Plantations

Breathing zone in section 93(8) is the air a worker actually breathes at his work, as distinct from the general air of the area.

Blending is mixing two or more chemicals; applying is putting them on the crop.

Adolescent takes its meaning from the Child and Adolescent Labour (Prohibition and Regulation) Act 1986.

Section 92(1): the five facilities

Without prejudice to the generality of sections 23 and 24, the State Government may prescribe requiring every employer to make provisions in his plantation for:

(a) Housing. Necessary housing accommodation including drinking water, kitchen and toilet to every worker employed in the plantation, including his family.

This is the provision that makes Part VIII different from everything else in the Code. Elsewhere, accommodation appears only for building workers under section 24(2)(v). Here it is housing with drinking water, a kitchen and a toilet, and it is owed to the worker including his family.

(b) Creche. Where fifty or more workers, including workers employed by any contractor, are employed or were employed on any day of the preceding twelve months.

Proviso: an establishment may avail a common creche facility of the Central Government, a State Government, a municipality, a private entity, a non-governmental organisation or any other organisation; or a group of establishments may agree to pool their resources for setting up a common creche.

Note two drafting points. Contractor's workers count towards the fifty, which is unusual and important on an estate where much of the plucking is contracted out. And the threshold uses the same high water mark test as sections 45 and 59: employed or were employed on any day of the preceding twelve months.

(c) Educational facilities. For the children of the workers employed in the plantation, where the children between the ages of six and twelve of the workers exceed twenty five in number.

(d) Health facilities. To every worker employed in the plantation, including his family, or coverage under the Employees' State Insurance Act 1948.

The or is significant. The employer may discharge the duty either by providing health facilities himself, which is what estates traditionally did through an estate hospital, or by bringing his workers within ESI. It is a choice between building a hospital and buying insurance.

(e) Recreational facilities for the workers employed in the plantation.

And note the opening words of the sub-section, which are easy to skip. The power is without prejudice to the generality of sections 23 and 24, so these five are in addition to the general health, safety and welfare requirements, not instead of them. And the sub-section is a power to prescribe: the duty on the employer arises through the State Government's rules.

Section 92(2): how the employer may discharge the duty

An employer of a plantation shall be responsible to provide and maintain welfare facilities for which the workers in the plantation are entitled under this Code, either from his own resources or through the schemes of the Central Government or State Government, Municipality or Panchayat for the locality in which the plantation is situated.

This sub-section is more interesting than it looks and should be given a sentence in an answer.

The responsibility is the employer's, and it is a responsibility both to provide and to maintain.

But the source may be public. He may discharge it through Government, municipal or panchayat schemes for the locality. So where the State has built a school or a health centre serving the estate, the employer is not required to duplicate it.

The risk in that is equally plain: a scheme that exists on paper, or one that serves the locality without reaching the estate lines, may be treated as discharging a duty that is in truth undischarged. The sub-section says nothing about adequacy or accessibility.

The Explanation ties Municipality and Panchayat to article 243(e) and article 243(d) of the Constitution.

Section 93: safety in the use of chemicals

Nine sub-sections, all directed at insecticides, pesticides, chemicals and toxic substances. Take them as four groups.

The general duty. Section 93(1): in every plantation, arrangement shall be made by the employer to provide for the safety of a worker in connection with the use, handling, storage and transport of insecticides, pesticides and chemicals and toxic substances.

The people. Section 93(2): the State Government may prescribe special safeguards for the employment of women or adolescents in using or handling hazardous chemicals. Section 93(3): the employer shall appoint persons possessing the prescribed qualifications to supervise the use, handling, storage and transportation of insecticides, chemicals and toxic substances. Section 93(4): the employer shall ensure that every worker employed for handling, mixing, blending and applying them is trained about the hazards involved in the different operations in which he is engaged, the various safety measures and safe work practices to be adopted in emergencies arising from spillage, and such other matters as the State Government prescribes.

The health record. Section 93(5): every worker exposed to them shall be medically examined periodically, in the manner prescribed by the State Government. Section 93(6): the employer shall maintain a health record of every worker so exposed, and every such worker shall have access to such record.

The equipment and the warnings. Section 93(7): the employer shall provide (a) washing, bathing and clock room facilities and (b) protective clothing and equipment, to every worker engaged in handling them. Section 93(8): the employer shall display in the plantation a list of permissible concentrations of insecticides, pesticides, chemicals and toxic substances in the breathing zone of the workers engaged in handling and applying them. Section 93(9): the employer shall exhibit such precautionary notices as the State Government prescribes, indicating the hazards of those substances.

