [Art.16(1)]. ‘Untouchability’ is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of ‘untouchability’ shall be an offence punishable in accordance with law [Art.17].
Right to Freedom
All citizens shall have the right to freedom of speech and expression and to form associations or unions and to practise any profession or to carry on any occupation, trade or business [Art.19 (1)].
Right Against Exploitation
Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law [Art.23(1)].
Directive Principles of State Policy
The Directive Principles of State Policy are not enforceable by any court, but they are fundamental in the governance of the country and it is the duty of the state to apply them while making laws [Art.37]. The principles having a bearing on social and labour legislation are as follows:
- The state shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice—social, economic and political, shall inform all institutions of the national life. [Art.38(1)].
- The state shall, in particular, direct its policy towards securing: (a) that the citizens, men and women, equally have the right to an adequate means of livelihood; (b) that there is equal pay for equal work for both men and women; (c) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength; and (d) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. [Art.39].
- The state shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want. [Art.41].
- The state shall make provision for securing just and humane conditions of work and for maternity relief. [Art.42].
- The state shall endeavour to secure by suitable legislation or economic organization or in any other way, to all workers—agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities … . [Art.43].
- The state shall take steps, by suitable legislation or in any other way, to secure the participation of workers in the management of undertakings, establishments or other organizations engaged in any industry. [Art.43A].
The above principles have a bearing on both labour and social legislation, but there are some others which are related more to social issues. These are as follows:
- The state shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years. [Art.45].
- The state shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation. [Art.46].
- The state shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the state shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. [Art.47].
Distribution of Legislative Powers
Article 246 and Seventh Schedule of the Constitution deal with distribution of legislative powers between central and state legislatures. The Seventh Schedule contains three lists for the purpose, namely, ‘Union List’, ‘Concurrent List’, and ‘State List’. Parliament has the exclusive power to make laws with respect to any of the matters enumerated in the union list. Both parliament and legislature of a state have the power to make laws with respect to any of the matters enumerated in the ‘Concurrent List’. The legislature of a state has the power to make laws with respect to any of the matters enumerated in the ‘State List’. In certain cases, parliament can also make laws on a subject enumerated in the State List.
The Union List
The subjects enumerated in the Union List having a direct relevance to labour and social legislation include: (i) participation in international conferences, associations and other bodies and implementing of decisions; (ii) railways; (iii) shipping and navigation; (iv) ports; (v) airways; (vi) posts and telegraphs; (vii) banking; (viii) insurance; (ix) industries controlled by the union government; (x) oilfields; (xi) regulation of labour and safety in a mines and oilfields; (xii) industrial disputes concerning union employees; (xiii) inter-state migration; and (xiv) union pension. The labour and social problems in the industries enumerated in this list naturally become subjects of enactment of laws by Parliament.
The Concurrent List
The relevant subjects in this list include: (i) trade unions; industrial and labour disputes; (ii) social security and social insurance; employment and unemployment; (iii) welfare of labour including conditions of work, provident funds, employers’ liability, workmen’s compensation, invalidity and old age pensions and maternity benefits; (iv) factories, boilers and electricity; (v) vocational and technical training of labour; (vi) marriage and divorce; infants and minors; adoption; joint family and partition; (vii) vagrancy; nomadic and migratory tribes; (viii) population control and family planning; (ix) relief and rehabilitation; and (x) charities and charitable institutions.
The State List
The more obvious subjects include: (i) prisons, reformatories, Borstal institutions; (ii) relief of the disabled and unemployable; (iii) betting and gambling; and (iv) state pensions.
The laws made by parliament may relate to the whole or any part of the territory of India and those made by the legislature of a state to the whole or any part of the state. No law made by the parliament is deemed invalid on the ground that it would have extra-territorial operation [Art.245].
