This article is written by Rangita Chowdhury of Symbiosis Law School NOIDA. It delves deeply into the subject of occupational diseases, health and safety.
Table of Contents
An “occupational disease” is any disease contracted primarily as a result of an exposure to risk factors arising from work activity. “Work-related diseases” have multiple causes, where factors in the work environment may play a role, together with other risk factors, in the development of such diseases…. WHO
Occupational diseases result from a number of reasons: biological, chemical, physical, and psychological factors that come into play in the work environment or are otherwise encountered in the course of employment. While it is often thought that eliminating occupational diseases is economically not viable, the benefits that it provides outweighs the costs involved, as it improves the morals and efficiency of the workforce. The healthy relation between the worker and the employer increases the confidence level of workers, improves productivity, and ultimately helps a nation to progress economically, socially, and politically
What is an occupational disease
Two important definitions of occupational diseases are:
- Article 1 (b) of the Protocol of 2002 to the Occupational Safety and Health Convention (1981) of the International Labour Organization defines occupational disease as “any disease contracted as a result of an exposure to risk factors arising from work activity.”
- Article 6(1) of the ILO Employment Injury Benefits Recommendation (1964) defines occupational diseases in the following manner: “Each Member should, under prescribed conditions, regard diseases known to arise out of the exposure to substances and dangerous conditions in processes, trades or occupations as occupational diseases.”
The definitions point to two important criteria for identifying occupational diseases:
- That there is a strong relationship between the disease and the working environment and the work activity. The environment is the cause of the disease.
- The frequency of the disease among the exposed working population is much higher than that of the general population or other worker populations.
This relationship has been established by the following:
- Clinical and pathological data
- Occupational background and analysis of the work
- Identification and evaluation of the risk factors responsible for the disease
- Role of other factors influencing the disease
Symptoms alone are not sufficient to identify an occupational disease. The physical, chemical and biological risk factors that are in play in the working environment are needed to be examined in detail before classifying any disease as an occupational disease.
Occupational diseases can be further classified as follows:
- Reportable occupational diseases: These are Occupational diseases that find mention in the national lists of a country and are liable for compensation and subject to measures, within the legal or administrative framework of the country.
- Recognised occupational disease: A recognised case of an occupational disease is a case accepted as such by a competent national authority in an administrative proceeding
- Work-related diseases: All illnesses that are the result of working conditions. Distinction between occupational diseases and work-related diseases are made by evaluating their attributable fractions. It is suggested that the attributable fraction of occupational diseases is more than 50% and less than 50% for work-related diseases.
The existence of occupational diseases goes back as early as when markets started organising economic activities of individuals. Egyptian papyrus which dates back to the 4th millennium BCE, mentions the strain of back pain from continuous work. Hippocrates who lived during the classical age of Greece, also known as the Age of Pericles, also talked about a serious case of lead colic. Pliny, another famous author, and naturalist also related some specific diseases with particular occupations, like poisoning of miners due to the mercury present in the mines.
Methods of protection and ventilation in gold and silver mines were very primitive during the middle ages, which led to a lot of accidents and occupational diseases. Several studies and researches were conducted because of this. Ramazzini, the Italian physician during the 17th century, was the first to provide a comprehensive account of occupational diseases in his book ‘De Morbis Artificum Diatriba’ (Treaty on Workers’ Diseases). He wrote about 54 diseases associated with different occupations. One of the diseases mentioned in his book was the hazards of mercury on the Venetian mirror makers.
The industrial revolution in Great Britain, which began in 1760, brought in a flurry of machine changes in the agrarian and handicraft sectors. A factory system developed which led to an increase in the number of workers in small spaces and unsanitary working conditions. Exposure to the toxic factory substances and technicalities of the new machinery led to a rise in deaths and accidents of the workers.
