[Ed Note: On 23^rd September 2020, the Parliament passed the new labour codes namely, the Industrial Relations Code, 2020, the Occupational Safety, Health and Working Conditions Code, 2020, and the Code of Social Security, 2020. In 2019, the Ministry on Labour and Employment introduced these codes along with the Code on Wages to codify 29 central labour laws. The three codes subsequently received the Presidential assent on 29th September 2020. In the coming days, we will be publishing explainers on each of these three labour codes. Earlier, Chitranksha looked at the Industrial Relations Code and Sahil explained the contents of the Code on Social Security. In this post, Mariyam presents explains the key features and issues with the Occupational Safety Health and Working Conditions Code, 2020]

Introduction

On 23^rd September, 2020, the Parliament passed the new labour codes, namely The Industrial Relations Code, 2020, The Code on Social Security, 2020 and The Occupational Safety, Health and Working Conditions Code, 2020. These codes then received presidential assent on 29^th September, 2020. The new codes were drafted based on the recommendations of the Second National Commission on Labour (1999-2002) which found the existing labour laws to be complex, archaic and inconsistent. This article focuses of the Occupational Safety, Health and Working Conditions Code, 2020 (“OSHWC Code”), explaining its key features as well its limitations.

Notable Changes made by the OSHWC Code, 2020.

The OSHWC Code subsumes 633 provisions of 13 major labour laws into one single code. The main objectives of the Code relate to “prescribing uniform standards, reducing paperwork, promoting ease of doing business, and reducing administrative bottlenecks such as multiple registrations.” Given below are some of the key features of the new Code.

1.Legal terms and definitions

The OSHWC Code harmonizes the definition of “employee” as it existed across previous labour laws, to include people employed by an establishment to do any unskilled, semi-skilled, skilled, manual, operational, supervisory, managerial, administrative, technical, clerical or any other work [Section 2(1)(t)]. Similarly, the definition of “employer” has also been harmonized and expanded to include principal employers, contractors as well as legal representatives of deceased employers [Section 2(1)(u)]. Moreover, the term “contract labour” has been specifically expanded to include inter-state migrant workers within its ambit [Section 2(1)(m)]. As per the Act, “inter-state migrant workers” include workers who are directly recruited by the employer as well as workers who are employed through contractors [Section 2(1)(zf)].

2.Authorities under the Code

Section 16 of the Code empowers the Central Government to constitute a National Occupational Safety and Health Advisory Board. The functions of the Board are advisory in nature and include advising the Government on matters related to the framing and implementation of standards, rules and regulations under the OSHWC Code as well as issues of policies and programmes related to occupational safety and health. As per Section 86, the Central Government can also direct the National Board to inquire into certain “extraordinary events” that may take place in factories involved in hazardous activities, and make advisory recommendations related to standards of health and safety based on the same. Further, Section 17 provides for the constitution of a similar board at the state level to advise the State Governments on matters relating to the administration of the Code.

While under the Factories Act, 1948, every hazardous factory was required to constitute a bi-partite safety committee, Section 22 of the Code empowers the Government to mandate the constitution of a Safety Committee in any establishment by a general or special order. Such a committee is to consist of equal number of representatives of workers and employers chosen in a manner prescribed by the Government. Moreover, employers are also required to appoint safety officers in factories where there are 500+ workers, factories carrying out hazardous processes and construction works where there are 250+ workers and mines where there are 100+ workers.

Section 34 of the Code provides for the appointment of Inspector-cum-facilitators, whose primary functions include conducting regular inspections as well as enquiring into accidents. As an attempt “of matching corporate needs in the digital world”, the Code also provides for web-based inspections by these Inspector-cum-facilitators.

3.Duties of the Employers

As per Section 3(1) of the Code, every employer of an establishment is required to make an electronic application to the registering officer appointed by the Government for the registration of said establishment. As an attempt to ensure that workers are not exploited during the closure of an establishment, employers are also required to inform the registering officer of the closure and certify that all dues have been paid to the workers.

Section 6 of the Code casts a general obligation on employers to ensure that the workplace is safe and free from any occupational hazards. Such duties also extend to providing workers with free annual health examinations and ensuring the disposal of hazardous waste, including e-waste. The Section further spells out more specific duties of employers with respect to factories, mines, docks, building or other construction works and plantations.

According to the Code’s Chapter on welfare provisions, employers are required to provide separate washing facilities for male and female employees, separate bathing and locker rooms for male, female and transgender employees, seating arrangements for employees who are obliged to work in a standing position, canteen facilities, routine medical checkups for workers employed in mines, and any other welfare measures that the Central Government considers as required. As opposed to the earlier threshold of 30 workers, the Central Government can now also make rules for the provision of crèche facilities for children less than 6 years of age in establishments where more than 50 workers are employed.

4.Provisions for women

As per Section 43 of the Code, women are entitled to be employed in all establishments for all types of works and may be employed – with their consent – before 6 A.M. and after 7 P.M subject to conditions relating to working hours, holidays and safety. In cases where the Government considers the employment of women in a particular operation to be dangerous, it can require the employer to make adequate safeguards prior to their employment.

