LABOUR & INDUSTRIAL LAW –

II(SEM-09/PAPER-01)

LW 5013

SELF – NOTES

Anish Mahapatra

BBA LLB “A”

Roll No. – 1782019

MODULE 1: CONCEPTUAL FRAMEWORK OF LABOUR LAW

Conceptual Framework

Labour laws in India are enacted both by the Central and State Government with some overlap
between the two in implementation. India over the years has had a multitude of laws governing
labour and employment which has usually made compliance very arduous for businesses but has
usually provided a fair amount of protection to employees.

In 2020/2021, the Indian Government has subsumed over 29 Central laws and corresponding
State laws in four major Labour Codes, with the aim to simplify, modernise, and restructure the
current regime and increase the ease of doing business in India.

The Labour Codes have been enacted and are likely to be implemented in 2021. For most
businesses, this year would involve straddling the requirements of existing laws while modifying
their current practices to comply with the changes coming with the implementation of the Labour
Codes.

The Government of Indi a has four Labour Codes: the Code on Wages 2019; the Industrial
Relations Code, 2020; the Occupational Safety, Health and Working Conditions Code, 2020; and
the Code on Social Security, 2020. All the Labour Codes have been aimed at broadening the
scope of coverage, rights and protections, reducing multiplicity in definitions, authorities and
compliances, and embracing more digitisation in registrations/compliances. However, at the
same time, the Labour Codes are largely a consolidation of existing laws rather than a significant
overhaul of them, with there not being a substantial change in the position of law itself.

The Code of Wages, 2019 (“Wage Code) amalgamates four labour laws pertaining to minimum
wages, payment of wages, applicable deductions, statutory bonus and equal remuneration to
employees. The Wage Code covers the different aspects of wages payable to employees. The
most significant aspect of the Wage Code is the uniform definition of wages which has also been
adopted across the other three Labour Codes as well as broadening its applicability to all
establishments.

The Industrial Relations Code, 2020 (“IRC”) subsumes three major pieces of labour legislation
that deal primarily with employee working conditions, separations from employment, industrial
disputes and collective bargain. The IRC has been the most contentious legislation with
workmen and trade unions in India believing that their existing rights have been curtailed and
more benefits provided to the employer since threshold limits for applicability in terms of
working conditions and termination have been increased and their right to strike without due
notice have been more firmly regulated. However, the majority of the right and protections have
been actually retained for employees and in fact the coverage has broadened on account of
certain change in definitions. It also encourages more industries to expand operations since the
law is not as onerous in some aspects as before.

The Occupational Safety, Health and Working Conditions Code, 2020 (“OSHWC Code”) repeals
13 central labour laws which are applicable to various types of industries which deal and codifies
in a single regulatory framework the applicable legal provisions for factories, mines, plantations,
contract labour and construction establishments.

The Code on Social Security, 2020 (“SS Code”) combines and repeals nine laws that were
primarily employee social welfare legislation and seeks to create a comprehensive social security
system to provide retirement, health, old-age, disability, unemployment and maternity benefits to
a vast majority of the population. The coverage for most of these has been expanded to cover the
unorganized sector (self – employed or home – based) which constitutes a large segment of
India’s working population as well keeping in mind the vast number of services now provided
with technology as a cornerstone such as gig (workers outside the traditional employer-employee
relationship) and platform workers (who access organizations or individuals through an online
platform and provide services or solve specific problems).
The SS Code has certainly been beneficial for a number of classes of employees, but may prove
to be a greater financial burden on employers.

Concept of Social Justice

Social justice denotes the equal treatment of all citizens without any social distinction based on
caste, colour, race, religion, sex and so on. It means absence of privileges being extended to any
particular section of the society, and improvement in the conditions of backward classes (SCs,
STs, and OBCs) and women. Social Justice is the foundation stone of Indian Constitution. Indian
Constitution makers were well known to the use and minimality of various principles of justice.
Although social justice is not defined anywhere in the constitution but it is an ideal element of
feeling which is a goal of constitution. Feeling of social justice is a form of relative concept
which is changeable by the time, circumstances, culture and ambitions of the people. Social
inequalities of India expect solution equally. Under Indian Constitution the use of social justice
is accepted in wider sense which includes social and economical justice both.

In D. S. Nakara v. Union of India, the Supreme Court has held that the principal aim of a
socialist state is to eliminate inequality in income, status and standards of life. The basic frame
work of socialism is to provide a proper standard of life to the people, especially, security from
cradle to grave. Amongst there, it envisaged economic equality and equitable distribution of
income. This is a blend of Marxism & Gandhism, leaning heavily on Gandhian socialism. From
a wholly feudal exploited slave society to a vibrant, throbbing socialist welfare society reveals a
long march, but, during this journey, every state action, whenever taken, must be so directed and
interpreted so as to take the society one step towards the goal.

