As defined by WHO, Occupational health deals with all aspects of health and
safety at the workplace with special emphasis on primary prevention of hazards.
The basis for occupational safety and health laws lies in the constitutional
provisions of India. First such provision is Article 24 which prohibits
employment of children under the age of 14 years. Article 39(e and f) states
that the health of men, women and children should be protected, and children
should be given opportunity and facility for healthy development and should be
protected against exploitation. Further article 42 states that humane conditions
at work and maternity relief should be provided.
Thus, it is the responsibility of the government to take into consideration
these provisions and make and enforce such policies which ensure the workplace
safety and health of the workers. In this regard, government came up with the
national policy on safety, health and environment at workplaces in February
2009. It provides necessary guidelines for developing workplace safety and
provides for a statutory framework, administrative and technical support,
developing research, prevention strategies, monitoring and inclusion of safety,
health and environment improvement in other policies of the government.
Labour falls under the concurrent list of the constitution. Hence, both central
government and state government are competent to make laws in this matter. As
per central government, there existed several state and central laws regulating
different aspects of labour including resolution of industrial disputes, working
conditions, social security and wages.
The national commission on labour in 2002 found these provisions complex and
archaic hence it recommended the consolidation of central labour laws into broad
groups such as:
- Industrial relations,
- Social security,
- Safety and
- Welfare and working conditions.
Consequently the ministry of labour and
employment introduced four bills to consolidate 29 central laws which regulate:
wages, industrial relations, social security and occupational safety, health and
working conditions. The code on wages, 2019 has been passed by the parliament
and other three were referred to the standing committee on labour. Following its
report, the central government replaced these bills with new one in September
In this article, I will be discussing about one such bill which is the code on
occupational safety, health and working conditions, 2020. Though we have a
central legislation on the issue of occupational health now but there still lies
lacunae in the implementation and in fulfilling the aims and objectives of the
legislation which needs to be addressed.
Workplace safety is something that the
employers tend to ignore. They consider it an expense and burden but it in fact
an investment. Ensuring the safety and health of the workers will lead to less
number of fatal accidents, which will result in better participation of
workforce, will increase productivity, and will overall increase economic
efficiency which will eventually lead to economic growth.
There are also certain international conventions like ILO of which India is a
signatory but still there are many international standards that aren't adopted
in the current circumstances which needs to be corrected and the effective
measures should be taken to improve the present working conditions of the
Occupational Safety, Health And Working Conditions Code, 2020
In the backdrop of recent outbreak of COVID-19, and the great migration of
people, the occupational safety, health and working conditions code 2020 was
passed on the recommendation of Second National Commission on labour by the
Ministry of labour and employment.
The bill got the assent of the president on
28 September, 2020. The law will come into force with the issuing of
notification by central government in the Official Gazette of India. The code
aims to consolidate and amend 13 existing labour laws related to the health,
safety and working conditions of the workers including laws like the Factories
Act, 1948, The Mines Act, 1952, The Inter-State Migrant Workmen (Regulation of
Employment and Conditions of Service) Act, 1979, The Dock Workers (safety,
health and welfare) Act, 1986 etc.
The Salient Features Of The OSH Code, 2020 And The Concerns Related To It Are
- Appointment letter mandatory:
It is made mandatory for the employers to issue an
appointment letter to their employees. This will bring more formalization and
make the process more systematic.
- Free health check-ups:
It is the responsibility of the employer to organise free
health check-ups for their employees periodically to keep a check on any disease
and catch it at an early stage and provide necessary healthcare and treatment to
- Inter-state migrant workers:
During the recent outbreak of COVID-19, there was a
huge flux of migrant labourers. Both the central and state governments were
unable to effectively maintain a database of those workers. This code provides
for a database to be maintained by both the centre and the state governments.
The provisions related to inter-state migrant workers are applicable on
establishments with 10 or more such workers. The new code also absolves these
workers from any proceedings for recovery of any dues or debt from them. The
code also provides for a social security fund for the benefit of workers in the
unorganised sector. The migrant worker is provided with the benefit to avail
ration in his/her destination state and also avail the building and construction
- Constitution of national and state occupational safety and health advisory
A National Occupational Health and Safety board will be constituted for
providing the necessary advice to the centre regarding the matter and similarly
a State Occupational Health and Safety advisory board as an advisory body to the
state governments on all issues covered by the code.
A safety committee to be
formed by the government in any establishment or class of establishments. Some
degree of leeway is also provided by the government to certain establishments in
special cases as given to mines to frame their own byelaws.
Labour inspectors in
earlier acts are now replaced with Inspector-cum-Facilitator under the new code.
The District- Magistrate will be the Inspector-cum Facilitator so far as mines
within his/her local limits are concerned. Also qualified medical practitioner
will be appointed as medical officer for any medical supervision.
