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Home / Columns / Labour Reforms and the ...

COLUMNS

Labour Reforms and the Elusive Quest for Workers'

Rights
Badrinath Rao 20 Oct 2020 1:20 AM

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10/21/2020 Labour Reforms and the Elusive Quest for Workers' Rights

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As the second largest labour force in the world, with a youthful demographic pro le to boot, India is

blessed with an abundance of human resource it can leverage to its advantage. Yet, one of its most

enduring, if somewhat pitiless, paradoxes is that it has a deplorable history of underutilizing and ill-

treating its workforce. To date, all attempts to set right this anomaly have met with limited success.

Also Read - Getting To Yes – An Understanding And Summation

In what might seem as a rational, pro-working class initiative, the Parliament passed three labour

code bills in September 2020. These bills - the Industrial Relations Bill, the Code on Social Security

Bill, and the Occupational Safety, Health, and Working Conditions Bill along with the Code on Wages

Bill passed in 2019 – supposedly aim to provide comprehensive legal protection to workers while

affording employers the exibility they need to conduct business in an atmosphere marked by

uncertainty and volatility.

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vs. Upper Assam Plywood'

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Based on a consolidation of 29 disparate, often confusing labour statutes, these bills, some argue,

will promote transparency, ease of compliance, fair working conditions, and better employer-

employee relations.

For a long time now, proponents of economic reforms and globalization have argued that labour

laws constitute a big, almost insuperable obstacle to growth. They complained about the rigidity of

labour laws, their contradictory stipulations, and the onerous strain they cast on employers. The

vehemence of this assertion, in some rare ed circles, placed labour law reforms on par with more

pressing concerns such as attracting foreign investment, gaining access to advanced technologies,

and wooing multinational corporations.

Also Read - The Crumbling Rule Of Law In India

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Even if one concedes that demands such as these are well-intentioned, one cannot but wonder if

'reforming' labour laws, particularly in the way it has been done, is a step in the right direction.

Some might, albeit mistakenly, argue it is. This is predicated on the logic that simpli ed laws

promote voluntary conformity, which will ultimately redound to the bene t of workers. This position

rests on two fallacies. First, its proponents ardently believe the new bills robustly promote labour

rights. Second, their understanding of labour issues is colored by concerns about e ciency,

optimization, and pro ts, to the exclusion of everything else.

Also Read - Have International Relations Overshadowed Principles Of International Law?

Right from the time the central government announced its intention to reform labour laws, well-

meaning labour experts, trade unionists, academics, and policymakers have proposed concrete

strategies for ameliorating the conditions of the working class while accommodating business

interests. They weighed in on the draft bills when they were being discussed by the Parliamentary

Standing Committee. Yet, the nal iteration of the labour code bills is riddled with lacunae, which

defeats their entire purpose. Labour experts and policy wonks have extensively analyzed their

aberrations.

FLAWS IN THE LABOUR CODE BILLS

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Broadly, the four labour bills offer symbolic sops to workers and substantial powers to employers.

One has to be willfully obtuse to miss the agrant imprint of the neoliberal agenda writ all over the

bills. Scholarly critiques of the bills have highlighted several crucial inadequacies which frustrate

their primary purpose. For instance, the Industrial Relations Code Bill (IRC) empowers employers to

unilaterally close establishments and retrench workers with no obligation to pay compensation. It

grants governments at all levels a great deal of latitude in applying the new laws. Under the IRC, the

government can exempt any establishment or class of establishments from the law 'in public

interest.' Till recently, businesses with over 300 employees could not lay them off without securing

the government's approval. This limit has now been reduced to 100 employees. Distressingly, the

labour code bill has also placed signi cant restrictions on the rights of workers to strike. One of the

most worrisome aspects of the IRC bill is that it provides for xed-term employment contracts

which will enable employers to hire and re workers arbitrarily.

The Occupational Safety, Health, and Working Conditions Code Bill, belying its commitment to

workplace safety, empowers the government to exempt businesses from the law for a speci ed

period 'in the interest of promoting economic activity.' To compound matters, the Social Security Bill

does not offer universal social security bene ts to workers. It has also curtailed the powers of the

bureaucracy to determine the amount of provident fund and Employee State Insurance dues owed

by businesses.