Squamous-cell carcinoma of the scrotum among the chimney sweep boys resulting from prolonged exposure to soot ingrained into their skin is considered to be the first occupational disease to be recognised in the modern era. It was identified by Sir Percival Pott, a British Surgeon in 1775. Since then, new diseases have appeared as a result of advances in technology or because of changes in work or working conditions. Occupational deaths among radiologists as a result of exposures to X-rays and other radioactive radiations, Hemangiosarcoma (an asbestos-contacted disease or caused by vinyl chloride monomer) are very good examples. It has been reported that within 20 years of discovery of X-ray, about 100 radiologists died from its exposure. Hemangiosarcoma, a rare malignant tumour of the liver, was discovered in 1974 among workers working in the polymerization of vinyl chloride monomer. The stressful work environment of the modern era is now giving rise to various occupational diseases that were not even heard of before, like musculoskeletal diseases, psychosocial problems, and work-related mental health disorders. Lead poisoning and Anthrax have long been regarded as classic occupational diseases, though their incidences have now come down.
Common occupational diseases in our country and the world
Asthma, COPD, Dermatitis, and Musculoskeletal Disorders are considered as common occupational disorders.
Worldwide the following occupational diseases are the most common.
Skin disorders: It is seen that workers working for long periods outdoors develop skin disorders including those who are exposed to dangerous and harsh chemicals. Among the skin disorders the more common ones are:
- Skin cancer
- Skin infections
- Contact dermatitis
- Skin inflammations
Respiratory Illnesses: These are common in occupations that are exposed to toxic chemicals. Industrial and construction workers are exposed to dangerous chemicals on a daily basis and this results in allergies and serious respiratory ailments. Common among these are:
- Occupational asthma
- Chronic obstructive pulmonary disease (COPD)
Hearing problems: Loss of hearing can also happen to workers exposed to loud machinery and excessive noise throughout the day.
Carrying heavy loads: Workers who are made to carry heavy loads and objects like porters, labourers, construction workers can suffer from over-exertion. Common injuries associated with overexertion are:
- Leg injuries
- Ankle sprains
- Shoulder and back injuries
- Joint injuries
Modern-day occupational diseases: Mental Health disorders and work-related stress are increasing everyday due to the challenges that modern-day occupation presents. The job demands of the profit-oriented economy puts enormous pressure on the employees, more than they can handle. He has little control over the situation. inadequate time in the disposal of the worker, mismatch of skill required, and that available, workplace isolation, lack of appreciation all contribute to workplace stress. All these can give rise to a variety of ailments. Long hours in front of the computer, sedentary work culture, lack of movement also result in various musculoskeletal disorders. Common examples of modern-day occupational diseases are:
- High Blood Pressure
- Muscle pain, headache
- Cardiovascular diseases
- Gastrointestinal disorders
- Weakened immune system
- Increased cholesterol
- Anxiety, anger, restlessness, irritability, mood swings, etc
Common occupational diseases in India
The 3rd schedule of the Indian Factories Act 1948 provides a list of occupational diseases in India. These include:
- Poisoning by metals and compounds such as lead, tetra-ethyl lead, phosphorous, mercury, manganese, arsenic, nitrous fumes, carbon bisulphide, benzene, their nitro or amino derivatives or its sequelae
- Chrome ulceration
- Cancer of the skin
- Toxic anaemia
- Dermatitis due to mineral oils,
- Contact dermatitis
- Noise-induced hearing loss,
- Coal miners’ pneumoconiosis,
- Occupational cancer
- Toxic nephritis etc
Occupational disease and morbidity rates
It is comparatively easy to study the incidents of occupationally related morbidity in a particular country, it is rather difficult to prepare global estimates due to paucity and quality of data difficulties in its collation. There are debates on what exactly constitutes an occupational risk and what is to be included. Global estimates thus vary and it is highly likely what data we have in our hands is either inadequate or under-estimated.
Both the International Labour Organisation and the World Health Organisation have been trying to find out the global incidence of occupational diseases and they also update their estimates at regular intervals. From such estimations, it is seen that about 5–7% of global deaths in industrialized nations are attributable to work-related ailments and occupational injuries. Takala et al. 2012 has studied the relationship between employment and occupational mortality and morbidity.
Their study has shown that globally there are about 2.3 million deaths every year which are related to occupation and out of that about 2 million people die from occupational diseases. Cancer is the greatest killer, contributing to 32% of the mortalities, followed by work-related circulatory diseases which results in 23% of the deaths. (23%). These are followed by communicable diseases and occupational accidents, both of which contribute to a little under 20% of the mortalities. The last two are very common in developing and rapidly industrialising nations. Among cancer deaths, asbestos exposure is the prime reason. Another International Labour Organisation report had revealed that in 2010, over 313 million non-fatal occupational accidents took place and there were nearly 6.7 lakh fatal occupationally related cancers cases in the same year.
