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A Critical Analysis of Codification of labour laws and its impact on supply-chain in India

Abstract

The recent Labour Code on Wages Act enacted in August 2019 consolidates and codifies previous wage regulations under one Act. However, in a country with a significant casual and informal workforce, how effective would this Wage Code of 2019  be to manage supply-chain disruptions in the wake of COVID-19 pandemic? Could COVID-19 be the black swan event that finally forces many companies and  industries, to rethink and transform their global supply chain model? One fact is beyond doubt: It has already exposed the vulnerabilities of many organizations, especially those who have a high dependence on supply-chains to fulfil their need for raw materials or finished products.

Key words: Codification, Wage Code, Pandemic, Supply-Chain.

A. Introduction

The year of 2004 witnessed a progressive endeveour of Indian legislature trhough institution of  the 2nd National Commission on Labour Reforms[1] that proposed to codify forty four relevant central labour legislations by way of ‘simplifying, amalgamating and rationalising the relevant provisions of the laws.

About a decade later in 2014, it was expedited and the first Labour law reforms were brought about by the Government of Rajasthan in 2015 (“Rajasthan reforms”), followed by other states under the concurrent powers[2] flowing from the Constitution of India. Unfortunatenly, these Rajasthan reforms faced severe opposition from the Trade Unions as amendments included reduction of negotiations at the hands of the Trade Unions[3].

In the past three months, several states have willingly amended the Factories Act, 1948 to increase the maximum number of people working per day to 12 (from 8) and the maximum working hours per week to 72 hours (from 48).[4] Interestingly, for instance, the State Government of Uttar Pradesh has released the ‘Uttar Pradesh Temporary Exemption from Certain Labour Laws Ordinance, 2020’ through which the government proposes to suspend 35 out of 38 labour laws for a period of three years.[5] The Government of India (“GOI”) has maintained since 2004, the motivations for labour reforms are to improve the ease of doing business, safeguarding the interest of the workers, keeping with the technological advancement and cutting labour costs.[6] In this regard, the consolidation of Labour laws in India look as follows:

The Wage Code 2019: The landmark Labour Code on Wages Act (“the Wage Code”), enacted in August 2019 has received appreciation for codifying India’s following four wage related laws—

With consolidation of 4 major Acts, the Wage Code has omitted and diluted critical labour favouring wage related provisions. India’s gaping wage challenges were wide open this year during the COVID-10 pandemic. The disruption in the supply-chain due to labour disruptions have brought the tragic and unfortunate events that affect lives and livelihoods of unorganised labour populace.

A survey conducted by the National Sample Survey Office in 2010[7], revealed that amongst India’s 400 million strong workforce, approximately 49% are dependent on wages for the sustained households. Labour receipts in profits have significantly fallen and the wages paid to workers have not increased in proportion to the quantum of increase in labour productivity and manual contribution. Tragically, another survey of Department of Economic Affairs in 2019[8], concluded that 1 in 3 wage workers are not protected by the minimum wage laws due to faulty enforcement mechanism at the ground level.

The Wage Code, backed by the GoI’s claim, that to address the wage crisis, multiplicity of definitions and authorities involved, have to be simplified, hasn’t in usage of its drafting, made the issue around wage, concrete. The new Wage Code has made definitions unclear and left much to the discretion of government authorities or for judicial interpretation without proper redressal at the hands of the labourers.

The previous legislations were not inapplicable to the vastly unorganised sector. And the minimum wage law was in reality, implemented to empower and include sectors that suffered poor bargaining power, particularly those with a high concentration of casual labour. In this regard, the Wage Code has not replaced these aspects strongly with alternatives worth considering. It has in fact, systemically dismantled existing enforcement mechanisms. The Wage Code seems to support unrestrained exploitation of workers and legitimises the cheapening of the workforce.

Fixing Minimum Wage:

A glaring fault of the Wage Code is its failure to define or outline the methodology adopted for fixing an adequate minimum wage. The formula, recommended unanimously by the Indian Labour Conference (“ILC”) in 1957 and reiterated in the 44th and 46th ILCs in 2012 and 2015, respectively has been blatantly ignored. This formula was the basis of the Supreme Court ruling in the Raptakos Brett And Co. Ltd vs Ganesh Property[9] to reinstate needs-based criteria taking into account expenses on adequate levels of nutrition, clothing, fuel and lighting, education and healthcare, old age provision as well as social costs such as marriages, festivals and recreation for three consumption units per worker in order for fixing minimum wages.

