Ironically, the Occupational Safety Code has not adequately dealt with issues concerning occupational safety and health, which is non-negotiable and even fit to be a fundamental human right, for this spills beyond the workplace and into larger spaces affecting people and the environment (case in point is the Bhopal gas tragedy)
By KR Shyam Sundar
The Occupational Safety, Health and Working Conditions Code, 2019, seeks to combine 13 laws relating to factories, mines, dock workers, building and other construction workers, plantations labour, contract labour, interstate migrant workmen, working journalist and other newspaper employees, motor transport workers, sales promotion employees, beedi and cigar workers, cine workers and cinema theatre workers. It, clearly, is an uneasy amalgam of laws that cover a wide variety of workers belonging to the organised (factory, dock, mines) and the unorganised (contract, construction workers) sectors.
Even though the government claims that it covers establishments employing 10 or more workers, as we read through the code we do find varying thresholds—say, for contract labour issues (20 workers), safety committee or officer (500 workers in factories and construction sites)—and this implies that the code dispenses with the universal coverage model that was extended to the wage and social security codes.
The occupational safety code has not dealt with adequately, and even imaginatively, the issues concerning occupational safety and health. The Factories Act, 1948, lists the maximum permissible threshold limits of exposure of chemical and toxic substances in manufacturing processes in the Second Schedule, which could be expanded as per the advice of the experts, while the code inexplicably omits the Second Schedule and, in fact, leaves the enumeration of these to be decided by the state governments (Section 83).
Further, the Factories Act stipulates the compulsory constitution of a bipartite safety committee in every factory in which hazardous processes or substances are used. But the occupational safety code leaves the constitution of the safety committee to the notification process of the appropriate government (Section 22), and hence the Section 14 reads uncertain: The worker who apprehends serious health hazard shall represent it to the committee “if constituted by the employer.” What was earlier a workers’ right, now has been reduced to a “prospect” subject to the whims and fancies of the state governments.
On one hand, technological inventions and innovations pose considerable threats and challenges to the occupational safety and health issues in the organised sector, and potentially dangerous works are performed in the unorganised sector for securing subsistence wages such as rag picking. Hence, hazardous work needs a wider coverage to include those performed in the unorganised sector as well. It bears relevance to mention here the Chapter IV-A—that deals with several issues concerning occupational safety and health, and was inserted in the Factories Act in 1987 post the Bhopal gas tragedy—which has lent sinews to the regulations concerning it.
According to the Annual Survey of Industries, in 2016-17 less than 5% of the factories in operation employed more than 499 workers, while those employing 50 or more workers constituted 70.53% of total employment, which means the safety provisions have very limited coverage.
Furthermore, the average size of a factory in the organised sector (i.e. workers employed per factory) has declined from 65.95 in 2010-11 to 2012-13, to 48.04 in 2014-15 to 2016-17, and given the widespread impact of technological progress in production processes, especially in chemical and other potentially hazardous industries, occupational safety and health becomes a universal concern, and hence gradually cover more and more establishments. This is one of the reasons India has not ratified 12 of the 17 occupational safety and health convention of the International Labour Organisation. In fact, occupational safety and health should be non-negotiable and is fit to be enshrined as a fundamental human right, for this spills beyond the workplace and into larger spaces affecting people and the environment (the case in point is the Bhopal gas tragedy).
The occupational safety code requires the employers to seek prior consent from the workers to perform overtime (as also for night shift in case of women employees), which is a welcome move. But the individual worker may not, in reality, enforce this right in case of violation of this by the employer due to well-known reasons like absence of or weak supportive institutions like trade unions and labour inspection. Nonetheless, these uninspiring empirical realities need not discourage the lawmakers to drop this important labour right.
For the first time in the legislative history, the occupational safety code requires every employer to issue an appointment letter, but does not stipulate a remedy in case of non-compliance of it, save the general monetary penalties provided for violation for any clause of it. In China, if the employer fails to conclude a written contract within one year of employment of a worker, then the latter will be deemed to have been appointed in an open-ended contract.
While the Factories Act precisely stipulates the hours of work, spread time and the overtime, the occupational safety code leaves these to the discretion of the appropriate government. This is a bad law-making process. When the states compete for fresh capital and retaining the existing ones, the employers can use of the threat of relocation or export needs (which legitimises any reform irrespective of their consequences to labour standards) to coerce the genuinely unwilling governments to stipulate unwelcome standards on these. Therefore, these will lead to a race to the bottom of labour standards.
Finally, Section 47(2), a new clause, allows labour supply contractors by allowing them to secure “renewable work-specific licence” to execute a specific work mentioned in it, even if they do not fulfil the requisite qualifications or criteria. This, at once, reaches the zenith of flexibility and plumbs to the depths of perversion. What must anger the working class is that despite the Supreme Court’s endorsing ruling on and the universally-agreed labour market norm of “equal work, equal pay,” the government is refusing to legislate the same, even though this exists in the Rules framed under the Contract Labour Act.
Codification is necessary to rationalise proximate labour laws, but this should not lead to bundling together of diverse and unique laws concerning disparately positioned categories of workers, which are yet to mature into meaningful pieces of legislation (for example, the law on building and construction workers) in their own right and hence need respective suitable amendments.
(The author is professor, XLRI-Xavier School of Management, Jamshedpur)