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HIDAYATULLAH NATIONAL LAW

UNIVERSITY

LABOUR LAW-II project


TOPIC right to work and working condition

and its constitutional aspects

PROJECT SUBMITTED TO Mrs. Balwinder kaur

PROJECT SUBMITTED BY AMIT KUMAR KAYAL


5 th
SEMESTER
ROLL NO 18
SECTION A
DATE OF SUBMISSION 01.09.2014

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TABLE OF CONTENTS

Acknowledgments................................................3
Introduction...........................................................4

Objective.................................................................5

Research Methodology.........................................5

Meaning and definition of right to work..........6


Purpose of labour legislation...........................7
Right to work and working conditions under the
constitution.............................................................8
Right to work and working conditions under labour
laws............................................................12

Conclusion.................................................................16
Bibliography...............................................................17

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ACKNOWLEDGEMENTS
I have made this project work, and on the way of completing it, I have learned a lot of
things for which I am thankful to Mrs. Balwinder Kaur, Assistant lecturer, HNLU,
Raipur, and my guide, who gave me the opportunity to do this project work and guided me
all the way. I would also like to thank my friends, and colleagues, for their opinions,
suggestions and critical analysis, which has helped me to improve this project. I also thank
the HNLU library and the people working there. Their silent work is the reason behind the
completion of this project.
I thank God, He has been very generous on me, to have kept me in good health and make
the conditions favourable for me to complete this work in time.
Lastly, I thank my parents. Without their continuous support and belief in me, I would
never have been able to make this project.

- AMIT KUAMR KAYAL

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INTRODUCTION

Labour law also known as employment law is the body of laws, administrative rulings, and
precedents which address the legal rights of, and restrictions on, working people and their
organizations. As such, it mediates many aspects of the relationship between trade unions,
employers and employees. In other words, Labour law defines the rights and obligations as
workers, union members and employers in the workplace. Generally, labour law covers:
Industrial relations - certification of unions, labour-management relations, collective
bargaining and unfair labour practices;
Workplace health and safety;
Employment standards, including general holidays, annual leave, working hours,
unfair dismissals, minimum wage, layoff procedures and severance pay.
There are two broad categories of labour law. First, collective labour law relates to the
tripartite relationship between employee, employer and union. Second, individual labour law
concerns employees' rights at work and through the contract for work.
The labour movement has been instrumental in the enacting of laws protecting labour rights
in the 19th and 20th centuries. Labour rights have been integral to the social and economic
development since the industrial revolution.

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OBJECTIVES

The objectives of this project work are as


follows:

1. To discuss the meaning and definition of right to work.


2. To discuss the right to work and working conditions under the
constitution.
3. To analyse the right to work and working conditions under
labour laws.

RESEARCH METHODOLOGY
The research is based on secondary sources. Literature Books from the universitys library
have been used. Articles and reports from different websites have been used in order to get
comprehensive data on the subject Footnotes have been provided wherever needed, to
acknowledge the source.

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MEANING AND DEFINITION OF RIGHT


TO WORK

The right to work is the concept that people have a human right to work, or engage in
productive employment, and may not be prevented from doing so. The right to work is
enshrined in the Universal Declaration of Human Rights and recognized in international
human rights law through its inclusion in the International Covenant on Economic, Social and
Cultural Rights, where the right to work emphasizes economic, social and cultural
development.
The human right to work recognizes work as something to which each and every individual is
entitled. The right to work means, first of all, the right to participate in the producing and
servicing activities of human society and the right to participate in the benefits accrued
through these joint activities to an extent that guarantees an adequate standard of living. The
right to work thus ensures that nobody is excluded from the economic sphere.
The type of work a person does depend on access to resources, education and training. Work
can be enjoyed as a wage-employed person or as a self-employed person. A crucial feature of
work is that it allows persons to earn their living.
The right to work means that work and access to resources are distributed in a way that allows for the participation of everyone who wants to work. The right to earn ones living, as
discussed above, implies, at a minimum, that the benefits derived from these economic activities should be enough to reach an adequate standard of living.
Article 23.1 of the Universal Declaration of Human Rights states:1
Everyone has the right to work, to free choice of employment, to just and favourable
conditions of work and to protection against unemployment.
Universal Declaration of Human Rights, United Nations General Assembly

PURPOSE OF LABOUR LEGISLATION


1 http://www.ohchr.org/EN/UDHR/Pages/Language.aspx?LangID=eng

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Labour legislation that is adapted to the economic and social challenges of the modern world
of work fulfils three crucial roles:
it establishes a legal system that facilitates productive individual and collective
employment relationships, and therefore a productive economy;
by providing a framework within which employers, workers and their representatives
can interact with regard to work-related issues, it serves as an important vehicle for
achieving harmonious industrial relations based on workplace democracy;
it provides a clear and constant reminder and guarantee of fundamental principles and
rights at work which have received broad social acceptance and establishes the
processes through which these principles and rights can be implemented and
enforced.
But experience shows that labour legislation can only fulfils these functions effectively if it is
responsive to the conditions on the labour market and the needs of the parties involved. The
most efficient way of ensuring that these conditions and needs are taken fully into account is
if those concerned are closely involved in the formulation of the legislation through
processes of social dialogue. The involvement of stakeholders in this way is of great
importance in developing a broad basis of support for labour legislation and in facilitating its
application within and beyond the formal structured sectors of the economy.

