Introduction

Many state governments of India have amended their labour laws in the wake of the economic crisis posed by the Covid-19 pandemic. Uttar Pradesh (UP) is one state that has drastically amended its labour laws by clearing an ordinance that suspends almost all labour laws in the state for three years, including those that guarantee minimum wage, equal remuneration for women and men, fair practices of hiring and firing, and worker safety and sanitation. This is done with the main objective of reviving economic activity and attracting investment (which has been hit hard by coronavirus) from corporations.

This hasty decision by the UP government has opened the door for possible mass violations of human rights under several national and international laws which took many years to codify. Using this situation in India as an example, this post seeks to explore where the revised draft of a legally binding instrument on business and human rights (revised draft) can come into play for the protection of the rights of labourers against violations committed by corporations, facilitated by States.

Affected rights of labourers

The revised draft lays down specific measures that need to be taken by states and businesses to ensure the protection of workers’ rights.

During a pandemic like the present one, the right to work under clean, safe and healthy conditions becomes even more important, as is also envisaged by the human rights treaties (e.g. article 7 of the ICESCR). Other essential workers’ rights include access to safe drinking water, set working hours, different types of leave, holiday and overtime rules, facilities for women employees, canteen facilities etc. The Factories Act, 1948 of India is a comprehensive Act that covers several concerns relating to working conditions in factories. The abovementioned ordinance suspended this important law, affecting the very basic right of labourers to work in a safe and healthy environment, especially those working for companies dealing in hazardous substances and waste management. The recent gas leak at a chemical plant in the southern part of India highlights the importance of retaining these labour laws to prevent such disasters and protect labourers working in hazardous factories.

Just and favourable conditions of work also comprise minimum, fair and equal remuneration for work as mentioned under article 7(a) of the ICESCR. Failure to take steps to create those conditions calls for appropriate action in the form of penal or other sanctions as suggested by the Committee on Economic, Social and Cultural Rights in its General Comment No. 23. The right to receive wages under the Payment of Wages Act, 1936 and the right to receive such minimum wages to ensure a sustainable standard of living under the Minimum Wages Act, 1948 have also been suspended which may give rise to ample cases of workers being underpaid and subjected to unfair and unequal payment of wages.

The Trade Unions Act, 1926 of India seeks to provide for the rights and duties of trade unions. Suspending this Act will give an upper hand to businesses to curb any dissent from workers and will deprive unions of their right to maintain and defend for a workplace that values human rights as safeguarded in the core human rights treaties (e.g. article 22 of the ICCPR and article 8 of the ICESCR).

Other rights that can be adversely affected by such suspension include the right to social security and the right to maternity benefits. With the suspension of these laws, and basic rights, the exploitation and harassment of workers become inevitable.

Obligations of corporations under the revised draft

The revised draft, in its Preamble, recognizes the commitments made under eight fundamental Conventions adopted by the International Labour Organization (ILO). The suspended laws in UP have affected most of the basic human rights that are also governed by the eight ILO Conventions such as freedom of association, minimum and equal wages etc. The Preamble further acknowledges that, ‘all business enterprises have the capacity to foster the achievement of sustainable development through an increased productivity, inclusive economic growth and job creation that protects labour rights and environmental and health standards.’ It notably acknowledges that by respecting labour rights, corporations not only increase productivity, but also help labourers by providing them with jobs, better health standards and more which altogether promotes sustainable development. This interdependence will continue fostering sustainable development, even in times of a pandemic and it becomes even more important in such times to protect the vulnerable instead of suspending their rights.

The operational clauses of the revised draft are also aimed at protecting the rights of workers. A broad scope of business activities is included under article 3 of the draft and its explicit coverage of ‘all human rights’ under subsection (3) brings labour rights under its purview. Article 4 further provides the right of access to remedy and article 7 facilitates the exercise of rights of a victimized worker to initiate legal proceedings for harms done by transnational corporations (TNCs) in his/her own country. This ensures that victims of violations by TNCs are not denied access to remedies. The draft also lays down criminal, civil or administrative liability for legal persons involved in certain crimes including forced labour, slavery and slavery-like offences under article 6(7). Suspending the right to receive minimum wages will adversely affect workers and they have the right to approach the appropriate judicial bodies under article 4 of the revised draft.

