How a Genocide unleashed the power of Rwandan Women

Rwanda is a landlocked country in central eastern Africa reputed in recent years for its highest rate of women parliamentarians. The economy has been growing every year since the 1994 Genocide. But the secret to success here has had far less to do with the tranquil climate and fertile soil than with a group of people who have emerged as Rwanda’s most potent economic force: women.

The year 2010 marks 16 years since the genocide, when 800,000 people died during three months of apocalypse. In the meantime, the country has become conceivably the world’s leading example of how empowering women can fundamentally transform post-conflict economies and fight the cycle of poverty.

That is particularly underlined by how women have embarked in all sectors of business. In the capital city of Kigali, women work and increasingly become owners of shops, whereby women own 49.5 percent of shops in the Kigali central business district, according to the City women’s council.

But it is not only in Kigali that women are showing their know-how and the ability to lead. Deep down in eastern province near the Akagera national park lies a village of approximately 50,000 people called Ndego.

Most Ndego’s women, trying their hands at the business of farming for the first time, were by far the faster ‘students’. They showed more willingness than men, officials say, to embrace new techniques aimed at improving quality and profit.

The stride of female entrepreneurialism, playing out in Kigali and across Rwanda in industries from agribusiness to tourism, has proved to be a bonus for efforts to rebuild the nation and fight poverty. Women more than men invest profits in the family, refurbish homes, improve nutrition, increase savings rates and spend on children’s education, officials here said.

It shows a big shift in gender economics in Rwanda’s post-genocide society, one that is changing the way younger generations of males view their mothers and sisters while offering a powerful lesson for other developing nations struggling to rebuild from the ashes of conflict.

“Rwanda’s economy has risen up from the genocide and prospered greatly on the backs of our women,” said Agnes Matilda Kalibata, minister of agriculture. In that process, Rwanda has changed forever and we are becoming a nation that understands that there are enormous financial benefits to equality.

The path to female prosperity runs through a path of male shame, we first visited the home of Jacques Habimana, a fisherman whose fishing boat was seized by microfinance officials recently after he failed to pay on a $200 bank loan. “He spent the money on women and liquor,” said his loan officer, Alfred Rukundo.

Further up the road, we reach the house of Yvonne Mukarutamu. The 40-year-old widow of army officer and mother of four obtained a $100 loan from a well established microfinance scheme (Duterimbere) in 2007 with a plan to support her family. She paid back the loan within a year. Last year, she took out a $500 loan to open a graining mill for maize flour. Her business is earning the family a relatively sum of 650 a month.

“They say that women care more about the family, but I do not know if that is the reality,” Mukarutamu said. “I think it has more to do with the one’s control. We know how to survive when men despair.”

Maybe it should come as no surprise that women have been solution in reconstructing Rwanda. In the effort to finance the reduction of poverty in the developing world, many leading experts said that women simply make better investments.

In India’s great economic transformation of the past 17 years, states that have the highest percentage of women in the labour force have grown the fastest as well as had the largest reductions in poverty, according to the World Bank.

Testing ground

For the most horrible reasons, Rwanda became a testing ground for such theories after the 1994 genocide. The massacre of ethnic Tutsis and moderate Hutus by Hutu militias, and the resulting reprisal, left Rwanda with a population that was 60 percent female and 40 percent male by the time the dead were buried.

Several studies have found that between 250,000 and 500,000 girls and women were sexually abused. Many married women also suffered the loss of their men, finding themselves in the role of the bread-earners who also had to care for children who had lost their parents during the genocide.

With thousands more men jailed for war crimes or living as refugees in neighboring Congo, women, at first by default, took on roles in business and politics. Although women had long enjoyed a relatively higher social status in Rwanda, women here still had weak property rights, and female entrepreneurs were rare if not non- existent.

That changed rapidly particularly in agriculture, where many women were required to take over farms. They found a partner in the barrage of foreign organizations that rushed into Rwanda following the genocide.

The recognition that reforms were required at all levels of society had dawned on the government even before the UN Security Resolution (UNSCR) 1325 was adopted. In fact, by 1999, reforms were passed enabling women to inherit property something that proved vitally important to female farmers.

At the same time, women began rising to higher ranks of political power. Today they hold some 55 percent of the seats in Rwanda’s parliament, the highest percentage in the world. They also account for 40 percent of President Paul Kagame’s cabinet, holding the top jobs in the ministries of commerce, agriculture, infrastructure, foreign affairs.

Resolution 1325 was adopted unanimously by the UN Security Council in 2000 with a view to enabling a greater participation of women at all levels of institutional prevention, management and resolution of conflicts and the special protection of girls and women from sexual and other violence. Rwanda is one of the few countries that feels particularly committed to the resolution. In May, the government tabled an action plan to implement the resolution.

Success in economics mirrored the rise of women in politics. Today, 43 percent of Rwandan businesses are owned by women compared for instance with 18 percent in Congo. Rwanda has the second-highest ratio of female entrepreneurs in Africa, behind Ghana with 44 percent, according to the World Bank.

Fast recovery

At the same time, Rwanda has engineered a surprisingly fast economic recovery. After falling into destruction in 1994, with many farms and businesses deserted, damaged or destroyed, Rwanda’s economy has since tripled in size and has grown at an average rate of 6 percent since 2004.

Michel Murindahabi, Ndego coffee producer’s executive director, said that male coffee growers in the cooperative have been too rigid in their ways. “They keep saying, ‘We’ve done it our way all our lives, our fathers and grandfathers have done it this way, so why should I change and use your way to grow coffee now?’.”

He said: “The women are different. They have not done it before, so they are adapting and growing the better-quality coffee. That also means they are making more money than the men.”

Abena Mukamana is a case in point. Now employing six workers, she is producing four times as much coffee as her father and husband did. They sold their poorer-quality beans for local consumption. Her finer grade is largely for export, roasted overseas and sold in coffee shops and specialty stores around the world.

“I’m proud of this,” says Mukamana. “I would never have thought I would be in a situation like this.” Her total family income is five times what it was then — income she has used to improve family life. She renovated the family home, a modest space of plain cement walls.

“I think that now, boys and girls are different than they were,” said Patrick Shema, a junior in high school. “Today, women are in business; before, if a woman had some money, she would have to give it to the man. They could not compete against a man. But now, they are competing and doing better.”

Perhaps more important for Mukamana, a woman who was only educated through primary school, is that Alice Mukakalisa, 19, and her oldest female charge, is set to graduate from high school this year. Mukamana has promised to pay for her higher education where Alice hopes to become an accountant.

Nevertheless, by Western standards, women still have a long way to go in Rwanda. Many of the women in Ndego, whose husbands are alive, are culturally expected to ask their permission before engaging in any form of business. But some of the women who have inherited land from genocide victims have been able to use profits from farming or renting that land to gain a measure of financial independence.

By all accounts, initiatives by Rwanda’s women are providing great encouragement to “women from other parts of Africa, (who) are taking on more and more leadership,” says Dr. Karambu Ringera, the founder of International Peace Initiatives, a global network of individuals and organizations seeking innovative and sustainable methods of overcoming the devastation of disease, conflict, and poverty in the world today through education, enterprise and empowerment.

* Hope Mbabazi is a Rwandan journalist.

Labor Reforms - 3 New bill codes to replace the old Labor Laws

Issues for Consideration:

Labour Codes – Three Bills on Occupational Safety and Health; Industrial Relations; and Social Security, 2020

Labour falls under the Concurrent List of the Constitution. Therefore, both Parliament and state legislatures can make laws regulating labour. The central government has stated that there are over 100 state and 40 central laws regulating various aspects of labour such as resolution of industrial disputes, working conditions, social security and wages.[1] The Second National Commission on Labour (2002) found existing legislation to be complex, with archaic provisions and inconsistent definitions.[2] To improve ease of compliance and ensure uniformity in labour laws, it recommended the consolidation of central labour laws into broader groups such as: (i) industrial relations, (ii) wages, (iii) social security, (iv) safety, and (v) welfare and working conditions.

In 2019, the Ministry of Labour and Employment introduced four Bills to consolidate 29 central laws. These Codes regulate: (i) Wages, (ii) Industrial Relations, (iii) Social Security, and (iv) Occupational Safety, Health and Working Conditions. While the Code on Wages, 2019 has been passed by Parliament, Bills on the other three areas were referred to the Standing Committee on Labour. The Standing Committee has submitted its report on all three Bills.[3] The government has replaced these Bills with new ones on September 19, 2020.

In this note, we first compare some significant changes made in the 2020 Bills as compared to the 2019 versions. Then we discuss some of the significant issues to consider regarding the three Bills.

PART A: Comparison of key provisions of the 2019 Bills and 2020 Bills

The following section discusses key changes in the 2019 Labour Bills (which have been withdrawn) and compares them with the new Labour Bills that the government introduced in Lok Sabha on September 19, 2020.

A.1 Common Changes across the 2020 Labour Codes

Appropriate government for Central PSUs: The 2019 Bills provided that the central government will act as the appropriate government for any central public sector undertaking (PSUs). The 2020 Bills add that the central government will continue to be the appropriate government for a central PSU even if the holding of the central government in that PSU becomes less than 50% post the commencement of the Bills.

Appropriate government for certain specified industries: The 2019 Bills specified that the central government would be the appropriate government for certain industries including railways, mines, telecom, and banking. The 2020 Bills add that the central government will also be the appropriate government for any “Controlled Industry” (that the government may specify). A Controlled Industry has been defined (in the Bills on Occupational Safety and Industrial Relations) as an industry on which the control of the Union has been declared by any Central Act in public interest.

