Preposterous proposals by NASSCOM for changes in labour laws! – B.Sivaraman

When work-from-home (WFH) became the sole option under the forced conditions of the lockdown, NASSCOM, the chamber of commerce of the Indian IT-BPO industries, came up with a set of ten recommendations to the government for labour law changes in May 2020. These are brazenly anti-labour proposals as we all see below. They came up with these in the name of facilitating WFH. NASSCOM, of course, is an industry association and a pro-employer stance is only to be expected of them. However, the premier trade body of the Indian knowledge industry coming up with such absurd proposals, utterly ignorant of Indian labour laws and labour jurisprudence in the country has surprised many.

Six of these proposals seek exemptions for the IT sector from the provisions of the Shops and Establishments Acts of States and four from the provisions of other Central acts like Industrial Employment Standing Orders Act, 1946, Maternity Benefit Act, 1961, and relevant acts relating to social security benefits like EPF, ESI and pension. In India, the IT industries are covered not under the Factories Act but under the Shops and Commercial Establishments Act (SCEA). Each State has passed its own SCEA and the IT units in any State are governed by the respective SCEA of that State. But NASSCOM proposes that IT units be totally exempted from registration under SCEAs and they should be registered only under the Companies Act 2013 as if they are not aware that the Companies Act doesn’t deal with working or service conditions.

Despite making this proposal for total exemption from SCEA, in the same breath, five other recommendations of NASSCOM ask for exemption from specific individual provisions of SCEAs! Even after Madras High Court affirming that IT employees are workers covered under provisions of the Industrial Disputes Act, the proposal 9 of NASSCOM demands that the IT units should be given exemption from Section 9A of the Industrial Disputes Act, which prohibits employers from making any change in the service conditions without giving 21 days’ notice to the workers as well as to the labour authorities. In other words, the premier trade body of the IT industry seeks exemption from the provision of an act held applicable to the IT industry by the higher judiciary. Even a law to this effect can be struck down. This being the quality of these proposals, neither the government nor the employees can afford to take these recommendations seriously.

Still, they assume relevance for two reasons. These recommendations of NASSCOM are to be seen in the context of Modi Government passing three anti-labour codes on 22 September 2020. Now, NASSCOM wants the government to go even farther to the right of these labour codes. remnants of workers’ rights.

In fact, in one of his media interviews, on 10 September 2020, Mr.Keshav Murugesh, the former chairman of NASSCOM, was openly critical of the Code on Wages passed by the parliament earlier and was openly lobbying for proposals in labour law changes that would go far beyond the remaining three codes shortly to be passed within a fortnight.

Secondly, the Great Depression of the 21st century made a grand beginning in the first quarter of this fiscal year when one-fourth of the economy got wiped out. That is just tip of the iceberg. The captains of the industry are desperate to shift the burden of the depression onto the shoulders of the working class to search for their own pathways for recovery. Hence these recommendations.

To elicit the responses of IT employees on these proposals, NewsClick approached the IT employees association, FITE. FITE President Ms. Parimala Panchatcharam convened an online meeting on 26 September 2020 to discuss the implications of these proposals. 14 IT employees from different cities participated in the group discussion through a Zoom online meeting. Below we summarise the ten NASSCOM recommendations and the views of the employees on them who participated in the group discussion.

The first recommendation is about relaxing the opening and closing hours of an IT firm as stipulated under the SCEA. Well, the SCEA only says that fixed opening and closing times should be declared but doesn’t specify any particular time. The employers are free to choose that subject to the standard 8–9 hour working day in different States. Moreover, shift system is already in vogue in shops and commercial establishments including night shifts and except for Haryana many other States are allowing even women to do night work. Why NASSCOM makes a big deal about this non-issue is not clear. Are they totally ignorant of the ground realities?

The second recommendation is about relaxing the provision of SCEA relating to working hours and the statutory weekly off. NASSCOM demands freedom from any working hour regulation in the name of freedom of choice of the employees. It says, “An employee may choose to work 8 hours a day for 6 working days and another may choose to work 12 hours for 4 working days as per their choice. By imposing daily spread over, working hours and over time limit, the law takes away the right of employee…” This is an astounding claim. Is duration of the working day in IT industries a matter of employees’ choice now? In any case, shouldn’t be there a limit on maximum working hours per day? It is not a question of freedom of choice of the employees as NASSCOM claims; rather, it is a freedom for IT company owners to run their companies like slave labour sweatshops and feudal fiefdoms.

Recommendation three of NASSCOM seeks to totally abolish health and safety provisions in SCEA with the claim that these recommendations are relevant only to the workplace and not to the employees working from home. Mr.Kumaraswamy, a prominent labour lawyer and a noted trade union leader in Chennai, pointed out to NewsClick that it is employment that is the decisive factor and the site of employment is merely incidental. The management is liable for treatment of compensation for injury or illness during hours of work irrespective of the spatial nature of the work. In any case, in the same document NASSCOM itself claims that over the next 3-5 years, upto60% of IT industry’s work and up-to 40% of the ITES work could shift to a WFH model. That means a substantial section of workforce would still be working from workplace. Moreover, employees doing remote work are being called to the office at times. Where is the need for law changes? Will all workplaces cease to exist once work-from-home starts? Would health and safety provisions in law implied for the workplace automatically become infructuous while only a section of employees are working from home under forced conditions of a lockdown?

