Labour Codes: Occupational Safety, Health & Working Conditions Code, 2020
Implications & Impact on Employers & Employees –
Written By:
Vasudevan V.
Head, Labour Advisory Cell, EFI
General Counsel & ICC Member for Smollan-HUL JV, Certified Corporate Governance Professional & Member of Core Advocacy Committee – Retailers’ Association of India (RAI)
The Constitution of India provides for the democratic function of the Govt. of India. It is a machinery by which laws are made. It provides detailed provisions for the rights of the citizens and also lays down the Directive Principles of State Policy which inter alia provides for securing social order for welfare of people, just & humane conditions of work & etc. The Government is committed to regulate all economic activities for management of safety and health risks at workplaces and to provide measures so as to ensure safe and healthy working conditions for every working man and woman in the nation. It recognizes that safety and health of workers has a positive impact on productivity and economic and social development. The second National Commission on Labour, in its report in June 2022, had recommended that the existing set of Labour laws should be broadly amalgamated into industrial relations; wages, social security, safety and welfare and working conditions.
The Occupational Safety, Health & Working Conditions Code, 2020 (OSHWC)
OSHWC consolidates and amend the laws regulating the occupational safety health and working conditions of the persons employed in an establishment and the matters connected. The definition of “establishment” has a wide coverage of any place where any industry, trade, business, manufacturing or occupation is carried out in which 10 or more workers are employed
The following Acts are consolidated in to OSHWC.
- The Factories Act, 1948
- The Plantations Labour Act, 1951
- The Mines Act, 1952
- The Working Journalist and other Newspaper Employees (Conditions of Service and Miscellaneous Provision) Act, 1955
- The Working Journalist (Fixation of rates of wages) Act, 1958
- The Motor Transport Workers Act, 1961
- The Beedi and Cigar Workers (Conditions of Employment) Act, 1966
- The Contract Labour (Regulation and Abolition) Act, 1970
- The Sales Promotion Employees (Conditions of Service) Act, 1976
- The Cine Workers and Cinema Theatre Workers Act, 1981
- The Dock Workers (Safety, Health and Welfare) Act, 1986
- The Building & Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996
- The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979
The EFI conducted a special webinar titled, Safety, Self-Reliance and Risk Mitigation, as an interactive awareness session, high lighting the key aspects of the OSHWC Code, on 6th May, 2022. This article focusses on the essential provisions of this Code and how to maximise Governance. Prevention is an integral part of economic activities as high safety and health standard at work is as important as good business performance for new as well as existing industries.
Key Definitions (short)
- Employee – covers all categories including managerial
- Employer – covers all employment, direct, indirect, or through other person…
- Establishment – a place where any industry, trade, business, manufacturing or occupation is carried on, in which ten or more workers are employed…
- Factory – covers twenty or more workers …….
- Hazardous process – any process or activity in relation to an industry or plantation ……
(i) cause material impairment to the health of the persons engaged in or connected
therewith, or
(ii) result in the pollution of the general environment - Industrial premises – …in which or in any part of which any industry, trade, business, occupation or manufacturing is being ordinarily carried on with or without the aid of power and includes a go-down attached thereto
- Occupier – the person who has ultimate control over the affairs of the factory…
- Principal employer –
- in a factory, the owner or occupier of the factory and where a person has been named as the manager of the factory, the person so named;
- in a mine, the owner or agent of the mine;
- in relation to any other establishment, any person responsible for the supervision and control of the establishment…
- Producer – in relation to audio-visual production, means the company, firm or other person by whom the arrangements necessary for producing such audio-visual (including the raising of finances and engaging audio-visual workers for producing audio-visual) are undertaken.
Duties of Employer
- ensure that workplace is free from hazards which cause or are likely to cause injury or occupational disease to the employees;
- comply with the OSH standards ……. under this Code;
- provide such annual health examination or test free of costs….
- provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of the employees;
- ensure the disposal of hazardous and toxic waste including disposal of e-waste;
- ensure that no charge is levied on any employee, …….
- The Employer of construction work or plantation, ensure and be responsible for the safety and health of employees, workers and other persons who are on the work premises of the employer, with or without his knowledge, as the case may be.
Duties of Designers, manufacturers, Importers or suppliers
The Code has extensive coverage of the industry, including Designers, Manufacturers, and Importers & Suppliers and cast certain duties for these categories, viz.
- ensure, so far as is reasonably practicable, that the article is so designed and constructed in the establishment as to be safe and without risk to the health of the workers when properly used;
- carry out or arrange for the carrying out of such tests and examination in the establishment as may be considered necessary for the effective implementation of the provisions of clause (a);
- take steps as may be necessary to ensure that adequate information will be available—
- in connection with the use of the article in any establishment;
- about the use for which such article is designed and tested; and
- about any conditions necessary to ensure that the article, when put to such use, shall be safe, and without risk to the health of the workers
Notice of certain accident by Employer
Section of 10 of the code mandates notification of an accident which causes death, or which causes any bodily injury by reason of which the person injured is prevented from working for a period of forty-eight hours or more immediately following the accident or, by the Employer. This provision also empowers the authority to make an inquiry into the occurrence within 2 months.
Notice of certain Dangerous occurrences
Section 11provides that in the event of any dangerous occurrence of such nature, (whether causing any bodily injury or disability, or not) the employer shall send notice thereof to such authorities, and in such form and within such time, as may be prescribed by the appropriate Government.
Duties of Employees:
The Code also casts certain duties on the Employees, viz., take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions at the workplace;
- comply with the safety and health requirements specified in the standards;
- cooperate with the employer in meeting the statutory obligations of the employer under this Code;
- if any situation which is unsafe or unhealthy comes to his attention, as soon as practicable, report such situation to his employer or to the health and safety representative…….
- not willfully interfere with or misuse or neglect any appliance, convenience or other thing provided at workplace for the purpose of securing the health, safety and welfare of workers;
- not do, willfully and without reasonable cause, anything, likely to endanger himself or others; and
- perform such other duties as may be prescribed by the appropriate Government.
- Right to obtain from the employer information relating to employee’s health and safety at work and represent to the employer directly or through a member of the Safety Committee…. regarding inadequate provision for protection of his safety or health in connection with the work activity in the workplace, and if not satisfied, to the Inspector-cum-Facilitator.
- Where the employee has reasonable apprehension that there is a likelihood of imminent serious personal injury or death or imminent danger to health, he may bring the same to the notice of his employer directly or through a member of the Safety Committee ….and simultaneously bring the same to the notice of the Inspector-cum-Facilitator.
- Shall take immediate remedial action if he is satisfied about the existence of such imminent danger and send a report forthwith of the action taken to the Inspector-cum-Facilitator in such manner as may be prescribed by the appropriate Government.
- If the employer…. is not satisfied about the existence of any imminent danger as apprehended by his employees, he shall, nevertheless, refer the matter forthwith to the Inspector-cum-Facilitator whose decision on the question of the existence of such imminent danger shall be final.
Duty not to interfere with or misuse things
The Code also casts an obligation on the employee not to intentionally or recklessly interfere with, damage or misuse anything which is provided in the interest of health, safety or welfare and in particular the Standards notified.
Standards
- physical, chemical, biological and any other hazards to be dealt with for the working life of employee to ensure to the extent feasible on the basis of the best available evidence or functional capacity, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to such hazards;
- the norms—
- appraising the hazards to employees and users to whom such hazards are exposed;
- relating to relevant symptoms and appropriate energy treatment and proper conditions and precautions of safe use or exposure;
- for monitoring and measuring exposure of employees to hazards;
- for medical examination and other tests which shall be made available, by the employer or at his cost, to the employees exposed to hazards; and
- for hazard evaluation procedures like safety audit, hazard and operability study, fault free analysis, event free analysis and such other requirements
Safety: Committee & Officers
In every establishment which is a—
(a) factory wherein five hundred workers or more; or
(b) factory carrying on hazardous process wherein two hundred fifty workers or more; or
(c) building or other construction work wherein two hundred fifty workers or more; or
(d) mine wherein one hundred workers or more, are ordinarily employed, the employer shall also appoint such number of safety officers, who shall possess such qualifications and perform such duties, as may be prescribed by appropriate Government.