ILO and occupational diseases
It is provided in the constitution of ILO that all workers must be protected from sickness, disease, and injury arising from their employment. However, the real picture is quite different. Recent estimates of ILO states that 2.78 million work-related deaths happen every year, out of which the maximum number (2.4 million) are related to occupational diseases. This puts enormous hardships to the families of the workers, apart from the effects it has on the economic health of the nation and world. Compensation, loss of work days, production loss, reconversion, health care costs, all these put a tremendous burden on the family of the worker, the employer, and the nation. This represents about 3.94% of the world’s GDP. Along with these, the employers have to bear the burden of early retirements, loss of labour, and man-days and high insurance premium costs.
Proper prevention measures along with a system of quick reporting and redressal with regular inspections can, however, improve the situation. Thus, ILO has put in place standards on occupational safety and health. These standards serve to provide necessary tools in the hands of employers and workers and governments to ensure safety and security in the workplace. Nearly half of ILO instruments are related directly or indirectly with occupational health and safety issues. The organization has adopted more than 40 standards directly dealing with occupational safety and health. It has also adopted more than 40 codes of practice. It may be noted here that ILO conventions and recommendations on occupational safety and health are international agreements that are legally binding on the member nations that ratify such agreements.
Major ILO Instruments on Occupational Safety and Health
Promotional Framework for Occupational Safety and Health Convention, 2006 (No. 187)
The Convention provides for a coherent and systematic treatment of occupational safety and health issues. It also promotes the recognition of Conventions on occupational safety and health that are in force. Its aim is to establish and implement clear national policies on occupational safety and health through discussions and dialogue between all stakeholders –The government, workers, and their organizations, and employers and their organizations. The final objective is to create a national culture on preventive safety and health.
Occupational Safety and Health Convention, 1981 (No. 155)
- adoption of a coherent national occupational safety and health policy,
- delineation of steps to be taken by governments and organizations to promote occupational safety and health and
- improvement of working conditions.
The instrument appreciates that policies for nations may differ according to national conditions and practice. Periodic review of requirements and processes for recording and publication of occupational accidents and diseases is also a task set out in the instrument
Occupational Health Services Convention, 1985 (No. 161)
This Convention provides for the establishment of occupational health services at the level of enterprises. It states that such services should be entrusted with essentially preventive functions and should also advise the employer, the workers, and their representatives in the enterprise on safety and health standards.
Conventions that address protection against specific risks
- Radiation Protection Convention, 1960 (No. 115): highlights basic requirements for protecting workers against the risks associated with exposure to ionising radiations.
- Occupational Cancer Convention, 1974 (No. 139): It aims to establish a system that will devise a policy framework on prevention of occupational cancer caused by prolonged exposure to harmful chemical and physical agents. It sets out certain responsibilities on the ratifying states to reduce the menace, such as periodic determination of carcinogenic substances and agents and limiting exposure of vulnerable workers to such agents, efforts to replace these substances and agents by less toxic and non-carcinogenic ones, and prescribing protective and supervisory necessary medical examinations of the exposed workers.
- Working Environment (Air Pollution, Noise and Vibration) Convention, 1977 (No. 148)– The convention calls upon the States to provide for a cleaner and healthier work environment and reduce the hazards of air pollution and other kinds of pollution affecting the workplace. It urges for adoption of technical and supplementary measures in establishments to achieve the goal.
- Asbestos Convention, 1986 (No. 162)– it aims to reduce the harmful consequences of occupational exposure of workers to Asbestos through adoption of reasonable and practicable methods and techniques of reducing such exposure to a minimum. The convention further lays down detailed measures and guidelines that are to be adopted for prevention and control of asbestos exposure.
- Chemicals Convention, 1990 (No. 170)– Similarly, this convention lays down guidelines and instructions on adoption and implementation of effective means of ensuring safety in workplaces where chemicals are used including the production, handling, storage, transportation and disposal, treatment of harmful chemicals. It also stresses on the importance of maintenance, repair, and cleaning of equipment and containers of chemicals.