Leaving setting of minimum wages at the discretion of administrators, disregarding the rights of workers to wages that are adequate for leading a dignified life does not provide a progressive and inclusive reform. Opaque procedures and failure to pin accountability puts labourers rights at threat.

Floor Minimum Wage:

The minimum floor wage has been set at INR 178 per day. This is an amount, referred to as the starvation wage, merely INR 2 higher than the previous national minimum wage, prescribed two years ago.

It is unfortunate, that so many years into independence yet India considers making such references relevant which the GOI could set at the national or regional levels. Different state-level minimum wages will give discretionary powers at the state government, so long as they do not place their minimum wages below the floor set by the central government for that state or region.

Discrepancies, imbalances and fragmentation amongst the labour force and irrational inter-state competition to lower the wage rates to bring greater investments to their state, will erode the Labour work force.

Factors for determing wage:

Determination of the minimum wage is mapped to factors like skill of the employee, arduousness involved in the work performed, the geographical location of the place of work, or other factors as the government might deem important. Factors as these are difficult to measure for arriving at a fair wage with scope for bureaucracy and red tapism to breed at state levels.

Schedule of Employment:

The Schedule of employment, has been removed from the Wage Code. This documented the specific industries that would be covered by existing minimum wage legislations to ensure workers from industries with poor unionisation and collective bargaining strength, find representation. The industry-level minimum wage in the Schedule has been replaced by a standardised minimum wage based on, either time-based or piece work, which is applicable to all sectors.

Without any clarity on whether the minimum wages will be set at the same level for all industries, the minimum wage rates set at the state-level could be based on the wages paid to the poorest workers. This leaves leverage at the hands of employers to repress wages in industries that had higher wages due to protection through the Schedule and bringing down the entire wage.

Employers to self certify:

A concept of web-based self-certification scheme, where employers can certify themselves as being compliant to the provisions of the Wage Code has been introduced. Self-certification scheme is pressumptious of employers being keen towards employers of willingly complying with regulations. India is not a mature manufacturing market where self-certification could be an accurate depiction of the status of compliance. Dismantling the inspections system have already been in action in some states for inspecting compliance to several labour laws following which violations have allegedly increased.

In its endeavour to include a permeable minimum wage concept, the GoI has taken a completely contrary view from Supreme Court judgements like Sanjit Roy v State of Rajasthan[10] where that non-compliance with minimum wages amounts to forced labour, which is constitutionally, prohibited.

Reducing criminal liabilities could aid ease of doing business for the MNC employer, but on-ground management will largely be at the hands of the managers with misuse and manipulated use, becoming rampant.

Right to raise a dispute:

India is a country where an estimated 93% of workers have informal livelihoods more than 80% of workers do not have access to written contracts to prove their employee status and less than 10% of workers are included in trade union membership.

Preventing workers from accessing courts to contest the wages paid and instead only approach the quasi-judicial body and appellate authority set up under the provisions of the Wage Code, is immensely regressive indicator. The GoI’s pretext being that the setting up of an appellate authority to redress violations regarding workers’ wages will lead to speedy, cheap and effective resolution of wage disputes.

But appellate authority’s membership is not defined and it has sole power to adjudicate on wage disputes without recourse to courts. This is in clear violation of the Section 9 of Civil Procedure Code,1908 which mandates that every law or decision made under its authority be subjected to review by the judiciary.

Undocumented, casual and informal/disorganised workers, non-trade union workers, will remain disempowered to assert their right to be paid the legally mandated wages.

Contract Labour Regulations:

Holding principal employer liable for paying wages when contractors disappear is crucial for workers being able to access their wage payments in full. The Wage Code defines the principal employer broadly, to include contractors or anyone who is in charge of the workplace making it difficult to pin the liability on the actual principla employer. These provisions are a summary replacement of the Contract Labour Regulation and Abolition Act, 1970.

Overtime Payment:

Signaling the end of the existing understanding of overtime work as being beyond 9 hours per day and 48 hours per week, the Wage Code allows employers to present overtime work as compulsory normal work hours without extra payment.

