The first National Commission on Labour chaired by Justice Ghajendragadkar defined the unorganised sector as that segment of the workforce 'who have been unable to organise in pursuit of a shared goal due to obstacles such as informal nature of employment, ignorance, and illiteracy, the small size of establishments with low capital investment per person employed, scattered nature of establishments and superior strength of the employer operating singly or in combination'.[1]

The 'Task Force on Definitions and Statistical Issues' that the National Commission set up for Enterprises in Unorganised Sector (NCEUS) in 2007 submitted its report, which contains a comprehensive chapter defining the term unorganised sector.[2]

After considering the complexities and definitional issues, it has adopted a wide-ranging definition of unorganised workers. "All those working in the unorganised sector and the workers in the formal sector without any employment security and social security provided by the employers".

The unorganised and informal sectors have been treated the same in the report.[3]

Employment in the informal sector can be identified in any one or more of the following characteristics are present, which include firstly, absence of employment security, that is, there is no safeguard against arbitrary dismissal; secondly, lack of work security, that is, there is no protection for illness and accidents at the place of work and thirdly; absence of social security such as health care, maternity benefits and pension benefits.[4]

On the other hand, there is a recognised human right to free choice of employment, the right to just and favourable work conditions, and protection against unemployment. In industrialised employment, the right to decent working conditions is the outcome of the right to work and the right to adequate wages.[5]

This right enables a worker, as H.J. Laski said in his book 'An Introduction to Politics', "towards attaining significance for himself beyond then getting from his livelihood."[6]

As a result, reasonable working hours, paid holidays, rest and leisure, and other necessary amenities are essential components of living a decent life in a society.

Besides the importance of leisure in reducing fatigue, it also helps maintain good health, which leads to the development of an individual's personality.[7]
Further, Prof. Laski emphasised in his book 'Grammar of Politics' that "the right to reasonable hours of labour is the right to discover the land of the mind. It is the key to the intellectual heritage of the race."[8]

Hence, without the right to working hours and other decent conditions of work, dignity, enjoyment of freedom, and general personality development would remain a fiction for the employees. There is a need to examine the current International Labour Organizations Standards on conditions of employment and adapt the same to Indian Labour Laws.[9]

The I.L.O. Constitution states, "conditions of labour exist involving such injustice, hardship and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are imperilled".[10]

The Concept Of Conditions Of Employment

The contract of employment must specify all the essential aspects of the employment, which may include elements such as the scale of remuneration, including the intervals at which it is paid, that is, whether weekly or monthly basis or at any other point of time, and conditions of employment such as hours of work, entitlement to holidays, including public holidays and paid leaves in case of incapacity to work due to sickness or injury, the title of the job, pension schemes and other social security schemes.[11]

The employer is further required to state any disciplinary rules applicable to the employee, the person to whom the employee can apply if he/she is dissatisfied with any decision relating to his/her terms and conditions of employment, and further, specify a person to whom the employee can apply for seeking remedy for any employment-related grievances.[12]

The concept of 'contract of employment is said to be "the cornerstone of the edifice" of labour laws. There is an absence of a uniform or consistent statutory definition of the concept of 'contract of employment'.

However, the principles of the law of contract apply to the formation of the employment contract, and such a contract is enforceable in the eyes of the law, whether it is oral or written or even formed by conduct.[13]

In the employment contract, consideration forms an essential part and a mere promise to render gratuitous services is not enforceable.

In a contract of employment, there is a promise for the performance of the work. In this kind of work, there is a promise to pay wages for the actual work performance. It is crucial to highlight in this context the fundamental characteristics of labour welfare legislation in India, which are of two kinds, namely welfare legislation which are exclusively applicable in general to workers engaged in the organised formal sector and the other category of welfare legislation sector-specific in character applicable to particular categories of unorganised workers.[14]

The fundamental theme of welfare legislation is that they contain certain norms to be complied with by the employer as a standard of working conditions, so any employment contract should not violate such standards or provide a higher level of standards than the set standards.

The purpose of discussing the issue in the content is to explore the situation of informal sector avocation where no law deals with specific standards of welfare amenities to the workers. In such cases, the employer enjoys an upper hand, ultimately leading to the exploitation of the illiterate.[15]

Cooperation is one of the implicit elements in the employment contract since it is the employer's responsibility to assist each other in carrying out their mutual duties as specified in the employment contract. The employer is required to supply work within the terms of the employment contract, and failing to do so constitutes a breach of the employment contract.

At the same time, the employee should not disregard his work. An employer must provide safe working conditions, and the employer has to select appropriately skilled co-workers.
At the same time, the employee is reciprocally bound to employ reasonable care and skill while performing his/her services.[16]

Fidelity is considered the worker's responsibility; accordingly, he is bound to serve his employer honestly and faithfully.