PRINCIPLES OF MODERN LABOUR LEGISLATION
It has been shown earlier in the chapter that during the British colonial rule in India, a few labour laws such as the Tea District Emigrant Labour Act, 1832, and Workmen’s Breach of Contract Act, 1859, were enacted to serve the interests of the employers and were repressive in character. Similarly, the Assam Labour Emigration Acts, 1863–1901, declared desertion of tea gardens in Assam without staying for the prescribed period and without permission, a punishable offence. Examples of repressive labour laws are available in other countries as well. For example, as early as 1351, the Statute of Labourers in England prescribed the maximum wage rates for various categories of agricultural labourers, and demanding more than the maximum was declared a punishable offence. In order to counter the formation and growth of workers’ combinations, Combination Acts 1799, 1800 of England ‘declared illegal any combination for any of the purposes for which most combinations of workmen existed; and any workman entering such a combination became thereby liable to imprisonment. Among the purposes specified were included: those of obtaining an advance of wages, lessening hours of work, preventing or hindering any person or persons from employing whomsoever he, she or they thought proper to employ in his or their business; and controlling any person or persons carrying on any manufacture trade or business in the conduct or management thereof’.7 Similar laws were enacted in France and a few other European and Latin American countries. However, with the growth of democratic ideas and principles, socialist and collectivist ideas, advent of welfare state, rise of trade unions, emancipation of countries from colonial rule and a host of other forces, repressive labour laws came to be repealed sooner or later, and one hardly gets their examples in the modern industrial societies. In almost all the countries of the world, labour laws increasingly became progressive in character and have been enacted with certain objectives and on the consideration of certain principles, which are generally reflected in the objects and reasons of the relevant bills.
The principles of labour legislation have been categorized differently by different scholars. For example, Frank Tillyard, while examining experiments in industrial legislation in Great Britain, highlighted ‘protective’ and ‘regulative’ aspects of such legislation.8 In 1937, R. K. Das mentioned four major principles of labour legislation (i) social justice, (ii) social welfare, (iii) national economy and (iv) international solidarity. The principle of social justice includes abolition of servitude, freedom of association, collective bargaining and industrial conciliation. The principle of social welfare covers development of childhood, opportunity of education, conservation of womanhood and improvement of environment. The principle of national economy is concerned with development of industry, control of working conditions, regulation of wage payment and social insurance. The principle of international solidarity has been explained in terms of the compliance of the provisions of Conventions and Recommendations adopted by ILO9 Although the broad principles enunciated by R. K. Das reflect the considerations behind enactment of a number of labour laws, not all the specific principles covered are commensurate with the broad groups under which they are placed. Besides, certain principles such as ‘social welfare’, ‘opportunity of education’, ‘conservation of womanhood’ and ‘development of industry’ have broader implications rather than confined only to labour legislation.
On the basis of a study of the objectives behind the enactment of labour laws in a global perspective, certain generalizations may be drawn in respect of the principles. These principles of labour legislation may be classified and explained as follows.
Principle of Protection
The principle of protection suggests enactment of labour legislation to protect those workers who are not able to protect their interests on their own and also workers, in particular industries against the hazards of industrial processes. It is well known that the early phases of industrialization witnessed hazardous and strenuous physical working conditions, excessively long hours of work, employment of children of tender ages and women on dangerous operations and during night, pitifully low wages, malpractices relating to mode and manner of wage payment and similar other conditions. The unbridled competition in the economic and industrial fields and operation of the doctrine of laissez-faire resulted in a callous disregard of human elements in industry. The workers lacking organized strength were not in a position to raise an effective voice against their hardships and sufferings. However, a few philanthropists,10 social reformers and even a few enlightened employers raised voice against the pitiable conditions of workers, particularly children and women, and demanded enactment of laws to mitigate their hardships. It was under these conditions that the first factory legislation in the world in the form of Health and Morals of Apprentices Act was enacted in England in 1802.
As industrialization spread, a large number of factories with varying processes and products came to be set up. These created new hazards for the workers in addition to the earlier ones. Besides the establishment of factories, mining and other industries also came to be developed bringing with them similar problems and conditions. Some of the areas where legislative protection in factories and other industrial establishments was needed included health hazards, insanitary and strenuous physical working conditions, long hours of work, low wages, malpractices relating to mode and manner of wage-payment, insufficient leave and holidays, exploitation of children of tender ages and women, and others. As said earlier, the first measure was initiated in England in 1802 in the form of Health and Morals of Apprentices Act. Subsequently, a series of Factories Acts with improved coverage and standards came to be enacted in almost all industrialized countries of the world. Similar laws were enacted for other industries such as mines, transport, plantations, shops and establishments, and so forth. The minimum wage and payment of wages legislations also seek to protect workers in matters concerning wages.
Bonded Labour System
Bonded labour system is a system mainly prevalent in rural areas under which the labourers or their ancestors taking loans and advances from their masters, generally big cultivators and zamindars, were obligated to serve their masters as long as the debts or advances were not fully recovered. In practice, such loans and advances along with their interests continued to remain unreturned, and the labourers and also their family members were forced to serve their masters from generation-to-generation on nominal remuneration or no remuneration at all.