The social justice scenario is to be investigated in the context of two streams of entitlements: (a)
sustainable livelihood, which means access to adequate means of living, such as shelter, clothing,
food, access to developmental means, employment; education, health, and resources; (b) social
and political participation (enabling or empowering means), which is built on the guarantee of
fundamental rights, and promotion and empowerment of the right to participation in the
government, and access to all available means of justice, and on the basis of which “justice as a
political programme” becomes a viable reality. We require therefore a study based on select
illustrations of various issues relating to government policies on topics such as: (a) the right to
food and water; (b) housing, which includes resettlement and rehabilitation; (c) access to
education, (d) access to provisions of health and healthcare, (e) right to work, and (f) access to
information and the right to communication. In short, one of the important ways in which the
inquiry will proceed will be through taking stock of various forms that have occasioned the
articulation of ideas of social justice. Governmental justice consists of various welfare schemes,
law, legal literacy, administrative forms of arbitration such as tribunals, boards, courts, public
interest litigation, new legal education, plus the constitutional idea of protection of weaker
sections of the society and introduction of positive discrimination.
Concept of State Regulation and Labour Welfare

The concept of labour welfare originated in the desire for a humanitarian approach to ameliorate
the sufferings of the workers and their families on account of the baneful effects of large-scale
industrialization like undesirable social consequences and the labour problems which have
evolved in the process of transition from tradition to modernity. Later it became a utilitarian
philosophy which worked as a motivating force for labour and for those who were interested in
it. Lastly, labour welfare received inspiration from the evolution of the social thought in regard
to democracy and welfare state.

The I.L.O. (SEA) session held at New Delhi in 1947 defined Labour Welfare as “such services,
facilities and amenities, which may be established in or in the vicinity of, undertakings to enable
persons employed therein to perform their work in healthy, congenial surroundings and to
provide them with amenities conducive to good health and good morale.

The Committee on Labour Welfare (1969) defined labour welfare to “include such services,
facilities and amenities as adequate canteens, rest and recreational facilities, sanitary and medical
facilities, arrangements for travel to and from work and for the accommodation of workers
employed at a distance from their homes and such other services, amenities, and facilities
including social security measures as contribute to improving the conditions under which
workers are employed”.

Scope of Labour Welfare: Labour welfare is a dynamic concept which acquires as new
dimensions with the changes in the environment of the industry. It was as early as 1931 that
„Whitley Commission observed, “Labour welfare is one which must necessarily be elastic,
bearing a somewhat different interpretation in one country from another, according to the
different social customs, the degree of industrialization and the educational development of the
workers”.

Importance of Labour Welfare

The basic objective of labour welfare is to enable workers to live a richer and more satisfactory
life. Labour welfare is in the interest of the labour, the employer and the society as a whole. The
main benefits of the employee welfare services are as follows:
  Benefits to the Workers: The usefulness of welfare need not be overemphasized. For
instance, the provision of welfare measures such as good housing, canteens medical
facilities etc, makes the workers realize that they have some stake in the undertaking in
which they are employed and so they think thrice before taking any reckless action,
which might prejudice the interest of the undertaking.
 Benefits to employers: The provision of welfare facilities is not only beneficial to
workers but also to employers in several ways. For instance, the provision of welfare
facilities helps in increasing employee productivity by improving their physical and
psychological health. Besides this, it helps in improving the goodwill and public image of
the enterprise. It also helps in improving good industrial relations and industrial peace
 Benefits to the Society Labour / Employee: Welfare is also in the interest of larger
society because the health, efficiency, and happiness of each individual represent the
general well-being of all. Well-housed, well-fed and well-looked after labour is not only
an asset to the employer but also serves to raise the standards of the industry.

https://www.legalbites.in/law-notes-labor-law-theories-of-labour-welfare/

Constitution of India and Labour

Under the Constitution of India, Labour is a subject in the Concurrent List where both the
Central & State Governments are competent to enact legislation subject to certain matters being
reserved for the Centre. The Constitution of India is the touchstone for any Act passed in our
country. The Constitution of India is the largest written constitution of the world. Each and every
act which was in force before the enactment of our constitution were either amended or nullified
after its enforcement. Our constitution plays an important part in the changes and growth in
labour laws in India.

