Rethinking Indian Labour Law and Policy in the Age of Artificial Intelligence: A Futuristic Analysis

I. Implications of automation and artificial intelligence on labour and employment – a brief overview

The technology era is witnessing discussions on ‘robotic rights’ and ‘legal personhood to robots’ as Artificial Intelligence (“AI”) systems displace human labour in several industries. However, the resulting effects on human labour and employment and its implications for labour rights has received inadequate attention from legislators in India. According to a study conducted by the World Economic Forum (“WEF”), 85 million jobs may be displaced due to automation by 2025.² Loss of employment due to automation may have implications on diverse aspects of labour law and policy, which will have to undergo major amendments to accommodate the transition into a highly automated economy.

Automation of jobs may have implications on multiple aspects of the labour market, and consequently, on several areas of labour law. For example, automation of jobs will re-define the working relationships between employers and employees, and also between human labour and robotic labour. Indian labour legislation will have to provide safeguards against dismissal or termination on technological grounds³, as employers may arbitrarily terminate or breach employment contracts after automation of jobs. Further, the use of Big Data, People Analytics and other AI-enabled surveillance systems by employers may raise concerns over privacy of employees⁴. Surveillance changes the dynamics of working relationships and allows the employer to have unparalleled authority over workers. Since labour law attempts to balance the rights of employers and employees, provisions concerning worker privacy will have to be introduced, to protect worker’s rights.

Further, the co-existence of human and robotic labour will mean that practices for ensuring the safety of workers will have to be enforced, as they interact with AI systems or machines. The occupational safety and health of the workers, both physical and mental, may be affected by the changed relationships of workers with their employers and lack of social interaction due to automation of tasks. Most importantly, collective bargaining will acquire new dimensions as workers will re-negotiate their employment contracts and seek safeguards against dismissal due to technological grounds⁵. Relocation of workers to other employment positions, skill upgrade or payment of adequate compensation will acquire significance in the sphere of labour rights.

In 2020, significant reforms were introduced in labour legislation with the introduction of the three new labour codes, namely:

1) The Industrial Relations Code, 2020⁶

2) The Code on Social Security, 2020⁷ and

3) The Occupational Safety, Health and Working Conditions Code, 2020⁸.

However, it is unfortunate that the new labour codes do not incorporate provisions relevant to India’s transition to an automated economy in the near future, where the employment of robots will have serious implications on the many facets of labour rights. Legislative amendments with a futuristic approach shall ensure preparedness by the regulatory framework in tackling with transitions into AI-enabled workplaces.

In the next part, the author proposes specific amendments to Indian labour legislation under various heads as a general framework for protecting labour rights in the face of ‘AI-invasion’.

II. Proposed amendments

Amendments to Provisions on Trade Unions

At the outset, before discussing the proposed amendments to provisions on trade unions, the author proposes a proviso to S. 2 (m)⁹ of the Industrial Relations Code, 2020, which defines the term ‘employer’. The proviso may be as such:

Proviso: Notwithstanding anything contained in the Code or any other law in force, an employer shall be construed to include any AI system/robot engaged in the capacity of an employer.

For the purposes of S. 14 of the Code, every such robotic ‘employer’ shall be subject to human command and oversight, for interaction with workers on collective bargaining.

Legislative Reform for Hiring of Workers

The use of AI in filtering resumes and guiding the hiring and firing procedure has become commonplace. Although it has made the task of recruitment more convenient and time-bound, there are challenges that come with such use. Although AI systems can be trained to be neutral decision-makers, they may be inaccurate in their assessment, in cases where the entered data may contain biased information, or when the algorithm begins to ‘learn’ from the inputs it receives.¹⁰ In the US, several states have proposed bills and have enacted legislation to regulate the use of AI for the hiring process. For example, the Illinois Artificial Intelligence Video Interview Act¹¹ provides a number of safeguards to potential workers/employees by providing for a mandatory prior notice about the use of the AI system, informing the applicant about the features of the AI system, obtaining the consent of the interviewee to the use of the AI system etc.

With the increasing use of AI for recruitment and hiring, India must also enact an Artificial Intelligence Video Interviews Act, which provides, inter-alia, for the following safeguards:

1) “No use of an AI system can be made without obtaining the prior consent of the applicant.”

2) “A notice containing details about the characteristics of the AI system and its use in the hiring process must be sent reasonably in advance to the applicant.”

3) “The employer shall exercise due diligence in ensuring that the AI system is reasonably accurate and free from bias”.

