Role Of International Law In Promoting Labour Welfare Laws

Author: LawSphereX

Category: Labour & Employment

Published: 2026-08-23T21:00:33.897256+00:00

Updated: 2026-08-26T17:09:31.65+00:00

ROLE OF INTERNATIONAL LAW IN PROMOTING

LABOUR WELFARE LAWS

Mr. Ankur Pandey, LL.B., Maa Vaishno Devi Law College Affiliated by University of Lucknow

ABSTRACT

This study investigates the role of international labour standards in promoting global worker welfare, focusing on the efforts of the International Labour Organization (ILO) in improving labour conditions worldwide. The research explores the ILO’s strategies, voluntary adoption of global labour norms, and the challenges of enforcing these standards across diverse economic and political contexts. Using a qualitative analysis of existing literature and policy documents, the study examines the ILO’s impact on member states and the broader international labour landscape. Results highlight the importance of global collaboration, the need for establishing minimum labour standards, and the significance of promoting social justice and equality.

The research contributes to understanding how international law can enhance cross-border enforcement mechanisms, protect vulnerable workers, and address issues like modern slavery and forced labour. It also emphasizes the need for continuous updates to labour standards to adapt to evolving social, economic, and technological changes. The implications of these findings suggest that a more robust and adaptable international framework is essential for improving labour welfare, fostering sustainable development, and ensuring the fair treatment of all workers, especially in the context of globalization. Future research may focus on developing more effective enforcement strategies and expanding the scope of ILO’s influence in global labour markets.

CHAPTER-I

INTRODUCTION

Every society, irrespective of its population, makes a legal framework (law) under which it functions and develops. It is permissive in nature as it allows individuals to form legal relations with rights and duties and restrictive in nature as it punishes the wrong-doers. These laws are referred to as Municipal laws. The world today requires a framework through which interstate relations can be developed. International Laws fill the gap for this. The term “International law” also referred to as Laws of Nations was first coined by Jeramy Bentham in 1780. Every country is referred to as ‘state’ in International Law. International laws are a set of rules, agreements and treaties, binding between countries. Countries come together to make binding rules that they believe will benefit the citizens. It is an independent system of law existing outside the legal framework of a particular state.

Welfare is a convenient term to cover all those aspects of industrial life which contribute to the well-being of the worker. It is a broad concept referring to a state of living of an individual or a group in a desirable relationship with the total environment ecological, economic and social. The term ‘Welfare’ includes both the social and economic contents of welfare. 1 Social welfare is primarily concerned with the solution of various problems of the weaker sections of society. The goal of social welfare is to fulfil the social, financial, health and recreational requirements of all individuals in a society. The goal of economic welfare is to promote economic development by increasing production and productivity and through equitable distribution. Labour welfare is the mixed and total concept of both the social and economic contents of welfare.

The social concept of welfare implies the welfare of man, his family and his community. The economic concept of welfare implies the equitable distribution of profit among the different factors of production. i. e. , the pillar of the production. It does not mean merely the reasonable and desirable payment of remuneration to the labour for its productivity and time but also spending a part of profit

on various facilities for them which, in turn, increases the production and productivity of the business organisation.

1.1. NEED OF THE STUDY

The study on the “Role of International Law in Promoting Labour Welfare Laws” is crucial for several reasons. Firstly, international law provides a framework for global cooperation and the establishment of common standards to protect workers’ rights and promote social justice. By examining the role of international law in this context, we can identify gaps and areas for improvement in existing labour welfare laws. Secondly, labour welfare laws are essential for ensuring fair working conditions, decent wages, and protection of workers' rights across the world. However, these laws may vary significantly between countries, leading to disparities in the treatment of workers. International law can help harmonize these laws and promote a more equitable global labor market.

Thirdly, the globalization of industries and the increasing mobility of capital have made it necessary to address labour welfare issues on an international level. Workers employed in multinational corporations or those who migrate for work often face unique challenges, such as exploitation, lack of protection, and inadequate access to social benefits. International law can provide a platform to address these issues and protect the rights of these workers. Fourthly, international law can also facilitate the exchange of best practices and experiences among countries in the field of labour welfare. This can lead to the development of more effective and efficient labour welfare policies and contribute to the overall improvement of working conditions worldwide.

Studying the role of international law in promoting labour welfare laws is essential for ensuring fair treatment of workers, fostering global cooperation, and contributing to a more equitable and just global labor market. This research can help identify areas for improvement and provide valuable insights for policymakers and stakeholders working towards better labour welfare laws and policies.

1.2. OBJECTIVE OF THE STUDY

It is in this background that the present study has been undertaken to find out the various labour welfare measures laid down in the international norms, its implementation along with some measures voluntarily adopted by the international organisation over and above what have been laid down under labour laws, and the benefits taken by the employer by benefitting the workers. In other words, the main objectives of this study are:

1. To trace the historical perspective of labour welfare in international sphere both

philanthropic and paternalistic;

2. To discuss, in detail the international legal framework in promotion of labour

welfare.

3. to find out the various measures of International Labour Organization for the

welfare of the labourers;

4. to examine the Indian position for the promotion of labours.

CHAPTER-II

CONCEPTUAL FRAMEWORK OF LABOUR WELFARE IN A GLOBALIZED

WORLD

2.1. INTRODUCTION

Labour welfare implies the setting up of minimum desirable standards and provisions of facilities like health, food, clothing, housing, medical assistance, education, insurance, job seurity, recreation, and so on. The worker normally spends about onethird of his total working life in the organisation of his employer. He has, therefore, every right to demand that the conditions under which he does so should be reasonable & provide proper safeguards for life and health. So, it is very difficult to accurately lay down the scope of labour welfare work especially because of fact that labour is composed of dynamic individuals with complex needs.

