Who is a Worker?

The existing law and official definitions create artificial divisions among workers

The following is the third part of a series of articles on this question, which has been an important topic of discussion within the Communist Ghadar Party and in the working class movement in recent times.

The existing law and official definitions create artificial divisions among workers

The following is the third part of a series of articles on this question, which has been an important topic of discussion within the Communist Ghadar Party and in the working class movement in recent times.

Any person who earns his living by selling his labour power is a worker. However, the laws in our country relating to the rights of workers are not based on this principle. The applicability of these laws is defined in such a way that a large number of workers are denied their rights as workers.

The Industrial Disputes Act (1947) is the defining Act which decides who is regarded as a workman and can claim certain rights as his or hers by law. Section 2(s) of the ID Act defines a worker or workman as: “Workman is any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied and for the purposes of any proceedings under this act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute.”

After stating this, the same Section excludes personnel of the Army, Navy, Air Force and Police Forces from the purview of the Act.

Most importantly, it explicitly excludes “anyone who is employed mainly in managerial or administrative capacity, or employed in a supervisory capacity, draws wages exceeding Rs. 10,000/- per month or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature”.

There are hundreds of cases where labour courts have declared a victimized person to be a worker whose right has been violated, only to be overruled by a higher court citing the above-mentioned exclusion clause. Cases have dragged on for decades, before the Supreme Court finally gave its ruling. (See Box 1 for some illustrative rulings.)

The definition of “industry” has been another method by which large sections of workers are deprived of their rights. (See Box 2)

The laws / acts defining “worker” and his/her rights are in most cases ancient laws dating back to several decades, which do not take into account the various sectors in which people are working today and the various kinds of organizations which employ workers for a wage or salary. Workers in numerous sectors that were not listed at that time are not covered under any of these acts. As and when these rights have been demanded or questions have been raised about them or disputes have to be resolved, the matter has been left to the interpretation of the courts.

The Employees’ State Insurance Act excludes all workers who are contract workers, or are working in companies which have less than 10 people employed. It puts an arbitrary upper limit on wages, of Rs 15,000 per month. This means a worker with a salary exceeding this modest level will not be eligible to access health care from ESI facilities!

The Annual Survey of Industries, which is the primary source of information on industrial workers employed in registered manufacturing, energy and water supply, makes a distinction between “workers” and “employees”. The same distinction exists in the data on employment in the service sectors, collected by the National Sample Survey Organisation.

According to the official definition used by the ASI and the NSSO, those “holding supervisory or managerial positions engaged in administrative office, store keeping section and welfare section, sales department as also those engaged in purchase of raw materials, etc., or purchase of fixed assets for the factory and watch & ward staff” are considered to be employees but not workers. As far as the workers and their universal rights are concerned, this is an artificial division.

For example, let us consider the issue of limiting the hours of work. The Factories Act, under Section 51, stipulates that “No adult worker shall be required or allowed to work in a factory for more than forty-eight hours in any week”. This means that a worker may work for additional hours, at a special overtime rate, but no worker can be compelled to work more than 48 hours in any week. This is a right that belongs to all wage or salary earning workers, without exception. But many workers are being denied this right simply by calling them employees and not workers. Teachers, doctors, and many other people working in the service sector are forced to work overtime, often without any compensation.

The Factories Act does not include workers in numerous services. In many of these sectors such as IT, media, banking and others, there is no officially specified limit on the number of working hours and workers in these sectors are often found to be working 10-12 hours or more per day.

The trend in the banking sector is to designate more and more workers as “officers”, and thereby deny them the right to refuse over-time work or to form a union. This is the predominant trend in all privately owned banks, both domestic and foreign. Even within the state owned banks, the ratio of the number of “workers” to “officers” has been declining steadily in recent decades.

Workers in “essential services” are denied the right to strike, by various state specific versions of the Essential Services Maintenance Act.

A wage-worker is not a slave. He or she does not belong to any employer full-time. A wage-worker sells labour-power for a fixed number of hours per day. The remaining hours belong to the worker, to rest and to spend with one’s family. Hence a strict legally enforced limit on the length of the working day and weekly holidays is a right that belongs to all wage and salaried workers, without exception, whether on the production floor or in the accounts or sales department. Excluding some from this right is an attack on the working class as a whole, its identity and its unity.