Two provisions deserve to be named specially.

Section 93(6): the health record is the worker's to see. It is the same rule as section 85(a) for hazardous process factories, and for the same reason. Pesticide poisoning is cumulative and shows itself years later, by which time the only evidence of exposure is a record the employer holds.

Section 93(8): the list is displayed, not filed. The permissible concentrations must be displayed in the plantation, so that the standard against which the work is judged is visible where the work is done. Compare section 88, where the permissible limits for factories are simply prescribed by the State Government with no display requirement.

A worked example

Nilgiri Estates grows tea on eleven hundred acres. It employs four hundred workers of its own and, in the plucking season, about a hundred and fifty more through a contractor. The workers and their families live in lines on the estate. Spraying is done by a gang of thirty, of whom eighteen are women.

Must the estate house its workers? Under section 92(1)(a) the State Government may prescribe requiring the employer to make provision for necessary housing accommodation including drinking water, kitchen and toilet to every worker employed in the plantation, including his family. The duty arises through those rules.

Must it run a creche? Under section 92(1)(b), where fifty or more workers, including workers employed by any contractor, are employed or were employed on any day of the preceding twelve months. Both the estate's own four hundred and the contractor's hundred and fifty count.

It says it cannot build one. Under the proviso it may avail a common creche facility of the Central or State Government, a municipality, a private entity, a non-governmental organisation or any other organisation, or pool resources with a group of establishments for a common creche.

Thirty one children of workers are aged between six and twelve. Then section 92(1)(c) is engaged, the number of the workers' children between six and twelve exceeding twenty five, and educational facilities may be prescribed.

Must the estate run a hospital? Under section 92(1)(d) it must provide health facilities to every worker including his family, or provide coverage under the Employees' State Insurance Act 1948. It is a choice.

There is a panchayat health centre two kilometres away. Under section 92(2) the employer may discharge his responsibility to provide and maintain welfare facilities through the schemes of the Central or State Government, a Municipality or a Panchayat for the locality, as well as from his own resources.

The spraying gang. The employer must make arrangements for their safety in the use, handling, storage and transport of the chemicals: section 93(1). He must appoint a person with the prescribed qualifications to supervise that work: section 93(3). He must train each of them about the hazards of the operations they do and the safe practices in an emergency arising from spillage: section 93(4).

Eighteen of the thirty are women. The State Government may prescribe special safeguards for the employment of women or adolescents in using or handling hazardous chemicals: section 93(2).

A sprayer wants to know what he has been exposed to over nine years. Under section 93(6) the employer must maintain a health record of every worker exposed, and every such worker shall have access to such record. He must also be medically examined periodically under section 93(5).

They change and wash in the open. Section 93(7) requires washing, bathing and clock room facilities, and protective clothing and equipment, for every worker engaged in handling these substances.

Nobody knows what concentration is permitted. Section 93(8) requires the employer to display in the plantation a list of permissible concentrations of the substances in the breathing zone of the workers engaged in handling and applying them, and section 93(9) requires precautionary notices indicating the hazards, as prescribed by the State Government.

What this does NOT mean

Section 92 does not itself impose the five facilities. It empowers the State Government to prescribe requiring the employer to provide them, and it operates without prejudice to sections 23 and 24.

The creche threshold does not count only the employer's own workers. It includes workers employed by any contractor, and it is satisfied by employment on any day of the preceding twelve months.

The educational threshold is not twenty five children. It is where the workers' children between six and twelve exceed twenty five.

Health facilities are not necessarily an estate hospital. The employer may instead provide coverage under the Employees' State Insurance Act 1948.

Section 92(2) does not let the employer off. He remains responsible to provide and maintain; it merely permits him to do so through public schemes for the locality.

Section 93 is not a general safety code for plantations. All nine sub-sections concern insecticides, pesticides, chemicals and toxic substances. General safety comes from sections 6, 18 and 23.

The health record is not confidential to the employer. Every exposed worker shall have access to it.

Limits and criticism

Everything in section 92 depends on rules. The sub-section is a power to prescribe, so a State that prescribes nothing leaves the housing, the creche, the school and the health facility unprovided, and the workers with only sections 23 and 24 to rely on.