Compounding of offences punishable with imprisonment: The 2019 Bills allowed for compounding (settling) of offences which were not punishable with imprisonment, or with imprisonment and fine, subject to certain conditions. Compounding was allowed for a sum of 50% of the maximum fine provided for the offence. The 2020 Bills on Industrial Relations and Social Security state that the offences punishable with imprisonment up to one year or with fine will be compoundable. For offences with fine, compounding is allowed for a sum of 50% of the maximum fine provided for the offence. For offences with imprisonment, compounding is allowed for a sum of 75%. In the Bill on Occupational Safety, 50% may be compounded where a ‘penalty’ is levied (e.g., for non-maintenance of registers) and 75% for ‘offences’ (e.g., for falsification of records). A.2 Code on Industrial Relations, 2020

Exemption

The appropriate government may exempt any new industrial establishment or class of establishments from the provisions of the Code in public interest. Standing Orders

Applicability of standing orders: The 2019 Bill provided that all industrial establishment with 100 workers or more must prepare standing orders on the matters listed in a Schedule to the Code. These matters relate to: (i) classification of workers, (ii) manner of informing workers about work hours, holidays, paydays, and wage rates, (iii) termination of employment, and (iv) grievance redressal mechanisms for workers. The 2020 Bill provides that this will apply to establishments with at least 300 workers.

Powers to the central government to revise the threshold: The 2019 Bill provided that the central government may make the provisions related to standing orders applicable to establishments with less than 100 workers through a notification. The 2020 Bill removes this provision.

Change in employee strength: The 2019 Bill provided that once an establishment is covered under the provisions related to standing orders, these provisions will continue to apply even if its employee strength reduces below the threshold (100 workers) at any time thereafter. The 2020 Bill removes this requirement. Closure, lay-off and retrenchment

Prior permission of the government: Under the 2019 Bill, an establishment having at least 100 workers was required to seek prior permission of the government before closure, lay-off, or retrenchment. Lay-off refers to an employer’s inability to continue giving employment to a worker in the face of adverse business conditions. Retrenchment refers to the termination of service of a worker for any reason other than disciplinary action. The 2020 Bill provides that prior permission will be required for establishments with at least 300 workers.

Powers to the central government to revise the threshold: The 2019 Bill empowered the government to increase or decrease the threshold for the establishments to seek prior permission before closure, lay-off or retrenchment. The 2020 Bill only allows an increase in the threshold through notification.

Negotiating Union and Council

Sole Negotiating Union: Under the 2019 Bill, if there were more than one registered trade union of workers functioning in an establishment, the trade union having more than 75% of the workers as members would be recognised as the sole negotiating union. The 2020 Bill lowers this threshold to 51% of workers.

Negotiation Council: In case no trade union is eligible as sole negotiating union, the 2019 Bill provided that a negotiating council will be formed consisting of representatives of unions that have at least 10% of the workers as members. The 2020 Bill raises this threshold to 20%. New provision under the Bill

Disputes relating to termination of individual worker: The 2020 Bill classifies any dispute in relation to discharge, dismissal, retrenchment, or otherwise termination of the services of an individual worker to be an industrial dispute. The worker may apply to the Industrial Tribunal for adjudication of the dispute. The worker may apply to the Tribunal 45 days after the application for the conciliation of the dispute was made. A.3 Code on Social Security, 2020

Social security entitlements

The 2019 Bill mandated social security for certain establishments, based on thresholds, such as the size of the establishment and income ceilings. The 2020 Bill states that the central government may, by notification, apply the Code to any establishment (subject to size-threshold as may be notified).

Further, under the 2019 Bill, the government could notify schemes for unorganised sector workers (such as home-based and self-employed workers), gig workers, and platform workers. Gig workers refer to workers outside the traditional employer-employee relationship. Platform workers are those who access organisations or individuals through an online platform and provide services or solve specific problems. The 2020 Bill makes the following changes for such workers:

Social security funds for unorganised workers, gig workers and platform workers: The 2019 Bill empowered the central government to set up social security funds for unorganised workers, gig workers and platform workers. The 2020 Bill states that the central government will set up such a fund. Further, state governments will also set up and administer separate social security funds for unorganised workers. The 2020 Bill also makes provisions for registration of all three categories of workers - unorganised workers, gig workers and platform workers.

National Social Security for gig workers and platform workers: The 2019 Bill provided for the establishment of a national and various state-level boards for administering schemes for unorganised sector workers. The 2020 Bill states that in addition to unorganised workers, the National Social Security Board may also act as the Board for the purposes of welfare of gig workers and platform workers and can recommend and monitor schemes for gig workers and platform workers. In such cases, the Board will comprise of a different set of members including: (i) five representatives of aggregators, nominated by the central government, (ii) five representatives of gig workers and platform workers, nominated by the central government, (iii) Director General of the ESIC, and (iv) five representatives of state governments.

Role of aggregators: The 2020 Bill clarifies that schemes for gig workers and platform workers may be funded through a combination of contributions from the central government, state governments, and aggregators. For this purpose, the Bill specifies a list of aggregators in Schedule 7. These mention nine categories including ride sharing services, food and grocery delivery services, content and media services, and e-marketplaces. Any contribution from such an aggregator may be at a rate notified by the government falling between 1-2% of the annual turnover of the aggregators. However, such contribution cannot exceed 5% of the amount paid or payable by an aggregator to gig workers and platform workers.

Changes in definitions: The 2020 Bill changes the definitions of certain terms in the Code. These include: (i) expanding the definition of ‘employees’ to include workers employed through contractors, (ii) expanding the definition of “inter-state migrant workers” to include self-employed workers from another state, (iii) expanding the definition of “platform worker” to additional categories of services or activities as may be notified by the government, (iv) expanding the definition of audio-visual productions to include films, web-based serials, talk shows, reality shows and sports shows, and (v), exempting construction works from the ambit of “building or other construction work” if the total cost of construction work exceeds Rs 50 lakhs (and if they employ more than a certain notified number of workers).

Term of eligibility for gratuity: Under the 2019 Bill, gratuity was payable on the termination of employment, if the employee has been in the organisation for at least five years. The 2020 Bill reduces the gratuity period from five years to three years for working journalists. Provisions on appeals, assessment, and offences and penalties

Appeals: Under the 2019 Bill, authorised officers were empowered to conduct inquiries and decide: (i) disputes regarding the applicability of the provisions of provident fund (PF) and employee state insurance (ESI) to certain establishments, and (ii) determine amounts due from employers under these heads. Any aggrieved party could file for a review of the order. The 2020 Bill removes the provisions for such review.

Determination of escaped amounts: Under the 2019 Bill, after passing orders, the authorized officer could, within five years of the order, reopen any case and pass further orders to re-determine the amounts due from the employer if he had reason to believe that: (i) certain amounts had escaped his notice because of failure of the employer to disclose relevant documents/facts, or (ii) certain amounts had escaped his determination because of information received consequently. The 2020 Bill removes this provision.

Offences and penalties: The 2020 Bill changes the penalties for certain offences. For example, the maximum imprisonment for obstructing an inspector from performing his duty has been reduced from one year to six months. Similarly, the penalty for unlawfully deducting the employer’s contribution from the employee’s wages has been changed from imprisonment of one year or fine of Rs 50,000 to only fine of Rs 50,000.

Other changes

Composition of boards for unorganised workers: The Bill expands the representation of central government officials in the National Social Security Board for unorganised workers from five members to 10 members (taking the total count of members from 37 in the 2019 Bill to 42 in the 2020 Bill). Similarly, the number of state government officials in the state Boards for unorganised workers has been increased from seven to 10 members (taking the total members from 31 in the 2019 Bill to 34 in the 2020 Bill).

Additional powers during an epidemic: The 2020 Bill adds new clauses which may become applicable in the cases of an epidemic. For example, the central government may defer or reduce the employer’s or employee’s contributions (under PF and ESI) for a period of up to three months in the case of a pandemic, endemic, or national disaster.

A.4 Code on Occupational Safety, Health and Working Conditions, 2020

Exemption

The 2019 Bill permitted the appropriate government to exempt any establishment or class of establishment from any provisions of the Code. The 2020 Bill empowers the state government to exempt any new factory from the provisions of the Code in order to create more economic activity and employment

. Threshold for coverage of establishments

Factory: The 2019 Bill defined a factory as any premises where manufacturing process is carried out and it employs more than: (i) 10 workers, if the process is carried out using power, or (ii) 20 workers, if it is carried out without using power. This was same as the Factories Act, 1948, which is being subsumed by the Bill. The 2020 Code increases the threshold to: (i) 20 workers for premises where the manufacturing process is carried out using power, and (ii) 40 workers for premises where it is carried out without using power.

The 2019 Bill excluded mines from the definition of a factory. The 2020 Bill removes this provision.

Establishments engaged in hazardous activity: The 2019 Bill defines an establishment as a place where any business, trade, or occupation is carried out with 10 or more workers. The 2020 Bill includes all establishments where any hazardous activity is carried out regardless of the number of workers.

Contract workers: The 2019 Bill applied to establishments or contractors employing 20 or more contract workers (on any day in the last one year). It also allowed the appropriate government to notify a lower threshold for this purpose. The 2020 Bill replaces this provision. It specifies that the Code will apply to establishments or contractors employing 50 or more workers (on any day in the last one year).

The 2019 Bill empowered the government to prohibit employment of contract labour in some cases including where: (i) the work is of a perennial nature, or (ii) the work performed by contract workers is necessary for the business carried out by the establishment, or (iii) the same work is carried out by regular workmen in the establishment. The 2020 Bill instead prohibits contract labour in core activities, except where: (i) the normal functioning of the establishment is such that the activity is ordinarily done through contractor, (ii) the activities are such that they do not require full time workers for the major portion of the day, or (iii) there is a sudden increase in the volume work in the core activity which needs to be completed in a specified time.

The appropriate government will decide whether an activity of the establishment is a core activity or not. However, the Bill defines a list of non-core activities where the prohibition would not apply. This includes a list of 11 works including: (i) sanitation workers, (ii) security services, and (iii) any activity of intermittent nature even if that constitutes a core activity of an establishment.

The Bill allows the appropriate government to exempt contractors from the provisions of the Bill in case of an emergency, subject to such conditions as may be notified.

The 2019 Bill provided that it will not be applicable to the offices of the central and state governments. The 2020 Bill clarifies that the Code will apply to contract labour engaged through a contractor in the offices of the central and state governments (where the respective government is the principal employer).

