In the early hours of the morning of December 8, 43 workers, most of them migrants from Saharsa and Madhubani districts in Bihar and a few from Uttar Pradesh, burned to death in a fire that broke out in a six-storey factory in north Delhi. The fire department managed to rescue more than 60 other workers from the 600-square-foot building that housed many manufacturing units, including bag-making units where the deceased workers were employed. Rescue operations proved challenging as the passage to the building was not more than 10 feet wide. The structure also lacked proper exits.
The December 8 incident was one of the worst fire-related disasters in the National Capital Region. As always, fire safety norms were found to have been violated. The owner of the factory was arrested.
On December 23, nine persons were charred in a commercial-cum-residential area in another part of Delhi. Once again, the building was found to have violated fire safety norms. And on December 24, two workers were charred and three fire department employees were injured while dousing flames in two shoe factories in Narela, another part of north Delhi.
A joint statement issued by five trade unions in Delhi held various departments accountable for the December 8 accident. The Delhi units of the Centre of Indian Trade Unions (CITU), the All India Trade Union Congress, the Indian National Trade Union Congress, the Hind Mazdoor Sabha and the All India United Trade Union Council stated that this was not an isolated incident in residential areas where factories were operating with the municipal corporation’s permission. The fire department was mandated to conduct inspections and issue no-objection certificates.
“Had factory inspectors, fire inspectors and labour inspectors done their job, this would have been averted,” said Anurag Saxena, secretary of the Delhi CITU. He added that workers were found to be working 12 to 14 hours a day with no social security coverage. None of the factories had proper nameplates either, he said.
Even as the tragedy unfolded, the Delhi government and the Central government got into a slugfest regarding whose responsibility it was to ensure worker safety. With the impending State Assembly elections a few months away, the war of words between the Aam Aadmi Party and the Bharatiya Janata Party was but inevitable.
Disaster in the making
Yet, what has been completely ignored against the backdrop of this tragedy is that the Central government is all set to legislate the Occupational Safety, Health and Working Conditions (OSHWC) Code, 2019. If passed in its present form in the next session of Parliament, the safety and health of workers, especially those in the unorganised sector, will be in greater danger. The Bill was introduced in the Lok Sabha on July 23, 2019, and sent to a Standing Committee in October. The Standing Committee is supposed to submit its report within three months.
This is the second of the four Codes to be introduced in Parliament. The Industrial Relations (IR) Code was the first to be introduced, but it was not sent to a Standing Committee. The Code legalises the system of short-duration fixed-term employment across sectors, which gives employers the freedom to terminate employment without any liability. The IR Code was strongly opposed by trade unions and some legislators in Parliament; similarly, strong objections to the OSHWC Bill have been raised in the form of representations to the Standing Committee on Labour.
The OSHWC Code, which subsumes 13 pieces of labour legislation, seeks to regulate the health and safety conditions of workers in establishments with 10 or more workers. The Code amalgamates the Factories Act, 1948; the Mines Act, 1952; the Dock Workers Act, 1986; the Contract Labour Act, 1970; the Inter-State Migrant Workers’ Act, 1979; and the Working Journalists Act, among others.
One of the very first objections to the Code was that it does not cover units employing fewer than 10 workers. The unions demanded that there be two separate codes, one for occupational safety and health and the other for working conditions and welfare of workers. In a detailed note submitted to the Standing Committee and accessed by Frontline , the CITU pointed out that even though the Code claims to be all-inclusive, it does not cover large sections of workers and other employees.
Listing out almost 18 categories of workers excluded from the ambit of the Code, the CITU pointed out that establishments employing fewer than 10 workers; domestic workers; home-based workers; agricultural workers; workers in plantations less than five hectares in size; information technology and ITES workers; digital platform workers; apprentices under the Apprentices Act; gig employees; railway workers employed in loco running sheds, wagon depots and railway canteens; airport ground staff; scheme-based workers; fisheries workers; rag-pickers; ship-breaking workers; street vendors; hawkers; and so on would not benefit from the protective clauses of the Code.
Clause 1(4) of the Code does not apply to offices of the Central and State governments or any ship of war of any nationality. The CITU had proposed several amendments to the various clauses. It has said that the Code should include all State and Central government employees while excluding ships of war.
The Code excludes from its ambit construction work in any building, factory or mine employing fewer than 10 workers; this includes construction work relating to residential properties. The CITU proposed that all construction activities be covered, including residential ones.
The Code defines an establishment and a factory as one where 10 or more workers are employed. It specifies that the mere fact that an electronic data processing unit or a computer unit is installed in any premises or part of a premises shall not mean that the unit is a factory if no manufacturing process is being carried out.
The CITU has contended that any premises should be considered a factory, including the precincts where one or more workers are working on any day of the preceding 12 months and in any part of which a manufacturing process is being carried out with or without the aid of power, and that they should be considered for coverage under the Code.
The CITU’s chief demand is that the threshold limit of employment be deleted.
The Code proposes the setting up of inspectors-cum–facilitators, which goes against the International Labour Organisation’s (ILO) Convention No. 81, which describes staff entrusted with inspection work as inspectors. The amendment proposes the deletion of the words “cum facilitator”.
