Worker’s right to work in a safe and healthy environment

“Occupational Safety and Health is vital to the dignity of work” – Juan Somavia

Introduction

In a fast-moving and developing world where every sector of the economy has been Industrialised massively resulting in the creation of a whole new social and political work environment. The occurrences of Occupational accidents and diseases have become a matter of concern because it impacts workers, enterprises, and entire communities and economies of nations. Despite many health and safety laws and measures, these events continued to have considerable importance at a global level.

In India, Industrial Safety and Health provisions can be traced to the Factories Act 1948, the Mines Act 1952, and the Dock Workers (Safety, Health & Welfare) Act 1990. Recently, a new Occupational Safety, Health and Working Conditions (OHS) Code 2020 was passed by Parliament which amalgamates over 10 labour laws. It is one of the three laws that will consolidate the bulk of labour legislation in India and streamline labour compliance. Since in India, Labour laws fall under the domain of both state and central government it leads to overlapping of labour laws. This code helps in getting a clearer picture of these laws.

In this blog, an attempt has been made to understand the features of the OHS Code, and duties of employees, and rights of employees, and related important regulatory frameworks and compliances.

Duties of Employer

All new establishments to which this code applies must register themselves within 60 days of the commencement of the code with officers appointed by the appropriate government. Provided that all establishments already registered under any law are not required to comply with this requisite. Every employer is required to perform the following duties:

1. Ensure the workplace is free from hazards that can cause injury or occupational disease and follow OSH code and governments directions;
2. Provide free annual health examinations or testing free of cost to specified classes of employees.
3. Provide and maintain a working environment that is safe and risk-free;
4. Issue letters of appointments to employees;
5. Undertake activities for the maintenance of safety and health at the workplace including medical examination drives and body check-ups for detecting any disease.

The code further lays out that it is the duty of the architect, project engineer, and designer for ensuring that safety and health measures parameters are taken into consideration. The employer must provide a hygienic work environment with all adequate basic amenities and the presence of uniform welfare mechanisms like a canteen, crèche, first aid, welfare officer, etc. It also provides for the safety of inter-state migrant workers by ensuring access to benefits as available to the worker and further employer is required to pay migrant workers lump sum wages for travel and related cost.

Duties of Employees

Every employee shall at the workplace observe:

1. Reasonable care of their health and safety at the workplace;
2. Comply with the given provisions;
3. Co-operate with the employer in abiding by the code;
4. If any condition comes to their notice shall report the same to the employer or to the medical officer or representative;
5. Not to do anything wilfully, and without reasonable cause, to endanger or potentially endanger themself or others; and;
6. Perform such acts and duties as may be prescribed by the appropriate government.

Rights of Employees

The OSH Code 2020 provides every employee to exercise the following rights-

1. Seek information from the employer relating to health and safety at work and communicate to the employer any concerns about the same.
2. If employees are likely to believe that the work may involve chances of serious personal injury or death or imminent danger to health then shall bring the same to the notice of the employer and to the notice of inspector-cum-facilitator.
3. If it is sure that there is a presence of imminent danger the employer must refer the matter to inspector-cum-facilitator on the final say.

Monitoring Authorities

In the code of OSH, the set-up of the National Occupational Safety and Health Advisory Board is supposed to advise the Central government on matters concerning standards, rules, regulations, implementation of provisions, and issue policies relating to it and any other matters referred to. Appointment of Inspector-cum-facilitators by the appropriate government for enquiring into accidents and conducting health and safety inspections. These officers are conferred special power as to factories, mines, dock works, and buildings and oversee the prohibition of work in hazardous environments. Formation of Safety committees for a certain class of workers with the aim to function as liaisons between Industrial actors.

Compliances

Encouraging appropriate government to assume it responsibility for the administration and enforcement of occupational safety, health, and environment at workplaces; calling for the cooperation of social partners in the application of related rules and regulations; continuous improvement of occupational safety and health by systems approach including developing guidance on occupational safety and health management system, strengthening voluntary actions; by providing adequate penal provisions as a deterrent to violations; by promoting safe and clean technology and progressively replacing materials hazardous to human health and environment and so on. 

Instruments governing a Safe working environment

International Labour Organisation is the global body and only tripartite UN agency (since 1919) to set labour standards, developing policies, and devise programs promoting decent work for all women and men. ILO initially identified 10 governing fundamental conventions which were covered by ILO Declaration on Fundamental Principles and Rights to work 1998. At the 110th session of the International Labour Conference in June 2022 adopted a resolution on “inclusion of a safe and healthy working environment in the ILO’s framework of fundamental principles and right to work.” This results in its amendment and the Promotional Framework for Occupational Safety and Health Convention 2006 (No. 187) and the occupational safety and Health Convention, 1981 (No. 155) have now become fundamental instruments governing rights at work.

In India, the Constitution provides detailed rights to every person of India and also through DPSP ensures the safety and healthy working environment conditions for its people. For instance, securing the health and strength of employees, the tender age of children should not be abused, citizens are not forced by economic necessity to enter vocations unsuited to their age or strength, just and humane conditions of work and to provide maternity relief.

Judicial Interpretation

Before the coming of the new labour code, the main piece of legislation was governing adequate safety and health measures of the workers employed in factories or industries. In the case of Ravi Shankar Sharma v. State of Rajasthan, the Court held that Factories Act is a social legislation and it provides for the health, safety, welfare, and other aspects of the workers in the factories. In other words, the act serves a dual purpose – one, to protect workers from exploitation and to provide for a redressal mechanism.

Furthermore, in Bhikusa Yamasa Kshatriya (P.) Ltd. v. Union of India the court held that the Act has been enacted with the main purpose of protecting workers employed in factories against industrial and occupational threats. To do so, the Factories Act provides for certain obligations and duties on the employers and the establishments to protect the workers and ensure a conducive work environment. Thus, it can be said ensuring adequate health and safety standards at the workplace are the key aims of this legislation. Recently in the case of Occupational Health and Safety vs. Union of India & Ors the court held that Article 21 of Indian Constitution derives its life and breath from Article 39, 41, and 42 of DPSP providing for the health and strength of workers. It is the dual duty of the state when workers are engaged in hazardous and risky jobs i.e. to maintain the least minimum conditions of work for ensuring human dignity.

Conclusion

In India, the right to work in a safe and healthy environment is still evolving and mushrooming affirming its presence through rules, policies, and laws. The OSH code 2020 is an attempt to consolidate various conflicting and governing laws by removing present ambiguities. It laid down principles that need to be observed by the appropriate government, social players, and industrial actors in ensuring safe and healthy working conditions for the workers and employees of a nation for achieving true economic growth in profit and ethics. In the sequel to this, 28^th April is commemorated every year since 2003 as World Day for Safety and Health at Work.

This article is authored by Shalini Kirar, 3rd year BA.LLB Student at the Institute of Law, Nirma University Ahmedabad.