Occupational Safety Code Rules Ignore Workers, Serve Interests of Employers
THE Ministry of Labour and Employment has notified draft rules under the Occupational Safety, Health and Working Conditions (OSHWC) Code on November 19, 2020, inviting objections and suggestions, if any, from the public. Accordingly, the CITU submitted its objections within the stipulated time debunking the draft rules in totality. The OSHWC Code will subsume 13 related laws, with a false claim of accommodating the provisions of those repealed acts in it.
These 13 enactments are connected to occupational safety, health and working conditions of the workers of various sectors along with welfare provisions, including the Factories Act, 1948; the Plantations Labour Act, 1951; the Mines Act, 1952; the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979; and the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996.
Given the alarming situation of increasing industrial accidents and resultant fatalities, any act worth the name of occupational safety and health should have addressed the issues seriously. The OSHWC Code and draft rules have ostensibly betrayed the entire working populations by putting them in a perpetually dangerous workplace. For instance, with an estimated workforce of 80,000, the auto industry in the Gurgaon-Manesar region near New Delhi is one of the largest automotive hubs in India. Of these, over 1,000 workers meet with serious industrial accidents every year. It is globally recognised that Indian labour statistics are poor and not regularly updated and highly underreported especially the fatal accidents in private manufacturing firms. Despite this limitation, data from the ministry of labour and employment reveals that 3,562 workers lost their lives and around 51,124 were injured in factory accidents between 2014 and 2016. According to official figures of the labour bureau, the rate of fatal accidents per 1,000 workers was 0.53 per cent in 2013 which increased to 0.63 per cent in 2014 for the factories registered under the Factories Act of 1948. The post-lockdown industrial accidents were also much more serious in terms of fatalities and injuries. Neither the code nor the rules bothered to prevent/pre-empt these fatal accidents and injuries.
Nevertheless, the OSHWC Code has promised to institute all safety and health standards, besides welfare facilities. Section 18 of the OSHWC Code mandates the central government only to declare and notify the occupational safety and health standards for workplaces relating to the factory, mine, dock, beedi and cigar industries, building and other construction work. But the code only described both in its body and the 2nd Schedule, the aspects/subjects on which such standards are to be laid down but the actual sector/industry-specific standards have not been laid down at all.
The OSHWC Code has made the coverage narrower in the sense that it applies only to the industrial “establishment” in which ten or more workers are employed, leaving the vast majority of workers out of the ambit of the safety and health laws, including any establishment in the unorganised sector employing less than ten workers. According to the Economic Census 2016, establishments employing 10 or more workers accounted for only 1.66 per cent of the total establishments in the non-agricultural sector.
It is more relevant here to remember that after the infamous Bhopal gas tragedy, a new Chapter-IVA was introduced in the Factories Act which, in addition to defining “hazardous process”, has added some teeth to the Act to prevent such a man-made disaster. As the code has omitted the entire Bhopal Gas Tragedy chapter, then the rules have naturally no business at all on this “life-threatening process/activity”.
On the other hand, the code has also diluted Chapter-IVA of the Factories Act. Here, Section 41G stipulated that in every factory irrespective of the employment threshold, where “hazardous process” is going on, the occupier should constitute a bipartite safety committee. The code has demolished the compulsion of the employer on forming a safety committee.
WORKING HOURS AND SPREAD-OVER
From day one when the exercise on labour law codification started and was aggressively perused by the Modi regime, they never came up with the provision of concretely defining the “daily working hours” and instead, in all earlier versions of the OSHWC Code circulated by the government including the one tabled in the Parliament on July 23, 2019, they left the issue of “daily working hours” to be decided by the appropriate government in their rulemaking exercise with the dubious intent of departure from the internationally accepted standard of “eight-hour working”. And such dubiousness got widely exposed in the issuance of executive orders by many state governments, particularly the BJP-ruled ones enhancing the daily working hours to 12 hours. Then all trade unions protested vehemently against this dubious intent on working hours proposal. Finally, the government budged and brought in the provision on eight hours work in the latest version introduced in Parliament in 2020 and got hastily adopted in the last monsoon session of Parliament. In fact, it’s a great victory for our working people, at least, to retain in the statute books the provision on eight hours work.
