THE OCCUPATIONAL SAFETY, HEALTH AND WORKING CONDITIONS CODE (OSHWC)

INTRODUCTION

The Occupational Safety, Health and Working Conditions Code, 2020(OSHWC) was introduced in Lok Sabha by the Minister of State for Labour and Employment. It was re-introduced with new changes leading to the withdrawal of the Occupational Safety, Health and Working Conditions Code, 2019.

The Code was enacted by Central Government and with respect to the same, the State Labour Departments have been publishing draft rules, which will soon be implemented. So far 24 states & UTs have issued draft rules on the same.

SCOPE

• The Code applies to factories having 20 or more workers and the manufacturing process is being carried on with the aid of power or 40 or more workers where the manufacturing process is being carried on without the aid of power
• Emphasis on health, safety and welfare of the workers employed in various sectors like industry, trade, business, manufacturing, factory, motor transport undertaking, building and other construction work, newspaper establishments, audio-video production, plantation, mine & dock-work and service sectors
• The Code doesn’t apply to offices of Central Government, State Government and any ship of war or any nationality but at the same time, it applies to contract labour employed through a contractor in the offices where Central Government or State Government are principal employers
• The Code sets up occupational safety boards at the national and state level to advise the central and state governments on the standards, rules, and regulations to be framed under the Code
• The Code creates special provisions for certain classes of establishments such as factories, mines, dock workers, and construction workers. These include separate provisions on licenses, safety regulations, and duties of employers
• The Code consists of schedules which include a list of industries involved in the hazardous process, a list of matters where standards are to be followed with respect to the health and safety of workers, and a list of notifiable diseases for which communication shall be made to concerned authorities

The Code has provided separate provisions for different Employers in specified Industries with duties, as follows:

• Owner, Agent and Manager in relation to mines
• Designers, Manufacturers, Importers and Suppliers
• Architect, Project engineer and Designer.

LICENSE AND REGISTRATION

Establishments covered by the Code are required to register within 60 days (of the commencement of the Code) electronically to the registering officers, appointed by the Central or State government. Further, some establishments such as factories and mines, and those hiring workers such as Beedi and Cigar workers, may be required to obtain additional licenses to operate.

KEY HIGHLIGHTS

• The Code aims at lessening the burden of the employers as it would replace multiple registrations under various enactments with one common registration, one licence and one return which will ultimately create a consolidated database centrally and will be helpful for ease of doing business
• The workplace should be kept free from hazards that cause or are likely to cause injury or occupational disease to the employees
• Employers are required to conduct free annual health check-ups for their employees
• Employers are required to ensure the disposal of hazardous and toxic waste including e-waste
• Issuance of appointment letter to every employee on their appointment in the establishment
• Workers / Employees are entitled to receive overtime amount at the rate of twice the wage
• Employers or Contractors are responsible to provide welfare facilities to inter-state migrant workers
• Employers are required to provide facilities such as ventilation, humidification, potable drinking water, adequate lighting, creche, washing facilities, bathing places, locker rooms etc
• The Code makes mandatory provisions for the employers to provide a safe working environment and try to cover the risk of unfortunate incidents arising in the course of employment
• The Code makes mandatory provisions for the employers to provide a safe working environment and try to cover the risk of unfortunate incidents arising in the course of employment.
• The Code bars civil courts from hearing matters under the Code. The only judicial recourse for a person aggrieved is to file a writ petition before the relevant High Court
• Central Government shall constitute a National Occupational Safety and Health Advisory Board to discharge the functions conferred on it by or under this Code and to advise the Central Government on the matters relating to standards, rules and regulations to be framed under this Code
• The State Government shall constitute a Board to be called the State Occupational Safety and Health Advisory Board to advise the State Government on such matters arising out of the administration of this Code as may be referred to it by the State Government
• The appropriate government may require the constitution of safety committees in certain establishments, and for a certain class of workers. The committees will comprise representatives of the employer and the workers. However, the number of employer representatives cannot exceed the number of employee representatives. These committees will function as a liaison between employers and employees
• The licence issued by the appropriate authority for inter-state migrant workers shall be made electronically containing all the particulars like the number of contract labour, nature of work for which contract labour is to be employed, responsibilities of the contractor and such other particulars including the information relating to the employment of inter-State migrant workers
• The contractor shall apply for amendment of licence along with security deposit in case there is an increase in the number of contract labour
• Inter-state migrant work shall be provided with the facilities which are available to the workers of that establishment including benefits under the Employees' State Insurance Act, 1948 or the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 or any other law for the time being in force and the facility of medical check-up as available to a worker
• It shall be the complete responsibility of the employer to pay yearly journey allowances to every interstate migrant worker a lump-sum amount of fare for to and from the journey to his native place from the place of his employment, in the manner taking into account the minimum service for entitlement, periodicity and class of travel
• Employer in plantation to make provisions for necessary housing accommodation including drinking water, kitchen and toilet, health and recreational facilities, to every worker employed in the plantation (including his family), crèches facilities for plantations having more than 50 workers (including workers employed by any contractor), educational facilities for children of workers between 6 to 12 years age.

