OCCUPATIONAL HEALTH SAFETY AND WORKING CONDITIONS

TOPIC: Occupational Safety, Health and Working Conditions Code, 2019

Under the guidance and supervision of

Ms.Thendral Arasi

Submitted by

M.Rajaguru

LAL2107

II YEAR- LL.M –LABOUR AND ADMINISTRATIVE LAW

SCHOOL OF EXCELLENCE IN LAW (SOEL)

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TABLE OF INDEX

S.NO CONTENTS PAGE NO

1 Introduction 3

2 Offences and Penalties 5

3 Social Security Fund 10

4 Miscellaneous 11

5 Conclusion 13

6 Bibliography and References 14

INTRODUCTION
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The Occupational Safety, Health and Working Conditions Code, 2020(OSHWC) was
introduced in Lok Sabha by the Minister of State for Labour and Employment. It was re-
introduced with new changes leading to the withdrawal of the Occupational Safety, Health and
Working Conditions Code, 2019.

The Code was enacted by Central Government and with respect to the same, the State Labour
Departments have been publishing draft rules, which will soon be implemented. So far 24
states & UTs have issued draft rules on the same.

The Code subsumes 633 provisions of 13 major labour laws into one single Code with 143
provisions. The laws to be subsumed are:

 The Factories Act, 1948

 The Contract Labour (Regulation and Abolition) Act, 1970
 The Mines Act, 1952
 The Dock Workers (Safety, Health and Welfare) Act, 1986
 The Building & Other Construction Workers (Regulation of Employment and
Conditions of Service) Act, 1996
 The Plantations Labour Act, 1951
 The Inter-State Migrant Workmen (Regulation of Employment and Conditions of
Service) Act, 1979
 The Working Journalist and other News Paper Employees (Conditions of Service and
Miscellaneous Provision) Act, 1955
 The Working Journalist (Fixation of rates of wages) Act, 1958
 The Cine Workers and Cinema Theatre Workers Act, 1981
 The Motor Transport Workers Act, 1961
 The Sales Promotion Employees (Conditions of Service) Act, 1976
 The Beedi and Cigar Workers (Conditions of Employment) Act, 1966.

The Code applies to factories having 20 or more workers and the manufacturing process is
being carried on with the aid of power or 40 or more workers where the manufacturing process
is being carried on without the aid of power

Emphasis on health, safety and welfare of the workers employed in various sectors like
industry, trade, business, manufacturing, factory, motor transport undertaking, building and
other construction work, newspaper establishments, audio-video production, plantation, mine
& dock-work and service sectors
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 The Code doesn’t apply to offices of Central Government, State Government and any
ship of war or any nationality but at the same time, it applies to contract labour
employed through a contractor in the offices where Central Government or State
Government are principal employers
 The Code sets up occupational safety boards at the national and state level to advise the
central and state governments on the standards, rules, and regulations to be framed
under the Code
 The Code creates special provisions for certain classes of establishments such as
factories, mines, dock workers, and construction workers. These include separate
provisions on licenses, safety regulations, and duties of employers
 The Code consists of schedules which include a list of industries involved in the
hazardous process, a list of matters where standards are to be followed with respect to
the health and safety of workers, and a list of notifiable diseases for which
communication shall be made to concerned authorities

The Code has provided separate provisions for different Employers in specified Industries with
duties, as follows:

 Owner, Agent and Manager in relation to mines

 Designers, Manufacturers, Importers and Suppliers
 Architect, Project engineer and Designer.

CHAPTER XII
OFFENCES AND PENALTIES

Sections 94 – 114 deal with offences and penalties under the code.
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A general penalty1 for contravening any provision of the code, by-law, rules, regulation, or any
order under such code, by-law, rules or regulations would result in a penalty to the tune of two
to three lakh rupees and further penalty of two thousand rupees for each day after such
conviction till the contravention ceases. Such a liability maybe imposed on both the employer
or the principal employer as the circumstances mandate.
Any willful prevention or obstruction 2 of the Chief Inspector-cum-Facilitator or Inspector-cum-
Facilitator or an officer of the appropriate Government or a person authorized , from
discharging his duty; or refusing entry to the same, or failure to produce any document; or a
failure to comply with any requisition order will result in an imprisonment extending upto 3
months or a fine extending to rupees one lakh or both. If the same offence is committed again
by such person the imprisonment will extend to 6 months or a fine not less than rupees one
lakh but below rupees two lakh or both.

Failure to maintain3 any register or to file the same; or failure to produce any register, plan,
record, report will entail a penalty not less than fifty thousand rupees but might extend upto
rupees one lakh and the same might extend to rupees two lakhs for a repeat offender.

Any person unless permitted by the code, who contravenes 4 any provision of this code, rule,
by-law, or any order prohibiting, restricting, regulating the employment of workers ( including
women, audio-visual workers, contract- labour or employee below 18 years in case of a mine)
is liable to a penalty not less than fifty thousand rupees but may extend to one lakh rupees.
Repeat offender is imputed with an imprisonment extending to three months or a fine
extending to rupees two lakhs or both.

