Working conditions of Unorganized sectorwith reference toConstitution of Indiaand theUnorganized Workers Social Security act, 2008

SUBMITTED TO:SUBMITTED BY:Ms. Supreet GillAastha Rana19/109th Semester

Acknowledgement

First of all, I would like to thank my subject teacher Ms. Kusum for giving me this project and helping me through the completion of it. I have learnt a lot through her lectures.

I would also thank our library staff for providing me with good books.I would also like to thank my parents and friends for their continuous support and cooperation.

Aastha Rana

CONTENTS

Categories of unorganised labour force4 Labour Rights under the Indian constitution5-6 Adoption of welfare measures for the unorganized sector6-7 Aim of Social Security Act7-8 Unorganised Workers Social Security Act 20089-11 Major Limitations Of The Act11-13 Conclusion Review Of Social Security Of The Unorganised 14 Bibliography15

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Introduction Categories of unorganised labour forceThe Ministry of Labour, Government of India, has categorised the unorganised labour force under four groups depending on occupation, nature of employment, specially distressed categories and service categories.

1.Under Terms of Occupation:Small and marginal farmers, landless agricultural labourers, share croppers, fishermen, those engaged in animal husbandry, beedi rolling, labelling and packing, building and construction workers, leather workers, weavers, artisans, salt workers, workers in brick kilns and stone quarries, workers in saw mills, oil mills, etc. come under this category.

2.Under Terms of Nature of Employment:Attached agricultural labourers, bonded labourers, migrant workers, contract and casual labourers come under this category.

3.Under Terms of Specially Distressed Category:Toddy tappers, scavengers, carriers of head loads, drivers of animal driven vehicles, loaders and unloaders come under this category.

4.Under Terms of Service Category:Midwives, domestic workers, fishermen and women, barbers, vegetable and fruit vendors, newspaper vendors, etc., belong to this category.

Labour Rights under the Indian constitutionThe Constitution of India has conferred innumerable rights on the protection of labour. In thischapter lets see in brief what are all the rights confered and what are the mechanism used, withthe support of case laws.Articles 14, 19, 21, 23 and 24 form part of the Fundamental Rights guaranteed under PartIII of the Constitution.Articles 38, 39, 39-A, 41, 42, 43, 43-A and 47 form part of the Directive Principles ofState Policy under Part IV of the Constitution.Article 14: Art 14 of the Indian Constitution explains the concept of Equality before law. The concept ofequality does not mean absolute equality among human beings which is physically not possibleto achieve. It is a concept implying absence of any special privilege by reason of birth, creed orthe like in favour of any individual, and also the equal subject of all individuals and classes to theordinary law of the land.Thus, the rule is that the like should be treated alike and not that unlike should be treated alike.InRandhir Singh v. Union of India[footnoteRef:2], the Supreme Court has held that although the principle of'equal pay for equal work' is not expressly declared by our Constitution to be a fundamentalright, but it is certainly a constitutional goal under Articles 14, 16 and 39 (c) of the Constitution.This right can, therefore, be enforced in cases of unequal scales of pay based on irrationalclassification. [2: AIR 1982 SC 879]

Article19(1)(c) This Article speaks about the Fundamental right of citizen to form an associations and unions..Under clause (4) of Article 19, however, the State may by law impose reasonable restrictions onthis right in the interest of public order or morality or the sovereignty and integrity of India.Article 21:The sweep of the right to life, conferred by Article 21 is wide and far reaching. 'Life' meanssomething more than mere animal existence. It does not mean merely that life cannot beextinguished or taken away as, for example, by the imposition and execution of the deathsentence, except according to procedure established by law. That is but one aspect of the right tolife. An equally important facet of that right is the right to livelihood because, no person can livewithout the means of living, that is, the means of livelihood.InD.K. Yadav v. J.M.A. Industries, The Supreme Court has held that the right to life enshrinedunder Article 21 includes the right to livelihood and therefore termination of the service of aworker without giving him reasonable opportunity of hearing in unjust, arbitrary and illegal.Articles 39(a) and 41 The principles contained in Articles 39(a) and 41 must be regarded as equally fundamental in theunderstanding and interpretation of the meaning and content of fundamental rights. If there is anobligation upon the State to secure to the citizens an adequate means of livelihood and the rightto work, it would be sheer pedantry to exclude the right to livelihood from the content of theright to life.[footnoteRef:3] [3: http://www.lawyersclubindia.com/articles/Labour-Rights-under-the-Indian-constitution-3300.asp]