The fourth recommendation is about exempting IT units totally from registering under the SCEA which we have already pointed out. Is registration of a unit only about place of work of the workers? Working from the workplace or working from home makes no difference to SCEA provisions governing service conditions like hours of employment, hours of work by a young person, overtime work and wages, and maximum working hours per day. This is specially relevant because some IT majors do not give adequate time to rest and to take meals or tea or even to go to the washroom while working from home. There is no escape from endless online meetings with superiors for coordination. So the poor employee is forced to employ a maid spending from her/his own pocket. Weekly off must be mandatory no matter whether the employee works from the workplace or from home. The concept of weekly holiday is derived historically as a rest day to recuperate after six days of work and get rejuvenated for the next six days of work. Will this requirement vanish if employees work before one computer instead of another, in one room instead of other, and at home instead of at office? In effect, NASSCOM calls for abolishing the statutory provision governing weekly rest and makes recommends this to the government without any hesitation!

The next fifth recommendation is about relaxation from compliances such as maintenance of attendance registers, in- and out-travel register etc. This is an atrocious demand. What has working from home got to do with maintaining a register of employees? Do they cease to be workers if they work from home? Can NASSCOM guarantee that the employees working from home would not be asked to visit the establishments of customers or the workplace and hence there is no need to log in working time or travel time? Who is liable for accidents during such travel?

The sixth law amendment recommended is about seeking exemption from Employees Compensation Act for IT employees. NASSCOM seeks this with the argument that it would be unfair for employers to be made accountable for any accident or injury that the employee may sustain at his residence during working hours. We have already touched upon this theme. Any illness caused due to stress or anxiety or workplace bullying by superiors won’t count as issues of occupational health? Though there is no special law on workplace bullying in India, yet now the courts have started admitting cases on workplace harassment by superiors even under the Industrial Disputes Act. An IT worker committed suicide in Hyderabad due to harassment from his manager and the manager was in jail for a long time for abetment to suicide before coming out on bail. In sectors like IT, this is becoming a major issue for litigation. That’s the very reason why perhaps the employers’ body wants to scrap any legal provision with penalties for the work style of the unskilled IT bureaucrats who lord it over the skilled employees like crude maistrys.

The seventh recommendation is to seek exemption from the Industrial Employment (Standing Order) Act 1946 the provisions of which had been extended to commercial establishments too in some States and which not have been incorporated into the just passed Labour Code on Industrial Disputes. It is the Standing Order that governs industrial relations, misconduct, procedures for disciplinary actions, and complaints on grievances by employees and so on. Can there be unregulated employer-employee relations? Will it not exponentially increase litigation to a mind-blowing degree? Why NASSCOM is keen on giving a huge headache to the courts is not clear.

The eighth recommendation is about relaxation from the requirement to provide nursing breaks and crèches facilities under the Maternity Benefits Act, 1961. It doesn’t occur to the industrial body of a frontline industry that working from home doesn’t end care work responsibility for the employees towards children and care work for the elderly too are added. NASSCOM makes a mention in passing about engaging maids but offers no detailed proposal by NASSCOM on alternative crèche facility near the residence or reimbursement of expense related to a maid care worker.

The next ninth preposterous recommendation is about waiving the need give 21-days notice for revising terms and conditions of employment to short-time working, part-time arrangements, and remote working etc. In short, NASSCOM brazenly wants legal sanction to switch over to a gig economy. It wants arbitrary powers to shift workers to gig work without even the need to make a formal advanced notification. IT workers can be treated as day-labourers who can be summoned to work or dismissed any time like on-call workers. Of all the recommendations, this is the most harmful for the employees as it changes the very nature of their work and not just alters service conditions or cuts benefits.

The last tenth proposal is to do away with employers’ obligation for any social security for IT workers to be reduced as gig workers. No PF, no gratuity, no ESI or health insurance and no regular pension. Let the worker take to the new NPS scheme for pension, argues NASSCOM. Well, NPS is already open to the employees. The government has clarified time and again that opting for NPS is optional and voluntary for private employees but NASSCOM wants to make it compulsory while abdicating from any employers’ responsibility towards the social security of the employees the and statutorily fixed contribution towards that.

One of the participants in the meeting, Mr.Satish pointed out that despite many labour laws blatant law violations in the form of unlawful excess working hours, lay-offs and furloughs and salary cuts have become the norm. Mr.Srihari endorsed the view that much of the crisis of the IT industry today is because of the very nature of low-end contract sourcing jobs for multinationals dominating the work of IT majors. He and others were of the view that the solution to the crisis lies in skill upgradation and not in more draconian anti-labour laws. Mr.Muthukumar pointed out the contradiction between talent shortage and simultaneous layoffs in the absence of reskilling and transition to gig economy would not help in retaining individual talents.

One would have expected greater maturity and power of articulation from an industrial body. As Mr.Kumarasamy points out, “Home is the place for rest and recreation and cannot be the workplace for all and forever. The present spell of WFH is due to forced conditions imposed on the employees”. Even assuming that a section of the employees would prefer it for the sake of escaping from nightmarish commuting delays due to traffic jams in cities like Bangalore or for the sake of spending more time with family members, in due course they would realize that the distinction between 8 hours of work, 8 hours of rest and 8 hours of recreation is getting blurred and there is no recreation. With the employees’ morale crashing, can the IT sector recover and return to high growth from the impending economic crash? The industry leaders should be ashamed of being represented by such a bunch of … wisecrackers, who have come up with these recommendations!