India: The (Draft) Labour Code On Social Security 2018

Introduction

The Labour Code on Social Security 2018 ('Labour Code') is the Central Government's initiative to tackle following existing lacunae:

  • almost 90% of the current workers are not covered under any social security;
  • unorganized sector workers are largely excluded;
  • prevailing schemes have very limited outreach;
  • multiplicity of applicable laws, policies, schemes and governmental instrumentalities;
  • current thresholds for wage and number of workers employed for a labour law to become applicable creates tenacious incentives for the employers to avoid joining the system which results in exclusions and distortions in the labour market.

To begin with, the Labour Code aims to simplify, rationalize and consolidate multiple statutes into one consolidated law, which will be easier in terms of understanding, implementation and enforcement. The Code finds its genesis in the Report of the Second National Commission on Labour (2002) and many other subsequent studies and reports on social security policies including UN SDGs of the 2030 Sustainable Development Goals Agenda along with expert technical assistance from the International Labour Organization on the policy framework.

The Labour Code aims at universalization of Social Security and hence, the definition of employee covers all kinds of employment including part-time workers, casual workers, fixed term workers, piece rate/ commission rated workers, informal workers, home-based workers, domestic workers and seasonal workers. However, the said universalization does not mean that all the workers proposed for coverage under the code would be covered straight away. Those categories of workers who are initially not covered would be included in Schedule- I (Exclusions) and the ambit of coverage will be extended gradually. The Labour Code requires all workers (who are currently active) to get registered under the (Aadhar based) Universal Registration system envisaged in the Code as per the registration protocols decided by the Central Board for universal applicability and portability of registration. However, actual registration in the field will be performed by local bodies (i.e. gram panchayats / municipal bodies), under the supervision of the State Boards and through facilitation centers for registration services set up on PPP basis.

The Labour Code also aims to streamline and centralize the investments for maximizing returns. Under the provisions of the Labour Code, any current surplus in a Fund, is to be transferred by the State Boards to the Central Board for professional management of investment of the Scheme Funds. This is to ensure that economies of scale may be utilized to the maximum possible extent and good returns can be fetched on the investment. The Central Board has been provided with the responsibility to manage the investment of the Funds mentioned above on behalf of the States in accordance with the investment pattern notified by the Central Government. The amount so transferred to the Central Board continues to vest in the State Board, and the Central Board is also obliged to remit, to the State Boards, from time to time, such amounts from the State's Scheme Fund or Gratuity Fund being managed by it, as may be required by the State Board to meet the Scheme obligations.

The Labor Code derives its understanding of Social Security from the fundamental ILO Convention on Social Security (C102) and includes nine types of social security covers as described in the said Convention. Social Security Fund in each State is to provide for schemes such as Pension, Sickness Benefit, Maternity Benefit, Disablement Benefit, Invalidity Benefit, Dependent's benefit, Medical Benefit, Group Insurance Benefit, Provident Fund, Unemployment Benefit and International worker's pension benefit.

Entity, Establishments, Enterprise and Business

The Labor Code clarifies the difference between the said three terms. Entity is a broad term which includes the entire spectrum of units (wherein work is done by persons) irrespective of the nature and quantum of work. Enterprise is a sub-set of the larger universe i.e. Entity. This differentiation has been provided for in the Labour Code to distinguish between the enterprises which engage workers for any economic activity and households who engage workers for domestic requirements. Further, Enterprise may or may not employ any worker whereas Establishments are the ones that employ at least one worker.

The term 'business', has been used to specify the kind of activity the 'Enterprise' undertakes – such as manufacturing, agriculture, etc. The term Enterprise also includes the units in which an own account worker (i.e. owner-cum-worker) works. Households are also included in the term 'Entities' and 'Employer'. Thus, as such (if not specifically excluded through an entry in Schedule-I) the Labour Code applies to households and domestic workers as well.

Deactivation of workers' registration

The Labour Code intends to pass on its benefits only to those covered under the definition of 'worker', therefore, the minimum period for which a person needs to work in a particular year to entitle him to be classified as a worker and avail benefits under the Labour Code is to be decided by the National Council. Any period wherein the worker is out of work on account of employment injury, sickness or maternity is considered as work and the provisions of deactivation do not apply to such cases. The primary obligation to register a worker falls on the employer, except for own-account worker, who needs to register himself; accordingly, the Labor Code provides for penalties for employing an unregistered worker beyond a specified period apart from provisioning that if the employer fails to register the worker within the specified time period, the worker can self-register.