Health, Safety & Working Conditions
(i) cleanliness and hygiene;
(ii) ventilation, temperature and humidity;
(iii) environment free from dust, noxious gas, fumes and other impurities;
(iv) adequate standard of humidification, artificially increasing the humidity of the air, ventilation and cooling of the air in work rooms;
(v) potable drinking water;
(vi) adequate standards to prevent overcrowding and to provide sufficient space to employees or other persons, as the case may be, employed therein;
(vii) adequate lighting;
(viii) sufficient arrangement for latrine and urinal accommodation to male, female and transgender employee separately and maintaining hygiene therein;
(ix) effective arrangements for treatment of wastes and effluents; and (x) any other arrangement which the Central Government considers appropriate
Compoundable Offences
The provisions of the Labour Codes, in general, provide for compounding of the first offence (provided that the such offence requires only fine, or imprisonment up-to One Year)
- The 1st offence can be compounded by 50% fine payment.
- For recurrence within 5 years, no option provided for compounding and prosecution shall be initiated.
The Rate of fine varies from 50,000 to 25 Lacs (IR Code being the highest of penalties)
Opportunity before Prosecution.
The provisions of Section 110 require an opportunity to be given to the employer for complying with the relevant provisions before initiating prosecution proceedings against them. If the employer complies with such provisions within the specified duration, then no criminal proceedings will be initiated against them. In the event of Accident, no such opportunity shall be accorded However, no opportunity will not be provided to the employer, in case of an accident, and if a violation of the same nature of such provisions is committed by the employer, within 3 years of the date of commission of the first violation
Occupier: Definition – Section 2 (zs)
“occupier” of a factory means the person who has ultimate control over the affairs of the factory:
(i) in the case of a firm or other association of individuals, any one of the individual partners or members thereof
(ii) in the case of a company, any one of the directors, except any independent director within the meaning of subsection (6) of section 149 of the Companies Act, 2013″
any one of the above persons shall be deemed to be the occupier,
The employer or the principal employer of the establishment, as the case may be, shall be liable to penalty which shall not be less than Rs.2 Lakhs but which may extend up to Rs.3 Lakhs and if the contravention is continued after the conviction, then, with further penalty which may extend to Rs.2,000/day till such contravention continues.
Opportunity to comply:
The Employer to get a 30 days’ notice before initiating of proceedings, by way of a notice from the Inspector /Facilitator, but it is not applicable in case of an accident and if the violation of the same nature is repeated within a period of three years from the date on which such first violation was committed and in such case the prosecution shall be initiate. Complaint of prosecution to be filed before the competent Court within 6 months of the date on which the alleged commission of the offence came to the knowledge of the Inspector-cum-Facilitator.
Jurisdiction of Courts
The place where the establishment is for the time being situated, shall be deemed to be the place where such offence has been committed
Power of Court
FACTORY/MINE: the court may, in addition to awarding any punishment, require within the period specified in the order (which may be extended by the court from time to time on application made in this behalf) to take such measures as may be specified in the order for remedying the matters in respect of which the offence was committed. Where an order is made , the employer shall not be liable… during the period or extended period, if any, but if on the expiry of such period or extended period the order of the court has not been fully complied with, employer shall be deemed to have committed a further offence and shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one hundred rupees for every day after such expiry on which the order has not been complied with, or with both.
