THE CODE FOR WORKPLACE: SAFETY, HEALTH, AND WORKING CONDITIONS

By Sidharth Kumar Pathak

Legal Intern, H.K. Law Offices

INTRODUCTION

India is the second-largest country after China in terms of the labour force with a total strength of 501 million workers engaged in agriculture total of 41.19 percent of the workforce, the industry employs 26.18 percent, and the service sector provides 32.33 percent of the total workforce^[1]. To handle this huge workforce uniformity was needed in labors laws so to achieve these 3 new labour codes were formed one of which is The Occupational Safety, Health and Working Conditions Code, 2020 (OSH Code), This would serve to reduce the overall number of labor-related cases in India, as well as improve labour compliance and widen the social security system for workers^[2].

Further importantly, the new labour standards aim to standardize how labour laws are applied across the country. The government has promised this change for a long time, and it now looks to have been on the verge of becoming a reality. The applicability of this code is not applied upon  Central Government offices, State Government offices, or any ship of war of any nationality, except in the case of contract labour employed through a contractor in the offices of the Central Government or the offices of the State Government, where the Central Government or, as the case may be, the State Government is the primary employer^[3].

KEY DEFINITIONS^[4]

Worker-Any person employed in any establishment for hire or reward to perform any manual, unskilled, skilled, technical, operational, clerical, or supervisory work, whether the terms of employment are express or implied, and includes working journalists and sales promotion employees, but excludes the following: I who is employed in the police service or as an officer or other employee of a prison; or (ii) who is employed primarily in a managerial or administrative capacity; or (iv) who is employed in a supervisory capacity drawing a wage exceeding INR 18,000 per month or an amount as may be notified by the federal government.

Hazardous process- Defined as any hazardous process or activity in relation to specific industries (Schedule I of the OSH Code) where special precautions must be taken to ensure that handling or processing raw/intermediate/finished/bye-products, etc., does not result in material impairment to the health of employees; or (ii) pollution of the general environment.

Employer- Defined as a person who employs one or more people in their business (directly, through another person, or on behalf of another person), and includes, among other things, the person or authority who has final control over the institution’s affairs (or contractor).

Key Intakes from New Code^[5]

• The Code requires employers to offer a safe and healthy work environment and to attempt to minimize the possibility of adverse accidents occurring during the workplace.
• Expands the list of benefits available to inter-state migrant workers, including insurance and provident fund benefits in either the native state or the state of employment, as well as the flexibility of benefits for inter-state migrant workers employed in building or other construction work from the building and other construction cess fund in the destination state where such inter-state migrant worker is employed.
• The Code intends to relieve employers’ burdens by consolidating many registrations under various enactments into a single registration, one license, and one return, which will result in a centralized database and aid with ease of doing business.
• The Code requires employers to offer a safe working condition and to attempt to reduce the possibility of regrettable accidents occurring during the course of employment.
• Employers must provide free yearly medical checks to their workers.
• Hazardous and toxic waste, including e-waste, must be properly disposed of by employers.
• The Central Government shall establish a National Occupational Safety and Health Advisory Board to carry out the functions delegated to it by or under this Code, as well as to provide advice to the Central Government on matters relating to the standards, rules, and regulations to be enacted under this Code.

Rights of employees under the OSH Code^[6]

i. Obtain information about the employee’s health and safety of workers from the employer, and communicate any concerns about unsatisfactory provisions for the employee’s safety or health in connection with work task in the workplace to the employer, and if not satisfied, to the inspector-cum-facilitator.

ii. The employee should be aware that once the presence of such an urgent hazard has been proven, the employer is required to take prompt corrective action and write a report to the inspector-cum-facilitator detailing the measures taken.

iii. They may directly notify the employer and the inspector-cum-facilitator if they have reasonable grounds to believe that there is a potential for harm personal injury, death, or urgent danger to health.

Relevant Authorities under this Code^[7]

National and state-level Occupational Safety and Health Advisory Board:

Occupational Safety and Health Advisory Boards at the national and state levels The OSH Code directs authorities to establish a National Occupational Safety and Health Advisory Board, which will counsel the federal government on-

(i) guidelines, rules, and regulations to be deemed under the OSH Code 

(ii) implementation of OSH Code provisions; and 

(iii) issue of policies relating to occupational safety and health, as well as any other matters referred to it. The OSH Code also calls for the establishment of a state-level advisory body.

Inspectors-cum-Facilitators:

They are appointed by the relevant government and have the authority to investigate incidents as well as perform health and safety inspections. They are given particular authority over industries, mines, port facilities, buildings, and other construction projects, and they are in charge of enforcing the ban of dangerous activity.

Safety committees:

The competent government may organize them in certain establishments and for specific groups of workers. The goal of these committees is to serve as a link between businesses and employees.

Present scenario –

Recently a few days back workers at an iPhone manufacturing plant in Southern India which was operated by long-time apple partner Foxconn went on strike because of poor working and living conditions.

After further investigation it was found that women employees at the company were compelled to work in deplorable circumstances, sleeping on the floor in overcrowded dorms and sharing restrooms with no running water. An incident of food poisoning recently hospitalized 150 people, causing workers to go on strike and closing down the facility on December 18th. This clearly demonstrates how, despite the implementation of new codes, employers continue to abuse workers by failing to provide necessary facilities and safe working conditions^[8].

It is just one example; millions of people in India continue to labour in inhumane conditions, which is a major subject of concern. Considering how multi-billion-dollar tech giants such as Apple have failed to provide adequate working conditions for their employees; then just imagine workers in low-wage industries.