- Employment of women:
The code provides for employment of women in all
establishments for all types of work. They can now work late at night beyond 7
PM and before 6 AM subject to conditions related to safety, working hours and
- Common license:
A single window mechanism for obtaining a common-all India
license is provided for contractors, factories, and industrial premises for beedi and cigar work that will help reduce the bureaucratic hassle one has to go
through for procurement of these licenses.
- Monetary penalties:
The code enable the courts to give a portion of monetary
penalties of up to 50 per cent to the workers who is a victim of any accident or
to the legal heirs of the person in case of his death. The code also gives
overriding powers to the central government to regulate general safety and
health in whole or part of India in the event of any epidemic or pandemic. It
also provides for adjudging the penalties imposed under the code.
- New work rules:
Section 25 of the new code provides for a maximum working shift
of 8 hours in any establishment and this may be lesser for workers in mines. A
worker is entitled to get twice his daily wage in case of overtime. It also
proscribes any overlapping shifts. Adult factory workers are entitled to a leave
in every 20 days of work while an adolescent is entitled to a leave every 15
days of work provided they complete 180 days of work in a year.
Concerns Related To The Osh Code, 2020:
- Exclusion of certain beneficiaries:
The law excludes apprentices and trainees
from its ambit even though work allotted to them is same as contractual and
permanent employees. This will lead to exploitation of the employees and they
will not be able to claim same degree of safety and healthy working conditions.
- Hasn't included unorganised sector:
The code has not included the unorganised
sector. It hasn't clearly laid down the beneficiaries. It mainly focuses on
sectors like mines and industries. Furthermore, the code applies to an
establishment of 10 or more workers but in real life we have a lot of small
enterprises with less than 10 workers. By excluding these small enterprises and
the informal sector, a lacunae is created which will lead to poor enforcement of
the objectives of the legislation as issues like child labour, poor working
conditions etc. that are more prevalent in the unorganised sector would be
overlooked due to this exclusion.
- Appointment of welfare officers:
earlier as per the Factories Act of 1948,
welfare officers were to be appointed for an establishment with more than 500
employees. But this new code has reduced that requirement of 500 employees to
250 employees. This change would adversely affect small MSME industries. They
already strive on low- profit margins and this requirement would put an
additional burden on them. These industries were most hit by the COVID-19 and
instead of providing them with some relief, this just does the opposite.
- Ignoring the healthcare sector:
The code having being passed during the times of
covid-19 was expected to lay stress on the shortcomings and loopholes in the
health care sector. People faced a lot of difficulty during those tough times
owing to poor management, improper infrastructure etc. The healthcare
professionals who were fighting on the frontline lost their lives due to
inadequate safety and health measures.
There are various guidelines for various
kinds of establishments but the required detailed guidelines for the healthcare
sector are missing. During the time of the pandemic when everyone was confined
to their homes, many mental health issues surfaced like anxiety, stress,
Mental health is really a prevalent issue in today's times and
it requires attention of the legislators to form laws especially in relation to
the workspace of the worker. Despite of having the opportunity and knowledge of
the shortcomings the OSH code doesn't reflect on this particular aspect.
The new code provides that no person who is medically unwell, has defective
vision, or has tendency to giddiness shall be required or allowed to work in any
such operation of building or construction work in which he is likely to get
injure or injure other co-workers. This provision is specifically mentioned for
construction work. This is a point of concern as same measure should be taken
for other sectors too.
Jurisdiction of civil court is barred under the new code. Instead the code
provides for an appellate administrative authority to be notified in case of
dispute arising out of non-agreement with authorities like
inspector-cum-facilitator. No judicial mechanism is provided for dispute
OSH in unorganised sector
Unorganised sector (or informal sector) includes those workers and small units
that are not recognised, recorded or regulated by the law or in practice. As per
the Periodic Labour Force Survey (PLFS), 90% of the workers are in the informal
sector. This includes people working as food vendors, manual scavengers, rag
pickers, carpet weaving, pottery etc. The workers working in this sector aren't
given social security profits as given to the organised sector.
Also due to lack
of regulations in respect of occupational health and safety of the workers, the
occurrence of occupational diseases is very common. There is high prevalence of
diseases like respiratory diseases, dermatitis, and zoonosis etc. owing to lack
of safety equipment.
The employment under this sector is usually a temporary
settlement or setup and also owing to poor socio-economic background, safety and
health of the worker is ignored. Also this sector has a huge involvement of
women and children who are often discriminated and exploited. Since this sector
isn't controlled or protected by any authority, there is a lack of data on such
workers and their respective working conditions due to which appropriate actions
and interventions by the government isn't made.
There is an urgent need to bring reforms in this sector also keeping in mind
the recent outbreak of COVID-19 and large-scale migration of people which has
pushed many people to the informal sector. The social security for the workers
in unorganised sector has been provided by the government via various schemes
like Atal Pension Yojana, Pradhan Mantra Shram Yogi Maan-dhan (PM-SYM), AB-PMJAY
etc. but these need to be formalised and more standardised as there are for
A comprehensive plan is required to be made to address the deteriorating
situation of employment much aggravated by the pandemic. There is also a need to
develop a national database of unorganised workers so that the government has
the required data so that they can make and implement policies accordingly.