The historical background of labor welfare initiatives at the international forum dates back to the late 19th and early 20th centuries when the Industrial Revolution led to rapid urbanization & significant changes in the working conditions of people worldwide. 2 As a result, workers faced long hours, low pay, and hazardous working conditions. This situation led to the rise of labor movements and need for international cooperation to address these issues.

2.2. MEANING AND DEFINITION OF LABOUR WELFARE LAW

Labour welfare is a flexible and elastic concept. Its meaning and implications differ widely with times, regions, industries, countries, social values and customs, the general economic development of the people and the political ideologies prevailing at particular moments. As such, a precise definition is rather difficult. In the words of Prof. H.S. Kirkaldy: “The whole field of welfare is one in which much can be done to combat the sense of frustration of the industrial workers, to relieve them of the personal and family worries, to improve their health, to offer them some sphere in which they can excel others and to help them to a wider conception of life.”3

According to the second Asian Regional Conference of ILO, it was stated that workers’ welfare may be understood to mean: “Such services, facilities and amenities which may be established in or in the vicinity of undertakings to enable the persons employed in them to perform their work in healthy and peaceful surroundings and to avail of facilities which improve their health and high morale. ”4 According to Balfour committee: “Labour welfare refers to the efforts made by the employers to improve the working and living conditions over and above the wages paid to them. In its widest sense it comprises all matters affecting the health, safety, comfort and general welfare of the workmen, and includes provision for education, recreation, thrift schemes, convalescent homes. ”5 It covers almost fields of activities e. g. , social, economic, industrial and educational.

According to Labour Investigation Committee: “Anything done for the intellectual, physical, moral and economic betterment of the workers, whether by the employers, by the government or by other agencies over and above what is laid down by law or what is normally expected on the part of the contractual benefits for which worker may have bargained. ”6 According to N. M. Joshi: “Welfare work covers all the efforts which employers take for the benefit of their employees over and above the minimum standards of working conditions fixed by the Factories Act and over and above the provisions of the social legislation providing against accident, old age, unemployment and sickness. ”7

2.3. THE ROLE OF INTERNATIONAL LABOUR ORGANIZATION IN

LABOUR WELFARE

The International labour Organization (ILO) is devoted to promoting social justice and internationally recognized human and labour rights, pursuing its founding mission that labour peace is essential to prosperity. The primary role of the ILO has been to coordinate principles of international labour law by issuing Conventions, which codify labour laws on all matters. Members of the ILO can voluntarily adopt and ratify the conventions by enacting the rules in their domestic law. The main aims of the ILO are to promote rights at work, encourage decent employment opportunities, enhance social protection and strengthen dialogue on work-related issues. 8 ILO standards have greatly influenced labour legislation, labour welfare, trade unionism and industrial relations.

Following ILO tradition, the principle of tripartite consultation has been successfully adopted by the Government of India in the formulation of labour policy on the basis of consensus. In essence, there is a close resemblance between the ILO Philadelphia Charter of 1944 and the Fundamental Rights and the Directive Principles of State Policy under the Indian Constitution. India is a founder member of the International Labour Organization, which came into existence in 1919. At present the ILO has 187 Members. A unique feature of the ILO is its tripartite character. The membership of the ILO ensures the growth of tripartite system in the Member countries. At every level in the Organization, Governments are associated with the two other social partners, namely the workers and employers.

All the three groups are represented on almost all the deliberative organs of the ILO and share responsibility in conducting its work. The three organs of the ILO are:9 • International Labour Conferences: General Assembly of the ILO – Meets every year in the month of June. • Governing Body: Executive Council of the ILO. Meets three times in a year in the months of March, June and November. • International Labour Office: A permanent secretariat.

The work of the Conference and the Governing Body is supplemented by Regional Conferences, Regional Advisory Committees, Industrial and Analogous Committees, Committee of Experts, Panels of Consultants, Special Conference and meetings, etc.10

2.3.1. INTERNATIONAL LABOUR STANDARDS - ILO CONVENTIONS

The principal means of action in the ILO is the setting up the International Labour Standards in the form of Conventions and Recommendations. Conventions are international treaties and are instruments, which create legally binding obligations on the countries that ratify them. 11 Recommendations are non-binding and set out guidelines orienting national policies and actions. The approach of India with regard to International Labour Standards has always been positive. The ILO instruments have provided guidelines and a useful framework for the evolution of legislative and administrative measures for the protection and advancement of the interest of labour. To that extent the influence of ILO Conventions as a standard of reference for labour legislation and practices in India, rather than as a legally binding norm, has been significant.

12 The ILO regularly examines application of standards in member States and points out areas where they could be better applied. Any problems in application of standards, the ILO seeks to assist countries through social dialogue and technical assistance. The ILO has developed various means of supervising the application of Conventions and Recommendations in law and practice following their adoption by the International Labour Conference and ratification by States. There are two kinds of supervisory mechanism:13 • The regular system of supervision: examination of periodic reports submitted by Member States on the measures they have taken to implement the provisions of the ratified Conventions. • Special procedures: a representations procedure and a complaints procedure of general application, together with a special procedure for freedom of association.