Examples of Protective Labour Laws in India are shown in Box 15.1. Labour legislation designed to safeguard workers, particularly women and children, in their place of employment. Such legislation generally lays down the minimum standards in regards to condition of work such as hours of work, physical working conditions, minimum age of employment, protection of wages, minimum wages and protection of health, and safety. Some of the important subjects covered in these laws include fixation of maximum hours of work, provision of weekly rest and holidays, protection of health, prescription of safety measures, fixation of minimum age of employment, prohibition of night work of women and children, regulation of underground work, fixation of minimum rates of wages and protection of malpractices relating to mode and manner of wage-payment. Similar laws have been enacted in almost all the countries of the world.
EXAMPLES OF LABOUR LAWS ENACTED ON THE PRINCIPLE OF PROTECTION
Factories Act, 1948; Mines Act, 1952; Plantation Labour Act, 1951; Child Labour (Prohibition and Regulation) Act, 1986; Beedi and Cigar Workers (Conditions of Employment) Act, 1966; Contract Labour (Regulation and Abolition) Act, 1970; Payment of Wages Act, 1936; and Minimum Wages Act, 1948.
Principle of Social Justice
The principle of social justice implies establishment of equality in social relationships. It aims at removing discrimination suffered by particular groups of labour. History is replete with examples where certain groups of society or labour have been subjected to various sorts of disabilities as compared to other groups or workers in general. The disabilities and discrimination suffered by slaves, serfs, indentured and migrant labour, bonded labour, and others, is well-known. Discrimination against women workers when compared to their men counterpart, in matters relating to wages and other terms and conditions of employment, has continued till date. The preamble to the constitution of ILO recognizes that ‘universal and lasting peace can be established only if it is based upon social justice’ and its Philadelphia Charter of 1944 asserts, ‘All human beings, irrespective of race, creed or sex, have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity’. Similarly, the Indian Constitution has prohibited discrimination on the basis of caste, race, sex and religion. The Constitution also abolishes ‘untouchability’ in any form and prohibits begar and forced labour. The Directive Principles of State Policy also direct the state to strive to promote the welfare of the people by securing and protecting a social order in which justice-social, economic and political, shall inform all institutions of the national life. Examples of labour laws based on this principle are shown in Box 15.2.
EXAMPLES OF LABOUR LAWS ENACTED KEEPING IN VIEW THE PRINCIPLE OF SOCIAL JUSTICE
(i) Indian Slavery Act, 1843; (ii) Equal Remuneration Act, 1976; (iii) Bonded Labour System (Abolition) Act, 1976; and (iv) Contract Labour (Regulation and Abolition) Act, 1970.
Principle of Regulation
The principle of regulation generally seeks to regulate the relationships between the employers and their associations, on the one hand, and workers and their organizations, on the other. As the relationships between the two groups have repercussions on the society, the laws enacted on this principle also aim at safeguarding the interests of the society against the adverse consequences of collusion or combination between them. Thus, the principle of regulation seeks to regulate the balance of power in the relationships of the two dominant groups in industrial relations. When the employers were the stronger side, laws were enacted to confer upon workers’ organizations, new rights and privileges. On the other hand, when the workers’ organizations started misusing their strength, laws were enacted to curb their undesirable activities. Similarly, when industrial actions—strikes, lock-outs—started causing hardships to consumers and society at large, the state had to intervene and enact laws to control them and to provide for machineries for the settlement of industrial disputes. As industrial relations became complex, more and more areas of such relationships had to be brought under the coverage of law. Some of the specific areas in which state regulation through legislative measures have become necessary include workers’ right to organize, registration of trade unions and rights of registered trade unions, recognition of representative unions, collective bargaining, settlement of industrial disputes, conciliation, adjudication and arbitration machineries, redressal of grievances and grievance procedure, industrial actions such as strikes, lock-outs, picketing, unfair labour practices, workers’ participation in management and tripartite bodies. Examples of labour laws based on this principle are shown in Box 15.3.