In industrial law, the employer and the employment relationship are partially contractual and non-contractual. It is contractual when there is an argument concerning paying wages and non-contractual obligations prescribed by legislation, such as the bonus facility underpayment of bonus Act, 1965, duty to pay minimum wage under the Minimum Wages Act, 1948.[17]

Role Of International Labour Organization In Fixing Standards On Conditions Of Employment Relating To Unorganised Sector

During the 1990's period, the world witnessed a shift in the idea of understanding the informal sector, from the sheer size of establishments and productivity to the impact of pastoral work and examination of casualisation of work.

Therefore, two key themes emerged during this period: the effects of globalisation on labour legislation and protection and the discovery of the informal sector.

As a result, I.L.O. made an initiative to include employment as a developmental goal and launched the World Employment Programme (WEP) in 1990.

I.L.O. responded to the discontent of globalisation in the Declaration of Fundamental Principles and Rights at Work and the adoption of the Decent Work Agenda.[18]

The I.L.O. has a high lightened set of core labour principles certified by the international community consequent to the World Summit for Social Development in 1995.
Even if they have not ratified all the member states, they have an obligation from membership in the organisation.

Under the follow-up to the I.L.O. Declaration on Fundamental Principles and Rights at work.

The principles concerning the fundamental rights at work, forming part of core standards in the conventions, are:

1. Freedom of association and the effective recognition of the right of collective bargaining;
2. The elimination of all forms of forced or compulsory labour;
3. The effective abolishment of child labour;
4. The elimination of discrimination in respect of employment and occupation.

These rights are universal and apply to all citizens in all countries, regardless of the economic development level. It highlights the particular needs of groups such as the unemployed and migrant workers. These principles and rights have been defined and developed in the manner of specific rights and responsibilities in foundational Conventions both within and outside the organisation.[19]

These rights have been recognised and set out in the following eight conventions, namely;

1. Freedom of Association and Protection of the Right to Organize Convention, 1948 (No.87);
2. Right to Organise and Collective Bargaining Convention, 1949 (No.98);
3. Forced Labour Convention, 1930 (No.29);
4. Abolishment of Forced Labour Convention, 1957 (No.105);
5. Minimum Age Convention, 1973 (No.138);
6. Worst Forms of Child Labour Convention, 1999 (No.182);
7. Equal Remuneration Convention, 1957 (No. 100);
8. Discrimination (Employment and Occupation) Convention, 1958 (No.111).[20]

Freedom of association and right to collective bargaining
Freedom of association is a fundamental human right proclaimed in the Universal Declaration of Human Rights, 1948.[21]

It enables the right to allow non-state actors to participate effectively in economic and social policies, is fundamental to democracy and the rule of law and ensures that workers and employees have a voice and are represented, therefore it is essential for the effective functioning of not only the labour market but also the overall governance structure in a country.

The issue of collective bargaining is closely linked to freedom of association. It is a crucial means through which employers, their organisations, and their trade unions can establish fair wages and conditions to ensure equal opportunities for men and women.

It is also providing for good labour relations. Collective bargaining may also address the rights and responsibilities of the parties, thus ensuring harmonious and productive industries and workplaces.[22]

Conventions on freedom of association and collective bargaining are Freedom of Association and Protection of the Right to Organise, 1948[23] and Collective Bargaining Convention, 1949.[24]

Elimination of all forms of forced labour
Debt bondage, trafficking, and other contemporary slavery are all examples of forced labour. The most vulnerable victims are women and girls forced into prostitution, migrants enslaved by debt and farm workers kept through plainly unlawful means and receiving little or no remuneration. Even though forced labour is generally condemned, I.L.O. estimates show that 20.9 million people worldwide are still in forced labour.[25]

According to the I.L.O.'s Forced Labour Convention, 1930, forced labour or compulsory labour is all work or service which is exacted from any person under the threat of a penalty and for which the person has not offered himself or herself voluntarily; exceptions are compulsory military service, a regular civic obligation, in case of emergency.[26]
The Abolition of Forced Labour Convention, 1957, prohibits forced labour as a means of political coercion or education, punishment for having participated in strikes, and racial, social, national and religious discrimination.[27]

I.L.O. uses the following strategy to combat forced labour: raise awareness, improve data collection, enhance policies, strengthen legislations, protect victims of forced labour and provide access to remedies.

Abolition of child labour
Significant progress has been made towards eliminating child labour in the last two decades. However, many challenges remain; while the global number of children in child labour has declined by one-third since 2000, 168 million children have been employed, with more than half of them, or 85 million, engaged in hazardous work.[28]

I.L.O.'s mandate in child labour is grounded in two core conventions, namely the Minimum Age Convention, 1973[29] and particularly the Worst forms of Child Labour Convention, 1999.[30]

In the narrower sense, 'child labour' is described as the work that deprives children of their dignity, childhood and potential. It refers to labour that prevents them from attending school or compels them to combine school attendance with an overly long and demanding job.