The regular system of supervision is based on the examination by two ILO bodies of reports on the application in law and practice sent by member States and on observations in this regard sent by workers’ organizations and employers’ organisations.14 The Committee of Experts on the Application of Conventions and Recommendations the International Labour Conference’s Tripartite Committee on the Application of Conventions and Recommendations. Special procedures Unlike the regular system of supervision.The three procedures listed below are based on the submission of a representation or a complaint: • Procedure for representations on the application of ratified Conventions. • Procedure for complaints over the application of ratified Conventions. • Special procedure for complaints regarding freedom of association through the Freedom of Association Committee.15

2.3.2. Some of the necessities for the Labour Welfare Measures

There were only 25 million during the initial period of industrial growth, while the strength of the workers is increasing year after year and hence, need for a mechanism to look into the welfare of the labour. 16 Workers put in long hours of work in unhealthy surrounding and the drudgery of the factory work continues to have adverse effect. As a result of hard work, they fall prey to alcoholism, gambling and other immoral activities results in absenteeism and other problems in the organization. Hence the need was felt. Good education and training facilities for workers were also felt necessary as there was high-rate illiteracy and lack of proper education background. Good training provided will reduce industrial accidents, increases workers efficiency and create a sense of commitment among the workers.

Welfare activities like family planning, child welfare facilities and maternity care assist workers in a variety of ways, which would reduce the mortality rate and maintain good health of the spouse and children of the family, which would create a confident note in the workers. Promoting welfare activities lead to better working conditions & standards for industrial workers.

2.3.3. Scope of Labour Welfare

The scope and content of labour welfare can be understood by considering some aspects of labour welfare emphasized of various times and by various bodies. The scope of labour welfare can be interpreted in different ways by different countries with varying stages of economic development, political outlook and social philosophy. 17 While expressing its interpretation regarding the scope of labour welfare, the I. L. O. has observed: “The term is one which lends itself to various interpretations and it has not always the same significance in different countries. Sometimes the concept is a very wide one and is more or less synonymous with conditions of work as a whole.

It may include not only the minimum standard of hygiene and safety laid down in general labour legislation but also such aspects of working life as social insurance schemes measure for the protection of women and young workers, limitation of hours of work and paid vacations. In other cases, the definition is much more limited, and welfare, in addition to general physical working conditions, is mainly concerned with the day- to-day problems of the workers and the social relationships of the place of work. In some countries, the use of welfare facilities provided is confined to the workers employed in the undertaking concerned while in others, the workers’ families are allowed to share in many of the benefits which are made available. ”18 The concept of welfare is necessarily dynamic. It has a different interpretation from country to country and from time to time.

Even in the same country the interpretation of concept of labour welfare varies according to its value system, social institution, degree of industrialization and general level of social and economic development. Moreover, within one country also its content may be different from region to region. 19

2.1. THE ROLE OF INTERNATIONAL LAW IN PROMOTING LABOUR

WELFARE LAWS

While the United Nations does not deal with labour matters as such, and recognizes the ILO as the specialized agency responsible for taking appropriate action for the accomplishment of the purposes set out in its Constitution; some UN instrument of more general scope have also covered labour matters. A number of provisions concerning labour matters are contained in the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, which are legally binding human rights agreements. Both were adopted in 1966 and entered into force 10 years later, making many of the provisions of the Universal Declaration of Human Rights effectively binding.

20 Because of their comprehensive nature, the Covenants are drafted in general terms, and the various rights relation to labour, which they recognize are dealt with in a less precise and detailed way than ILO standards. The UN General Assembly has adopted also a number of legally binding Conventions concerning labour matters. The most important ones are the Convention on the Elimination of All Forms of Racial Discrimination (1969), Elimination of all Forms of Discrimination against Women (1979), Rights of the Child (1989), Status of the Refugees (1954) and Status of Stateless Persons (1960). • Global Perspective: International law provides a framework that extends beyond national boundaries, offering a global perspective on labour welfare. Understanding how international legal instruments influence national labour laws helps policymakers navigate global labour standards.

• Normative Framework: International labour standards, set by organizations like the International Labour Organization (ILO), establish norms and principles that guide countries in formulating their labour policies. Analyzing the impact of these standards on national legislation helps assess their effectiveness in promoting labour welfare. • Cross-Border labour Issues: In an increasingly interconnected world, labour issues often transcend national borders. International law addresses issues such

as migrant labour rights, child labour, and workplace safety, which require cooperation among nations to effectively address. • Influence on Domestic Legislation: Many countries incorporate international labour standards into their domestic laws through ratification of international treaties and conventions. Understanding how international norms influence domestic legislation sheds light on the mechanisms through which global standards are implemented at the national level. • Enforcement Mechanisms: International law provides mechanisms for monitoring and enforcing compliance with labour standards. By studying these mechanisms, scholars and policymakers can assess the effectiveness of international institutions in promoting labour welfare and identify areas for improvement.

• Legal Innovation and Best Practices: Comparative analysis of labour laws across different countries can lead to legal innovation and the adoption of best practices. By studying how international law shapes labour regulations in different contexts, policymakers can identify effective strategies for promoting labour welfare. • Social Justice and Human Rights: labour rights are closely linked to broader principles of social justice and human rights. International law contributes to the advancement of these principles by advocating for fair working conditions, equal treatment, and protection against exploitation in the global labour market.

