Over the last few years, there have been talks by the government to reform the existing labour laws, which are mostly archaic, to make them compatible with current issues and needs of the labour market. In the Union Budget 2019, the Government has pushed ahead with such reforms and proposed to streamline over 44 central laws and over 100 State laws pertaining to labour into 4 major Labour Codes, with the objective of increasing the ‘ease of doing business’ and ‘Make in India’ initiatives. The Government hopes that by standardizing definitions, registrations, and filings, there would be less conflict and fewer reasons for disputes.
The proposed Labour Codes are as follows:
- Code of Wages – The Code of Wages is set to combine and subsume the Payment of Wages Act, 1936, the Minimum Wages Act, 1948, the Payment of Bonus Act, 1965 and the Equal Remuneration Act, 1976.
- Code of Industrial Relations – The Code of Industrial Relations seeks to replace the Industrial Disputes Act, 1947, the Trade Unions Act, 1926 and the Industrial Employment (Standing Orders) Act, 1946.
- Labour Code on Social Security – Labour Code on Social Security is intended to create a comprehensive social security system to provide retirement, health, old-age, disability, unemployment and maternity benefits to a vast majority of the population.
- Small Factories (Regulation of Employment and Conditions of Services) Bill – This Bill had initially been proposed to exempt small factories with less than 40 employees from the applicability of 14 labour legislations. However, this bill is most likely to be shelved on account of issues pertaining to rights of employees.
Further, the Government has allocated INR 11,184.09 crores to the Ministry of Labour and Employment which is a significant boost in comparison to the average budget allocation to the Ministry over the past 5 years.
Code of Wages, 2019
The first in the series of Codes to be approved by the Parliament is the Code of Wages, 2019[i] (“Code of Wages”). The Code of Wages (initially proposed in 2015), which amalgamates and subsumes 4 major legislations, namely the Payment of Wages Act, 1936[ii], the Minimum Wages Act, 1948[iii], the Payment of Bonus Act, 1965[iv] and the Equal Remuneration Act, 1976[v], was passed by the Lok Sabha on 30th July, 2019 and the Rajya Sabha on 2nd August, 2019 and has received the President’s assent on 8th August, 2019 and published in the Official Gazette for general information.
The Code of Wages, while not changing the provisions of the law themselves substantially has certainly reduced the ambiguity and multiplicity of definitions and compliances as well as broadened the scope of the beneficiaries under the existing laws thus providing benefits to around 50 crore employees. The Code comprises 9 chapters, with minimum wages, payment of wages, equal remuneration and bonus being covered under different chapters.
Salient Features of the Code of Wages
This section points out some of the key provisions in the Code of Wages which are different from the existing laws or a welcome clarification of the same.
- Applicability and Beneficiaries – The Code of Wages is applicable to all establishments regardless of industry. Further, all employees are eligible to be paid minimum wages and paid salary in a timely fashion. This is a vast difference from the existing law, where Minimum Wages Act, 1948 was applicable to only scheduled employments which were approximately 1750 in number and Payment of Wages Act, 1936 which was applicable only to those employees earning INR 24,000 or less per month.
- Uniform Definition of Wages – One of the most vexing aspects for employers over the years has been the multitude, 12 at present, of definitions for the term ‘wages’. This has led to difficulty in the setting of salary structures as well as determining various payments, contributions and deductions to be made. The current definition of wages provides more clarity on inclusions and exclusions specifically with respect to allowances. Wages now include all remuneration except for certain specific allowances such as conveyance, HRA, overtime, commission, bonus and the consistent social security contributions and gratuity. This definition makes the long paid special allowance a part of wages. Further, the Code of Wages also mandates that the excluded components cannot exceed 50% of the total salary paid. Any exclusions in excess of 50% shall be treated as wages. It will be interesting to see whether this definition remains consistent under the other proposed Labour Codes.
- Distinction between ‘Employee’ and ‘Worker’ – The Code of Wages makes a distinction between ‘Employee’ and ‘Worker’ with the definition of Employee covering all persons employed, except for apprentices, while ‘Worker’ is defined as similar to the existing ‘workman’ under the Industrial Disputes Act, 1947. Worker is essentially all employees except for those employees in a managerial or administrative capacity or employees in a supervisory capacity earning more than INR 15,000 a month. The Code of Wages references ‘Worker’ mostly in the context of minimum wages.
Although the definition encompasses all kinds of workers across industry sectors, uncertainties still remain regarding whether the Code would bring within its purview people working in gig-economy, where there is no fixed place of employment and flexible timings. The apex court has held, in Officer-In-Charge, Sub-Regional Provident Fund Office v Godavari Garments (2019)[vi], that women who worked from home doing piece work would be considered “employees” of the company which had engaged them to do so, for the purposes of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (EPF Act), even if there was no direct contract of employment between the two. If the same is applied to the Code, it would definitely lead to uncertainties regarding the applicability of provisions in accordance with the nature of the job and lead to unnecessary litigations.
- Determining Minimum Wages – As it was under the existing laws, both the Central Government and the State Governments have the right to set the applicable minimum wages for central and state establishments.
