Hours of Work (Industry) Convention, 1919 (No. 1) - India (RATIFICATION: 1921)

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Article 6(2) of the Convention. Permanent and temporary exceptions – Prior consultations with employers’ and workers’ organizations. Further to its previous comments regarding sections 64 and 65 of the Factories Act, the Committee notes the Government’s indications that while no provision is made for consultation of employers’ and workers’ organizations for the determination of cases in which permanent or temporary exceptions to the rules respecting normal hours of work may be allowed, various tripartite committees are constituted and consulted in practice prior to amendments to the Act. However, the Committee wishes to recall that under Article 6(2) of the Convention, regulations by the public authority determining permanent or temporary exceptions to the normal hours of work must be made only after consultation with the organizations of employers and workers concerned. The Committee therefore requests the Government to take the necessary measures to ensure that the Factories Act expressly provides for consultations with the social partners prior to introducing any permanent or temporary exceptions to normal hours of work, as required under this Article of the Convention.

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Article 1 of the Convention. Scope of application. The Committee notes the statistical data provided by the Government concerning the number of units and jobs covered by section 85 of the Factories Act, 1951, under the terms of which state governments may declare that all or some of the provisions of the Act are applicable to factories which are normally excluded from its scope. The Committee would also be grateful to be provided with the text of the regulations adopted by certain state governments under this section and it requests the Government to provide copies to the Office. The Committee also reiterates its request to the Government concerning the limits on normal daily and weekly hours of work which are applicable to premises that are not covered by the Factories Act.

Article 5. Averaging of hours of work. Exceptional cases. The Committee notes the Government’s indications concerning the reasons for which the averaging of hours of work has been adopted. However, it recalls that its previous comment related to the criteria used for the averaging of hours of work for railway employees who are not in the running staff, operating staff, shift workers and others, whose work is connected with that of any of the above categories. The Committee therefore once again requests the Government to provide the information available on the criteria used for this purpose.

Article 6. Permanent and temporary exceptions. The Committee notes the information provided by the Government concerning the consultation of employers’ and workers’ organizations in the context of the application of the Mines Act, 1952. It notes the Government’s indications that such consultations are also held in the framework of the implementation of the Factories Act, 1948. The Committee, however, observes that section 115 of the Factories Act, to which the Government refers, concerns the publication of regulations under the Act and not to the consultation procedure. The Committee therefore requests the Government to indicate which provisions envisage the consultation of employers’ and workers’ organizations for the determination of cases in which permanent or temporary exceptions may be allowed to the rules respecting normal hours of work in premises to which the Factories Act applies.

Part IV of the report form. Court decisions. The Committee notes that, according to the information contained in the Government’s report, the court hearing in the procedure involving the enterprise M/S Model Construction (P) Ltd in the state of Goa was due to be held in June 2010. The Committee requests the Government to provide a copy of the decision in this case when it has been handed down. The Government is also requested to provide copies of any other court decisions involving questions of principle relating to the application of the Convention.

Part V. Application in practice. The Committee notes the information provided by the Government concerning the number of factories and workers employed therein, and the number of factories inspected. It also notes the information concerning the number of workers who are covered by the Mines Act and the Government’s indication that no contraventions of section 30(1) of the Mines Act relating to the limitation of working hours have been reported. The Committee requests the Government to continue providing general information on the manner in which the Convention is applied in practice, including copies of the reports of the inspection services and information on the number and nature of the contraventions reported to the relevant provisions of the national legislation, and the action taken as a result.

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Article 2 of the Convention. Limitations on daily and weekly working hours. The Committee notes the Government’s reply to its previous comments concerning the observations made by the Centre of Indian Trade Unions (CITU) and the Bharatiya Mazdoor Sangh (BMS) union, concerning the application of the Convention. It notes the Government’s indications that the information technology sector is not governed by the Factories Act, but by the provisions of the Shop and Establishment Acts of the respective state governments. The Committee wishes to specify that the comments of the above trade union organizations referred to two different points: firstly, the BMS alleged the existence of violations of the legislation on working time in certain sectors, and particularly information technology, without referring to the Factories Act; second, the CITU alleged, without mentioning any specific sector, that the provisions of the Factories Act limiting weekly working hours to 48 were among those most frequently violated. The Committee therefore once again requests the Government to reply to the observations made by the above trade union organizations on the two points indicated above. It also requests the Government to provide information on any complaints that may have been filed under the Factories Act and results of those complaints.