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The new labour code bills overwhelmingly favor businesses. These much-hyped labour reforms will

make no difference to the lakhs of guest lecturers in colleges earning pathetic wages for their

intellectual labour. They do not provide social security to Accredited Social Health Activist (ASHA)

and Anganwadi workers. Nor will they end the daily humiliation and sexual harassment of workers

in the lower echelons of the workforce.

FACTORS AFFECTING WORKERS' RIGHTS

To comprehend the limitations of labour reforms, one has to recognize three intractable

dimensions of the problem. First, of the 520 million workers in the labour force, 94% are in the

unorganized sector. Barely ten percent are unionized. Workers, therefore, have woefully limited

bargaining power. Second, no matter how stringent, laws are barely implemented. Their e cacy has

to be evaluated in the larger context of the crippling in rmities of the justice system. We have rule

by law in India, not rule of law. Also, as Roscoe Pound, former Dean of the Harvard Law School,

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pointed out long ago, there is a huge discrepancy between law in books and law in action. No

matter how robust, mere legislation cannot make much difference to the everyday lives of workers.

Third, except for a handful of progressive judges, almost the entire judiciary has a perfunctory

attitude toward the working class. Recall that even judges of the Supreme Court have disparaged

workers in their obiter dicta. Together these factors pose almost insurmountable barriers to

vindicating workers' rights in India.

A systematic analysis of labour reforms must address a host of questions: what are the real

challenges facing the labouring class? Why do labour laws almost never make a difference in the

lives of workers? If we are genuinely interested in labour reforms, where should we begin?

The rst thing to note is that the labour code bills show little appreciation of massive

transformations taking place in the world of work and occupations. We are on the cusp of what

Klaus Schwab, founder of the World Economic Forum, describes as the Fourth Industrial

Revolution. Other scholars see the current transition as the next stage of the Great Transformation

Karl Polanyi enunciated in 1944. Julie Cohen, Professor of Law at Georgetown University in the US,

has identi ed three major changes which will have far-reaching impact on labour. They are 'the

propertization of intangible resources, dematerialization, and data cation.'

While the denouement of these cataclysmic shifts is hard to predict, in the immediate context they

have led to precarity, marginality, disempowerment, insecurity, alienation, and obsolescence. Rising

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inequality, new labour-saving technologies, the digital divide, and ease with which capital can

seamlessly source labour from different places have all made the working class defenceless.

The less obvious, yet more deleterious, threats are the erosion of dignity and recognition, human

security, and virtually no opportunities to thrive as workers. This is apparent from the plight of gig

and platform workers who, according to the British labour economist, Prof. Guy Standing, are part

of the 'concierge economy.' Though labeled micro-entrepreneurs and independent contractors, they

are perpetually consigned to a limbo. They are not employees and hence not entitled to any bene ts

of a regular job and, save their labour and, sometimes, their vehicles, they have no capital worth the

name to qualify as entrepreneurs. Gig workers are ubiquitous in big cities. They deliver pizzas and

parcels. They carry out tasks we loath to do ourselves. With no xed income, regular working hours,

a workplace, and fellow workers to relate to, platform workers are disembodied entities who

assume a corporeal form only to do the jobs they are lucky to get. Because it is so cheap and

e cient, we love the gig economy. Gig workers, however, do not even register on our minds.

THE INEFFICACY OF LABOUR LAWS

Labour laws seldom work because they do not accord primacy to two points. First, through our

laws, policies, and everyday acts, we deny the personhood of those who work for us. Lowly workers

are not human beings. Thus, farmers, teachers, construction workers, factory workers and so on

are a nuisance whose existence we reluctantly acknowledge when they agitate and block arterial

streets. Lately, even the courts want to render them invisible by imposing restrictions on how and

where they can protest. Excluding such extreme circumstances, the working class does not exist

for us. We live in a self-induced stupor to insulate ourselves from the messy challenges of the

working class. A mindset that refuses to acknowledge the very humanity of workers can never offer

lasting solutions to their problems. Consider how menial servants are generally depicted in lms,

TV soaps, and popular culture. Almost always, they are portrayed as obsequious and dumb

factotums with no sense of agency. Because we do not see labourers as purposeful human agents,

we have no respect for them. Hence we pass shoddy, tokenistic laws and call them 'reforms.'

