THE UNORGANISED WORKERS’ SOCIAL SECURITY ACT, 2008

As an unorganised worker play a pivotal role in society, so they need special attention. Most
socially and economically deprived sections of the society are engaged in informal economic
activities. The government realised the pivotal role performed by unorganised sector in the
economy. Therefore, many legislations and schemes are initiated by the government for the
benefit of unorganised workers.

Social security means the protection provided by the society to its members against any
possible mishaps over which a person has no control. It consists of public programmes
intended to protect workers and their families from income losses associated with the old age,
illness, unemployment, or death.

Social Security for unorganised sector

In India, mostly all the social security legislations and the schemes fail to address
unorganised sector workers and thus exclude them and their problems. This is a harsh truth
for the nation as more than 90% of the total work force falls under unorganised sector. These
unorganised sector workers are compelled to spend out of their meagre incomes for all
contingencies and remain helpless in their old age. These workers face serious problems
which range from the uncertainty of employment to hazardous conditions at work. This led to
the need for specific legislation of social security for unorganised workers who are poor and
vulnerable and are in dire need of welfare programs.

In light of this, Unorganised Workers’ Social Security Act 2008 was enacted to provide social
security and welfare to unorganised sector. The act got President Assent on 30 December
2008. This act is crucial for India as it is the first time the term unorganized workers is
defined thereby identifying them in the eyes of law. The Act enlist various welfare schemes
under which workers can get some protection and allows for registration of unorganized
workers and it empowers Governments at Central and State levels for framing the rules.

The prime objective behind the Act was to provide social security and welfare of the
unorganized workers and all matters that is in connection with it. It defines unorganised
worker as –self- employed worker , home- based worker, or a wage worker in the
unorganized sector and also includes a worker in the organized sector who is not covered by
any of the Acts mentioned in Schedule II to this Act.

Definitions
There are various definitions given by different Commission and others. But here we will be
discussing the most important definitions.

According to the report of the National Commission on Labour in 1969.

‘Unorganized workers’ are other groups of workers who are not covered under the
definition and can organise in pursuit of a common goal due to force such as:-

1. Casual nature of employment.

2. Ignorance and illiteracy.
3. Establishment of small size with the low capital invested per person employed.
4. Scattered nature of establishments.
5. Muscular strength of the employer operating either singly or in combination.

National Commission also gives some categories of workers, which can be categorised as
unorganised workers, which are the following:

 Contract-based worker and it also includes workers engaged in the construction

work.
 Informal(casual) labour.
 Labour engaged in small industry.
 Handloom/ power worm workers.
 Beedi and cigar workers.
 Employed in shops and commercial establishments.
 Sweepers and scavengers.
 Workers in teaberries.
 Tribal labour.
 Other unprotected labour.

These categories are only ‘illustrative’ and are not exhaustive.

According to the Unorganized Workers Social Security Act,2008

“Unorganized sector means an enterprise which is engaged in the production or sale of the
food or in providing services of any kind owned by individuals or self-employed workers
and where the number of worker working is less than 10 in number.”

Unorganised Workers: “unorganised workers” means as follows.

 A home-based worker.
 Self-employed worker.
  Nature of employment, contract, casual and bonded labour wage worker in the
unorganised sector.

It also includes a worker in the organised sector who is not covered by any acts mentioned in
schedule II of the Act”.

Based on the distinctiveness, the government has classified the unorganised workforce
exclusively in four categories.

 In terms of employment like construction workers, waiver, fisheries, workers of

the paper mill, sawmill etc.
 The labourers which are most in exploited-Head and shoulder loaders,
scavengers, variety of labour works.
 Labourers who are providing service-Hotel boy, Midwives, Air Hostesses,
barber, masseur etc.

Apart from category described above handicrafts, artisans, cobblers, handloom weavers,
physically handicapped self-employed persons, lady tailors, a rickshaw puller, carpenters,
tannery labour, power loom workers and urban poor, Truck and Auto drivers also come under
the ambit of unorganised labour.

Problems faced by the workers

As being the weaker section of the society they face many challenges. They are as follows.

