Occupational Safety, Health And Working Conditions Code, 2020 was was introduced in Lok Sabha on 19th September 2020 vide Bill No. 122 of 2020. Occupational Safety, Health And Working Conditions Code, 2020 is expected to consolidate and amend the laws regulating the occupational safety, health and working conditions of the persons employed in an establishment and for matters connected therewith or incidental thereto.
STATEMENT OF OBJECTS AND REASONS
The Second National Commission on Labour, which submitted its report in June, 2002, had recommended that the existing set of labour laws should be broadly amalgamated into the following groups, namely:–
(a) industrial relations;
(c) social security;
(d) safety; and
(e) welfare and working conditions.
2. In pursuance of the recommendations of the said Commission and the deliberations made in the tripartite meeting comprising of the Government, employers’ and industry representatives, it has been decided to bring the Occupational Safety, Health and Working Conditions Code, 2020. The proposed legislation intends to amalgamate, simplify and rationalise the relevant provisions of the following thirteen Central labour enactments relating to occupation, safety, health and working conditions of workers, namely:—
1. The Factories Act, 1948;
2. The Plantations Labour Act, 1951;
3. The Mines Act, 1952;
4. The Working Journalists and other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955;
5. The Working Journalists (Fixation of Rates of Wages) Act, 1958;
6. The Motor Transport Workers Act, 1961;
7. The Beedi and Cigar Workers (Conditions of Employment) Act, 1966;
8. The Contract Labour (Regulation and Abolition) Act, 1970;
9. The Sales Promotion Employees (Condition of Service) Act, 1976;
10. The Inter-State Migrant workmen (Regulation of Employment and Conditions of Service) Act, 1979;
11. The Cine Workers and Cinema Theatre Workers Act, 1981;
12. The Dock Workers (Safety, Health and Welfare) Act, 1986; and
13. The Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996.
3. In the light of above, the Occupational Safety, Health and Working Conditions Code, 2019 was introduced in Lok Sabha on the 23rd day of July, 2019 and the same was referred to the Department related Parliamentary Standing Committee on Labour. The said Committee recommended several substantive modifications to the said Code. In addition to the said modifications, the Government of India has also proposed certain changes to the said Code in the light of COVID-19 Pandemic. In view of this, the Government of India has decided to withdraw pending the Occupational Safety, Health and Working Conditions Code, 2019 and to introduce the Occupational Safety, Health and Working Conditions Code, 2020. The proposed Code simplifies, amalgamates and rationalises the provisions of the aforesaid thirteen enactments with certain important changes which, inter alia, are as under:—
(i) to impart flexibility in adapting technological changes and dynamic factors, in the matters relating to health, safety, welfare and working conditions of workers;
(ii) to apply the provisions of the proposed Code for all establishments having ten or more workers, other than the establishments relating to mines and docks;
(iii) to provide the concept of “one registration” for all establishments having ten or more employees. However, for the applicability of all other provisions of the Code in respect of factories, except registration, the threshold has been fixed twenty workers in a factory (with power) and forty workers (without power);
(iv) to include the journalist working in electronic media such as in e-paper establishment or in radio or in other media in the definition of “working journalists”;
(v) to provide for issuing of appointment letter mandatorily by the employer of an establishment to promote formalisation in employment;
(vi) to provide free of cost annual health check-ups for employees above the specified age in all or certain class of establishments by which it would be possible to detect diseases at an early stage for effective and proper treatment of the employees;
(vii) to make the provisions relating to Inter-State Migrant Workers applicable on the establishment in which ten or more migrant workers are employed or were employed on any day of the preceding twelve months and also provide that a Inter-State Migrant may register himself asan Inter-State Migrant Worker on the portal on the basis of self-declaration and Aadhaar;
(viii) an Inter-State Migrant Worker has been provided with the portability to avail benefits in the destination State in respect of ration and availing benefits of building and other construction worker cess;
(ix) to constitute the National Occupational Safety and Health Advisory Board to give recommendations to the Central Government on policy matters, relating to occupational safety, health and working conditions of workers;
(x) to constitute the State Occupational Safety and Health Advisory Board at the State level to advice the State Government on such matters arising out of the administration of the proposed Code;
(xi) to make a provision for the constitution of Safety Committee by the appropriate Government in any establishment or class of establishments;
(xii) to employ women in all establishments for all types of work. They can also work at night, that is, beyond 7 PM and before 6 AM subject to the conditions relating to safety, holiday, working hours and their consent;
(xiii) to make provision of “common license” for factory, contract labour and beedi and cigar establishments and to introduce the concept of a single all India license for a period of five years to engage the contract labour;
(xiv) to enable the courts to give a portion of monetary penalties up to fifty per cent. to the worker who is a victim of accident or to the legal heirs of such victim in the case of his death;
(xv) to provide overriding powers to the Central Government to regulate general safety and health of persons residing in whole or part of India in the event of declaration of epidemic or pandemic or disaster;
(xvi) to make provision for Social Security Fund for the welfare of unorganised workers; and
(xvii) to make provision for adjudging the penalties imposed under the Code.
4. The notes on clause explain in detail the various provisions contained in the Code.
5. The Code seeks to achieve the aforesaid objectives.
Notes on Clauses
Clause 1.—This clause relates to short title, extent and commencement of the proposed Code.
Clause 2.—This clause seeks to define certain expressions used in the proposed Code.
Clause 3.—This clause relates to the registration of establishments and specifies the procedure for such registration.
Clause 4.—This clause contains the provisions of appeal against the order of the registering officer under Clause 3.