Part III of the Constitution of India is the benchmark for labour laws in India. Also, Part III
(Article 12 to 35) of the Constitution covers the fundamental rights of its citizens which includes
Equality before the law, Religion, Sex, caste, place of birth, the abolition of untouchability,
freedom of speech and expression and prohibition of employment of children in factories.
The Government of India Act, 1935 defines “weaker sections” as class or classes of people who
are suffering from educational and economic backwardness, as well as some aspects of social
life, due to traditional customs of untouchability, tribal background, tribal way of life or other
backwardness. Different resolutions of the Indian government have divided the weaker groups
into three main categories: SC, ST & OBC.

But this list is not exhaustive. Women, aged persons, disabled, sexual minorities are also
deprived of the benefits and they are ill-treated. Thus, weaker sections that face discrimination
include- women, scheduled castes(SC), scheduled tribes (ST), children, disabled, aged, poor
migrants, sexual minorities, people suffering from HIV/AIDS, and other backward classes. The
Constitution has provided provisions not only for SC/STs, backward classes but also for the
other weaker sections of society.

Constitutional makers have provided different safeguards in the Constitution of India for the
upliftment and protection of the weaker section of the society. They are as follows:

 Article 14 of the constitution provides for the equal protection of law and equality before
the law. Therefore, irrespective of class every citizen has the right to be treated equally
before the law.
 Article 15 prohibits discrimination based on disability, restriction, or the grounds of
castes, religion, sex, or place of birth. Whereas nothing in this article will prevent the
state to make special provisions and arrangements for the betterment of :
o The children and women [Article 15(3)].
o Socially and economically backward classes/ scheduled castes / scheduled tribe
[Article 15(4) & Article 15(5)].
 Article 16 provides equal opportunities to all citizens in matters of employment or
appointment of any office under the state. States can make special provisions related to
the reservation, appointment for the backward classes, and the state has the authority to
decide whether the person falls in the definition of backward classes. This provision helps
to strengthen the weaker section in monetary terms.
 Article 17 abolishes untouchability and it is a punishable offence under the Protection of
the Civil Rights Act, 1955.
 Article 19(5) provides that the state is allowed to restrict freedom of movement for the
benefits of the Scheduled tribe.
 Article 21 provides that every person is entitled to the right to life and personal liberty
except the procedure established by law. Irrespective of the castes, sex, religion, or place
of birth everyone is entitled and they can’t be deprived of his life.
 Article 21A provides that all children between the age of 6 to 14 years are entitled to free
and compulsory education.
 Article 24 prohibits the employment of children below the age of 14 years in factories,
mines, or any other hazardous employment. This article prohibits:
o Child labour
o Working in the construction industry
o Mines
o Hazardous employment
 Article 25 provides that every person has freedom of conscience and they are entitled
equally to profess, propagate and practise any religion. This freedom is subjected to
public order, health and morality. Article 25(2)(b) provides that nothing in this article
will prevent the state from making or it won’t affect any pre-existing law for providing
social welfare and reform or tossing Hindu religious institutions of a public character to
all classes.
 Article 29 protects the interest of minorities, any citizen residing in India having a
distinct language or a culture. They have the right to conserve the culture/language/script
of their own. Further, any citizen based on religion, race, or castes cannot be denied
admission to any educational institution funded by the state.
 Article 30 minorities either based on religion or language have the right to establish and
administer educational institutions.
 Article 38 states must ensure and promote the welfare of the people by promoting and
securing as effectively as may be a social order and must act to minimize inequalities in
terms of income, status, facilities, and opportunities available.
 Article 39 provides the policy which is to be considered by the states. Like, men and
women are equally entitled to adequate means of livelihood, equal pay for equal work for
 men and women, the health of the worker, no abuse against youth, children are provided
with the opportunity to develop healthily to secure, and no citizen must be forced out of
economic necessity to pursue something which unsuited for their age or quality.
 Article 39A states must provide free legal aid to the people who can’t afford it because of
economically weaker sections or due to some disabilities.
 Article 41 provides that the state has the power/capacity to make provisions within the
economic limits to secure the right to education, the right to work, and the right to public
assistance in certain cases. For this Article, certain cases include old age, disablement,
sickness, or any other condition. The Supreme Court while interpreting this article in
many cases held that the state must make effective provisions for securing the rights of
the disabled and for the people suffering from other infirmities within the economic
capacity of the state.
 Article 42 provides that the state must make provisions to secure any other hazardous
employment in the just and humane conditions of work and maternity relief. Protecting
the employment of women during the maternity period.
 Article 46 under the Directive Principles of State Policy provides that the State must
promote the educational and economic interests of the scheduled castes, scheduled tribes,
and the weaker sections of the society with due care. Also, the state must protect the SC,
ST & weaker sections from exploitation and social injustice.
 Part XVI of the Constitution deals with special provisions relating to certain classes. This
part provides political empowerment to the scheduled castes, scheduled tribes, and other
classes. Article 330 and Article 332 reserve seats for scheduled castes and scheduled
tribes in the house of people and legislative assemblies of the state respectively. National
Commission for scheduled castes and scheduled tribes have been established under
Article 338 and Article 338A respectively.
 Article 340 provides that the president has the authority to investigate the condition of
socially and economically backward classes through appointing a commission to
investigate.