Production of false records5 or counterfeits or knowingly making false statements, declarations

or evidence; falsifying any plan or section required before an authority; fabricating a false plan,
notice, report, return or record would entail an imprisonment to the extent of three months
imprisonment or a fine upto rupees one lakh rupees or both. Imprisonment which extends upto
six months or fine not less than rupees one lakh but extending upto rupees two lakh or both in
case of a repeat offender.

Any omission6, without a any reasonable excuse, to make or furnish in the prescribed form and
manner at the prescribed time of any plan, section, return, notice, register, record or report
required by or under any provision of this Code entails a penalty not less than rupees one lakh

1
Section 94
2
Section 95
3
Section 96
4
Section 97
5
Section 98
6
Section 99
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but extending upto rupees two lakhs. The burden of proving such reasonable excuse is on such
person.

A duty7 is imposed on the Chief Inspector-cum-Facilitator or Inspector-cum-Facilitator or any

other person referred to in section 39 or section 121 not to disclose any information under those
sections without the consent of the appropriate government, the failure of which is punishable
with an imprisonment extending to three months or a fine upto rupees one lakh or both. A prior
sanction of the appropriate government is essential for a court to proceed with the trial of any
offence under this section.

Publishing or disclosure8 to any person, except in so far as it may be necessary for the purposes
of a prosecution for any offence punishable under this Code, of any results of an analysis or
sample of any substance for the purposes of this code entails imprisonment extending to three
months or a fine upto to fifty thousand rupees or both.

Failure to comply with or contravention9 of provisions of duties relating to hazardous processes

provided under (i) clauses (a) to (h) of sub-section (1) or sub-section (2) of section 6 or clause
(d) of section 13 in so far as such duty relates to hazardous processes; or (ii) section 80, is
punishable for a period of two years imprisonment and fine upto rupees five lakhs and
additional fine of rupees twenty five thousand for every day of contravention. However
continuance of such contravention beyond one year shall entail imprisonment upto three years
or a fine upto rupees twenty lakhs or both.

Punishment for contravention10 of provisions of duties relating to safety provisions resulting in

an accident is provided at imprisonment for two years or fine not less than rupees five lakhs or
both in case of death and imprisonment which may extend to 1 year or a fine between rupees
two to four lakhs in case of bodily injury. The punishment is doubled where the offence is
committed again.

Failure to appoint a manager11 in mine entails imprisonment for a period of 3 months or fine
upto rupees one lakh or both.

If any employee12 employed in a workplace contravenes any provision of this Code or any rules
or orders made thereunder, imposing any duty or liability on employee, and it is proved that he

7
Section 100
8
Section 101
9
Section 102
10
Section 103
11
Section 105
12
Section 106
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failed to take all reasonable measures for its prevention, he shall be punishable with penalty
which may extend to ten thousand rupees.

When an offence under this Code has been committed by a company13, every person who, at
the time the offence was committed, was in charge of, and was responsible to, the company for
the conduct of the business of the company, as well as the company, shall be deemed to be
guilty of the offence and shall be liable. However his liability can be nullified if he proves that
the offence was committed without his knowledge or that he had exercised all due diligence to
prevent the commission of such offence. Likewise if it is proved that the offence has been
committed with the consent or connivance of, or is attributable to any neglect on the part of any
director, manager, company secretary or other officer of the company, such person shall be
deemed to be guilty of that offence and shall be liable to be proceeded against and punished.

Penalty Factories Act Mines Act Beedi and Building and OSH Code
Cigar workers other 2020
Act Construction
Workers Act

13
Section 109
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General 2 Years or 1 3 Months or Fine of Rs. Fine which Not be less

Penalty for Lakh rupees One 250 may extend to than two
Offences or Both. Thousand Rs 1000. lakhs rupees
Thousand Rupees or but which
Rupees for Both. Rs 100 for may extend
each day of every day of up to three
continuing continuing lakh rupees.
contravention. contravention.
Thousand
Rupees for
every day of
subsequent
contravention
Enhanced Imprisonment Double the Imprisonment
penalty after for a term punishment between 1
previous which may if he Month to 6
conviction extend to committed Months and
three years or within 2 Fine between
with fine years of first Rs 100 to Rs
which shall offence 500.
not be less
than ten
thousand
rupees ( Court
has the power
to reduce it)
but which
may extend to
two lakh
rupees or
with both.
Fine not
less than
Rs.35,000 in
case of
accident
causing
death or
Rs.10,000 in
case of
accident
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causing
bodily injury.
Exemption Section 101 Section 77 Section 108
from liability

Offences by Section 34 Section 53 Section 109

company

Limitation Section 106 Section 79 Section 36 Section 55 Section 110

3 Months 6 Months 6 Months 3 Months 6 Months

Cognizance Section 105 Section 80 Section 36 Section 54 Section 110

of Offences

CHAPTER XII

Social Security Fund

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To provide social security to 40 crore unorganized sector workers, provision for

“Social Security Fund” has been made. Through this fund, social security schemes will be
made for workers and gigs and platform workers working in the unorganized sector and plans
will be formulated to provide all kinds of social security benefits such as death insurance,
accident insurance, maternity benefit and pension etc. to these 40 crore workers. Through these
efforts we have taken an important step towards fulfilling our pledge of Universal Social
Security coverage.

