Labour Law Expertsby Chheda Consultants

Chapter III · OSH Code

Duties of Employer and Employees

This chapter sets out who is responsible for safety at work. It puts general duties on every employer, and specific duties on the owner, agent, manager and officials of a mine, on designers, manufacturers, importers and suppliers, and on architects, project engineers and designers of construction work, and it requires notice of serious accidents, dangerous occurrences and listed diseases. It also lists what employees must do and the rights they have, including the right to alert the Inspector-cum-Facilitator to imminent danger at the same time as the employer.

10 sections ~13 min read Official text, PDF pp. 16–21
HR and safety managersFactory, mine and plantation ownersConstruction contractors, architects and project engineersEquipment manufacturers, importers and suppliers

Key points

  1. 1Every employer must keep the workplace free of hazards, follow the notified safety standards, and never charge employees for anything provided for safety and health, including medical examinations. §6
  2. 2Every employee must get an appointment letter in the form notified by the government, and employees who had none when the Code began must get one within three months. §6
  3. 3Accidents causing death or keeping a person off work for 48 hours or more, dangerous occurrences of a notified kind even with no injury, and Third Schedule diseases must all be reported to the authorities as notified by the government. §10§11§12
  4. 4Safety duties reach beyond the employer: designers, manufacturers, importers and suppliers must, as far as practicable, make articles and substances safe and explain safe use, and architects and project engineers must design construction work with worker safety in mind. §8§9
  5. 5Employees must take reasonable care, follow the standards, report unsafe conditions, and not interfere with or misuse safety equipment. §13§15
  6. 6Employees can ask for safety information, complain to the employer and then the Inspector-cum-Facilitator, and report imminent danger to the employer and the Inspector at the same time. §14

At a glance

Within 3 months of the Code's commencementAppointment letter for existing employeesSection 6Annual, free of costHealth examination (notified classes)Section 6Off work 48 hours or moreInjury that must be reportedSection 10Within 2 months of receiving the noticeInquiry into a fatal accident (plantation, construction, other establishments)Section 10Up to ₹10,000Penalty on a doctor who fails to report a listed diseaseSection 12
Earlier law:Factories Act, 1948Mines Act, 1952Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996Dock Workers (Safety, Health and Welfare) Act, 1986Plantations Labour Act, 1951
6

Duties of employer

In plain words

Every employer must keep the workplace free of hazards, follow the safety standards and rules, give free annual health check-ups to the employees notified by the government, dispose of hazardous, toxic and e-waste, issue every employee an appointment letter, and never charge employees for safety or health measures. In factories, mines, docks, construction and plantations, the employer is also responsible for the safety and health of everyone on the work premises, and must provide safe plant and systems of work, safe handling, storage and transport of articles and substances, information, training and supervision for employees, safe workplaces with safe ways in and out, and a safe working environment with welfare facilities.

(1)

Every employer shall,—

(a)

ensure that workplace is free from hazards which cause or are likely to cause injury or occupational disease to the employees;

(b)

comply with the occupational safety and health standards declared under section 18 or the rules, regulations, bye-laws or orders made under this Code;

(c)

provide such annual health examination or test free of costs to such employees of such age or such class of employees of establishments or such class of establishments, as may be prescribed by the appropriate Government;

(d)

provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of the employees;

(e)

ensure the disposal of hazardous and toxic waste including disposal of e-waste;

(f)

issue a letter of appointment to every employee on his appointment in the establishment, with such information and in such form as may be prescribed by the appropriate Government and where an employee has not been issued such appointment letter on or before the commencement of this Code, he shall, within three months of such commencement, be issued such appointment letter;

(g)

ensure that no charge is levied on any employee, in respect of anything done or provided for maintenance of safety and health at workplace including conduct of medical examination and investigation for the purpose of detecting occupational diseases;

(h)

relating to factory, mine, dock work, building or other construction work or plantation, ensure and be responsible for the safety and health of employees, workers and other persons who are on the work premises of the employer, with or without his knowledge, as the case may be.

