Definition of Employee and Worker Under the OSHWC Code

 

Madhu Damodaran

Simpliance COE

Biography

Animay Singh

Simpliance COE

Biography

Introduction

The Occupational Safety Health and Working Conditions Code (OSHWC Code), 2020 contains separate definitions for the terms ‘employee’ and ‘worker’ respectively.  This article explores the operation of the definitions in the good and the objectives behind their use in particular provisions.

It is imperative for both staff and management to understand the implications of these definitions and the changes they bring in as it materially affects the nature of employment in India. The legal status of employees and workers respectively, as defined under the OSHWC Code, 2020 are different and thus their entitlement to benefits and the laws applicable to them differ.

Definition of Employee

Section-2(t) of the OSHWC Code, 2020 defines employee in respect of establishments as:

• A person (other than an apprentice engaged under the Apprentices Act, 1961) employed on wages by an establishment to do any skilled, semi-skilled, unskilled, manual, operational, supervisory, managerial, administrative, technical, clerical or any other work, whether the terms of employment be express or implied; and

• A person declared to be an employee by the appropriate Government

However, members of the armed forces of the Union are excluded from the purview of the term employee. The proviso in the definition of employee is in the form of a non-obstante clause and it explains who may be considered persons ‘employed’ in a mine.

Definition of Worker

Section-2(zzl) defines a worker as any person employed in any establishment to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and includes working journalists as well as sales promotion employees. However, it does not include the following persons:

1. Those who are subject to the Air Force Act, 1950 or the Army Act, 1950 or the Navy Act, 1957; or

2. Those are employed in the police service or as officer or other employee of a prison; or

3. Those who are employed in managerial or administrative capacity

4. Those who are employed in supervisory roles drawing wages exceeding eighteen thousand rupees (Rs. 18,000/-) per month or an amount as may be notified by the Central Government from time to time

Analysis

From the above it is prima facie clear that the definition of employee is wider and seeks to cover a larger group of individuals than that of worker. Whereas the definition of worker is confined to those individuals working in factories and industries by and large. For example, the definitions of both factory under Section-2(w) and industry under Section-2(zd) of the OSHWC Code refer solely to workers, with the term employee not being used at all.

The term employee has been used in a more general sense across the OSHWC Code and is used in key definitions such as that of employer under Section-2(u). It is also employed in the general provisions of the Code pertaining to duties of employers, duties of employees, duties of architects, project engineers and designers, rights of employees etc. Even in case of other matters such as the responsibility of the employer for maintaining health, safety and working conditions, welfare facilities for employees, employment of persons below eighteen years of age and provisions relating offences and penalties, the term employee has been used.

The definition of worker under the Code compared to that under Section-2(l) of the Factories Act, 1948 reveals certain key changes have taken place. The latter defines a worker as a person employed, directly or by/through any agency (including a contractor) with or without the knowledge of the principal employer, whether for renumeration or not, in any manufacturing process or work incidental/connected thereto.

The difference between the two definitions lies in the inclusion of the term manufacturing process and the elements relating to contractors and principal employers. This change has been made as the term contract labour has been defined in detail under the Code, thereby making the addition of that aspect redundant. However, the exclusion of the manufacturing process aspect is a notable change done with the objective of making the definition of the term more inclusive.

Conclusion

While the above analysis examines the import of the definitions on a general level and their operation under the Code, a detailed analysis is required to understand the impact of this definitional change across the other three Codes. Our next article will be covering the impact of the above definitions across the four Labour Codes with respect to the specific enactments being subsumed. This will provide the reader further clarity on enactment specific changes and allow them to take steps to cope with the change being brought about by them.

Do you think the definitions of employee and worker under the OSHWC Code are practically sound? Is there room for a grey area to develop between the two? Do you believe these definitions need change, and if so, what changes should be brought in?

Drop your thoughts in the comments below.