A MISSED OPPORTUNITY: THE OCCUPATIONAL SAFETY, HEALTH, AND WORKING CONDITIONS CODE, 2020

Pallavi Modi & Priyal Reddy

Introduction

Article 39(e) of the Constitution of India remarks that the State should focus and tender for the health and strength of the workers. Despite this Constitutional protection, the health and security of workers has always been a dwindling issue in the country. It is also important to understand that although the primary legal aspiration resides in providing the highest standards of occupational safety to workers in the country, legislative expectations from factory owners have been framed in the light of what is reasonable and plausible. However, there always needs to be a balance between ease of compliance and standards of working with dignity. Incentivising industry through mitigating labour laws cannot come at the cost of violation of labour rights, which are essentially human rights at work. Throughout the years, there are numerous examples, from Bhopal Gas Tragedy to the recent Bhilai Steel Plant pipeline blast, which evidence that industrial safety has never been taken seriously. Data collected from the Ministry of Labour and Employment (“Ministry”) reveals that 3,562 people have died and 51,124 injured in accidents that occurred in factories, within three years (2016-2019). Due to this appalling state of affairs in the country leading to serious public outrage, attention of international media and pressure from international labour organisations, serious reforms were desired in the existing worker’s safety framework. To deal with the issue of industrial safety, the second National Commission of Labour released a report in 2002 titled, ‘Occupational Safety, Health and Working Conditions of the Workers’. Relying on this Report the Ministry introduced the Occupational Safety, Health and Working Conditions Code, 2019 (“OSH Code”). It has been a decade since the report was released and many things have changed in the industrial space including a giant leap in technology. Due to the up-scaling of technology, newer concerns like stress and mental health have also become prevalent. Moreover, in the COVID-19 era, unprecedented problems have emerged regarding the health and safety of workers.

Thus, it is dismaying that last year when the Code was finally introduced, it simplistically stated as its objective, “to consolidate and amend…”. The very object of the Code could be seen as a missed opportunity or a lack of intention to reform the working conditions of labour in the country, take into account the pandemic scenario and emerging issues of mental health etc. With the passing of the Code on 22 September 2020 the concern remains the same.

Limiting Beneficiaries

Surprising the OSH Code, restricts the ambit of its beneficiaries from the previous law (Factories Act,1948) and does not extend its benefits to apprentices. There is no good reason to exclude a trainee from basic safety standards.

Moreover, although through the Code, the Government takes pride in bringing one of the biggest laws reforms of the decade, it still has not included the unorganised sector in its ambit. By not clearly laying down the intended beneficiaries and explicitly excluding the invisible workers, the Code does not tie together the loose ends of its predecessor law, the Factories Act, 1948. The Code only dispenses fragmented rights and fails to guarantee protection to sectors other than mines and industries. The Code applies to any establishment employing 10 or more employees, but it is a fact that the majority of establishments in India employ 10 or less workers. Even the 2016 Economic Census made the observation that only 1.66% of establishments employ more than 10 workers. This has also been pointed out by NITI Aayog vice-chairman Mr. Arvind in consolation with a report published by NITI Aayog in 2017. Again, although the uniform-figure of 10 workers may be well-intentioned to cover establishments which were earlier outside the purview of the labour law regime, the threshold falls short of the practical reality. Earlier this year, a nation-wide protest was also organised by the central trade unions asserting the actuality that the majority of the labourers are working in enterprises employing less than 10 people or the informal sector. The Trade Unions continue to protest on these grounds as a nationwide strike has been called on 26 November. Excluding small enterprises and the informal sector from the ambit of the law will create enforcement lacunae because grave issues such as child labour in the informal sector are not addressed by reason of this exclusion.

Ease or Added Burden?

The object of the Government while consolidating the 13 different occupational health and safety laws into the OSH Code was to move towards simplistic compliance and ease of doing business. Unfortunately, the Code creates its own roadblocks in the way of achieving this goal.