Health and safety in particular branches of economic activity
- Hygiene (Commerce and Offices) Convention, 1964 (No. 120)– This instrument works for maintaining the health and welfare of workers employed in trading establishments, and workers who are primarily engaged in office work in different establishments and institutions through adoption of basic standards of hygiene at the workplace.
- Occupational Safety and Health (Dock Work) Convention, 1979 (No. 152) – Covers all the work related to docks, loading, unloading, etc. Measures related to the health safety of the workers are written in detail.
- Safety and Health in Construction Convention, 1988 (No. 167)– It provides for in-depth technical, preventive, and protective measures in keeping with the specific requirements of the construction sector. This includes the safety of workplaces, proper and safe use of machines, etc
- Safety and Health in Mines Convention, 1995 (No. 176) – This is related to the Mining Sector and tries to achieve the safety and well-being of workers. Interventions include inspection of mines, providing special working devices and protective equipment to the workers mine rescue, etc.
- Safety and Health in Agriculture Convention, 2001 (No. 184)– The objective of the convention is to guide the stakeholders in preventing accidents and injury arising out of agricultural and forestry-related activities. Measures include machinery safety, proper handling, and transportation of materials, safe management of chemicals, animal handling, protection against biological risks, etc.
Codes of practise
In addition to the instruments discussed above, the ILO has set out practical guidelines for public authorities, employers, workers, enterprises, and specialized occupational safety and health protection bodies. These codes provide guidance on safety and health of workers engaged in various economic sectors like the construction industry, mining sector, iron and steel industries, agriculture sector, shipbuilding, etc. The codes also seek to protect workers against radiation hazards, exposure to chemicals, asbestos, airborne substances, etc. They also dwell on occupational safety and health management, provide ethical guidelines for workers’ health surveillance and lay stress on recording and notification of occupational accidents and diseases.
- In spite of the persistent efforts of ILO, working conditions for the majority of the workers, mostly in the poor and developing countries, are way behind the minimum standards and guidelines set by international agencies.
- Many hazardous industries and occupations are still outside the safety standards of occupational health and safety prescribed by the international agencies. It is estimated that only about 10 percent of the working population in developing countries is till now covered and many major industries are left out.
- Most nations depend upon the United Nations for bringing in compliance standards but the UN agencies have so far achieved limited success in ensuring occupational health to the industrializing countries.
- ILO conventions and recommendations on occupational safety and health do not have any legal force unless ratified by ILO member states. But the most important ILO Convention on Occupational Safety and Health has been ratified by only 37 of the 175 ILO member states. The ILO Employment Injury Benefits Convention (which deals with occupational diseases for which compensation should be paid) has been ratified by only 23 countries.
- Both the WHO and ILO suffer from a lack of funds and their limited funding to the developing and poor states severely impacts the implementation of the recommendations of the international agencies on occupational health and safety.
- It has to be understood that occupational health cannot be achieved in isolation. It has to be institutionalized and has to reform every level of government, but till now it is more an academic exercise of the developed nations.
WHO and occupational health
WHO defines an occupational disease as “any disease contracted primarily as a result of an exposure to risk factors arising from work activity”. Such diseases may have various reasons, as both the work environment and other risk factors come into play.
Under Article 2 of its Constitution, WHO is entrusted to promote the improvement of working conditions and other aspects of environmental hygiene. The organization looks after all factors of workers’ health, including the risks for contacting diseases and injury at the workplace environment, its social and individual attributes, and access to health care services.
WHO implements the Global Plan of Action on Workers’ Health which was endorsed by the World Health Assembly in 2007. The main ingredients of the programme are the diagnosis, reporting, and registration of occupational diseases and building capacities for estimating the occupational burden of such diseases. Its objectives and activities may be summarized as follows:
- Estimating the global burden of diseases arising out of occupational risks, including injuries and exposure to airborne particles, cancer-causing agents, ergonomic stressors, noise, etc.
- Planning and executing instruments on workers’ health and protecting and safeguarding their health at the workplace;
- Improving the performance and delivery of occupational health services;
- Collaborating with all stakeholders on flow of information for devising suitable actions and practices
- Integrating workers’ health into other policies.