Clause 5.—This clause deals with notice by employer relating to the factory, mine, contract labour or building or other construction work before the commencement of the operation of any industry, trade, business, manufacture or occupation in the concern establishment and shall also intimate the cessation thereof.
Clause 6.—This clause deals with the duties of employer in respect of workplace, occupational safety and health standards, health examination, appointment letter etc.
Clause 7.—This clause deals with the duties and responsibilities of owner, agent and manager in relation to mine. The responsibilities of the owner and agent are joint and several.
Clause 8.—This clause deals with the duties of manufacturers, designers, importers or suppliers of any article for use in any establishment, to avoid risk and to ensure safety.
Clause 9.—This clause deals with the duties of architects, project engineers and designers in respect of building or other construction work, project or part thereof relating to building or other construction work, for the purposes of safety and health aspects.
Clause 10.—This clause deals with notice of certain accidents at any place in an establishment by the employer or owner or agent or manager in respect of mines, employer or manager in respect of factory or dock work, employer in respect of plantation, building or other construction work or other establishment, to the concerned authorities and the inquiry by the concerned authority or if there is no such authority, by the Inspector-cum-Facilitator on the direction of the Chief Inspector-cum-Facilitator.
Clause 11.—This clause deals with notice of certain dangerous occurrences by the employer to the authorities determined by the appropriate Government by rules.
Clause 12.—This clause deals with notice of certain diseases specified in the Third Schedule to the proposed Code by the employer to the authorities determined by the appropriate Government by rules and the report to be sent by the medical practitioner to the Chief Inspector-cum-Facilitator, if he believes that the person attended by him has been suffering by such disease.
Clause 13.—This clause deals with duties of the employees at workplace in respect of health and safety, co-operation with the employer, interference with, misuse or neglect of any appliance, convenience or other thing provided for work and avoiding anything likely to endanger workers and others.
Clause 14.—This clause deals with rights of employee to obtain from the employer information relating to employee’s health and safety at work,to represent employer directly or through a member of the Safety Committee, to give information regarding the imminent danger, etc., to the employer. It also contains the provisions regarding immediate remedial action to be taken by the employer, etc.
Clause 15.—This clause deals with duty not to interfere with or misuse things which is provided in the interest of health, safety or welfare.
Clause 16.—This clause contains provisions relating to the constitution of National Occupational Safety and Health Advisory Board and the constitution of technical committees or advisory committees.
Clause 17.—This clause contain provisions relating to the constitution of State Occupational Safety and Health Advisory Board and the technical committees are advisory committees thereof.
Clause 18.—This clause empower the Central Government to declare standards on occupational safety and health for work places relating to factories, mines, dock work, building and other construction work and other establishments and other details relating thereto.
Clause 19.—This clause seeks to notify the research related activities in certain institutions in the field of occupational safety and health to conduct research, experiments and demonstrations relating to occupational safety and health and thereafter to submit their recommendation to the appropriate Government. It also provides the consultation by the State Government with National Board.
Clause 20.—This clause relates to safety and occupational health surveys by the Chief Inspector-cum-Facilitator, the Director General of Factory Advice Service, Director General of Mines Safety, Director General of Health Service and other officers authorised by the appropriate Government after giving notice to the employer and other matters relating thereto.
Clause 21.—This clause relates to collection of Statistics and portal for Inter-State migrant workers. The responsibility regarding maintaining the data base or record, For Inter-State migrant worker on portal is entrusted on the Central and State Governments as per provisions of clause.
Clause 22.—This clause provides the provisions relating to constitution of Safety Committee in the establishment or class of establishment and the responsibility of the employer to appoint safety officers.
Clause 23.—This clause relating to responsibility of employer for maintaining health and working conditions in his establishments and the Central Government may also make rules for such purpose.
Clause 24.—This clause relating to impose responsibility on the employer to provide and maintain the welfare facilities in his establishment in accordance with the rules made by the Central Government which includes the rules relating to ambulance room, medical facilities, shelter or rest room and the appointment of welfare officer, temporary leaving accommodation, free of charge and within the work site or as near to it or as possible, payment by principal employer the expenses incurred on providing the accommodation through the contractor, facility of crèche.
Clause 25.—This clause relating to daily and weekly working hours, leave, etc., to the workers, including overtime work to be performed by worker. It also provides additional provisions relating to holidays, casual leave or other kinds of leave in respect of sales promotion employee and the working journalist, and the regulation of working hours of an adolescent worker in accordance with Child and Adolescent Labour (Prohibition and Regulation) Act, 1986 (61 of 1986). The working hours in a day are eight hours.
Clause 26.—This clause relating to weekly and compensatory holidays to the workers. The appropriate Government has powered to exempt the workers from the provision under this clause.
Clause 27.—This clause provides for extra wages for overtime which shall be wages at the rate of twice the ordinary rate of wages in respect of overtime work as provided in the clause and no worker shall be required to work overtime by the employer without the prior consent of the worker for such work.
Clause 28.—This clause provide certain provisions relating to night shifts where a worker in an establishment works on a shift which extends beyond midnight relating to the calculation of holiday and the following day for the worker.
Clause 29.—This clause relates to prohibition of overlapping shifts which relates to the arrangement of the system of shifts and to exempt any establishment or class of establishments or any department or section of an establishment or any category or description of workers therein from the provisions contained in the clause.
Clause 30.—This clause relates to restriction on double employment in factory and mine where the worker has already been working in any other such similar establishment within the preceding twelve hours, save in such circumstances as may be provided by the appropriate Government by rules.
