Exemptions and the Power to Amend the Schedules

In one line

The Government may lift the Code off an establishment, off a new factory to encourage investment, off any workplace during an emergency, and off a teaching or research workshop; and the Central Government may rewrite the Schedules by notification.

In exam wording: section 127 of the Occupational Safety, Health and Working Conditions Code 2020 empowers the appropriate Government by notification to direct that all or any provisions of the Code shall not apply to an establishment or class of establishments, and empowers a State Government satisfied in the public interest that it is necessary to create more economic activities and employment opportunities to exempt new factories from all or any provisions for a specified period; section 128 permits exemption of a workplace or work activity during a public emergency, disaster or pandemic, for not more than one year at a time; section 129 permits exemption of a workshop attached to a public institution, subject to a scheme not less favourable than the Code for hours and holidays; section 130 makes a person required to give notice or information legally bound to do so within section 176 of the Indian Penal Code; section 131 empowers the Central Government by notification to amend any Schedule; and section 132 confers the power to remove difficulties by order within two years, laid before each House of Parliament.

Why the law has these at all

Every regulatory statute needs some power to be lifted, because rules written for a steel plant cannot sensibly be applied to a school workshop and a statute that could not bend during a cyclone would simply be broken.

What distinguishes these six sections is how differently they are built, and comparing them is the best way to answer on them.

Section 129 is the model. A public institution's workshop may be exempted, but not from hours and holidays unless the institution submits a scheme which the appropriate Government is satisfied is not less favourable than the Code. There is a condition, a document, and a standard of comparison.

Section 128 is the middle case. A public emergency, disaster or pandemic, exemption by notification, and a proviso capping each notification at one year at a time. The trigger is defined in an Explanation, and the duration is limited.

Section 127 is the outlier, and sub-section (2) is the provision most criticised in the whole Code. A State Government, satisfied in the public interest that it is necessary to create more economic activities and employment opportunities, may exempt any new factory or class of new factories from all or any of the provisions of this Code for a specified period from the start of commercial production. There is no maximum period on the face of the sub-section, no consultation, and no standard the exemption must meet.