Legal Framework for the Workforce of the Future

Every economic collapse paves the way to a transformative legacy, the pandemic is no exception. Globally, since 2020, the fluctuating and deliberate government-imposed lockdowns have forced the replacement of traditional work operations with automated labour platforms, virtual collaborations and digitized workforce interfaces[1]. According to International Labor Organization (ILO), the work from home arrangement has become an unexpected experiment that has managed to break the traditional barriers of working life and technology.

As the ‘new normal’ fixes its roots into the traditional office space, it is imperative to structure a regulatory legal framework that governs the ‘workforce of the future.’ Considering 96% of the organizations have successfully switched to work-from-home set-ups domestically since 2020, it is time for India to incorporate the new work culture into its legislative framework, in alignment with countries worldwide[2].

This article deliberates upon the exigency and structure of new work from the home regulatory regime, by mapping the work from home policies across the globe and analyzing the gaps in the present labour laws in the country that demand a more sincere reflection in the backdrop of the ‘new normal.’

Need of Comprehensive Legal Framework for Work from Home in India

 

          Fig: The economist[3]                                                              Fig: Statista[4]

The above two graphs illustrate two different statistics of work from home; graph 1 shows WFH working hours of employees per week in western countries, while graph 2 shows a survey of Indian millennials on lifestyle and work during a pandemic.

As per Graph 1, Britain has the highest percentage of work from home per week, with approximately 40% of the employees’ working-from-home for 5 or more days per week from 9 AM to 5 PM. In stark contrast, the Indian survey shows that work from home increased the office workload of 81% of employees which indicates that Indian employees are utilizing more energy than an average British employee. 

Additionally, 55% of Indian employees claim they do not enjoy work from home and 57% of employees say that work from home has pulled their career back. From these statistics, it appears that the issues outlined hereabove are the specific product of a lack of legislative or contractual conventions surrounding the treatment of employees participating through the Work From Home Model[5], and they indicate the urgent need to implement a compulsory legal framework in India governing work-from-home regime to prevent exploitation and loss of valuable human resource in the country, especially in the very important the service sector.

In this light, the Government of India has proposed to formalize work from home facilities for the service sector, leaving the manufacturing sector beyond the legislative scope. The parameters of the regulation are yet to be ascertained[6].  

Lacunas of the Extant Labour Codes in Dealing with the Work From Home Arrangement

 

  1. The draft Model Standing Orders for Service Sector 2020 – The policy is under the discretion of companies for implementation subject to the appointment of an employee. However, this is a very loosely framed guideline to build a sustainable framework for work from home. There needs to be a strong regulatory framework that recognises the need to work from home, protects the interest of the employees and the employers and deliver resolutions accordingly. However, the draft Model Standing Orders may get complicated with the individual state labour laws.
  2. Occupational Safety, Health and Working Conditions Code, 2020 (OSH Code) – The OSH Code defines the working place of employees as “establishment” refers to the physical working place of employees[7]. The OSH does not recognize work from home as the working place of the employee.[8] This puts relevant questions of safety and health of workers working outside a physical establishment of a company. As work from home becomes the new norm, the term “establishment” shall have to be broadened to normalize and adapt for the workforce of the future. Further, the OSH Code needs to ascertain strict compliance to working hours and leave policy, including making the employer liable to pay double wages for any work done beyond working hours/shifts/during leaves, also, security to employer’s data, equipment, confidential information, reverse engineering, data theft, etc., along with strict provisions curbing moonlighting by employees may be included to protect the interest of all parties concerned in a work from home scenario.       
  3. Code on Social Security, 2020 (CSS) – under the CSS few key definitions of terms that are present significantly digress from the international definitions of ILO[9], for example –“home-based work”, “remote work”, “telework”, “work at home”, “information and communications technology” etc. Categorizing and defining such terms in a unified manner is crucial for policymaking and regulating. For instance, the ILO definition of “work at home” overlaps with “home-based work” defined under CSS, but both terms have different meanings, and they collectively exclude “work from home”. The definition of “establishment”, “employment injury”, and other related provisions may be aligned with the concept of work from home to provide security to the employees in a work from the home setup.
  4. Code on Wages, 2019 (CoW)[10] – Companies has cut the pay of their employees since the economic downturn, particularly during and after the second wave. Several other factors[11] affected the evaluation of wages and allowances of employees working from home. Therefore, it is important to amend the exclusive legal framework for WFH so that employees get the promised salaries, and companies are under the express liability to pay their employees with a contractual obligation.