 Low wages– Wages is only the factor for which any person/employer works. As
the labourer is getting meagre wages. As there is the Minimum Wages Act defines
the minimum wage, which needs to be paid to the worker, but the worker fails to
get minimum wages. The Supreme Court of India ruled that employing
workers at wage rates below the statutory minimum wage levels is considered
as the forced labour and is the infringement of Article 23 of the Constitution
of India even though economic compulsion might drive one to volunteer to work
below the statutory minimum wage.
 No Knowledge about Work Hazardous and Occupational Safety-The working
conditions in the unorganised sector is the leading cause to have an adverse effect
on the health conditions of workers. Concerning home workers, most of the studies
reported that labourers suffer from health problems.
 The health problems are mostly related to respiratory due to inhalation of the
tobacco dust and body ache, or due to the peculiar posture that has to be
maintained at all times of work. Unguarded machinery, various toxic chemical
coal, dust lime, dust blaze, the raw material for synthetic generation leads to the
death of many unorganised workers because the working conditions are more
severe and knowledge of occupational health and safety is negligible.
  Maximum workers are living in deplorable conditions:-They live in unsanitary
conditions and likewise battle with sewer seepage framework overflowing
drainage system, flooding and storms. They live in a slum area. The facilities such
as washing, urinal, toilets facilities at work are found to be below standard. It
could be said that no such facilities were provided to workers in the industries.
 Extended Hours of Work:-Long hours of work in the unorganised sector beyond
the labour and regulatory norms are standard in India. In the agricultural sector,
there are no fixed hours of work as there are no laws to act as guidelines for the
working conditions of agricultural labourers.
 In the case of non-agricultural sectors such as fireworks, matchmaking, power
looms and so on, workers started their work very early in the morning at 6:00 a.m
and continue till the evening. In the handloom sector, the work is organised in such
a way that wages were based on 12-15 hours of work per day. A large number of
workers and the labourers are illiterate and as a result, the employers exploit the
labourer by forcing them to work for extra hours. Due to long working, social
isolation of migrant workers, high level of unemployment, illiteracy and lack of
awareness are the major hurdles in organising themselves.
 No Knowledge About the Trade Union or Labour Union:-Not many but most
are not aware of the existence of Trade Union and their rules. The primary purpose
of the establishment of the Trade Union is to settle the dispute that may arise
between the employer and employee. Trade Union means a Trade Union which is
for the time registered under the Trade Unions Act,1926. Trade Union which can
be analysed into the following ingredients.

Trade Union means any combination whether temporary or permanent made to regulate the
relations between workmen and employer, workmen and workmen, employer and employees.

While imposing restrictive conditions on the conduct of any trade or business. But this Act
shall not affect.

1. Any agreement between partners as to their business,

2. Any agreement between an employer and those employed by him as to such
employment,
3. Any agreement in consideration of the sale of the goodwill of a business or
instruction in any profession, trade or handicraft.

 High Level of insecurity is common-Social security means which provide

amenities and assurance to the workers. For instance, the employment of the
agricultural sector is irregular and unassured. This is due to the availability of
work to them only for about three months and remaining nine months, they are
mostly unemployed and suffer from starvation.
 Seasonal Employment-The workers are employed as a seasonal employer. They
are employed only for a particular season and remain unemployed during the
 remaining year. Employment is only for 3-4 months. In India Mahatma Gandhi
National Rural Workers Employment Guarantee Act,2005 aims to provide
employment security by guaranteeing at least 100 days of work in the most
backward districts of the country who can perform manually.
 Women and children are unprotected and get meagre wages: Article 39(d) of
Constitution of India talks about Equal pay for equal work means that all the
person should get equal wages irrespective of their age, sex if they work for the
same hours. The children are forced to work at hotels, dhaba for low wages.
 Children and women are paid low wages as compared to male despite working for
the same hours. Children and female workers work as household labour at the
house of the people living in the urban area. Such child labourers are subject
to long working hours and involved in the hazardous sectors such as carpet
weaving, cloth printing, explosives and fireworks, cigarette making, printing and
soldering process in electronic industries.
 Harassment issues at the workplace for women- Sexual Harassment is a big
issue that occurs at the workplace. A safe workplace is women’s legal right, but it
has been neglected. They still experience a wide range of physical and
psychological ailments due to eve-teasing and sexual harassment. In spite of the
Act that was enacted in the year 2013 still, the woman is being assaulted at their
workplace.
 Vulnerable Labour Groups:-The study group on the construction of the First
National Commission on Labour as well Second National Commission
(2002) observed that on quarries, brick-kilns as well as in big construction sites a
system of bondage exists and get extended from one generation to the next through
labour.
 The bonded labour involves a debtor-creditor relationship in this system, the
creditor advances loan to the labourer and put him in bondage until the loan is
returned. The repayment of debt is so arranged that the servant cannot repay it
during his lifetime before ensuring lifelong service for the master. It is this feature
which differentiates bonded labour from unpaid forced labour.
 Insecurity due to natural disasters:-There are many natural disasters like floods,
droughts, earthquakes, famine etc. which also have a devastating impact on the
informal sectors. Natural disasters do not wipe out the productive base of the
informal sector, but can also affect the limited household assets of the owner.