- Collaborating with ILO to devise diagnostic and exposure criteria for occupational diseases and to empower primary and secondary health care providers to detect and report such ailments and diseases.
Legal framework and safeguards and occupational safety and health in India
Seventy-five percent of the global work force live in third world countries, India being one of them. Changing job patterns and working relationships with the rise in self-employment and outsourcing of jobs, management of occupational safety and health now poses a greater challenge to the policymakers. However, the aim is to protect those who are engaged in hazardous occupations and migrant workers, and other vulnerable groups. Occupational health concerns are on the rise nevertheless, thanks to proactive legislation, an increase in the number of PILs addressing the health and well-being of workers and environmental concerns.
The cornerstone of workers’ right to life, his health, and his well-being is perhaps Article 21 of the Indian Constitution which guarantees the life and personal liberty of a person. Various Supreme Court judgements have categorically held the right to employee’s health is covered within the constitution’s right to life. In the case of Consumer Education Research Center Vs. Union of India (1995) the Supreme Court has held that “Occupational accidents and diseases remain the most appalling human tragedy of modern industry and one of its most serious forms of economic waste.” The judgement further states the following in unambiguous terms – “Therefore, we hold that right to health, medical aid to protect the health and vigour to a worker while in service or post-retirement is a fundamental right under Article 21, read with Articles 39(e), 41, 43, 48A and all related Articles and fundamental human rights to make the life of the workman meaningful and purposeful with dignity of person.”
The Directive Principles of State Policy calls upon the State to strive for the following goals:
- Health and strength of workers are strengthened, irrespective of sex
- That children of tender age are not abused
- That citizens are not forced to take up jobs unsuitable for their age or strength due to economic compulsion.
- That just and humanitarian work conditions are provided and maternity relief is ensured.
- That the government takes proper steps, by suitable legislations or otherwise to secure the participation of workers in the management of undertakings, establishments, and organizations
It was the desire of the constitution framers that the government, both at the centre and the States, should frame policies for the safety and health of workers in accordance with these Directive Principles. The Union Government thus declares and frames its policies, priorities, and strategies keeping in mind the aforesaid objectives, so that occupational safety and health risks are mitigated and safe, humane, and healthy working conditions are provided as far as possible, to every working man and woman in the nation.
The legislature has tried to put in place uniform levels of Occupational Health and Safety (OHS) standards so that it is the same throughout the nation. The various acts and rules framed in this regard lay down basic minimum requirements for the employers and other stakeholders throughout the nation. Though labour is in the concurrent list, we know that acts framed by the Parliament will have a pan-India effect and will override state laws. Thus, by framing uniform standards of compliance, the Parliament has tried to cut down the differences between states and set up uniform standards.
Another important aspect of such legislations is that they are framed in consultation with social partners like the employees’ organisations, employers’ organisations, nonprofit and voluntary organisations, and the public, to ensure that the needs and requirements of the target group are suitably addressed. It goes without saying that without a safe, secure, healthy, and humane working environment, social justice, and economic growth of the nation can never be achieved.
In India, the Ministry of Labour and the Ministry of Health are the two nodal ministries in India responsible for the implementation of the legislations The Ministry of Labour and the Labour Departments of the States and Union Territories look after the health and safety issues of workers. And the Ministry of Health and Family Welfare is responsible for providing health and medical care to workers through its different facilities.
Main objectives of OHS legislations
In keeping with the above the OHS legislations seek to:
- Provide a statutory framework for enacting enabling legislations on OHS covering all sectors of economic activities.
- Design a proper control system of compliance.
- Enable putting into place administrative and technical support systems.
- Arrange for a framework of incentives to employers and employees to help them achieve better health and safety standards.
- Establish and develop research and development aptitudes in areas of increasing risk devise effective control measures.
- Minimize incidences of work-related injuries, deaths, and diseases.
- Reduce the cost of workplace injuries and diseases.
- Increase awareness levels in the community on OHS related areas.