Offences and Penalties^[9]

1. If an individual fails the Code, he or she may be fined up to Rs 10,000.
2. Obstruction of Inspector’s duty can led to a sentence of up to 3 months in jail and also fine of up to INR 1 lakh.
3. An offence that result to the death of an employee it can led to punishment of up to two years in jail and a fine of up to INR 5 lakhs, or both.
4. Offenses committed by a firm will make any individual liable who was in control of, and accountable to, the company for the management of the industry at the moment the offence was committed.
5. The employer would be fined between INR 2 and 3 lakhs if the penalty is not mentioned.

Case Law-

Occupational Health And Safety Association V. Union Of India & Ors. (2014)^[10]:

Background-The petitioner was a non-profit group dedicated to worker health and safety, representing around 130 coal-fired thermal power plants (CFTPP). The lack of a system for occupational safety or precautions against health concerns in such enterprises was the main source of worry. They sought a mandamus order from the Supreme Court under Article 32, requesting that guidelines for occupational safety and health laws be developed. They also requested the formation of a Committee to oversee the operation of thermal power plants and to pay attention on the workers’ health and well-being while offering compensation.

Judgement-The Division bench reasoned that because CFTPPs are distributed across the country, the Supreme Court would be unable to review whether the requirements were being followed in each one. As a result, the Court determined that it was appropriate to refer these concerns to the High Courts in whose jurisdictions the plants were operating, so that they may be thoroughly examined with the help and support of the various State Governments and CFTPPs. It would be the responsibility of the individual High Courts to determine whether there were appropriate health delivery procedures in place and if workers’ health was being evaluated on a regular basis.

The Court stated that the claimed report was not complete, as the respondents claimed, and that the faults with it would have to be addressed by High Courts. Finally, the Division Bench directed that a copy of the judgement be sent to the Chief Justices of 18 High Courts, who will commence suo moto proceedings in the employees’ best interests.

Conclusion-

The Ministry of Labour and Employment proposed four bills in 2019 to consolidate 29 federal legislation out of which one was OSHW. The Lok Sabha passed the OSHW Code on September 22, 2020, followed by the Rajya Sabha on September 23, 2020, for bringing uniformity to the way labor laws are implemented in the country^[11]. With a total workforce of 501 million people, India is the world’s second-largest country after China in terms of workforce and to uniformly regulate rules for such a number of people is a huge task. Over it incidences such as Food poisoning hospitalised 150 individuals lately, prompting a strike by staff and the shutdown of the facility, Companies continue to abuse employees despite new rules by failing to provide basic amenities and safe working conditions which increases the concern about these issues. 

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^[1] “Labor Force, Total – India” (Data) <https://data.worldbank.org/indicator/SL.TLF.TOTL.IN?locations=IN> accessed January 11, 2022

^[2] “The Occupational Safety, Health and Working Conditions Code, 2020” (PRS Legislative ResearchJanuary 11, 2022) <https://prsindia.org/billtrack/the-occupational-safety-health-and-working-conditions-code-2020> accessed January 11, 2022 

^[3] “The Occupational Safety, Health and Working Conditions Code, 2020” (PRS Legislative ResearchJanuary 11, 2022) <https://prsindia.org/billtrack/the-occupational-safety-health-and-working-conditions-code-2020> accessed January 11, 2022 

^[4] “India’s Occupational Safety, Health and Working Conditions Code, 2020” (India Briefing NewsFebruary 3, 2021) <https://www.india-briefing.com/news/indias-occupational-safety-health-and-working-conditions-code-2020-what-is-it-and-how-should-companies-prepare-21545.html/> accessed January 11, 2022 

^[5] “The Occupational Safety, Health & Working Conditions Code …” <https://www.lawrbit.com/article/the-occupational-safety-health-and-working-conditions-code-2019/> accessed January 11, 2022 

^[6] “Occupational Safety, Health and Working Conditions Code, 2020 – an Overview” (Lakshmikumaran & Sridharan: Top Law Firm in India) <https://www.lakshmisri.com/insights/articles/occupational-safety-health-and-working-conditions-code-2020-an-overview/#> accessed January 11, 2022 

^[7] “India’s Occupational Safety, Health and Working Conditions Code, 2020” (India Briefing NewsFebruary 3, 2021) <https://www.india-briefing.com/news/indias-occupational-safety-health-and-working-conditions-code-2020-what-is-it-and-how-should-companies-prepare-21545.html/>accessed January 11, 2022 

^[8] Vincent J, “Apple Investigates Indian Iphone Plant after Workers Strike Following Mass Food Poisoning” (The VergeDecember 31, 2021) <https://www.theverge.com/2021/12/31/22861167/apple-investigates-iphone-plant-strike-food-poisoning> accessed January 11, 2022 

^[9] “The Occupational Safety, Health & Working Conditions Code …” <https://www.lawrbit.com/article/the-occupational-safety-health-and-working-conditions-code-2019/> accessed January 11, 2022 

^[10] “Occupational Health & Safety … vs Union of India & Ors …” <https://indiankanoon.org/doc/180334598/> accessed January 11, 2022 

^[11] “Occupational Safety, Health and Working Conditions Code, 2020 – an Overview” (Lakshmikumaran & Sridharan: Top Law Firm in India) <https://www.lakshmisri.com/insights/articles/occupational-safety-health-and-working-conditions-code-2020-an-overview/#> accessed January 11, 2022