There are significant distinctions between various types of work in which children are involved; some are challenging and demanding, while others are hazardous. Not all work done by children should be classified as child labour. Children's or adolescent's participation in work that does not affect their health and personal development or interfere with schooling can be regarded as positive.[31]

Elimination of discrimination in employment and occupation
Millions of women and men throughout the world are refused employment and training and are confined to specific employment or provided lesser pay based only on their disabilities, ethnicity, indigenous or tribal status, colour, religion, sex, sexual orientation, political or other ideas, real or perceived HIV/AIDS status.

Barriers to decent jobs often compel parents from an ethnic minority to resort to the labour of their children to make ends meet.

The right to equal opportunity and treatment in work and occupation is a crucial beginning point for combating discrimination. Moreover, involving worker organisations is key to promoting equality in the labour market.[32]

Worker's freedom from discrimination is a vital human right that allows them to select their employment and achieve their potential freely. Increasing workplace equality has considerable economic advantages as well. Employers who practise equality have access to a more extensive and varied workforce.

The struggle against discrimination and gender equality is at the heart of I.L.O. and subject to two fundamental Conventions; the Equal Remuneration Convention, 1951[33] and the Discrimination (Employment and Occupation) Convention, 1958.[34]

International Labour Organization's Decent Work Agenda

According to the I.L.O, the policy approaches that fall within the four contributing pillars to decent work are as follows:

1. Employment creation and enterprise development
   Refers to the promotion of 'employment-rich' growth and growth targeted at helping the poor. It also encompasses policies that enhance productivity and, therefore, competitiveness within the world economy; focusing on local economic development; adopting labour market policies that help generate a more stable employment dimension to the crisis responses (war, famine); and adopting policies that help improve the management and governance of labour migration.
    
2. Social protection
   Relates to the promotion of social justice, cohesion and protection. Relevant policies can provide safety nets to protect consumption capacity or incomes, reducing risk to worker's lives, health and well-being. Policies can include social security, unemployment benefits, essential health provision, health policies addressing H.I.V. and cash benefits for those unable to work because of old age and promotion of pension schemes.[35]
    
3. Standards and rights at work
   This pillar relates to the promotion of compliance with the fundamental principles and rights at work (Core Labour Standards), which all member states of I.L.O. are bound to respect, whether or not they have ratified them, and those other Conventions ratified by other individual states. These policies should contribute to freedom of association, elimination of child labour, abolition of forced labour and promotion of non-discrimination in employment.
    
4. Governance and social dialogue
   This refers to social dialogue between governments, employers and workers to achieve a more comprehensive understanding and acceptance of social and economic policies and greater democratization.
   
   Policies can include; institution-building, promoting collective bargaining, strengthening enforcement, promoting collective bargaining, strengthening dialogue and the consultation process.[36]

Impact Of International Labour Organization's Standards On Indian Labour Legislation

Core Labour Standards	I.L.O. Conventions	Ratification By India	Appropriate National Legislations	Supporting Indian Constitutional Provisions
Child Labour	Worst forms of Child Labour Convention (No.182)	No	The Child Labour (Prohibition and Regulation) Act of 1986.	Articles 24 and 39(e), (f), Articles 41 and 47.
Freedom of Association	Freedom of Association and Protection of right to Organize Convention (No.98)	No	The Trade Union Act, 1926	Article 19(1)(e)
Collective Bargaining	Right to Organize and Collective Bargaining Convention (No. 98)	No	The Industrial Disputes Act, 1947	Article 43A
Minimum Wages	Minimum Wage Convention (No. 131)	No	The Minimum Wages Act, 1948	Article 43
Equal Remuneration	Equal Remuneration Convention (No.100)	Yes	The Equal Remuneration Act, 1976	Article 14, Article 39(a)
Forced Labour	Abolition of forced Labour Convention (No.105) and Forced Labour Convention (No. 29)	Yes	Contract Labour (Regulation and Abolition) Act, 1970	Article 23

As of now, I.L.O. has adopted 190 Conventions and 206 recommendations. Out of 190 Conventions, India has ratified 47 I.L.O. Convention and one protocol which includes labour core or fundamental human rights Conventions.

During 104th session of I.L.C., India supported the adoption of the recommendation on 'Transition from Informal to Formal Economy' by I.L.O.

On condition of work, I.L.O. has adopted 42 Conventions, including a protocol and 36 recommendations.