Building or other construction work: Under the 2019 Bill, construction works employing 10 or more workers were considered as building or other construction works. The 2020 Bill removes this condition. Work hours and employment conditions

Daily work hour limit: The 2019 Bill allowed the appropriate government to notify the maximum daily work hours for workers. The 2020 Bill fixes the maximum limit at eight hours per day.

Employment of women: The 2019 Bill allowed the appropriate government to prohibit employment of women for undertaking dangerous operations. The 2020 Bill provides that women will be entitled to be employed in all establishments for all types of work under the Bill. It also provides that in case they are required to work in hazardous or dangerous operations, the government may require the employer to provide adequate safeguards prior to their employment.

Inter-state migrant workers and unorganized workers

Definition: The 2019 Bill defined inter-state migrant worker as a person who: (i) has been recruited by an employer or contractor for working in another state, and (ii) draws wages within the maximum amount notified by the central government. The 2020 Bill adds that any person who moves on his own to another state and obtains employment there will also be considered an inter-state migrant worker. The 2020 Bill also specifies that only those persons will be considered as inter-state migrants who are earning a maximum of Rs 18,000 per month, or such higher amount which the central government may notify.

Benefits for inter-state migrant workers: The 2020 Bill provides for certain benefits for inter-state migrant workers. These include: (i) option to avail the benefits of the public distribution system either in the native state or the state of employment, (ii) availability of benefits available under the building and other construction cess fund in the state of employment, and (iii) insurance and provident fund benefits available to other workers in the same establishment.

Displacement allowance: The 2019 Bill required contractors to pay a displacement allowance to inter-state migrant workers at the time of their recruitment, which was equivalent to 50% of the monthly wages. The 2020 Bill removes this provision.

Database for inter-state migrant workers: The 2020 Bill requires the central and state governments to maintain or record the details of inter-state migrant workers in a portal. An inter-state migrant worker can register himself on the portal on the basis of self-declaration and Aadhaar. Social Security Fund: The 2020 Bill provides for the establishment of a Social Security Fund for the welfare of unorganised workers. The amount collected from certain penalties under the Code (including the amount collected through compounding) will be credited to the Fund. The government may prescribe other sources as well for transferring money to the Fund.

PART B: Issues to consider

B.1 Some common issues across the three Labour Bills

Definition of ‘appropriate government’

All three Labour Bills specify that the central government will act as the appropriate government for any central public sector undertaking (PSUs). The central government will continue to be the appropriate government for a central PSU even if the holding of the central government in that PSU becomes less than 50%. It is unclear as to why the central government should continue to exercise jurisdiction over an establishment in which it does not own controlling stake (even in cases where it has sold its entire stake). Note that while examining the earlier versions of the Codes on Industrial Relations and Social Security, the Committee had recommended that the central government should exercise powers only over those PSUs in which it has more than 50% stake.3

Delegated Legislation

Under the Constitution, the legislature has the power to make laws and the government is responsible for implementing them. Often, the legislature enacts a law covering the general principles and policies, and delegates detailed rule-making to the government to allow for expediency and flexibility. However, certain functions and powers should not be delegated to the government. These include framing the legislative policy to determine the principles of the law. Any Rule should also remain within the scope of the delegating Act.

The three labour Bills delegate various essential aspects of the laws to the government through rule-making. These include: (i) increasing the threshold for lay-offs, retrenchment, and closure, (ii) setting thresholds for applicability of different social security schemes to establishments, and (iii) specifying safety standards, and working conditions to be provided by establishments under the occupational safety Code. The question is whether the power to decide such matters should be retained by the legislature or whether these could be delegated to with the government.

While examining the 2019 Social Security Bill, the Standing Committee on Labour had noted that the Bill delegates various aspects for rule-making by the government, especially in relation to defining the entitlements, benefits and contributions under the Bill.3 It suggested that the Ministry review all such instances of delegation in the Bill.

Power to exempt establishments

The 2020 Bill on Industrial Relations provides the government with the power to exempt any new industrial establishment or class of establishment from any or all of its provisions if it is in public interest. The 2020 Bill on Occupational Safety also gives the appropriate government the power to exempt any establishment for a period to be specified in the notification. Further, it enables the state government to exempt any new factory from its provision in the interest of creating more economic activity and employment. Note that the Factories Act, 1948 permitted exemptions from its provisions only in cases of public emergency, and limited such exemption to three months.

Therefore, the central and the state government have wide discretion in providing exemptions from these Bills. Every factory would generate employment, and public interest could be interpreted broadly. The exemptions could cover a wide range of provisions including those related to hours of work, safety standards, retrenchment process, collective bargaining rights, contract labour.

Certain workers not covered under the Bills

The Bill on Industrial Relations applies to all establishments, with separate thresholds for layoffs, retrenchment and closure, and for requirement of standing orders. On the other hand, the Bills on social security and occupational safety continue to apply to establishments over a certain size - the Occupational Safety Bill covers establishments with 10 or more workers while the Bill on Social Security requires only establishments over a certain size (typically, 10 or 20) to provide mandatory benefits (such as provident fund and pension). Further, the Bills on industrial relations and occupational safety allow the government to exempt any new establishment from their provisions in public interest. This raises the question of the extent to which establishments should be covered by the Bills.

It has been argued that the application of labour laws based on the number of employees is desirable to reduce the compliance burden on infant industries and to promote their economic growth.[4],[5] However, low numeric thresholds may create adverse incentives for establishments sizes to remain small, in order to avoid complying with labour regulation.4,5 To promote the growth of smaller establishments, some states have amended their labour laws to increase the threshold of their application. For instance, Rajasthan has increased the threshold of applicability of the Factories Act, 1948, from 10 workers to 20 workers (if power is used), and from 20 workers to 40 workers (if power is not used). The Economic Survey (2018-19) noted that increased thresholds for certain labour laws in Rajasthan resulted in an increase in growth of total output in the state and total output per factory.5 Note that the Bill on Occupational Safety makes similar changes to the size to the thresholds for factories - from 10 workers to 20 workers (if power is used), and from 20 workers to 40 workers (if power is not used). Further, it increases the threshold of applicability of provisions regulating use of contract labour from 20 workers to 50 workers.

On the other hand, some have argued that basic provisions for enforcement of wages, provision of social security, safety at the workplace, and decent working conditions, should apply to all establishments, regardless of size.2,4 Towards, this the 2020 Bill on Occupational Safety states that the applicability thresholds (of 10 or above) will not apply in those establishments in which hazardous or life-threatening activities (as notified by the central government) are being carried out. The Standing Committee while examining the earlier versions of the Bills on Occupational Safety and Social Security stated that: (i) the Occupational Safety Code should include a mechanism to notify provisions to safeguard the health and safety of unorganised workers and insert chapters in the Code specifying the safety, health and working conditions for inter-state migrant workers and plantation workers, (ii) the Social Security Code should provide a framework to achieve universal social security within a definite time frame. It made several recommendations towards expanding coverage.3 While the 2020 Occupational Safety Bill incorporates the recommendations of the Committee (provides for a social security fund for unorganised workers and adds separate chapters for migrant and plantation workers), the 2020 Social Security Bill does not address them.

In this regard, the 2nd National Commission on Labour (2002) had recommended a separate law for small scale units (having less than 20 workers) with less stringent provisions for conditions such as payment of wages, welfare facilities, social security, retrenchment and closure, and resolution of disputes. For unorganised sector establishments (which fall outside the purview of labour laws), the National Commission for Enterprises in the Unorganised Sector (NCEUS) made several recommendations to address the social security and minimum conditions of work for both agricultural and non-agricultural workers and suggested two Bills – one for each sector.[6] Note that the Economic Survey (2018-19) estimates that almost 93% of the total workforce is informal.5

Note that most countries do not exempt smaller enterprises from labour regulation entirely. The International Labour Organisation (2005) notes that only 10% of its member states had exempted micro and small enterprises from labour regulation altogether.[7] Most countries adopt a mixed approach to labour regulation. For instance, health and safety laws in the United States, United Kingdom, South Africa and Philippines provide universal coverage to all workers (except for domestic help in the US and UK).8 However, certain obligations under these laws are only applicable to enterprises with employees over a certain threshold. For example, record-keeping obligations for work-related accidents in the US only apply to establishments with at least 10 employees or in “low hazard” industries. In South Africa, only enterprises with 20 or more workers are required to designate a health and safety representative.[8]

B.2 Key Issues in the Industrial Relations Code, 2020

Strikes and lock-outs may become difficult for all establishments

The 2020 Bill requires all persons to give a prior notice of 14 days before a strike or lock-out. This notice is valid for a maximum of 60 days. The Bill also prohibits strikes and lock-outs: (i) during and up to seven days after a conciliation proceeding, and (ii) during and up to sixty days after proceedings before a tribunal. This may impact the ability of workers to strike and employers to lock-out workers.

The Bill requires prior notice before a strike or a lock-out, which has to be shared with the conciliation officer within five days. Conciliation proceedings will start immediately and strikes or lock-outs will be prohibited during this period. If the conciliation is not successful and there is an application to a Tribunal by either party, the period of prohibition on strikes or lock-outs will be further extended. This time could extend the beyond the 60-day validity of the notice. Therefore, these provisions may impact the ability of a strike or lock-out on the appointed date given in the notice.

