by Kathyayini Chamaraj
Deccan Herald, May 30 2023
It is time to bring homeowners in gated communities and high-rises under the ambit of labour laws
What is inexplicable is that neither a corrective affidavit has been filed by the labour department while the cases were pending in court, nor have the above judgements been challenged by the Labour Department through appeals for review.
Credit: DH Illustration
What is inexplicable is that neither a corrective affidavit has been filed by the labour department while the cases were pending in court, nor have the above judgements been challenged by the Labour Department through appeals for review. Credit: DH Illustration
In the fast-mushrooming high-rise apartments and gated enclaves in urban areas, where the upper classes, including corporate honchos, are living, a gross lack of human concern is becoming largely manifest in the way the lakhs of workers working as cleaners, security guards, gardeners, etc., for the home-owners’ associations in these high-rises are being treated. The basements of these high-rises may be filled with imported luxury cars, but many of these associations are protesting when asked to pay their workers even the meagre minimum wages being fixed by the government.
Some associations are posing the following questions to deny their workers basic rights to minimum wages, rest days, overtime, etc.: "Are the other apartments on this road paying minimum wages to their workers?" "Let BBMP pay minimum wages to its PKs first, then we can also consider it". "Why should we pay them more when they are working voluntarily for these wages?"
This same lack of concern is evident as one often finds residents of these high-rises complaining about alleged "illegal" and unsightly settlements of slum-dwellers next to their high-rises and wanting them to be evicted. Many of these enclaves may also be vociferous about supposedly "illegal" vendors and hawkers occupying the footpaths in front of their high-rises and want them evicted.
Thus, when labour inspectors filed cases against several home-owners’ associations for not following various provisions of the Minimum Wages (MW) Act with respect to their employees, the associations have promptly gone to court. They have contended that labour laws can only apply to "commercial entities" and that they are neither an 'employer' nor an ‘establishment’ as defined in the Karnataka Shops and Commercial Establishments Act, 1961, or the Contract Labour Act, etc.; and that their employees are not ‘workmen’ as defined under the above Acts, and hence, the initiation of criminal proceedings against them is wholly illegal. But this is not to deny that several RWAs are expressing concern about the lack of labour law protection for these workers.
Unfortunately, the home-owners’ associations have been strengthened in their arguments by several single-judge High Court rulings that have upheld their contentions and made the MW Act inapplicable to them in the following cases: Writ Petition Nos. 18927-18928/2013 dated 10.6.2016; Criminal Petition No. 7983/2016 dated 19.09.2019; Writ Petition No. 49553/2012 dated 10.11.2022.
The judges have relied largely on the law laid down by the Supreme Court in the case of Management of Som Vihar Apartment Owners’ Housing Maintenance Society (reported in 2001 (1) LLJ 1413), wherein it was held that "when personal services are rendered to the members of a home-owners’ society, which is not engaged in any commercial activity, its activity should not be treated as an industry nor their employees as workmen". But this was in relation to the question of whether a home-owners’ association comes under the Industrial Disputes Act and not the MW Act. But, based on this judgement, the several prosecutions instituted against home-owners’ associations for not following the MW Act have been quashed.
What appears to have been overlooked in all these cases is that the MW Act does not say that its provisions apply only to a 'commercial entity'. It has no definition of 'establishment' or 'worker,' circumscribing its applicability. The only requirement under the MW Act is that anyone who employs one or more employees in any scheduled employment in respect of which minimum rates of wages have been fixed is an ‘employer’ and is liable under the MW Act [as per Section 2(e)(iv)].
Hence, as per this definition, there are several employments scheduled by Karnataka under the MW Act that apply even to "personal service being rendered to non-commercial entities." For instance, Schedule 28, 'Employment in Domestic Work, applies to even domestic workers employed by individual householders. In fact, homeowners' associations come under Schedule 42, which has fixed minimum wages for employment in "Hostels, Guest Houses, Home-Stays, Paying Guest Accommodations, Service Apartments, Residents' Associations, Community Halls, and Marriage Halls" since 1996.
In an enlightened and progressive initiative to protect all workers engaged in any kind of employment, the labour department has also brought in Schedule 31, which applies to "employment in any unscheduled employment" and fixes a floor-level minimum wage for them! In light of these schedules, it is debatable how homeowners’ associations cannot be held liable under the MW Act. But despite the existence of these schedules, if labour inspectors file complaints against home-owners’ associations under the MW Act, they are likely to cite the court judgements and send them away.
This situation could have arisen due to a deficiency in the complaint filed by the Senior Labour Inspector, for instance, in Criminal Petition No. 7983/2016. The complaint is restricted to mentioning that the homeowners’ association has failed to implement certain sections of the MW Act and its Central Rules regarding the issue of wage slips, rest days, etc. to its workers. But the complaint does not even cite the existence and violation of the above Schedules 28, 31, or 42 of Karnataka under the MW Act.
What is inexplicable is that neither a corrective affidavit has been filed by the labour department while the cases were pending in court, nor have the above judgements been challenged by the Labour Department through appeals for review, though these judgements have reduced it to a toothless tiger! But what is intriguing is that the Labour Department has continued to issue revised notifications of minimum wages to be paid by residents' associations to their employees every year, even after the court ruled that the MW Act is not applicable to them!
According to a former labour commissioner, the "HC has erred in its judgement." He has suggested that an appeal against the above judgements is necessary and important in order to protect the rights to decent wages, standard working hours, and rest days of lakhs of these informal workers at the margins, save them from exploitation, and enable a life of dignity for them. The situation of these workers within the high-rises and gated enclaves is a classic example of why there is such growing inequality in society.
(The writer is the executive trustee of CIVIC-Bangalore)
