The Employer's Responsibility for Health, Safety and Working Conditions

Section 23(2): the ten heads

Without prejudice to the generality of sub-section (1), the Central Government may prescribe for providing all or any of the following in an establishment or class of establishments:

Clause (viii) is the one to name in an answer, and to name for the right reason. The Factories Act 1948 required latrines and urinals for male and female workers separately. This Code requires them for male, female and transgender employees separately. That is a change in the law, not a change in drafting style, and the same three way separation appears in section 24 for washing places, bathing places, locker rooms and rest rooms.

Clause (iv) looks like a duplicate of clause (ii) and is not. Clause (ii) is general ventilation, temperature and humidity. Clause (iv) is about artificially increasing humidity, which is done deliberately in cotton and jute mills to stop yarn breaking, and which makes the working conditions far worse for the people in the room. It was regulated separately under the Factories Act for that reason and is separated here for the same reason.

Clause (ix) is the environmental limb. Treatment of wastes and effluents is a condition of work under this Code as well as a matter for pollution law, which is consistent with the Chairman of the Central Pollution Control Board sitting on the National Board under section 16(2)(e).

A worked example

Prakash runs a spinning mill employing one hundred and eighty workers, of whom sixty are women and two are transgender persons. The mill artificially humidifies its weaving shed.

What is his obligation under section 23? To maintain in the establishment such health, safety and working conditions for the employees as the Central Government prescribes: section 23(1).

Which heads bite on a spinning mill in particular?

• clause (iv), because he artificially increases humidity, and adequate standards for that, and for ventilation and cooling of the air in work rooms, may be prescribed;
• clause (iii), an environment free from dust, cotton dust being the characteristic hazard of the trade;
• clause (ii), ventilation, temperature and humidity generally.

What must he provide for latrines? Sufficient arrangement for latrine and urinal accommodation to male, female and transgender employees separately, and he must maintain hygiene in them: clause (viii). Providing two blocks rather than three does not satisfy the clause.

He says the Code does not say how many. That is correct and it is the point. The number is prescribed by the Central Government under section 23(1) and (2); the Code fixes the heads, not the figures.

Does he owe this to his two managers as well? Yes. Section 23(1) speaks of employees, and section 2(1)(t) includes managerial and administrative staff, even though they are not workers for the Code's thresholds.

His effluent runs untreated into a drain. Clause (ix) makes effective arrangements for treatment of wastes and effluents a matter for which the Central Government may prescribe requirements, so it is a working conditions obligation under this Code as well as an environmental one.

Nothing has yet been prescribed for a particular matter. Section 23 gives him nothing to comply with on that matter, but section 6(1)(a) and (d) still oblige him to keep the workplace free from hazards and, so far as is reasonably practicable, to provide and maintain a safe working environment without risk to health.

What this does NOT mean

Section 23 does not itself state any standard. It states heads and confers a power to prescribe.

It is not confined to workers. The duty is owed in respect of employees.

Clause (viii) does not permit two categories. It requires male, female and transgender accommodation separately.

Clauses (ii) and (iv) are not the same. The second deals with artificial humidification and the cooling and ventilation that go with it.

The absence of rules does not leave the employer free. Section 6 continues to impose the general duty.

Limits and criticism

The whole content of the Chapter is delegated. A student can read section 23 and still not know how much drinking water, how many latrines or what level of lighting is required. Under the Factories Act 1948 those were in the Act.

The list is a power, not a duty. Section 23(2) says the Central Government may prescribe, so a head on which nothing is prescribed produces no obligation under this section.

Nothing in the section is graded by size. Unlike section 24, which sets thresholds of fifty, one hundred, two hundred fifty and five hundred workers for particular facilities, section 23 applies to every establishment alike, leaving any gradation to the rules.

There is no participation. The Safety Committee under section 22 is discretionary, and section 23 gives workers no role in deciding whether conditions in their own workplace meet the prescribed standard.

Quick revision

• Section 23(1): the employer shall be responsible to maintain such health, safety and working conditions for the employees as the Central Government prescribes.
• Section 23(2), ten heads: (i) cleanliness and hygiene; (ii) ventilation, temperature and humidity; (iii) freedom from dust, noxious gas, fumes and impurities; (iv) humidification, artificial humidity, ventilation and cooling of work rooms; (v) potable drinking water; (vi) prevention of overcrowding and sufficient space; (vii) adequate lighting; (viii) latrine and urinal accommodation for male, female and transgender employees separately, kept hygienic; (ix) treatment of wastes and effluents; (x) anything else the Central Government considers appropriate.
• The Chapter replaces sections 11 to 20 of the Factories Act 1948, moving the detail from the statute into the rules.

Test yourself

1. On whom does section 23 impose the duty, and to whom is it owed? On the employer, and it is owed in respect of the employees of the establishment, which under section 2(1)(t) includes supervisory, managerial and administrative staff, not only workers.

2. Name any six of the matters listed in section 23(2). Any six of: cleanliness and hygiene; ventilation, temperature and humidity; an environment free from dust, noxious gas, fumes and other impurities; adequate standards of humidification, artificial increase of humidity, ventilation and cooling of air in work rooms; potable drinking water; adequate standards to prevent overcrowding and provide sufficient space; adequate lighting; sufficient latrine and urinal accommodation for male, female and transgender employees separately with hygiene maintained; effective arrangements for treatment of wastes and effluents; and any other arrangement the Central Government considers appropriate.

3. What does clause (viii) require that the Factories Act 1948 did not? Latrine and urinal accommodation for transgender employees separately, in addition to separate accommodation for male and female employees.

4. Why is artificial humidification dealt with separately from ventilation? Because it is a deliberate process, used in textile mills to raise the moisture of the air so that yarn does not break, which worsens the working conditions of the people in the room. Clause (iv) therefore provides for adequate standards of humidification and of the ventilation and cooling of the air that must go with it, separately from the general requirement in clause (ii).

5. The Central Government has prescribed nothing on lighting. Is the employer free to work in the dark? No. Section 23 would give nothing to enforce on that head, but section 6(1)(a) requires the workplace to be free from hazards likely to cause injury, and section 6(1)(d) requires the employer to provide and maintain, so far as is reasonably practicable, a working environment that is safe and without risk to health.

6. What is the criticism of drafting this Chapter as a single section? That the entire content of the obligation is delegated. The Code names ten heads but states no standard, so a worker cannot learn from the statute what he is entitled to, whereas the Factories Act 1948 set out the requirements in sections 11 to 20 of the Act itself. The gain is that standards can be revised without amending the Act.