Critique of two Bills on Unorganised Sector Worker Drafted by National Commission on Enterprises for Unorganized and Informal Sector
By T.S.Sankaran

Dear Dr Jayashankar

You may recall our meeting at the Consultations organized in Delhi on the 23rd and 24th September by The National Centre for Labour and others on the various Bills on Unorganized Sector Workers. I had promised you to send my comments on the two Bills drafted by the NCEUS.

I regret the delay in sending you my comments and hope that they are not too late.

I hope to be in Delhi between the 21st and 25th November and can be contacted at 011-26485696 should you want me to come over for any discussions or clarifications.

The basic point I made at the consultations and which I stick to ,is the same as the one urged by the National Campaign Committee for Unorganized Sector Workers (NCC) that there must be an integrated single law which will include not merely provisions for social security but also for the more important issues like regulation of employment, security of livelihood, conditions of work, protection of environment, guarantee of customary rights including access to common natural and property resources and so on, all to be provided through schemes in the drafting of which and implementation of which, the workers will have effective voice through tripartite Boards and their subordinate tripartite bodies at lower levels like district, tehsil, Panchayat smithies, project areas and so on.

You might have by now seen the Petition signed by lakhs and lakhs of workers and presented to The Petitions Committee of Parliament after a massive Rally in Delhi on the 5th of May this year and also the letter written by Justice V R Krishna Iyer, Chairperson of NCC, to the Prime Minister on the subject (Copies of these and other documents may be had from Subhash Bhatnagar of NCC at Delhi)

What we in the NCC demand is participation in the whole process; we are quite clear that the unorganized workers do not want anymore to be in the position of "beneficiaries". We want to be participants in the whole process. If the history of the enactment of The Building and Other Construction Workers (Regulation of Employment and Conditions of Work) Act, 1996 is studied, it will be clear that tripartite bodies at various levels, both for formulation and implementation of Schemes, including provision for resolution of disputes, has been the theme song of the campaign launched by the National Campaign Committee for a Central Law for Construction Labour. The lessons of that struggle have not been forgotten. We are strengthened by that experience and that is why, even though we did not achieve in the 1996 law all that we fought for, we are now quite clear that an integrated law dealing with all aspects and giving the workers and their representatives a central place in the scheme of things is a must. Given the nature of the sector, what we are demanding is both realistic and necessary. It is not a case of " the best being the enemy of good" The promise made in the National Common Minimum Programme about the firm commitment "to ensure welfare and well being of all these workers , particularly those in the unorganized sector who constitute 93% of our workforce" does not and can not admit of half measures.

Coming to the two Bills prepared by NCEUS, I have the following comments, all subject to the above stated general position.

A: Unorganized Sector Workers Social Security Bill, 2005.
Section 1:-Let the law be brought into force through out the country at a date not later than eighteen months of the date of Presidential assent to the law as passed by both Houses of Parliament.

While section 15(i) stipulates that the State Governments shall constitute Boards within one year of of the date of commencement of the Act, no such time limit is indicated in section 9 for establishing the National Board by the Central Government. Why? Also, section 4 relating to framing of schemes does not also stipulate any time limit. The law must set very strict time limits for these things. Otherwise, we will have the same sorry experience that we have in respect of the 1996 law relating to building and construction workers where even after almost 10 years, most states are yet to implement it. One cant be too strict with governments in such matters.

Section2(m):--"Wage Worker"---the inclusion of persons in the organized sector without any social security cover , though well intentioned, may create problems. It is presumed that the above expression is meant to cover contract and casual in the organized sector. The expression "without ANY social security cover" needs elaboration. Eligibility to become a member of the Employees Provident Fund or to maternity benefit by the very fact of being employed in an industrial establishment covered by the Maternity Benefit Act will exclude him/her. Is that the intention? Further, an enterprise may be a registered cooperative or a registered firm or even a company (and therefore in terms of section 2(h) be in the organized sector) may employ less than 20 persons and therefore fall outside the purview of the EPF and ESIC Acts. Is it the intention that such workers who may be regular employees and not contract or casual labour, be covered by the definition in section 2(m)?One is not sure whether these employees will even like to be covered by the proposed law. I suggest a more detailed look be bestowed on this.

Section 4:-"Framing of Schemes"-Will the proposed National Social Security Scheme be drafted by the Central Government on its own without even consulting the National Social Security Board. and/or the state governments? The press note carries some calculations and states that the outlay will be less than one percent of the GDP. One need not and should not be so modest. What we want and what we want the law to contain as legislative policy is that to begin with at least 3% of the GDP must be ear marked for this and this percentage must go up annually by half or one percent until a satisfactory level of social protection is reached for every man , woman and child in our country. We are in the 55th year of our Constitution and it is time that in terms of Article 41, " public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want" became a reality.

In respect of old age pension, the age limit may be reduced to 55 or even 50 for women workers, particularly in employments like construction, they may find it difficult to get employment even at 45 years of age.

Maternity benefits to spouses of men workers is a novel and welcome step. Given the size of the sector, this will amount to a near universal scheme of maternity assistance. An integrated proposal for universal child care (0 to 6 years)will be a welcome addition.

Section 6:- "Existing Welfare Boards"-The implications of this provision and the equity of it merit a detailed discussion.

Chapters IV "National Social Security Board for
Unorganized Sector Workers"

Chapter V "State Social Security Boards for
Unorganized Sector Workers"::--

These questions arise:--

(a)What is the need for a National Board with executive powers. What will be categories and numbers of workers that may fall in the "central sphere" going by the definition of 'appropriate government" in the Industrial Disputes Act, 1947? Is it not adequate to have a representative National Advisory Committee for advising the central governments on all matters arising out of the implementation of the Act?

(b)The composition of the Boards must be essentially tripartite, with the addition of two or three persons to represent NGOs, experts and so on.

Considering that the draft Bill is only dealing with social security provisions, there may not be any need to list out the employments that will be covered. But in an integrated law of the type that NCC demands, there will be need for listing out employments and grouping them for purposes of regulation of employment and related matters. I leave it at that.

Chapter VI "Registration of Unorganized Sector Worker":--
It is desirable to associate trade unions and other workers organizations in the work of registering workers.

The tripartite subordinate bodies of the Board at the lowest level can do the registration. There is no need for a District level committee

Chapter VII "Delivery of Social Security Benefits"
:-- Consistent with all that I have stated above, I see no need for Workers Facilitation Centres. The tripartite bodies will do all that is expected of the WFCs.

Chapter VIII "Dispute Resolution Bodies
and Their Constitution"
:-- The above remarks will also apply to Disputes Resolution Councils at the district level.

Unorganised Sector Workers (Conditions of Work
and Livelihood Promotion )Bill,2005.

The draft is only a declaration of intent and needs to be fleshed out. The law must reflect ILO's Fundamental Principles and concept of Decent Work, apart from minimum standards. The drafts prepared by the National Centre for Labour and the NCCUSW may be referred to, with advantage.

Sorry for inflicting such a long letter on you. Hope you dont mind the length,.

With regards

Yours sincerely
T S Sankaran