Clause 31.—This clause relates to notice of periods of work and such notice shall contain periods of work, showing clearly for every day the periods during which workers may be required to work in accordance with the provisions of the proposed Code. It also provides regarding form of notice, the manner of its display and to send it to the Inspector-cum-Facilitator and regarding change in the notice where there is change in system of work.
Clause 32.—This clause contains provision relating to annual leave with wages in an establishment subject to the provisions specified in the clause. It also contains regarding the extension of the provisions to any other establishment except railway establishment. Such provision shall not operate to the prejudice of any right to which a person employed in a mine may be entitled as specified in the clause.
Clause 33.—This clause relates to maintenance of registers and records and filing of returns by the employer electronically or otherwise in accordance with the rules made by the appropriate Government.
Clause 34.—This clause contains the provisions relating to appointment of Inspector-cum-Facilitators and Chief Inspector-cum-Facilitator. The qualifications and experience of the Chief Inspector-cum-Facilitator shall be determined by rules. The duties of the Inspector-cum-Facilitator and the powers of the Chief Inspector-cum-Facilitator have been specified in the clause. The Clause also provide the appointment of Additional Chief Inspector-cum-Facilitators, Joint Chief Inspector-cum-Facilitators and Deputy Chief Inspector-cum-Facilitators or any other officer of any designation and their powers and other matters relating thereto.
Clause 35.—This clause relates to powers of Inspector-cum-Facilitators which includes power to enter to work place, examine the premises etc., and inquire into any accident or dangerous occurrence, etc., with necessary details in this regard.
Clause 36.—This clause relates to powers and duties of District Magistrate to exercise powers and duties of the Inspector-cum-Facilitator in respect of mines.
Clause 37.—This clause provides for third party audit and certification by the empanel experts possessing the qualifications and experience as determined by the rules made by the appropriate Government, For the purpose of start-up establishments and class of other establishments in apropos with the provisions as specified in the clause.
Clause 38.—This clause relates to special powers of Inspector-cum-Facilitator in respect of factory, mines and dock work and building and other construction work. The special powers of the Inspector-cum-Facilitator have been specified in respect of factory, mine, dock work and building or other construction work in this clause. There is also provision of appeal provided in this clause against the order of the Inspector-cum-Facilitator, which he may pass relating to the building or other construction work, if such work is being carried on, is in such condition that it is dangerous to life, safety or health of building workers or the general public.
Clause 39.—This clause relates to secrecy of information by Chief Inspector-cum-Facilitator or Inspector-cum-Facilitator, etc. Such information relating to establishment shall be disclosed by the Chief Inspector-cum-Facilitator or Inspector-cum-Facilitator, in case it is necessary to ensure the health, safety or welfare of any person employed in establishment. There are certain exceptions provided in the clause to which the provision of secrecy shall not apply. The right of the Chief Inspector-cum-Facilitator or Inspector-cum-Facilitator not to disclose the source of any complaint is not constrained by the provision of the Right to Information Act, 2005 (22 of 2005).
Clause 40.—This clause contain the provisions relating to facilities to be afforded to the Inspector-cum-Facilitator. Such facilities shall be provided to the Inspector-cum-Facilitator by the employer of the establishment, which relate to the reasonable facilities for making any entry, inspection, survey, measurement, examination or inquiry under the provisions of the proposed Code.
Clause 41.—This clause relates to the powers of Special Officer to enter, measure, etc., in relation to mine. Such officer is required to be in the service of the Government duly authorised in this behalf by a special order in writing of the Chief Inspector-cum-Facilitator or of an Inspector-cum-Facilitator for the purpose of surveying, levelling or measuring any mine or any output therefrom.
Clause 42.—This clause relates to the appointment of medical officer by the appropriate Government and have the qualification specified in the rules. Such medical officer shall be appointed in relation to factory, mines, plantation, motor transport undertakings and any other establishment. The duties of the medical officer have been also specified in the clause.
Clause 43.—This clause relates to employment of women. The employment of women worker shall be made by the employer in all kinds of occupation subject to the conditions relating inter alia to safety, holidays and working hours as specified in the rules and with the consent of such women before 6 a.m. and beyond 7 p.m..
Clause 44.—This clause relates to prohibition of employment of women in dangerous operation. Such dangerous operations relate to the health and safety of the women worker in an establishment or class of establishments. This clause requires for providing adequate safeguards in accordance with the rules made by appropriate Government.
Clause 45.—This clause provide the details for the applicability of part I of chapter XI of the proposed Code.
Clause 46.—This clause relates to appointment of authority officers who shall be Gazetted officer of the appropriate Government.
Clause 47.—This clause contains of the provisions relating to licensing of contractors. For supplying or engaging contract labour in any establishment or undertaking or executing the work through contract labour, it is essential to obtain the licence. The provision of the clause also specifies the content of the licence.
Clause 48.—This clause contains the provisions relating to procedure for issue and renewal of the licence. It provides that the form of the application for issuing licence and the manner and other particulars, thereof shall be as provided under the rules made by the appropriate Government. It also provides other details of procedure regarding the issuing of licence and the period of validity of a license for five years.
Clause 49.—This clause provides that the contractor shall not charge directly or indirectly, in whole or in part, any fee or commission from the contract labour.
Clause 50.—This clause provides the provisions relating to the information regarding work order to be given to the authority. The contractor shall inform about the work order receive from the establishment to the authority in accordance with the procedure as specified in the clause and in case of failure the licence may be suspended or cancelled in accordance with rules made by the appropriate Government.