Article 5 titled, ‘Prevention’ is one of the most important provisions in the context of establishing the mandatory due diligence obligation. To ensure that businesses comply with their obligation to respect workers’ human rights, the revised draft, under article 5(3)(c), contains an important provision for protecting, in advance, the rights of workers from any abuse. Article 5(1) lays down a general obligation on States to ensure that their domestic legislation requires businesses to respect human rights and prevent human rights violations. More elaborate and comprehensive steps are set out in the clauses that follow, including the creation of a framework for effective compliance of businesses with human rights obligations at the domestic level. Most of these measures are general, providing blanket protections to all people but a few are specific, covering the particular interests of certain groups such as women, children, persons with disabilities, indigenous peoples, migrants, refugees and internally displaced persons under its article 5(3)(b). The draft also makes special reference to ‘labour standards’ under article 5(3)(c) which requires States to take measures for reporting publicly and periodically on financial and non-financial matters including labour standards concerning the conduct of their business activities, including those of their contractual relationships. These mandatory reporting requirements on labour standards by businesses will establish a mechanism to accommodate economic interest as well as social responsibility for businesses and workers. If corporations complied with the reporting and monitoring obligation under these provisions in the case of UP, the sense of accountability that comes with that will prevent them from abusing the rights of workers even when state laws are suspended. Actions taken under these provisions by States can, to a great extent, help in bringing about accountability and ending corporate impunity for human rights abuses, even in times of pandemic. Nevertheless, if States suspend all their domestic regulations, as was done in the present case of UP, including the ones complying with these enforcement and due diligence requirements under the revised draft, it becomes quite difficult to exercise the enumerated rights of workers in the draft.

It is noteworthy that this monitoring requirement is intended to be operational at the national level only. The draft does not seek to build an international mandate for reporting and enforcement mechanisms that would keep other States parties and TNCs in the loop regarding the best practices for complying with article 5. This, however, would help establish international accountability by keeping a check on domestic measures of States parties. Another alternative for better enforcement of labour standards could be granting workers the right to seek remedies for violations of their human rights from an international forum. If the suspension of laws were to include those domestic laws specifically formulated for compliance with the revised draft, all the safeguards provided in the form of access to justice, for example, would be suspended too, leaving victims with hardly any recourse. The revised draft covers the access to remedy issue partially by providing recourse to state-based judicial or non-judicial bodies, but this right does not extend to international adjudicative forums. Workers do not have any rights before an international forum in case domestic bodies cease to provide appropriate remedies. ‘Committees’ established under article 13 also do not give an option for hearing individual complaints. This means that workers rely solely on domestic forums for redressal of their rights.

Conclusion

The revised draft, in its preamble and operative clauses, provides for several workers’ rights and obligations on businesses to respect their human rights. Providing rights to approach courts in case of violation and establishing legal liability for corporations for such abuse along with obliging them to exercise due diligence through measures adopted by States is an example of an approach to protect the rights of workers. The situation which arose in one of the states of India calls for revisiting the approach taken in the revised draft of limiting the rights of workers to a domestic level only. An effective international monitoring and enforcement mechanism is required to provide better protection to workers. The current pandemic makes it more crucial to create a fortified normative framework domestically and to take a slightly stronger approach to that proposed by the revised draft to protect the labour rights of those who are more prone to abuse by business.

Nidhi Singh holds a B.A. LLB (Hons.) from Chanakya National Law University and an LLM (International Law) from South Asian University. She is currently working as a Legal Research Fellow in the Trade Policy Division, Department of Commerce, Government of India.

This post reflects the author’s personal views.