The Industrial Disputes Act, 1947 contains similar provisions for public utility services. A public utility service includes railways, airlines, and establishments that provide water, electricity, and telephone service. However, the National Commission on Labour (2002) had justified the rationale of treating such industries differently, considering their impact on the lives of a vast majority of people.2 The rationale for extending the provisions on notice to all establishments is unclear. The Standing Committee while examining an identical provision in the 2019 Bill had recommended that the restriction on strikes should only apply to public utility services.3

Power to government to modify or reject tribunal awards

The 2020 Bill provides for the constitution of Industrial Tribunals and a National Industrial Tribunal to decide disputes under the Bill. It states that the awards passed by a Tribunal will be enforceable on the expiry of 30 days. However, the government can defer the enforcement of the award in certain circumstances on public grounds affecting national economy or social justice. These circumstances are when: (i) the central or state government is a party to the dispute in appeal, or (ii) the award has been given by a National Tribunal. The appropriate government can also make an order rejecting or modifying the award. The notification and the order will be tabled in the legislature. The question is whether such a provision would violate the principle of separation of powers between the executive and the judiciary, since it empowers the government to change the decision of the tribunal through executive action. Further, it raises the question of whether there is a conflict of interest, as the government may modify an award made by the Tribunal in a dispute in which it is a party.

The Industrial Disputes Act, 1947 had similar provisions. In 2011, the Madras High Court (affirming a 1997 Andhra Pradesh High Court judgement) struck down these provisions on constitutional grounds and held that the power to the executive to decline enforcing an award or to modify it, allows the executive to sit in appeal over the decision of the Tribunal, and therefore violates the separation of powers between the executive and the judiciary, which forms a part of the basic structure of the Constitution.[9],[10] This provision has been replicated in the Code. Therefore, it may violate the principle of separation of powers between the executive and the judiciary. The Standing Committee on Labour while examining an identical provision in the 2019 Bill had recommended removing this provision in view of these judgements.3

Provisions for formation of a negotiation council may be restrictive

Under the 2020 Bill, a sole union will be the negotiation agent with the management of the company. If there is more than one registered trade union of workers, the trade union having more than 51% of the workers as members would be recognised as the sole negotiating union. In case no trade union meets these criteria, a negotiating council will be formed with representatives of unions that have at least 20% of the workers as members. Note that trade unions must have membership of at least 10% or workers or 100 workers, whichever is lesser, to be registered. It is unclear as to what will happen in case there are multiple registered trade unions which enjoy this support (of 10% of members) but no union has the required support of at least 20% workers to participate in the negotiating council.

Note that under the 2019 Bill, the threshold for participation in negotiating council was 10% instead of 20%.

Provisions on fixed term employment

The 2020 Bill introduces provisions on fixed term employment. Fixed term employment refers to workers employed for a fixed duration based on a contract signed between the worker and the employer. Provisions for fixed term employment were introduced for central sphere establishments in 2018.[11] We discuss below the pros and cons of introducing fixed term employment.

Fixed term employment may allow employers the flexibility to hire workers for a fixed duration and for work that may not be permanent in nature. Further, fixed term contracts are negotiated directly between the employer and employee and reduce the role of a middleman such as an agency or contractor. They may also benefit the worker since the Code entitles fixed term employees to the same benefits (such as medical insurance and pension) and conditions of work as are available to permanent employees. This could help improve the conditions of temporary workers in comparison with contract workers who may not be provided with such benefits.

However, unequal bargaining powers between the worker and employer could affect the rights of such workers since the power to renew such contracts lies with the employer. This may result in job insecurity for the employee and may deter him from raising issues about unfair work practices, such as extended work hours, or denial of wages or leaves. Further, the Bill does not restrict the type of work in which fixed term workers may be hired. Therefore, they may be hired for roles offered to permanent workmen. In contrast, under the Contract Labour (Regulation and Abolition) Act, 1970 the government may prohibit employment of contract labour in some cases including where: (i) the work is of a perennial nature, or (ii) the work performed by contract workers is necessary for the business carried out by the establishment, or (iii) the same work is carried out by regular workmen in the establishment. Note that the 2nd National Commission on Labour (2002) had recommended that no worker should be kept continuously as a casual or temporary worker against a permanent job for more than two years.2

The Standing Committee on Labour examined identical provisions in the 2019 Bill and recommended the conditions under which, and areas where fixed term employment may be utilised should be clearly specified.3 Further, a minimum and maximum tenure for hiring fixed term employees should be specified.

The ILO (2016) noted that several countries restrict the use of fixed term contracts by: (i) limiting renewal of employment contracts (e.g., Vietnam, Brazil and China allow two successive fixed term contracts), (ii) limiting the duration of contract (e.g., Philippines and Botswana limit it up to a year), or (iii) limiting the proportion of fixed term workers in the overall workforce (e.g., Italy limits fixed term and agency workers to 20%).[12]

Table 1 below compares the provisions of fixed term employment, permanent employment and contract labour.

Table 1: Comparison between fixed term employment, permanent employment and contract labour

Employment directly under a written contract. On the payroll of the establishment. Engaged in an establishment through a contractor or agency. Not on the payroll of the establishment. Term

Stipulated fixed term. Employment lapses on completion of term, unless renewed. No notice is required to be given for retrenchment. Employed on a permanent basis Notice has to be given for termination of employment. Based on terms negotiated with the contractor. Nature of work Not specified. Hired for routine work.

Employment may be prohibited in certain cases, e.g., if similar work is carried out by regular workmen. Sources: Contract Labour Act, 1970; Industrial Disputes Act, 1947; Notification GSR 976(E), Ministry of Labour and Employment, October 7, 2016, Notification GSR 235(E), Ministry of Labour and Employment, March 16, 2018; 2020 Bill; PRS.

Certain terms not defined in the Code

The 2020 Bill defines a ‘worker’ as any person who work for hire or reward. It excludes persons employed in a managerial or administrative capacity, or in a supervisory capacity with wages exceeding Rs 18,000. However, it does not define the terms ‘manager’ or ‘supervisor’ in this context. These terms are also used in the remaining three labour Codes, i.e., on Occupational Safety and Health, Wages and Social Security. The Standing Committee which examined the OSH Code recommended that the terms ‘supervisor’ and ‘manager’ be clearly defined in the Bill as it determines the categories of persons who would be excluded from the definition of ‘workers’.

Further, the Bill uses the term ‘contractor’ while defining certain terms. For example, ‘employer’ is defined to include a contractor. However, the Bill does not define the term ‘contractor’. Note that the remaining three Bills define the term to include persons who deliver work using contract labour, or supply manpower through contract labour. Similarly, the Bill defines the term “industrial establishment” to mean an establishment in which industry is carried on. However, it does not define the term ‘establishment’. The remaining three Bills define the term to refer to any place where an industry, trade, business, manufacture or occupation is carried on.

B.3 Key Issues in the Code on Social Security, 2020

Purpose of the Bill

The 2020 Bill replaces nine laws related to social security. The National Commission on Labour (2002) (NCL) had emphasised the need for universal and comprehensive social security coverage to avoid deprivation of basic needs of workers, and recommended the simplification and consolidation of existing laws towards this end.2 The Statement of Objects and Reasons of the Bill states that it seeks to simplify and amalgamate the provisions of these laws in line with the NCL recommendations.[13]

The NCL recommended that: (i) the social security system should apply to all establishments, (ii) the existing wage ceilings for coverage should be removed, and (iii) there should be a functional integration of the administration of existing schemes. Further, every employer and employee may make a single contribution for the provision of all the benefits, with a ceiling prescribed for such contributions. However, the Bill largely retains the current set up and does not fully implement these recommendations.

First, the Bill continues to retain thresholds based on the size of establishment for making certain benefits mandatory. Benefits, such as pension and medical insurance, continue to be mandatory only for establishments with a minimum number of employees (such as 10 or 20 employees). All other categories of workers (i.e., unorganised workers), such as those working in establishments with less than 10 employees and self-employed workers may be covered by discretionary schemes notified by the government. This is similar to the current system where unorganised workers are governed by a different law (being subsumed by the Bill) under which voluntary schemes are notified for such workers.[14] A large numbers of workers may continue to be excluded. Note that the Periodic Labour Force Survey Report (2018-19) indicates that 70% of regular wage/salaried employees in the non-agricultural sector did not have a written contract, and 52% did not have any social security benefit.[15]

Second, the Bill continues to treat employees within the same establishment differently based on the amount of wages earned. For instance, provident fund, pension and medical insurance benefits are only mandatory to employees earning above a certain threshold (as may be notified by the government) in eligible establishments.

Third, the Bill continues to retain the existing fragmented set up for the delivery of social security benefits. These include: (i) a Central Board of Trustees to administer the EPF, EPS and EDLI Schemes, (ii) an Employees State Insurance Corporation to administer the ESI Scheme, (iii) national and state-level Social Security Boards to administer schemes for unorganised workers, and (iv) cess-based labour welfare boards for construction workers.

The Standing Committee on Labour (2020) had examined the 2019 Bill with similar provisions and recommended that the Code should provide a framework for achieving universal social security within a definite time frame.3 It made several recommendations for expanding the coverage of establishments, employees, and types of benefits. These include: (i) re-considering establishment-size based thresholds and expanding the definition of “establishment” to include other enterprise categories such as agricultural and own account enterprises, (ii) expanding definitions of “employees” to include Asha and Anganwadi workers, and “unorganised workers” to include agricultural workers, (iii) creating a separate fund for inter-state migrant workers, (iv) introducing unemployment insurance for unorganised workers and (v) and re-introducing labour welfare funds for workers in certain industries such as iron ore mines and beedi establishments.

Table 2 below compares the 2019 Bill, the recommendations of the NCL, the recommendations of the Standing Committee, and the extent to which the 2020 Bill incorporated these changes.

Table 2: Comparison of Bill with existing laws and NCL recommendations

Feature

NCL Recommendations

2019 Bill

Standing Committee Recommendations

2020 Bill

Coverage

Move from the current fragmented social security system to an integrated universal one with: (i) mandatory state-funded social security for the poor, (ii) contribution-based system for workers earning up to a certain wage (with part state-subsidy for unorganised workers), and (iii) voluntary schemes for others.