https://blog.ipleaders.in/weaker-sections-society-constitution-socio-legal-analysis/
Recent and Important Judicial Decision regarding Conceptual Framework of Labour Law

The Secretary, Ministry of Defence v. Babita Puniya & ors. – The decision in this landmark
judgment puts an end to gender discrimination by directing that women in the Short Service
Commission (“SSC”) are eligible for Permanent Commission in the Indian Army regardless of
their service and is considered as a turning point in the history of the Indian Army. This
judgment not only affords women the opportunity to be at par with men in the Indian army but
also provides job security and ensures equal opportunity to women in the Indian Army. The SSC
female officers who will be eligible for Permanent Commission will be barring women from
Permanent Commission is unjustified and violative of Article 14 of the Constitution of India.

Union of India v Lt Cdr Annie Nagaraja – In pursuit of the aforesaid judgment, the female
officers in the Navy were also held to be entitled to Permanent Commission. The female officers
are to be treated equal to its male counterparts for the same role.

Dr. Malabika Bhattacharjee v Internal Complaints Committee, Vivekananda College and

Others – This case further clarifies that the existing Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act & Rules, 2013 ("PoSH Act"), which prevents and
prohibits the sexual harassment of women at the workplace, allows not only for complaints to be
made by women, but against persons of any gender. In this case, the action of IC to accept a case
under the PoSH Act was challenged by the Petitioner on the ground that the complainant and the
respondent were of the same gender and the complaint was not maintainable. The High Court fe
observed that:

 The definition of "respondent must be read in concurrence with the rest of the legislation,
and stated that "there is nothing in Section 9 of the 2013 Act to preclude a same-gender
complaint under the Act.
 “Although it might seem a bit odd at the first blush that people of the same gender
complain of sexual harassment against each other, it is not improbable, particularly in the
context of the dynamic mode which the Indian society is adopting currently, even
debating the issue as to whether same-gender marriages may be legalized.”
 The term 'sexual harassment" as defined under the Section 2(n) of the PoSH Act must be
interpreted against the background of the social standpoint and cannot be regarded as a
 static concept, that the sexual harassment contemplated pertains to dignity and does not
mean that a person of similar gender cannot hurt any modesty dignity.

The High Court also decided that same-gender complaints under the PoSH Act are maintainable.

Pradip Ragunath Daud v State of Maharashtra and Another – The Supreme Court in the
case of Vishaka and Others v State of Rajasthan and Others (JT 1997 (7) SC 384) had laid down
guidelines ("Vishaka Guidelines") for prohibition and prevention of sexual harassment of women
at the workplace and dealing with cases of sexual harassment at the workplace which was later
superseded by the PoSH Act. In the present matter, the complainant levied the allegations against
the applicant of stalking and chasing her in front of other male and female colleagues at the
workplace. A plea was filed by the applicant to quash the First Information Report ("FIR")
registered against him under Sections 354 and 509 of the Indian Penal Code, 1860 and the
complainant had filed a compromise affidavit in this regard. The Bombay High Court did not
accept the compromise affidavit submitted and found it "unconscionable to accept the
compromise as it would be against the interest of justice". The High Court after considering the
merits of the case stated that there exists no ground for quashing of the FIR and the contents of
the FIR were spelt out by the complainants and the same allegations have been stated in the
charge-sheet and the petition was dismissed. Therefore, the High Court observed that the
objective of Vishaka Guidelines will be defeated if the complainant is compelled to withdraw the
complaint.

Gujarat Mazdoor Sabha v State of Gujarat - Gujarat Labour and the Employment Department
had issued a notification under Section 5 of the Factories Act, 1948 exempting factories in the
state of Gujarat from "from various provisions relating to weekly hours, daily hours, intervals for
rest etc. for adult workers" under Sections 51, 54, 55 and 56. The issue raised before the Court in
the present matter was whether the COVID-19 pandemic and the nationwide lockdown falls
within the ambit of "public emergency" as defined in Section 5 of the Factories Act. It was held
that statutory provisions which affords dignity and rights to the worker cannot be done away
with on account of a pandemic situation by the Gujara Government. In this regard, the pandemic
does not qualify as "public emergency within the purview of Section 5 of the Factories Act, 1948
threatening the security of the nation. It was noted that the notification violated the worker's right
to life and right against forced labour guaranteed by Articles 21 and 23 of the Indian Constitution
and the Court directed the payment of overtime wages to all eligible workers who have been
working since the notification was rolled out. Thus, the notification issued by the Gujarat
Government was quashed.