Social security to unorganised workers

Social security is essential for the welfare and provides certainty to the workers. Social
security measures have manifolds benefits in promoting the workers, increasing the
production level of industry and develop the feeling of surety among the workers. It was also
helpful for eradicating poverty to some extent. Social security is a fundamental human right
(Though not one of the Constitutional Fundamental Right).
The Planning Commission constituted a working group on Social Security during the
process of the 12th Five Year Plan. In India out a total workforce of 45.9 crores, 94% is in
the unorganised sector, and the remaining 6% is in the organised sector. The workers in the
organised sector are covered under social security legislation like employees Provident
Funds, Miscellaneous Provisions Act,1952 and Employees State Insurance Act,1948. The
working groups of Planning Commission constituted subgroups in its first meeting to discuss
the issues. Taking the benefits of subgroups the working groups have formulated its
recommendations. It is hoped that these recommendations would be useful for the
formulation of the twelfth five-year plan.

Unorganised Social Security Act,2008

In the era of liberalisation, globalisation, and privatisation the country has been a drastic
change in the business environment and nature of employment. These changes created many
issues in social security measures.

In this regard, the issue of social security to the growing sector of unorganised workers draws
more attention in emerging India. The government enacted much social security legislation
for the welfare of unorganised workers also formulated many schemes.
Unorganised Workers Social Security Act 2008 is one of the significant activities which is
exclusively for the protection of unorganised workers.

The mechanism under the Act provides a three-tier system for the implementation of the law.

National social security board

The Union Government constitutes the National Social Security Board with the union
minister for Labour and Employment as Chairperson, members nominated by The Union
Government consisting of seven each representing workers and employers from unorganized
sector, an eminent person from civil society, two members from the House Of the People, one
member from the Rajya Sabha and also five each members representing Ministries from the
Central And the State Governments. It is multiple parties composition who performs the
following functions, as follows.

1. They give a recommendation to the Union Government about suitable schemes for
the unorganised workers.
2. Advise the Union Government on matters arising out of the administration of the
act.
3. To monitor the social security schemes which are formulated for unorganised
workers.
4. Review the registration and issue identity cards to the unorganised workers.
 5. Review the record of functions performed by the State Government at the state
level.
6. Review the expenditure from the funds under various schemes.
7. Undertake another work as assigned by the central Government.

State social security board

The State Government at the state level is empowered to constitute the Social Security Board
for the objective of proper implementation of the Act. Function and Composition of State
Social Security are the same as the National Social Security Board.

The Social Security Boards, which are entrusted with the responsibility of implementation of
the act, are just advisory in nature and are not empowered to perform many functions except
monitoring and review.

The Boards are not empowered to take decisions on their own. It is up to the Government to
accept the recommendations of the board or not. For effective Implementation of any Act and
consistent delivery of social security rights to the workers, a well-defined administrative
mechanism is very essential, which is missing in the Unorganized Social Security Act itself.

Workers facilitation centres

The Act also provides for the constitution of “Workers Facilitation Centers” by the State
Governments to disseminate information social security schemes, assist unorganized workers
for the registration and facilitate the enrollment of the registered unorganized workers for
social security schemes, but the Act is silent about at which level these workers facilitation
centres are to be created.

Social security schemes

Subsection 1 of Section 3 of the Act states that Union Government and State Government
shall formulate schemes from time to time covering health and maternity relief, old age
protection, life and disability and another benefit which may be notified by the central
government.

The social security schemes are provided in Schedule 1 of the Act.

Role of Indian Judiciary for the protection of the rights of the unorganised worker
Sometimes due to failure of proper implementation of legislations judiciary come forward for
the protection of the rights of unorganised workers. Unorganised workers indeed remain
outside the purview of social security measures.

Indian Judiciary played a pivotal role in the development of modern jurisprudence and made
a significant contribution to the protection of interests of weaker section of society which
could be reflected from several decisions. Judiciary also tried to extend the benefits of labour
welfare measurements such as the Employees Compensation Act, Payment of Gratuity Act,
Employees State Insurance Act, Employees Provident Fund etc.

Judiciary has exclusive responsibility for the protection of interest of a weaker section of
society. Through various judgments, the Supreme Court of India emphasised on Right to
Livelihood as an inherent part of Right to Life.

In the case of Rural Litigation and Entitlement Kendra, Dehradun v. Uttar Pradesh,

The court stated that the right to life under Article 21 of the Constitution of India also
includes the right to livelihood.

In the case of People Union for Democratic Rights v. Union Of India,

The court held that beggar is also a kind of forced labour and it is a violation of the right to
live with dignity, respect and fundamental human rights. If any person is taking the service of
any labour and does not pay the minimum wages, then it is a violation of Article 23 of the
Constitution of India.

