The Occupational Safety, Health and Working Conditions Code, 2020 (“OSH Code“) received the President's assent on September 28, 2020 along with two other codes, all of which are yet to be notified by the Government. The OSH Code has subsumed several key pieces of legislation on the working conditions of labour and consolidated it into one comprehensive act, including, inter alia, the Contract Labour (Regulation and Abolition) Act, 1970, the Factories Act, 1948, etc. The new codes are an exercise in ensuring a streamlining of the labour laws in the country. We take a look at some of the key provisions of the OSH Code below:
- Key Definitions under the OSH Code
Some of the important definitions that the OSH Code has amended are as follows:
- Contract Labour: “Contract labour” has been defined as a worker deemed to be employed in/in connection with the work of an establishment when he is hired for such work through a contractor, with or without the knowledge of the principal employer. The definition excludes any worker (other than a part-time employee) who is regularly employed by the contractor for any activity of his establishment and such worker's employment is governed by mutually accepted standards of conditions of employment and gets periodical increment in pay and other welfare benefits1.
- Employee: “Employee” means a person employed (whether expressly or impliedly) on wages by an establishment to do any skilled, unskilled, manual, operational, supervisory, managerial, administrative, technical, clerical or other work2. The definition of employee has been made consistent in all the new codes, as well as the Code on Wages, 2019.
- Employer: The OSH Code defines “employer” to be a person who employs, whether directly or through any person, or on his behalf, or on behalf of any person, one or more employees in his establishment, and includes, inter alia, the person/authority which has the ultimate control over the affairs of the establishment and contractor3.
- Establishment: An “establishment” is (i) any place with ten (10) or more workers where any industry, trade, business, manufacturing or occupation is carried on; or (ii) a motor transport undertaking, newspaper establishment, audio-video production, building and other construction work or plantation with ten (10) or more workers; or (iii) factory in which ten (10) or more workers are employed; or (iv) a mine or port or vicinity of port where dock work is carried out4.
- Hazardous Process: The OSH Code defines a “hazardous process” as any process or activity in relation to specific industries (set forth in Schedule I of the OSH Code), where, unless special care is taken, raw/intermediate/finished/bye-products, etc., as the case may be, would:
- Cause material impairment to the health of the persons engaged in or connected herewith; or
- Result in pollution of the general environment5.
- Principal Employer: For the purposes of the OSH Code, a “principal employer” is (i) any person responsible for the supervision and control of the establishment where contract labour is employed or engaged; or (ii) the owner or the occupier of the factory and where a person has been named as the manager of the factory, the person so named6.
- Wages: “Wages“, as per the OSH Code, comprises all remuneration such as salaries, allowances or otherwise, expressed in terms of money or capable of being so expressed which would be payable to a person in respect of his employment, whether express or implied, or of work done in such employment and includes basic pay, dearness allowance and retaining allowance, if any7.
The OSH Code clarifies that wages do not include (a) bonus; (b) value of accommodation or light, water, medical attendance; (c) employer contribution towards any pension or provident fund; (d) conveyance allowance; (e) sum paid to employed person to defray special expenses; (f) house rent allowance; (g) overtime allowance and (h) gratuity, etc.
1.8 Workers: The definition of “workers” under the OSH Code, while similar to the definition of “workmen” under the Contract Labour (Regulation and Abolition) Act. 1971, excludes from its ambit any person who is employed in a supervisory capacity drawing a wage exceeding Rs. 18,000/- (Rupees Eighteen Thousand only) per month or such other amount as may be notified by the Central Government8.
- Duties of the Employer
Under the OSH Code, every employer is required to undertake the following:
- ensure that the workplace is free from hazards which cause or are likely to cause injury or occupational disease to the employees and comply with the OSH Code and the Government's directions on the same;
- provide free annual health examination or test, free of costs to certain classes of employees;
- provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of the employees;
- issue letters of appointments to employees; and
- ensure that no charge is levied on any employee for maintenance of safety and health at workplace including conduct of medical examination and investigation for the purpose of detecting occupational diseases9.
Furthermore, the OSH Code prescribes a more stringent set of duties for employers with respect to factories, mines, dock work, building and other construction work or plantations, including (i) arrangements in the workplace for ensuring safety and absence of risk to health in connection with the use, storage and transport of articles and substances; (ii) provision of such information, instruction, training and supervision as are necessary to ensure the health and safety of all employees at work, etc10.