National Policy on Safety, Health and Environment at Workplace (NPSHEW)
The National Policy on Safety, Health and Environment at Workplace (NPSHEW) was declared by the Ministry of Labour & Employment, Govt of India, on 20th February 2009 in terms of the Directive Principles of State Policy under the broad guidelines of the major international instruments in force. The policy seeks to establish a preventive safety and health culture through the reduction of workplace accidents and the elimination of diseases, fatalities, and disasters. With this objective, it aims to enhance the well -being of employees in all the sectors of economic activity.
The policy recognizes a safe and healthy working environment as a fundamental human right and aims to eliminate work-related injuries, diseases, etc, through different interventions. It lays down the achievable goals and brings stress on a continuous reduction of work-related injuries and diseases.
Principal OHS regulations in India
The principal legislations that are related to Occupational Safety and Health at workplace are discussed below:
1. The Factories Act, 1948, which covers all factories and stipulates the enforcement of safety at the workplace by the chief inspector of factories in the respective states. It extends to the whole of India and came into force on 1st April 1949. The Act was enacted with the chief objective of protecting the individuals working in factories from occupational and industrial hazards. The owners and employers are bound by certain standards of work environment which ensure the safety of the workers. The Act makes sure the workers are not subjected to unsanitary work conditions and excessively long hours of manual labour or bodily strain. The Act also empowers the local governments to assign inspectors in the work spaces to ensure that the prescribed rules and precautions are followed.
The Act overall has provisions relating to the health and safety of the workers in factories. The state governments are entrusted with powers to frame laws and rule which would better protect the health and safety of the workers. Strict punishments are included in the Act on non-adherence of the standards of the work environment. However, the existing provisions are not considered enough to provide satisfactory protection to the workers, and moreover, the act only covers those workplaces which are explicitly mentioned under it, barring the other workplaces with no protection. Thus, Immediate modifications are imperative keeping in mind the growing industrial workforce.
2. The Mines Act, 1952, and Mines Rules, 1955, for the mining industry, where enforcement is by the Directorate General of Mines Safety (DGMS) under the Ministry of Labour & Employment, Government of India.
It regulates the safety of workers working in mines and extends to the whole of India. The Act had a number of defects and was not being implemented effectively so an amendment was considered necessary. This led to the enactment of the Mines Act, 1952. The Mines Act and the Mines Rules, 1955 provide safety standards for workers in a mine with more than 100 people. Timely notification of accidents, appointment of inspectors (1 for every 500 miners), formation of safety committees are some of the key features of the Act. The miners are tested initially and periodically for any notifiable diseases, and proper health and occupational safety surveys are conducted. The Directorate of Mines is authorised with this capacity and can also appoint a ‘competent’ person to enquire about the different occupational diseases detected if any.
3. The Dock Workers (Safety, Health and Welfare) Act, 1986 which was followed by the Dock Workers (Safety, Health and Welfare) Regulations, 1990. It deals with the major ports of India and the enforcement is by the Directorate General of Factory Advice Service & Labour Institutes (DGFASLI), under the Ministry of Labour & Employment Government of India. The Act and the rules framed under the Act provide for the safety, health, and welfare of dock workers. Under the act, inspectors are vested with adequate powers. If the inspector is satisfied that any dock work is being carried out in any manner that is dangerous to life, safety, or health of dock workers, he may order the owner or the entrusted person to prohibit such dock work until corrective measures are taken to his satisfaction. to his satisfaction. The rules make it incumbent upon the employer to give a notice to the inspector forthwith and upon the attending medical officer to give a notice about notified diseases to the Directorate General of Factory Advice Service & Labour Institutes (DGFASLI). The rules also stipulate that every Port Authority and dock labour board shall employ safety officers.
4. The Building & Other Construction Workers (Regulations of Employment and Conditions of Service) Act, 1996, which covers construction workers at construction sites. Enforcement is by the Directorate General, Labour Welfare at the Central level, and by the Labour Commissioners/Factory Inspectorates in the States/UT levels. It lays down detailed procedures relating to providing medical facilities to the construction workers. These include medical examination of building workers, duties of the construction medical workers, provision of occupational health centres, ambulance rooms, ambulance vans and stretchers, occupational health services for the building workers, notice of poisoning or occupational diseases, provision of first-aid boxes, and emergency care facilities
5. The Employees’ State Insurance Act, 1948: Enacted in 1948, the Act provides benefits to employees in the case of maternity, illness, or some work injury and other matters related to it. Applies to all seasonal factories and factories belonging to the government. Extends to the whole of India. The objective of the Act is to attain socio-economic justice in the society and as a result was enacted as a social welfare legislation. Article 41, 42 and 43 under the Directive Principles of State Policy enshrined under Part IV of the constitution states that the state must ensure the right to work, education and public assistance in cases of unemployment, old age, etc. the tries to uphold these principles by improving the standards of work conditions for the employees. This Act covers more than the Factories Act which only covers within its ambit the workers working inside some specific factories.