With regard to violations of the legislation on working time in Special Economic Zones, which were also alleged by the BMS, the Committee notes the Government’s indications that it has sought information from the various state governments. The Committee requests the Government to provide the Office with any information that is received concerning any violations of the legislation on working time in the Special Economic Zones.

Furthermore, with regard to the possible revision of the legislation to raise the limits on working hours to 12 in the day and 60 in the week, the Committee notes the Government’s indications that there is no information on such an initiative. The Committee, however, observes that the Economic Survey for 2008–09, published by the Ministry of Finance, makes explicit reference to the need to amend the Factories Act as indicated above. The Committee therefore requests the Government to provide additional clarification in this regard.

Finally, the Committee draws the Government’s attention to the conclusions of the ILO Tripartite Meeting of Experts on Working Time Arrangements, held in October 2011, according to which the provisions of existing ILO standards relating to daily and weekly hours of work, weekly rest, paid annual leave, part time and night work, remain relevant in the twenty-first century, and should be promoted in order to facilitate decent work. The Experts also emphasized the importance of working time, its regulation, and organization and management, to: (a) workers and their health and well-being, including opportunities for balancing working and non-work time; (b) the productivity and competitiveness of enterprises; and (c) effective responses to economic and labour market crises.

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

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Article 1 of the Convention. Scope of application. The Committee notes that, under the terms of section 2(m), the Factories Act, 1948, only applies to premises with at least ten workers operating with the aid of power, or 20 workers without the aid of power. It further notes that section 85 of the Act empowers State Governments to declare that all or any of the provisions of the Act shall apply to factories that are excluded from its scope under the above provision. The Committee also notes the Government’s indication that certain State Governments have extended the scope of application of the Act to all factories and products, regardless of the number of workers. It would be grateful if the Government would provide copies of any relevant regulations adopted under section 85 of the Factories Act. The Committee also requests the Government to indicate the rules relating to hours of work which are applicable to premises that are not currently covered by the Act and to provide an estimate of the number of workers who are excluded from its coverage.

Article 5. Averaging of hours of work. Exceptional cases. The Committee notes that Rule 10(2) of the Railway Servants (Hours of Work and Period of Rest) Rules, 2005, allows the averaging of hours of work for running staff, operating staff, shift workers and others whose work is connected with that of any of the above categories. With regard to this latter category of workers, the Committee notes that, according to the indications in the Government’s report, the concerned administration determines whether or not the averaging of hours of work should be permitted in light of the principles of Article 5 of the Convention. The Committee requests the Government to provide the information available to it on the criteria used by the concerned administrations for this purpose.

Article 6. Permanent and temporary exceptions. The Committee notes that sections 51 and 54 of the Factories Act establish the 48-hour working week and daily hours of work as nine in any day. It further notes that section 59 of the Act establishes the additional wages applicable when these limits are exceeded. Furthermore, the Committee notes the indications in the Government’s report that exceptions from normal hours of work have been included in sections 64 and 65 of the Factories Act and in Model Rule No. 109. Noting that none of these provisions require the holding of prior consultations with the employers’ and workers’ organizations concerned, as required by this Article of the Convention, the Committee requests the Government to indicate the manner in which such consultations are ensured when changes are made to the enumeration of the precise cases in which permanent or temporary exceptions are allowed to the normal limits on hours of work.

Part VI of the report form. Application in practice. Referring to the observations made by the Centre of Indian Trade Unions and the Bharatiya Mazdoor Sangh (BMS) union concerning the application of the Convention, the Committee requests the Government to provide general information on the manner in which the Convention is applied in practice including, where possible, statistics on the number of workers covered by the relevant legislation, as well as the reports of the inspection services, including information on the number and nature of the contraventions reported and the measures adopted to resolve them.

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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.]

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The Committee notes the Government’s report and the explanations provided in reply to its previous observation. It wishes to raise the following points in this regard.

