Explainer: The Code on Occupation Safety, Health and Working Condition

Legislation

Explainer: The Code on Occupation Safety, Health and Working Condition

Anya Bharat Ram - July 31, 2019 Comments

Presently, there are around 40 central laws regulating different aspects of labour such as, industrial dispute resolution, bonus payments, and working conditions. The Ministry of Labour and Employment has proposed to consolidate these laws into four codes—wages, social security, industrial safety and welfare, and industrial relations.

The Occupational Safety, Health and Working Conditions Code, 2019 was introduced in Lok Sabha on July 23, 2019.[1] The Code consolidates 13 labour laws relating to safety, health and working conditions. These include the Factories Act, 1948, the Mines Act, 1952, and the Contract Labour (Regulation and Abolition) Act, 1970. In this context, we explain key provisions of the Code.

Who will be covered under the Code?

The Code applies to organisations employing at least 10 workers, and to all mines and docks. Provisions of this Code will cover both employees and workers. Employees include individuals in managerial and administrative positions. However, the Code does not apply to apprentices, or to offices of the central or state governments.

Does the Code create special provisions for different types of organisations and workers?

Apart from prescribing health and safety provisions that apply to all organisations, the Code also outlines special requirements for different types of organisations (such as factories and mines) and workers (such as beedi and cigar workers). These special provisions include exceptions or additional requirements. For example, under the Code, factories are required to get a license in addition to registering under the general provisions of the Code. Similarly, the Code requires certain contractors to get licenses before hiring any contract labour. Further, audio-visual workers can only be hired after signing an agreement with employers, which must be registered with a government authority.

What are the duties of employers and employees?

The Code lays down several duties of employers. These include, providing a workplace that is free from hazards that may cause injury or diseases, and providing free annual health examinations to employees. For certain organisations such as, factories and mines, the employer may have additional responsibilities. These include the obligation to notify authorities in case of an accident at the workplace that leads to death or serious bodily injury of an employee.

Under the Code, employees must take care of their own health and safety, comply with the specified standards, and report unsafe situations to the inspector-cum-facilitator. Employees also have the right to obtain information related to safety and health standards from the employer. They may do this by directly approaching the employer, or through a Safety Committee representative.

Will work hours be uniform for all workers and employees?

Work hours for different types of organisations and employees will be notified by the government. This is different from the current labour laws, many of which specify work hours within the law itself. For example, the Factories Act, 1948 provides for a maximum 10 hours of work per day and 60 hours of work per week.[2]

The Code also changes work hour requirements for women. The current laws such as, the Mines Act, 1952, and the Plantations Labour Act, 1951, prohibit women from working after 7 pm and before 6 am.^{[3]^,[4]} However, the Code permits female workers to work past 7 pm and before 6 am with their consent and the approval of the government.

What working conditions and welfare facilities does the Code provide for?

The employer is required to provide a hygienic work environment with: (i) ventilation, (ii) comfortable temperature, (iii) sufficient space, (iv) clean drinking water, and (v) latrine and urinal accommodations. In addition, the government may specify certain other facilities such as, canteens, first aid boxes, and crèches that an employer must provide for. This is a shift from the current legislation which provides for welfare facilities like canteens and crèches, in the law itself. For instance, the Factories Act, 1948 requires the provision of canteens, ambulances, and first aid kits for organisations depending on the number of workers employed in the organisation.²

What is the leave policy for workers?

The Code states that no employee can be made to work for more than six days a week. However, exceptions could be provided for motor transport workers. Annually, workers must receive one day off for every 20 days they have worked. While calculating annual leave, maternity leave and periods of lay off will be counted as days spent on duty.

What are the authorities set up under the Code?

The Code requires central and state governments to set up Occupational Safety and Health Advisory Boards at the national and state level, respectively. These Boards will advise the central and state governments on the standards, rules, and regulations to be framed under the Code.

The composition of the National Advisory Board includes five representatives for employers, five representatives of employees, and five reputed persons from the fields related to occupational health and safety, amongst other members. The composition of State Advisory Boards will be decided by state governments.

How is the Code being enforced?

An inspector-cum-facilitator may be appointed by the government to inspect workplaces, inquire and investigate accidents, and provide safety information to workers. In the case of factories, mines, and docks, the inspector may close or restrict employment in parts of the organisation if there is a health and safety risk.

The Code also prescribes penalties for violating provisions of the Code. An offence that leads to the death of an employee could result in imprisonment of up to two years, or a fine up to five lakh rupees, or both. Further, at least 50% of such fine may be given as compensation to the heirs of the victim. For any other violation where the penalty is not specified, the employer will be penalised with a fine between two and three lakh rupees. On the other hand, if an employee violates provisions of the Code, he could be fined up to Rs 10,000.

Does the Code provide gender specific provisions?