Additionally, to ensure that the laws pertaining to work from home are effective and efficient, it is pertinent that issues specific to work from home set up, such as the ones detailed below, are thoroughly studied and understood, before framing the regulatory framework:

  • Measurement of the time of work and conduct of work by the employee in a remote environment – The approach legislature takes with respect to the same and how the same may be incorporated into the wage structure.
  • Measures to protect employees from injury, damages, losses, etc., in a work from home set up –  Requirement on employers to provide the necessary equipment, connectivity, seating arrangement, periodic risk assessment, etc.
  • Maintenance of equipment provided to employee in pursuit of work from home, and regulation of use thereof, with consideration to allied privacy concerns.
  • The manner in which misconduct and harassment of various degrees will be evaluated in the remote environment and the application of existing legislation to such scenario.
  • Maintenance of confidentiality, exclusivity and contained environment of the employees during working hours in such remote environment, including restriction on moonlighting, data theft, confidentiality breach, reverse engineering, etc.

With the above concerns in mind, it would be pertinent to explore instances in which comparative jurisdictions where such concerns were addressed.

A Comparative Overview on Formulated and Implemented “Work from Home” Laws Across the World

 

In the recent pandemic “work from home” emerged as a pragmatic approach for employers of most sectors across the world making work feasible for individuals primarily involved in white-collar jobs. However, it did bring major challenges and inconsistencies for employees who were made to work after office hours were overburdened and sometimes exploited. Observing the changing workplace scenario, governments were proactive in finding solutions to make employees dependable and employers accountable.

Spain: Spain legislated on remote work in September 2020. Remote work must be voluntary and reversible, and formalized in a written agreement without prejudice to general employment legislation or existing collective bargaining agreements. The law clarifies whom it applies to, i.e., those under an employment contract, and who have rendered “remote work” for a minimum period of three months, for at least 30% of an employee’s working day, or an equivalent percentage based on the contract. It also differentiates between “telework” and “work from home”. Companies are to provide resources, equipment and consumables necessary to perform and maintain work remotely. Further, employees have a right to payment and compensation for expenses on equipment, the right to privacy and data protection, and a right to digital disconnection, amongst others. At the same time, the law empowers employers to ensure that remote employees fulfil their duties well.

Finland: Finland has provided flexible working opportunities for years. This is partly because of legislation, allowing employees the right to adjust their working hours for maximum flexibility, since the mid-1990s. The Finnish Working Time Act, 2019 was recently amended[12] to introduce key changes towards creating adaptive working arrangements on flexible work hours, flexible working arrangements and the introduction of ‘working time accounts’. The Act has several features affording flexibility. Employers and employees may agree to flexible working hour arrangements, subject to regular working time not exceeding 40 hours and adjustment of excess hours worked. The Act also permits individual flexible work arrangements where employees decide on placement and performance at least half of the working time, setting out a number of aspects such an arrangement must cover (such as days on which working hours may be allocated, weekly rest periods and fixed working hours). The Act enables agreements on working time accounts, where working hours, earned time-off and monetary benefits can be exchanged for time off. Agreements on working time accounts must cover certain elements.

The United Kingdom: Flexible Working Arrangements (FWAs) were allowed via a process of proposal and negotiation in 2002, to assist employees with care-taking responsibilities in requesting FWAs. The UK’s approach to flexible work is predicated on three main pillars viz. qualifying employees proposing changes in relation to hours, time and location of work; an employer’s duty to consider such application in a “reasonable manner” with refusal only on pre-specified grounds (such as additional costs and inability to re-organise work amongst existing employees); and escalation to employment tribunals by employees, in limited circumstances. The UK’s approach is considered “light-touch regulation”, and is based on a foundation of dialogue and negotiation between employers and employees. Australia and New Zealand have also adopted similar legislation.

The European Union: The European Union (EU) has a “Work-Life Balance Directive” adopted in 2019, which provides FWAs for parents and caregivers.

Singapore: Singapore has an interesting alternative to the rights-based approach to FWAs adopted in the UK. Through a set of voluntary “Tripartite Standard on Flexible Work Arrangements” formulated in consultation with multiple stakeholders, employers can adopt practices that assist employees better managing work-life needs, while enhancing productivity. Such employers are employers of choice, and can use a logo-mark in recruitment and marketing.

Re-evaluation of Laws Necessary to Accommodate the New Work Culture

 

In a nutshell, the present labour and employment laws in India are incapable of addressing the concerns of work-from-home regime. Hence, re-evaluation of the present laws is important to amalgamate the “Work From Home” model into legislation to ensure welfare of the employees, workers and other relevant stakeholders. The above discussed international legislations aim to sustain a healthy and safe working environment for the employees within and outside the “establishment”. Finland and Singapore’s legislation provides flexible working hours and arrangements. The UK approach of “light touch regulation” is also innovative and promotes healthy relations between employees and employers. Taking que from the regulatory frameworks of countries across the world, India should aim to formalize “Work From Home” policies that benefit the employees while balancing the burden on employers. Worker and employee rights should be the central focus of development in the country, in order to fully reap the gains of this transformative legacy!

