Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the Government’s detailed report, and the observations made by the Centre of Indian Trade Unions (CITU) concerning the application of the Convention, which were received on 25 August 2008, and those of the Bharatiya Mazdoor Sangh (BMS) union, which were attached to the Government’s report. It notes the allegations by the BMS of violations of the legislation on hours of work in certain sectors, such as information technology, and in special economic zones. The Committee further notes the CITU’s indication that the provisions of the Factories Act establishing the 48-hour working week are amongst those most frequently violated. It also notes that, according to the CITU, the Government is reported to have the intention of raising hours of work to 12 hours a day and 60 hours a week. The Committee requests the Government to provide its comments in reply to the observations made by these two trade union organizations.

Article 6 of the Convention. Permanent exceptions – essentially intermittent work – railways. Further to its previous comments, the Committee notes the adoption of the Railway Servants (Hours of Work and Period of Rest) Rules, 2005, the provisions of which reflect the recommendations of the Railway Labour Tribunal, 1969, a copy of which was attached to the Government’s report. It notes that Rule 7(3) establishes the criteria under which work may be classified as “essentially intermittent”. It also notes that Rule 3(1) provides that the power to declare employment essentially intermittent is vested in the Head of the Railway Administration and that, in accordance with Rule 3(4), any railway servant aggrieved by such a decision may appeal to the Regional Labour Commissioner, and then to the Ministry of Labour. The Committee further notes that, under the terms of Rule 8, the standard hours of duty for these employees are 48 hours a week with the possibility of 12 or 24 additional hours, according to the type of work, as well as three hours of preparatory or complementary work, making an absolute maximum of 75 hours a week, as established in section 132 of the Railways Act, 1989.

Temporary exceptions – railways. The Committee notes that Rule 9 of the Railway Servants (Hours of Work and Period of Rest) Rules, 2005, empowers the head of a railway administration to make temporary exceptions from the provisions of the Railways Act, 1989, in respect of hours of work for an employee or class of employees in the railways in the cases envisaged in sections 132(4) and 133(3) of the Railways Act, 1989. It notes that these sections authorize such exceptions where they are considered necessary to avoid serious interference with the ordinary working of the railway or in cases of accident, actual or threatened, or when urgent work is required to be done, or in any emergency which could not have been foreseen or prevented, or in other cases of exceptional pressure of work.

The Committee observes that the Government has not replied to its previous comment concerning any consultations held with employers’ and workers’ organizations concerning the introduction of the permanent and temporary exceptions described above. The Committee therefore once again requests the Government to provide fuller information on any consultations held with the organizations of employers and workers concerned prior to the adoption of the Railway Servants (Hours of Work and Period of Rest) Rules, 2005, as required by Article 6 of the Convention when permanent or temporary exceptions are made to the normal rules respecting hours of work.

Article 10. Special provisions applicable to India. As the clause set out in this Article was adopted prior to India’s independence, and with reference to the Government’s express desire to accept the principle of the 48-hour working week, the Committee once again expresses the hope that the Government will consider favourably the possibility of making a declaration accepting the application of all of the provisions of the Convention. Such an initiative would be particularly desirable since the normal working week in factories and mines has already been set at 48 hours. It would be grateful if the Government would indicate its intentions in this regard.

Part IV of the report form. Court decisions. The Committee notes that, according to the information contained in the Government’s report, the prosecutions against M/S Shital Traders are not related to failure to comply with the legal provisions relating to hours of work. With regard to the case against M/S Model Construction (P) Ltd, Goa, it notes the Government’s indications that the case is in its final stages. The Committee requests the Government to provide a copy of the court’s ruling when it is handed down. The Government is also requested to provide, where appropriate, copies of other court decisions involving questions of principle relating to the application of the Convention. In this respect, the Committee notes that a number of seminars have been organized jointly by high courts and the International Labour Office on the theme of promoting social justice through international labour standards. It hopes that the development of this type of activity will facilitate the application of ILO standards, including Convention No. 1, by the national courts.

The Committee is raising other points in a request addressed directly to the Government.

[The Government is asked to reply in detail to the present comments in 2010.]