Retains coverage as per existing laws, with limited modifications. The Bill additionally permits the government to frame schemes for gig workers and platform workers. Code does not clearly define benefits and entitlements for several categories of workers. Code should provide a framework to achieve universal social security for all workers with firm entitlements and within a defined time frame. Standing Committee recommendations not addressed

Registration

Move from differing registration requirements to a comprehensive system of registration of workers and establishments. Establishments to register with respective organisations. Aadhaar-based registration for all eligible workers. Provide for a unified registration and compliance platform. All establishments should mandatorily register with a single authority. Standing Committee recommendations not addressed Portability

Address lack of portability by issuing cards with unique social security number to enable portability No explicit provision for portability of benefits. Provide for common “minimum mandatory entitlements” across states for construction and unorganised workers to enable portability. Ensure portability for migrant workers.

Standing Committee recommendations not addressed Delivery

Move to a decentralised mechanism with: (i) national authority chaired by the Prime Minister, (ii) central board for managing the scheme, (iii) state boards for delivery and implementation, and (iv) local committees for identification and registration of beneficiaries. The Bill retains the same organisational set up as under existing laws. Code continues with the existing fragmented structure for delivery of benefits. Committee recommended that the government consider putting in place a more compact system of governance of social security. Standing Committee recommendations not addressed Sources: Existing social security Acts; 2nd Report of NCL; Report of the Standing Committee on the 2019 Bill; 2019 Bill; 2020 Bill; PRS.

Provisions on gig workers and platforms workers are unclear

The 2020 Bill introduces definitions for ‘gig worker’ and ‘platform worker’. Gig workers refer to workers outside the “traditional employer-employee relationship”. Platform workers are those who are outside the “traditional employer-employee relationship” and access organisations or individuals through an online platform and provide services for payment. The Bill also creates provisions for unorganised workers. An unorganised worker is defined as one who works in the unorganised sector, and includes workers not covered by the Industrial Disputes Act, 1947, or other provisions of the Bill (such as provident fund or gratuity). It also includes self-employed workers. The Bill mandates different schemes for all these categories of workers. However, there may be some overlap between their definitions. We illustrate this below.

Consider the example of a driver working for an app-based taxi aggregator. Here, there is no employee-employer relationship. For example, appointment letters are not issued, social security benefits are absent, work hours are not regulated by the employer, and the driver may choose to work for a competitor taxi aggregator. Therefore, the nature of the work involved may lie outside the purview of a ‘traditional employer-employee relationship’, making him a ‘gig worker’. However, the driver is able to pursue this job only through an online platform. This would meet the definition of a ‘platform worker’ as well. Such a driver may also be an ‘unorganised worker’ as he may be self-employed. With such overlap across definitions, it is unclear how schemes specific to these categories of workers will apply. The Standing Committee on Labour examined similar provisions in the 2019 Bill and recommended: (i) expanding the definition of “unorganised workers” to include gig and platform workers, (ii) making the definition of “gig worker” more specific to avoid misinterpretation, and (iii) expanding the definition of “platform worker” to enable inclusion of future models of work.3 The 2020 Bill only incorporates the last recommendation.

Provisions on gratuity for fixed term workers unclear

Under the 2020 Bill, gratuity is payable if the employee has served a continuous period of five years. However, this time period will not apply if the contract term of a fixed term worker expires. The Bill further states that in the case of fixed term employment, the employer will pay gratuity on a pro rata basis (i.e. proportionate to the fixed term period). However, the Industrial Relations Bill, 2020 while defining fixed term workers, states that such workers will be eligible for gratuity only if they complete a one-year contract. Therefore, the two Bills contain different provisions on gratuity for fixed term workers and it is not clear whether a fixed term employee with a contract of lesser than one year will be entitled to gratuity under the Code on Social Security, 2020.

Mandatory linking with Aadhaar may violate Supreme Court judgement

The 2020 Bill mandates an employee or a worker (including an unorganised worker) to provide his Aadhaar number to receive social security benefits or to even avail services from a career centre. This may violate the Supreme Court’s Puttaswamy-II judgement.[16] In its judgement, the Court had ruled that the Aadhaar card/number may only be made mandatory for expenditure on a subsidy, benefit or service incurred from the Consolidated Fund of India. Applying this principle, the Court has struck down the mandatory linking of bank accounts with Aadhaar. Since certain entitlements such as gratuity and provident fund (PF) are funded by employers and employees and not by the Consolidated Fund of India, making Aadhaar mandatory for availing such entitlements may violate the judgement. Note that the Employees’ Provident Fund Organisation (EPFO) had made Aadhaar linking with PF accounts mandatory in 2015. After the judgement, the EPFO issued orders against the enforcement of these provisions.[17] Further, the rationale for seeking mandatory linking of Aadhaar for availing career centre services is unclear. Note that while examining the provision on mandatory linking of Aadhaar for registration of unorganised workers (in the 2019 Bill), the Standing Committee noted the government’s assurance that this provision will be re-examined.3

Recommendations of the Standing Committee

The Standing Committee on Labour (2020) had given certain other recommendations on the 2019 Bill. Further, some of the Committee’s recommendations on the 2019 Occupational Safety, Health and Working Conditions (OSH) Code, 2019, also applied to the 2019 Bill. We summarise these recommendations below and the extent to which the 2020 Bill incorporates these recommendations:

Reduction in term for gratuity: Under the 2019 Bill, gratuity is payable if the employee has served a continuous period of five years. The Committee recommended reducing this to one year and extending gratuity to all other categories of workers including contract, seasonal, and piece-rate workers.3 The 2020 Bill only reduced gratuity entitlement for working journalists from five years to three years.

Employment Exchanges: One of the laws replaced by the 2019 Bill governs employment exchanges, where certain employers are required to report vacancies and job seekers may track openings. The Committee noted that this law is not connected with social security and recommended its removal from the Bill. This recommendation has not been incorporated in the 2020 Bill.

Social security for plantation workers: The OSH Code contains health and safety provisions for workers in plantations measuring at least five hectares. In its report on the OSH Code, the Committee noted an assurance of the Ministry that workers in plantations measuring less than five hectares would be covered in the Code on Social Security. However, the definition of a “plantation” in the 2019 Bill retained the five-hectare threshold.3 This recommendation has not been incorporated in the 2020 Bill. The 2020 Bill also defines the term ‘employer’ to mean a person who employs any persons and specifically includes certain categories of workers. In the case of a factory, employer means the occupier of a factory, i.e., the person with ultimate control over the affairs of the company. However, the remaining three labour codes define the term ‘employer’ to include occupier as well as the manager of the factory. It is not clear why managers of factories have not been included in the definition. Further, the Bill also does not define certain terms used to define an ‘establishment’. These include the terms ‘industry’, ‘trade’, ‘business’, ‘manufacture’ or ‘occupation’.

B.4 Key Issues in the Code on Occupational Safety, Health and Working Conditions, 2020

Rationale for some special provisions unclear

The 2020 Bill replaces 13 laws regulating health, safety and working conditions of workers. The National Commission on Labour (2002) recommended consolidation and simplification of these laws.2 Further, the Statement of Objects and Reasons of the Bill states that it seeks to simplify and amalgamate the provisions of the 13 Acts.[18] While the Bill consolidates existing Acts, it falls short of simplifying their provisions. We illustrate this below.

The Bill contains general provisions which apply to all establishments. These include provisions on registration, filing of returns, and duties of employers. However, it also includes additional provisions that apply to specific type of workers such as those in factories and mines, or as audio-visual workers, journalists, sales promotion employees, contract labour and construction workers.

It may be argued that special provisions on health and safety are required for certain categories of hazard-prone establishments such as factories and mines. It may be necessary to allow only licensed establishments to operate factories and mines. Similarly, special provisions may be required for specific categories of vulnerable workers such as contract labour and migrant workers. However, the rationale for mandating special provisions for other workers is not clear.

For example, the Bill requires that any person suffering from deafness or giddiness may not be employed in construction activity which involve a risk of accident. The question is why such a general safety requirement is not provided for all workers. Similarly, the Bill provides for registration of employment contracts for audio-visual workers, raising the question of why there is a special treatment for this category.

Further, the Bill specifies additional leave for sales promotion employees. It also specifies that working journalists cannot be made to work more than 144 hours in four weeks (i.e. an average of 36 hours per week). For all other workers covered under the Bill, the minimum leave and maximum work hours are prescribed through rules. The rationale for differential treatment with regard to working conditions between working journalists and sales promotion employees on the one hand, and all other workers on the other hand, is unclear.

Note that, if any sector-specific provisions are needed, the Bill empowers the government to notify them.

Table 3 below sets out the general provisions in the Bill applicable to all workers and the additional special provisions applicable to specific categories of workers and establishments under the Bill.

Civil Court barred from hearing matters under the Code

The 2020 Bill bars civil courts from hearing any matters under the Bill. In some matters where persons are aggrieved by the orders of authorities such as, by the order of the Inspector-cum-facilitator in the case of factories, or by the revocation of a license for contractors, the Bill provides for an administrative appellate authority to be notified. However, it does not provide a judicial mechanism for hearing disputes under the Bill.

Under the existing 13 health and safety laws, claims which affect the rights of workers such as wages, work hours, and leave, are heard by labour courts and industrial tribunals. However, the Bill bars the jurisdiction of civil courts, and does not specify that such disputes arising under it may be heard by these labour courts and tribunals.

Further, there may be other health and safety-related disputes. For example, an employer may wish to challenge an order passed by an Inspector which identified certain safety violations at the workplace. In such a case, the employer may file a case in the civil court for seeking remedy against the orders passed by the Inspector. Appeal may be filed before the High Court and ultimately before the Supreme Court. However, the Bill bars civil courts from hearing any dispute under the Bill. As a result, employers who are aggrieved by the orders of the Inspector and by the notified administrative appellate authority will not be able to challenge it in a civil court. The only recourse available to them would be to directly file a writ petition before the relevant High Court. It can be argued that the bar on civil courts from hearing matters under the Bill may deny aggrieved persons an opportunity to challenge certain issues before a lower court.