2.3.4. The Universal Declaration of Human Rights, 1948 (UDHR)

Art. 22 to 27 contain the economic, social and cultural rights such as:21 “Right to work, free choice of employment, right to rest and leisure, right to standard of living adequate for health and well-being, right to education and the right to participate in cultural life of the community. UDHR came out as a mere resolution of General Assembly. However, with the passage of time; it assumed the significance of being a continuation of the UN charter, and a universal ‘magna carta’ of human rights which was further confirmed and stepped up through different Covenants and Protocols and

compositely, all these instruments came to known as the International Bill of Human Rights.”22

2.3.5. The International Covenant on Civil and Political Rights, 1966

The 53 Articles of the Covenant, which is divided into six sections, include the following labor-related rights, among others:23

1. Prohibition of Slavery, slavery trade, servitude, forced labour (Art.8).

2. Right of all persons deprived of their liberty to be treated with humanity and

3. with respect for the inherent dignity of the human person (Art. 10).

4. Prohibition of imprisonment merely on the ground of inability to fulfil a

5. contractual obligation (Art.11).

6. Right to freedom of opinion and expression (Art.19).

7. Right of peaceful assembly (21).

8. Right to freedom of association including the right to form and join trade

9. union for the protection of interests (22).

10. Equality before law (26).

2.3.6. The International Covenant on Economic, Social and Cultural Rights, 1966

There are 31 Articles in this Covenant, which are broken down into IV sections. The following are your rights at work:24

1. Right to work freely chosen (Art.6).

2. Right to enjoyment of just and favorable conditions of work (Art. 7).

3. Right to form trade unions and join the trade unions of choice (Art. 8).

4. Right to social security, including social insurance (Art.9).

5. Right relating to family, motherhood, childhood and young person to protection

and assistance and the right of free consent to marriage (Art. 10).

6. Right to adequate standard of living for himself and his family including

adequate food, clothing and housing and to the continuous improvement of living conditions (Art.11).

7. Right to the enjoyment of highest attainable standard of physical and mental

health (Art.12).

2.3.7. ILO Declaration on Fundamental Principles and Rights at Work, 1998

The goals established at the Copenhagen Summit were greatly aided by the Declaration, which urged the States parties to the relevant ILO agreements to accord these and all others full effect. It reaffirmed the Member States of the ILO’s commitment to upholding, advancing, and universally implementing the four fundamental rights at work:25 • freedom of association & effective recognition of right to collective bargaining; • elimination of all forms of forced or obligatory labour; • effective abolition of child labour; • elimination of discrimination in employment and occupation.

2.3.8. Weekly Rest (Industry) Convention, 1921

The Weekly Rest (Industry) Convention of 1921 was a significant event in labor history, focusing on the rights and well-being of workers in the industrial sector. This international conference aimed to establish guidelines and standards for weekly rest periods and working hours to promote a healthier work-life balance and improve overall worker welfare.26

2.3.9. Forced Labour Convention, 1930

The Forced Labour Convention, 1930, also known as Convention No. 29, is an international labor agreement established by the International Labour Organization (ILO). This convention aims to eradicate forced or compulsory labor in all its forms and prohibits the use of such labor practices. It was adopted on 28 June 1930 and came into force on 1st August 1932. The convention defines forced or compulsory labor as:27 “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.”

2.3.10. Medical Examination of Young Persons (Industry) Convention, 1946 The Medical Examination of Young Persons (Industry) Convention, 1946 is an international labor agreement aimed at protecting the health and well-being of young workers. Adopted by the International Labour Organization (ILO), it sets guidelines and standards for the medical examination of young person’s entering employment in various industries. The primary objective of this convention is to ensure that young workers, particularly those under the age of 18, are in good health and physically suited for the work they are being employed to do.28

2.3.11. Labour Inspection Convention, 1947

The Labour Inspection Convention, 1947, also known as Convention No. 81, is an international agreement established by the International Labour Organization (ILO). This convention aims to promote and protect workers’ rights by ensuring effective labour inspection systems in member countries.29

2.3.12. Freedom of Association and Protection of the Right to Organise Convention,

It primarily focuses on labor rights and aims to protect and promote the freedom of workers and employers to form and join organizations of their choice, without any discrimination. In the context of labor, this convention ensures that workers have the right to form or join trade unions, as well as the right to bargain collectively. It also protects the right of employers to establish and join employer organizations. The convention emphasizes the importance of these rights in promoting decent work, social justice, and fair working conditions.30

2.3.13. Migration for Employment Convention, 1949

It is an international agreement aimed at protecting the rights of migrant workers and their families. Adopted by the International Labour Organization (ILO), this convention focuses on labor-related aspects of migration and seeks to ensure fair treatment, decent working conditions, and equal opportunities for migrant workers.31

2.3.14. Equal Remuneration Convention, 1951

It is an international agreement aimed at promoting gender equality in the workplace. This convention was adopted by the International Labour Organization (ILO), a United Nations agency that seeks to ensure fair and humane conditions of work for all. The main principle of this convention is to eliminate any distinction, exclusion, or preference based on sex in the field of employment. It specifically focuses on the issue of equal pay for equal work of equal value. This means that men and women should receive the same remuneration for work that is of equal value, regardless of their gender.