Article 6 of the Convention. Permanent exceptions. Referring to its previous comments following the observation made by Central Railway Mazadoor Sangh, the Committee notes that, by virtue of section 132(1) of the Railways Act of 1989, a railway servant whose employment is essentially intermittent may not be employed for more than 75 hours in any week. Moreover, the Committee notes that, according to the indications supplied by the Government in its latest report, the Hours of Employment Regulations were adopted following the recommendations made by the Railway Labour Tribunal, 1969. The Government also specifies that this Tribunal was established following an agreement concluded between the trade union organizations and the management of the railways. The Government therefore considers that the Tribunal’s recommendations ensue from an agreement between the trade union organizations and the Government.

The Committee recalls, however, that the regulations establishing permanent exceptions to the normal duration of work must be made after consultations carried out directly with employers’ and workers’ organizations and must specifically address the issues dealt with as a part of those consultations. Consequently, it requests the Government to indicate whether these organizations have been effectively consulted on the setting of a 75-hour limit to the duration of the working week for railway servants whose work is essentially intermittent. The Committee considers that the agreement concluded between the trade union organizations and the management of the railway regarding the establishment of the Railway Labour Tribunal does not seem to suffice in this regard. The Government is also invited to forward a copy of the regulation on the hours of work and the recommendations adopted by the abovementioned tribunal, which have, as yet, not been made available to the Office.

Temporary exceptions. The Committee notes that, by virtue of section 132(4) of the Railways Act of 1989, the competent authority may make temporary exceptions to the duration of the normal working week if it is of the opinion that such exceptions are 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, in any emergency which could not have been foreseen or prevented; or in other cases of exceptional pressure of work. The Committee draws the Government’s attention to the fact that the introduction of such temporary exceptions requires, as in the case of the permanent exceptions examined above, consultations with employers’ and workers’ organizations. It therefore requests the Government to indicate whether and in which manner consultations have been carried out.

Article 10. Special provisions applicable to India. The Committee notes the Government’s new declaration stating that the use of the term "British India" in Article 10 of the Convention is highly objectionable. The Committee appreciates the concerns and understands that the Office is currently studying the possibility of a suitable arrangement which is both pragmatic and in line with the constitutional procedures of the Organization. The Committee hopes that the Government will soon be in a position to accept, through a declaration, the application of all the provisions of the Convention in this regard, as has been suggested in the past.

Part IV of the report form. The Committee notes that, in its report of 1996, the Government indicated that, following an observation made by the Bijli Mazdour Panchayat organization, legal proceedings were launched in the Province of Gujarat against the enterprise M/S Shital Traders, accused of having employed certain workers for 12 hours a day without paying them overtime. The Committee requests the Government to provide information on the outcome of these proceedings. The Committee also notes that, according to the information forwarded by the Government in 2002 and 2003 concerning the legal proceedings launched against the enterprise M/S Model Construction (P) Ltd. in the Province of Goa, the courts have still not handed down a definite ruling. It therefore requests the Government to continue to keep the Office informed of any progress regarding these proceedings. The Government is invited to indicate in general whether courts have handed down rulings on questions of principle regarding the application of the Convention, and if so, to forward the text of these decisions.

Part V of the report form. The Committee requests the Government to provide general indications on the manner in which the Convention is applied in practice, providing, for example, labour inspectorate reports and, if possible, statistical data on the number of workers protected by the relevant legislation and the nature of the violations recorded.

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The Committee notes the information provided by the Government in January 1998 in relation to a communication addressed to the ILO in 1997 by the Mahabubnagar District Palamoori Contract Labour Union. It also notes a communication from the Centre of Indian Trade Unions (CITU) addressed to the ILO in July 1998. Finally, with reference to its previous observation, the Committee notes the latest report of the Government, which contains information in reply to its previous comments, as well as the observations of the CITU and the Government's responses on the issue of the hours of work in the rail transport sector and their conformity with the provisions of the Convention.

With reference to the observation that it made in 1993, the Committee recalls that the Central Railway Mazadour Sangh claims eight-hour shifts for cabinmen, levermen, pointsmen and guardsmen and states that these personnel, whose work has been classified as "essentially intermittent", are providing services for traffic which is ten times greater than at the time of the adoption of the rules concerning their working hours. The Committee requested the Government to transmit the results of the most recent job analyses concerning these groups of workers. In its latest report, the Government states that job analyses are undertaken for each category of workers upon request and adds, by way of illustration, that pointsmen at Ghoradogri Station in Nagpur Division have recently benefited from a reclassification of their work as increased pressure of work gave rise to an analysis of their jobs. Noting the examples of the job analyses provided by the Government, the Committee requests it to indicate the manner in which the organizations of employers and workers participate in these analysis and classification procedures. In this respect, it wishes to recall the obligation to consult the representative organizations set out in Article 6 of the Convention.

