Four-Day Work Week not Legally Tenable Under New Labour Law Regime
Image Courtesy: Mint
In recent times, there have been talks in the public domain and media in general that India will have a four-day workweek as and when the labour code, particularly Code on Wages 2019, comes into operation soon. A report by news agency PTI has stated that four labour codes on wages, social security, industrial relations and occupation safety, health and working conditions are likely to be implemented by the next fiscal year. "The Centre has completed the process of finalising the draft rules on these codes in February 2021. But since labour is a concurrent subject, the Centre wants the states to implement these as well in one go," the Ministry official added.
Hindustan Times has published a report, citing experts as it speculated that the proposed codes might give employees in India a privilege of a four-day workweek instead of five days from next year A senior government official has been quoted by PTI saying, "The four labour codes are likely to be implemented in the next financial year of 2022-23 as a large number of states have finalised draft rules on these. The Centre has completed the process of finalising the draft rules on these codes in February 2021. But since labour is a concurrent subject, the Centre wants the states to implement these as well in one go."
A report published in Deccan Herald dated 22 December 2021 says that "A four-day workweek might soon become a reality for the working class in India. This will be possible as the Central Government will likely implement the four new labour codes by the next fiscal year. The four new codes are on wages, social security, industrial relations and occupation safety, health and working conditions." A similar report was published in the Mint also.
Indian Express quoted the Union Labour Secretary saying that the proposed new labour codes could provide companies with the flexibility of four working days in a week, even as the working hours limit of 48 hours for a week will remain sacrosanct. However, the Labour Secretary clarified that having a reduced number of working days does not mean a cut in paid holidays. Therefore, when the new rules would provide flexibility of four working days, it would imply three paid holidays.
As per Union Labour Minister Bhupender Yadav's reply in Rajya Sabha, draft rules have been pre-published by 24 states on The Code on Wages 2019. These states are Madhya Pradesh, Bihar, Uttarakhand, Karnataka, Uttar Pradesh, Gujarat, Odisha, Punjab, Chhattisgarh, Tripura, Rajasthan, Jharkhand, Arunachal Pradesh, Himachal Pradesh, Haryana, Maharashtra, Goa, Mizoram, Telangana, Assam, Manipur, UTs of Jammu and Kashmir, Puducherry and GNCT of Delhi. Given this context, there is a high possibility that Code on Wages 2019 would be made operational very soon, and a four-day workweek might become a standard practice in India.
However, as postulated in existing and proposed labour laws, legal provisions do not entertain a four-day workweek type possibility. Daily work-hour is stipulated in Code on Wages 2019, and that is eight work-hour. Still, a perception is being created in the public domain that this eight work-hour would become 12-hour and technically speaking, a four-day week becomes feasible given that the weekly work hour is 48 hours. But this does not stand legal scrutiny. Even though the Union Labour Secretary was quoted in Indian Express and reliable sources from the Ministry was quoted in the PTI report, Code on Wages 2019, read with draft Code on Wages (Central) Rules 2020, provisions as available on Ministry's website, do not entail 12-hour working/day. Let's revisit the relevant provisions.
Daily working hours are provided under section 13 of the Code on Wages 2019. Section 13(1) reads as follows:
13. (1) Where the minimum rates of wages have been fixed under this Code, the appropriate Government may —(a) fix the number of hours of work which shall constitute a normal working day inclusive of one or more specified intervals;
Subsequently, the number of hours of work was fixed under section 6 of the Draft Code on Wages 9Central) Rules 2020 published July last year and available on Ministry's website. Section 6 of the draft Rules 2020 read as below:
6. Number of hours of work which shall constitute a normal working day. — (1) The normal working day under clause (a) of sub-section (1) of section 13 shall be comprised of eight hours of work and one or more intervals of rest which in total shall not exceed one hour.
(2) The working day of an employee shall be so arranged that inclusive of the intervals of rest if any, it shall not spread over more than twelve hours on any day.
(4) Nothing in this rule shall be deemed to affect the provisions of the Factories Act, 1948 (63 of 1948).
Section 13(1) of the Code read with section 6(1) (2) and (4) of the draft Rules implies that actual working hours in a day can not be more than eight hours. It is another matter that spread-over, including rest period and overtime, can extend to 12 hours but regular working hours are fixed at eight hours. A 12-hour spread-over would include rest hours and overtime. No worker is allowed to work more than five hours without a break of at least half an hour as per the Factories Act 1948. That means a maximum 12-hour spread over will include at least half an hour of rest.
The contention of a four-day week emerges on the premise that the daily working hours would be 12 hours and the total working period in four days would be 48 hours. Factories Act 1948 stipulates 48 hours of working in a week. If 48 work hours can be reached in four days, the rest three days can be paid holidays.
However, setting a daily 12-hour workday is not legally feasible under the Code on Wages 2019 and draft Rules framed thereunder. Daily working hour is stipulated at eight-hour only. Spread-over can extend to 12-hour. But daily work-hour and spread-over are not the same. This confusion is created because work-hour and spread over was taken to be synonymous, which they are not.
Daily work-hour and weekly work hours in the Code on Wages 2019 remain in existing laws like the Minimum Wages Act 1948 and Factories Act 1948. The only change that gets affected is regarding the spread-over limit. The existing spread over is a maximum of 10½ hours, which is now extended to 12 hours under the new Code. It seems that is creating confusion and giving rise to the misperception of a four-day workweek.
Here, it can be mentioned that the daily eight-hour work schedule is something that is universally applied and is regarded as one of the basic labour entitlement. Stretching it to 12-hour work would violate international standards and is also not provided in the Code on Wages 2019 and draft Rules framed thereunder. What is being claimed in media and public domain in recent times is misleading and legally not tenable. If such statements were made by the higher officials of the Ministry, that would be equivalent to misinterpretation of legal provisions and in contradiction with existing provisions and standards. It is high time that the Ministry of Labour & Employment, Govt. of India, clarifies this effect to make things clear and dispel misrepresentation of legal provisions.
Views expressed are that of the author.
Dr Kingshuk Sarkar is an independent researcher. He had primarily worked for Govt. of West Bengal as a labour administrator and also worked as faculty at the V V Giri National Labour Institute, Noida. He can be reached at [email protected]
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