Kerala High Court – Liability of any Director, when the “occupier” for a factory is not notified
The Supreme Court, while dealing with appeals/petitions on fatal accidents has taken a stern and consistent view. In a recent case of an employer (Sabu M Jacob vs. State of Kerala & Anr, Special Leave to Appeal No. (Crl.) 74/2022, affirmed that “we are not inclined to entertain the Special Leave Petition” and accordingly dismissed the case. This Appeal arose out of the judgement of the Kerala High Court, wherein, inter alia, upholding the deeming provision of the Occupier under Section 2 (n) under the Factories Act was challenged. It is pertinent to cite the relevant portion of the Judgement, as below:
“… it is true that the principles of vicarious liability is alien to criminal jurisdiction, under normal circumstances. However, when the statute prescribes culpability upon a specific person, on the basis of the position he is holding on the institution, there is no illegality in holding liable of such person for the offence alleged. In this case, by virtue of deeming provision contained under Section, 2(n) of the Act, any of the directors of the company can be treated as occupier of the company and in the absence of any other materials indicating nomination or intimation of the occupier the petitioner (the Managing Director,) can be prosecuted by treating him as the occupier of the Company, on the strength of the deeming provision.”
Therefore, it is inevitable for any Company to ensure valid nomination for every factory (even for establishments, when the effective date of implementation of the Code is notified) of Occupier and establish a methodical process to ensure that each factory/establishment maintains all standards and process as applicable under the Code and the relevant Rules in force.
Global Scenario
Globally, an estimated 2.9 million deaths and 402 million non-fatal injuries are attributed to occupational accidents and diseases Occupational accidents and diseases cost 5.4% of the global GDP annually.
A scientific article published in the National Medical Journal of India, 2016, indicates prevalence of occupational diseases such as silicosis and byssinosis. Byssinosis is a disease of the lungs caused by breathing in cotton dust or dust from other vegetable fibers such as flax, hemp, or sisal while at work.
Under-utilized Reporting Systems: A reliable occupational accident and disease reporting system is vital for remedying victims and making effective prevention policies for safer and healthier workplaces. While India has such a mechanism, it is underutilized, with many injuries, accidents, and diseases going unregistered.
Effective implementation of the code of OSH and working conditions of 2020 will extend OSH protection to more sectors, especially to informal workers who make up nearly 90% of India’s workforce.
At the national level, the government needs to include all relevant ministries to ensure that workers’ safety and health are prioritized in the national agenda.
At the state level, workers’ and employers’ organizations, by way of bilateral discussions, must incorporate safety and health training at every level of their supply chains to ensure protection from workplace injuries and diseases.
Emerging Risks – E Bikes
“Necessity is the mother of inventions”-it equally brings new risks to the fore. Taking cognizance of repeated incidents of electric two-wheelers catching fire, Union Transport Minister Nitin Gadkari said the government will announce ‘quality-centric’ guidelines for manufacturers of electric vehicles (EVs) while also warning them of heavy penalties in case of negligence.
The Ministry of Road Transport and Highways (MoRTH) had constituted an expert committee to examine EV manufacturing issues, especially those related to two-wheelers, and make recommendations to be added to the upcoming guidelines.
Health & Safety are an integral part of lives and one can’t isolate this risk, as that of only the E-bike users. Such emerging risks be it of two wheelers or of any motor vehicle or even devices should be approached holistic by the Government and the Industry. For instance, the E-bike risk is equally a concern for the industry, from the point of employees’ safety and also the fact that such vehicles, which may be parked at the employers’ premises may be a potential danger for the whole premises.
Role of EFI
While the EFI’s recent webinar “Safety, Self-Reliance and Risk Mitigation” focused on key issues in general, EFI’s Legal Advisory Cell is empaneling industry expertise from diverse sectors, to discuss various issues, with specific focus on Safety & Health and would be glad to conduct dedicated sessions for its member organizations and also more webinars, need basis. You may write to efisolar@gmail.com
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