Occupational Safety, Health And Working Conditions Code, 2020

The Occupational Safety, Health and Working Conditions Code, 2020 (“OSHWC Code”) which consolidates the various legislations pertaining to working conditions of various types of industries was passed by the Lok Sabha on 22nd September 2020, the Rajya Sabha on 23rd September 2020 and received Presidential Assent on 28th September 2020

The amalgamated and consolidated legislations are:

 

  1. The Factories Act, 1948
  2. The Contract Labour (Regulation and Abolition) Act, 1970
  3. The Mines Act, 1952
  4. The Dock Workers (Safety, Health and Welfare) Act, 1986
  5. The Building & Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1979
  6. The Plantations Labour Act, 1951
  7. The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979
  8. The Working Journalist and other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955
  9. The Working Journalist (Fixation of rates of wages) Act, 1961
  10. The Cine Workers and Cinema Theatre Workers Act, 1961
  11. The Motor Transport Workers Act, 1961
  12. The Sales Promotion Employees (Conditions of Service) Act, 1976
  13. The Beedi and Cigar Workers (Conditions of Employment) Act, 1966

 

Salient Features of the OSHWC Code

 

This section points out some of the key provisions in the OSHWC Code with a focus on the aspects which are different from applicable law.

 

  1. OSHWC Code has introduced a single registration for all establishments with 10 or more workers. Given that the OSHWC Code applies to a variety of different industries and types of establishments, the applicability for various sections varies accordingly as enumerated in the next point.

 

  1. The following are the amendments to thresholds which determine the applicability of relevant provisions of the OSHWC Code:
  • Factories with power – 10 to 20 workers
  • Factories without power – 20 to 40 workers
  • Contract Labour Section – 20 to 50 workers
  • Creche facility – 30 to 50 workers
  • Welfare Officer – 500 to 250 workers
  • Canteen – 250 to 100 workers

 

  1. Women can now work between 7 pm and 6 am in various establishments provided consent is obtained and safety measures are in place. Further, where previously prohibited, women are now allowed to work in all establishments including ones which are involved in hazardous activities.

 

  1. It has been made mandatory for all workers to have written terms of employment issued in an Appointment Letter.

 

  1. Free health needs to be provided by the employer annually for all workers over an age specified.

 

  1. Inter-state migrant workers to be provided for by employer/contractor, including statutory benefits. Further employers also have to cover travel fares for such workers as an allowance annually.

 

  1. Constitution of National Occupational Safety and Health Advisory Board to oversee and regulate safety norms, including requiring participatory/representative committees to be created to evaluate safety norms.

 

  1. Working hours, leave, overtime, welfare provisions have been made largely uniform across most Codes which makes the provisions uniform across most establishments.

 

  1. An employer is required to maintain a register which includes most of the following information: work performed by the employees, number of hours of work that constitute normal working hours in a day, weekly scheduled rest day, wages paid and receipts provided thereof, leave, leave with wages, overtime work, attendance, and dangerous occurrences and employment of adolescents.

 

  1. Government to formulate schemes for third party audit by professional experts.

 

OSHWC Code Implications

 

The OSHWC Code has certainly simplified the regulatory process. However, most of the aspects specifically needing regulations have been delegated to the State Government or the Board, so it needs to be seen what further legal provisions will likely be introduced in the rules.

Image Credits: Photo by Christopher Burns on Unsplash

The OSHWC Code has certainly simplified the regulatory process. However, most of the aspects specifically needing regulations have been delegated to the State Government or the Board, so it needs to be seen what further legal provisions will likely be introduced in the rules.

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Highlights Of The Code On Social Security

The Code on Social Security, 2020 (“SS Code”) was passed by the Lok Sabha on 22nd September 2020, the Rajya Sabha on 23rd September 2020 and received Presidential Assent on 28th September 2020.

The SS Code consolidates the various employee welfare legislation such as:

 

  1. The Employees Provident Fund and Miscellaneous Provisions Act, 1952 – this law provided for contributions by employer and employee towards post-retirement savings.

 

  1. The Employees State Insurance Act, 1948 – this law requires contributions from employers and employees towards insurance that covers medical, disability, and maternity.

 

  1. The Maternity Benefit Act,1961 – paid leave to employed women in the event of childbirth.

 

  1. The Payment of Gratuity Act, 1972 – statutory payment for long-service by an employee on non-stigmatic separation from employment.

 

  1. The Building and Other Construction Workers Cess Act – a fund for providing benefits to construction workers and their dependents.