- The Code of Wages proposes for the Central Government to set a national minimum wage or floor wage, which may change based on regions. Any State Governments fixing their minimum wages shall ensure that the wages are equal to or greater than the floor wage. This would bring some uniformity in the minimum wages across the country and would make all states almost equally attractive from the point of view of labour cost for investment as well as reduce distress migration. However, the floor wage concept might diminish the minimum wage as it only states the lowest possible end of the spectrum and some states might opt to stick to it.
- State Governments while determining the minimum wages shall use only 2 factors – (a) skill level of the employees, namely unskilled, semi-skilled, skilled or highly skilled, and (b) the geographical location. In addition, the arduousness or the danger level of the work may also be considered for the setting of minimum wages.
- The Code of Wages mandates that the minimum wages be revised once every 5 years.
- The Code does not provide any formula for fixation of minimum wages. For calculation of minimum wages, the 15th Indian Labour Conference (ILC) had adopted per capita food intake of at least 2,700 calories for a worker’s family comprising three units (2 adults and 2 children) for the calculation of minimum wages which has also been approved by the Supreme Court. A similar formula would have found more acceptability.
- Digitization – Payment through electronic and digital means have been introduced as a valid payment mode under the Code of Wages.
- Overtime – Overtime is fixed at twice the daily rate of wages for any work beyond the prescribed hours. This is similar to the position under various State laws. However, there is no provision for any compensatory off.
- Appellate Authority – Code of Wages provides for an appellate authority between the claims’ authority and judicial forums for speedier dispute resolution.
- Inspections – An Inspector-cum-Facilitator shall be appointed by the appropriate governments and the Code of Wages allows for a more structured inspection scheme which shall also include web-based inspections and request for information / documents through electronic means.
- Documentation – The Code of Wages requires employers to maintain a register containing the details of the persons employed, muster roll, wages and other prescribed information. Employers are also required to display a notice containing the abstract of the Code of Wages, wage rates, wage period, payment dates/days and contact details of the jurisdictional Inspector cum Facilitator.
- Penalties – Under the previous law the penalties for non-compliance were quite paltry and further was uniform regardless of the offence. The Code of Wages has imposed greater penalties as well as proportioned the said penalties pertaining to the degree of non-compliance. The Code of Wages prescribes the following penalties:
- A maximum fine of INR 50,000 for non-payment of any applicable amounts. Simple Imprisonment of up to 3 months and a maximum fine of INR 1,00,000 for subsequent offences committed within a span of 5 years.
- A maximum fine of INR 20,000 for other non-compliances. Simple Imprisonment of up to 1 month and a maximum fine of INR 40,000 for subsequent offences committed within a span of 5 years.
- A maximum fine of INR 10,000 for incorrect maintenance of records.
Companies are also to be given an opportunity to rectify any non-compliances before prosecution at the discretion of the Inspector-cum-Facilitator. There is also an option for compounding of offences in the first instance.
- Limitation Period – The limitation period for claims by workers has been increased to 3 years, thus offering workers more time to exercise their statutory rights.
- Discrimination – While the Equal Remuneration Act, 1976, prohibited discrimination in wages, recruitment, promotion, training, and transfer for workers performing the same work and required the constitution of a board to promote employment opportunities for women, the Code of Wages prohibits gender-based discrimination only in terms of wages and recruitment. However, the gender-neutral approach has broadened the scope to a certain extent.
- Bonus – The Payment of Bonus Act, 1965 was applicable only to workers earning wages up to INR 21,000 per month. However, this statutory threshold has not been incorporated in the Wages Code, leaving it up to the discretion of the appropriate government to prescribe the wage ceiling for eligibility of payment of bonus. Further, conviction for sexual harassment has been added as a ground for disqualification from payment of bonus.
Most other provisions are the same as under existing laws.
Implications of the Code of Wages
As stated earlier, the substantive law itself has not seen much amendment under the Code of Wages and for the most part, companies will not see a vast difference in the actual provisions. The Code of Wages is mostly a consolidation of existing laws rather than a true reform of labour laws. However, it is a huge boon in terms of removing the multiplicity of definitions as well as authorities which would improve the ease of compliance and maintenance of records and filings.
Further, one of greatest advantages of the Code of Wages is that the benefits contemplated under the legislation is now available to a much larger portion of the workforce with very few categories of employees excluded from the scope. The introduction of a national minimum wage may also help reduce differences between States and skillsets and provide a basic standard of living for all employees across the country.
The lack of change in substantive law may be seen as a lost opportunity since the legislature has not truly taken the effort to analyse the need to retain archaic provisions.
Specific rules and notifications under the Code of Wages are also awaited before more insight can be gathered on whether the codification will actually improve the ease of compliance and doing business.
[vi] SCC OnLine, SC, 903.
Image Credits: Pop & Zebra on Unsplash
The substantive law itself has not seen much amendment under the Code of Wages and for the most part, companies will not see a vast difference in the actual provisions. The Code of Wages is mostly a consolidation of existing laws rather than a true reform of labour laws. However, it is a huge boon in terms of removing the multiplicity of definitions as well as authorities which would improve the ease of compliance and maintenance of records and filings.