As defined by WHO, Occupational health deals with all aspects of health and safety at the workplace with special emphasis on primary prevention of hazards.

The basis for occupational safety and health laws lies in the constitutional provisions of India. First such provision is Article 24 which prohibits employment of children under the age of 14 years. Article 39(e and f) states that the health of men, women and children should be protected, and children should be given opportunity and facility for healthy development and should be protected against exploitation. Further article 42 states that humane conditions at work and maternity relief should be provided.

Thus, it is the responsibility of the government to take into consideration these provisions and make and enforce such policies which ensure the workplace safety and health of the workers. In this regard, government came up with the national policy on safety, health and environment at workplaces in February 2009. It provides necessary guidelines for developing workplace safety and provides for a statutory framework, administrative and technical support, developing research, prevention strategies, monitoring and inclusion of safety, health and environment improvement in other policies of the government.

Labour falls under the concurrent list of the constitution. Hence, both central government and state government are competent to make laws in this matter. As per central government, there existed several state and central laws regulating different aspects of labour including resolution of industrial disputes, working conditions, social security and wages.

The national commission on labour in 2002 found these provisions complex and archaic hence it recommended the consolidation of central labour laws into broad groups such as:

1. Industrial relations,
2. Wages,
3. Social security,
4. Safety and
5. Welfare and working conditions.

Consequently the ministry of labour and employment introduced four bills to consolidate 29 central laws which regulate: wages, industrial relations, social security and occupational safety, health and working conditions. The code on wages, 2019 has been passed by the parliament and other three were referred to the standing committee on labour. Following its report, the central government replaced these bills with new one in September 19, 2020.

In this article, I will be discussing about one such bill which is the code on occupational safety, health and working conditions, 2020. Though we have a central legislation on the issue of occupational health now but there still lies lacunae in the implementation and in fulfilling the aims and objectives of the legislation which needs to be addressed.

Workplace safety is something that the employers tend to ignore. They consider it an expense and burden but it in fact an investment. Ensuring the safety and health of the workers will lead to less number of fatal accidents, which will result in better participation of workforce, will increase productivity, and will overall increase economic efficiency which will eventually lead to economic growth.

There are also certain international conventions like ILO of which India is a signatory but still there are many international standards that aren't adopted in the current circumstances which needs to be corrected and the effective measures should be taken to improve the present working conditions of the workers.

Occupational Safety, Health And Working Conditions Code, 2020

In the backdrop of recent outbreak of COVID-19, and the great migration of people, the occupational safety, health and working conditions code 2020 was passed on the recommendation of Second National Commission on labour by the Ministry of labour and employment.

The bill got the assent of the president on 28 September, 2020. The law will come into force with the issuing of notification by central government in the Official Gazette of India. The code aims to consolidate and amend 13 existing labour laws related to the health, safety and working conditions of the workers including laws like the Factories Act, 1948, The Mines Act, 1952, The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979, The Dock Workers (safety, health and welfare) Act, 1986 etc.

The Salient Features Of The OSH Code, 2020 And The Concerns Related To It Are Explained Below:
Salient Features:

• Appointment letter mandatory:
  It is made mandatory for the employers to issue an appointment letter to their employees. This will bring more formalization and make the process more systematic.
• Free health check-ups:
  It is the responsibility of the employer to organise free health check-ups for their employees periodically to keep a check on any disease and catch it at an early stage and provide necessary healthcare and treatment to the employees.
   
• Inter-state migrant workers:
  During the recent outbreak of COVID-19, there was a huge flux of migrant labourers. Both the central and state governments were unable to effectively maintain a database of those workers. This code provides for a database to be maintained by both the centre and the state governments. The provisions related to inter-state migrant workers are applicable on establishments with 10 or more such workers. The new code also absolves these workers from any proceedings for recovery of any dues or debt from them. The code also provides for a social security fund for the benefit of workers in the unorganised sector. The migrant worker is provided with the benefit to avail ration in his/her destination state and also avail the building and construction worker cess.
   
• Constitution of national and state occupational safety and health advisory board:
  A National Occupational Health and Safety board will be constituted for providing the necessary advice to the centre regarding the matter and similarly a State Occupational Health and Safety advisory board as an advisory body to the state governments on all issues covered by the code.
  
  A safety committee to be formed by the government in any establishment or class of establishments. Some degree of leeway is also provided by the government to certain establishments in special cases as given to mines to frame their own byelaws.
  
  Labour inspectors in earlier acts are now replaced with Inspector-cum-Facilitator under the new code. The District- Magistrate will be the Inspector-cum Facilitator so far as mines within his/her local limits are concerned. Also qualified medical practitioner will be appointed as medical officer for any medical supervision.
   
• Employment of women:
  The code provides for employment of women in all establishments for all types of work. They can now work late at night beyond 7 PM and before 6 AM subject to conditions related to safety, working hours and their consent.
   