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RIGHT TOWORK AND WORKING


CONDTIONS UNDER THE CONSTITUTION

The Constitution of India has conferred innumerable rights on the protection of labour.
Labour is a concurrent subject in the Constitution of India implying that both the Union and
the state governments are competent to legislate on labour matters and administer the same.
The bulk of important legislative acts have been enacted by the Parliament.

The Constitution of India provides detailed provisions for the rights of the citizens and also
lays down the Directive Principles of State Policy which set an aim to which the activities
of the state are to be guided. These Directive Principles provide:

a. for securing the health and strength of employees, men and women;
b. that the tender age of children are not abused;
c. that citizens are not forced by economic necessity to enter avocations unsuited to their
age or strength;
d. just and humane conditions of work and maternity relief are provided; and
e. That the Government shall take steps, by suitable legislation or in any other way, to
secure the participation of employee in the management of undertakings,
establishments or other organisations engaged in any industry.

Articles 39, 39-A, 41, 42, 43, 43-A and 47 form part of the Directive Principles of State
Policy under Part IV of the Constitution.

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1. RIGHT TO WORK
Art. 41 requires the state, within the limits of its economic capacity and development, to
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 unserved
want.
It talks about equality, the right to a living wage or to secure a decent standard of living and
the like become hollow unless every individual has the opportunity to earn these things by
suitable employment. But every citizen may have this opportunity to satisfy his needs through
work only, if there is sufficient work and employment in the state to which he belongs.2
The right to work of each individual involves an obligation on the part of the welfare state to
create the necessary quantum of work by ensuring and promoting production, trade and
business. But a limit to this obligation is the economic capacity and development of the
particular state for the time being, as Art. 41 of our constitution makes it clear. The obligation
is, accordingly, amoral obligation, which cannot be enforced as an immediate legal
obligation, through the courts.
Though under Art.41, this is not a justiciable right, the Supreme Court has made it
meaningful, by making the following deductions, bearing in mind the goal of socioeconomic
justice as promised in the Preamble of the Constitution and the other Directives embodied in
Part IV.
It is usual to refer to matters specified in this directive as measure of social security.3
This directive is similar to that of Art. 23(1) of the Universal Declaration of Human Right,
1948, which says that-Everyone has the right to work, to free choice of employment, to just
and favourable conditions of work and to protection against unemployment.

2 Durga Das Basu, Commentary on Constitution of India, 8th Edition, 2008. Volume 1.3, Lexis Nexis, Pg. 4113
3 Mahendra P. Singh,V.N. Shuklas Constitution of India, 11th Edition, Pg. 351

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By reading Article 21, 39(a) and 41, the Supreme Court has included the right to livelihood as
a part of right to life under Article 21. This however does not mean that the state may be
compelled be affirmative action to provide adequate means of livelihood or work to the
citizens. But, it does certainly mean that the state shall not deprive any person of his
livelihood except according to just and fair procedure established by law.4
Art. 41 directs the state to make effective provision for securing the right to work but within
the limits of its economic capacity and development.5
A rule made by a government company authorising it to terminate the employment of
a permanent employee by giving him three months notice and without giving him a hearing
has been held to be violative of Art.39(a) and 41 and ultra vires Art.14. 6 The court has
observed: An adequate means of livelihood cannot be secured to the citizens by taking away
without any reason on the means of livelihood. The mode of making effective provisions for
securing the right to work (Art.41) cannot be by giving employment to a person and then
without any reason throwing him out of job.
The parliament has passed National Rural Employment Guarantee Act (42 of 2005). The Act
is intended for the enhancement of livelihood, security of the households in rural areas of the
country by providing at least one hundred days of guaranteed wage employment in every
financial year to every household, where adult members volunteer to do unskilled manual
work. The Act guarantees for unskilled manual work for not less than one hundred days on
payment of wages at the wage rate for each of work. It further provides and directs the state
government to prepare a scheme for providing not less than one hundred days of guaranteed
employment.7