Overtime rates at double the normal rate have been fixed but claiming these have been made doubly difficult. Discounting employees engaged in urgent work or in any emergency which could not have been foreseen or prevented, employees engaged in work that is preparatory or complementary in nature, carried on outside the limits laid down for the general work, employees whose employment is essentially intermittent, employees engaged in any work which for technical reasons has to be completed before the duty is over and employees engaged in work, put labourers at a disadvantage while engaging in overtime work.

New Establishment:

Expanding the definition of new establishments, to include trial running of any factory and prospecting stage of any mine, have created a possibility of exempting them from paying bonuses under the previous laws.

With no time limit set for either, trial run or prospecting stage, existing establishments can also escape payment of bonuses by being on trial runs or prospecting stages. 

Work Security:  

Protection of wages was the means to ensure that the benefits of industrial growth would lead to the economic betterment and social regeneration of the labouring population, further ensuring social justice. There is an urgent need to revisit the original intention of labour legislations in the country which was to balance the interests of labour and capital and subsequently recognise labour as the less powerful party in the supply-chain equation.

India, is a founding member of the International Labour Organisation (“ILO”). More than one and close to ten labour organisations have written to the ILO to urge GoI to hold up its commitments. With no commitment, no obligation and no rights to raise dispute, India’s labour laws are tattered. With claims only to emerge the replaced supply chain hub.

B. The Code on Occupational Safety, Health and Working Conditions, 2019

This Code proposes to repeal 13 Acts, (the Factories Act of 1948, The Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 and Contract Labour (Regulation and Abolition) Act, 1970 amongst others).

This is an exceptionally important Code as it will govern employee/worker health, safety and welfare. With an intention to promote ease of doing business in India, the Legislation has also been reduced from 622 to provisions to 132 sections. A separate registration process required under 6 different Acts is reduced through this Code. But in 3 states, the minimum requiement of working conditions including bathroom, canteen and workplace hygene have been relaxed.

C. The Code on Industrial Relations, 2019

The Code and the Standing Committee Report on the same has made payment of wages unjustifiable in an event of natural calamities – according to the Act and the Committee Report, COVID-19 would fall under a natural calamity and hence industries should not be forced to be when the situation is beyond their control.

D. Impact of change in Labour laws on the supply-chain

Change in Labour laws coupled with tragic COVID-19 resultant economic setback to Indian economy has severally impacted nitty-gritty of supply-chains in the country:

The hasty changes to the Labour laws, to become the next supply-chain destination, is indicative of short sightedness and GoI’s failure to consider the potential disruptions.

E. The Supply Chain

The United Nations Department of Operational Support describes a supply-chain as-

a system of organizations, people, activities, information and resources involved in moving a good or service from the initial supplier to the final customer’[11].  Further, it defines supply-chain management as the ‘planning and management of all activities involved in sourcing and procurement, conversion, and all logistics management activities to meet the customer’s need’.[12]

The entire gamut of ‘supply-chain’ relies on people and machines and everything that connects in between. A distribution network is interdependent on supply-chain as it includes components like producers, vendors, warehouses, logistics, manufacturers and retailers. Disruption to this gamut of supply-chain implies a painful halt to economy and burdening increase in costs / inflation increase. Coupled with COVID-19 pandemic, corporations are facing drastic stabilisation challenges. There is significant collateral damage which supply-chains have had to absorb. It remains exceedingly hard in these times to create strong demand side models.

Labour uncertainty, adds to the peril. Dis-satisfied labour can halt, delay and sometimes uproot  many vital processes serving and delivering, manufacturing, marketing and operations, distribution and delivery.

The fateful year of 2020 is witnessing, supply-chain models move away from established ‘just in time’ to advance supply models. Flexible manufacturing systems or optimized production technology have ot be adopted for a stable supply-chain.[13] Reliability of supply-chain of a production house determines the assembly time a product requires to reach the market and the consumer. These gaps now have to be compensated with a efficient and tightly controlled inventory management system.

For India, the disrupted attack has been on more than one count. Re-alignment, re-calibration and re-emergence will require smart and efficient implimentation:

F. Resolving Supply Chain Management Issues

Indentifying the correct problem statement is the biggest task at hand for most organisations. The vulnerabilities of each organisation span across a few factors but common ones involve stabilising the human capital.