Clause 51.—This clause relates to revocation, suspension and amendment of licence. It contains the circumstances such as the misrepresentation or suppression of any material fact in obtaining the licence as ground for revocation or suspension of licence and the procedure for revocation and suspension of the licence and the amendment thereof. Such revocation and suspension shall be in addition to the other penalty to which the contractor may be liable.
Clause 52.—This clause provides the provisions relating to the appeal which shall be made by the aggrieved person against the order made in respect of licensing of contractor, issue of licence and revocation, suspension and amendment of licence.
Clause 53.—This clause relates to liability of principal employer for welfare facilities relating to providing of canteens, rest rooms, drinking water and first aid.
Clause 54.—This clause relates to effect of employing contract labour from a non-licenced contractor. In case of employment of contract labour through such contractor shall be deemed to be contravention of the provisions of the court.
Clause 55.—This clause deals with the responsibility for payment of wages. The primary responsibility for payment of wages to the contract labour shall be of the contractor before the expiry of such period specified in rules made by the appropriate Government. The electronic payment has been introduced by this clause. In case the contractor fails to make payment of the wages to the contract labour then the responsibility shifts to the principal employer as specified in the clause. The appropriate Government is also empowered to make order for making payment under the provisions of the clause.
Clause 56.—This clause relates to experience certificate to be given by the concerned contractor of the establishment concerned to the contract labour as and when demanded giving details therein of the work performed by the contract labour.
Clause 57.—This clause prohibit the employment of contract labour in core activities with certain exceptions. It also provides the appointment of designated authority to advise the appropriate Government on the question whether any activity of an establishment is a core activity or otherwise. It also contains the provision for deciding the question regarding the core activity.
Clause 58.—This clause deals with power to exempt in special cases. Such exemption relating to provisions of the proposed Code or the rules made thereunder shall be made by the appropriate Government, in the case of an emergency as specified in the clause.
Clause 59.—This clause relates to applicability of Part I.
Clause 60.—This Clause relates to facilities to Inter-State Migrant workers. Such facilities shall be provided by the contractor or employer of an establishment employing inter- State Migrant worker for the purposes as specified in the clause.
Clause 61.—This clause provides the provisions relating to journey allowance. Such allowance shall be paid by the employer to the inter-State Migrant worker in a year as lump sum amount of fare for to and fro journey to his native place from the place of his employment as specified in the class.
Clause 62.—This clause relating to the benefits of public distribution system, etc., to the inter-State migrant workers through Schemes as specified for the class.
Clause 63.—This clause provides the facility of toll free helpline to the inter-State migrant workers as specified in the class.
Clause 64.—This clause relates to study of inter-State migrant workers in the manner as specified for the class.
Clause 65.—This clause relates to past liability of inter-State migrant workers. No suit or other proceeding shall lie in any court or before any authority against the inter-State migrant workers for the recovery of debt or any part thereof as specified in the class.
Clause 66.—This clause provides the provisions relating to prohibition of employment of audio-visual worker without agreement. Such agreement shall be in writing and between the audio-visual worker and the producer of audio-visual programme or between producers of the audio-visual programme with the contractor and shall be registered with the competent authority. In case of the benefit of provident fund a copy of such agreement shall be forwarded by the producer of the audio-visual programme to the authority and the payment of wages to the audio-visual worker shall be through electronic mode.
Clause 67.—This clause deals with the Managers in mine. Subject to the rules made in this behalf, every mine shall be under the sole Manager. The qualifications of the manager shall be such as provided in the rules made under the Code. The appointment of the manager shall be made by the owner or the agent. The qualified owner or agent may also be appointed as manager. The clause also provides regarding the responsibility of a manager.
Clause 68.—This clause relates to non-applicability of the certain provision of the Code in certain cases such as excavation in mine being made for prospecting purposes only and not for the purpose of obtaining minerals for use or sale subject to the conditions specified in the clause and in case the mine engaged in the extraction of kankar, murrum, laterite, boulder, gravel, shingle, ordinary sand etc., as specified in the clause. However, regarding applicability of the provisions of the Code to a mine, the Central Government has powers as specified in this clause and in case of non-fulfilment of certain conditions; the provisions of the Code shall apply to a mine as specified in the clause.
Clause 69.—This clause provides the provisions relating to exemption from this Code relating to employment as specified therein. Such exemptions are in case of emergency involving serious risk to the safety of the mine or of persons employed therein, or in case of an accident, whether actual or apprehended, or in case of any act of God or in case of any urgent work to be done to machinery, plant or equipment of the mine as a result of breakdown of such machinery plant or equipment. In such cases the manager is empowered as specified in the clause to permit persons to be employed in contravention of certain provisions of the Code on the work as may be necessary to protect the safety of the mine or of the persons employed therein. The manager may also take action, in case of any urgent work to be done to machinery, plant or equipment as specified in the clause and such action shall be recorded with the circumstances relating thereto and a report thereof shall also be made to the Chief Inspector-cum-Facilitator or the Inspector-cum-Facilitator.
Clause 70.—This clause relates to employment of persons below eighteen years of age. It provides that no person below eighteen years of age shall be allowed to work in any mine or part thereof but in case of apprentices and other trainees, such age limit is not below sixteen years as provided in the clause.The rules shall be made by the Central Government for medical examination of apprentice, other trainee and employee in the mine to ensure their fitness to work and to prevent the persons below sixteen years of age to work as apprentice or trainee and those who are not adults to work as the employee.
Clause 71.—This clause provides the provisions relating to exemption.
Clause 72.—This clause relates to vocational training and rescue and recovery services for person employed in a mine.