An important example which has the effect of adding to the to the burden of compliance is the change in the requirement of ‘Welfare Officers’ to be appointed in an enterprise. Under the Factories Act, 1948, this was a mandate for enterprises with 500 or more workers, The Code extends this requirement to enterprises with 250 workers or more workers.  Due to this change, small and medium-sized enterprises will have to appoint welfare officers. This move was also criticised by the Confederation of Indian Industry (“CII”), suggesting that this in no way will enhance the ease of doing business for the MSME sector; rather will act as a burden and in a way hamper growth. Since these enterprises already have low-profit margins, upholding the additional cost will not be affordable for many. The lawmakers might argue that a straitjacket exclusion of MSME sector from the purview of the Code shall also deprive them of various benefits. The solution here would have been to chart out a middle path such as exempting the MSMEs’ from such cost-intensive provisions such as the appointment of welfare officers which can be avoided through manageable solutions. For instance, as the CII suggested, setting up common facilities for a particular locality which can be availed by nearby enterprises on a cost-effective basis would help in preventing unnecessary individualised costs. Further, data collected by the International Labour Organisation also shows that countries such as Philippines and Sweden draw on the resources and responsibilities of public health authorities. These countries are also developing systems of regional representation, which help the MSMEs in consuming the benefits provided by welfare oriented labour laws without being burdened with extra cost. Even countries such as Chile, Denmark, Thailand, etc. go for limited application of the labour laws to small and medium-sized enterprises, or have unique legislation focussing particularly on the MSMEs. These small enterprises are one of the worst-hit sectors due to the Covid-19 pandemic, but despite having time for amendment after the start of the pandemic, the lawmakers didn’t bother to make adequate changes before passing the Bill.

Failure to Create a Dynamic Law

The Covid-19 pandemic has brought into light the weak healthcare infrastructure in the country and the need to raise the standards of working conditions for safety and wellbeing of healthcare workers. Fighting on the frontlines thousands of healthcare workers have lost their lives owing to inadequate health and safety measures. Although the Code aims to cover a broad spectrum of establishments, it provides for no special provision to include or to address the particular issues faced by the healthcare sector. Thus, the problem here is not restricted to lack of clarity regarding the inclusion of health care sector but also that the Code despite being moulded during the pandemic did not establish a more stringent liability of employers and the State towards healthcare workers. For example, it only establishes a vague and general accountability for clean and hygienic working conditions. The details regarding the standards are yet to be notified by the Central Government. Although the Government had a fair chance to introduce reformed standards of health and safety and have a special regard for health care workers, no cut above has been made by drawing from foreign jurisprudence or international labour standards. Moreover, in the time of technological revolution, The Code neither takes into account the problems of the modern worker nor uses technology in its stride. The Code makes no mention of mental health, although it is one of the most pressing issues of the 21st century. This has a direct connection with the productivity and profitability of the workplace, costing employers as high as 1,149 pounds per year for every employee in the workforce. In a recent pilot study conducted in Bangalore, it was found out that 18-36% of the industrial workforce showed signs of anxiety and stress. The World Health Organisation estimates that metal health conditions will cost the Indian Economy almost as high as 1.03 Trillion dollars in the coming years. With these ever-rising numbers, it is imperative that the Code should make provisions to deal with the mental health of the workers, by making support groups or advisory boards to tackle the problems related to the workplace. Unless the Government tends to these problems, the Code will only be as good as the already available legislations. Further, when Government surveillance has commenced in the country like never before, technical surveillance to ensure compliance with standards of safety would not just have improved enforcement but also would have reduced costs. This displays a biased use of technology. Thus, the Code could have emerged as a blessing in disguise for dwindling labour law regime in the country and revolutionising the same could have sent a strong message of commitment to labour dignity but due to all the aforementioned failures, the law remains a comme ci, comme ça legislation.

Pallavi Modi and Priyal Reddy, 5th year students at NLIU, Bhopal.

Picture Credits: Toolshero

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