The OSH Code has further clarified that it shall be the duty of the architect, project engineer or designer responsible for any building or construction work or the design of any project relating to such building, to ensure that, at the planning stage, due consideration is given to the safety and health aspects of the building workers and employees who are employed in the erection, operation and execution of such projects11.
- Rights of Employee
Every employee has the following rights under the OSH Code:
(i) to obtain from the employer, information relating to employee's health and safety at work and represent to the employer regarding inadequate provision for protection of the employees safety or health in connection with the work activity in the workplace, and if not satisfied, to the inspector-cum-facilitator;
(ii) if he 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 and simultaneously bring the same to the notice of the inspector-cum-facilitator;
(iii) The employer is required to 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 Government; and
(iv) If the employer is not satisfied about the existence of any imminent danger as apprehended by his/he 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 final12.
- Constitution of Advisory Boards
The OSH Code provides for the constitution of a National Occupational Safety and Health Advisory Board (“National Advisory Board“) by the Central Government, which shall be empowered to advise the Central Government on matters relating to (i) standards, rules and regulations to be declared under the OSH Code; (ii) implementation of provisions of the OSH Code; and (iii) issue of policy relating to occupational safety and health; and any other matters referred to it13. Additionally, the OSH Code also envisages the formation of a similar board at the state level (“State Advisory Board“), to advised the respective State Governments on such matters as may arise from the administration of the OSH Code in the respective State14.
- Health, Safety and Working Conditions
The employer is required to provide and maintain welfare activities for employees as may be prescribed by the Central Government including (i) adequate and suitable facilities for washing to male and female employees separately; (ii) bathing places and locker rooms for male, female and transgender employees separately; (iii) sitting arrangements for all employees obliged to work in a standing position; (iv) adequate first-aid boxes or cupboards with contents readily accessible during all working hours; and (v) any other welfare measures which the Central Government considers, under the set of circumstances, as required for decent standard of life of the employees15.
Furthermore, the Central Government is entitled to prescribe for provision of, inter alia, (i) cleanliness and hygiene; (ii) ventilation, temperature and humidity; (iii) adequate standard of humidification; (iv) potable drinking water; (v) adequate lighting; (vi) adequate standards to prevent overcrowding, etc16.
- Employment of Contract Labour and Inter-State Migrant Workers
The OSH Code has modified the number of minimum contract labour to fifty (50) from twenty (20) for the OSH Code to apply17. Welfare facilities as specified under the OSH Code are to be provided by the principal employer of the establishment to the contract labour employed in such establishment18.
In a step that should prove beneficial, the OSH Code provides for a common license in respect of a factory, industrial premises for beedi and cigar work and engaging contract labour19. It has further been clarified that no contractor is permitted to engage any contract labour if it does not procure a license under and in accordance with the OSH Code.
The OSH Code has also safeguarded the rights of the Inter-State Migrant Workers by ensuring that the contractor extends all benefits as are available to a worker under the various labour laws to inter-state migrant workers as well. Furthermore, the employer of every applicable establishment is required to pay to every inter-state migrant worker, a lump sum fare for to and fro journey to his native place from the place of his employment20.
The enactment of the OSH Code comes at a crucial juncture wherein the rights of the workers have been debated heatedly on every fora and their plight has captured the spotlight during the pandemic. There is a clear impetus in the OSH Code to address the issues that have come to the fore, including that of the inter-state migrant workers. Furthermore, there is an obvious shift towards the simplification of the compliance regime by the introduction of the single license. Therefore, while the OSH Code has all the ingredients of a well-rounded legislation, it is prudent to await its passage into the implementation stage before declaring it an overall success.
1 Section 2(m) of the OSH Code.
2 Section 2(t) of the OSH Code.
3 Section 2(u) of the OSH Code.
4 Section 2(v) of the OSH Code.
5 Section 2(za) of the OSH Code.
6 Section 2(zz) of the OSH Code.
7 Section 2(zzj) of the OSH Code.
8 Section 2(zzl)((iv) of the OSH Code.
9 Section 6(1) of the OSH Code.
10 Section 6(2) of the OSH Code.
11 Section 9 of the OSH Code.
12 Section 14 of the OSH Code.
13 Section 16 of the OSH Code.
14 Section 17 of the OSH Code.
15 Section 24 of the OSH Code.
16 Section 24 of the OSH Code.
17 Section 45 of the OSH Code.
18 Section 53 of the OSH Code.
19 Section 119 of the OSH Code.
20 Section 61 of the OSH Code.
Originally published by Obhan & Associates, October 2020
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.