The Code includes certain provisions specific to female and transgender workers. With respect to women, the government can prohibit employment of women in certain organisations if working there may be dangerous to their health and safety. Further, the Code allows female workers to work night shifts with their consent and subject to approval of the government. The Code also acknowledges transgender persons as a third gender by requiring separate urinal and latrine accommodations, rest rooms, washing spaces, and locker rooms for male, female, and transgender workers.

[1] Occupational Safety, Health and Working Conditions Code, 2019, Ministry of Labour and Employment, https://www.prsindia.org/sites/default/files/bill_files/Occupational%20Safety%2C%20Health%20and%20Working%20Conditions%20Code%2C%202019.pdf.

[2] Factories Act, 1948, Ministry of Labour and Employment, https://labour.gov.in/sites/default/files/TheFactoriesAct1948.pdf

[3] Mines Act, 1952, http://www.dgms.gov.in/writereaddata/UploadFile/Mines%20Act,%201952.pdf.

[4] Plantations Labour Act, 1951, https://labour.gov.in/sites/default/files/The-Plantation-Labour-Act-1951.pdf.

[5] Beedi and Cigar Workers (Conditions of Employment) Act, 1966, http://labour.bih.nic.in/acts/beedi-and-cigar-workers-act-1966.pdf.

Explaining the recent ban on e-cigarettes

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Gayatri Mann - September 19, 2019 Comments

On Wednesday, the government promulgated an Ordinance to ban electronic cigarettes in India. In this context, we look at what are electronic cigarettes, what are the current regulations in place, and what the Ordinance seeks to do.

What are electronic cigarettes?

The Ordinance defines electronic cigarettes (e-cigarettes) as battery-operated devices that heat a substance, which may or may not contain nicotine, to create vapour for inhalation. These e-cigarettes can also contain different flavours such as menthol, mango, watermelon, and cucumber. Usually, e-cigarettes are shaped like conventional tobacco products (such as cigarettes, cigars, or hookahs), but they also take the form of everyday items such as pens and USB memory sticks.

Unlike traditional cigarettes, e-cigarettes do not contain tobacco and therefore are not regulated under the Cigarettes and Other Tobacco Products Act, 2003. This Act regulates the sale, production, and distribution of cigarettes and other tobacco products in India, and prohibits advertisement of cigarettes.

What are the international regulations for e-cigarettes?

India is a signatory to the WHO Framework Convention on Tobacco Control (WHO FCTC) which was developed in response to the globalisation of the tobacco epidemic. In 2014, the WHO FCTC invited all its signatories to consider prohibiting or regulating e-cigarettes in their countries. This was suggested due to emerging evidence on the negative health impact of these products which could result in lung cancer, cardiovascular diseases, and other illnesses associated with smoking.

Since then, several countries such as Brazil, Mexico, Singapore, and Thailand have banned the production, manufacture, and sale of e-cigarettes. Recently, the states of New York and Michigan in USA banned the sale of flavoured e-cigarettes. Whereas, in UK, the manufacture and sale of e-cigarettes has been allowed based on certain conditions. Further, the advertisement and promotion, and the levels of nicotine in e-cigarettes is also regulated.

Prior to the Ordinance, were e-cigarettes regulated in India?

In August 2018, the Ministry of Health and Family Welfare had released an advisory to all states requiring them to not approve any new e-cigarettes and restrict the sale and advertisements of e-cigarettes. Based on this advisory, 15 states including Delhi, Maharashtra, and Uttar Pradesh have since banned e-cigarettes. However, this advisory was challenged in the Delhi High Court in March 2019, which subsequently imposed a stay on the ban.

What does the Ordinance do?

The Ordinance prohibits the production, manufacture, import, export, transport, sale, distribution and advertisement of e-cigarettes in India. Any person who contravenes this provision will be punishable with imprisonment of up to one year, or a fine of one lakh rupees, or both. For any subsequent offence, the person will be punishable with an imprisonment of up to three years, along with a fine of up to five lakh rupees.

Additionally, storage of e-cigarettes will be punishable with an imprisonment of up to six months, or a fine of Rs 50,000 or both. Once the Ordinance comes into force (i.e., on September 18, 2019), the owners of existing stocks of e-cigarettes will have to declare and deposit these stocks at the nearest office of an authorised officer. Such an authorised officer may be a police officer (at least at the level of a sub-inspector), or any other officer as notified by the central or state government.

Note that, the Ordinance does not contain any provisions regarding possession or use of e-cigarettes. The Ordinance will be in force for the next six months, and must be approved by Parliament within six weeks of the commencement of the next session of Parliament. If it is not passed within this time frame, it will cease to be in force.

The Importance of Parliamentary Committees

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Sanat Kanwar - September 19, 2019 Comments

Last week, the Departmentally Related Standing Committees were reconstituted for the first year of the 17^th Lok Sabha. In this context, we discuss the functioning and role of Standing Committees.

The visible part of Parliament’s work takes place on the floor of the House. Parliament meets for three sessions a year i.e., the Budget, Monsoon, and Winter Sessions. This part of Parliament’s work is televised and closely watched. However, Parliament has another forum through which a considerable amount of its work gets done. These are known as Parliamentary Committees. These Committees are smaller units of MPs from both Houses, across political parties and they function throughout the year. These smaller groups of MPs study and deliberate on a range of subject matters, Bills, and budgets of all the ministries.

