The OSHWC Code

The Occupational Safety, Health and Working Conditions Code, 2020 ("OSHWC Code") deals with health, safety and well-being of employees and replaces 13 central Acts. Key aspects of the OSHWC Code include:

• Amalgamation - The OSHWC Code amalgamates The Factories Act, 1948; The Plantations Labour Act, 1951; The Mines Act, 1952; The Working Journalists and other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955; The Working Journalists (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 Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979; The Cine-Workers and Cinema Theatre Workers (Regulation of Employment) Act, 1981; The Dock Workers (Safety, Health and Welfare) Act, 1986; The Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996

• Threshold - The OSHWC Code applies to all defined establishments, that employ 10 or more However, the total regulation of factories applies when they have 20 or more workers (in case of factories using power) and 40 or more workers (in case of factories not using power). Between 10 and 20 workers, the establishment is only required to register itself. In a mine or a dock, the code applies irrespective of the strength of workers.

The State Government can exempt any new factory from the provisions of the OSHWC Code in order to create more economic activity and employment.

There is current ambiguity as to whether the OSHWC Code will prevail over the state specific shops and establishments legislations in relation to commercial establishments in India. While the OSHWC Code repeals 13 central laws, it does not subsume the state laws. This matter will require further clarity.

• Work hours, leave, overtime - The OSHWC Code provides for a work day of 8 hours per day and 6 days a A worker is entitled to one day of annual leave for every 20 days of work per year if he has worked for 180 days or more in that calendar year. Overtime will be computed at twice the rate of daily wages and the worker needs to consent to working overtime. The carry forward limit of leaves is generally capped at 30 days. Any leave in excess of 30 days should be encashed at the end of the calendar year. The worker also has the option to encash any or all accrued leave at the end of the year, rather than carrying it forward. Leave should also be encashed at discharge/dismissal of the worker Shift regulations – For Night shift workers, any time past midnight will count as the previous day. The weekly rest period will starts from the actual shift end and not midnight. There cannot be simultaneous relays of shift work, where the same work by multiple groups is prohibited.

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• Health, Safety and Working Conditions - An employer is required to maintain in the establishment health, safety and working conditions for employees as may be notified by the Central Welfare facilities for employees will be notified by the Central Government, including (a) bathing places and locker rooms for male, female and transgender employees separately; (b) first aid boxes, and (c) crèches.

• Women workers - Female workers may work past 7 pm and before 6 am with their consent and if approved by the Government.

" Duties of an employer -

• Issue a letter of appointment to every employee on his appointment in the If not previously issued, existing employees must receive letters within 3 months of the OSHWC Code implementation

• Ensure that the work place is free from hazards which cause or are likely to cause injury or occupational disease to the employees;

• Provide annual health examination to all employees;

• Additional duties of an employer of factory, mines, dock, building and other construction work or plantation include provision of a risk-free environment, training and supervision as necessary to ensure the health and safety of all employees at work;

• Notice of accident - An employer is required to send a notice to the authorities if an accident occurs which causes death, or which causes any bodily injury by reason of which the person injured is prevented from working for a period of 48 hours or more immediately following the

• Contract workers - This covers establishments or contractors employing 50 or more workers and manpower supply contractor who has employed 50 or more contract labour, an increase from the previous threshold of 20 contract

Contract labour prohibited in core activities except where: (i) the normal functioning of the establishment is such that the activity is ordinarily done through contractor, (ii) the activities are such that they do not require full time workers for the major portion of the day, or (iii) there is a sudden increase in the volume work in the core activity which needs to be completed in a specified time. Appropriate government to decide whether an activity of the establishment is a core activity or not.

A list of non-core activities have been included in the OSHWC where the prohibition will not apply, including: sanitation workers, security services, canteen services, courier services, transport services, civil and construction works etc. and (iii) any activity of intermittent nature even if that constitutes a core activity of an establishment or other activity that is incidental to the core activity.

> Principal employer obligations -

• The principal employer is to be responsible for providing all welfare facilities to the contract labour (drinking water, canteen facilities, etc.) and also for the provision of an experience

• If the contractor fails to pay wages to the contract labour, the principal employer shall be liable for the same and recover the amount from the contractor.

> Contractor obligations -

• Only licensed contractors are If contract workers are employed through unlicensed contractors, it shall be deemed to be in contravention of the provision of the OSHWC Code.

• Electronic wage payments or bank transfers are the primary payment If electronic payment is impractical, cash payments can be made in the presence of the principal employer's representative.

• Contractors to issue experience certificates on demand by workers.

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• Inter-State Migrant Workers - The provisions apply to establishments with 10 or more inter-state migrant workers, an increase from the previous threshold of 5. Liability on the contractor or principle employer are to (a) ensure suitable conditions of work to such worker having regard to the fact that he is required to work in a State different from his own State (b) in case of fatal accident or serious bodily injury to any such worker, to report to the specified authorities of both the States and also the next of kin of the worker (c) to extend all benefits to such worker which are available to a worker of that establishment.

• Offences and penalties - There is a substantial increase for fine By way of illustration, failure to maintain registers or file returns carries a penalty of INR 50,000, while general OSHWC Code violations by employers carries a penalty of INR 2 lakhs to INR 3 lakhs. Compounding is possible, subject to conditions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.