EXAMPLES OF LAWS ENACTED ON THE PRINCIPLE OF REGULATION
Trade Unions Act, 1926; Industrial Disputes Act, 1947, and Industrial Employment (Standing Orders) Act, 1946 in India; Industrial Courts Act, 1919; Industrial Relations Act, 1971; and Trade Union and Labour Relations (Consolidation) Act, 1992; and Employment Relations Acts of Great Britain; and National Labour Relations Act, 1935 (Wagner Act) and Labour Management Relations Act, 1947 (Taft-Hartley), Act of USA. The main objective of such legislation is to regulate the relations between employers and workers and their organizations, and to safeguard the interests of the community in the event of conflict between the two groups
Although the protective and social security laws have the effect of promoting labour welfare, special labour welfare or labour welfare fund laws have also been enacted, with a view to providing certain welfare amenities to the workers, and often to their family members also. Some of the protective labour laws such as the Factories Acts, Mines Acts and Plantation Labour Acts, also contain separate ‘welfare’ provisions. The main purpose behind the enactment of labour laws on this principle is to ensure the provision of certain basic amenities to workers at their place of work and also, to improve the living conditions of workers and their family members. Although an element of humanitarianism is involved in this principle, it has wider implications for promoting labour efficiency, establishment of industrial peace and ensuring a stable and satisfied workforce. Examples of laws based on this principle are shown in Box 15.4.
EXAMPLES OF LAWS ENACTED ON THE PRINCIPLE OF WELFARE
Mica Mines Labour Welfare Funds Act, 1946; Iron Ore Mines, Manganese Ore Mines and Chrome Ore Mines Labour Welfare Fund Act, 1976; Beedi Workers Welfare Fund Act, 1976; Dock Workers (Safety, Health and Welfare) Act, 1986; State Labour Welfare Fund Acts and welfare provisions under the Factories Act, 1948; Mines Act, 1952; and Plantation Labour Act, 1951.
Principle of Social Security
Generally speaking, the principle of social security may be considered a part of the principle of welfare, but in view of its special connotation, it is desirable to keep it under a separate category. In industrial societies, income insecurity resulting from various contingencies of life, such as disablement, old age and death and others, has become a serious problem. Lord William Beveridge, the pioneer in initiating a comprehensive social security plan mentioned five giants in the path of social progress namely, ‘want’, ‘sickness’, ‘ignorance, ‘squalor’ and ‘idleness’. The problem has become more acute in view of phenomenal growth of the permanent class of wage-earners. During such contingencies the income of the earners either stops altogether or is reduced substantially or becomes intermittent causing hardships not only to the earners, but also to their family members. One of the outstanding measures to mitigate the hardship is to make available social security benefits under the coverage of legislation. Social security legislation may be kept under two broad categories—social insurance legislation and social assistance legislation. In social insurance, benefits are generally made available to the insured persons, under the condition of having paid the required contributions and fulfilling certain eligibility conditions. The fund for social insurance schemes usually comes from contributions of the beneficiaries and their employers, often supplemented by state grants. Under social insurance, the beneficiaries receive benefits as a matter of right. The benefits are not linked to the economic needs or financial conditions of the beneficiaries who receive these at the rates and in the forms, established by law. In social assistance also, the beneficiaries receive benefits as a matter of right, but they do not have to make any contributions. The finance is made available by the state or a source specified by the state. Social assistance benefits are generally paid to persons of insufficient means and on consideration of their minimum needs. In the beginning, social security laws mainly covered industrial workers but subsequently, other categories of workers, self-employed persons and people at large, also came under its coverage. Examples of laws based on the principle of social security are shown in Box 15.5.
EXAMPLES OF SOCIAL SECURITY LAWS
(i) In India—Employees’ Compensation Act, 1923; Maternity Benefit Act,1961; Employees’ State Insurance Act,1948; Coal Mines Provident Fund and Miscellaneous Provisions Act,1948; Employees’ Provident Funds and Miscellaneous Provisions Act,1952; (ii) in Great Britain—National Insurance Acts; National Insurance (Industrial Injuries) Act; National Health Insurance Act; Social Security Act; Social Security Pension Act; and National Assistance Act; (iii) in the United States—Old-Age, Survivors, Disability and Health Insurance Act (OASDHI).
Principle of Economic Development
Labour laws have also been enacted keeping in view the need for economic and industrial development of particular countries. Improvement of physical working conditions, establishment of industrial peace, provision of machineries for settlement of industrial disputes, formation of forums of workers’ participation in management, prohibition of unfair labour practices, restrictions on strikes and lock-outs, provision of social security benefits and welfare facilities, certification of collective agreements and regulation of hours of work have direct or indirect bearing on the pace and extent of economic development. These areas are covered under different pieces of labour laws.