In the case of Chief Regional Manager, United India Insurance Company Limited v. Siraj
Uddin Khan [Civil Appeal No. 5390 of 2019, decided on 11 July 2019], the SC has reiterated
that no individual can claim wages for the period that he/she remained absent without leave or
justification.

In the present case, the Respondent was relieved from the Allahabad branch of the Appellant to
join the Jaunpur branch of the Appellant. However, the Respondent did not join the Jaunpur
branch on the assigned date and was unauthorizedly absent from work for four months.
Disciplinary enquiry was conducted against the Respondent and an order for reduction of basic
pay by two steps was passed in May 2009. However, the Respondent continued to be absent
from work until 2012. Consequently, the Appellant passed an order in June 2012, terminating the
services of the Respondent. The Respondent preferred a series of writ petitions before the High
Court of Allahabad against the above-mentioned orders. The High Court of Allahabad quashed
the above-mentioned orders citing procedural lapses in the conduct of disciplinary enquiry,
without specially directing the Appellant to provide back wages to the Respondent from 2009-
2012. Upon refusal of the Appellant to pay back wages from 2009 - 2012, the Respondent filed
another writ petition before the High Court of Allahabad. The High Court of Allahabad directed
the Appellant to pay salary for the period 2009 - 2012, along with 18% interest. The Appellant
preferred the present appeal before the SC against this order of the High Court of Allahabad.

The two-judge bench of the SC held that, setting aside of the termination order does not
automatically entitle the Respondent to the salary for the period 2009 - 2012. The SC
differentiated the present case from a situation where an employee was dismissed from service
and when such dismissal was set aside, he would automatically be entitled for back wages. The
SC noted that since the Respondent was not kept away from the work on account of dismissal or
by any order of the Appellant, the Respondent was not eligible to claim arrears of wages.
Therefore, the SC partly allowed the appeal and directed the Appellant to consider the claim of
back wages of the Respondent and pass appropriate orders with reasons.
In Pankaj Prakash v. United India Insurance Company Limited and Another [Civil Appeal
No. 5340-5341 of 2019, decided on 10 July 2019], the SC held that all public servants are
entitled to know their grades in an annual performance appraisal report (APAR).

The Appellant was aggrieved by the fact that the entries in his APAR for two years were not
disclosed, as a result of which he was unable to submit a representation for promotion at the
particular time. The Appellant filled a writ petition before the High Court of Allahabad against
such action of the employer i.e. Respondent. The High Court of Allahabad held that in the
absence of an adverse entry or an entry below the benchmark, the failure to communicate the
grade in an APAR did not result in an actionable grievance. The Appellant preferred an appeal
against this judgment of the High Court of Allahabad.

The SC held that as per the decisions of the SC in Dev Dutt v. Union of India [(2008) 8 SCC
725] and Sukhdev Singh v. Union of India [(2013) 9 SCC 566], it is mandatory that every
entry in the APAR of a public servant must be communicated to him/her within a reasonable
period. Apart from ensuring transparency in the system, such disclosures also ensure that a
public servant is given reasonable opportunity to make representations against the gradings if
he / she is dissatisfied with the results. Further, the Union of India had also issued Office
Memoranda on 14 May 2009 and 13 April 2010 seeking compliance by all ministries and
departments. Moreover, on 19 October 2012, a specific communication was also addressed to
public sector insurance companies.

Therefore, the SC disagreed with the reasoning given by the High Court of Allahabad and held
that non-communication of the entries in an APAR, whether good or bad grades, is a matter in
respect of which a legitimate grievance can be made by the Appellant. Accordingly, the SC
directed the Appellant to communicate the details of the APAR to the Respondent within a
period of one month from the date of receipt of this order.

In Dr Pooja Jignesh Doshi v. The State of Maharashtra and Another [Writ Petition No.
1665 of 2015, decided on 3 July 2019], the division bench of High Court of Bombay (Court)
reiterated that even in case of birth of a child by surrogacy, the parents who have lent the ova and
sperm, would be entitled to maternity leave and paternity leave, respectively. The Court
reiterated the law laid down by the division bench of the Court in Dr Mrs Hema Vijay Menon
v. State of Maharashtra [Writ Petition No.3288, decided on 22 July 2015].

