India Update: Occupational Safety and Health – An ever-evolving need

A safe and healthy work environment is the foundation of an efficient and decent work structure. Occupational Safety and Health (OSH) is an integral part of the International Labour Organization’s (ILO) Decent Work Agenda, 2015. Work can only be decent when it is safe and healthy.

The COVID-19 pandemic had a profound impact on the world of work. COVID-19 has forced governments, employers and the general population to take unprecedented steps in their approach to work.

On the World Day for Safety and Health at Work 2021 (April 28), the ILO has reiterated its focus on the importance of strengthening OSH systems, including occupational health services, at both the national and company levels. In light of the evolving needs for the safety of employees, on September 28, 2020, the President of India assented to the Occupational Safety, Health and Working Conditions Code, 2020 (Code). The Code consolidates thirteen (13) central legislations into one (1) statute to regulate OSH and working conditions of employees in their workplace.

Until the Code is notified and published in the Official Gazette, in India, OSH will continue to be regulated by existing legislations, including the Factories Act, 1948, the Employees’ State Insurance Act, 1948, and the Workmen’s Compensation Act, 1923.

Employer Compliances

Under current state and central legislations, to ensure safe and healthy work conditions for employees, an employer is required to undertake the following, among others:

1.ensure that the workplace is free from hazards which cause or are likely to cause injury or occupational disease to employees;

2.provide an annual health examination or test, free of cost, to certain classes of employees;

3.ensure that no charge is levied on any employee for maintenance of safety and health at workplace;

4.ensure a hygienic work environment with adequate ventilation, enough space at the workplace so as to avoid overcrowding, potable drinking water, separate washrooms for men and women employees, etc.;

5.provide a uniform threshold of welfare provisions to be made available at all establishments, such as canteen, crèche, welfare officer, etc.; and

6.develop plans and programs in accordance with the provisions of the applicable statutes, and to conduct experimental and demonstration projects in that regard.

In addition, there is a special focus on occupational diseases like pneumoconiosis and silicosis with a view to develop a framework for their prevention and control.

Current Legislations

As industries vary in their basic nature, they need a different set of OSH regulations. The state legislatures are, therefore, empowered to enact legislations for the welfare of employees in a particular industry.

Shops Act

The state of Karnataka has enacted the Karnataka Shops and Commercials Establishments Act, 1961 (Karnataka Shops Act) and the state of Maharashtra has passed the Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Act, 2017 (Maharashtra Shops Act) to regulate working conditions in establishments, like IT/IT-enabled services companies.

The Karnataka Shops Act, the Maharashtra Shops Act and various other state laws place an onus on employers to provide various welfare facilities, including a crèche and first-aid facilities. In addition, they mandate that women employees should consent to work in a night shift and that transportation should be provided from the establishment to their doorstep.

Factories Act

The Factories Act,1948, is another important legislation that consolidates the laws regulating workmen in factories. Factory employers are required to provide protection to workmen against industrial and occupational hazards. State governments are empowered to inspect and assess whether these rules are being implemented. Thus, to avoid penalties, employers must ensure that they comply with this statute and its rules on an ongoing basis.

Workmen’s Compensation Act

The Workmen’s Compensation Act,1923, is another crucial legislation. Under this law, employers are required to provide adequate medical treatment to their workmen in case of any casualty, as well as payment of compensation for injuries caused to workmen in an accident. In this way, employees are able to get a cheaper and quicker remedy, instead of the lengthy process of making a compensation claim in a labour tribunal.

The Code, once enacted, will cut out the loopholes under the existing legislations and is expected to bring about uniformity in the implementation of labour laws in India.

Employer Liability – Rulings

In the case of Consumer Education and Research Centre and Ors. v. Union of India and Ors, AIR 1995 SC 922, India’s Supreme Court (SC) held that the right to health and medical care to protect one’s health and vigor, while in service, is a fundamental right of a worker under Article 21 and a fundamental human right to make the life of the workman meaningful and purposeful with dignity of the person.

More recently, in the case of Occupational Health and Safety Association v. Union of India (UOI) and Ors, (2014) 3 SCC 547, the SC reiterated its stance on the importance of OSH and the employer’s duty to safeguard employees from health risks at the workplace, alongside the duty of the state to protect workers working or living in a dangerous and unhygienic environment. The SC directed the Ministry of Labour to: (i) take steps to ensure that employers comply and implement the labour laws comprehensively; and (ii) prepare strict guidelines with respect to OSH to be maintained by various industries.

Accordingly, the Code provides for the constitution of a National Occupational Safety and Health Advisory Board to serve as an advisory body to the Central Government and a similar advisory board for State Governments on all issues pertaining to the Code.

Additionally, as per the Karnataka Shops Act and the Maharashtra Shops Act, employers are required to constitute a health, safety and welfare committee consisting of an equal number of employer and worker representatives as part of the occupational health, safety and welfare guidelines.

Conclusion

There is a great deal of awareness on OSH among employees in India, and employers need to take this matter very seriously, especially in the COVID-19 era when the central and state governments have issued operating protocols and guidelines to all industries to facilitate work from home, provide for COVID-19 tests and health check-ups for employees working at a site or factory, reduce the number of workmen working on-site, etc.

The Code introduced by the Indian Government is also a significant step forward. In the midst of the pandemic, it is a collective responsibility of the government, employers and the society at large to invest in a resilient OSH system.

By N. Raja Sujith, Majmudar & Partners, India, a Transatlantic Law International Affiliated Firm.

For further information or for any assistance please contact india@transatlanticlaw.com

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