4 Olga Tellis v. Bombay Municipal corporation, AIR 1986SC 180


5 M.P. Jain, Indian Constitutional Law,5th Edition 2008 Lexis Nexis, Page No.- 1382
6 Central Inland Water Transport Corpn. Ltd.v. Brojo Nath, AIR 1986 SC 1571
7 Durga Das Basu, Commentary on Constitution of India, 8th Edition, 2008. Volume 1.3, Lexis Nexis, Pg.4114

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The Act further provides for payment of minimum wages as prescribed by the Minimum
Wages Act, till the government fixes the rate of wages. If an eligible applicant is not provided
work as per the provisions of the legislation within the prescribed time limit, it will
be obligatory on the part of the state government to pay unemployment allowance at the
prescribed rate. The Central and State governments are also obliged to establish funds, viz.,
National Employment Guarantee Fund and State Employment Guarantee Fund.

2. HUMANE WORKING CONDITIONS


Art. 42 requires the state to make provision for securing just and humane condition of work
and for maternity relief. This directive is similar to:(A)The International Charter of Universal Declaration of Human Rights, 1948, in which Arts.
23says:
Art. 23(1) everyone has the right to work, to free choice of employment, to just and
favourable conditions of work and to protection against unemployment.
Art. 23 (3) everyone who works has the right to just and favourable remuneration incurring
for himself and his family an existence worthy of human dignity, and supplemented, if
necessary, by other means of social protection.

Art. 42 provides the basis of the large body of labour law that obtains in India. Referring to
Arts.42 and 43, the Supreme Court has emphasized that the constitution expresses a deep
concern for the welfare of the workers. The courts may not enforce Directive Principles as
such, but they must interpret laws so as to further and not hinder the goals set out in the DP 8

8 M.P. Jain,

Indian Constitutional Law, 5th Edition 2008 Lexis Nexis, Pg. 1383.

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RIGHT TO WORK AND WORKING


CONDITIONS UNDER LABOUR LAWS

There are several legislations which regulate the conditions of employment, work
environment and other welfare requirements of certain specific industries. These enactments
deal with factories and workshops; mines and minerals; plantations; shops and establishments
as well as transportation. Some of the major legislations are:-

1. THE FACTORIES ACT, 1948


Objective of the Act

To ensure adequate safety measures and to promote the health and welfare of the
workers employed in factories.

To prevent haphazard growth of factories through the provisions related to the


approval of plans before the creation of a factory.

Applicability of the Act

Applicable to the whole of India including Jammu & Kashmir


Covers all manufacturing processes and establishments falling within the definition

of factory.
Applicable to all factories using power and employing 10 or more workers, and if not
using power, employing 20 or more workers on any day of the preceding 12 months.

Scheme of the Act

The Act consists of 120 Sections and 3 Schedules.


Schedule 1 contains list of industries involving hazardous processes
Schedule 2 is about permissible level of certain chemical substances in work environment.
Schedule 3 consists of list of notifiable diseases.

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Important provisions the Act

1. Facilities and Conveniences - The factory should be kept clean. [Section 11]. There
should be arrangement to dispose of wastes and effluents. [Section 12]. Ventilation
should be adequate. Reasonable temperature for comfort of employees should be
maintained. [Section 13]. Dust and fumes should be controlled below permissible limits.
[Section 14]. Artificial humidification should be at prescribed standard level. [Section
15]. Overcrowding should be avoided. [Section 16]. Adequate lighting, drinking water,
latrines, urinals and spittoons should be provided. [Sections 17 to 19]. Adequate spittoons
should be provided. [Section 20].
2. Working Hours - A worker cannot be employed for more than 48 hours in a week.
[Section 51]. Weekly holiday is compulsory. If he is asked to work on weekly holiday, he
should have full holiday on one of three days immediately or after the normal day of
holiday. [Section 52(1)]. He cannot be employed for more than 9 hours in a day. [Section
54]. At least half an hour rest should be provided after 5 hours. [Section 55]. Total period
of work inclusive of rest interval cannot be more than 10.5 hours. [Section 56]. A worker
should be given a weekly holiday. Overlapping of shifts is not permitted. [Section 58].
Notice of period of work should be displayed. [Section 61].