In the case of Sanjit Roy v State Of Rajasthan,

It was held that payment of wages lower than the minimum wage to the person employed on
famine relief work is violative of Article 23. Whenever Any labour or service is taken by the
state from any person, who is affected by drought and scarcity condition the state cannot pay
him less wage than the minimum wages on the ground that it is given help to them to meet
famine situation. The state cannot take advantage of their helplessness.

In the case of Deena vs Union of India,

The court held that the labour work that is taken from the prisoners it without paying
sufficient wages is considered forced labour, and it is an infringement of Article 23 of The
Constitution.
The prisoners have the right to claim the reasonable wages for their service rendered, and the
court must enforce the claim of labourers.

In the case of Bandhua Mukti Morcha v. Union Of India

The court held that whenever the public interest litigation if initiated alleging the practice of
bonded labour, the government needs to accept it as the opportunities and to examine the
issues or problem of labour and make efforts to eradicate the practice of bonded labour and
protect the labours. Article 23 of the Constitution of India, which prohibits the practice of
bonded labour protects and helps the labours to earn for their livelihood.

In the case of Neeraja Chaudhary v. State of Madhya Pradesh

Justice Bhagwati held that it is not sufficient for the Government to find about the existence
of bonded labour, but it is also necessary that the labourers should be rehabilitated because if
they are not rehabilitated, then they would be driven to despair, poverty and helplessness.

Article 21 states that bonded labour should be identified and efforts need to be made by the
Government to complete rehabilitation of the labourers. Directive Principles of State policy
was enacted as the guidelines for the government. Under DPSP, the State Government needs
to provide a basic human dignity to bonded labour and if it is not fulfilled, then it will result
in the infringement of Article 21 of the Constitution.

Judicial trends concerning the extension of the benefits of social security schemes to
unorganised workers

In the case of Daily Rated Casual Labour V. Union Of India, it was held that whenever the
employees are classified into the casual and regular employees.leads to the infringement of
Article 14 and Article 16 of the Constitution. It is also against the spirit of Article 7 of the
International Covenant on Economic, Social And Cultural Rights,1966. When the labourers
are not paid minimum wages as prescribed by the Minimum Wages Act, then it amounts to
exploitation of labour. The court also stated that the Government should be the model
employer and not take advantage of its dominant position.

In the case of State V. Banwari

The High Court of Allahabad stated that “The person cannot refuse to render the services
merely on the ground that such labours belong to the Scheduled Caste. This is done to protect
the interest of weaker sections of society.

In the case of Siddheshwar, Hubli v Employees State Insurance Corporation,

The court has widened the definition of the employee under this act and also states that this
Act applies even to those persons whose services are lent to the principal employer.

In the landmark case M.C Mehta v State of Tamil Nadu,

The Supreme Court of India gave order to the Government to do a survey and to stop the
child labour in the matchstick and cracker factories. The court also directed that the minimum
wage paid by the subcontractors under Minimum Wages Act should be directly paid and the
provisions of section 21 of the Contract Labour Act, 1970 should be observed.

In the case of Delhi Jal Board v. National Campaign For Dignity and Rights of Sewerage and
Allied Workers

Neither the lawmakers nor those entrusted with the duty of implementing laws enacted for the
welfare of unorganized workers have put in place appropriate mechanism for the protection
of persons employed by or through contractors to whom service meant to benefit the public at
large are outsourced by state and its agencies for doing workers, which are inherently
hazardous and dangerous to live nor have they made provision for payment of reasonable,
compensation in the event of death.

Therefore Judiciary is active to take all necessary steps for protection of the rights of
unorganised workers and implementing social security welfare schemes and also extend
the advantages of various labour welfare legislation.

Conclusion

As many problems are faced by unorganised workers such as low wages, exploitation of
workers, cruel conditions of workers etc. so the legislative system of India protects the rights
of the unorganised workers with the help of various articles covered under the constitution of
India.

The Government of India took a step by enacted a legislation ‘Unorganized Social Security
Act, 2008’ for providing underlying social security to the unorganised workers who work in
an unorganised sector. In pursuance of this Act, the Government of India has implemented
numerous schemes such as Aam Admi Bima Yojana(Life Insurance), old age pension
scheme, Rashtriya Swasthya Bima Yojana (health insurance) etc.

The Central Government, under the requisite section and the State Government under the
specified section, have been empowered to make the rules for the smooth functioning.
The Central Government has power under section 11 to give direction to the State
Government and National Board for the proper implementation of the provisions of this Act.