Clause 73.—This clause provides the provisions relating to decision of question whether any excavation or working or premises in or adjacent to and belonging to a mine on which any process ancillary to the getting, dressing or preparation for sale of minerals or of coke is being carried on is a mine and such question shall be decided by the Government of India and a certificate given by the secretary to the Government of India in this behalf shall be conclusive.
Clause 74.—This clause deals with licence to industrial premises and person. Without licence no employer shall use or allow to use any place or premises. The licence shall be granted by the designated authority after complying with the procedure specified in the clause and the licence granted shall be valid for five years and shall be renewed thereafter in accordance with the procedure specified in the clause.
Clause 75.—This clause provides the provisions relating to appeals. A person aggrieved by the decision of the designated authority refusing to grant or renew a licence or cancelling or suspending a licence may, within the prescribed time and with prescribed fee, appeal to the appellate authority.
Clause 76.—This clause relates to permission to work by employees outside industrial premises. Such permission shall be granted by the State Government and the employer shall maintain the record of the work permitted to be carried on outside the industrial premises. The raw material by an employer or a contractor may be given to the labour outside the industrial area to make beedi or cigar or both at home.
Clause 77.—This clause provides the provisions relating to non-applicability of part V to self-employed persons in private dwelling houses. The provisions of the said part shall not apply to the owner or occupier of a private dwelling house, not being an employee of an employer, who carries on any manufacturing process in such private dwelling house with the assistance of the members of his family living with him in such dwelling house and dependent on him.
Clause 78.—This clause relates to prohibition of employment of certain persons in certain building or other construction work. The employer shall not allow the person who is deaf, of defective vision or has a tendency to giddiness to work in any operation of building or other construction work as specified in the clause.
Clause 79.—This clause provides the provisions relating to approval and licensing of factories. The permission and licensing shall be made in accordance with the rules framed by the appropriate government
Clause 80.—This clause relates to liability of owner of premises in certain circumstances. The owner of the premises and occupier of the factories utilising common facilities shall jointly and severally be responsible for provision and maintenance of the common facilities and services as specified in the clause.
Clause 81.—This clause deals with power to apply the Code in certain premises. The provision of part VII of chapter XI of the proposed Code shall apply to any place wherein manufacturing process is carried on with or without the aid of power irrespective of the number of workers working in the factory by the appropriate government by notification.
Clause 82.—This clause relates to dangerous operations. In this respect, the appropriate government may make the rule relating to any factory or class or description of factories in which manufacturing process is carried on in which exposes any of the persons employed in it to a serious risk of bodily injury, poisoning or disease as specified in the clause.
Clause 83.—This clause provides the provisions relating to constitution of site appraisal committee. The site appraisal committee constituted under this clause shall make its recommendation within a period of thirty days of the receipt of the application for grant of permission for the initial location of a factory involving a hazardous process or for the expansion of such factory.
Clause 84.—This clause relates to compulsory disclosure of information by the occupier. The disclosure shall be in the manner provided by the State government in the rules and as specified in the clause.
Clause 85.—This clause provides the provisions relating to specific responsibility of the occupier in relation to hazardous process. Such responsibility of the occupier of a factory involving hazardous process relates inter alia to maintaining accurate and up-to-date health records.
Clause 86.—This clause provides the provisions relating to constitution of National Board to inquire into certain situations as specified in the clause. In such situation the Central Government may direct the National Board to inquire into the standards of health and safety observed in the factory with a view to finding out the causes of the failure or neglect in the adoption of any measures or standards as per rules made by the State Government for the health and safety of the workers employed in the factory or the general public affected, or likely to be affected, due to the failure or neglect and for the prevention and recurrence of the extraordinary situations in future in the factory or elsewhere.
Clause 87.—This clause relates to emergency standards. The Central Government may direct the Directorate General Occupational Safety and Health formerly known as Directorate General of Factory Advice Service and Labour Institutes or any Institution authorised in matters relating to standards of safety in hazardous processes, to lay down emergency standards for enforcement of suitable standards in respect of the hazardous processes.
Clause 88.—This clause provides the provisions relating to permissible limits of exposure of chemicals and toxic substances. The maximum permissible limits in any factory shall be of the value as may be provided in the rules made by the State Government.
Clause 89.—This clause relates to right of workers to warn about imminent danger. In the case of reasonable apprehension of imminent danger as specified in the clause the workers may bring the same in the notice of the occupier, agent, manager, or any other person who is in-charge of the factory or the person concerned directly or through their representatives in the Safety Committee and simultaneously bring the same to the notice of the Inspector-cum-Facilitator. The clause also provides regarding the action to be taken on such notice.
Clause 90.—This clause provides the provisions relating to appeal against the order of Inspector-cum-Facilitator in case of factory. The details regarding appeal shall be provided by the appropriate Government in the rules.
Clause 91.—This clause deals with the power to make rules to exemptas specified in the clause. The rules made by the appropriate Government shall specify the persons who hold positions of supervision or management or employed in a confidential position in a factory. Such rules may empower the Chief Inspector-cum-Facilitator to declare any person, other than a person so specified, as a person holding position of supervision or management or employed in a confidential position in a factory if, in the opinion of the Chief Inspector-cum-Facilitator, such person holds such position or is so employed, and the provisions of the proposed Code, shall not apply to any person so specified or declared. The other details regarding the rules and exemptions are specified in the clause.
Clause 92.—This clause relates to facilities for the workers in plantation.
Clause 93.—This clause deals with the safety in plantation.