Adoption of welfare measures for the unorganized sectorApproximately 85% of Indias 460 million strong labour force are categorised as unorganised sector workers. As the National Commission for Enterprises in the Unorganised Sector (NCEUS) argues, the unorganised sector workforce does not enjoy three types of social protection employment security (no protection against arbitrary dismissal), work security (no protection against accident and health risks at the workplace) and social security (health benefits, pensions, and maternity benefits). In the spirit of extending social security to the unorganised sector and keeping in mind long term demographic trends which indicate a rapidly ageing population and a non-declining unorganised sector workforce, the Government of India passed the Unorganised Workers Social Security Act (UWSSA) in 2008. The passage of the UWSSA also tied in with the introduction of several publicly provided, social security schemes in the insurance and pension sectors, the three predominant schemes being Rashtriya Swasthya Bima Yojana (RSBY), a national health insurance scheme largely for the below poverty line population; Aam Aadmi Bima Yojana (AABY), a life insurance scheme; and National Pension Scheme Swavalamban (NPS-S), a pension scheme specifically for the unorganised sector workforce. .The Ministry of Labour and Employment in order to ensure the welfare of workers in the unorganised sector which, inter-alia, includes weavers, handloom workers, fishermen and fisherwomen, toddy tappers, leather workers, plantation labourers, beedi workers, has enacted the Unorganized Workers Social Security Act, 2008. The Act provides for a constitution of the National Social Security Board which shall recommend the formulation of social security schemes, viz. life and disability cover, health and maternity benefits, old age protection and any other benefits as may be determined by the Government for the unorganised workers. Accordingly, the Ministry has constituted a National Social Security Board.

Aim of Social Security ActThe Unorganised Sector Workers' Social Security Bill, 2007 provides for an enabling framework for welfare schemes targeting unorganised sector workers.The central government may formulate welfare schemes for different sections of unorganised sector workers regarding life and disability cover, health and maternity benefits, old age protection, and any other benefit decided by the government.The state government may formulate welfare schemes related to the provident fund, employment injury benefits, housing, educational schemes for children, skill upgradation of workers, funeral assistance, and old age homes.This Bill establishes boards at the central and state levels to advise and help in formulating, implementing and monitoring social welfare schemes for unorganised sector workers.Every unorganised sector worker shall be registered by the district administration and issued a portable smart card carrying a unique identification number. Issues and AnalysisThe National Commission for Enterprises in the Unorganised Sector (NCEUS) recommended two separate Bills for agricultural workers and unorganised non-agricultural workers. This Bill does not differentiate between agricultural and non-agricultural workers.The two NCEUS draft Bills included both conditions of work and social security benefits. This Bill does not address conditions of work.In order to register as an unorganised worker, an individual must be 14 years of age and declare himself an unorganised worker. There is no process to verify such declaration.The Bill does not specify any time limit within which the district administration must issue an identity card.Whereas the Bill sets a salary limit to define a self-employed worker and a wage worker, there is no such salary limit in the definition of a home-based worker.

Unorganised Workers Social Security Act 2008Before discussing the contents of the Act it is pertinent to highlight the main features of the recommendations of the NCEUS, since the idea of a national minimum was put forward by that Commission for the first time and also because it provided the basis for the new legislation in 2008. The NCEUS scheme was intended to cover all unorganized or informal workers, including both wage and self-employed workers, earning less than Rs. 6500 per month in 2005. The scheme had the following three types of social security cover: (a) health cover to take care of illness of the workers and members of the family and maternity benefit to the spouse or self (in the case of women workers), (b) accident or death of the registered worker, and (c) old age pension for those belonging to poor households and provident fund to those outside this segment. The Unorganized Workers Social Security Act 2008 (UWSSA), though not measuring up to the expectations of the NCEUS, does take forward many of its recommendations, and thus marks a departure from the past on the much neglected issue of social protection for the unorganized workers. The main features of the UWSSA, 2008, are as follows:i. The Act covers unorganized workers, including both self-employed and wage workers.ii. It provides for formulation of schemes by the Central Government for different sections of unorganized workers on matters relating to: a) life and disability cover, b) health and maternity benefits, c) old age protection, d) any other benefit as may be determined by the Central Government.iii. It provides for formulation of schemes relating to provident fund, employment injury benefits, housing, educational schemes for children, skill upgradation, funeral assistance and old age homes by the state governmentiv. It provides for a National Social Security Board under the chairmanship of the Union Minister for Labour and Employment. The Board, among others, also provides for representatives of unorganized workers and employers of unorganized workers as well as persons belonging to the Scheduled Castes (SCs), Scheduled Tribes (STs), other minorities and women. There is provision for the constitution of similar Boards at the state level.v. Realizing the critical deficiency in the database relating to unorganized workers and the need for such informationfor proper monitoring, the Act prescribes record-keeping functions by the district administration with the help of the District Panchayats in rural areas and urban local bodies in urban areas.vi. Provision is also made for setting up of Workers Facilitation Centres to disseminate information on social security schemes available to them and to facilitate registration of workers by the district administration and enrolment of unorganised workers.vii. The Act, in Schedule I, lists ten social security schemes for unorganized workers and provides for inclusion of more such schemes from time to time The Central rules under the Act have since been framed and the Act came into force with effect from 16 May 2009. The National Social Security Board has been constituted and some states have already constituted the Social Security Board.The ten schemes included in the Schedule 1 of the Act are: (i) Indira Gandhi National Old Age Pension Scheme, (ii) National Family Benefit Scheme, (iii) Janani Suraksha Yojana, (iv) Handloom Weavers Comprehensive Welfare Scheme, (v) Handicraft Artisans Comprehensive Welfare Scheme, (vi) Pension to Master Craftspersons, (vii) National Scheme for Welfare of Fishermen and Training and Extension, (viii) Janashree Bima Yojana, (ix) Aam Aadmi Bima Yojana (Life Insurance Scheme for Common People), and (x) Rashtriya Swasthya Bima Yojana (National Health Insurance Scheme). The first eight of these ten schemes are among the existing ones while the last two are relatively new schemes that were announced a few months before the Act was passed. It is important to note that except the schemes for handloom weavers, handicraft artisans, fishermen and landless labour households, the eligibility in all the other schemes is based not on the unorganised/informal work status of the person but on whether those concerned belong to Below Poverty Line (BPL) households.