Hence, there is an urgent need to take appropriate measures for formalising the
sector and bring it under proper regulations so that it remains under the check
of the government to ensure safety and health of the workers are given priority
among other things.
ILO Convention And India's Stance
The international labour organisation adopted the fundamental principles and
rights at work (FPRW) in 1998 to promote fundamental principles and labour
standards. The FPRW declared that all the member countries even if they have not
ratified the said convention(s) have obligation to follow, respect and promote
the principles concerning the fundamental rights.
Keeping in view the prevalent situation of the workers regarding their safety
and health conditions leading to large scale fatalities which got aggravated in
the recent pandemic, the ILO in June 2022 adopted 'a safe and healthy working
environment as part of the fundamental and labour rights and 5th principle of
FPRW (other four being freedom of association and right to collective
bargaining, elimination of all forms of forced or compulsory labour, effective
abolition of child labour, elimination of discrimination in employment and
Two conventions related to this are: Occupational Safety and Health (OSH)
convention, 1981 (No.155) and Promotional Framework for occupational safety and
health convention, 2006 (No. 187). According to C.155, there should be
regulations to govern and ensure OSH in all branches of economic activity and
should cover all types of workers including unorganised and MSMEs.
As per C.187, there must be a national policy on occupational safety and health.
India has adopted only 47 conventions and one protocol and has ratified some
conventions related to occupational safety and health like hours of work,
accidents etc. but still there are many conventions yet to be ratified which are
necessary for the regulation of OSH.
We have labour laws providing OSH to sectors like mining, factories, docks etc.
But the unorganised sector including agriculture and MSMEs isn't brought under
the ambit of such regulations. As a result, the occupational health and safety
in these sectors remains unregulated and weak despite of employing the majority
of the people of the country. This lack in proper laws for these sectors is also
a possible reason for the government to not ratify C.155 despite of framing OSH
policy in 2009.
The status of occupational health in not better even in organised sector or
sectors covered under some legislation as there is no proper implementation of
the law or there are deficits in the regulations. There is no proper statistical
data on the fatalities, occupational diseases etc. despite of India's
ratification of Labour Inspection Convention, 1947 (C.081) which is also limited
to certain sectors. Also due to adoption of neo-liberal policies, there is lot
of laxity and leniency in inspection and regulation in organised sector as well.
Thus, keeping in mind the institutional and legal deficits in the current
system, India must adopt the international conventions to bring a step forward
in ensuring occupational health and safety for all the economic sectors. And
adopting the 2022 declaration of FPRW is the step in right direction. India must
take necessary measures to meet the international standards set by the ILO as
they are essential requirements that every worker in any sector deserves.
- A robust system of enforcement should be in place which is adequately
equipped and empowered. The government must maintain a system of periodic
statistics on occupational diseases and accidents and take appropriate
measures to tackle them.
- A database of occupational diseases should be made.
- Proper implementation of the rules and regulations should be there. A
system of adequate penalties and punishments should be in place to keep a
check on erring parties.
- The workers need to be educated about their rights and awareness
regarding the importance of occupational health should be spread among the
working class so that they are aware of their rights and can voice their
dissent and concerns.
- All the workers working in the economic sector should be provided
adequate occupational health and safe working conditions.
- Unorganised sector and MSMEs should be given adequate focus with regard
to working conditions and occupational health.
- Survey and statistical data should be maintained regarding the
fatalities in different sectors so that appropriate action can be taken.
Occupational health and safe working conditions are basic right of every worker
irrespective of the sector they are working in. Our constitution provides for
provisions ensuring that and hence it is the duty of the government in framing
such policies and regulations to fulfil that. There are many laws in place for
different sectors which the recently passed Occupational health, safety and
working conditions Code, 2020 seeks to consolidate and codify it at one place.
The OSH code, 2020 provided the government with the opportunity to look into
this aspect but it didn't get the necessary and adequate attention. The existing
loopholes were not given much attention. In fact this brought with it, its own
issues and concerns. Somewhere it diluted the existing regulations and made some
provisions stringent and unnecessary.
It didn't deal with other fundamental problems like poor data collection, lack
of surveys, and lacuna of laws for OSH in unorganised sector, MSME's and
agriculture, poor implementation of already existing schemes among others. In
keeping view of the scenario of OSH currently and the problems which surfaced
due to the pandemic, the ILO too made OSH a 5th principle of FPRW.
India being a member has an obligation to embrace that and take steps to
implement it but provided its current structural and institutional deficit, it
is not able to do that. This is time the government take some concrete steps in
this regard. This it won't be able to do alone but with coordinated efforts of
all the stakeholders including the owners, organisations, private enterprises
By focusing on the fundamental issues like proper surveys, strict implementation
and coverage of all the concerned stakeholders and then building on it would be
helpful in effective management and ensuring Occupational safety and health for