Clause 94.—This clause relates to general penalty for offences. Such offences are those offences which are not expressly provided under the other provisions of the proposed Code.
Clause 95.—This clause provides the provision relating to punishment for causing obstruction to Chief Inspector-cum-Facilitator or Inspector-cum-Facilitator, etc.
Clause 96.—This clause provides the provisions relating to penalty for non-maintenance of register, records and non-filing of returns, etc.
Clause 97.—This clause provides the provisions relating to punishment for contravention of provisions of the proposed Code or any rules, regulation, or bye-laws, etc. It also provides enhanced punishment in case of repetition of such offences after conviction.
Clause 98.—This clause provides the provisions relating to punishment for falsification of records, etc.
Clause 99.—This clause provides the provisions relating to penalty for omission to furnish plans, etc., without reasonable excuse, the burden of proof of which lies on the person making the omission.
Clause 100.—Thisc clause provides the provisions relating to punishment for disclosure of information. The details regarding the information have been specified in the clause.
Clause 101.—This clause provides the provisions relating to punishment for wrongfully disclosing results of analysis. The details of the disclosure have been specified in the clause.
Clause 102.—This clause provides the provisions relating to punishment for contravention of the provisions of duties relating to hazardous processes as specified in the clause.
Clause 103.—This clause provides the provisions relating to punishment for contravention of the provisions of duties relating to safety provisions resulting in an accident.
Clause 104.—This clause provides the provisions relating to punishment for working in contravention of any general or special order issued under the provisions of clause 38.
Clause 105.—This clause provides the provisions relating to punishment for failure to appoint manager in contravention of the provision of the clause 67.
Clause 106.—This clause deals with offences by employees.
Clause 107.—This clause provide the provisions relating to prosecution of owner, agent or manager of a mine as specified in the clause.
Clause 108.—This clause provides the provisions relating to exemption of owner, agent or manager of a mine or occupier of a factory from liability in certain cases. Such cases are that the owner, agent or manager or occupier proves to the satisfaction of the court that he has exercised due diligence to enforce execution of the proposed court Code or that the other person committed the offence in question without his knowledge, consent or connivance.
Clause 109.—This clause deals with offences by companies, etc., under the circumstances specified in the clause 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 to be proceeded against and punished accordingly.
Clause 110.—This clause provides the provisions relating to limitation of prosecution and cognizance of offence under the proposed Code.
Clause 111.—This clause deals with power of officers of appropriate Government to impose penalty in certain cases. Such cases are offences under the proposed Code in which only penalty is provided.
Clause 112.—This clause provides the provisions relating to jurisdiction of a court for entertaining proceedings, etc., for offence. The court within the local limits of which the establishment is situated shall have the jurisdiction.
Clause 113.—This clause deals with power of the court to make order. Such order shall be in addition to the awarding punishment, requiring the offender within a period specified in the order (which may be extended by the Court from time to time on application made in this behalf) to take such measures as may be specified in the order for remedying the matters in respect of which the offence was committed.
Clause 114.—This clause contains the provisions relating to compounding of offences. Under the provision the compoundable offences are specified.
Clause 115.—This clause relates to Social Security Fund. The fund shall be established by the appropriate Government for the welfare of unorganized workers. The other details have been specified in the clause.
Clause 116.—This clause deals with delegation of powers. In the delegation the conditions, subject to which the delegation would be made, may be specified.
Clause 117.—This clause contains the provisions relating to onus as to age. It relates to the offences committed under the proposed Code involving an issue of the age of the person. The burden of onus is on the accused to prove that such person is not under such age.
Clause 118.—This clause contains the provisions relating to onus of proving limits of what is practicable, etc. This relates to the failure to comply with the duty to do something, it shall be for the person who is alleged to have failed to comply with the duty or requirement, to prove that it was not reasonably practicable or all practicable measures were taken to satisfy the duty or requirement.
Clause 119.—This clause relates to common licence for contractor, factories and to industrial premises of beedi and cigar work, etc.
Clause 120.—This clause provides the provision relating to effect of law and agreements inconsistent with the proposed Code. The provisions of this Code shall have effect notwithstanding 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. The clause also saves the more favourable benefit of the employee. The guideline for interpretation is also provided in the clause.
Clause 121.—This clause deals with power of the appropriate Government to direct inquiry in certain cases. Such cases relate to event of the occurrence of an accident in an establishment which has caused or had the potentiality to cause serious danger to employees and other persons within, and in the vicinity of the workplace or whether immediate or delayed, or any occupational disease as specified in the third Schedule.
Clause 122.—This clause relates to publication of reports. Such reports are the reports, submitted to the appropriate Government by the National Board or State Advisory Board or any extracts from any report submitted to it under the proposed Code.
Clause 123.—This clause deals with powers of Central Government to give directions to State Government for the implementation of the provisions of the proposed Code.
Clause 124.—This clause contains the provisions relating to general restriction on disclosure of information.
Clause 125.—This clause contains the provisions relating to barring of the Jurisdiction of civil courts in respect of the matters to which any provision of the proposed Code applies and no injunction shall be granted by any civil court in respect of anything which is done or intended to be done by or under the proposed Code.
Clause 126.—This clause relates to protection of a person from legal proceeding if action is taken in good faith in pursuance of the proposed Code.
Clause 127.—This clause deals with power to exempt in special cases as specified in the clause.
Clause 128.—This clause deals with power to exempt during public emergency as specified in the clause.
Clause 129.—This clause deals with power to exempt public institution. They are such institution, workshop or workplace where a mansufacturing process is carried on and which are attached to a public institution maintained for the purposes of education, training, research or information, from all or any of the provisions of the proposed Code. The cases in which exemption shall not be granted are specified in the clause.
