Worker Under the Occupational Safety Health and Working Conditions Code

Background

Understanding the definition of worker is imperative to obtain a comprehensive view on the impact of the new labour Codes. As a part of this series of blogs, we have examined the import of the term worker under the Code on Wages, 2019, the Code on Social Security, 2020 and the Industrial Relations Code, 2020. Our last blog in the series of posts about workers shall examine the use of the term under the Occupational Safety, Health and Working Conditions Code, 2020.

The above shall help us deduce the reasons behind its usage and its interplay with various other terms under the Code, such as employee, establishment etc. By analyzing the same we will understand the impact of the term on compliance to give readers an idea of potential areas of risk.

Definition of Worker

The term worker is used extensively throughout the Occupational Safety Code and is defined in a similar manner as the other Codes. It excludes those in managerial/administrative capacities as well as those in supervisory capacities drawing wages above Rs. 18,000 per month. The only difference is that while the term worker is defined as any person employed in an industry under the Code on Wages and Industrial Relations Code, respectively. The Occupational Safety Code defines a worker as any person employed in any establishment. The intention behind the adoption of such a definition, its impact and interpretation vis-à-vis employees will be explained in the subsequent section.

Intention, Interpretation, Impact and Interplay

To understand the intention behind an establishment-based definition of worker we must juxtapose the definitions of establishment and worker. The definition of the former is broad and includes a place where any industry, trade, business, manufacturing or occupation is carried out, in which ten or more workers are employed. It also includes motor transport undertakings, newspaper establishments, building and other construction work, factories, mines and ports.

From the above, it is evident that the intention behind an establishment-based definition of worker is to give it the widest possible import. This could not have been achieved if the definition of worker was industry-based. The same would narrow its scope down substantially, which would be counter-productive in achieving the objects of the Code. This is because occupational safety is not a matter that is confined to industries, it is imperative that all types of undertakings adhere to certain basic norms relating to the same.

While the intention behind the term being defined in such a manner is positive from a compliance perspective, it creates the possibility for a potential conflict with State laws relating to shops and establishments. This is because establishment and employee under these laws covers a set of individuals who would fall under the definition of worker under the Code. It is imperative that both the Centre and States collaboratively provide clarity on the manner in which both these laws will operate.

From the above, we understand the intention, interpretation and general impact of the definition of worker. However, to obtain a holistic understanding of the term we must juxtapose its use with the use of the term employee under the Occupational Safety Code. We find that worker is used in specific contexts, such as in the definition of different types of specific occupations, for example, audio-visual worker, motor transport worker, inter-State migrant worker, contract labour etc.

Additionally, provisions relating to daily and weekly hours of work, weekly rest day, annual leave, extra wages for overtime, night shifts, maintenance of registers etc. also use the term worker.

Employee on the other hand is found in contexts wherein the substantive provisions are general. For example, under Chapter-III relating to duties of employer and employees, Chapter-V relating to health, safety and working conditions and Chapter-VI relating to welfare provisions.    

A consequence of the above is that employers need to delineate the members of their workforce that are workers and those that are employees. This can only be done by providing for roles and responsibilities in a manner wherein those in entry-level jobs or jobs that involve mere completion of tasks are considered workers. Whereas those with managerial/administrative or supervisory tasks drawing more than Rs. 18,000 per month would require their role to be defined in accordance with the same.

This is imperative as all the provisions relating to annual leave, leave encashment, weekly rest day, working hours etc. are applicable to workers only. As seen above, there is a significant number of individuals who would fall outside the scope of worker and would thus not be entitled to the same. Therefore, to ensure that those falling within the scope of the term receive their due benefits, companies must, as a corollary, identify those that fall outside the scope of the term.

Thus, a key step for employers to take is to examine the definition of both worker and employee and determine the applicability of the two to persons employed in their organization. Following this, they may make the necessary policy changes to clearly delineate the difference between the two and therefore, the benefits they are entitled to.

What changes do you believe are necessary to adapt to the definition of worker under the Occupational Safety, Health and Working Conditions Code, 2020?

Has your organization adapted its policies in consonance with the above?

If so, what changes have you adopted?

Drop your answers and queries in the comments below.

Disclaimer: This blog is meant for informational purposes and discussion only. It contains only general information about legal matters. The information provided is not legal advice and should not be acted upon without seeking proper legal advice from a practicing attorney. Simpliance makes no representations or warranties in relation to the information on this article.