 

  1. The Employees Exchange (Compulsory Notification of Vacancies) Act, 1959 – requires notification of job vacancies.

 

  1. The Cine Workers Welfare Fund Act, 1981 – the welfare of certain cine workers.

 

  1. The Unorganized Workers’ Social Security Act, 2008 – welfare measure for the unorganized sector including self-employed, work from home, and daily wage workers.

 

  1. Employees Compensation Act, 1923 – payment of compensation of injuries causing disablement/death arising in the course of employment.

 

Salient Features of the SS Code

 

This section points out some of the key provisions in the SS Code with a focus on the aspects which are different from applicable law.

 

  1. Applicability and Beneficiaries – The section on Provident Fund (PF) is applicable to all establishments with 20 or more employees as opposed to certain scheduled establishments. Employee State Insurance (ESI), Gratuity, and Maternity Benefit are applicable to all establishments with 10 or more employees & establishments carrying on hazardous activities. Building or other construction work now additionally excludes works employing less than 10 workers or residential construction work of up to INR 50 lakhs. Social security is also intended to be extended to the unorganized sector, gig, and platform workers. Also allows for voluntary adoption of the provisions where establishments do not meet the thresholds mentioned for PF and ESI.

 

  1. Wages Definition – Wages, which is being made uniform now, include all remuneration except for certain specific allowances such as conveyance, HRA, overtime, commission, bonus, and the consistent social security contributions and gratuity with a caveat that the excluded components cannot exceed 50% of the total salary paid. Any exclusions in excess of 50% shall be treated as wages. This concise definition of wages now removes the ambiguity in the earlier definition, especially in PF, on what components are required for purpose of calculating contributions. Employers will find this particularly welcome, in view of last year’s Supreme Court judgment which increased the PF contribution drastically by including the most regularly paid allowances for calculation purposes.

 

  1. PF Contribution – The employer and employee contribution have been reduced from 12% to 10%, with options for different percentages to be notified by the Central Government as and when it deems fit.

 

  1. Gratuity – While gratuity is still payable to all employees who have completed at least 5 years of continuous service with the company, the SS Code also allows for payment of gratuity on a pro-rata basis for fixed-term employees. Further, the threshold years for working journalists have been reduced to 3 years. Gratuity payments could increase if the basic salary amount in salary structures is not 50% of the gross salary.

 

  1. Authorities under the SS Code – The authorities under the SS Code are: Board of Trustees of Employee Provident Fund, Employees’ State Insurance Corporation, National Social Security Board for Unorganised Workers, State Unorganised Workers’ Social Security Board, and State Building Workers Welfare Boards.

 

  1. Creche Facilities – SS Code clarifies that common creche facilities may be opted for by establishments having 50 or more employees.

 

  1. Unorganized Sector, Gig and Platform Workers – The SS Code requires the National and State Social Security Boards to specifically create schemes/funds for providing benefits (life and disability cover, health and maternity benefits, old age protection, education, and discretionary benefits) to workers in the unorganized sector (self-employed or home-based), gig workers (workers outside the traditional employer-employee relationship) and platform workers (who access organisations or individuals through an online platform and provide services or solve specific problems). They are required to register themselves with self-declaration and AADHAR.

 

  1. Aggregators – The concept of ‘Aggregator’ has been introduced and means a ‘digital intermediary or a marketplace for a buyer or user of a service to connect with the seller or the service provider’. Aggregators are intended to help fund schemes for the unorganized sector, gig, and platform workers with a 1-2% contribution of their annual turnover. Identified Aggregators in the SS Code are:
  • Ridesharing services
  • Food and grocery delivery services
  • Logistic services
  • E-marketplace (both marketplace and inventory model) for wholesale/ retail sale of goods and/or services (B2B/B2C)
  • Professional services provider
  • Healthcare
  • Travel and hospitality
  • Content and media services
  • Any other goods and services provider platform

 

  1. PF Appeals – The deposit for filing an appeal has been reduced from 75% to 25% of the ordered amount.

 

  1. Penalties – Stricter penalties have been imposed, especially for repeat offenders. However, an opportunity is provided for rectification of non-compliance prior to initiation of any proceedings.

 

SS Code Implications

 

With regards to the Rules and Schemes developed, specific implementation will have to wait. However, the SS Code does appear to be a sincere attempt towards broadening the net and covering a much larger section of the workforce by recognizing unconventional work models as well as formal ones. While there could be an increased financial burden on employers, there is also an easing with respect to compliance requirements.

Image Credits:  Photo by sol on Unsplash

With regards to the Rules and Schemes developed, specific implementation will have to wait. However, the SS Code does appear to be a sincere attempt towards broadening the net and covering a much larger section of the workforce by recognizing unconventional work models as well as formal ones.

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