Clause 130.—This clause provide the provisions relating to a persons who is required to givenotice, etc., to any authority in respect of the provisions of the proposed Code shall be legally bound to do so within the meaning of section 176 of the Indian Penal Code, 1860.
Clause 131.—This clause deals with power of Central Government to amend the Schedule by way of addition, alteration or omission therein.
Clause 132.—This clause deals with power of Central Government to remove difficulties by the order published in the Official Gazette. Such order shall not be made after the expiry of two years from the date on which the proposed Code comes into force.
Clause 133.—This clause deals with power of appropriate Government to make rules subject to the condition of previous publication and by notification, for carrying out the purposes of the proposed Code.
Clause 134.—This clause deals with power of the Central Government to make rules subject to condition of previous publication and by notification, for carrying out the purposes of the proposed Code.
Clause 135.—This clause deals with power of the State Government to make rules subject to condition of previous publication and by notification, for carrying out the provisions of the proposed Code. Sub-clause (3) of the said clause provides that the Central Government may, by notification and in consultation with the State Government, make rules for the purposes of bringing uniformity, throughout the country, in occupational safety, health or such other matters as it considers necessary in respect of factories.
Clause 136.—This clause deals with power of Central Government to make regulations in relation to mines and dock work by notification in the Official Gazette which shall be consistent with the proposed Code.
Clause 137.—This clause relates to prior publication of rules, etc. The power to make rules, regulations, and bye-laws under the proposed Code shall be subject to the condition of the previous publication in the manner as specified in the clause.
Clause 138.—This clause deals with power to make regulations without previous publication. The matters in which such regulations shall be made are specified in the clause.
Clause 139.—This clause relates to bye-laws. The employer of a mine is empowered to make bye-laws as specified in the clause.
Clause 140.—This clause deals with the power of Central Government to make rules to regulate general safety and health of the persons residing in whole or part of India, in the event of declaration of an epidemic, pandemic or disaster, for such period as may be notified by the Central Government.
Clause 141.—This clause relating to laying of regulations, rules and bye-laws etc., before Parliament.
Clause 142.—This clause relating to laying of rules made by State Government before the State Legislature.
Clause 143.—This clause deals withthe provisions relating to repeal and savings. The enactments which are being repealed are enumerated in the clause. Every Chief Inspector, Additional Chief Inspector, Joint Chief Inspector, Deputy Chief Inspector, Inspector and every other officer appointed for the purposes under any of the provisions of the enactments repealed by the proposed Code, shall be deemed to have been appointed under the proposed Code for such purposes under the proposed Code. Certain actions under the repealed enactments have also been saved.
The provisions of the Occupational Safety, Health and Working Conditions Code, 2020 does not involve any additional expenditure, either recurring or non-recurring, from the Consolidated Fund of India.
MEMORANDUM REGARDING DELEGATED LEGISLATION
Sub-Clause (1) of Clause 133 (1) of the Code empowers the appropriate Government, subject to the condition of previous publication and by notification, to make rules for carrying out the provisions of the proposed Code. Sub-Clause (2) specifies the matters in respect of which such rules may be made. These matters, inter alia, include— (a) the substance or quantity of substance under Clause (zb) of sub-section (1) of section 2; (b) the late fee under the proviso to sub-section (1) of section 3; (c) the form and manner of sending the notice and the authority to whom the notice shall be sent and the manner of intimating the authority under sub-section (1) of section 5; (d) the information to be included in the letter of appointment and the form of such letter under Clause (f) sub-section (1) of section 6; (e) the nature of bodily injury and the manner of notice and the time within which the notice shall be sent and the authority to which notice shall be sent under sub-section (1) of section 10; (f) the nature of dangerous occurrence and the form of notice, the time within which and the authority to which notice shall be sent under section 11; (g) the manner of making report by employee under Clause (d) and other duties of employees under Clause (g) of section 13; the manner of sending report of action taken under sub-section (3) of section 14; conditions for exemption of workers from weekly and compensatory holidays under subsection (2) of section 26; (j) the form of notice and manner of display of such notice and the manner in which such notice shall be sent to the Inspector-cum-Facilitator under sub-section (2) of section 31; (k) the return, manner of filing the return and periods of filing return to the Inspector-cum-Facilitator under Clause (d) of section 33; (l) the other powers and duties under Clause (xiv) of sub-section (1) of section 35; (m) the qualification for the appointment of medical practitioner and other in relation to an establishment under sub-section (1) of section 42; (n) the other establishment engaged in the dangerous occupation or processes under Clause (a) of sub-section (2) of section 42; (o) the conditions relating to safety, holidays and working hours or any other condition to be observed by the employer under section 43; (p) the form and manner of application and the particulars which such application shall contain regarding the number of contract labour, nature of work for which contract labour is to be employed and other particulars including the information relating to the employment of inter-State migrant workers under sub-section (1) of section 48; (q) the manner of applying for the renewal of licence and the manner of renewal of licence under sub-section (3) of section 48; (r) the manner of payment of wages from security deposit under sub-section (4) of section 55; (s) the manner of providing facility of toll free helpline under section 63; (t) the manner of holding enquiry under sub-section (1) of section 111; (u) the form and manner of preferring appeal and the fee to accompany such appeal under sub-section (3) of section 111; (v) the manner of compounding under sub-section (1) of section 114; (w) the form of appeal, the fee to be accompanied therewith and the appellate authority under sub-section (5) of section 119; (x) the manner of survey under sub-section (2) of section 121; and (y) any other matter which is required to be, or may be, prescribed under this Code.