2.3.15. Social Security (Minimum Standards) Convention, 1952

is an international agreement aimed at establishing minimum standards for social security protection in the context of labor. This convention, adopted by the International Labour Organization (ILO), focuses on providing a basic social safety net for workers and their families, ensuring their well-being and financial stability in case of unemployment, sickness, old age, or other contingencies.32

2.3.16. Equality of Treatment (Social Security) Convention, 1962

It aims to ensure equal access to social security benefits for all workers, regardless of their race, color, sex, religion, political opinion, or national extraction. This international labor convention was adopted by the International Labour Organization (ILO) to promote fairness and equality in the workplace and to protect the rights of workers.33

2.3.17. Minimum Wage Fixing Convention, 1970

It is an international labor agreement established by the International Labour Organization (ILO). This convention aims to address the issue of low wages and its impact on workers and their families. By setting minimum wage standards, it seeks to promote social justice, improve living conditions, and protect the rights of workers in the global labor market. It encourages member states to establish or maintain minimum wage levels that provide workers with a decent living, taking into account factors like the cost of living, family responsibilities, and the need to ensure full employment.34

2.3.18. Tripartite Consultation (International Labour Standards) Convention,

It also known as ILO 144, is an international agreement established by the International Labour Organization (ILO). This convention aims to promote and protect international labor standards by encouraging tripartite consultation among governments, employers, and workers.35 The main objective of ILO 144 is to establish a framework for regular and systematic tripartite consultation on matters related to labor standards, policies, and programs. The convention requires its member countries to establish tripartite consultative bodies at both the national and local levels. These bodies should include representatives from the government, employers’ organizations, and workers' organizations. They should meet regularly to discuss and make advice on issues related to labor standards, employment policies, and social protection.

2.3.19. Labour Administration Convention, 1978

It is also known as Convention No. 150, is an international agreement established by the International Labour Organization (ILO). This convention aims to promote the effective administration of labour laws and the protection of workers’ rights. It was adopted on June 30, 1978, and came into force on February 1, 1982.36

2.3.20. Maintenance of Social Security Rights Convention, 1982

It is a crucial international agreement aimed at ensuring that workers and their families receive adequate social security protections. This Convention, adopted by the International Labour Organization (ILO), is designed to provide a comprehensive framework for member countries to establish, maintain, and develop social security systems that protect workers from various risks associated with employment.37 2.3.21. Employment Promotion and Protection against Unemployment Convention, 1988 It is also known as Convention No. 163, an international labor agreement established by the International Labour Organization. This convention aims to address issues of employment promotion & protection against unemployment in the context of labor.38

2.3.22. Indigenous and Tribal Peoples Convention, 1989

It is a significant agreement that addresses the rights and well-being of indigenous and tribal peoples, particularly in relation to labor. This convention aims to protect the rights and dignity of these communities while promoting their development and selfdetermination.39

2.3.23. United Nations Convention on the Rights of the Child (CRC)

It is a comprehensive treaty that addresses various aspects of children’s rights, including their protection from child labor. Article 32 of the CRC specifically focuses on the issue of child labor and states that governments must take appropriate measures to protect children from work that is likely to harm their health, safety, or moral development.

2.3.24. The International Labour Conference, 1997

The ILO Governing Body convened for the first time in 1994 to examine the protection of contract labor. A Committee on Contract Labor was established and given the responsibility of proposing a Convention that would be reinforced by a recommendation that would address the matter of legal protection for contract labor in particular. During the 85th International Labour Conference in Geneva in 1997, the Conference Committee on Contract Labor looked into the matter.40 The Conference’s goal was to approve a convention and recommendation on contract labor, but those plans were never carried out.41 In this aspect, the ILO member nations were unable to reach a consensus. Notably, the talks had received backing from the Indian government.

2.3.25. Worst Forms of Child Labour Convention, 1999

This convention aims to eliminate the worst forms of child labor globally, which are considered to be the most detrimental to a child's physical and mental development, as well as their future prospects.42

2.3.26. Maternity Protection Convention, 2000

It aims to protect the rights of women workers during pregnancy, childbirth, and the postnatal period. The convention focuses on ensuring that women workers have access

to proper maternity leave, medical care, and other benefits to maintain their health and well-being while balancing their responsibilities as mothers.43

2.3.27. United Nations Guiding Principles on Business and Human Rights, 2011

These principles, endorsed in 2011, provide a framework for businesses to respect human rights in their operations. In the context of labor, these principles emphasize the responsibility of companies to respect, protect, and remedy human rights abuses related to their business activities. Businesses to respect human rights, including labor rights, in their operations.44

CHAPTER - III

ROLE OF JUDICIARY IN PROMOTING LABOUR WELFARE

LAWS

3.1. INTRODUCTION

The role played by judiciary has been a crucial aspect in the development of labour jurisprudence as a whole. The judiciary has the power to determine the legality of strikes in India, courts have laid down certain conditions for a strike to be considered legal, such as giving notice to the employer, providing a reasonable cause for the strike and ensuring that the strike is peaceful. In addition, the judiciary has also recognized the right of employers to take disciplinary action against employees who go on an illegal strike. One of the primary roles of the judiciary is to interpret the Industrial Disputes Act and ensure that it is implemented in a fair and just manner. The courts have the power to hear cases related to strikes and issue orders regarding the legality of strikes, and the conditions and procedures that must be followed.

45 The aspect of Essential services maintenance act has been also covered by the judiciary as it has laid down guidelines for the imposition of essential services maintenance act (ESMA) during strikes. ESMA is a law that prohibits strikes in certain essential services like hospitals, transport, and electricity supply, to ensure that these services are not disrupted. The Supreme Court of India has held that ESMA can be invoked only as a last resort when all other measures to resolve the strike have failed. Furthermore, the judiciary has also acknowledged that strikes are a legitimate means of expressing the grievances of workers. The courts have recognized the importance of collective bargaining and have encouraged employers to negotiate with workers to resolve disputes.