Just before, COVID-19 struck the globe, the evolution of supply chain management was taking place at a technologically rapid pace. Technological advancement and adaptation to the newest equipment and techniques available had making way. The planning included:

These were positive revolutionaries in creating efficient models through Optimized Production Technology or Extended Supply Chain Management. Before complete benefits of these were reaped, COVID-19 panemic pushed the world into redefinition with need to think outside the box. Increased risk and mitigation requirements have started taking center stage.

The last major pandemic H1N1 Influenza / Swine Flu occurred in 2009, the complete failure in foresight and preparedness in dealing with a pandemic, became accepted only when COVID-19 struck vehemently at the world at large.

While we are still going through its impact, the recovery definitely will be slow with a demand for its pound of flesh. Restrictive regulations on movement and transportation have been lifted in India, but as we all know there are no hopes of a quick fix and speedy recovery.

The new challenges include audit of supply chain links to isolate risk and exposure factors, costs involved to build capabilities and replacing old models, control and management of independent links, increasing communication/ transparency to understand challenges, moving to technology based processes, securing labour and employees under changed laws, classify the risks. (explained below).

From the legal stand point, all changes will have to be operationalised through contracts and policy guidelines. Organisations can take a larger role and draw up balanced contracts. The change will require careful consideration of legal relationships and the exposure under various arrangements.

Since COVID-19 pandemic has made it evident that it will be impossible to do business in India without introducing a degree of legal compliance, following supply-chain solutions need to be weaved in future delivery systems.

Risk Assessment and Mitigation:

1. Accessing Tier-1 Supplier Risk

Tier-1 suppliers are the ones with whom the organizations do direct business with. Suppliers Risk is Your Risk is a common phraseology used for Tier I suppliers. This,  encourages organisations to understand challenges of their Tier-1 Suppliers, be flexible to their own problems of labour shortages and production. Increasing transparency with Tier 1 suppliers could bring operational ease with Tier 2 supply chains, the providers.

Breakages in this link eg., shortage of transporation, eradication of middlemen, outdated machinery, low purchasing power etc. can be minimised once the vulnerabilities are identified. [14]

2. Extended Supply Network

 The extended supply chain network goes beyond a conventional supply chain (Plan,  Develop, Make, Deliver, Return). Focus on compliance and monitoring, keeping track of consumer behaviour and use of social media platforms to increase attention.

As a basic example, there is an increase in demand of e-commerce but no labour to back it up with. Incorporating the use of social media models and better human resource management practices come with talent issues currently faced. This is a major impediment in creating holistically integrated extended supply chain. Delivering through the digital space also has cost implication which need to be factored in.

3. Increase in Liquidity and Change in consumer demand

Most companies are faced with terrible liquidity challenges this year and the situation may remain so for a few years to come. A sale leaseback is a method by which a company providing supply chain services may raise capital by selling an asset only to lease it back. Companies with high-cost fixed assets undergo this process, such as property or expensive equipment, thus making it a viable option for companies in transportation. This allows them to use the asset but is owned by another.

These are necessary steps as long term methods of cash forecasting, obtaining moratoriums, meticulously reviewing annual budgets, creating financial goals,     factors which, consistently contribute to stabilizing the Supply Chain. The shifting market conditions is altering the consumer choices and frequencies, which require swift modiication.

Self Assessment:

1. Alternate Sources of Supply

Primary suppliers are undergoing logistical issues, organizations are hedging risks by seeking alternate sources of supply of products. Some of these alternate sources, could be smaller set ups requiring support themselves.

Technology has introduced flexibility and operational logistical issues are being outsourced to third party suppliers. Adapting to digital supply chain management practices involving predictive analytics, real-time productive planning, clean-sheet models for warehousing/transportation/inventory used for managing targets will replace the traditional ways. Global Logistic companies are increasing their use of digital technologies, to boost to track movement closely with real time data.

Costs can be contained by keeping the alternate sources of labour or suppliers close to the place of business.

2. Third party supply chain

A third party supply chain involves a separate entity / service provider to assist with one of the crucial steps in the supply chain. For instance, organisations solely in the transportation business or in the business or providing warehouse storage facilities.