Principle of International Obligation
This principle postulates enactment of labour laws with a view to giving effect to the provisions of resolutions, adopted by international organizations like ILO, UN and similar other bodies. In general, the countries ratifying the resolutions or agreements are under the obligation to enforce them. One of the instruments of doing so is the enactment of laws. In regard to labour legislation, the impact of ILO is of particular significance. The resolutions of ILO generally take the form of Conventions and Recommendations. The conventions are obligation-creating instruments. The member states ratifying them are under the obligation of implementing their provisions by enacting labour laws or through collective agreements or other effective measures. In practice, the implementation of the provisions of the conventions is mostly done by enacting new labour laws or amending the existing ones. The recommendations, on the other hand, are not obligation-creating instruments. They are sent to the member states with a request to consider them while enacting labour laws or taking decisions in regard to matters covered under them.
Conventions and recommendations have covered wide range of subjects concerning labour, for example, working conditions including hours of work, weekly rest, and holidays; wages; labour administration; employment of children and young persons including minimum age of employment, medical examination, night work; employment of women including maternity protection, night work and employment in unhealthy processes and equal pay; health, safety and welfare; social security; industrial relations including right to organize, collective bargaining and conciliation; and employment and unemployment. India has ratified a number of conventions adopted by ILO Provisions, most of them ratified by conventions that have been incorporated in the labour laws of the country. Provisions of quite a number of recommendations have, also, been embodied in labour laws of the country (for details see Chapter 32).
The principles of labour legislation also give an idea of the various types of labour legislation. However, for the sake of convenience, labour legislation can be classified under the following main categories.
Protective Labour Legislation
Under this category, are those legislations whose primary purpose is to protect minimum labour standards and improve working conditions. Laws laying down the minimum labour standards in the areas of hours of work, safety, employment of children and women, and so on, in factories, mines, plantations, transport, shops and other establishments are included in this category. Legislations laying down the method and manner of wage payment as well as minimum wages also come under this category. The examples of Indian labour laws falling under this category are Factories Act, 1948; Mines Act, 1952; Plantation Labour Act, 1951; Motor Transport Workers Act, 1961; Shops and Establishments Acts passed by various states, Payment of Wages Act, 1936; Minimum Wages Act, 1948; Child Labour (Prohibition and Regulation) Act, 1986; and Contract Labour (Regulation and Abolition) Act, 1970.
Protective Labour Legislation
Labour legislation designed to safeguard workers, particularly women and children, in their place of employment. Such legislation generally lays down the minimum standards in regards to conditions of work such as hours of work, physical working conditions, minimum age of employment, protection of wages, minimum wages and protection of health, and safety.
Regulative Labour Legislation
Under this category fall those laws whose main objective is to regulate the relations between employers and employees and to provide for methods and manner of settling industrial disputes. Such laws also regulate the relationship between the workers and their trade unions, the rights and obligations of the organizations of employers and workers, as well as their mutual relationships. Indian examples of such laws are Trade Unions Act, 1926, Industrial Disputes Act, 1947, and Industrial Employment (Standing Orders) Act, 1946.
Regulative Labour Legislation
The main objective of such legislation is to regulate the relations between employers and workers and their organizations, and to safeguard the interests of the community in the event of conflict between the two groups.
Social Security Legislation
The third category of labour legislation covers those labour laws which intend to provide to the workmen social security benefits during certain contingencies of life. Though such legislations may cover other classes of citizens also, their primary and original goal has been to protect the workers. In India, the important laws falling under this category are Workmen’s Compensation Act, 1923; Employees’ State Insurance Act, 1948; Coal Mines Provident Fund and Miscellaneous Provisions Act, 1948; Employees’ Provident Funds and Miscellaneous Provisions Act, 1952; Central Maternity Benefit Act, 1961; and Payment of Gratuity Act, 1972.
Social Security Legislation
Legislation designed to provide economic security and services to persons during certain contingencies of life such as disablement caused by accidents, sickness, maternity, unemployment, old age and death.