KEY CHANGES

• The limit of female workers to create a creche facility for children below 6 years of age, would increase to 50 female workers from 30 currently
• As per The Factories Act if any establishment has 500 or more workers then the occupier should appoint welfare officers but post implementation of this Code, the limit shall be reduced to 250 employees
• The establishment employing 100 workers will be responsible to provide a canteen facility, a reduction from current limit of 250
• Provisions have been made for the employment of female employees for working beyond 7 pm till 6 am with their consent and conditions relating to safety, holiday, and working hours
• Workers cannot be required to work for more than 6 days/week and will be entitled to one day off for every 20 days of work & one day off every week
• Workers employed in Transport, Sales Promotion and Journalism have special work hours and leave requirements specified
• Employers in the construction business cannot hire workers with defective vision, deafness, or a tendency for giddiness if there’s a risk of an accident
• Elaborative provisions related to inter-state migrant workers, employers of plantations and liabilities of contractors have been inserted considering it gives leverage to either side
• Considering Covid-19, the Central Government has reserved its power to make regulations for the general safety and health of persons in the event of the declaration of an epidemic, pandemic or disaster. This has not to be affected by any other law for the time being in force
• The Code has made maximum registration process to be initiated electronically and hence a minimum of physical contact exists
• Key definitions like Wages, Banking Company & Core Activity of an Establishment has been inserted
• Contrary to earlier provisions women workers are entitled to be employed in all establishments for all types of work including hazardous processes subject to the conditions that the government may require the employer to provide adequate safeguards before their employment in hazardous operations.

OFFENCES AND PENALTIES

• Obstructing discharge of duties of Inspector, imprisonment up to 3 months & fine up to INR 1 lakh
• An offence that leads to the death of an employee will be punishable with imprisonment of up to two years, a fine up to INR 5 lakhs, or both
• Where the penalty is not specified, the employer will be punished with a fine between INR 2 - 3 lakhs
• If an employee violates provisions of the Code, fine up to Rs 10,000
• Offences committed by a Company shall hold each person liable who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business.

This code is expected to bring a major reform in terms of health and safety and the welfare of workers employed. On the other hand, it is also going to lessen the burden on employers by replacing multiple registrations and licenses with one common licence.

Overall, Code aims to empower both employees and employers. On one side it allows flexibility in hiring and retrenchment on the other side it will expand the social security net for both formal and informal workers.

Furthermore, clarifications and procedures will be established by Rules and Regulations made under this Code by the Central and State Government.

Comparative Chart - Earlier Vs New Provisions

Disclaimer

The information provided in this article is intended for general informational purposes only and should not be construed as legal advice. The content of this article is not intended to create and receipt of it does not constitute any relationship. Readers should not act upon this information without seeking professional legal counsel.