2. Sub-Clause (1) of Clause 134 empowers the Central Government, subject to the condition of previous publication and by notification, to make rules for carrying out the provisions of the proposed Code. Sub-Clause (2) specifies the matters in respect of which such rules may be made. These matters, inter alia, include:— (a) the other authority under sub-Clause (iii) of Clause (zs) of sub-section (1) of section 2; (b) the form of certificate of registration, the time within which and the conditions subject to which such certificate shall be issued under sub-section (3) of section 3; (c) the terms and conditions of service of officers and employees of the National Board under sub-section (4) of section 16; (d) the form and manner of collecting, compiling and analyzing occupational safety and health statistics under sub-section (1) of section 21; (e) the health and working conditions under sub-section (1) of section 23; (f) the matters specified in sub-section (2) of section 23; (g) the hours of work for working journalist under sub-section (2) of section 25; (h) the maximum period of accumulating leave under Clause (ii) sub-section (3) of section 25; (i) the conditions and restrictions for entitlement of cash compensation under Clause (iv) of sub-section (3) of section 25; ( j) the requisite qualifications or criteria under sub-section (1) of section 47; (k) the conditions relating to workings, opencast workings and explosives under Clause (b) of sub-section (1) of section 68; (l) the authority, the manner of informing such authority and the time limit for making such information under sub-section (3) of section 68; (m) the language of the bye-laws under sub-section (7) of section 139; and (n) any other with which is required to be, or may be, prescribed under this Code.
3. Sub-Clause (1) of Clause 135 empowers the State Government, subject to the condition of previous publication and by notification, to make rules for the matters relating to the factories, plantation and any other matter for the carrying out the provision of the proposed Code. Sub-Clause (2) specifies the matters in respect of which such rules may be made. These matters, inter alia, include:— (a) the number of members and their qualifications under sub-section (3) of section 17; (b) the manner of preparing the plan of the place or premises under sub-section (3) of section 74; (c) the other matters under Clause (e) of subsection (4) of section 74; (d) the time of filing appeal and fees under section 75; (e) the manner of disclosing information by occupier of a factory under sub-section (1) of section 84; (f) the qualification and experience of persons handling hazardous substance and manner of providing necessary facilities for protecting the workers under Clause (b) of section 85; (g) the value of the maximum permissible limit of exposure of chemical and toxic substances in manufacturing process in any factory under section 88; (h) the matters for prohibiting or, restricting employment of women or adolescents under sub-section (2) of section 93; (i) the manner of periodical medical examination of worker under sub-section (5) of section 93; (j) the manner of providing facilities, clothing and equipment under sub-section (7) of section 93; and (k) any other matter which is required to be, or may be, prescribed.
4. Sub-Clause (3) of Clause 135 empowers the Central Government, by notification, and in consultation with the State Government, to make rules for the purposes of bringing uniformity, throughout the country, in occupational safety, health or such other matters as it considers necessary in respect of factories.
5. Sub-Clause (1) of Clause 136 empowers the Central Government, by notification to make regulations consistent with the proposed Code for all or any of the following purposes namely:— (a) for specifying the qualifications required for appointment as Inspector-cum-Facilitator; (b) for specifying the duties of owners, agents and managers of mines and of persons acting under them, and for specifying the qualifications (including age) of agents and managers of mines and of persons acting under them; (c) for fixing the fees, if any, to be paid in respect of such examinations and of the grant and renewal of such certificates; (d) for regulating, subject to the provisions of the Indian Explosives Act, 1884, and of any rules made there under, the storage, conveyance and use of explosives; (e) for prohibiting the employment in a mine either as manager or in any other specified capacity of any person except persons paid by the owner of the mine and directly answerable to the owner or manager of the mine; (f) for providing for the ventilation of mines and the action to be taken in respect of dust, fire, and inflammable and noxious gases, including precautions against spontaneous combustion, underground fire and coal dust; (g) for providing for proper lighting of mines and regulating the use of safety lamps therein and for the search of persons entering a mine in which safety lamps are in use; (h) for regulating the procedure on the occurrence of accidents or accidental explosions or ignitions in or about, mines; for dealing effectively with the situation; (i) for specifying the form of, and the particulars to be contained in, the notice to be given by the owner, agent or manager of a mine under section 5; ( j) for requiring the fencing of any mine or part of a mine or any quarry, incline, shaft, pit or outlet, whether the same is being worked or not, or any dangerous or prohibited area, subsidence, haulage, tramline or pathway, where such fencing is necessary for the protection of the public; (k) for specifying the number of officials to be appointed; (l) for specifying the period during which the agent shall be resident in India; (m) for providing for the safety in opencast mines and associated operations and machineries used therein; (n) for specifying the forms of returns which shall be filed by the establishments or the class of establishments under this Code; (o) providing for the fire and explosion prevention and protection; (p) providing for the safety of workers employed in freight container terminals or other terminals for handling unitised cargo; (q) providing for the construction, maintenance and use of staging; (r) providing for the work in connection with cleaning, chipping, painting, operations and precautions to be taken in connection with such work; (s) providing for the transport of dock workers; (t) providing for the submission of statement of accidents, man-days lost, volume of cargo handled and particulars of dock workers; and (u) any other matter which is required to be or may be specified by regulation.
6. The matters in respect of which the said rules and regulations may be made are matters of procedure or administrative detail, and as such, it is not practicable to provide for them in the Code itself. The delegation of legislative power is, therefore, of a normal character.