The Occupational Safety, Health and Working Conditions Code, 2019
In India, both Parliament and State Legislatures make laws regulating labour and presently there are more than 100 State laws and 40 Union laws regulating various aspects of labour including industrial disputes, working conditions, social security, and wages. The Second National Commission on Labour (2002) found the structure to be complex and archaic and recommended that the current labour laws should be consolidated into broadheads –
- industrial relations,
- social security,
- safety, and
- welfare and working conditions.
It was also observed that there are multiple laws on health, safety, and working conditions of workers and thus recommended the unification of these laws into two codes:
- ensuring safety at the workplace
- stipulating basic standards of working conditions, work hours, and leaves.
The Occupational Safety, Health and Working Conditions Code, 2019 integrates and replaces a number of labour laws that deal with safety, health, and working conditions in work environments. These include Factories Act, 1948; Mines Act, 1952; Dock Workers Act (Safety, Health and Welfare), 1986; Contract Labour Act, 1970; and Inter-State Migrant Workers Act, 1979. The Code replaces provisions on health, safety, and working conditions of workers and lays down duties and obligations of employers and workers. It seeks to regulate health and safety conditions of workers in establishments with 10 or more workers, and in all mines and docks.
The code, among others, stipulates providing for a workplace that is free from hazards that may result in injury or diseases, for providing free annual health examinations to employees in notified establishments, and intimating the prescribed authorities when an accident happens in a workplace which may cause death or serious injury. Employers in factories, mines, docks, plantations, and building and construction works will be liable for providing a risk-free work environment and instructing employees on safety protocols.
However, the bill is yet to be made into an act. It was introduced in Lok Sabha on July 23, 2019, and then referred to the Standing Committee on Labour and Employment on October 9, 2019. Presently the Standing Committee is examining the code.
Lacunae of OHS legislations and regulations in India
- Lack of awareness: the labour legislations still are largely on paper as both the workers and the trade unions are not fully aware of the consequences of these legislations. That the law provides enough safeguards to the target population, is often not realized by the stakeholders.
- Lack of enforcement: the provisions of the law are not properly enforced. There is a paucity of enforcement staff, including inspectors. Regular visits to factories are not made. They respond only on receipt of complaints or any news of an accident.
- The centrally drafted regulations and laws are often unrelated to local situations and ground realities. The specific work situations are not taken into account at the time of framing of labour and factory laws. Sometimes the economic burden of implementation of the regulations is very high.
- The vast proportion of the labour force working in the unorganized sector (more than 90%) are still outside the purview of the national occupational health management system. Whatever benefits available are mostly centered in the organized sector.
- India’s spending on public health including occupational health is still inadequate. In addition to this, there is a lack of trained health manpower, empowered institutions, proper training courses and modules, insufficient infrastructure, and other related bottlenecks.
- The availability of cheap labour is another issue. Supply is more than demand. High levels of unemployment makes it easier for employers to exploit our labourers and force them to work in situations where their health and safety are often compromised.
- A large number of occupational diseases remain unreported or under-reported. This results in a lack of diagnosis of ailments and inadequate collection data which further results in an improper intervention.
- The advent of new technologies on a regular basis, giving rise to hitherto unknown diseases and ailments pose a further challenge as it takes time to formulate legislations in response to constantly changing technologies.