MODULE 2: LEGISLATION RELATING TO WORK- CONDITIONS AND

PROVISION OF HEALTH, SAFETY AND WELFARE

Occupational Safety, Health and Working Conditions Code, 2020

The Occupational Safety, Health and Working Conditions Code, 2020 (“OSH Code“) received
the President's assent on September 28, 2020 along with two other codes, all of which are yet to
be notified by the Government. The OSH Code has subsumed several key pieces of legislation
on the working conditions of labour and consolidated it into one comprehensive act, including,
inter alia, the Contract Labour (Regulation and Abolition) Act, 1970, the Factories Act, 1948,
etc. The new codes are an exercise in ensuring a streamlining of the labour laws in the country.

Key Definitions

Contract Labour: “Contract labour” has been defined as a worker deemed to be employed in/in
connection with the work of an establishment when he is hired for such work through a
contractor, with or without the knowledge of the principal employer. The definition excludes any
worker (other than a part-time employee) who is regularly employed by the contractor for any
activity of his establishment and such worker's employment is governed by mutually accepted
standards of conditions of employment and gets periodical increment in pay and other welfare
benefits.

Employee: “Employee” means a person employed (whether expressly or impliedly) on wages by

an establishment to do any skilled, unskilled, manual, operational, supervisory, managerial,
administrative, technical, clerical or other work. The definition of employee has been made
consistent in all the new codes, as well as the Code on Wages, 2019.

Employer: The OSH Code defines “employer” to be a person who employs, whether directly or
through any person, or on his behalf, or on behalf of any person, one or more employees in his
establishment, and includes, inter alia, the person/authority which has the ultimate control over
the affairs of the establishment and contractor.

Establishment: An “establishment” is (i) any place with ten (10) or more workers where any
industry, trade, business, manufacturing or occupation is carried on; or (ii) a motor transport
undertaking, newspaper establishment, audio-video production, building and other construction
work or plantation with ten (10) or more workers; or (iii) factory in which ten (10) or more
workers are employed; or (iv) a mine or port or vicinity of port where dock work is carried out4.

Hazardous Process: The OSH Code defines a “hazardous process” as any process or activity in
relation to specific industries (set forth in Schedule I of the OSH Code), where, unless special
care is taken, raw/intermediate/finished/bye-products, etc., as the case may be, would:

 Cause material impairment to the health of the persons engaged in or connected herewith;
or
 Result in pollution of the general environment5.

Principal Employer: For the purposes of the OSH Code, a “principal employer” is (i) any
person responsible for the supervision and control of the establishment where contract labour is
employed or engaged; or (ii) the owner or the occupier of the factory and where a person has
been named as the manager of the factory, the person so named.

Wages: “Wages“, as per the OSH Code, comprises all remuneration such as salaries, allowances
or otherwise, expressed in terms of money or capable of being so expressed which would be
payable to a person in respect of his employment, whether express or implied, or of work done in
such employment and includes basic pay, dearness allowance and retaining allowance, if any.

The OSH Code clarifies that wages do not include (a) bonus; (b) value of accommodation or
light, water, medical attendance; (c) employer contribution towards any pension or provident
fund; (d) conveyance allowance; (e) sum paid to employed person to defray special expenses; (f)
house rent allowance; (g) overtime allowance and (h) gratuity, etc.
Rights of interstate workers

In addition to the general labour laws applicable to all workers, the interstate workers are entitled
with

 Equal or better wages for the similar nature & duration of work applicable for the local
workmen or stipulated minimum wages under the Minimum Wages Act, 1948 whichever
is more,
 Displacement allowance (Section 14),
 Home journey allowance (Section 15) including payment of wages during the period of
journey,
 Suitable residential accommodation and medical facilities free of charge on mandatory
basis.
 Termination of employment after the contract period without any liability.
 Right to lodge compliant with the authorities within three months of any incident,
accident, etc.

Role of contractors

Registration of all contractors who employs or employed five or more Interstate Migrant
Workmen on any day of the preceding 12 months.

 Furnish the details of workmen periodically in such forms as prescribed by state

government.
 Maintain the registers indicating the details of interstate workers and make available for
scrutiny by the statutory authorities.
 Issue of passbook affixed with a passport-sized photograph of the workman indicating the
name and the place of the establishment where the worker is employed, the period of
employment, rates of wages, etc. to every inter-state migrant workman.
 Reporting by the contractor the incidence of fatal accident or serious injury of such
workman to the specified authorities of both the States and also the next of kin of the
workman.
 Liable for the prescribed punishments for violations committed under this Act.
Role of principal employers

 Registration of all principal employers who employs or employed directly or indirectly

five or more Interstate Migrant Workmen on any day of the preceding 12 months.
 Maintain the registers indicating the details of interstate workers and make available for
scrutiny by the statutory authorities.
 Every principal employer shall nominate a representative duly authorized by him to be
present at the time of disbursement of wages by the contractor and it shall be the duty of
such representative to certify the amounts paid as wages in such manner and may be
prescribed.
 Principal employer shall be liable to bear the wages and other benefits to interstate
workers in case of failure by the contractor to effect the same.
 Liable for the prescribed punishments for violations committed under this Act.