• Common license:
  A single window mechanism for obtaining a common-all India license is provided for contractors, factories, and industrial premises for beedi and cigar work that will help reduce the bureaucratic hassle one has to go through for procurement of these licenses.
   
• Monetary penalties:
  The code enable the courts to give a portion of monetary penalties of up to 50 per cent to the workers who is a victim of any accident or to the legal heirs of the person in case of his death. The code also gives overriding powers to the central government to regulate general safety and health in whole or part of India in the event of any epidemic or pandemic. It also provides for adjudging the penalties imposed under the code.
   
• New work rules:
  Section 25 of the new code provides for a maximum working shift of 8 hours in any establishment and this may be lesser for workers in mines. A worker is entitled to get twice his daily wage in case of overtime. It also proscribes any overlapping shifts. Adult factory workers are entitled to a leave in every 20 days of work while an adolescent is entitled to a leave every 15 days of work provided they complete 180 days of work in a year.

Concerns Related To The Osh Code, 2020:

• Exclusion of certain beneficiaries:
  The law excludes apprentices and trainees from its ambit even though work allotted to them is same as contractual and permanent employees. This will lead to exploitation of the employees and they will not be able to claim same degree of safety and healthy working conditions.
   
• Hasn't included unorganised sector:
  The code has not included the unorganised sector. It hasn't clearly laid down the beneficiaries. It mainly focuses on sectors like mines and industries. Furthermore, the code applies to an establishment of 10 or more workers but in real life we have a lot of small enterprises with less than 10 workers. By excluding these small enterprises and the informal sector, a lacunae is created which will lead to poor enforcement of the objectives of the legislation as issues like child labour, poor working conditions etc. that are more prevalent in the unorganised sector would be overlooked due to this exclusion.
   
• Appointment of welfare officers:
  earlier as per the Factories Act of 1948, welfare officers were to be appointed for an establishment with more than 500 employees. But this new code has reduced that requirement of 500 employees to 250 employees. This change would adversely affect small MSME industries. They already strive on low- profit margins and this requirement would put an additional burden on them. These industries were most hit by the COVID-19 and instead of providing them with some relief, this just does the opposite.
   
• Ignoring the healthcare sector:
  The code having being passed during the times of covid-19 was expected to lay stress on the shortcomings and loopholes in the health care sector. People faced a lot of difficulty during those tough times owing to poor management, improper infrastructure etc. The healthcare professionals who were fighting on the frontline lost their lives due to inadequate safety and health measures.
  
  There are various guidelines for various kinds of establishments but the required detailed guidelines for the healthcare sector are missing. During the time of the pandemic when everyone was confined to their homes, many mental health issues surfaced like anxiety, stress, depression etc.
  
  Mental health is really a prevalent issue in today's times and it requires attention of the legislators to form laws especially in relation to the workspace of the worker. Despite of having the opportunity and knowledge of the shortcomings the OSH code doesn't reflect on this particular aspect.

The new code provides that no person who is medically unwell, has defective vision, or has tendency to giddiness shall be required or allowed to work in any such operation of building or construction work in which he is likely to get injure or injure other co-workers. This provision is specifically mentioned for construction work. This is a point of concern as same measure should be taken for other sectors too.

Jurisdiction of civil court is barred under the new code. Instead the code provides for an appellate administrative authority to be notified in case of dispute arising out of non-agreement with authorities like inspector-cum-facilitator. No judicial mechanism is provided for dispute resolution.
OSH in unorganised sector

Unorganised sector (or informal sector) includes those workers and small units that are not recognised, recorded or regulated by the law or in practice. As per the Periodic Labour Force Survey (PLFS), 90% of the workers are in the informal sector. This includes people working as food vendors, manual scavengers, rag pickers, carpet weaving, pottery etc. The workers working in this sector aren't given social security profits as given to the organised sector.

Also due to lack of regulations in respect of occupational health and safety of the workers, the occurrence of occupational diseases is very common. There is high prevalence of diseases like respiratory diseases, dermatitis, and zoonosis etc. owing to lack of safety equipment.

The employment under this sector is usually a temporary settlement or setup and also owing to poor socio-economic background, safety and health of the worker is ignored. Also this sector has a huge involvement of women and children who are often discriminated and exploited. Since this sector isn't controlled or protected by any authority, there is a lack of data on such workers and their respective working conditions due to which appropriate actions and interventions by the government isn't made.

There is an urgent need to bring reforms in this sector also keeping in mind the recent outbreak of COVID-19 and large-scale migration of people which has pushed many people to the informal sector. The social security for the workers in unorganised sector has been provided by the government via various schemes like Atal Pension Yojana, Pradhan Mantra Shram Yogi Maan-dhan (PM-SYM), AB-PMJAY etc. but these need to be formalised and more standardised as there are for organised sector.