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Second, labour laws are ineffective because they are premised on the notion that labour is a

commodity. The International Labour Organization has categorically repudiated this idea. If we view

labour as just something that can be bought and sold, we make a foundational error. Throughout

the world, we see, in varying degrees, a mismatch between the potential of workers and the

demands of their job. When work is reduced to a mere source of livelihood, workers are estranged

and miserable in their occupations.

WORK AS A MARKER OF IDENTITY

Work is central to our identity. It de nes our personhood; it gives us a sense of who we are. More

than a source of livelihood, labour de nes our place in the world. Moreover, work that is in tandem

with one's innate human potential and results in its e orescence confers ontological security. It

ceases to be a chore. Instead, work becomes an endless source of joy.

The labour we do also determines our community. It is a source of our values and worldview.

Creating a scienti c, well-organized workforce where every individual is afforded the opportunity to

go as far as their talents will allow is a compelling algorithm of a cohesive, a rming society.

Any meaningful attempt to reform labour laws has to begin by overhauling the philosophical

premises of this enterprise. This involves recognizing that values such as human security, dignity,

recognition, human capabilities, and human ourishing are inviolable. The threshold question to

ask, therefore, is do the contemplated reforms further reinforce these bedrock values. All laws and

reforms must be refracted through the prism of these values and must fully comport with them.

HUMAN SECURITY AND DIGNITY

A stable, well-de ned occupation with good career prospects and work we relish are the most

edifying sources of security. The United Nations Development Program de nes human security as

'freedom from want' and 'freedom from fear.' A reform initiative that facilitates a hire-and- re policy

in the name of labour exibility without providing dependable alternatives is conceptually awed.

Likewise, the notion of dignity serves as a guidepost for ameliorative measures. A rich

philosophical tradition, starting with Roman statesman Cicero (44 BCE) has developed the idea of

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dignity from a signi er of aristocratic rank to the most distinctive feature of human beings. Cicero

argued that humans have dignity because of their capacity for rational thought. Giovanni Mirandola,

a 15th century Italian philosopher, also underscored human dignity, ascribing it to the human power

of self-transformation. He maintained that the capacity of humans to be whatever they wish to be

entitles them to an innate sense of dignity which cannot be transgressed.

Immanuel Kant, the 18th century German philosopher, explicated the signi cance of dignity by

relating it to our status as normative beings. One of the universal laws in his formulation of the

Categorical Imperative requires us to treat people as ends in themselves, not as means to an end.

Kant's view is that, as moral agents, we can make and obligate ourselves to universal laws which

cannot be contravened. This capacity to harness the transformative power of reason and morality,

regardless of what we do with it, entitles us to dignity.

The labour code bill desecrates human dignity by treating workers as cannon fodder. Its provisions

such as the government's discretionary powers to suspend labour laws on imsy grounds,

withholding social security bene ts, and restricting strikes and lockouts are repugnant to the

inalienable rights of workers. These aberrations emanate from an ideational negligence of the

sacredness of human dignity and its multifarious manifestations. They also explain why the labour

code bill cannot address one of the core challenges of the working class, namely, insulating their

dignity from the relentless incursions of market forces.

HUMAN FLOURISHING

A related, if poorly understood, point concerns the umbilical relationship between dignity and

human ourishing. The Aristotelean notion of eudemonia, the striving to become one's best self, is

the quintessence of human ourishing. Aristotle emphasized the imperative of creating a social

arrangement that enables people to access their higher selves. Thus, human ourishing, both

regarding one's own life and in reference to the lives of others, ought to be the polestar of all our

endeavors. This project demands respect for human agency and dignity. Where dignity is eroded,

human beings do not ourish. Further, human agency is forti ed when we create an ecosystem that

identi es and nourishes talent. The optimum utilization of one's talent is the most enduring

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wellspring of happiness. Besides devaluing dignity, the labour code bills are silent about equipping

workers and training them for moving up the value chain. They are oblivious to the fact that being

stuck in a low-paying job with virtually no prospects for professional growth is a recipe for labour

unrest. What is noteworthy is that on the one hand, the labour code bills create the conditions for

discontent among workers and, on the other, imposes debilitating restrictions on agitations.