In cases where the strike is found to be illegal, the courts have ordered compensation for any loss suffered by the employer due to the strike. Additionally, the courts have also granted relief to workers who have suffered on account of participating in a lawful strike. 46 The judiciary can also appoint a conciliation officer or a board to resolve the dispute between the workers and employers. This officer or board can facilitate negotiations between the two parties, and if an agreement is reached, it can be enforceable under

law. If the negotiations fail, the matter can then be referred to a labour court, industrial tribunal or a National Industrial Tribunal, depending on the nature of the dispute. These courts have the power to decide disputes related to wages, working hours, working conditions, and other employment-related issues.

3.2. IMPORTANT CASE LAWS

In order to understand the role of judiciary in better sense with regard to the aspect of strike, the following case has been undertaken to be studied in lieu of the same such as Indian Petrochemicals Corporation v. Shramik Sena, the Supreme Court of India held that a strike can be legal only if it meets the following conditions:

1. It must be in support of a demand made by workers in relation to

employment or non-employment or the terms of

2. the demands made by the workers must be

3. the strike must be preceded by a notice of strike given in the prescribed

manner to the

4. strike must take place after the expiration of the notice

5. the strike must be peaceful and not involve any violence or damage to

6. the workers participating in the strike must not engage in any coercive or

intimidating conduct towards non-striking workers or the management.

7. The strike must be in furtherance of a trade union’s objectives and not

motivated by personal

8. The workers must exhaust all other remedies available to them, such as

conciliation and arbitration, before resorting to a strike. The court also held that an illegal strike can lead to disciplinary action, including termination of employment. In the case of T.K. Rangarajan v. Tamil Nadu (2003), the Tamil Nadu government terminated the services of all employees who resorted to the two important issues raised in this case are:

1. It is a fundamental right to go on strike?

2. In this case does the employee have statutory right to go on strike.

With respect to first issue, the court refereed to the judgment of Kameswar Prasad and others v. State of Bihar and another, in which the Supreme Court held that there exists no fundamental right to strike. The Supreme Court of India observes that there

is no statutory provision empowering the employees to go on strike. With respect to second issue, the court observes that there is prohibition to go on strikes under the Tamil Nadu Government Servants Conduct Rules, 1973. Rule 22 provides that “no government servant shall engage himself in strike on incitements there to or in similar activities. Though the Supreme Court of India did not impose a blanket ban on all strikes. The court further declares that the said strike to be illegal in view of Rule 22 which prohibits government servants from going on strike. Thus, The Apex Court held that Government staffs have no statutory, moral or fundamental right to strike. In the case of Harish Uppal (Ex-Capt) v. Union of India (2003), the Supreme Court reiterated that lawyers have no right to go on strike or give a call for boycott and not even a token strike.

In the case of Dharma Singh Rajput v. Bank of India, it was held that right to strike as a mode of redress of the legitimate grievance of the workers is recognized by the Industrial Disputes However, this right is to be exercised after complying with the conditions mentioned in the Act and also after exhausting the intermediate and salutary remedy for conciliation. In the case of B. R. Singh v. Union of India, it was held that, the strike is a form of demonstration. Though the right to strike or right to demonstrate is not a fundamental right, it is recognized as a mode of redress for resolving the grievances of the workers. Though this right has been recognized by almost all democratic countries but it is not an absolute

3.3. JUDICIAL ACTIVISM IN CONTEXT OF LABOUR WELFARE

Judicial activism refers to the tendency of judges to interpret and apply the law in a way that goes beyond the traditional bounds of legal interpretation. In the context of labour welfare, judicial activism can be seen as a means of using the law to protect the rights and interests of workers, even if this requires interpreting the law in a more expansive way. When it comes to labour welfare, judicial activism has often played a crucial role in protecting the rights of workers and ensuring that they receive fair treatment and compensation from their employers. For example, in cases where workers have been unfairly dismissed or denied compensation for work-related injuries, the courts have often stepped in to provide relief and ensure that justice is served.

Ads by One example of judicial activism in the context of labour welfare is the use of the doctrine of ‘fairness’ in employment law. This doctrine, which has been developed by courts in many jurisdictions, requires employers to act fairly towards their employees in all aspects of employment, including

in the provision of wages, benefits, and working conditions. By using this doctrine, courts can require employers to provide better working conditions and benefits to their employees, even if there is no explicit legal requirement to do so. Another example of judicial activism in the context of labour welfare is the use of the concept of ‘constitutional morality’ in interpreting labour laws. Constitutional morality refers to the values and principles that underlie the Constitution, such as the protection of human dignity, equality, and social justice. By interpreting labour laws in light of these values and principles, courts can require employers to act in a way that is consistent with the broader goals of the Constitution, including the protection of workers’ rights and interests.

3.4. MEASURES TAKEN BY INDIAN JUDICIARY IN LABOUR WELFARE

The Indian judiciary has taken several initiatives to implement and enforce labour laws in the country. Some of these initiatives include: Strict Interpretation of Labour Laws: The Indian judiciary has adopted a strict interpretation of labour laws and has been proactive in ensuring that employers comply with these laws. For instance, the judiciary has been quick to penalize employers who violate minimum wage laws or fail to provide benefits to workers under the Employees’ Provident Fund (EPF) and other labour laws. • Legal Aid: The Indian judiciary has also taken several initiatives to provide legal aid and assistance to workers who are unable to afford legal representation. Several free legal aid programs have been established to help workers understand their rights and obtain redress in case of labour law violations.