A comprehensive plan is required to be made to address the deteriorating situation of employment much aggravated by the pandemic. There is also a need to develop a national database of unorganised workers so that the government has the required data so that they can make and implement policies accordingly.

Hence, there is an urgent need to take appropriate measures for formalising the sector and bring it under proper regulations so that it remains under the check of the government to ensure safety and health of the workers are given priority among other things.

ILO Convention And India's Stance

The international labour organisation adopted the fundamental principles and rights at work (FPRW) in 1998 to promote fundamental principles and labour standards. The FPRW declared that all the member countries even if they have not ratified the said convention(s) have obligation to follow, respect and promote the principles concerning the fundamental rights.

Keeping in view the prevalent situation of the workers regarding their safety and health conditions leading to large scale fatalities which got aggravated in the recent pandemic, the ILO in June 2022 adopted 'a safe and healthy working environment as part of the fundamental and labour rights and 5th principle of FPRW (other four being freedom of association and right to collective bargaining, elimination of all forms of forced or compulsory labour, effective abolition of child labour, elimination of discrimination in employment and occupation).

Two conventions related to this are: Occupational Safety and Health (OSH) convention, 1981 (No.155) and Promotional Framework for occupational safety and health convention, 2006 (No. 187). According to C.155, there should be regulations to govern and ensure OSH in all branches of economic activity and should cover all types of workers including unorganised and MSMEs.

As per C.187, there must be a national policy on occupational safety and health. India has adopted only 47 conventions and one protocol and has ratified some conventions related to occupational safety and health like hours of work, accidents etc. but still there are many conventions yet to be ratified which are necessary for the regulation of OSH.

We have labour laws providing OSH to sectors like mining, factories, docks etc. But the unorganised sector including agriculture and MSMEs isn't brought under the ambit of such regulations. As a result, the occupational health and safety in these sectors remains unregulated and weak despite of employing the majority of the people of the country. This lack in proper laws for these sectors is also a possible reason for the government to not ratify C.155 despite of framing OSH policy in 2009.

The status of occupational health in not better even in organised sector or sectors covered under some legislation as there is no proper implementation of the law or there are deficits in the regulations. There is no proper statistical data on the fatalities, occupational diseases etc. despite of India's ratification of Labour Inspection Convention, 1947 (C.081) which is also limited to certain sectors. Also due to adoption of neo-liberal policies, there is lot of laxity and leniency in inspection and regulation in organised sector as well.

Thus, keeping in mind the institutional and legal deficits in the current system, India must adopt the international conventions to bring a step forward in ensuring occupational health and safety for all the economic sectors. And adopting the 2022 declaration of FPRW is the step in right direction. India must take necessary measures to meet the international standards set by the ILO as they are essential requirements that every worker in any sector deserves.

Suggestions:

• A robust system of enforcement should be in place which is adequately equipped and empowered. The government must maintain a system of periodic statistics on occupational diseases and accidents and take appropriate measures to tackle them.
• A database of occupational diseases should be made.
• Proper implementation of the rules and regulations should be there. A system of adequate penalties and punishments should be in place to keep a check on erring parties.
• The workers need to be educated about their rights and awareness regarding the importance of occupational health should be spread among the working class so that they are aware of their rights and can voice their dissent and concerns.
• All the workers working in the economic sector should be provided adequate occupational health and safe working conditions.
• Unorganised sector and MSMEs should be given adequate focus with regard to working conditions and occupational health.
• Survey and statistical data should be maintained regarding the fatalities in different sectors so that appropriate action can be taken.

Conclusion
Occupational health and safe working conditions are basic right of every worker irrespective of the sector they are working in. Our constitution provides for provisions ensuring that and hence it is the duty of the government in framing such policies and regulations to fulfil that. There are many laws in place for different sectors which the recently passed Occupational health, safety and working conditions Code, 2020 seeks to consolidate and codify it at one place.

The OSH code, 2020 provided the government with the opportunity to look into this aspect but it didn't get the necessary and adequate attention. The existing loopholes were not given much attention. In fact this brought with it, its own issues and concerns. Somewhere it diluted the existing regulations and made some provisions stringent and unnecessary.

It didn't deal with other fundamental problems like poor data collection, lack of surveys, and lacuna of laws for OSH in unorganised sector, MSME's and agriculture, poor implementation of already existing schemes among others. In keeping view of the scenario of OSH currently and the problems which surfaced due to the pandemic, the ILO too made OSH a 5th principle of FPRW.

India being a member has an obligation to embrace that and take steps to implement it but provided its current structural and institutional deficit, it is not able to do that. This is time the government take some concrete steps in this regard. This it won't be able to do alone but with coordinated efforts of all the stakeholders including the owners, organisations, private enterprises etc.

By focusing on the fundamental issues like proper surveys, strict implementation and coverage of all the concerned stakeholders and then building on it would be helpful in effective management and ensuring Occupational safety and health for all.