HUMAN CAPABILITIES AND RECOGNITION

The drafters of the labour code bills could have avoided this grotesque contradiction by

incorporating Nobel laureate Dr. Amartya Sen's ideas on human capabilities. His theory marks the

culmination of a dense and variegated philosophical debate on equality and human development.

Approaching development primarily as an avenue for expanding human freedoms, Dr. Sen argued

that fostering human capabilities is a sine qua non for promoting genuine equality. Going beyond

philosophers like John Rawls, Richard Dworkin, and Thomas Nagel, who focused on the equitable

distribution of resources, Dr. Sen advanced the basic needs and capabilities approach to equality.

He maintained that freedom is not just the achievement of things a person values or has reason to

value, but also the capability to achieve these things. This broad notion of freedom burgeoning

from the development of one's human capabilities is what laws must aim for. Viewed from this

perspective, the labour code bills are conceptually brittle. They privilege the rights of employers

over those of employees. Their unstated premise is that what workers claim as rights are largesse

offered by the state and employers. The major thrust of the bills is to contain and manage the

aspirations of workers, not to create a regime that fosters enabling capabilities. This is one of the

chief reasons nothing in the bills even remotely empowers workers and enhances their bargaining

power.

One might argue that the mandate of the Labour Code bills is to reform labour laws, not to promote

equality and human capabilities. This dichotomy is untenable. Labour relations do not operate in a

vacuum. Workers' rights are imbricated with social attitudes toward the labouring class. One things

feeds off the other. Thus, since labour rights are anemic and effete, workers are relegated to the

periphery. Consequently, they suffer from the blight of social disdain. Because the labouring class

is the object of contempt, its needs are not accorded priority. Over time, this vicious cycle acquires

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a life of its own. The upshot is that workers suffer from a double whammy: unequal bargaining

power and misrecognition with no end in sight. Philosophers like Charles Taylor and Nancy Fraser

have written extensively on the importance of recognition in our lives. They state that we become

fully human through a dialogical process when others recognize us for who we are. Mis-recognizing

or withholding recognition is oppression. The politics of recognition currently on the ascendant

across the globe seeks to reverse this trend. The labour code bills could have aided this process by

being fair to the working class. Instead, they can barely conceal their pro-capital tilt.

REINSTATING WORKERS' RIGHTS

All the abnormalities of the labour code bills emerge from and are sustained by two sources: rst,

our philosophical misconceptions about labour and its role in promoting the common weal; and

second, a common sense that denigrates most forms of labour. Redressing this situation demands

dismantling the arti cial mental roadblocks we have set up. We can undertake this task at several

levels. As a rst step, we must junk school and college textbooks that purvey apocryphal stories

about how some politicians grappled with alligators in their childhood. Likewise, hagiographies of

lm stars and cricketers must be excised. Instead, our children must be taught to appreciate the

value of labour, the importance of dignity, and what we owe to each other as human beings.

Second, judges, bureaucrats, the police, legislators, and educators must be required to undergo

compulsory sensitivity training about the toiling class and their everyday struggles. Third, the

demeaning depiction of labourers in popular culture must end. Contrary to popular perception,

denigrating the working class - not some salacious scenes in the movies - is the most objectionable

form of vulgarity. None of these initiatives will succeed if we do not rst bury the labour code bills

fathoms deep. Barring business owners, no one will notice their demise.