MAJOR LIMITATIONS OF THE ACT

Neither agricultural labourers have been brought under the purview of the Act nor a separate bill for agricultural labourers tabled. But, the minister claims that they are also covered. NCEUS had prepared two Bills, one on social security and the other on working conditions. The latter has been dumped and the Bill passed confines itself only to social security in its most diluted/truncated form. The 2008 Act appears to have excluded vast sections of unorganized workers like agricultural labourers, the unorganized labourers in the organised sector including contract labourers and the informal labourers in the formal sector, the anganwadi workers, para workers like ASHAs and parateachers, and those the cooperative sector. This exclusion reveals the true colours of the Politics of Inclusiveness of the UPA. The Act is applicable only to a small section of unorganized labourers whose income limit is expected to be notified by the government. There is every possibility that the subsequent notification will include parameters to exclude good number of unorganised workers from the applicability of the law and the schemes. The workers in the construction sector are exempted from making any payment because a cess was collected from the sector for providing health insurance and other facilities. But there is no provision to collect a mandatory cess from the employers in other sectors. Only the BPL unorganized workers have been exempted from paying any premium only in the case of one scheme 'Rashtriya Swasthya Bima Yojana providing for a paltry health insurance cover of up to a maximum of Rs.30,000 for a family of five. As a result, workers in other sectors would have to pay the premium amount. The passage of the Act is not accompanied by any legally stipulated guarantee for the establishment of a Central Welfare fund. There is no provision for penalties in the Act to punish those employers who violate it. Social Security to the unorganized workers has been narrowed down to ten paltry social security schemes. Most of these schemes like old age pension or maternity benefit (or even the meagre Bima Yojana, for that matter) are already existing/ongoing schemes and there is nothing new in them. As a result of dropping the Bill on conditions of work prepared by the Arjun Sengupta Commission, working conditions of unorganised workers including hours of work, mandatory holidays, industrial safety, job security, industrial relations and trade union rights, guaranteeing minimum wages, bonus etc., would remain unregulated and unenforced. The government has not acknowledged the principle of unemployment allowance in the case of job losses for unorganised workers or any form of employment and wage/income guarantee. It was recognized in the case of NREGA and the State governments in West Bengal and Tamil Nadu introduced a meagre payment of Rs.500 per month for organised industrial workers in case of loss of jobs but a comprehensive unemployment/job-loss allowance is yet to take shape in India as in the West. What is social security in the absence of unemployment allowance? The national and state boards for unorganised workers provided for in the Act are advisory bodies and like the National Labour Commission they are toothless bodies. While implementation is left to the district bureaucracy, there is no independent enforcement or watchdog/oversight body with representation from unions and there is no appellate authority even. Not only there is no penalty against the defaulting employers, there would be no action against the bureaucrats who refuse to register any unorganised worker under any of the twin scheduled schemes. The special problems of migrant workers, especially inter-State migrants, among unorganised workers, especially the problem of security, has been totally ignored by the Act. The special problem of women unorganised workers do not figure in the Act. The problems of security, sexual harassment, proper accommodation for migrant women workers, issues relating to nature of work and industrial safety, gender wage gap, non-payment of wages, childcare facilities at work spot etc., have been totally neglected

CONCLUSION REVIEW OF SOCIAL SECURITY OF THE UNORGANISED

According to the commitments of the Government of India, right of workers to social security has been recognised as inalienable and, therefore, must accrue to every worker under any system of labour law or labour policy. Provision of social protection is enshrined in Articles 38 (securing a social order for the promotion of welfare of the people), 39 (certain principles of policy), 41 (right to work, education and public assistance in certain cases), 42 (just and human conditions of work and maternity relief) and 43 (living wage etc.) of the Constitution of India as a part of the Directive Principles of State Policy. Important social security, poverty alleviation and social welfare measures are being implemented by various Ministries/Departments of State Governments and by civil society organisations.However, the reality on the ground today is that workers dont have access to essential social security services. Though the Unorganized Workers Social Security Act was passed in 2008, there has been dismal progress on the ground. The Act itself has been criticized for not defining a minimum social security floor that is enforceable by law and for not providing institutional powers to ensure effective implementation. The National Social Security Board for Unorganised Workers, constituted in August 2009, is limited to an advisory role, and does not have sufficient powers to implement, monitor or enforce social security. With the exception of a few states such as West Bengal, Chattisgarh and Karnataka, a majority of the states have not even set up their state level welfare boards.

Bibliography

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