(2)

Without prejudice to the generality of the provisions of sub-section (1), the duties of an employer shall particularly in respect of factory, mines, dock, building or other construction work or plantation include—

(a)

the provision and maintenance of plant and systems of work in the workplace that are safe and without risk to health;

(b)

the arrangements in the workplace for ensuring safety and absence of risk to health in connection with the use, handling, storage and transport of articles and substances;

(c)

the provision of such information, instruction, training and supervision as are necessary to ensure the health and safety of all employees at work;

(d)

the maintenance of all places of work in the workplace in a condition that is safe and without risk to health and the provision and maintenance of such means of access to, and egress from, such places as are safe and without such risk;

(e)

the provision, maintenance or monitoring of such working environment in the workplace for the employees that is safe, without risk to health as regards facilities and arrangements for their welfare at work.

Source: The Occupational Safety, Health and Working Conditions Code, 2020, official gazette copy, page 16
7

Duties and responsibilities of owner, agent and manager in relation to mine

In plain words

In a mine, the owner and agent are jointly and severally responsible for compliance. When anyone breaks a mine provision, other than one aimed at a particular person, the supervising officials, the manager, the owner and agent, and any person appointed to carry out the responsibility under section 24 are also treated as guilty unless they prove due diligence. It is no defence for the owner or agent that a manager, officials or that person were appointed.

(1)

The owner and agent of every mine shall jointly and severally be responsible for making financial and other provisions and for taking such other steps as may be necessary for compliance with the provisions of this Code and the rules, regulations, bye-laws and orders made thereunder, relating to mine.

(2)

In the event of any contravention by any person whosoever of any of the provisions of this Code or of the rules, regulations, bye-laws or orders made thereunder, relating to mine, except those which specifically require any person to do any act or thing or prohibit any person from doing an act or thing, besides the person who contravenes, then, each of the following persons shall also be deemed to be guilty of such contravention unless he proves that he had used due diligence to secure compliance with the provisions and had taken reasonable means to prevent such contravention, namely:—

(a)

the official or officials appointed to perform duties of supervision in respect of the provisions contravened;

(b)

the manager of the mine;

(c)

the owner and agent of the mine;

(d)

the person appointed, if any, to carry out the responsibility under section 24.

(3)

It shall not be a defence in any proceedings brought against the owner or agent of a mine under this section that the manager and other officials have been appointed in accordance with the provisions of this Code or that a person to carry the responsibility under section 24 has been appointed.

Source: The Occupational Safety, Health and Working Conditions Code, 2020, official gazette copy, page 17
8

Duties of designers, manufacturers, importers or suppliers

In plain words

Anyone who designs, makes, imports or supplies an article for use in any establishment must, as far as reasonably practicable, make it safe when properly used, test it, and provide information on safe use; those who make, import or supply substances for factories have similar duties. An importer must see that a foreign-made article meets Indian standards, the higher standard of the country where it was made, or, where India has no standard, the standard of the country it comes from. Nobody has to repeat tests done by others where relying on them is reasonable, and the duties cover only their own business and matters within their control.

(1)

Every person who designs, manufactures, imports or supplies any article for use in any establishment shall—

(a)

ensure so far as is reasonably practicable, that the article is so designed and constructed in the establishment as to be safe and without risk to the health of the workers when properly used;

(b)

carry out or arrange for the carrying out of such tests and examination in the establishment as may be considered necessary for the effective implementation of the provisions of clause (a);

(c)

take steps as may be necessary to ensure that adequate information will be available—

(i)

in connection with the use of the article in any establishment;

(ii)

about the use for which such article is designed and tested; and

(iii)

about any conditions necessary to ensure that the article, when put to such use, shall be safe, and without risk to the health of the workers:

Proviso

Provided that where an article is designed or manufactured outside India, then it shall be obligatory on the part of the importer to see—

(A)

that the article conforms to the same standards of such article manufactured in India; or

(B)

if the standards adopted in the country outside India for the manufacture of such article is above the standards adopted in India, that the article conforms to such standards in such country;

(C)

if there is no standard of such article in India, then, the article conforms to the standard adopted in the country from where it is imported at its national level.

(2)

The designer, manufacturer, importer or supplier shall also comply with such duties as the Central Government may, in consultation with the National Occupational Safety and Health Advisory Board referred to in sub-section (1) of section 16, by regulations specify.

(3)

Every person, who undertakes to design or manufacture any article and substance for use in any factory, may carry out or arrange for the carrying out of necessary research with a view to the discovery and, so far as is reasonably, practicable, the elimination or minimisation of any risks to the health or safety of the workers to which the design or manufacture of article and substance may give rise to such risk.