Further, in its definition of “worker”, the Code includes working journalists and sales promotion employees but excludes anyone employed in a managerial capacity or administrative capacity or in a supervisory capacity where the person (supervisor) was drawing more than Rs.15,000 a month.
The unions have demanded that exclusions based on nature of work and threshold limit on income be deleted. Clause No.13 lists out the “duties of the employee”, and the CITU has said it should be completely deleted as it is imprudent to fix any responsibility on the employees in respect of safety and health, especially when they are under the total control of the employer either directly or through the system of supervisory control.
Among the seven “duties” mentioned, the Code proposes that “every employee at workplace shall take reasonable care for the health and safety of himself and other persons who may be affected by his acts or omissions at the workplace; comply with the safety and health requirements specified in the standards; cooperate with the employer in meeting the statutory obligations of the employer under the Code; and not do wilfully and without reasonable cause anything likely to endanger himself or others”.
The Code also provides for the setting up of a National Occupational Safety and Health Advisory Board to discharge the functions of the Code. The proposed board does not envisage any participation by trade unions, which has been opposed by worker representatives as it is in violation of ILO Convention No. 135, which requires member states to consult representatives of employers and employees in the formulation, implementation and review of national policy. The Code does not give any scope for such broad tripartite representation.
The CITU has proposed that the Central government constitute sectoral and national tripartite occupational health and safety committees, neither of which has been proposed in the Code. In fact, the Code proposes such boards at the State level but again without any provision for tripartite representation. The proposed National Board should also have the power to visit any establishment to check whether there is compliance with the Code.
The Code proposes that the Central government declare by notification standards on occupational safety and health for workplaces relating to factories, mines, dock work, building and other construction work and other establishments. It has been contended that the Code needs to declare standards relating to other establishments as well and specify certain basic and minimum occupational safety and health standards.
Clauses in the Code pertaining to working hours are controversial, leaving it to the discretion of the “appropriate government”. Unions have said that the Code should specify that as per the Hours of Work (Industry) Convention, 1919, ratified by India, the working hours of any person should not exceed eight hours a day and 48 hours a week.
They have said that the the prescription in respect of daily and weekly hours of work, intervals of rest and spread of the workday should strictly be in line with Sections 51 to 54 of the Factories Act. The Code is silent on these aspects, including the maximum number of hours of overtime work. All this has been left to the discretion of the “appropriate government”.
In Clause 26 (1), titled “weekly and compensatory holiday”, it is stated that no worker would be allowed to work in an establishment for more than six days a week; yet, the Code proposes that the “appropriate government” may exempt such workers as it thinks fit from the provisions of subsection 1.
There are similar contradictions in the section prohibiting overlapping of shifts. On the one hand, Clause no. 29 (1) says that work shall not be carried on in any establishment by means of a system of shifts where more than one relay of workers is engaged in work of the same kind in the same time, while, on the other, it states that the “appropriate government” or the chief inspector-cum-facilitator can exempt any establishment or class of establishments from the provisions of the subsection.
As far as the maintenance of registers and records and the filing of returns are concerned, the Code gives the employer the option of maintaining electronic registers containing particulars of workers and issuing paperless wage slips, which the unions have rejected.
On its list of amendments submitted to the Standing Committee, the CITU said that printed registers should be maintained in the prescribed form with all particulars of the employee and additionally in electronic form, and printed wage slips should be issued. Similarly, unions have voiced strong objections to third-party audit and certification. Regarding occupational safety and health of workers, the Code proposes that offences punishable under the Code of Criminal Procedure with imprisonment be made compoundable. This proposal has been rejected by all trade unions, including the CITU; they argue that imprisonment is the biggest deterrent for non-compliance. The Code also bars civil courts from hearing matters under the Code, which leaves writ petitions in the High Court as the only judicial recourse for aggrieved persons.
All central trade unions are opposed to the formation by the government of four contentious labour codes that subsume 44 separate labour laws. Trade unions argue that in the garb of simplifying processes, various features that are protective of workers have been diluted.
A law on the health and safety of workers should cover all establishments irrespective of size and contain the principle of tripartite representation within its administrative structure. The Code fails on both counts. It provides loopholes for employers to compromise with safety and health regulations.
The National Commission on Labour, whose recommendations the Code draws inspiration from, had recommended three laws: one would have broad safety and health regulations for all establishments, a second would cover establishments employing 20 workers or more, and the third would cover units employing fewer than 20 workers.
The Code does not lay down any standards with respect to working hours, safety standards or working conditions such as provision of washrooms or drinking water, leaving them to the “appropriate government”. The Code also does not make it mandatory for establishments with more than 50 workers to have creches; it says the Central government “may make rules”. This contradicts the Maternity Benefit Act, 1961.
Given the abysmal conditions that workers find themselves in at most workplaces, the least the Code could have done was to specify a set of non-negotiable conditions. Instead, it provides more avenues for errant employers to escape compliance and opens the route for more accidents at the workplace.