[1]. List of Central Labour Laws under Ministry of Labour and Employment, Ministry of Labour and Employment. [2]. Report of the National Commission on Labour, Ministry of Labour and Employment, 2002, http://www.prsindia.org/uploads/media/1237548159/NLCII-report.pdf. [3]. Report No. 4: “Occupational Safety, Health and Working Conditions Code, 2019”, Standing Committee on Labour, Lok Sabha, February 11, 2020; Report No. 8: “Industrial Relations Code, 2019”, Standing Committee on Labour, Lok Sabha, April 23, 2020; Report No. 9: “Code on Social Security, 2019”, Standing Committee on Labour, Lok Sabha, July 31, 2020. [4]. “Towards an optimal regulatory framework in India”, Implementation Group, Planning Commission, 12th Five Year Plan. [5]. “Reorienting policies for MSME growth”, Economic Survey 2018-19. [6]. “Report on Conditions of Work and Promotion of Livelihoods in the Unorganised Sector”, NCEUS, August, 2007. [7]. “Labour and Labour-related Laws in Micro and Small and Enterprises: Innovative Regulatory Approaches”, International Labour Organisation, 2007. [8]. LEGOSH, Occupational Safety and Health, Country Profiles, International Labour Organisation.. [9]. Union of India vs. Textile Technical Tradesmen Association (2014), Madras High Court, 2014 (6) CTC 427. [10]. Telugunadu Work charged Employees State Federation vs. GOI, Andhra Pradesh High Court, 1997 (3) ALT 492. [11]. Notification GSR 235(E), Ministry of Labour and Employment, March 16, 2018 https://labour.gov.in/sites/default/files/FTE%20Final%20Notification.pdf. [12]. “Non-Standard Employment Around the World”, 2016, International Labour Organisation, https://www.ilo.org/wcmsp5/groups/public/---dgreports/---dcomm/---publ/documents/publication/wcms_534326.pdf. [13]. Code on Social Security, 2020. [14]. The Unorganised Workers’ Social Security Act, 2008. [15]. Periodic Labour Force Survey Report (2018-19), Ministry of Statistics and Programme Implementation, June 2020. [16]. Justice K.S. Puttaswamy Vs. Union of India, Supreme Court, Writ Petition (Civil) 494 of 2012, September 26, 2018. [17]. Seeding KYC details in UAN Portal, Employees’ Provident Fund Organisation, October 18, 2018. [18]. Statement of Objects and Reasons, The Occupational Safety, Health and Working Conditions Code, 2020.

DISCLAIMER: This document is being furnished to you for your information. You may choose to reproduce or redistribute this report for non-commercial purposes in part or in full to any other person with due acknowledgement of PRS Legislative Research (“PRS”). The opinions expressed herein are entirely those of the author(s). PRS makes every effort to use reliable and comprehensive information, but PRS does not represent that the contents of the report are accurate or complete. PRS is an independent, not-for-profit group. This document has been prepared without regard to the objectives or opinions of those who may receive it

Farming Bills 2020 : An overview

Legislative Brief

Agriculture Ordinances, 2020

Highlights of the Ordinance

The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Ordinance, 2020 allows intra-state and inter-state trade of farmers’ produce beyond the physical premises of APMC markets. State governments are prohibited from levying any market fee, cess or levy outside APMC areas.

The Farmers Agreement Ordinance creates a framework for contract farming through an agreement between a farmer and a buyer prior to the production or rearing of any farm produce. It provides for a three-level dispute settlement mechanism: the conciliation board, Sub-Divisional Magistrate and Appellate Authority.

The Essential Commodities (Amendment) Ordinance, 2020 allows the central government to regulate the supply of certain food items only under extraordinary circumstances (such as war and famine). Stock limits may be imposed on agricultural produce only if there is a steep price rise.

Key Issues and Analysis

The three Ordinances aim to increase the availability of buyers for farmers’ produce, by allowing them to trade freely without any license or stock limit, so that an increase in competition among them results in better prices for farmers. While the Ordinances aim to liberalise trade and increase the number of buyers, de-regulation alone may not be sufficient to attract more buyers.

The Standing Committee on Agriculture (2018-19) noted that availability of a transparent, easily accessible, and efficient marketing platform is a pre-requisite to ensure remunerative prices for farmers. Most farmers lack access to government procurement facilities and APMC markets. It noted that small rural markets can emerge as a viable alternative for agricultural marketing if they are provided with adequate infrastructure facilities.

The Standing Committee also recommended that the Gramin Agricultural Markets scheme (which aims to improve infrastructure and civic facilities in 22,000 Gramin Haats across the country) should be made a fully funded central scheme and scaled to ensure presence of a Haat in each panchayat of the country.

PART A: HIGHLIGHTS OF THE ORDINANCE

Context

Agricultural markets in India are mainly regulated by state Agriculture Produce Marketing Committee (APMC) laws. APMCs were set up with the objective of ensuring fair trade between buyers and sellers for effective price discovery of farmers’ produce.[1] APMCs can: (i) regulate the trade of farmers’ produce by providing licenses to buyers, commission agents, and private markets, (ii) levy market fees or any other charges on such trade, and (iii) provide necessary infrastructure within their markets to facilitate the trade.

The Standing Committee on Agriculture (2018-19) observed that the APMC laws are not implemented in their true sense and need to be reformed urgently. Issues identified by the Committee include: (i) most APMCs have a limited number of traders operating, which leads to cartelization and reduces competition, and (ii) undue deductions in the form of commission charges and market fees.13 Traders, commission agents, and other functionaries organise themselves into associations, which do not allow easy entry of new persons into market yards, stifling competition.[2] The Acts are highly restrictive in promotion of multiple channels of marketing (such as more buyers, private markets, direct sale to businesses and retail consumers, and online transactions) and competition in the system.13

During 2017-18, the central government released the model APMC and contract farming Acts to allow restriction-free trade of farmers’ produce, promote competition through multiple marketing channels, and promote farming under pre-agreed contracts.[3],[4] The Standing Committee (2018-19) noted that states have not implemented several of the reforms suggested in the model Acts.13 It recommended that the central government constitute a Committee of Agriculture Ministers of all states to arrive at a consensus and design a legal framework for agricultural marketing. A High Powered Committee of seven Chief Ministers was set up in July 2019 to discuss, among other things: (i) adoption and time-bound implementation of model Acts by states, and (ii) changes to the Essential Commodities Act, 1955 (which provides for control of production, supply, and trade of essential commodities) for attracting private investment in agricultural marketing and infrastructure.[5]

The central government promulgated three Ordinances on June 5, 2020: (i) the Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Ordinance, 2020, (ii) the Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Ordinance, 2020, and (iii) the Essential Commodities (Amendment) Ordinance, 2020.[6],[7],[8] The Ordinances collectively seek to (i) facilitate barrier-free trade of farmers’ produce outside the markets notified under the various state APMC laws, (ii) define a framework for contract farming, and (iii) impose stock limits on agricultural produce only if there is a sharp increase in retail prices. The three Ordinances together aim to increase opportunities for farmers to enter long term sale contracts, increase availability of buyers, and permits buyers to purchase farm produce in bulk.

Key Features

The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Ordinance, 2020

Trade of farmers’ produce: The Ordinance allows intra-state and inter-state trade of farmers’ produce outside: (i) the physical premises of market yards run by market committees formed under the state APMC Acts and (ii) other markets notified under the state APMC Acts. Such trade can be conducted in an ‘outside trade area’, i.e., any place of production, collection, and aggregation of farmers’ produce including: (i) farm gates, (ii) factory premises, (iii) warehouses, (iv) silos, and (v) cold storages.
Electronic trading: The Ordinance permits the electronic trading of scheduled farmers’ produce (agricultural produce regulated under any state APMC Act) in the specified trade area. An electronic trading and transaction platform may be set up to facilitate the direct and online buying and selling of such produce through electronic devices and internet. The following entities may establish and operate such platforms: (i) companies, partnership firms, or registered societies, having permanent account number under the Income Tax Act, 1961 or any other document notified by the central government, and (ii) a farmer producer organisation or agricultural cooperative society.
Market fee abolished: The Ordinance prohibits state governments from levying any market fee, cess or levy on farmers, traders, and electronic trading platforms for trade of farmers’ produce conducted in an ‘outside trade area’.

The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Ordinance, 2020

Farming agreement: The Ordinance provides for a farming agreement between a farmer and a buyer prior to the production or rearing of any farm produce. The minimum period of an agreement will be one crop season, or one production cycle of livestock. The maximum period is five years, unless the production cycle is more than five years.

Pricing of farming produce: The price of farming produce should be mentioned in the agreement. For prices subjected to variation, a guaranteed price for the produce and a clear reference for any additional amount above the guaranteed price must be specified in the agreement. Further, the process of price determination must be mentioned in the agreement.

Dispute Settlement: A farming agreement must provide for a conciliation board as well as a conciliation process for settlement of disputes. The Board should have a fair and balanced representation of parties to the agreement. At first, all disputes must be referred to the board for resolution. If the dispute remains unresolved by the Board after thirty days, parties may approach the Sub-divisional Magistrate for resolution. Parties will have a right to appeal to an Appellate Authority (presided by collector or additional collector) against decisions of the Magistrate. Both the Magistrate and Appellate Authority will be required to dispose of a dispute within thirty days from the receipt of application. The Magistrate or the Appellate Authority may impose certain penalties on the party contravening the agreement. However, no action can be taken against the agricultural land of farmer for recovery of any dues.

The Essential Commodities (Amendment) Ordinance, 2020

Regulation of food items: The Essential Commodities Act, 1955 empowers the central government to designate certain commodities (such as food items, fertilizers, and petroleum products) as essential commodities. The central government may regulate or prohibit the production, supply, distribution, trade, and commerce of such essential commodities. The Ordinance provides that the central government may regulate the supply of certain food items including cereals, pulses, potatoes, onions, edible oilseeds, and oils, only under extraordinary circumstances. These include: (i) war, (ii) famine, (iii) extraordinary price rise and (iv) natural calamity of grave nature.

Stock limit: The Ordinance requires that imposition of any stock limit on agricultural produce must be based on price rise. A stock limit may be imposed only if there is: (i) a 100% increase in retail price of horticultural produce; and (ii) a 50% increase in the retail price of non-perishable agricultural food items. The increase will be calculated over the price prevailing immediately preceding twelve months, or the average retail price of the last five years, whichever is lower.