(4)

Nothing contained in sub-sections (1) and (2) shall be construed to require a person to repeat the testing, examination or research which has been carried out otherwise than by him or at his instance in so far as it is reasonable for him to rely on the results thereof for the purposes of the said sub-sections.

(5)

Any duty imposed on any person by sub-sections (1) and (2) shall extend only to things done in the course of business carried on by him and to matters within his control.

(6)

Every person,—

(a)

who erects or installs any article for use in a factory, shall ensure, so far as practicable, that such article so erected or installed does not make it unsafe or a risk to health when that article is used by the persons in such factory;

(b)

who manufactures, imports or supplies any substance for use in any factory shall—

(i)

ensure, so far as practicable, that such substance when used in the factory does not make it unsafe or a risk to health of persons working in such factory;

(ii)

carry out or arrange for carrying out of such tests and examination in relation to such substance as may be necessary;

(iii)

take such steps as are necessary to secure that the information about the results of tests carried out in connection with the use of the substance as referred to in sub-clause (ii) is available in a factory along with conditions necessary to ensure its safe use and no risks to health;

(c)

who undertakes the manufacture of any substance for use in any factory shall carry out or arrange for carrying out of any necessary research with a view to discover and, so far as practicable, to ensure the elimination or minimisation of any risks to health or safety to which the substance may give rise out of such manufacture or research;

(7)

For the purposes of this section, an article and substance is not to be regarded as properly used, if they are used without regard to any information or advice relating to their use which has been made available by the person who has designed, manufactured, imported or supplied the article and substance.

Explanation

Explanation.—For the purpose of this section—

(a)

"article" shall include plant and machinery;

(b)

"substance" means any natural or artificial substance whether in a solid or liquid form or in the form of a gas or vapour; and

(c)

"substance for use in any factory" means such substance, whether or not intended for use by persons working in a factory.

Source: The Occupational Safety, Health and Working Conditions Code, 2020, official gazette copy, page 18
9

Duties of architect, project engineer and designer

In plain words

Architects, project engineers and designers of construction work must consider worker safety at the planning stage, avoid designs that need dangerous structures, processes or materials, and allow for hazards in later maintenance as notified by the government.

(1)

It shall be the duty of the architect, project engineer or designer responsible for any building or other construction work or the design of any project or part thereof relating to such building or other construction work 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 and structures as the case may be.

(2)

Adequate care shall be taken by the architect, project engineer and other professionals involved in the project referred to in sub-section (1), not to include anything in the design which would involve the use of dangerous structures or other processes or materials, hazardous to health or safety of building workers and employees during the course of erection, operation and execution as the case may be.

(3)

It shall also be the duty of the professionals, involved in designing the buildings structures or other construction projects, to take into account the safety aspects associated with the maintenance and upkeep of the structures and buildings where maintenance and upkeep may involve such hazards as may be notified by the appropriate Government.

Source: The Occupational Safety, Health and Working Conditions Code, 2020, official gazette copy, page 19
10

Notice of certain accident

In plain words

An accident that causes death, keeps the injured person off work for 48 hours or more immediately after it, or is of a kind notified by the government must be reported to the authorities as notified. For a fatal accident in a plantation, construction work or other establishment, the authority that receives the notice must inquire into it within two months of receiving it, or, if there is no such authority, the Chief Inspector-cum-Facilitator must have an Inspector do so.

(1)

Where at any place in an establishment, an accident occurs which causes death, or which causes any bodily injury by reason of which the person injured is prevented from working for a period of forty-eight hours or more immediately following the accident or which is of such nature as may be prescribed by the appropriate Government, then,—

(a)

employer or owner or agent or manager referred to in section 67 of such establishment if it is mine; or

(b)

employer or manager in relation to such establishment if it is factory or relates to dock work; or

(c)

the employer of a plantation or an establishment relating to building or other construction or any other establishment,

shall send notice thereof to such authorities, in such manner and within such time, as may be prescribed by the appropriate Government.

(2)

Where a notice given under sub-section (1) relates to an accident causing death in a plantation or an establishment relating to building or other construction work or any other establishment, the authority to whom the notice is sent shall make an inquiry into the occurrence within two months of the receipt of the notice or if there is no such authority, the Chief Inspector-cum-Facilitator shall cause the Inspector-cum-Facilitator to make an inquiry within the said period.