The present labour and employment laws of India are incapable of addressing the concerns of the work-from-home regime. Hence, re-evaluation of the present laws is important to amalgamate the WFH model into legislation to ensure the welfare of the employees, workers and other relevant stakeholders.

POST A COMMENT

Bad Bank in India: A Concept Note

We often hear that various Government’s both at the central and state level are trying to achieve Ease of Doing Business (“EoDB”) and Ease of Living (“EoLiving”). However, in terms of land, both EoDB and EoLiving is still a distant dream. It must be noted that EoDB, with respect to land, has been adversely affected due to the existence of corrupt practices in land transactionsthe existence of multiple litigations and lack of credibility of land records. Similarly, in order to achieve EoLiving, the concerns of the farmers and small landholders with respect to litigations, encroachments, etc., must be efficiently addressed. It is imperative that the aforementioned concerns are sufficiently addressed by the Government (both at the Centre and the States) through its initiatives which increases the confidence of the businessmen, investors, and people of India, in general, on the credibility of land titles.  

In it undeniable that in achieving EoDB and EoLiving, ‘Dispute Free Titles’ backed by the Government almost amounting to ‘Guaranteed Land Title’ would play an integral part. This in-turn envisages  ‘Computerised Land Records’, ‘Computerised Registration Database’ detailed with ‘Digital Cadastral Maps’ and ‘Aadhar Authentication Service’ along with land transactions hashed through new age technology like ‘Blockchain” (Collectively referred to as ‘Computerized / Blockchained Land System’) thereby making such transactions and related information immutable and highly trustworthy. However, while the technology exists, the enabling legal structure is a distant reality, as the Indian land laws largely continue to be a legacy from the British era and have their own unique features. The Indian Land laws are complex as they seek to address not only the correctness and completeness of title but also focus on the issues related to possession and revenue collection from land. This article seeks to give a very high level of legal insight into how India can move towards Guaranteed Land Title with an enabling legal framework. 

Maintenance of authentic land records is key to the effective management of land. Land records in India, in general, is poorly maintained, which leads to ambiguity with respect to the ownership of land and results in an increasing number of litigations. This has also adversely affected the confidence of the investors (both domestic and international) with respect to investing in land and related products, which is quite a setback for our economy because land is a non-depreciating asset which more often than not assures returns on investment. 

In the absence of existence of credible land records, implementation of technology will be of little meaning as wrong information fed into the system will only create more issues and confusion among the various stakeholders, including but not limited to landowners, land purchasers, legal heirs of deceased landowners, etc. In fact, in the light of the above, in order to achieve ‘Dispute Free Titles,’ it must be ensured that the land records are perfect, up-to-date, final, comprehensive and binding and are completely foolproof with respect to the title of landowners on the concerned land. In the absence of such an exercise, any implementation of technology will end up being mere digitization of land records and ‘Dispute Free Titles’ will remain a distant dream.  

In fact, in the absence of a comprehensive legal understanding of land transactions among the people as to what constitutes a valid title, mere digitalization of land records may further complicate matters. For instance, let us take the example of the over-reliance on registered title documents for validating the title of the landowner. It has been reiterated in many judgements that, mere registration does not confer title to the owner [Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana and Anr. (2012) 1 SCC 656], and in order to ensure clear title on land, the relevant revenue records pertaining to the land such as Khata/Patta/Pahani/RoR, etc. need to duly reflect the name of the owner of the land, as well. Further, another contributing factor is that the registrar, at the time of registration of the title document, is not mandated to confirm the title of the property, therefore, in such a case, the registered document may itself be incorrect in terms of the vendor’s ability to pass on valid legal title due to its own defective title. This gives rise to multiple litigations thus making land a considerably risky asset without Guaranteed Land Title.  

Therefore, in the light of the above, in order for the Government to achieve ‘Guaranteed Land Title’ the Government must undertake targeted interventions in existing land and revenue laws (“Targeted Interventions”) which will ensure that the Computerised / Blockchained Land Records in the ‘Computerized / Blockchained Land System’ are final, binding and ensures Guaranteed Land Titles. 

 

Targeted Interventions 

On a recent visit to Switzerland on a study tour organized by Swissnex enabled by Mr. Sebastien Hug, where we studied the strides made by Switzerland in respect of blockchain technology both from an entrepreneurial and legal standpoint, a very interesting perspective came to the fore. The Swiss Government adopted a bottom-up approach to listen to the legal needs of the entrepreneurial eco-system and then instead of re-inventing the wheel (which possibly takes eons or never happens due to various political issues) seeks to undertake focused changes in existing laws i.e. “Targeted Interventions” which involves amending the existing laws and procedures, in the current scenarios concerning land in a State in order to achieve Guaranteed Land Title. Targeted Interventions must be made in such laws, rules, regulations, policies, and procedures of a State which governs the transfer of title of land from one person to another, both in terms of registration of title documents governing the transfer of title and mutation of the name of the new owner in the concerned land records.  