Case study on occupational health and safety: (Occupational Health and Safety Association Vs. Union of India and others, WP (civil) 79/2005)
The Supreme Court in a number of cases has decided in favour of environmental protection and provided monetary relief to the workers working in various industries. For example, in M.C. Mehta v. Union of India, 1986 (Taj trapezium case) and M.C. Mehta vs Union Of India & Ors 1996 (Calcutta Tannery case) it ordered for shifting and relocating of the existing industries. But such decisions were primarily from the standpoint of protection of the environment. But there are not many cases where the health of the workers working in the hazardous industries have been dealt with by the judiciary. This case is a good example in this regard and the Supreme Court here realized the importance of health issues of workers working in the thermal power plants and ruled in their favour. Interestingly the decision was given under the Environment Protection Act, 1986.
The petitioners, representing 130 Coal Fired Thermal Power Plants (CFTPPs) stated in the petition that there were no adequate occupational health service facilities or health safety measures available in these plants. The petitioner also stated that in spite of a number of enabling legislations like the Factories Act, The ESI Act, Boilers Act, Water (Prevention and Control of Pollution Act) 1974, etc, the condition of the workers was deplorable as none of the provisions were being implemented in the plants. It was alleged that the workers were suffering from serious health issues for years including respiratory ailments like Asthma, pulmonary disorders, and skin diseases. It was prayed before the Court, among others, to pass orders for framing of guidelines on operational safety and health, instructing the Govt of India to form a monitoring committee on the working of thermal power plants in the country and ask the respondents to pay compensation to the affected workers, including framing of a scheme.
The Supreme Court gave a number of interim orders including formation of a committee with experts from the National Institute of Occupational Health and representatives of various the trade unions, and NGOs to look into the health and safety of workers.
While giving its final judgement the Supreme Court relied upon the Consumer Education and Research Centre V. Union of India case (1995) where the Supreme Court categorically stated that health of a worker is protected under Article 21 of the Indian Constitution and when read with the Directive Principles of State Policy, this article makes it incumbent upon the Union Government to frame policies and guidelines to protect the health of the workers and it is also the duty of the management to safeguard the health and well-being of the workers and their family members.
On the basis of the report of the expert committee (which stated that the workers are exposed to dust, heat, noise, vibration, and waste and inhale dust generated from the burning of coal and suffer from respiratory problems throughout the life) the Supreme Court adjudged that right to a healthy environment is within the ambit of article 21 read with the Directive Principles of State Policy. Thus, provisions relating to a healthy environment are the same as the provisions relating to the protection of the health and safety of workers. It is the duty of the state to ensure minimum obligation of the State to provide minimal human dignity to its citizens including those who work in hazardous industries.
In this case, the duty of the State and the factory owners are even greater as the workers are compromising their health day and night, being exposed to hazardous substances for the sake of generating power for the growth and development of the nation. The court also stated that the provisions of the Environmental (Protection) Act, 1986, entrusts adequate authority upon the Central Government to frame regulations to control and dispose of hazardous wastes and therefore in this case these provisions can be very well utilized to address the health problems faced by the workers of hazardous industries. The court also made it incumbent upon the High Courts of the States to take a lead role in this regard so that relevant legislations in this regard are followed in letter and spirit in every state and proper medical facilities are available to all workers.
Occupational health and occupational diseases can never be tackled in isolation. It should be an integral part of a major institutional development that touches and reforms every level of government. Comprehensive consultative programmes with financial support of the affluent nations should be devised and executed so that they touch the life of each and every worker. All employees are entitled to their health and well-being. These rights are fundamental to human existence and are essential to the basic right to life and dignity. Poor and developing nations where the unorganized sector is more dominant poses even greater challenges.
One of the most important reasons for the rise of occupational diseases in these countries is exploitation of poor labourers for economic reasons, and this issue has to be addressed properly. Severe penal measures for erring employers should be put into place with very strict implementation. Modern occupational health and safety legislations should be framed and properly implemented. Grant of compensation and other benefits should be swift and government red-tapism should be allowed to delay proceedings. The core issues that ail the economy of poor and developing nations, like dense population, high rate of unemployment, poverty, illiteracy, ignorance about one’s rights, lack of employable skill, etc are needed to be addressed urgently. These are the core socio-economic problems that affect so many nations in so many different ways including the issue of occupational health and hence are needed to be tackled in a holistic manner. The success of occupational health and safety programmes and reduction in incidence of occupational diseases will depend to a large extent on the development of a successful legal and economic system with seamless execution of laws and regulations, targeting the most vulnerable sections.
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