The Central Government has passed the Occupational Safety, Health, and Working Conditions Code, 2020 (“OSHW Code”) to consolidate and amend the laws regulating the occupational safety, health and working conditions of the persons employed in an establishment. The OSHW Code was published in the Gazette of India on 29 September 2020 and is yet to come into force.

 

The OSHW Code has subsumed the following existing labour law legislations:

 

a. The Factories Act;

b. The Contract Labour (Regulation and Abolition) Act;

c. The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act;

d. The Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act;

e. The Mines Act;

f. The Dock Workers (Safety, Health and Welfare) Act;

g. The Plantations Labour Act;

h. The Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act;

i. The Working Journalists (Fixation of Rates of Wages) Act;

j. The Motor Transport Workers Act;

k. The Sales Promotion Employees (Condition of Service) Act;

l. The Beedi and Cigar Workers (Conditions of Employment) Act; and

m. The Cine Workers and Cinema Theatre Workers Act.

 

(collectively, referred to as the “Current Laws”)

 

Salient Features

 

Applicability  

 

The OSHW Code is applicable on the following types of ‘establishments’:

 

i. a place where any industry, trade, business, manufacturing, or occupation is carried on in which 10 (ten) or more workers are employed; or

ii. a factory, motor transport undertaking, newspaper establishment, audio-video production, building and other construction work or plantation, in which 10 or more workers are employed; or

iii. a mine or port or vicinity of port where dock work is carried out.

 

In this regard, the term ‘worker’ includes any person employed in any establishment to do any manual, unskilled, skilled, technical, operational, clerical, or supervisory work; and excludes a person who is in a (i) managerial or administrative capacity, or (ii) supervisory capacity drawing wages exceeding ₹ 18,000 per month. The definition of worker can be commonly understood to refer to blue collar workers (although, please note that blue collar v. white collar is a somewhat complex distinction under Indian laws – please refer to Note on Blue Collar v. White Collar).

 

One establishment - One registration  

 

In order to reduce multiplicity of registrations and statutory compliances under the Current Laws, the OSHW Code provides a singular registration to be made by every employer of any establishment covered under the OSHW Code, whether new or existing, within 60 days from the date of applicability of the OSHW Code.

 

Duties of employers  

 

The duties of employers under the OSHW Code have been specified for protection of the employees and include, inter alia, to ensure that the workplace is free from hazards, comply with occupational safety and health standards, provide annual health examination or tests, issuing a letter of appointment to every employee, compulsory reporting of diseases and accidents etc. In addition, the employers are duty-bound to maintain health, safety and working conditions such as hygiene, cleanliness, ventilation, humidification and providing arrangements for treatment of wastes and effluents in the establishment.

 

Duties of employees  

 

In addition to the duties of the employers, employees too shall have their share of responsibility under the OSHW Code which shall, inter alia, include taking reasonable care for the health and safety of himself and others in compliance with the specified safety standards, reporting any unsafe or unhealthy conditions to the employer, and ensuring co-operation with the employer in meeting the statutory obligations.

 

Working hours 

 

The daily working hours of a worker in an establishment have been fixed at a maximum of 8 hours, as opposed to the 10.5 hours stipulated under the Factories Act, and the worker is not required to work in an establishment for more than 6 days in a week. In addition, the employer shall be liable to pay wages at the rate of twice the rate of wages in respect of overtime work done by a worker. The employer is required to take consent from the worker if he is required to work overtime.

 

Employment of women  

 

Women shall be entitled to be employed in all establishments for all types of work and may be employed with their consent to work before 6:00 A.M. and beyond 7:00 P.M., subject to conditions relating to safety, holidays and working hours as may be prescribed by the respective Government.

 

Contract labour 

 

The following reforms have been proposed under the OSHW Code in terms of the provisions applicable to contract labour:

 

Applicability: For applicability of the OSHW Code, the number of persons employed as contract labour has been increased to 50.

 

License: The contractor is required to obtain a license prior to (i) supplying or engaging contract labour in any establishment, or (ii) undertaking or executing the work through contract labour. The concept of a renewable 'work specific license' has also been introduced under the OSHW Code which means that the contractors can obtain a license for a specific work order.

 

Employment: The employment of contract labour in the core activities of an establishment shall be prohibited except in cases where (i) the normal functioning is ordinarily through contract labour; or (ii) the activities do not require full time workers for major portion of working hours; or (iii) any sudden increase of volume of work needs to be accomplished in a specified time.

 

Duties and Responsibilities: The principal employer is responsible for ensuring compliance with the health, safety and working conditions specified under the OSHW Code, and for providing welfare facilities to the contract labour engaged in an establishment. In addition, the contractor is responsible for ensuring the disbursement of wages to contract labour and inform the principal employer electronically about the amount so paid and the mode adopted for payment. In case of default by the contractor, the liability falls on the principal employer.

 

Inter-state migrant workers

 

Applicability: The OSHW Code will apply to every establishment in which 10 or more inter-state migrant workers are employed or were employed on any day of the preceding 12 months. The definition of inter-state migrant workers has been widened to include 'any person' from one state recruited directly by an employer in his establishment situated in another state, provided that he/she is earning wages up to an amount to be prescribed by the Central Government. Earlier, inter-state migrant workers were recruited only through a contractor in one state for employment in another state.

 

Duties and Responsibilities: The contractor or the employer of an establishment employing inter-state migrant workers shall provide them with facilities such as suitable conditions of work, benefits under the Employees' State Insurance Act or the Employees' Provident Funds and Miscellaneous Provisions Act etc. The employer shall also pay to every inter-state migrant worker employed in his establishment, in a year, a lump sum amount of fare for the to and fro journey to his native place from the place of his employment.

 

Deemed Factory  

 

The appropriate Government has been granted the power to declare any premises wherein a manufacturing process is carried on, as a ‘factory’ irrespective of the number of workers working in such premises, and the respective compliances shall apply to such premises that is deemed to be a factory.