Amendments Concerning Termination, Lay-Off or Dismissal of Workers Due to Displacement by AI Systems

S. 40¹² of the Industrial Relations Code provides, “No employer, who proposes to effect any change in the conditions of service applicable to any worker in respect of any matter specified in the Third Schedule, shall effect such change, (i) without giving to the workers likely to be affected by such change a notice in such manner as may be prescribed of the nature of the change proposed to be effected; or (ii) within twenty-one days of giving such notice”.

Further Chapter IX of the Code contains provisions that safeguard workers against lay-off, retrenchment and closure of industrial establishments. However, nowhere under the Industrial Relations Code has a specific provision been enacted that addresses dismissal of workers on grounds of displacement by robots/machines/AI systems. If we look at parallel provisions in the French Labour Code¹³, under Article L. 1233-3, provides that a dismissal shall be considered as a dismissal on economic grounds if it is decided by the employer for one or more reasons not related to the employee, one of which includes technological grounds of dismissal. A parallel provision under the Industrial Relations Code, 2020 will serve to protect workers against arbitrary dismissals on technological grounds. Further, an inclusion of such a provision may lead to evolution of jurisprudence on labour rights, and a new obligation may be created on employers, i.e., an obligation or duty to restrain or adapt an employee to the changed working environment, or alternatively, to provide for alternative employment or compensation.

The provision may be included as such:

“Any dismissal by the employer on technological grounds, shall provide prior notice of at least 30 days, and reasons justifying the dismissal.”

Further, a duty to restrain or adapt the employee to the changed workplace, rather than firing the employee, can be included as such:

“Every employer who dismisses an employee on technological grounds must exercise reasonable restraint in terminating the contract of employment, and as far as practicable, efforts shall be made to restrain and/or adapt the employee to the new working environment”.

III. Conclusion

The author observes that the Indian labour law framework lacks preparedness to accommodate a smooth transition into an AI-enabled economy. The three labour Codes introduced in 2020 contain very few provisions that can effectively be utilised by employees as safeguards against displacement by AI systems. The author’s proposals for amendment are limited to the provisions on trade unions, lay-off, retrenchment and closure and recruitment of employees. The amendments proposed may provide an outline to introducing more elaborate and specific changes in labour legislation by Parliament. The penetration by AI systems may happen faster than what is expected and without simultaneous creation of new jobs, the disruption in the labour market may result in a crisis for employees. Therefore, the amendments must be introduced within the legislative framework in the immediate future. The discussion on ‘robotic rights’ must therefore be preceded by a discussion on ‘human rights’ and ‘labour rights’, to ensure that human labour rights do not suffer at the cost of automation of work.

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Footnotes

1. Author is a Student at Symbiosis Law School, Pune, India.

2. The Future of Jobs Report, 2020, WORLD ECONOMIC FORUM (20. Oct., 2020), https://www.weforum.org/reports/the-future-of-jobs-report-2020. ↩

3. Soulier Avocats, Labor law and the challenges of Artificial Intelligence: 3rd part of a trilogy, SOULIER AVOCATS LAWYERING (30 Nov., 2018), https://www.soulier-avocats.com/en/labor-law-and-the-challenges-of-artificial-intelligence-3rd-part-of-a-trilogy/. ↩

4. Antonio Aloisi & Elena Gramano, Artificial Intelligence is Watching You at Work: Digital Surveillance, Employee Monitoring, and Regulatory Issues in the EU Context, 41 CLLPJ 101, 102-103 (2019), https://cllpj.law.illinois.edu/archive/vol_41/download?id=1734. ↩

5. Aida Ponce Del Castillo, Labour in the Age of AI: Why Regulation is Needed to Protect Workers, ETUI (2020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3541002. ↩

6. The Industrial Relations Code, 2020 ↩

7. The Code on Social Security, 2020. ↩

8. The Occupational Safety, Health and Working Conditions Code, 2020. ↩

9. The Industrial Relations Code, 2020, S. 2 (m). ↩

10. Joseph C.O’ Keefe, Tony S. Martinez & Edward C. Young, AI, Machine Learning and Big Data, 2021, GLOBAL LEGAL INSIGHTS (2021), https://www.proskauer.com/pub/artificial-intelligence-employment-law-risks-and-considerations. ↩

11. The Artificial Intelligence Video Interview Act, (820 ILCS 42/). ↩

12. The Industrial Relations Code, 2020, S. 40. ↩

13. French Labour Code, Art. L. 1233-3. ↩