Basic Comparison of Labour Laws - INDIA vs. BRAZIL

It is a widespread misconception that an employee has no or very minimal rights as compared to that of the employer and that the employer may treat their employee as they wish^[1]. To ensure such a thing doesn't happen, there are laws that have been put into place to ensure that employee’s are not treated as 'worker bees'^[2]. Along with certain other welfare measures that are introduced which ensure employees can enjoy a reasonable standard of living both in employment and after retirement. These laws which are present there to protect the rights and dignity of the employees are know as Labour Laws. 

Labour law is also referred to as employment law; as such, it mediates many aspects of the relationship between trade unions their employers and employees. In simpler words, Labour law ''defines the rights and obligations of workers, union members and employers in the workplace''. 

The elements and characteristics of Labour Law are somewhat less homogeneous in nature than the rules governing a particular legal relationship. In addition with the individual contractual relationships growing out of the traditional employment situation, Labour Law deals with the statutory requirements and collective relationships that are increasingly necessary in mass-production which is seen in today's societies.

Labour Law in India

Indian labour law refers to laws regulating labour in India. The Constitution of India formulated in 1950 embedded a series of fundamental labour rights in the constitution, particularly the right to join and take action in a trade union, the principle that there should be equality at work, and the aspiration of creating a living wage with decent working conditions. To support all of these rights, many articles have been formulated and put into the constitution.

Traditionally, the Indian government at both federal and state level has tried to ensure a high class of safety for workers, but in reality, legislative rights only cover a small fraction of workers^[3]. Due to its federal form of governance, all labour matters are sent to the central and state governments. This causes a further divide as both central and state governments have enacted their own laws on labour relations and employment issues and thus prolongs the matter indefinitely. 

Following are the main sources of labour rights in the India:

1. Constitution -  Articles 14, 15, 16, 19(1)(c), 23, 24, 38, 41 & 42
2. Building and other construction workers Act, 1996
3. Contract Labour Act, 1970
4. Factories Act, 1948
5. Industrial Disputes Act, 1947
6. Industrial Employment Act, 1946
7. Minimum Wages Act, 1948
8. Shops & Establishment Acts
9. Trade Unions Act, 1926

Do contracts of employment have to be in writing in ‘India’ ? 

Indian labour laws do not focus on written contracts, they don't specifically direct the employer to provide a written contract of employment to a new employee. A contract of employment can be communicated orally as well and it will be regarded as fully valid. 

What rights do trade unions have?

Trade Unions that are registered, act as a corporate by the name under which it has been registered. Therefore, when a trade union registers, it obtains legal recognition and therefore earns a corporate seal. It then obtains the right to -

1. Contract by itself or through agents.
2. Hold movable and/or immovable property in its name. 
3. Maintain funds which cannot be spent on objects other than specified in the Trade Unions Act. 
4. Can also sue or be sued subject to immunities that have been given in the Trade Unions Act. 

One of the basic functions of the Trade Unions Act is to represent and negotiate on behalf of employees with the employer in matters regarding dispute and settlement of employment matters.

Labour Law in Brazil

The Consolidation of Labour Laws, whose acronym is CLT, regulates labour relations, both urban and rural labour. The CLT arose by Decree-Law No. 5, 452, on May 1, 1943, sanctioned by then President Getúlio Vargas, unifying all existing labour laws in Brazil. Its main objective is the regulation of the individual and collective relations of labour law, foreseen in it. 

The CLT is the result of 13 years of work, from the beginning of the Estado Novo until 1943. This unification has been done by prominent jurists, who worked hard to create a labour law that would meet the need for worker protection, within a context of "regulatory state". Since its publication it has undergone several changes, aiming to adapt the text to modernity.

Labour Law in Brazil is regulated, mainly, by the following sources:

1. Constitution - Articles 6, 7 and 8
2. Labour Code - Law 605/1949, Law 4.090/1962, Law 5.889/1973, Law 6.019/1974 etc.
3. Ordinance MT - 3.214/1978

Do contracts of employment have to be in writing in ‘Brazil’? 

The CLT does not require written employment agreements at any given time; but, in order to secure a better level of certainty, it is recommended that written agreements be given.

What rights do trade unions have?