Legislations falling under this category aim at promoting the general welfare of the workers and improve their living conditions. Though, in a sense, all labour laws can be said to be promoting the welfare of the workers and improving their living conditions, and though many of the protective labour laws also contain chapters on labour welfare, the laws coming under this category have the specific aim of providing for improvements in living conditions of workers. In India, they also carry the term ‘welfare’ in their titles. The examples are Mica Mines Labour Welfare Fund Act, 1946; Iron Ore Mines, Manganese Ore Mines and Chrome Ore Mines Labour Welfare Fund Act, 1976; Beedi Workers Welfare Fund Act, 1976; and the welfare fund laws enacted by some of the states. A study of these laws shows how all of them provide for the creation of a fund which is spent on improving the general welfare of workers including housing, medical, educational and recreational facilities for the workers and also, to their family members covered under these laws and, therefore, it is apt that all these laws be categorized under the head ‘welfare legislation’.
- Generally speaking, modern labour legislation in designed to improve the conditions of workers, to protect the rights of labour unions, as well as, to protect employers and the public from possible excesses on the part of organized labour. Labour legislation seeks to deal with problems arising out of employment-relationships such as hours of work, wages, working conditions, trade unionism, social security, welfare amenities and industrial relations.
- The main forces influencing adoption of modern labour legislation have been (i) excesses of early industrialism, (ii) rise of trade unionism, (iii) growth of political freedom and democracy, (iv) rise of socialist and revolutionary ideas, (v) growth of the concept of welfare state and (vi) establishment of the ILO.
- The notable additional factors influencing the course of labour legislation in India include (i) influence of colonial rule, (ii) struggle for national emancipation, (iii) adoption of Indian Constitution and (iv) old and archaic basis of Indian social system.
- The main principles of modern labour legislation are (i) principle of protection, (ii) principle of social justice, (iii) principle of regulation, (iv) principle of welfare, (v) principle of social security, (vi) principle of economic development and (vii) principle of international obligation.
- The principal types of labour legislation are: (i) protective labour legislation, (ii) regulative labour legislation, (iii) social security legislation and (iv) labour welfare legislation.
QUESTIONS FOR REVIEW
- Explain the concept of labour legislation. How will you compare it with social legislation?
- Citing examples, describe the forces influencing the course of modern labour legislation.
- Describe the provisions of the Indian Constitution relating to labour and explain their relevance for the growth of labour legislation in the country.
- Briefly explain the various principles of labour legislation. Give suitable examples in support of your answer.
- With the help of suitable examples, explain the various types of labour legislation.
Protective labour legislation
Regulative labour legislation
Social security legislation
What are the types of labour legislation?
Some of the notable labour laws are: (i) Industrial Disputes Act, 1947, (ii) Employees’ Compensation Act, 1923, (iii) Factories Act, 1948, (iv) Employees’ State Insurance Act, 1948, (v) Industrial Employment (Standing Orders) Act, 1946, (vi) Equal Remuneration Act, 1976, (vii) Trade Unions Act, 1926, (viii) Bonded Labour (Abolition) Act, 1976, (ix) Maternity Benefit Act, 1961, (x) Plantation Labour Act, 1951, and (xi) Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 in India; (i) National Insurance Acts, (ii) Trade Union and Labour Relations (Consolidation) Act, 1992, (iii) National Health Insurance Act, and (iv) Employment Relations Act, 2004, in the United Kingdom; and (i) OASDHI Act,1935, (ii) Wagner Act,1935, and Taft-Hartley Act,1947, in the United States. These laws can be grouped in certain distinct categories.
Which of the enactments will you keep in the category of protective labour legislation?
Which laws are examples of regulative labour legislation?
What enactments come under the category of social security legislation?
Case Study 2
Application of the principles of labour legislation
The Equal Remuneration Act, 1976, makes provisions for the payment of equal wages to both men and women workers for the same or similar work, and prohibits discrimination on the ground of sex in matters relating to recruitment and promotion. The Factories Act, 1948, prohibits the night work of women and young persons, fixes the maximum daily and weekly hours of work and lays down minimum standards of safety and protection of health to be observed in factories. The Minimum Wages Act, 1948, provides for fixation of minimum rates of wages by government in a number of sweated employments. The Employees’ State Insurance Act, 1948, provides for sickness, maternity, disablement, dependants’ and medical benefits for employees insured under the Act. The Industrial Disputes Act, 1947, provides for conciliation and adjudication machineries for the settlement of industrial disputes, and imposes certain restrictions on strikes and lock-outs. The provisions of ILO’s Hours of Work (Industry) Convention have been incorporated in the Factories Act, 1948.
What enactments are based on the principle of social justice?
In what enactments does the principle of protection apply?
What enactments are based on the principle of regulation?
In which enactment is the principle of international obligation applicable?