The Committee notes the exchange of communications between the Government and the ILO on the question of a modification to the wording of Article 10 of the Convention. In this respect, it requests the Government to indicate the action that it intends taking as a result, and whether it envisages adopting measures along the lines proposed by the ILO.

With reference to its direct request of 1994, in which it recalled the allegations made by the Calcutta Dock Workers' Union, to the effect that since 1982, the escorts and guards employed by Coal India Ltd. have been working continuously for 24 hours a day without any break, the Committee notes that the Government confines itself to indicating that the allegations are incorrect and that escorts and guards work in shifts according to schedules that are in accordance with the legislation. It requests it to indicate the legal provisions which are applicable in this respect and to specify the available information which enables it to establish that the allegations made by the Calcutta Dock Workers' Union are unfounded.

With regard to the action taken in the courts against an employer in the Goa region for the violation of the industrial legislation that is in force on the grounds of the conditions of employment accorded to workers from the Palamoori region, the Committee notes the information contained in a communication of April 1997 from the Mahabubnagar District Palamoori Contract Labour Union, as well as a communication from the Government to the ILO in January 1998 providing copies of the decisions of the judicial bodies concerned. It requests the Government to continue providing such information, where appropriate, in accordance with point V of the report form.

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The Committee notes the Government's report received in December 1997. It also notes the observation made by the Centre of Indian Trade Unions (CITU), supplied in the report. The Mahabubnagar District Palamoori Contract Labour Union sent an observation to the Office in April 1997 denouncing, inter alia, the 13-hour working day as well as the lack of a weekly rest day for the Palamoori workers in the Goa region. A copy of the communication was sent to the Government which has not, as yet, made any comments. The Committee intends to examine these matters at its 1998 Session.

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1. Further to its direct request of 1994, the Committee reminds the Government that it has not yet commented on the allegations of non-observance of the Convention made by the Calcutta Dock Workers' Union, to the effect that, since 1982, the escorts and guards employed by Coal India Ltd. have to work for 24 hours continuously without any break.

2. The Committee notes the communication from the Mahabubnagar District Palamoori Contract Labour Union to the effect that workers in the Palamoori district work 12 hours per day and that overtime is not remunerated at the proper rates. The Committee likewise notes the comments of the Bijli Mazdoor Panchayat which also complains of a 12-hour working day and the lack of proper overtime remuneration for the employees of the thermal power station belonging to the Gujarat Electricity Board. In its reply, the Government states that the working conditions which the Bijli Mazdoor Panchayat objected to affect not the workers at the thermal power station, but self-employed workers known as mukadams, who are under contract to the Shital Traders company to separate burnt coal ash from flowing water. They work an 8-hour day on average and the company pays them piece-work rates per ton of coal ash separated. The Government adds that the trade union has filed a complaint with the judicial court against Shital Traders for breach of the Factories Act, and a complaint on the same matter with the Gujarat High Court. The Committee requests the Government to keep the ILO informed of further action in this matter and to provide copies of any judgements or decisions handed down by the courts examining the cases.

3. Furthermore, the Committee recalls its observation of 1993 which read as follows:

The Committee notes that Chapter XIV of the Railways Act, 1989, contains the main rules for the working time of railroad personnel. It asks the Government to provide a copy of the provisions contained in Chapter XIV. The Committee further notes that the Government has initiated action to frame rules and subsidiary instructions in accordance with these provisions. It asks the Government to keep it fully informed of progress made in this respect.

The Committee notes the circular dated 13 April 1992 addressed to the general managers of the All Indian Railways, in which statutory hours of work for "essentially intermittent" work are set at 75 hours per week. The Government has supplied no information on consultations held with the organizations of employers and workers concerned before the adoption of these work schedules. The Committee would like to underline the importance of such consultations, required under Article 6, paragraph 2, of the Convention, and trusts that the Government will not fail to engage in such consultations when establishing work schedules for workers performing preparatory, complementary and essentially intermittent work.