Every employed worker has the right to adequate breaks within the working day, to medical benefits, compensation for cost of living increase, etc. Women workers have the right to be paid equally with men for equal work. They have the right to adequate maternity leave, child care facilities at the work place and safe transportation when working late hours.

All employed workers have the right to form their unions and associations, to engage in collective bargaining with their employer. They have the right to strike, as one of the weapons in their efforts to ensure that their employer fulfills his obligations.

Artificial divisions, such as the official distinctions between workers, employees and officers, and the distinction between non-essential and essential activities, serve to deny various sections of workers their fundamental rights. It serves to weaken the united struggle of the working class in defence of rights that belong to all workers, without exception.

Karl Marx explained the need to consider all forms of labour as part of one combined exertion of mental and manual faculties by the workers as a whole. He wrote:

“Since with the development of the real subsumption of labour under capital or the specifically capitalist mode of production it is not the individual worker but rather a socially combined labour capacity that is more and more the real executor of the labour process as a whole, and since the different labour capacities which cooperate together to form the productive machine as a whole contribute in very different ways … one working more with his hands, another more with his brain, one as a manager, engineer or technician, another as an overlooker, the third directly as a manual worker, or even a mere assistant, more and more of the functions of labour capacity are included under the direct concept of productive labour, and their repositories under the concept of productive workers, workers directly exploited by capital and altogether subordinated to its valorisation and production process. If one considers the total worker constituting the workshop, his combined activity is directly realised … in a total product which is at the same time a total quantity of commodities and in this connection it is a matter of complete indifference whether the function of the individual worker, who is only a constituent element of this total worker, stands close to direct manual labour or is far away from it.”[1]

It is important for workers to fight for the recognition of these rights as being universal and inviolable. We must demand an overriding central law to affirm this, along with effective mechanisms to ensure that anyone who violates any of these rights is promptly and severely punished.

Definition of Industry

The definition of “industry” also excludes large sections of the workers, especially those engaged in various services. Section 2(j) of the ID act defines “industry” as any systematic activity carried on by co-operation between an employer and his workmen for the production, supply or distribution of goods or services with a view to satisfy human wants or wishes. While this wording appears all inclusive, in fact the ID Act does not cover agricultural workers, workers in hospitals and dispensaries, educational, scientific, research or training institutions, institutions owned or managed by organizations wholly or substantially engaged in any charitable, social or philanthropic service, khadi or village industries, any activity of the Government relatable to the sovereign functions of the Government including all the activities carried on by the departments of the Central Government dealing with defence research, atomic energy and space, any domestic service, etc.

Any institution that employs less than 10 persons does not figure as “industry” under the ID Act, for purposes of rights of the workmen or settlement of disputes with the owners.

A sample of the rulings by the higher courts

The higher courts ruled in various cases that
  • If the duties of the person “. . . require an imaginative and creative mind, his duties could not be termed as either manual, skilled, unskilled or clerical in nature.  “. Consequently, it was held by the court that such an employee cannot be termed as a workman.  
  • A person employed in managerial capacity or administrative capacity is not a workman.
  • An apprentice cannot claim any privilege as workman.
  • Maintenance engineer supervising the work of maintenance with the power to grant leave, to initiate disciplinary proceedings and to make temporary appointments is not a workman. 
  • A person appointed as general duty medical officer grade 11 on ad hoc basis for 6 months as sole in charge of first and post- a male nurse, nursing attendant, sweeper and one driver of ambulance working under him, cannot be regarded as workman as he is doing supervisory work.
  • Extra departmental agents in postal service are civil servants and not workmen.
  • Highly qualified doctors or esteemed surgeons would not be entitled to claim the status of a workman.
  • A doctor examining patients, diagnosing diseases and prescribing medicines as a full-time employee of hospital cannot be a “workman”, irrespective of his designation.
  • Canteen employees, medical officers and drivers employed by a company would not be entitled to consider themselves workmen.
  • Employees of public utility services run by government agencies are not workmen. 

[1]              Marx’s Notes on The Process of Production of Capital, Draft Chapter 6 of Capital, Results of the Direct Production Process; Written in 1864; Vol 34 of Marx-Engels Collected Works; translated by B.Fowkes. The process of capitalist production is of two-fold nature: it is a process of producing material use-values and at the same time a process of producing surplus-value for the owners of capital. By the “valorisation and production process of capital”, Marx means precisely this process of two-fold character.

 

 

 

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