The Social Security Fund14 is established by the appropriate Government a social security fund
for the welfare of the unorganised workers to which there shall be credited the amount received
from composition of the offences.

It may also be funded by such other sources as may be prescribed by the appropriate
Government.

The fund shall be administered and expended for welfare of the unorganized workers in such
manner as may be prescribed by the appropriate Government including the transfer of the
amount in the fund to any fund established under any other law for the time being in force for
the welfare of the unorganised workers.

CHAPTER XIV

Miscellaneous

14
Section 115
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If any offence is committed and the same involves the age 15 of a person, and the court
forms a prima facie opinion that such person is under such age, then the burden passes on to the
accused to disprove the same. The Medical Authority while examining a person for his age
shall take Aadhar Card in the first instance and if the same is unavailable birth certificate from
a school or birth certificate from municipal corporation or ossification test as a last resort.

Onus of proving the limits of what is practicable 16 is on the person alleged to have contravened
the provision of this Code or regulations or bye-laws or rules made thereunder consisting of a
failure to comply with a duty or requirement to do something.

Common licence17 for contractor, factories and to industrial premises for beedi and cigar work
or for engaging contract workers can be made by an electronic application or otherwise to the
authority designated by the central government in such form and manner along with the
prescribed fee and it should mention the number of inter-state workers employed if the license
is for engaging contract labours. If the authority is satisfied after such inquiry, if any, it shall
issue a licence electronically within forty-five days of the receipt of application failing which
the licence shall be deemed to be issued and shall be auto generated and the responsibility of
such failure shall be on such authority. No further inquiry is necessary for a deemed license and
the authority has to specify the reasons if the application is being rejected. Appeal can be filed
by the aggrieved person to the appellate authority within thirty days of the order.

The provisions of this Code shall have effect notwithstanding18 anything inconsistent therewith
contained in any other law for the time being in force or in the terms of any award, agreement
or contract of service whether made before or after the commencement of this Code. However
where under any such award, agreement, contract of service or otherwise an employee is
entitled to benefits in respect of any matters which are more favourable to him than those to
which he will be entitled to under this Code, the employee shall continue to get the former
notwithstanding that he receives benefits in respect of other matters under this Code and
nothing contained in this Code shall be construed as precluding any employee from entering
into an agreement with an employer for granting him rights or privileges in respect of any
matter which are more favourable to him than those to which he would be entitled under this
Code.

There is a bar19 on any person, in respect of the establishment, to disclose any information
relating to any manufacturing or commercial business or any working process which may come

15
Section 117
16
Section 118
17
Section 119
18
Section 120
19
Section 124
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to his knowledge in the course of his official duties. However the same is not applicable when
the disclosure is made with the previous consent of the owner.

The Civil Courts20 have been deprived of their jurisdiction over any matter to which this code
applies and no injunction can be allowed.

The condition of previous publication21 is imposed on the power to make rules, regulations, and
bye-laws under this Code and the date to be specified after a draft of rule, regulation, and bye-
laws proposed to be made will be taken under consideration and shall not be less than forty-
five days from the date on which the draft of the proposed rule, regulation and bye-laws is
published for general information. Such rule, regulation and bye-laws shall be published in the
Official Gazette and on such publication, shall have effect as if enacted in this Code.

CONCLUSION

20
Section 125
21
Section 137
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This Code has brought the existing and outdated labour welfare legislations in tune with the
modern day requirements and has provided an extensive and ameliorative as well as a
simplified procedure for the purpose of mitigating the plight of hapless workers.

Few of the significant and prominent changes that are novel are :

i. Obstructing discharge of duties of Inspector, imprisonment up to 3 months & fine up to

INR 1 lakh
ii. An offence that leads to the death of an employee will be punishable with imprisonment
of up to two years, a fine up to INR 5 lakhs, or both
iii. Where the penalty is not specified, the employer will be punished with a fine between
INR 2 - 3 lakhs
iv. If an employee violates provisions of the Code, fine up to Rs 10,000
v. Offences committed by a Company shall hold each person liable who, at the time the
offence was committed, was in charge of, and was responsible to, the company for the
conduct of the business.

This code is expected to bring a major reform in terms of health and safety and the welfare of
workers employed. On the other hand, it is also going to lessen the burden on employers by
replacing multiple registrations and licenses with one common licence.

Overall, Code aims to empower both employees and employers. On one side it allows
flexibility in hiring and retrenchment on the other side it will expand the social security net for
both formal and informal workers.

Furthermore, clarifications and procedures will be established by Rules and Regulations made
under this Code by the Central and State Government.

BIBLIOGRAPHY AND REFERENCES

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Occupational Safety, Health And Working Conditions Code, 2020

Factories Act, 1948

Mines Act, 1952

Beedi and Cigar Workers (Conditions of Employment) Act, 1966

Building and Other Construction Workers (Regulation of Employment and Conditions of

Service) Act, 1996