Migrant workmen have several legal rights too

Anshul Prakash and Kruthi N Murthy

Migration of persons from one place to another in search of better employment opportunities, better living conditions and higher wages, is a common phenomenon across the world. The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act 1979 (ISMW Act) stipulates and regulates the conditions of service of inter-state migrant workmen (Migrant Workman).

A migrant workman is defined to mean any person who is recruited by a contractor in one state, under an agreement or otherwise, for employment in an establishment in another state, whether with or without the knowledge of the principal employer in relation to such establishment.

Every establishment engaging five or more migrant workmen and every contractor who employs or employed five or more migrant workmen during the preceding 12 months are required to comply with the provisions of the ISMW Act.

• Registration and License: As per the provisions of the ISMW Act, every establishment, prior to engaging migrant workmen, is required to obtain a certificate of registration. Further, every contractor is required to obtain a license from the registering officers appointed by the appropriate government.

• Wages and Other Conditions of Service: If the migrant workmen perform the same kind of work as is being performed by locally employed workmen of that establishment, the wage rates, holiday entitlements, hours of work and other conditions of service of migrant workmen have to the same as others. For other migrant workmen, the appropriate government can prescribe the service conditions, in compliance with the Minimum Wages Act 1948 (MW Act). The liability for payment of wages to the migrant workmen is primarily of the contractor, failing which, the principal employer is liable for payment of wages to the migrant workmen. However, the principal employer may recover such amount from the contractor.

• Displacement Allowance and Journey Allowance: In addition to the wages or amounts payable to them, at the time of recruitment, migrant workmen are also entitled to:
  a) ‘displacement allowance’ amounting to 50 percent of the monthly wages payable to such migrant workmen, or Rs 75, whichever is higher;b) ‘journey allowance’ for onward and return journeys, which cannot be less than the fare from the place of residence of the migrant workmen in his state to the place of work.

• Payment of Wages Act 1936, MW Act and Equal Remuneration Act 1976: Timely payment of wages to the migrant workmen is the duty of the contractor, and these payments have to be made in accordance with the timelines, minimum rates of wages and other conditions.

• Employees Compensation Act 1923, Employees State Insurance Act 1948 (ESI Act) and Maternity Benefit Act 1961: Migrant workmen are also entitled to compensation and benefits provided to employees in case of sickness and employment injury or death. Female migrant workers are entitled to paid maternity leave, maternity bonus and other benefits as provided by the ESI Act or Maternity Benefit Act 1961.

• Employees Provident Fund and Miscellaneous Provisions Act 1952: Migrant workmen are eligible for social security contributions under the institution of provident fund, pension fund and deposit linked insurance fund.

• Industrial Disputes Act 1947: A migrant workman can raise an industrial dispute before the appropriate authorities either in the host state where the establishment is situated or in the home state (if he has returned to home state after the completion of his employment).

• Trade Unions Act 1926: Migrant workmen can form trade unions, or become members of any trade union, subject to the Trade Unions Act 1926.

Conclusion 

While the ISMW Act seeks to provide adequate protection to migrant workmen, it recognises only those workers who are engaged by a contractor as inter-state migrant workers. Workers migrating on their own and employed outside their home state are not covered under the purview of the ISMW Act. There is no provision in the ISMW Act to provide security for tenure of employment. Further, a migrant workman is required to be registered in his home as well as host state, which has often proved to be a stumbling block in getting the benefits under the ISMW Act. Therefore, the definition of 'migrant workmen' in the ISMW Act is discriminatory in terms of extending the benefits.

Prakash is Partner and Murthy is Associate, Khaitan & Co.