by Aswathi Prakash & Sivapriya Ambalavanan
Given the large working population of the country, majorly constituted in the unorganized sector, Occupational safety and health has been quite a tricky terrain to traverse for India. Thirteen Central Labour laws governed the domain before being modified and consolidated into the Occupational Safety, Health and Working Conditions Code, 2020.
The idea to consolidate and simplify the existing labour laws draws from the recommendations of the second National Commission on Labour instituted in 1999 under the Chairmanship of Ravindra Varma. The commission submitted its report to the Atal Bihari Vajpayee Government in 2002 but took close to two decades for the recommendations to be pursued. The three codes were drafted in 2019 along with the Code on wages. Code on wages was passed in 2019. However, the other three were sent to the Parliamentary Standing Committee instituted for the same owing to the dissatisfaction and criticism levelled against the drafts. All the three codes received the President’s assent in September 2020. The criticisms levelled against the code range from sidelining the rights of workers and prioritizing the interests of industry to leaving much to the discretion of the Central government and bodies authorized by it. The modified code had not been successful in alleviating the concerns that were raised to the drafts and therefore drew mixed reactions. The article looks into these aspects of the code.
One step forward, two step back
The code has retained the threshold of ten workers or more for establishments and increased thresholds of factories and those establishments employing contract labour. The code has raised the threshold from ten, as in the Factories Act of 1948, to twenty in case of factories using power and twenty to forty in case of factories that do not use power. In case of applicability of the code to establishments employing contract labour the threshold has been raised from twenty workers in the Contract Labour Act of 1970 to fifty workers. These increases in thresholds significantly reduces the coverage of establishments under the code. This exclusion is of grave concern as the majority of establishments in India are small and marginal in nature, employing less than 10 workers. The 6th Economic Census data shows that, of the 45.3 million non-agricultural establishments, 94.6% of them employ less than five workers and 3.74% of them between five and ten. [1] Workers employed in agricultural activities are also excluded from the ambit of the code’s coverage. The numbers taken together, leaves the majority of the workforce in the country without a safety net.
The code delegates discretionary powers to the Inspector cum Facilitator and Chief Inspector cum Facilitator who will be authorized by the appropriate governments. Much is left to the “satisfaction” of the officer (Section 38.1(C) (a), 38.2) and this leaves room for arbitrary action on the part of the Inspector cum Facilitator or the Chief Inspector cum Facilitator. Certain provisions like vocational training and rescue, and recovery services in case of mine workers have not been mandated. These are left to the discretion of the Central Government. The provision for vocational training to the workers employed in the mines, both permanent and contract workers, should be mandated as untrained workforce is often more vulnerable to accidents in the mines.
The code has also diluted certain provisions from the subsumed acts. For e.g. Section 14 of the Inter State Migrant Workmen Act, 1979 entitles the Interstate migrant workers to a displacement allowance equal to fifty percent of his/her pay or seventy five rupees, whichever is higher. Although the code has carried down journey allowance from the subsumed act, it has removed the provision of displacement allowance. Interestingly, this had been included in the 2019 draft. While extending the benefits of PDS to the interstate migrant workers is commendable, the code removes the provision for legal aid which was present in the Inter State Migrant Workmen Act. Similar exclusion is also found when it comes to protection of mine workers. Section 68 of the new code deals with certain mining activities that are exempted from the applicability of the code. This has been carried down from the Mines Act, 1952. However, the safeguards that were provided in case of which the exemption shall not apply, like the no. of workers employed and depth of the excavation, has been removed.
Why it falls short?
One of the major reasons for the poor condition of occupational safety in the country is the inadequately developed labour inspection system. The labour inspection system in India is handicapped by abysmal rates of appointment into sanctioned posts resulting in poor enforcement of the existing laws. Neither is this issue of poor filling of vacancies addressed in the code nor the intervals between inspections specified and mandated. If efficient mechanisms for inspection of the occupational safeguards in establishments are not set up, the consolidation and modification of the central labour laws will be rendered ineffective. To bring in more accountability and transparency, a provision to upload statistics on the no. of establishments, inspectors appointed, inspections conducted, registrations revoked or kept on hold and other such data, should have been included. This would also help academics, students and the general public alike in order to gauge the labour inspection system in the country.
Another aspect that should have been considered while drafting the code was involving the local bodies in ensuring the occupational safety of establishments within their vicinity. This would not only have furthered the objective of the code but also the idea of decentralization in the country. If necessary powers are delegated to the local authorities to inspect and raise concerns with regard to working conditions and safety of the workers, it would open up an alternative level of oversight. Moreover local authorities would be more accessible to the workers than the bodies authorized under the code, simply by the fact that they lie within their vicinity.
Conclusion
Gauging by the policies and activities of the government and its emphasis on improving the ease of doing business in the country, it would not be farfetched to say that the flexibility we see in the regulations of the labour codes are also directed towards this end. The code brings in ease of compliance to the industry and is expected to help India reach in the top 50 countries in the ease of doing business. However, the code comes with multiple lacunas and falls short of addressing the issues plaguing the institutional framework relating to Occupational safety and health [2] in the country. The increased flexibility of laws, citing ease of compliance and doing business, stands to dilute the rights of the workforce. In order to avoid such a scenario it is important that the inspection and grievance redressal mechanism relating to Occupational safety and health be strengthened. Moreover it’s the constitutional obligation of the State to ensure just and humane conditions of work to its citizens.