• Guidelines for Employers: The judiciary has also issued several guidelines for employers to ensure compliance with labour laws. • For instance, the Supreme Court of India has issued guidelines for the effective implementation of minimum wage laws and for the prevention of sexual harassment in the workplace. • Speedy Redressal of Labour Disputes: The Indian judiciary has taken steps to expedite the resolution of labour disputes. The Industrial Disputes Act, 1947 provides for the establishment of labour courts and industrial tribunals to resolve disputes related to wages, employment conditions, and other labourrelated matters.

Protection of Workers’ Rights: The judiciary has also been proactive in protecting workers’ rights. For instance, the Supreme Court has issued severalorders to protect the rights of workers in the unorganized sector and to prevent the exploitation of child labour. Overall, the Indian judiciary has played a crucial role in implementing and enforcing labour laws in the country, and has taken several initiatives to protect the rights of workers and ensure compliance with labour laws.

3.5. ROLE

OF THE SUPREME COURT

IN ENFORCEMENT

OF

PROGRESSIVE LABOUR LAWS IN INDIA

Over the years, the Supreme Court (“SC”) has played a pivotal role in the enforcement of labour laws in India, achieving industrial harmony and stimulating cooperation between employers and employees. There have been numerous instances wherein judicial activism, in light of glaring legislative inadequacies, has ensured the enforcement of labour laws in India. Some of these instances shall be discussed below. Before the landmark judgment in the case of Bangalore Water Supply & Sewerage Board v. A. Rajappa, (“BWSSB”), several disputes arose relating to the definition of the term ‘industry’ under the Industrial Disputes Act, 1947 (“IDA”) and whether or not establishments belonging to the categories of hospitals, educational and research institutions, clubs, governmental departments, etc. came within the ambit of ‘industry’ continued to baffle the courts.

Owing to this, the SC in the BWSSB case stepped in and expanded the definition of ‘industry’ to incorporate all establishments that involved an employer-employee relationship and that were otherwise kept outside the scope of the definition of ‘industry’ owing to the activities performed by them and the objectives pursued by them. The SC, therefore, formulated a ‘Triple Test’ to determine whether an enterprise is an ‘industry’ or not. According to this test, an enterprise is an ‘industry’ if: (i) It performs a systematic activity. (ii) Involves the cooperation between employers and employees. (iii) Is undertaken through the production and/or distribution of goods or services to further human wants and needs.

Thereafter, this test was borrowed and incorporated into the definition of ‘industry’ under Section 2(j) of the IDA through an amendment in 1982 and later on incorporated in section 2(p) of the Industrial Relations Code, 2020 (“Code”) as well. Therefore, now the law that stands is that all establishments, irrespective of the objectives pursued by

them, would be termed as an industry as long as they satisfy the triple test. Further, in the case of Agriculture Produce Market Committee v. Ashok Harikuni, the issue that arose before the SC was whether a market committee established under the state act and functioning without any profit motive would be termed as an ‘industry’. Herein, the court observed that mere statutory status of a corporation would not make an enterprise cease to be an industry. The court held that only the inalienable functions of government would fall outside the ambit of industry and as long as a function can be performed by private individuals, it would not be termed as a state function. Further, The Court posited that even though government funding towards welfare activities is an essential function of the state, it can be performed by private individuals as well.

Therefore, while interpreting whether a body created under a statute is an industry or not, it is pertinent to discern the pith and substance of the statute. Hence, this judgment ensured that establishments are not able to escape liability under the IDA merely because of the manner in which it chooses to exercise its function, or due to the power conferred upon it. The SC has also played a vital role in determining who can be a ‘workman’ under the IDA. The definition of ‘workman’, as defined under Section 2(s) of the IDA, has been amended several times to widen its scope. The existence of an employer-employee relationship is a precursor for the determination of ‘workman’ under the IDA. For a person to bring a case within the definition of ‘workman’, he must prove that he is employed under the contract of service rather than a contract for service.

The SC, over the years, has formulated different tests including the supervision and control test, the economic control test, the integration test etc. to determine the existence of an employer-employee relationship. The court in the case of Workmen of Nilgiri Coop. Market Society Ltd. vs State of Tamil Nadu opined that a single test is not sufficient to determine the existence of an employer-employee relationship. Therefore, a more holistic approach must be adopted, and all these tests must be considered while making such determination. These tests have been formulated to ensure that the employers of an establishment are not able to camouflage themselves as independent contractors to escape the clutches of law. In D. C. Dewan Mohideen Sahib & Sons v.

Industrial Tribunal, Madras is one such case wherein the SC was successful in bringing the workers of the establishment within the scope of a contract of service despite the employer of the establishment trying to prove otherwise. The issue that arose, in this case, was whether the people employed

by contractors to work in the beedi concerns were ‘workman’ under the IDA. The SC, while applying the supervision and control test, held the people to be ‘workman’ and stated that these contractors were merely the branch managers of the management of the establishment, and therefore the relationship of an employer and an employee existed between them. The Court observed that the so-called independent contractors did not, in reality, have any independence as they had no right to insist upon the management to supply them with raw materials in case the latter chose otherwise, and the management had the right to reject the beedis in case they failed to meet standards. This means that the management had full supervision and control over the operations of the workers.