Role of state governments

 Appointment of inspectors to oversee implementation of this act.

 Appointment of registration officers to grant and revoke registration of contractors /
principal employers / establishments.
 Appointment of licensing officers to grant, suspend and revoke licenses to contractors /
principal employers / establishments
 Making rules for carrying out the purposes of this Act subject to the condition of previous
publication
 Entertaining appeals from the aggrieved parties and disposal of the same as per this Act

Duties of Employer under OSH Code

Under the OSH Code, every employer is required to undertake the following:

 Ensure that the workplace is free from hazards which cause or are likely to cause injury
or occupational disease to the employees and comply with the OSH Code and the
Government's directions on the same;
 Provide free annual health examination or test, free of costs to certain classes of
employees;
  Provide and maintain, as far as is reasonably practicable, a working environment that is
safe and without risk to the health of the employees;
 Issue letters of appointments to employees; and
 Ensure that no charge is levied on any employee for maintenance of safety and health at
workplace including conduct of medical examination and investigation for the purpose of
detecting occupational diseases.

Furthermore, the OSH Code prescribes a more stringent set of duties for employers with respect
to factories, mines, dock work, building and other construction work or plantations, including (i)
arrangements in the workplace for ensuring safety and absence of risk to health in connection
with the use, storage and transport of articles and substances; (ii) provision of such information,
instruction, training and supervision as are necessary to ensure the health and safety of all
employees at work, etc.

The OSH Code has further clarified that it shall be the duty of the architect, project engineer or
designer responsible for any building or construction work or the design of any project relating
to such building, to ensure that, at the planning stage, due consideration is given to the safety and
health aspects of the building workers and employees who are employed in the erection,
operation and execution of such projects.

Rights of Employee under OSH Code

Every employee has the following rights under the OSH Code:

 To obtain from the employer, information relating to employee's health and safety at
work and represent to the employer regarding inadequate provision for protection of the
employees safety or health in connection with the work activity in the workplace, and if
not satisfied, to the inspector-cum-facilitator;
 If he has reasonable apprehension that there is a likelihood of imminent serious personal
injury or death or imminent danger to health, he may bring the same to the notice of his
employer directly and simultaneously bring the same to the notice of the inspector-cum-
facilitator;
  The employer is required to take immediate remedial action if he is satisfied about the
existence of such imminent danger and send a report forthwith of the action taken to the
inspector-cum-facilitator in such manner as may be prescribed by the Government; and
 If the employer is not satisfied about the existence of any imminent danger as
apprehended by his/he employees, he shall, nevertheless, refer the matter forthwith to the
inspector-cum-facilitator whose decision on the question of the existence of such
imminent danger shall be final.

Registration under OSHWC and Social Security Codes

The Occupational Safety, Health and Working Conditions Code, 2020 provides for registration
under Section-3 and states that every employer of any establishment:-

a) Which comes into existence after the commencement of the Code;

b) To which the Code shall apply

Must apply to the registering officer within sixty days from the date of when the Code becomes
applicable. The registering officer is given the discretion to entertain applications after the expiry
of the above period provided the late fees is paid as prescribed.

Applicability of OSH Code

The OSH Code shall be applicable on every establishment employing fifty (50) or more than
fifty (50) contract labour through a contractor in any establishment. The CLRA, subject to state
specific amendments, applies to establishments employing twenty (20) or more contract labour
through contractors. States like Maharashtra, Telangana etc. have increased this threshold of
twenty (20) contract labour to fifty (50) contract labour. The OSH Code focuses on bringing
uniformity with respect to application of the chapter related to contract labour in all the states
across the country.

One Registration for One Establishment

The OSH Code provides for a single registration of every establishment employing ten (10) or
more workers and every establishment to whom the OSH Code applies shall apply for such
registration within sixty (60) days from the date of applicability of OSH Code. This one
registration concept will now allow every principal employer who has obtained registration
under the OSH Code to engage contract labour in his establishment without taking any separate
registration for the same.

License of Contractors

As per the OSH Code, every contractor, who is employing fifty (50) or more contract labour and
placing them to work for some other establishment will need to obtain a single license. The
license will be valid for a period of five (5) years. Under the CLRA the contractors are bound to
obtain multiple licenses with respect to each establishment where the contract labour is being
placed by the contractor. The OSH Code will provide relief to the contractors from obtaining
multiple licenses.