The views expressed in this essay are personal

(Badrinath Rao is an Associate Professor of Sociology and Asian Studies at Kettering University in
Flint, Michigan, in the US. He is also a practicing attorney in the United States)

[Watch Live Law Documentary On Labor Chowks]

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TAGS LABOUR REFORMS  MODI GOVERNMENT  NDA GOVERNMENT  LABOUR LAWS  LABOUR RIGHTS 

INDUSTRY  ECONOMY 

Next Story

COLUMNS

Getting To Yes – An Understanding And Summation

Nasir Shaikh 20 Oct 2020 2:30 AM

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Negotiation as a concept as a way of life is a part of our daily lives. What is Negotiation to you? To

me it is a conversation directed at reaching a consensus or an agreement. We negotiate get the

best of life, be it a better salary, discounts or sometimes even an agreement to understand our

thought process. Although, this is an art we have engaged in since our childhood, very few have

been able to uncover the right strategy to ensure that the process creates wise agreements. In the

authors' words, a wise agreement is an agreement "that meets the legitimate interests of each side

to the extent possible, resolves con icting interests fairly, is durable, and takes community interests

into account." Keeping in consideration that how improbable it is for two or more individuals with

contrasting thought processes and arguments would come to this level of an agreement, it is

critical that we assess and treat each factor that will contribute to broken or unreasonable

negotiations.

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Unfortunately, there is a growing misconception that e cient negotiations are about stalling, and a

great negotiator is one who can do that until the other party gives up. Another myth about e cient

negotiation is that a winner is one who can force his views as much as one can. Both the above

thought processes may yield short term results. In a typical negotiation, each party will hold a

position and the following conversations, arguments… counter arguments will be focussed around

sustaining these positions trying to destabilise the other party to give up their positions. It has been

observed, parties do end up taking extreme positions so that the resulting agreement falls within a

desirable range. Such positions highlight that the intention of the position may be to blind the other

party to trick the other to nd a false common ground that is disadvantageous to the other party.

Another aspect of positional negotiations is that in most cases each side of the divide explore two

distinct ways of imposing their positions. One party can rest or rely on hard bargaining that will

involve aggression, fear, or ire against the opposing party that may adopt soft positional bargaining,

meaning that the possibility of that individual reaching a compromise quickly is higher as they

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would like to avoid tension and con ict. Both methods are like two sides of a coin, but both are

ine cient frameworks. There is a third form of negotiations which is called 'Principled Negotiation',

it nds that thin line between the two. This form separates the argument from the people, it

searches for options that mutually appeal to both parties, not obsessing positions but nding

reason.

Principal negotiation works only when the parties choose to see beyond their individual emotions

or beliefs. You must understand that there is no need for negotiations if your view of how the world

works is the standard that should guide everyone's motives. People negotiate because they need to

nd common ground from varying thought processes and vantage points until one single points

which incorporates the beliefs of both con icting parties is arrived at. Hence, the authors list three

components of negotiations that could either cripple the process or fast-track and implement wise

agreements.

The rst is perception. Perceptions, as mentioned earlier, are distinct even when two people have

access to the same information. It comes from a place where biases and information ltering

mechanisms dominate. Therefore, negotiations would yield good results only if you put yourself in

the shoes of the other negotiator. Ascertain their perception, respect it, understand it, and

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acknowledge it. Blame game is to be avoided as that does nothing but compounding issues by

feeding one's fear whilst distorting the decision-making process.

The second component is emotions. Emotion is a key contributor to either the negotiation being

successful or a failure. Keeping the same in mind, it is important to identify the role that emotion

has played in the problem. Verify that an attack on your identity is not inducing a blind spot.

Likewise, do some soul searching and ensure that your anger is not a masking agent for your true

emotions. Similarly, try to analyse and understand the emotions of the other person. Whilst

handling the other person's emotion, you should allow the other person to express their own

emotions and be mindful not to downplay them. The probability of the emotions rushing to the

surface is extremely high if this happens – allow it to play its' time and control your reactions to the

outburst of emotion.

The framework of Positional Negotiation is awed since it focuses on the position vs. the motives.

Let us take an example of two parties taking different positions and yet share common interests.

Similarly, an individual can agree with your position and yet, have contrasting interests. Hence you

need to know the "whys" motivating the other person's position. Also, try to identify the "why not"

that is stopping him from reaching an agreement, fully knowing that the positions may have been

initiated by multiple interests. One should understand that the most compelling concerns are basic

needs like autonomy, respect, recognition, economic wellbeing, acceptance, and security.