Accordingly, section 25(1) (a) of the OSHWC Code, 2020 has defined that daily working hours, as “eight hours in a day”. But the very next provision in the code paved the way for nasty sabotage wherein all aspects -- the period of work, weekly working hours, spread over, the interval of rest and total number of hours of overtime -- have been left undefined in the Act-Code. It thereby empowers bureaucrats to tinker with these basic matters related to working hours and related conditions. So, in the draft rules, the entire Chapter-V in general and the rule 28 and all its sub-rules in particular are arguably framed to sabotage and violate this very important provision of the code. Rule 28 empowers the government for prescribing 12 hours as ‘spread over’ time without attaching any conditions like prior permission from the chief inspector of factories to examine and satisfy itself on the real exigency, as was the case in the Factories Act.
INTER-STATE MIGRANT WORKER
The legislative process of the OSHWC Code was aggressively pursued when the plight of our migrant workers become catastrophic during the pandemic-induced lockdown. Their horrific return journey from their workplace to their native places by walking bare foot hundreds of kilometers across the length and breadth of the country evoked some response. As a result, the issues of internal migration got some public attention and prompted some liberal debate. At the height of their sufferings, all central trade unions demanded that the existing Inter-State Migrant Workers Act, 1979 should be retained and not to amalgamate this with OSHWC Code so as to do some justice to them through strictly enforcing the Act.
In the Labour Law Codification exercise, as we all know, the Inter-State Migrant Workmen Act, 1979 has been repealed through OSHWC Code Bill, 2020. This is not merely a subsuming exercise in the ordinary sense of the term as the government claims so, but a brutal legal subterfuge to snatch the existing rights of the migrant workers and patent illegality to legalise perpetually their enslavement. In the name of subsuming, when we compare the existing Act with the connected provisions in the Code, it exposes the total burial of the Act itself from the statute books paving the way for unbridled exploitation of inter-state migrant workers who are compelled to migrate in search of livelihood and survival.
The code has, though, nominally defined ‘Inter-State Migrant Worker’ (2(1)(zf))- (ISMW) separately, virtually treating them as a ‘contract worker’ whose protective provisions under the Contract Labour (Regulations and Abolition) Act, 1970 were also heavily diluted in the OSHWC Code. It is to be noted here that the ‘contract worker’ is being defined u/s 2(1) (m) of the code in such manner to include ISMW. Accordingly, the code (Part-II of Chapter XI) has omitted all vital provisions of the Inter-State Migrant Act except for some insignificant ones like the facilities to inter-state migrant worker (sec.60), and last liabilities (sec.65).
Then there are two vital aspects -- one is the registration of establishments employing inter-state migrant worker and the second is the issuance of a licence to the contractor who is recruiting him/her -- which are mandatory under the Inter-State Migrant Workers Act, 1979 so as to provide them with legal status. Then only the ISMW would become a legally eligible entity for protection and other entitlements. All these provisions do not have any place in the OSHWC Code.
Similarly, when such a magnitude of displacement took place, the Modi regime abolished the provision on “the displacement allowances” from the finally adopted version. But that was retained in the original version of the OSHWC Code Bill tabled in Parliament in July 2019. So, nothing is left for draft rules to tinker with as all such cruel injustices were already done by the code itself. Lastly, the code retained only one provision on journey allowances. That too is virtually taken away by the draft rules. When the entire nation was discussing the “return journey’ and “journey fare” of migrant workers, the Modi regime created rules (Rule-85) to deny the same by putting some conditionalities like 180 days of service to become eligible to claim journey allowances.
Section 22 of the Inter-State Migrant Workmen’s Act 1979(ISMW), exhaustively, deals with the industrial disputes in relation to migrant workers. It is accommodated neither in the OSHWC Code nor in the Industrial Relations Code. It empowers the migrant workers to make application or raise dispute on his grievance/dispute relating to working conditions/payment, etc., to the authorities concerned in the State wherein the establishment employing him/her is situated or in the State wherein his/her recruitment was made and even for the transfer of his/her pending dispute to home state, in the case of completion of their employment. The code has done away with this provision of grievance redressal as well prevalent in the Repealed Act.
As mandated by Section 24 of the OSHWC Code, the central government should have prescribed the whole thing about the welfare facilities for the different type of workers in the draft rules. But the draft is maintaining utmost silence on it. In fact, the entire labour law codification venture of the Modi regime and the rulemaking process is making the workers and their lives freely tradable for profit by the employers, demonstrating their barbarous and criminal instinct. This atrocious inhuman face of the regime must be exposed before the workers and the people. The only way forward for us is to unitedly defy and resist both at the workplace and through collective front, and thereby force upon a reversal of the entire labour code regime.