Prohibition on Employment of Contract Labours

The OSH Code restricts employment of contract labour in the core activities of an establishment.
However, the OSH Code provides that the principal employer may engage contract labour
through a contractor in any core activity in the following situations, where:

The normal functioning of the establishment is such that the activity is ordinarily done through
contractor; or

The activities are such that they do not require full time workers for the major portion of the
working hours in a day or for longer periods, as the case may be; or

Any sudden increase of volume of work in the core activity which needs to be accomplished in a
specified time.

Under the OSH Code, core activities shall mean any activity for which the establishment is set
up and includes any activity which is essential or necessary to such activity. Further, it is
provided that the following shall not be considered as essential or necessary activity, if the
establishment is not set up for such activity, namely:

a) Sanitation works, including sweeping, cleaning, dusting and collection and disposal of all
kinds of waste;
b) Watch and ward services including security services;
 c) Canteen and catering services;
d) Loading and unloading operations;
e) Running of hospitals, educational and training Institutions, guesthouses, clubs and the
like where they are in the nature of support services of an establishment;
f) Courier services which are in nature of support services of an establishment;
g) Civil and other constructional works, including maintenance;
h) Gardening and maintenance of lawns and other like activities;
i) Housekeeping and laundry services, and other like activities, where these are in nature of
support services of an establishment;
j) Transport services including, ambulance services; and
k) Any activity of intermittent nature even if that constitutes a core activity of an
establishment.

Under CLRA, the appropriate government after consultation with the central board has the
powers to issue notification to prohibit employment of contract labour in any process or activity
in any class of establishment. This however, does not provide for whether the contract labours
can be engaged by a principal employer in his establishment for certain kind of work.

Employment of Contract Labour and Inter-State Migrant Workers

The OSH Code has modified the number of minimum contract labour to fifty (50) from twenty
(20) for the OSH Code to apply. Welfare facilities as specified under the OSH Code are to be
provided by the principal employer of the establishment to the contract labour employed in such
establishment.

In a step that should prove beneficial, the OSH Code provides for a common license in respect of
a factory, industrial premises for beedi and cigar work and engaging contract labour. It has
further been clarified that no contractor is permitted to engage any contract labour if it does not
procure a license under and in accordance with the OSH Code.

The OSH Code has also safeguarded the rights of the Inter-State Migrant Workers by ensuring
that the contractor extends all benefits as are available to a worker under the various labour laws
to inter-state migrant workers as well. Furthermore, the employer of every applicable
establishment is required to pay to every inter-state migrant worker, a lump sum fare for to and
fro journey to his native place from the place of his employment.

The enactment of the OSH Code comes at a crucial juncture wherein the rights of the workers
have been debated heatedly on every fora and their plight has captured the spotlight during the
pandemic. There is a clear impetus in the OSH Code to address the issues that have come to the
fore, including that of the inter-state migrant workers. Furthermore, there is an obvious shift
towards the simplification of the compliance regime by the introduction of the single license.
Therefore, while the OSH Code has all the ingredients of a well-rounded legislation, it is prudent
to await its passage into the implementation stage before declaring it an overall success.

Health, Safety and Working Conditions

The employer is required to provide and maintain welfare activities for employees as may be
prescribed by the Central Government including (i) adequate and suitable facilities for washing
to male and female employees separately; (ii) bathing places and locker rooms for male, female
and transgender employees separately; (iii) sitting arrangements for all employees obliged to
work in a standing position; (iv) adequate first-aid boxes or cupboards with contents readily
accessible during all working hours; and (v) any other welfare measures which the Central
Government considers, under the set of circumstances, as required for decent standard of life of
the employees.

Furthermore, the Central Government is entitled to prescribe for provision of, inter alia, (i)
cleanliness and hygiene; (ii) ventilation, temperature and humidity; (iii) adequate standard of
humidification; (iv) potable drinking water; (v) adequate lighting; (vi) adequate standards to
prevent overcrowding, etc.

Work hours and employment conditions

 Daily work hour limit: The 2019 Bill allowed the appropriate government to notify the
maximum daily work hours for workers. The 2020 Bill fixes the maximum limit at eight
hours per day.
 Employment of women: The 2019 Bill allowed the appropriate government to prohibit
employment of women for undertaking dangerous operations. The 2020 Bill provides
 that women will be entitled to be employed in all establishments for all types of work
under the Bill. It also provides that in case they are required to work in hazardous or
dangerous operations, the government may require the employer to provide adequate
safeguards prior to their employment.
 Workers are entitled to one day off for every 20 days of work and one day off every
week.