During the recently concluded first Session of the 17^th Lok Sabha, Parliament sat for 37 days. In the last 10 years, Parliament met for 67 days per year, on average. This is a short of amount of time for MPs to be able to get into the depth of matters being discussed in the House. Since Committees meet throughout the year, they help make up for this lack of time available on the floor of the House.

Parliament deliberates on matters that are complex, and therefore needs technical expertise to understand such matters better. Committees help with this by providing a forum where Members can engage with domain experts and government officials during the course of their study. For example, the Committee on Health and Family Welfare studied the Surrogacy (Regulation) Bill, 2016 which prohibits commercial surrogacy, but allows altruistic surrogacy. As MPs come from varying backgrounds, they may not have had the expertise to understand the details around surrogacy such as fertility issues, abortion, and regulation of surrogacy clinics, among others. The Committee called upon a range of stakeholders including the National Commission for Women, doctors, and government officials to better their understanding of the issues, before finalising their report.

Committees also provide a forum for building consensus across political parties. The proceedings of the House during sessions are televised, and MPs are likely to stick to their party positions on most matters. Committees have closed door meetings, which allows them to freely question and discuss issues and arrive at a consensus.

After a Committee completes its study, it publishes its report which is laid in Parliament. These recommendations are not binding, however, they hold a lot of weight. For example, the Standing Committee on Health made several recommendations to the National Medical Commission Bill in 2017. Many of these were incorporated in the recently passed 2019 Bill, including removing the provision for allowing a bridge course for AYUSH practitioners.

There are 24 such Departmentally Related Standing Committees (DRSCs), each of which oversees a set of Ministries. DRSCs were set up first in 1993, to ensure Parliament could keep with the growing complexity of governance. These are permanent Committees that are reconstituted every year. They consist of 21 Members from Lok Sabha, and 10 Members from Rajya Sabha, and are headed by a Chairperson. The DRSCs primarily look at three things: (i) Bills, (ii) budgets, and (iii) subject specific issues for examination. Other types of Standing Committees include Financial Committees which facilitate Parliament’s scrutiny over government expenditure. Besides these, Parliament can also form ad hoc Committees for a specific purpose such as addressing administrative issues, examining a Bill, or examining an issue.

To ensure that a Bill is scrutinised properly before it is passed, our law making procedure has a provision for Bills to be referred to a DRSC for detailed examination. Any Bill introduced in Lok Sabha or Rajya Sabha can be referred to a DRSC by either the Speaker of the Lok Sabha or Chairman of the Rajya Sabha. Over the years, the Committees have immensely contributed to strengthen the laws passed by Parliament. For example, the Consumer Protection Act, 2019, overhauling the 1986 law, was recently passed during the Budget Session. An earlier version of the Bill had been examined by the Committee on Food and Consumer Affairs, which suggested several amendments such as increasing penalties for misleading advertisements, making certain definitions clearer. The government accepted most of these recommendations and incorporated them in the 2019 Act.

Besides Bills, the DRSCs also examine the budget. The detailed estimates of expenditure of all ministries, called Demand for Grants are sent for examination to the DRCSs. They study the demands to examine the trends in allocations, spending by the ministries, utilisation levels, and the policy priorities of each ministry. However, only a limited proportion of the budget is usually discussed on the floor of the House. In the recently dissolved16^th Lok Sabha, 17% of the budget was discussed in the House.

Committees also examine policy issues in their respective Ministries, and make suggestions to the government. The government has to report back on whether these recommendations have been accepted or not. Based on this, the Committees then table an Action Taken Report, which shows status of the government’s action on each recommendation.

While Committees have substantially impacted Parliament’s efficacy in discharging its roles, there is still scope for strengthening the Committee system. In the 16^th Lok Sabha, DRSCs examined 41 Bills, 331 Demands for Grants, 197 issues, and published 503 Action Taken Reports.

However, the rules do not require that all Bills be examined by a Committee. This leads to some Bills being passed without the advantage of a Committee scrutinising its technical details. Recently, there has been a declining trend in the percentage of Bills being referred to a Committee. In the 15^th LS, 71% of the Bills introduced were referred to Committees for examination, as compared to 27% in the 16^th Lok Sabha.

With the DRSCs now constituted for the first year of the 17^th Lok Sabha, they will soon begin their meetings to select the subjects they are going to examine. Some Committees already have Bills to examine that were referred to them during the 16^th Lok Sabha. Some of these Bills are: (i) the Cinematograph (Amendment) Bill, 2019, (ii) the Allied and Healthcare Professions Bill, 2018, and (iii) the Registration of Marriage of Non- Resident Indian Bill, 2019. So far in the 17^th Lok Sabha no Bill has been referred to a Committee yet.

Explainer: The Code on Occupation Safety, Health and Working Condition

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