Source: The Occupational Safety, Health and Working Conditions Code, 2020, official gazette copy, page 20
11

Notice of certain dangerous occurrences

In plain words

The employer must report any dangerous occurrence of the kind notified by the government, whether or not anyone was hurt, in the form and time notified.

Where in an establishment there is any dangerous occurrence of such nature, (whether causing any bodily injury or disability, or not) the employer shall send notice thereof to such authorities, and in such form and within such time, as may be prescribed by the appropriate Government.

Source: The Occupational Safety, Health and Working Conditions Code, 2020, official gazette copy, page 20
12

Notice of certain diseases

In plain words

If a worker contracts a disease listed in the Third Schedule, the employer must notify the authorities, and any doctor treating a current or former employee who has, or is believed to have, such a disease must report it in writing to the Chief Inspector-cum-Facilitator without delay, or face a penalty of up to ₹10,000.

(1)

Where any worker in an establishment contracts any disease specified in the Third Schedule, the employer of the establishment shall send notice thereof to such authorities, and in such form and within such time, as may be prescribed by the appropriate Government.

(2)

If any qualified medical practitioner attends on a person, who is or has been employed in an establishment, and who is, or is believed by the qualified medical practitioner, to be suffering from any disease specified in the Third Schedule, the medical practitioner shall without delay send a report in writing to the office of the Chief Inspector-cum-Facilitator in such form and manner and within such time as may be prescribed by the appropriate Government.

(3)

If any qualified medical practitioner fails to comply with the provisions of sub-section (2), he shall be punishable with penalty which may extend to ten thousand rupees.

Source: The Occupational Safety, Health and Working Conditions Code, 2020, official gazette copy, page 20
13

Duties of employee

In plain words

Every employee must take reasonable care of their own and others' safety, follow the safety standards, co-operate with the employer, report unsafe situations promptly, not wilfully interfere with, misuse or neglect safety and welfare equipment, not wilfully and without reasonable cause endanger anyone, and do any other duties notified by the government.

Every employee at workplace shall,—

(a)

take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions at the workplace;

(b)

comply with the safety and health requirements specified in the standards;

(c)

co-operate with the employer in meeting the statutory obligations of the employer under this Code;

(d)

if any situation which is unsafe or unhealthy comes to his attention, as soon as practicable, report such situation to his employer or to the health and safety representative and in case of mine, agent or manager referred to in section 67, safety officers or an official for his workplace or section thereof, as the case may be, who shall report it to the employer in the manner as may be prescribed by the appropriate Government;

(e)

not wilfully interfere with or misuse or neglect any appliance, convenience or other thing provided at workplace for the purpose of securing the health, safety and welfare of workers;

(f)

not do, wilfully and without reasonable cause, anything, likely to endanger himself or others; and

(g)

perform such other duties as may be prescribed by the appropriate Government.

Source: The Occupational Safety, Health and Working Conditions Code, 2020, official gazette copy, page 20
14

Rights of employee

In plain words

Employees can get information about their health and safety at work and complain to the employer, directly or through a member of the Safety Committee, and then to the Inspector-cum-Facilitator; where they reasonably fear imminent serious injury, death or danger to health, they can alert the employer and the Inspector at the same time, and the Inspector decides finally if the employer disagrees.

(1)

Every employee in an establishment shall have the right to obtain from the employer information relating to employee's health and safety at work and represent to the employer directly or through a member of the Safety Committee as constituted under section 22, if constituted by the employer for such purpose, regarding inadequate provision for protection of his safety or health in connection with the work activity in the workplace, and if not satisfied, to the Inspector-cum-Facilitator.

(2)

Where the employee referred to in sub-section (1) in any workplace 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 or through a member of the Safety Committee referred to in sub-section (1) and simultaneously bring the same to the notice of the Inspector-cum-Facilitator.

(3)

The employer or any employee referred to in sub-section (1) shall 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 appropriate Government.

(4)

If the employer referred to in sub-section (3) is not satisfied about the existence of any imminent danger as apprehended by his 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.

Source: The Occupational Safety, Health and Working Conditions Code, 2020, official gazette copy, page 21

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