Concerning conditions of work and conditions of employment, India has ratified the following conventions:

1. Convention No.1 on Hours of Work (Industry), 1919
2. Convention No.14 on Weekly Rest (Industry), 1921
3. Convention No. 26 Minimum Wage-Fixing Machinery, 1928
4. Convention No. 27 Marking of Weight (Packages Transported by vessels), 1929
5. Convention No.32 Protection against Accidents (Dockers) (Revised), 1932

The Factories Act, 1948, The Plantation Labour Act, 1951, The Mines Act, 1952, The Beedi and Cigar Workers (Conditions of Employment) Act, 1996; Building and Construction Workers (Regulation of Employment and Conditions of services) Act, 1996 are some enactments in the direction of the ratification of relevant I.L.O. Conventions in this regard.[37]

Conclusion
Even though India has not ratified several of the I.L.O.'s Conventions, it places high value on the I.L.O.'s labour standards. India believes that ratifying I.L.O.'s Conventions should be gradual, with appropriate time provided to the member states to create favourable conditions for ratification while considering each member state's socioeconomic realities.

However, the I.L.O. is falling behind in recognising the working conditions and well-being of employees employed in open employment and subjected to natural adversities, such as brick kiln workers and ragpickers.

Given the migrant workers, the labour contractor who entrust their service to the principal employer, the industry often may not be interested in securing various welfare benefits for these ignorant labours for their employment.

The state's role is critical in delivering essential welfare benefits to the category mentioned above of workers.

As a result, a more realistic approach is required in this direction.

End-Notes:

1. Report of the National Commission on Labour, 1969, Chapter VII, p.597
2. Report of the 'Task Force on Definitions and Statistical issues' by the National Commission for Enterprises in Unorganised Sector (NCEUS) in the year 2007, p.13
3. Ibid
4. Ibid
5. Article 21, United Nations Universal Declaration on Human Rights, 1948
6. H.J. Laski, An Introduction to Politics, 37 (4th ed. 1939)
7. International Labour Organization, Repercussions of a reduction in hours of work, INTERNATIONAL LABOUR REVIEW, p.24, pp.26-45 (1956)
8. H.J. Laski, Grammar of Politics, 111 (4th ed. 1938)
9. Dipa Gautalir, International Labour Organization's Standards on Conditions of Employment relating to Informal sector workers: An Analysis, KLE LAW JOURNAL (2021), ISSN 2348-2834, pp.64-78
10. I.L.O. Constitution, 1919
11. B.A. Hepple, Employment Law, 53 (3rd ed. 1979)
12. McCreadie v. Thomson and Macintyre Ltd. (1972) I.T.R.86 (N.I.R.C.)
13. E.M. Rao, O.P. Malhotra's The Law of Industrial Disputes, (7th ed. 2019), p.205
14. Denis Keenan, Principles of Employment law, 1st ed., (London: Anderson Keenan Publishing, 1979), p.1
15. Supra Note 13, p. 205
16. Supra Note 13, p.206
17. Supra Note 9, pp.67-68
18. I.L.O., India and the ILO: Chronicle of Shared Journey 1919-2019 (2019: I.L.O., Geneva), p.68
19. I.L.O., Inclusive Labour Markets, Labour Relations and Working Conditions Branch, ILO Departments, (11 Nov. 2016) available at https://ilo.org/global/topics/dw4sd/working-condition/index.com accessed on 10 SEP 2022
20. Ibid
21. Article 20(1) & Article 20(2), Universal Declaration of Human Rights, 1948
22. I.L.O., Freedom of association, ILO-Topics, (17 Nov. 2016) available at https://global topics/freedom-of-association-and-right-to-collective-bargaining/index.com accessed on 10 SEP 2022
23. Freedom of Association and Protection of the Right to Organise, 1948
24. Collective Bargaining Convention, 1949
25. I.L.O., Forced Labour, Human trafficking and slaver, ILO-Topics, (7 Nov. 2016) available at < https://www.ilo.org/global/standard/subjects/forced-labour/index.com > accessed on 10th SEP 2022
26. Forced Labour Convention, 1930(No.29).
27. Abolition of Forced Labour Convention, 1957(105).
28. I.L.O., What is child labour?, ILO IPEC (1 Dec. 2016), available at < https://ilo.org/ipec/facts/index.com >accessed on 10 SEP 2022.
29. Minimum Age Convention, 1973
30. Worst forms of Child Labour Convention, 1999
31. Supra Note 28.
32. I.L.O., Equality and discrimination, ILO-Topics (10 Nov. 2016) available at
    < https://www.ilo.org/global/topics/equality-and-discrimination/index.com > accessed on 10 SEP 2022.
33. Equal Remuneration Convention, 1951
34. Discrimination (Employment and Occupation) Convention, 1958
35. Toolkit for mainstream Decent Work and Employment, I.L.O., April 2007.
36. Supra Note 35
37. Supra Note 9, p.77

Written By: Shiv N.S., B.B.A., LL.B. (Hons) - KSLU's Law School, Hubballi