Categorization of Workers

The Labor Code provides for a system of classification of workers based upon socio-economic parameters that will be scientifically designed and notified in the Rules to the Labour Code and the workers will be required to provide requisite data at the time of registration and based on this, the categorization will be automatically determined. The funding of social security under the Labor Code will be a combination of (i) employer / employee funded and (ii) taxpayer funded (for workers belonging to poorest socioeconomic category). A proper percentage based structure for contribution, vis-à-vis socio economic category and minimum notified wage, has been put in place under the Labour Code.

Future of EPFO, ESIC, DGLW run welfare funds and other mechanisms

In India, currently there are fifteen social security laws applicable to a worker but once the Labor Code is put into effect, these laws will be obsolete & replaced as the Labor Code provides for comprehensive social security structure, subject to states adapting the new Labour Code and notifying respectively. The beneficiaries under the ceased schemes shall be entitled to draw the benefits, not less than the benefits that were sanctioned to them under the ceased schemes and the successor boards shall be liable to bear the financial liabilities created by the decisions taken by predecessor organizations. Any Exemption granted under Section 17 of Employees' Provident Fund Act, 1952, or Section 87 or 88 of Employees' State Insurance Corporation Act, 1948, shall deemed to be a permission to operate Alternate Coverage Mechanism granted under the Labour Code from the corresponding Scheme(s) under the Labour Code for a period until –

  1. validity of the exemption so granted expires, or
  2. one year from the commencement of applicability of the Labour Code, whichever is earlier.

Employer's Liability

It arises only where the employer neglects to pay the contribution in respect of a worker or the worker does not complete the qualifying service for entitlement of dependent or disablement benefit. An employee shall be deemed to have been in continuous service of the Principal Employer for the purpose of Gratuity entitlement so long as he has served continuously for the same Principal Employer, whether or not through same or different contractors. Contribution Augmentation Funds would be established through which governments could contribute to the social security in respect of workers who are unable to pay contribution.

Contribution Augmentation Funds

The Labor Code empowers the Central Government or the State Government to establish Contribution Augmentation Fund as deemed necessary by the Central or State Government, as the case may be. The Contribution Augmentation Fund would be administered by the respective State Boards. The State Boards shall be empowered to credit to the State Social Security Fund from the State contributions on behalf of workers by general or special orders. This amount credited to the State Social Security Fund would then be credited to the VIKAS of the beneficiary workers by the State Board in consultation with the State Advisory Committees.

National Stabilization Fund

National Stabilization Fund will be used for harmonizing the Scheme Funds across the country and will be managed by the Central Boards. Any actuarial surpluses in any scheme or unclaimed amounts will be credited to the National Stabilization Fund, and it will be used if any state's scheme fund falls in distress. It can be used for providing loans or grants to State Boards in case of deficit found in any scheme after actuarial evaluation.

Accountability and Transparency of the Social Security Organizations

The Labor Code introduces new approaches to ensure a transparent and fair financial set up, such as:

  1. Time bound preparation of Accounts within six months of the end of the financial year;
  2. Provision for social audit of social security schemes by State Boards after every five years by agencies empaneled by the Central Board. Since the social security mechanism envisaged in the Labour Code operates at various levels including that of local bodies' level, social audit may help in creating sense of ownership amongst the subscribers specially in the lower socio-economic workers strata whose contribution will be subsidized from the Government fund which will help in identifying the corrective measures right at the ground level;
  3. Accounts of Intermediate Agencies to be subject to CAG Audit on the same lines as that of Social Security Organizations.

Wage Ceiling and Income Threshold

The term 'wage ceiling' is for the purpose of determining a maximum limit on contribution payable; whereas the term 'income threshold' is for the purpose of enabling the government to provide for two different kind of schemes (for same purpose) for two different class of workers.

Administrative Charges

As per the Labour Code, these are to be paid by the employers as per the prescribed manner of calculation of contribution which has been changed slightly as compared to EPF system. Instead of certain percentage of wage, these charges shall be certain percentage (less than 4%) of contribution.