In essence, the system of employing a contractor who then further employed nine people to work in the establishment was merely a disguise to avoid the rules laid out in the law. Hence, the SC managed to protect innocent workers from victimization and exploitation by their employers who could misuse the loopholes in law to the disadvantage of workers. With respect to the right of workers to protest against injustices caused by the actions of their employers. The SC in the case of All India Bank Employees v. National Industrial Tribunal, held that a strike, while legal under the IDA, does not grant any fundamental right to participate in it. Further, the SC,in the case of Kameshwar Prasad v. State of Bihar, spelt out the concept of ‘demonstrations’ for the protection of the right of workers to protest.

There is no provision under the labour laws which define the term ‘demonstration’ in contrast to the term ‘strike’ that has been defined under section 2(zk) of the Code. In the Kameshwar Prasad case, the respondent had placed an outright ban on government servants from participating in either demonstrations or strikes. The SC in this case defined demonstrations as “a visible manifestation of the feelings or sentiments of an individual or a group”. Further, the court clarified that demonstrations such as dharna, gherao, etc. , are a form of speech and expression and thus, if a particular form of demonstration falls within the ambit of Article 19(1)(a) and Article 19(1)(b) of the Constitution of India (“Constitution”), then it is the fundamental right of a person to participate in it.

However, the court further noted that the demonstrations must be peacefully conducted outside work hours without any breach of tranquillity or disorder. If the demonstrations involve any sort of violence, they cannot avail the protection under Article 19 of the Constitution. Hence, conducting peaceful demonstrations is a fundamental right of citizens as long as they are not hindering the operations of the employer. Therefore, no person, be it a government employee or any other employee, can be banned from participating in peaceful demonstrations to protest for the

protection of their interests. This was a leap in the protection of rights of workers and thereby, the enforcement of labour laws in India.

3.6. ROLE OF JUDICIARY IN PROTECTING CHILD LABOUR

Every day, a large number of Indian children are subjected to bonded labour and forced employment, depriving them of their childhood, education and overall mental and physical development. According to the 2011 census released by the Government of India, the number of children working in the 5–14-year age group stood at 43. 53 lakhs. While this is an improvement from the 2001 census figure of 1. 26 crores, the structural problems that act as an impetus to child labour such as poverty and poor enforcement and regulation, remain.

The Constitution of India has several articles that protect the rights of children, which include Article 24 that prohibits the employment of children under the age of 14 in factories and other hazardous employments, Article 21A says that the state shall provide free and compulsory education to all children of the age of six to fourteen, and Article 39 clauses (e) and (f) that say the State shall safeguard health of children and offer opportunities and education to them. Parliament has supplemented the safeguard of child rights by passing several legislations to combat the problem, which include among them the Factories Act of

1948 which prohibits the employment of children below the age of 14 years in any

factory, the Mines Act of 1952 which prohibits the employment of children below 18 years of age in a mine, and the Child Labour (Prohibition and Regulation) Act of 1986 (amended in 2012) which prevents children below the age of 14 being employed anywhere, except in non-hazardous family enterprises or the entertainment industry. Historically, the Judiciary has played a vital role in guarding the constitution, and it has played a similarly integral role in enforcing child rights. There have been several important cases where the judiciary has played a proactive role in preventing the employment of children and forced labour. In the case of People’s Union for Democratic Rights v. Union of India, the Supreme Court observed that it was a clear breach of Article 24 of the Constitution to employ children below the age of 14 in construction work.

The court proceeded to prohibit any kind of violation of Articles 23 and 24 and further laid emphasis on strict observance of fundamental rights by private individuals and spoke strongly against any form of forced labour. The Supreme Court, in the case of Bandhua Mukti Morcha v. Union of India & Others, took into cognizance the employment of children in the carpet manufacturing

industry in Mirzapur, Uttar Pradesh. It instructed the district magistrate to conduct raids, and subsequently got 144 children, who were under the forced custody of the owners, released. In the case of Sheela Barse & Others v. Union of India, under the direction of the Supreme Court, children who were being exposed to chemical fumes and coal dust from working near furnaces in the glass industry were released from their employment.

CONCLUSION

Consequently, constitution, declarations, conferences, conventions and recommendations are focusing on built and develop new and better international labour standards; protect propagate human and labour rights, eliminate discrimination and child labour. In order to achieve these goals, raise awareness and to create bridges between states, employers and employees, ILO has crucial and unquestionable place owing to its power on member states. Considering the efficiency of international labour norms, it should also be remembered that ILO regulatory actions include voluntary adoption of global labour standards which creates binding obligations for States in turn.

This approach was preferred to the approach initially intended by founders of the ILO who would have given the International Labor Conference the power, subject to the right to “opt-off” within certain time limits, to adopt binding international labour legislation directly. The retained solution is a realistic approach to labour legislation, but it means that actions related to standard ILO depend in large measure on Member States’ willingness and capacity to meet standard commitments. As Member States experience economic crises, successful enforcement of the universal labour standards can be affected. Generally speaking, globalization has affected the willingness of States to assume their position under the ILO Constitution under the pressure of international competition.

It is a priority for ILO in these circumstances to ensure that it has the institutional capacity to: establish substantive standards; retain them up-to-date, including adaptation to evolving needs, expectations, activities and technical conditions as appropriate; use all the diverse and complementary mechanisms available in its Constitution in line with their effectiveness, and ensure that they are effective. In the framework of the Social Justice Declaration, the governing board is currently discussing a process for updating standards to reinvigorate and reinforce the ILO body of standards, ensuring that they adequately protect all workers in today’s workplace, suggesting an efficient implementation.