PART B: KEY ISSUES AND ANALYSIS

Availability of buyers for farmers’ produce and infrastructure

The Trade and Commerce Ordinance provides buyers the freedom to buy farmers’ produce outside the APMC markets without having any license or paying any fees to APMCs. The Contract Farming Ordinance provides a framework for buyers and farmers to enter into a contract (before a crop season starts) which guarantees farmers a minimum price and buyers an assured supply. The third Ordinance amends the Essential Commodities Act to provide that stock limits for agricultural produce can be imposed only when retail prices increase sharply and exempts value chain participants and exporters from any stock limit. The three Ordinances aim to increase the availability of buyers for farmers’ produce, by allowing them to trade freely without any license or stock limit, so that an increase in competition among them results in better prices for farmers.[9] While the Ordinances aim to liberalise trade and increase the number of buyers, this may not be sufficient to attract more buyers.

For instance, in 2006, Bihar repealed its APMC Act with a similar objective to attract private investment in the sector and gave charge of the markets to the concerned sub-divisional officers in that area.[10] This resulted in a lack of required marketing infrastructure as the existing infrastructure eroded over time due to poor upkeep.1,2 In unregulated markets, farmers faced issues such as high transaction charges and lack of information on prices and arrival of produce.2 The Committee of State Ministers, constituted in 2010 for agricultural marketing reforms, observed that complete deregulation of markets did not help in attracting any private investment.2 It noted that there is a need for an appropriate legal and institutional structure with a developmental type of regulation to ensure orderly functioning of markets and to attract investment for infrastructure development.2 The Standing Committee on Agriculture (2018-19) recommended that the central government should create marketing infrastructure in states which do not have APMC markets (i.e. Bihar, Kerala, Manipur, and certain union territories).1,[11]

Note that the Ordinances do not repeal the existing APMC laws (as done by Bihar), but limit the regulation of APMCs to the physical boundaries of the markets under their control. The Ordinances may result in increased competition, which may also make APMCs more efficient in providing cost-effective services for marketing.[12] Further, for farmers selling their produce outside the APMC markets, the prices prevailing in APMC markets can serve as a benchmark price, helping in a better price discovery for farmers.

Gramin Agriculture Markets: The Standing Committee noted that availability of a transparent, easily accessible, and efficient marketing platform is a pre-requisite to ensure remunerative prices for farmers.1 Most farmers lack access to government procurement facilities and APMC markets.1 Small and marginal farmers (who hold 86% of the agricultural landholdings in the country) face various issues in selling their produce in APMC markets such as inadequate marketable surplus, long-distance to the nearest APMC markets, and lack of transportation facilities.1 The average area served by an APMC market is 496 sq. km., much higher than the 80 sq. km. recommended by the National Commission on Farmers (Chair: Dr. M. S. Swaminathan) in 2006.1

The Standing Committee (2018-19) noted that Gramin Haats (small rural markets) can emerge as a viable alternative for agricultural marketing if they are provided with adequate infrastructure facilities. It recommended that the Gramin Agricultural Markets scheme (which aims to improve infrastructure and civic facilities in 22,000 Gramin Haats across the country) should be made a fully funded central scheme and scaled to ensure presence of a Haat in each panchayat of the country. The central government has proposed development of basic infrastructure in Gramin Haats through the National Rural Employment Guarantee Scheme and of marketing infrastructure through the Agri-Market Infrastructure Fund.[13] The Fund will be set up by NABARD to provide Rs 1,000 crore to states at a concessional interest rate for development of marketing infrastructure in Gramin Haats.13

[1]. Report No. 62, Standing Committee on Agriculture (2018-19): ‘Agriculture Marketing and Role of Weekly Gramin Haats’, Lok Sabha, January 3, 2019.
[2]. Report of Committee of State Ministers, In-charge of Agriculture Marketing to Promote Reforms, January 2013, https://dmi.gov.in/Documents/stminprreform.pdf.
[3]. Model Agricultural Produce and Livestock Marketing (Promotion and Facilitation) Act, 2017, Ministry of Agriculture and Farmers’ Welfare, April 2017.
[4]. Model Agricultural Produce and Livestock Contract Farming (Promotion and Facilitation) Act, 2018, Ministry of Agriculture and Farmers’ Welfare, December 2017.
[5]. “High Powered Committee of Chief Ministers constituted for ‘Transformation for Indian Agriculture’”, Press Information Bureau, NITI Aayog, July 1, 2019.
[6]. The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Ordinance, 2020, Ministry of Agriculture and Farmers’ Welfare, June 5, 2020.
[7]. The Essential Commodities (Amendment) Ordinance, 2020, Ministry of Consumer Affairs, Food and Public Distribution, June 5, 2020.
[8]. The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Ordinance, 2020, Ministry of Agriculture and Farmers’ Welfare, June 5, 2020.
[9]. “PM chairs Cabinet Meeting to give historic boost to Rural India”, Press Information Bureau, Ministry of Agriculture and Farmers’ Welfare, June 3, 2020.
[10]. Investment in Agricultural Marketing and Market Infrastructure – A Case Study of Bihar, Research Report, National Institute of Agricultural Marketing, 2011-12.
[11]. Conference of Agriculture Ministers of the States on Model Acts, Ministry of Agriculture and Farmers’ Welfare, July 8, 2019.
[12]. F.No. 26011/3/2020-M.II., Agricultural Marketing Division, Ministry of Agriculture and Farmers’ Welfare, June 5, 2020.
[13]. Report No. 8, Standing Committee on Agriculture (2019-20): Action taken by the government on the report ‘Agriculture Marketing and Role of Weekly Gramin Haats’, Lok Sabha, December 12, 2019.

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Clippers collapse against the Nuggets in Game 7

An Article in CBS Sports by Colin Ward-Henninger

The Denver Nuggets once again thoroughly dominated the second half to defeat the Los Angeles Clippers, 104-89, in Tuesday night's Game 7 to advance to the Western Conference finals. It was the second straight series that Denver erased a 3-1 series deficit, something no NBA team has ever done, and they'll now meet the Los Angeles Lakers with a chance to reach the NBA Finals for the first time in franchise history.

Denver was led by its dynamic duo of Nikola Jokic and Jamal Murray. Murray led all scorers with 40 points on 6-of-13 3-point shooting, while Jokic finished with 16 points, 22 rebounds and 13 assists. Montrezl Harrell led the Clippers with 20 points off the bench, with Kawhi Leonard and Paul George combining for just 24 points on 10-for-38 shooting.

The Clippers held a 12-point lead in the first half, but just as they did in Games 5 and 6, the Nuggets went to work in the second half to put the Clippers away. With Leonard, George and a deep supporting cast, the Clippers were considered the NBA title favorite for much of the season. They'll now leave the bubble after three straight disappointing losses.

Below are four takeaways from a wild series finale.

1. Jokic and Murray are a superstar duo

Last summer was all about the NBA's superstar duos. There was Anthony Davis and LeBron James with the Lakers, Leonard and George with the Clippers, MVPs James Harden and Russell Westbrook on the Houston Rockets, Kevin Durant and Kyrie Irving in Brooklyn -- even Portland's Damian Lillard and CJ McCollum in some people's eyes. You'd be hard pressed to find anyone outside of Denver who listed Murray and Jokic in that group, but they've proven without a doubt during this postseason run that they belong in the middle of the conversation.

Jokic was an absolutely unwinnable matchup for the Clippers all series, with his full offensive arsenal on display from shooting to posting up to his unparalleled passing and playmaking. He set the tone early in Game 7 and never relented.

Nikola Jokic (16 PTS, 22 REB, 13 AST) becomes the first player in NBA playoff history to record a 20+ rebound triple-double in a Game 7

Murray, who averaged 31.6 points in Denver's opening-round series win over the Jazz including two 50-point outbursts, was held in check as a scorer for most of the Clippers series while being defended by their wide array of strong wings, but he didn't force the issue, shooting 45 percent from the field and 44 percent from 3-point range for the series. He also showed improved playmaking and patience, averaging 6.4 assists per game.

Jamal Murray (@BeMore27) pours in 40 PTS (25 in 1st half) to help the @nuggets win Game 7 and advance to the Western Conference Finals! #Drop40

There was no better apples-to-apples comparison than watching Murray and Jokic put up huge performances in the biggest game of their careers, while Leonard and George missed shot after shot down the stretch. There's no more talk about what Murray and Jokic can one day be as a duo -- they've proven they're here now, and they're here to stay.

2. Another Clippers collapse?

All credit goes to the Nuggets for snatching this series from the clutches of defeat, but it's impossible to ignore Clippers history in light of this devastating loss. After leading by 16 points in Game 5, 19 points in Game 6 and 12 points in Game 7, the Clippers had every opportunity to slam the door shut and advance to the conference finals for the first time in franchise history. They looked out of sorts in the second half of each of the last three games, and despite Denver's strong defense, missed a lot of makeable shots down the stretch. They missed their first 10 shots of the fourth quarter in Game 7 as the Nuggets pulled away, and were never able to recover.

When the Clippers were at full strength this season they looked like a championship favorite, but their inconsistent effort finally caught up to them against the Nuggets. The loss hearkens back to previous Clippers collapses, notably against the Houston Rockets in 2015, and there will be lots of talk about the "Clipper Curse" as the team heads into the offseason.

3. Welcome back, Gary

After missing the seeding games and most of the Utah series, we weren't quite sure what we'd see from Gary Harris. It turns out, he was one of the main factors in the Nuggets advancing to the Western Conference finals. Harris gave Denver another much-needed reliable wing defender alongside Jerami Grant, and he also gave them the offensive boost they needed. Without a bonafide third scorer, Denver generally has to piece things together, but Harris was consistent throughout the Clippers series, averaging 10.7 points per game on 50 percent shooting, including 42 percent from 3.