Limitations of the Code

Generally speaking, the revised Labour Codes have been criticized for lack of Parliamentary scrutiny and stakeholder consultation, as well as for delegating excessive power to the Central Government in relation to key matters. However, criticisms directed against specific provisions of the OSHWC Code are discussed below:

1.The OSHWC Code and Inter-state migrant workers

As per the OSHWC Code, inter-state migrant workers include those workers who have been directly recruited by employers as well as those workers who were employed through contractors. According to Section 21, Migrants, who come on their own to the destination state, can also declare themselves as migrant workers by registering on an E-portal; Aaadhar being the only document required for such registration. Moreover, employers are required to pay every inter-state migrant worker a yearly lump sum amount for travel to and from the latter’s native place.

Nevertheless, the OSHWC Code has been criticized for remaining mute on the specific provisions, rights and protections of migrant workers. That is, by subsuming migrant workers under the category of “contract” labourers, the Code ignores issues that are peculiar to them, such as difficulties arising during the migration process or protection from trafficking and exploitation. One such important provision that was done away with by the Code was that of the migrant worker’s passbook that had previously existed in the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979. According to Section 12 of the Act, contractors were obligated to provide every inter-state migrant worker with a pass book  in Hindi, English or regional language of the worker that outlined important details like the name and place of the establishment, period of employment, rate of wages, etc.

2.Barring of Civil Court Jurisdiction

Section 125 of the Code states that no Civil Court will have jurisdiction on hearing matters to which the provisions of the OSHWC Code applies. However, in some matters where persons are aggrieved by the orders of authorities such as by the revocation of a license for contractors, the Code provides for an administrative appellate authority to be notified [Section 119]. While the claims affecting the rights of the workers could be heard by labour courts and industrial tribunals under the previous labour laws, the Code does not specify whether disputes arising under it could be heard by these courts and tribunals.

3.Inconsistency with the Child and Adolescent Labour Act, 1986

Similar to the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986, the OSHWC recognizes the age of 14 as a threshold, with people under the age of 14 being children and those above 14 but below 18 being recognized as adolescents. The Act prohibits the employment of adolescents in hazardous occupations, mines being one of them. However, mining is not considered a hazardous process under the Code, and hence adolescents above age 16 are allowed to be apprentices in mines.

The Code also contains a major gap with respect to the protection of adolescent inter-state migrant workers. Such adolescent migrant workers are particularly vulnerable owing to the fact that they still require some degree of adult supervision. However, no provision has been made in the Code, or any other Act, for their education or accommodation, either at the worksite or at their native places.

4.Long Working Hours

As per Section 25 of the Code, no worker is allowed to work for more than 8 hours a day. Even when workers work in an establishment for more than the prescribed number of hours, they shall be entitled to wages at the rate of twice the rate of wages in respect of overtime work. However, as per the Draft Rules under the OSHWC Code, 2020, the legally permissible work-shift is proposed to be extended to 12 hours a day [Rule 28(2)]. 12 hours, combined with time taken for commute and mandatory meal breaks, leaves workers with less than 10 hours for rest and other non-work related activities. Given that India could soon beat the world record for legally permissible working hours in developed countries, it has been argued that such excessive working hours, rather than increasing productivity, could be harmful for both employers and employees in the long run.

Conclusion

While the OSHWC Code may have aimed to harmonize and simplify provisions across various labour laws, the Code has inadvertently done away with mandatory standards altogether. Instead, the Code confers power on the Central Government to make specific rules related to certain key areas, and even exempt establishments from the provisions of the Code in “special cases” [Section 127]. Despite the fact that the Code has succeeded in consolidating pre-existing laws and possibly increased the ease of doing business, it has also missed out on issues and protections peculiar to vulnerable groups such as inter-state migrant workers and adolescents.

Further Readings:

1. Anirudh Chakradhar, & Neha Mallick, Labour codes: Are protections for migrant workers migrating too?,in (September 18^th, 2020).
2. Akhilshwari Reddy, New Labour Codes: What changes for Interstate migrants, Vidhi Centre for Legal Policy (November 25^th, 2020).
3. V. Narendran, Labour Codes- A step in the right direction, Business Line (October 28^th, 2020).
4. Maya John, New Labour Codes will force workers into a more precarious existence, The Indian Express (October 15^th, 2020).
5. R. Shyam Sundar, Labour Codes and the game of thresholds, Business Line (Octover 20^th, 2020).
6. DivyaRavindranath& Umi Daniel, Understanding the Implications of the Covid-19 Lockdown on Migrant Workers’ Children, The Wire (May 5^th, 2020).
7. Aditya Gaggar, Deconstructing the Occupational Safety, Health and Working Conditions Code, 2020, SCC Online (October 25^th, 2020).
8. The Occupational Safety, Health and Working Conditions Code, 2020, Cyril AmarchandMangaldas (October 8^th, 2020).