In this connection, the Committee notes the comments of the Central Railway Mazadoor Sangh, requesting 8-hour shifts for cabinmen, levermen, pointsmen and gatemen. The Government indicates that their work was classified to be "essentially intermittent", with periods of inaction aggregating to six hours or more in a tour of 12 hours of duty. However, the Central Railway Mazadoor Sangh claims that they were servicing approximately 20 to 40 trains in 12 hours, i.e. a traffic ten times greater than it was when the British rules were adopted. The Committee would be grateful if the Government would provide the results of the most recent job analysis concerning this group of workers.

Lastly, the Committee notes, further to its previous observations, that the Government will soon take a decision in reply to the observations of the Bharatiya Mazadoor Sangh, which considered the special provisions contained in Article 10 to be discriminatory against India, and invited the Government to consider denouncing the Convention or to take an initiative aimed at revising it.

4. The Committee would be grateful if the Government would provide information on the points raised above.

The Government is asked to report in detail in 1997.

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The Committee notes the information from the Culcutta Dock Workers' Union to the effect that since 1982, the escorts and guards employed by Coal India Ltd have to work for 24 hours continuously without any break.

The comments were sent to the Government on 16 September 1993, but so far it has not submitted its observations on them.

The Committee would be grateful if the Government would provide information on this case at the earliest possible date so that an appropriate examination can be conducted of the above-mentioned union's allegations of non-observance of the Convention.

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The Committee notes the information in the Government's report, in reply to its earlier observation. In particular, it notes that Chapter XIV of the Railways Act, 1989, contains the main rules for the working time of railroad personnel. The Committee requests the Government to furnish a copy of the provisions contained in Chapter XIV. It further notes that the Government has initiated action to frame rules and subsidiary instructions in accordance with these provisions. The Committee requests the Government to keep it informed about all progress in establishing rules and subsidiary instructions.

The Committee also takes note of the circular dated 13 April 1992 addressed to the general managers of the All Indian Railways, in which statutory hours of work for "essentially intermittent" work are set to 75 hours per week. The Government has supplied no information on consultations with the organizations of employers and workers concerned before the adoption of these work schedules. The Committee would like to underline the importance of such consultations required under Article 6, paragraph 2, of the Convention and trusts that the Government will not fail to engage in such consultations when establishing work schedules for workers performing preparatory, complementary and essentially intermittent work.

In this connection, the Committee notes the comments of the "Central Railway Mazadoor Sangh" requesting eight-hour shifts for cabinmen, levermen, pointsmen and gatemen. The Government indicates that their work was classified to be "essentially intermittent", with periods of inaction aggregating to six hours or more in a tour of 12 hours of duty. However, the Central Railway Mazadoor Sangh claims that they were servicing approximately 20 to 40 trains in 12 hours, i.e. a traffic ten times more important than it was when the British rules were adopted. The Committee would be grateful if the Government would make available to it the results of the most recent job analysis concerning this group of workers.

Finally, the Committee notes, further to its previous observation, that the Government will soon take a decision in reply to the observations of the "Bharatiya Mazadoor Sangh" organization, which considered the special provisions contained in Article 10 of the Convention to be discriminatory against India, and invited the Government to consider denouncing the Convention or to take an initiative aimed at revising it.

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The Committee notes the information provided by the Government in its latest report, in reply to its earlier observation. In particular, it takes note of the circular dated 26 April 1985 addressed to the general managers of the railways, requesting them to ensure that running staff are not made to work beyond a reasonable limit.

The Committee considers that this circular, couched in general and imprecise terms, falls short of the requirements of Article 6 of the Convention. It recalls that, under that provision, regulations made by public authorities must determine the exceptions permitted to normal limits and the maximum of additional hours that may be allowed; the said regulations must be made only after consultation with the organisations of employers and workers concerned. The Committee hopes that the Government will, without delay, adopt such measures as may be required to give effect to those provisions of the Convention and that it will inform the ILO thereof forthwith.

Lastly, the Committee notes the observations made by the "Bharatiya Mazdoor Sangh" organisation, concerning the special provisions contained in Article 10 and inviting the Government to consider denouncing the Convention or taking an initiative aimed at revising it.