Warehousing business have several compliance and legal adherence protocols which can be to a degree met with ease by entities in the business of logistics and warehousing. With labour stability being challenged in India, data management and securitisation becomes imperative for logistic companies.

3. Delivery Business Models

An important aspect of labour in the post COVID -19 pandemic era will be dependent on policies of contact-less delivery and contact tracing for staff. Food delivery companies have been quick to adapt like Zomato. The Big Tech giant, Amzon, Courier services DHL have all quickly adapted to this new delivery system. This makes for faith in the sentiment of a revival and opening up of the supply chain.

4. Product scheduling and staggering shifts

The concept of product scheduling helps determine which products need to be prioritized in the event there is acute raw material and labour shortage. This eases the strain on the current limited workforce to deliver only the prioritised products instead of all.

Technology based payment systems will have to be integrated into the system. A staggered shift pattern arranges shifts of employees to arrive at different times. Both of these methods, if applied together with a large work-force employed to constantly rotate shifts – stabilizing the function would be possible.

Pandemic management through workforce requirements, having preventive health protocols of tying up with a health centre for easy Dr. access, quick checkup kiosks on site, sanitization exercise undertaken at regular frequencies, educating workforce on guidelines to be followed in event of ill health.

5. Transportation

Since trucking is the most common form of transportation in India, alternatives like rail can also be relied upon for cargo.

G. Global Response: Political instability, trade wars and everything in the middle

The ‘World’s Cheapest Factory’ – China has assumed a great role in the past half-century. It presents to the world, a primary producer, an invested customer to global commodities and offers an appealing consumer marketplace.[15] It is also estimated that more than 200 of the Fortune 500 firms have a presence in the city of Wuhan, while the Fortune 1000 have Tier 1 suppliers from within the impacted areas of the city.[16]

The outbreak of COVID-19 pandemic in China took place alongside the Chinese Lunar New Year, for which, historically workers in factories travel back to their native places to spend time with family. In anticipation of work starting back full-force after the Chinese New Year, many organisations had placed large orders in advance which were brought to a screeching halt when factories were asked not to open back up again.


The US-China trade war is creating tremendous instability in the world. India, is contending admist Vietnam and Indonesia for the share of the supply-chain pie displaced from China. To that intention the labour laws have been rapidly altered. Though, competing on technology for India still needs to  catch up.

One of the attempts to make India a favourable chice over China is to offer land to investors and for investors like Saudi Aramco and POSCO who have been looking to invest.[17] Fragile Middle East and North African countries are already battling issues like war, poverty, health, water, refugee and displaced persons crises and require that there be swift contributory response before it is too late. Critical medical equipment, debt relief and other social protection measures could help these countries in the smallest ways possible.[18]

Different businesses envisage different scenarios to prepare for probable outcomes such as the oil and gas industries vulnerable to huge economic impact, come up with multiple scenarios by focusing on events such as an environmental shift or change policies due to a new Government. Organizations focus on how they compete in these hypothetical scenarios by focusing on possible responses to the worst imaginable outcomes.[19]

As in given that the number of contracts that are likely to be impacted by the spread of COVID-19 pandemic is humongous ranging from manufacturing and supply agreements to building contracts to production and procurement agreements. Counterparties, including suppliers and service providers, may attempt avoiding immediate performance by claiming delays or failures or even terminate contracts, resulting from an unforeseen event like the government enforced lockdowns for prevention of the spread of COVID-19 pandemic and further resulting in disruption of the supply chain or impossibility of performance of an obligation under the contract.

Impact on Companies due to supply-chain disruptions

1. Short term impacts

2. Long term impacts

3. India- in Global Supply-Chain resilience

Japan, India and Australia have agreed to come together to steer the supply-chain around China, globally. The idea is to reduce trade dependence on China through cultivating supply-chain resilience. The commerce and industry ministers of the countries are now looking to join forces to build a free, fair and predictable trade environment. The COVID-19 Pandemic has exposed uncertainity as a reality in the existing supply-chain model.

The nations have been pushed to consider this in wake of incidents that followed the ongoing global pandemic of COVID-19 pandemic, the Sino-American tensions, Indo-China border stand offs. The need for diversification of the supply chain has emerged as a impending need.