Privatization of Social Security System

For better implementation of the Labor Code and for enabling PPP system in administering social security, licensing of Intermediate Agencies in the fields of fund management, point of presence, service delivery, benefit disbursement, record keeping and facilitation has been introduced. As per the Labour Code, being the agents of the Board, these agencies are required to deliver certain services, however, the ultimate liability and responsibility of providing the services / benefits remains that of the Boards including adequate safeguards for exercising control over Intermediate Agencies for protecting the interest of subscribers (including the suppression of the Governing Board of the intermediate agency, if necessary).

Appellate Authority

A detailed grievance redressal mechanism, in order to make social security a right of each and every worker, has been prescribed in the Labor Code. Where if the beneficiary is aggrieved by the action or inaction on his complaint made to the Samajik Suraksha Mitra, the first level appeal can be filed to the departmental appellate officer. Similarly, in the cases where the employer is aggrieved by the orders passed by the assessing officer, an appeal lies to the appellate officer. The First Appellate Officer also hears appeals against other orders of the authorities (under the Labour Code) such as orders related to registration (or denial thereof), orders relating to entitlement of gratuity, confiscation of unclaimed amounts, etc. The First Appellate Officer has also been given the role of determining answers to certain questions and disputes, such as whether any person will be treated as employee or not, whether any entity is principal employer or not, etc.

Community Service Order

This is based on the notion that a person committing an offence with regard to social security legislation does not commit an offence only against an individual but also against the society as a whole, thereby, putting the entire social security system in jeopardy and as such should be reformed against committing such acts in future. As such, the Labour Code provides for Community Service Order to undertake unpaid work as directed by the court, in cases where the punishment for the offence committed is not more than two years of imprisonment and the court considers it a fit case for awarding the Community Service Order. This is quite similar to what has been prevalent in many western jurisdictions.

Medical Benefits proposed in the Code vis-à-vis Medical Care provided by the Central/State Governments

At the moment, the Central/State Government provides medical facilities through its healthcare set-up such as primary health centers, dispensaries and hospitals, to the unorganized sector workers who are not covered through social security legislation. After the medical benefit/insurance under the Labor Code is put into effect, this existing health set up may get integrated into the medical benefit scheme proposed under the Labour Code and the same would be strengthened due to inflow of funds through contributions and welfare funds where necessary.

Collection of the Building and Other Construction Workers' Cess

The cess shall be collected by the Local Authority or the State Government and proceeds of the cess shall further be transferred to the State Government after deducting collection charges, if any. The BOCW Welfare Cess Act, 1996, also provides for the levy and collection of BOCW Cess in above mentioned manner. The municipal bodies can collect cess at the time of passing of Plans.

Protection of Privacy of Personal Data

The Labor Code envisages provisions whereby no person can intentionally disclose, transmit, copy or otherwise disseminate any information collected in the course of implementing the provisions of the Labour Code, to any person not authorized under the Labour Code. Similarly, the Labour Code prohibits unauthorized access, download, stealing, tampering or destroying of the data of any Social Security Organization (SSO). Chapter F of the Labour Code, classifies as "confidential" the data and information produced during the implementation of the Labour Code and lays down the exceptions where this restriction of confidentiality shall not apply to the Governments, their agencies and the Courts.

Contribution Deduction at Source (CDS)

CDS is provided for incentivizing coverage for workers in the course of works contract so as to prevent tax avoidance/evasion. Under CDS, in case of works contract, the Employer is the person executing the works contract, and he, in any-case is liable for covering his employees in the Social Security system. However, to prevent avoidance, it is proposed that the person awarding the works contract will make a fixed deduction from the payment to be made to the works contractor, and deposit it in the Social Security Fund (where it will go into a suspense account) as CDS and give a certificate to the works contractor. This certificate is like a 'credit note' with the Contractor and he can use it when he files his returns.

The above are some of the key highlights of the Labour Code; however, the ambit and implication of the Labour Code is huge keeping in view the intent and beneficial spirit of this proposed legislation.

Vide a Circular dated March 01, 2018 (Z-13025/13- 2015/LRC), the Ministry of Labor & Employment, Government of India invited comments/ suggestions to the Draft Labour Code from the Employers' Organizations, Central Trade Unions (recognized by the Central Government) and the State Governments. An updated version of the Labour Code, based on inputs so received, is expected soon.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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