For instance, in the case of private land, the title can be transferred from one person to the other through sale, inheritance, partition, settlement, gift (oral / written), mortgage, etc., however, it is to be noted that while most transfers are compulsorily registrable, ownership through certain mechanisms like inheritance is not registered under the Registration Act, 1908. It is also observed that many owners of the land do not, in fact, mutate their names in the land records or carry out such steps to register encumbrances on the land records, however that does not extinguish their rights in the lands and they continue to have a legal right,  without visibility to interested third parties. Therefore, Targeted Interventions must be carried out in the Registration Act, 1908 to ensure that all title documents not mandatorily registrable are now mandatorily registered. Further, such registration of the title documents must be integrated with the ‘Computerized / Blockchained systems’ in such a manner that, immediately upon registration of the title document, other departments holding the same record are intimated about the transfer of title of the concerned land from the transferor to the transferee and the name and details of the transferee get automatically updated in the actual land records of the concerned land.  

Further, Targeted Interventions must be made in the process of registration of title documents, including authentication of the identity of the transferor and the transferee through Aadhar verification. This will ensure that the correct name and identity of the owner of the land is reflected in the land records of the ‘Computerized / Blockchained database’. Further, Targeted Interventions must be made in the process of recording ownership or transfer of ownership of land to ensure that the identification process is robust in terms of recording the name and identity of the persons involved and such that no other person other than the owner of the land can transfer the land in favour of another person. Further, if any person tries to register a title document concerning a land of which he is not the owner as per the revenue records, then the registration of such title document should be rejected by the ‘Computerized / Blockchained Land System ’ at that very instant. 

Another manner in which persons acquire the title of land is through litigations arising out of possession of land/property, such as the right of adverse possession, etc., by virtue of which the title of the land may be transferred in the name of the person claiming adverse possession if such a person manages to secure a favorable verdict in the concerning litigation. Therefore, Targeted Interventions must be undertaken to record such rights arising out of possession of a land/property, from time to time, and all information collated pertaining to such rights must be integrated with the ‘Computerized / Blockchained Land System’. Information relating to ongoing as well as concluded litigations must be recorded and integrated in a manner that will ensure that the ‘Computerized / BLockchained Land System’ is, at all times, updated of the existence of litigation on any piece of land, and such information will show up at the time of registration of title documents or any verification carried out on the title of the land. Further, if a court of competent jurisdiction, in any matter, grants the ownership of land in favour of any person other than the original owner, as a part of its decision, then the ‘Computerized / Blockchained Land System’ must be updated to include the name of the new owner. Additionally, the introduction of guaranteed and clean government-backed land title through a comprehensive Computerized / Blockchained Land System’, will address issues like litigation, encroachment, etc., both on private and public lands.  

Also, there must be amendments made in the Indian Evidence Act, 1872, in order to give sanctity to the information processed, maintained and made available in the ‘Computerized / Blockchained Land System’ in a court of law, such that the information in the ‘Computerized / Blockchianed Land System’ can be used as evidence in a court of law and is perceived as final and binding by the public at large. This will discourage the public from filing frivolous litigations and /or appeals and will reduce the overall time taken for the disposal of litigations by the courts.  

The aforementioned instances of Targeted Interventions are only a part and not the complete process of ensuring Guaranteed Land Title. In order to achieve Guaranteed Land Title, ‘Computerized / Blockchained Land System’ must further involve Targeted Interventions in other processes as well, such as mortgages, etc. 

 

Conclusion

An overhaul of the existing apparatus for the maintenance of land records in a comprehensive manner, by ensuring Guaranteed Land Title, shall instill confidence among the people with respect to the certainty of ownership of land. This will result in an increase in the overall investment in the real estate sector in India and emergence of new products based on land title, e.g. Title Insurance, etc., which will increase the ability of the small income groups to benefit heavily from monetizing the asset of land through better and regulated products in the insurance market. Hence, this will be doing away with middlemen and/or ineffective loan schemes, etc.  

Image Credits: Photo by Federico Respini on Unsplash

An overhaul of the existing apparatus for the maintenance of land records in a comprehensive manner, by ensuring Guaranteed Land Title, shall instill confidence among the people with respect to the certainty of ownership of land. This will result in an increase in the overall investment in the real estate sector in India and the emergence of new products based on land title

POST A COMMENT