It is to be seen whether, these alliances will bear successful outcomes, since in the past despite trade agreement between Japan and India, goods have continued to flow from China, unofficially, disrupting the trade balance. It is evident that without regional co-operation achieving this will remain a challenge for the neighbouring countries of China.

All bilateral arrangements will be as stable as each nation’s internal law and enforcement. These gained agreements will require ountries to secure stable workforce and ability to grow on the technology side. This, maybe is the time for Indian Government to take refuge under Law. With firm regulations and reformative changes rolled out and withheld, GoI can position India on the crucial position not only as a link for supply chain by also as a geo-political representative in stabalising the trade relations in the ASEAN region.

As a part of the last piece of its contribution towards Labour Law reforms in India. The Occupational Safety, Health and Working Conditions Code, 2019, Social Security Code, 2020 and the Industrial Relations Code, 2019 are scheduled to be tabled in the upcoming monsoon session. With passage of these 3 Codes and the Wage Code, 2019, the GoI will conclude the task of labour reforms for India.

It is represented that with this, GoI concludes it’s promise of reducing regulatory and compliance burden on the industries and deliver on its ultimate aim of ‘ease of doing business in India’.


[1] Press Information Bureau, Year End Review- 2019, Ministry of Labour and Employment, December 30, 2019. (https://pib.gov.in/PressReleseDetailm.aspx?PRID=1597964).

[2] Seventh Schedule, The Constitution of India.

[3] PHDCCI, Impact of Labour Reforms on Industry in Rajasthan, A survey study, PHD Research Bureau, 2015. (https://www.phdcci.in/wp-content/uploads/2018/11/Research-Paper-on-Labour-Reforms-in-Rajasthan.pdf).

[4] K. R. Shyam Sundar and Rahul Suresh Sapkal, Changes to Labour Laws by State Governments Will Lead to Anarchy in the Labour Market, Economic and Political Weekly, June 5, 2020. (https://www.epw.in/engage/article/changes-labour-laws-state-market-anarchy-labour-market).

[5] Uttar Pradesh Temporary Exemption From Certain Labour Laws Ordinance, 2020.   (http://information.up.nic.in/attachments/CabinetDecisionfile/7c223b50d3fdc5a2c4a53863012ed0b0.pdf)

[6] Ministry of Labour and Employment, Government of India, Report of the Second Commission on Labour, 2004.

[7] National Sample Survey Office (2011), Employment and Unemployment Situation in India 2009-10,Ministry of Statistics & Programme Implementation, Government of India

[8] Department of Economic Affairs (2019), Economic Survey 2018-19, Volume 1, Ministry of Finance, Government Press, New Delhi.

[9] (2017) 10 SCC 643.

[10] AIR 1983 SC 328.

[11] United Nations, Supply Chain, Department of Operational Support.

[12](https://operationalsupport.un.org/en/supplychain#:~:text=A%20supply%20chain%20is%20often,in%20sourcing%20and%20procurement%2C%20conversion)

[13] Sumer C. Aggarwal, MRP, JIT, OPT, FMS, Harvard Business Review, September 1985. (https://hbr.org/1985/09/mrp-jit-opt-fms)

[14] Deloitte, COVID-19:Managing Supply Chain Risk and Disruption, 2020.

 (https://www2.deloitte.com/content/dam/Deloitte/ca/Documents/finance/Supply-Chain_POV_EN_FINAL-AODA.pdf)

[15] Id, 14.

[16] 15 ibid.

[17] Shruti Sharma, India Pledges Easy Access to Land for Factories Leaving China, Bloomberg Quint, May 4, 2020. (https://www.bloombergquint.com/global-economics/india-offers-land-twice-luxembourg-s-size-to-firms-leaving-china)

[18] International Monetory Fund, COVID-19 Poses Formidable Threat for Fragile States in the Middle East and North Africa, May 13, 2020.

(https://www.imf.org/en/News/Articles/2020/05/13/na051320-covid-19-poses-formidable-threat-for-fragile-states-in-the-middle-east-and-north-africa)

[19] Michael R. Wade, Scenario planning for a post-COVID-19 world, Institute of Management and Development, May, 2020. https://www.imd.org/research-knowledge/reports/scenario-planning-for-a-post-covid-19-world/

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