3. Employment of Women - A woman worker cannot be employed beyond the hours 6


a.m. to 7.00 pm. State Government can grant exemption to any factory or group or class
of factories, but no woman can be permitted to work during 10 PM to 5 AM. Shift change
can be only after weekly or other holiday and not in between. [Section 66].
4. Record of Workmen - A register (muster roll) of all workers should be maintained.
No worker should be permitted to work unless his name is in the register. Record of
overtime is also required to be maintained. [Section 62].
5. Child Employment - Child below age of 14 should not be employed. [Section 67].
Child above 14 but below 15 years of age can be employed only for 4.5 hours per day or
during the night. [Section 71]. He should be certified fit by a certifying surgeon. [Section
68]. He cannot be employed during night between 10 pm to 6 am. [Section 71]. A person
over 15 but below 18 years of age is termed as 'adolescent'. He can be employed as an
adult if he has a certificate of fitness for a full day's work from certifying surgeon. An
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adolescent is not permitted to work between 7 pm and 6 am. [Section 70]. There are more
restrictions on employment of female adolescent. Register of child workers should be
maintained. [Section 73].
6. Obligation regarding Hazardous Processes / Substances - Information about
hazardous substances / processes should be given. Workers and general public in vicinity
should be informed about dangers and health hazards. Safety measures and emergency
plan should be ready. Safety Committee should be appointed.
7. Overtime Wages - If a worker works beyond 9 hours a day or 48 hours a week,
overtime wages are double the rate of wages are payable. [Section 59(1)]. A workman
cannot work in two factories. There is restriction on double employment. [Section 60].
However, overtime wages are not payable when the worker is on tour. Total working
hours including overtime should not exceed 60 in a week and total overtime hours in a
quarter should not exceed 50. Register of overtime should be maintained. An employee
working outside the factory premises like field workers etc. on tour outside headquarters
are not entitled to overtime.
8. Display on Notice Board - A notice containing abstract of the Factories Act and the
rules made there under, in English and local language should be displayed. Name and
address of Factories Inspector and the certifying surgeon should also be displayed on
notice board. [Section 108(1)].

2. THE MINES ACT 1952


The Mines Act, 1952 contains provisions for measures relating to the health, safety and
welfare of workers in the coal, metalliferous and oil mines. According to the Act, the term
'mine' means "any excavation where any operation for the purpose of searching for or
obtaining minerals has been or is being carried on and includes all borings, bore holes, oil
wells and accessory crude conditioning plants, shafts, opencast workings, conveyors or aerial
ropeways, planes, machinery works, railways, tramways, slidings, workshops, power stations,
etc. or any premises connected with mining operations and near or in the mining area".
The Act is administered by the Ministry of Labour and Employment through the Directorate
General of Mines Safety (DGMS). DGMS is the Indian Government regulatory agency for
safety in mines and oil-fields. It conducts inspections and inquiries, issues competency tests
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for the purpose of appointment to various posts in the mines, organises seminars/conferences
on various aspects of safety of workers.

3. THE CONTRACT LABOUR ACT, 1970


The Contract Labour (Regulation & Abolition) Act, 1970 was enacted to regulate
employment of contract labour so as to place it at par with labour employed directly, with
regard to the working conditions and certain other benefits. Contract labour refers to "the
workers engaged by a contractor for the user enterprises". These workers are generally
engaged in agricultural operations, plantation, construction industry, ports & docks, oil fields,
factories, railways, shipping, airlines, road transport, etc.
The Act is implemented both by the Centre and the State Governments. The Central
Government has jurisdiction over establishments like railways, banks, mines etc. and the
State Governments have jurisdiction over units located in that state.

CONCLUSIONS

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Since the workers were exploited the most during the British India, the framers of the
Constitution while framing the Constitution kept in mind to promote and enhance workers
rights. To enforce the same, the Constitutional framers incorporated Article 39(a) and 39(d),
41, 42 and43 in our constitution. These articles provided for the rights such as right to
adequate means of livelihood equal pay for equal work, maternity relief, humane conditions
of work, living wage, etc. Later, through amendments Article 43A was also incorporated
which provides for the participation of workers in management of industries.
Moreover, to support and to promote these rights, the legislature from time to time passed
some Acts to improve the condition of the workers in India. Acts Such as Contract Labour
(Regulation and Abolition) Act, 1970, Equal Remuneration Act, 1976, National Rural
Employment Guarantee Act (42 of 2005), The Minimum Wages Act, 1948, The Industrial
Disputes Act, 1947, The Payment of Gratuity Act, 1972, The Maternity Benefit Act, 1961,
The Employees Insurance Act, 1948, The workmens Compensation Act, 1923 has helped in
improving the conditions of the workers and with the help of such Acts the workers are now
able to raise their voice against any kind of exploitation and live their life with dignity

BIBLIOGRAPHY
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BOOKS REFERRED
1. M.P. Jain, Indian Constitutional Law, 5th Edition 2008 Lexis Nexis.
2. Durga Das Basu, Commentary on Constitution of India, 8th Edition, 2008.
3. S.N. Misra, labour and industrial laws, 27th Edition 2013 Central law publication.
WEBSITES
1. http://en.wikipedia.org/wiki/Indian_labour_law#Criticisms_and_reforms
2. http://www.paycheck.in/main/labour-law-india/work-hours-in-india
3. http://business.gov.in/legal_aspects/laws_specificindustries.php

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