There are 2 different kinds of Trade Unions, one Trade Union that represents workers and the second Trade Union that represent employers of the similar industry. The rights and responsibilities of Trade Unions in Brazil are regulated by Article 8 of the Federal Constitution and by Articles 511 to 539 of the Labour Code.

Unions have the following rights: 

• Speak for employers or workers on behalf of them of a specific industry before the executive, the judiciary and the legislative

• Work out and accomplish Collective Bargaining Agreements 

• Trade unions can also collect fees from the employers or from the workers that are members of the specific Union.

Proposition 

Labour laws in Brazil are an employees dream come true. With great working condition comes even better benefits. In terms of salary, they are subject to readjustment at least once a year, along with the annual pay-rise date of the worker. 

With the new labour reform, the prevalence of the Collective Agreement (negotiation between company and union) over Collective Conventions will be guaranteed, granting significant importance to the unions when negotiating contractual conditions for the category they represent.^[4]

In addition to these, some conventions and collective bargaining agreements also provide instances of guaranteed employment, such as the minor at the age of military service, employee injured at work or suffering from an occupational disease, for a given period for the workers of a company etc.

The labour laws in India however aren't as justified as that of Brazil. The Indian Labour law needs to be given a higher level of priority and is imperative that its executed properly so that it can benefit the employees. Despite having several acts with respect to labour law, the implementation of such acts is taken less seriously in India unlike the execution of other civil and criminal laws.

A few key pointers on which India can improve in and learn from Brazil - 

1. There should be freedom of association and the right to organise convention. 
2. India should focus on right to organise and collective bargaining convention. 
3. Also the minimum age convention. 
4. It should improve its form of child labour convention.

The labour laws in India are very rigid. These inflexible laws are reason behind reduced employment opportunities^[5]. All outdated labour laws constraint India’s manufacturing need to be reformed. There should be growth of secondary and tertiary sectors of our economy beyond 30% since they are labour intensive and creating job opportunities in these sectors. 

One of the key constraint regulations, is the Industrial Dispute Acts that requires a firm employing more than 100 workers to seek permission from its state government for laying off workers. It should be increased in numbers from 100 workers to more than a 100. Changes can be made by state governments by raising the minimum membership for registration of a representative union from its current percentage which will further lead as an attempt to reduce managerial and labour time lost in building consensus among multiple unions. 

Conclusion 

In a dynamic context, laws need to be reviewed from time to time. Hence, it very much essential to update and review the labour laws in order to bring them in tune with the emerging needs of the economy including attaining higher level of productivity and increasing employment opportunities, etc. Since the time labour laws were framed for India had clear aim of breaking the ability of labour to build unions and organise against exploitation. States should harmonise relations between workers and employers rather than creating spaces where workers can build their own organisations.

In most cases, the protections in the laws applies only to big enterprises that are easier to regulate. The workers working for small employers, in the “un-organised sector” etc. receive no legal protection effectively. Moreover, workers who fight within the legal machinery find themselves divided on the basis of type of establishment they work in. 

All the above and many more labour law issues have been analysed and I arrived at a conclusion that Codification of labour laws is a desirable long-term goal. However, certain practical difficulties may arise in operationalising this. Labour laws should be centralized in a few cognate groups to minimise multiplicity of laws for even better enforcement and more effective compliance. This should aid us in stepping closer and achieving a uniform labour policy.

Citations 

1. Borzaga, Carlo, et al. “Social and Solidarity Economy and the Future of Work* This Paper Draws on a Work That Was Previously Published by the ILO and Is Available at:  

wcms_534326.pdf (ilo.org)

2. Berke, Jeremy. “Japan Is Facing a 'Death by Overwork' Problem - Here's How Companies Are Combatting It.” Business Insider, 25 Mar. 2018, Japan is facing a 'death by overwork' problem - here's how companies are combatting it | Business Insider India

3. “5 Contentious Issues Holding up India's Labour Law Reforms.” Business Today, 11 July 2019, 5 contentious issues holding up India's labour law reforms (businesstoday.in)

4. Digital, Big Fish. “12. Labor Law In Brazil - Brief Overview.” Swisscam Brasil, 31 Aug. 2020, 12. Labor Law In Brazil - Brief Overview | Swisscam Brasil

5. Seshadri, Suresh. “Are India's Labour Laws Too Restrictive?” The Hindu, The Hindu, 15 May 2020, Are India’s labour laws too restrictive? - The Hindu