Author: Krishnagopal Abhay, a 2^nd year student at Campus Law Centre, University of Delhi

To be in consonance with the Second National Labour Commission Report of June, 2002 – which found the existing labour and employment legislations to be complex and archaic– and with the vision of rationalizing and simplifying the employment and labour laws, the Minister of State (Independent Charge) for Labour and Employment, Shri Santosh Gangwar last year introduced 4 Bills in Lok Sabha, which amalgamated 29 legislations pertaining to the same. While one of the Bills, The Code on Wages, was passed by the Parliament last year, the other 3, namely- The Occupational Safety, Health and Working Conditions (OSH) Code, The Industrial Relations Code, and The Code on Social Security were sent to a Parliamentary Standing Committee on Labour, under the chairmanship of Shri Bhartruhari Mahtab, MP from the Lok Sabha constituency of Cuttack, Odisha. After the reports were submitted, the 3 bills were reintroduced by the Hon’ble Minister and subsequently passed by both the houses. In this piece, we will briefly examine the OSH Code, 2020.

The Statement of Objects and Reasons states that the said Code consolidates 13 existing Statutory Acts of India. It has incorporated several suggestions made by the parliamentary committee and added some in the backdrop of the COVID-19 Pandemic. The Code seeks to apply the provisions for all establishments having 10 or more workers, except the ones relating to mines and docks. Except registration, the threshold for factories with and without power are 20 and 40 workers respectively. It includes the journalist working in electronic media such as in e-paper

establishment or in radio or in other media in the definition of "working journalists".

Section 3 requires every employer covered by the Code to make an online application for registration to a government appointed officer within 60 days of the applicability of the Code, failing which the employers shall not be allowed to employ anyone. Section 5 requires the employer to intimate the authority before commencement and cessation of the operation.

Sections 6-12 lay down the responsibilities of the employers and other position holders, which inter-alia are: ensuring the safety of workplace from diseases and injuries – especially in factory, mines, dock, building and other construction work or plantation – without charging the employees for the same, maintaining occupational health standards, providing free annual health examinations as prescribed by the government, issuing an appointment letter to every employee which would result in formalization of employment, intimating the authorities in case an employee contracts certain diseases listed in the Third Schedule of the Code or when an accident or bodily injury is caused which prevents him from working for the next 48 hours immediately after the accident. Distinct occupational safety and health standards, as per Section 18, shall be laid by the Central Govt. for work places relating to factory, mine, dock work, beedi and cigar, building and other construction work and other establishments.

Section 24 lays down the responsibilities of the employer to provide and maintain welfare facilities for the employees such as separate washrooms, bathing areas, canteens, sitting areas, medical facilities, crèches, and such other facilities as the appropriate governments may deem fit and Section 33 requires them to maintain registers and records.

Section 13 lays down the duties of the employees, which are: taking reasonable care of others and himself, complying with the health requirements and statutory obligations and reporting unsafe work incidents. Section 14 provides for the right of the employees to obtain information from their employer pertaining to safety and health standards and may inform the Inspector-cum-Facilitator – as appointed under Section 34 – if the employees are not satisfied. The information is to be held secretive by them as per Section 39.  

Sections 16 and 17 respectively mandates the Central and State Govts to constitute National/State Occupational Safety and Health Advisory Boards to discharge the functions as prescribed by the Code. Section 21 requires the Central and State Govts. to collect, compile and analyse occupational health and safety statistics and the data base of migrant-workers. Migrant-workers, self-employed or otherwise, may register themselves as being so after declaring the same on the portal with the help of an Aadhar Card. Section 22 allows a provision for constitution of a Safety Committee and appointment of Safety Officers by the appropriate Government in any establishment or class of establishment.

Sections 25-32 pertains to “hours of work and annual leave with wages”. It is stated that no worker shall be allowed to work for more than 8 hours in a day and six days a week, except motor transport workers. For overtime work, workers must be paid at twice the rate of daily wages.  Prior consent of workers is required for overtime work. It is further enunciated that workers must receive paid annual leave for at least 1 in 20 days of duty. During medical leaves, workers must be paid half of their daily wages.

Section 43 provides for entitlement of women for employment in all establishments for all types of works and with their consent, the women may be employed before 6 a.m. and after 7 p.m. as well, subject to conditions of safety, holidays and working hours or any other condition to be observed by the employer as may be prescribed by the appropriate Government. The Govt. may, as per Section 44, require the employer to provide additional safeguards for women if it deems fit. Special provisions for Inter-State migrant workers and contract labours have been envisaged in Chapter XI of the Code, ranging from licences to the responsibility of the Contractor to pay wages to workers before expiry of the period as prescribed by the Government. Section 56 provides for an experience certificate which the employer has to give to the employee stating the work performed.

As per Section 59, the provisions of the Code shall apply to every establishment in which ten or more inter-State migrant workers are employed or were employed on any day of the preceding twelve months. The facilities and allowances to be given to the inter-state migrants are clearly stated in Sections 60-62.

Section 103 enables the Courts to give a portion of monetary penalties up to fifty percent to the worker who is a victim of accident or to the legal heirs of such victim in the case of his death.

Section 115 mandates the appropriate Government to establish a social security fund for the welfare of unorganized workers. Section 119 provides for online application for a “common license” for factory, contract labour and beedi and cigar establishments and introduced the concept of a single all India license for a period of five years to engage the contract labour. Section 125 bars the jurisdiction of Civil Courts in the matters pertaining to the Code. Section 140 gives the Central Govt. overriding powers to make rules for general safety regulations during an epidemic, a pandemic or a disaster.

After a critical analysis, one of the aspects where the Code is notably silent is absence of protection for the workers in establishments which operate with less than 10 workers. It fails to provide even the basic aspects of safety and other crucial requirements and safeguards for the workers therein. The Code also gives vast amount of discretion to the Executive to decide on safety standards, which were earlier provided in the Factories Act, 1948. The next two pieces deal with the Industrial Relations Code, 2020 and the Code on Social Security, 2020.