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Therefore, it is advantageous to communicate your concerns as explicitly as you can. Before you

make known your position, you should start the negotiation by explaining your motives. This

approach will keep the other person's attention xated on your underlying interests, and not your

position leading to the invention of options. As easy as this sounds, it entails a level of creativity

that ckle reasoning will not generate. Hence, you should do thought showering with people that

are on your side of the divide, and those that are on the opposing side (this can be tricky). You

could be divulging information that might undermine your bargaining power, or that could falsely

lead the other person to believe that you could accept a particular settlement term. It would be

great if you could look at the arguments from the perspective of the experts and not to limit

yourself to the obvious viable solution. To do this both or all parties need to be a part of the

decision-making process.

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The well-crafted arguments, mentioning about the effectiveness of standards, principles, and

interests, become redundant when there is an absence in the balance of power between the

parties. With one having less to lose, you must be careful so that you are not consciously pushing

them to exit the process of negotiation which will be harmful to the process and you. Irrespective of

how powerful or imposing the other party is, one can use two diffusing or destabilizing tools to

ensure that you are not at the mercy of that individual. One way is to set the worst possible

outcome that is acceptable to you with this you will resist the temptation to accept a mediocre

offer. Be mindful that your bottom line does not become a rigid framework, as it would blind you to

the other opportunities.

Bearing this in mind, the authors conceptualised this tool called the BATNA — the Best Alternative

to a Negotiated Agreement. This tool simply de nes the alternatives you have when the negotiation

breaks off. Once you carefully formulate a BATNA, the other person who earlier seemed imposing

will automatically lose a substantive amount of power on the outcome of the negotiation. Similarly,

you need to be adaptable when the other party is not playing the eld as you are. If this is the

situation that you nd yourself in, then you practice what the authors call the Negotiation Jujitsu.

This practice is not about attack but de ection, look beyond their apparent rigidness, analyse it, and

conclude on potential interests that could fuel their hard-positional bargaining.

One way to counter this, you should be able to embrace criticisms, use them to create new thought

processes, idea and try to diffuse their hostility by asking them for their thoughts. One way to do

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this is to replace your statements with questions. Momentary silence and strategic pauses when

under attack will also help you to gather your thoughts and not be impulsive.

It is one thing for a negotiator to dig in his position just to have the last say, it is another when he

deploys various psychological tricks that could propel you to want to end the negotiation quickly or

to give up your leverage. Therefore, you must identify the numerous tricks the other person might

use on you and look for ways to sidestep them. Once you discover that a negotiator is using

dubious means to trick you into reaching a concession, you should renegotiate the rules of the

game. Let them know that you are aware of their strategy.

Remember a negotiation does not have to be painful or exhaustive that could cause a breakdown

of communication, or that could leave you feeling bitter and short-changed... This move would

ensure that the present negotiation does not have negative effects on future ones.

Views are personal only.

(Author is Chief Executive O cer at Lexicon Management Institute of Leadership & Excellence)

TAGS PRINCIPAL NEGOTIATION  NEGOTIATION  BATNA 

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[Full Video] [Georgetown Law And SDR] Virtual Discussion On "Keeping The Executive In Check: The Role Of
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SC Stays Allahabad HC Judgment Which Directed UPPTCL To Release Bank Guarantee Of Contractor

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आपरािधक मामले म पहली अपील की सुनवाई कर रहे कोट को खुद की राय बनाने की ज रत होती है , सु ीम कोट ने
दोहराया

ा तलाकशुदा प ी घरे लू िहं सा अिधिनयम के तहत िनवास के अिधकार का दावा कर सकती है ?

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सु ीम कोट वीकली राउं ड अप : िपछले स ाह सु ीम कोट के कुछ ऑडर/जजमट पर एक नज़र

दहे ज ह ा मामले म कारवाई म 21 साल की दे री ों? सु ीम कोट ने मांगा िबहार के डीजीपी, पटना हाईकोट के रिज ार
जनरल से ीकरण

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एक जज के िलए सभी दबावों और बाधाओं को झेलना और सभी बाधाओं के खलाफ बहादु री से खड़े होना मह पूण गुण
है ः ज स एनवी रमना

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