Harris played just over 31 minutes per game in the series, including 42 and 37 in Games 6 and 7, respectively, and he's looking more comfortable every night as he returns from a hip injury. He's clearly confident enough to take, and make, big shots, which has been huge for the Nuggets and will continue to be against the Lakers.

4. Nuggets have nothing to lose

People counted the Nuggets out when they were down 3-1 to the Jazz. They were left for dead and labeled outmatched when they went down 3-1 to the Clippers. Now they find themselves in a Western Conference finals matchup where they'll be the underdog once again -- and at this point that absolutely plays to their favor. Jokic even invoked the "nobody believes in us" motivation during his on-court interview after Game 7, while talking about how much he treasures this team.

"Whatever we do, I'm gonna remember this team. ... I'm going to remember every single one [of the players] because this is a special crew," Jokic said. "Nobody wants us here. Nobody thinks that we can do something. We proved to ourselves and proved to everybody that we can do something."

Murray also said he thinks the Nuggets have been dismissed as a legitimate title threat.

"All y'all better start giving this team some damn respect," Murray said after the Game 7 win over the Clippers. "Because we put in the work and we've got a resilient team. We shouldn't have been down 3-1, but to come back from 3-1 against the Clippers, it was a big achievement. It's fun just to change that narrative. Y'all can finally start changing the narrative and looking at us in a better light."

There's nothing more dangerous than a team with nothing to lose and a chip on its shoulder, and that's exactly what the Nuggets are right now. They'll run into a tough matchup against LeBron James and Anthony Davis in the next round, but Jokic and Murray have proven time and time again that they can be the best duo on the court in any matchup and we know this team will never, ever quit.

Say the Liberals Win, Then What

An article form The Atlantic by Elaine Godfrey

If Democrats manage to hold the House of Representatives and win back the Senate and the White House in November, the party will have full control of the federal government for the first time in 11 years. Police reform, climate change, and health care are all on their agenda. But before newly empowered Democrats get to any of that, they will very likely pass a relief package to address the coronavirus pandemic and the associated economic crisis. Then, they will aim to fundamentally change how voting and government work in the United States by expanding voting rights, reducing the influence of money in politics, strengthening ethics rules, and maybe even ending the Senate filibuster—reforms they hope will make America’s democracy work better and the rest of their agenda easier to carry out.

“If there is any political capital to be spent, the concerns over democracy reform take a front seat to everything in the agenda,” a senior aide to a progressive senator told me (the aide requested anonymity because he wasn’t authorized to speak on the record). It “would mean so much just in terms of building long-term power,” a senior aide to a progressive House Democrat added.

By starting with these reforms, Democrats are taking a risk: They’ll likely have only a short window of time in the majority to accomplish their most pressing agenda items. Prioritizing one item could mean sacrificing another—and failing to deliver on key issues.

But the Democratic lawmakers, staffers, and activists that I spoke with view government and voting reform as a kind of precursor to accomplishing any of their other policy goals. “The first attention will be to the economic implosion, but there are a group of [other] issues on people’s minds,” Senator Jeff Merkley of Oregon told me. “We are at that moment where we have to succeed now in restoring the integrity of the American vision.” Democrats have given these process changes, which they call “democracy reform,” top billing on their legislative docket before. The For the People Act, more commonly known as H.R. 1, was the first piece of legislation the Democratic-controlled House passed in 2019. It contained a grab bag of reforms: establishing automatic voter registration for all Americans, making Election Day a national holiday, ending partisan gerrymandering, requiring presidents to disclose their tax returns, and creating a public-financing system for federal campaigns. These reforms would make it easier for most Americans to vote. They’d also, Democrats hope, make it easier for Democrats to win elections.

The Democrats’ plan is informed by experience. The last time Democrats controlled both the White House and Congress, they—under the leadership of President Barack Obama—attempted, at least at first, to foster a good working relationship with Republicans. Yet, after weeks of negotiations, the 2009 stimulus bill received only three GOP votes in the Senate. Not a single Republican voted to pass the Affordable Care Act, after a year of negotiations and floor debate—despite the fact that the legislation was modeled, in part, on a Republican template, and GOP amendments had been accepted to the bill. Obama had hoped to reach a “grand bargain” with Republicans but instead became acquainted with what his aides came to call “the party of no.” Many Democrats believe those times offer a lesson: They need to fix the structural issues that have long given Republicans political power disproportionate to the number of votes the party wins.

Republicans, naturally, are deeply resistant to many of the proposals included in H.R. 1. They argue that the provisions amount to extreme government overreach, and that expanding voting access through mechanisms such as automatic registration will open America’s elections system up to voter fraud. Not a single Republican voted to support H.R. 1 in the House last year, and Senate Majority Leader Mitch McConnell has blocked it from coming to a vote on the Senate floor. “They’re trying to clothe this power grab with cliches about ‘restoring democracy’ … but their proposal is simply a naked attempt to change the rules of American politics to benefit one party,” he wrote in a Washington Post column.

With McConnell and House Republicans opposed to most of their priorities, Democrats will have to structure their agenda carefully—and move quickly. Some Democrats would prefer to take advantage of the increased appetite for health-care reform to pass Medicare for All or a public option in the first weeks of a Joe Biden presidency. Others see climate-change legislation as the first priority. But voting-rights expansion and campaign-finance reforms would likely be simpler and faster to pass, given that the framework already exists in H.R. 1, the Democrats I spoke with said. And everyone agreed that both health care and climate change could be addressed—at least to some extent—in an initial coronavirus-response package; Biden’s “Build Back Better” economic-recovery proposal already promises investment in clean energy sources.

By January 2021, America will likely still be experiencing the twin public-health and economic crises brought on by the coronavirus pandemic, and voters will likely have gone through a drawn-out and chaotic November election. Appetite for political reform will be high, Democrats argue. “Over four years, we’ve learned of weaknesses in our democracy,” Neera Tanden, the president of the Center for American Progress, a Washington-based liberal think tank, told me. “To move a progressive agenda, we need to restore faith in government.”

Another reason that many Democrats would like to prioritize H.R. 1: It’s one of the few issues that unites nearly all factions of the party, so it’s politically feasible. Every single House Democrat voted in favor of the bill. “There’s gonna be an element of, how can you show progressives that you’re in it to win it and willing to go big? There are some things on democracy reform that will really send that message and really do that,” said one aide to a centrist senator, who was not authorized to speak on the record. “Leadership knows that is an issue that would make the left very happy and allow the moderates to deliver on what they’ve promised,” Lanae Erickson, a senior president at the think-tank Third Way, told me.

Democrats believe their reform agenda could be a political winner. “Ending the culture of corruption in Washington” was the top issue for 75 percent of voters in swing districts in 2018, according to a poll from Greenberg Quinlan Rosner Research. That year, 72 percent of candidates on the House Democrats’ list of highly competitive races rejected donations from corporate political action committees, a pledge that became a litmus test during the campaign. That was up from just 6 percent in 2016, according to End Citizens United, a political action committee working to pass campaign-finance reform.

Before they can pass their “democracy reform,” though, Democrats have to decide exactly what that entails. Most progressives interpret the phrase to include not only expanding voting rights, but also establishing D.C. statehood and abolishing the Electoral College, two proposals that are still controversial among rank-and-file members. Public support for both ideas is mixed: More than 60 percent of U.S. adults oppose D.C. statehood, according to a recent Gallup poll, while a majority of Americans support amending the Constitution so the presidential candidate who wins the popular vote wins the election.

But far and away the most serious threat to the effectiveness of a Biden presidency and a Democratic House and Senate is the filibuster, the Senate rule that requires 60 senators, instead of a simple majority of 51, to move forward on most legislation. Even if Democrats win the Senate in November, they very likely won’t have 60 votes, meaning that Republicans could still block legislation from being debated. Progressives have long wanted to abolish the supermajority voting threshold, but the idea has begun to gain traction among other Democrats, too, in recent weeks. Perhaps, some Democrats argue, the filibuster is a natural place to launch their democracy-reform initiative: They can put forward a slew of policies strengthening ethics guidelines and expanding voting rights—including a bill that would restore the Voting Rights Act of 1965—and dare Republicans to vote against it. (The VRA had strong bipartisan support until the mid-2000s.) “It’s a pretty easy argument to make,” the aide to the centrist senator told me. “Democrats would be happy to be like, Look at these fuckin’ guys! They still want to make it difficult for people of color to vote!”

Progressives are enthusiastic about that plan. “If I had to guess how it’s going to happen, it’s going to be, If we can’t pass the VRA, we’re going to get rid of the filibuster,” Adam Green, the co-founder of the Progressive Change Campaign Committee, told me. “Starting with H.R. 1 is a good idea,” Representative Ro Khanna of California told me. “The filibuster could come right next.”

Then again, Democrats might not have any of these options in January. Trump could win the election; Republicans could hold the Senate or even win control of the House. The Democrats could sweep, but have something else at top of mind. Or, some of my Hill sources suggested, Biden may want to start off his first term by pursuing legislation that is more amenable to Republicans, though none of the aides I spoke with could identify what that unifying project might be. When asked about Biden’s own legislative priorities, a campaign spokesperson responded that his No. 1 goal will be “repairing and rebuilding from the economic ruin and public-health crisis caused by Donald Trump’s utter failure to fulfill his basic duty as president: protect America.”

Even if they win full control, though, Democrats won’t have a lot of time. As my colleague Ronald Brownstein noted recently, “the last four times a president—of either party—went into a midterm with unified control, voters have revoked it. … No party has controlled all the levers of government for more than four consecutive years since 1968.” And a President Biden and an incoming Democratic Congress will be facing a mountain of tasks. There will almost certainly be early battles over government funding and coronavirus-response packages.

If Democrats find themselves in the majority again for the first time in more than a decade, though, they are determined not to squander the opportunity. In his July eulogy for Representative John Lewis, Obama implored lawmakers to quickly make changes that protect and expand the right to vote—not for partisan advantage, he insisted, but in an effort to form a more perfect union. Republicans remain skeptical. But Democrats were listening.