Section 92(2) may become an excuse. Allowing the employer to discharge his responsibility through a Government, municipal or panchayat scheme is sensible where the scheme is real and reaches the estate. The Code sets no test of adequacy, distance or accessibility, and on a remote estate a scheme "for the locality" may serve nobody in the lines.

No number is attached to the housing. Section 92(1)(a) says necessary housing accommodation, and what is necessary is for the rules.

Section 93 leaves the substance to the States. The qualifications of the supervisor, the manner and frequency of medical examination, the special safeguards for women and adolescents, the manner of providing protective clothing and the content of the precautionary notices are all prescribed by the State Government, so the protection of a sprayer varies by State.

There is no counterpart of the disclosure duty in section 84. A plantation handling large quantities of pesticide owes nothing to the local authority or to the general public in the vicinity, although the spray drifts and the run off reaches the same water everyone uses.

And no permissible limit is fixed. Section 93(8) requires a list of permissible concentrations to be displayed; it does not say who fixes them or by reference to what standard, whereas section 88 at least provides expressly that the maximum permissible limits for factories are prescribed by the State Government.

Quick revision

• Section 92(1), five facilities, prescribed by the State Government, without prejudice to sections 23 and 24: (a) housing including drinking water, kitchen and toilet to every worker including his family; (b) creche where fifty or more workers, including a contractor's, are or were employed on any day of the preceding twelve months, with a proviso allowing a common creche or pooling; (c) educational facilities where the workers' children between six and twelve exceed twenty five; (d) health facilities to every worker including his family, or coverage under the ESI Act 1948; (e) recreational facilities.
• Section 92(2): the employer is responsible to provide and maintain the welfare facilities to which the workers are entitled, from his own resources or through schemes of the Central or State Government, a Municipality or a Panchayat for the locality. Municipality and Panchayat as in article 243(e) and (d).
• Section 93, all of it about insecticides, pesticides, chemicals and toxic substances: (1) the employer must arrange for safety in use, handling, storage and transport; (2) the State Government may prescribe special safeguards for women or adolescents; (3) qualified supervisors must be appointed; (4) every worker handling, mixing, blending or applying them must be trained in the hazards and in emergency practice for spillage; (5) periodical medical examination; (6) a health record, to which the worker has access; (7) washing, bathing and clock room facilities and protective clothing and equipment; (8) a displayed list of permissible concentrations in the breathing zone; (9) precautionary notices indicating the hazards.

Test yourself

1. Name the five facilities in section 92(1) and say who makes them obligatory. Housing accommodation including drinking water, kitchen and toilet for every worker and his family; creche facilities; educational facilities for the workers' children; health facilities for every worker and his family, or ESI coverage; and recreational facilities. They become obligatory through rules prescribed by the State Government, and the power is without prejudice to the generality of sections 23 and 24.

2. What is the creche threshold, and whose workers are counted? Fifty or more workers employed, or employed on any day of the preceding twelve months, and the count expressly includes workers employed by any contractor. The proviso permits the establishment to use a common creche run by a Government, municipality, private entity or non-governmental organisation, or a group of establishments to pool resources for one.

3. When must educational facilities be provided? Where the children between the ages of six and twelve of the workers employed in the plantation exceed twenty five in number.

4. How may an employer satisfy the health facilities requirement? Either by providing health facilities to every worker employed in the plantation including his family, or by providing coverage under the Employees' State Insurance Act 1948: section 92(1)(d). Under section 92(2) he may also discharge welfare responsibilities through schemes of the Central or State Government, a Municipality or a Panchayat for the locality.

5. State four of the duties imposed by section 93. Any four of: to arrange for the safety of workers in the use, handling, storage and transport of insecticides, pesticides, chemicals and toxic substances; to appoint persons with prescribed qualifications to supervise that work; to train every worker handling, mixing, blending or applying them in the hazards and in emergency practice for spillage; to have every exposed worker medically examined periodically; to maintain a health record accessible to the worker; to provide washing, bathing and clock room facilities and protective clothing and equipment; to display a list of permissible concentrations in the breathing zone; and to exhibit precautionary notices indicating the hazards.

6. Why is the plantation Part different in kind from the rest of the Code? Because it is the only Part in which the worker's family is inside the statute. Housing and health facilities are owed to every worker including his family, and educational facilities are owed for the workers' children. The reason is that a plantation is where the workforce lives, usually far from any municipality, so what exists on the estate is what the employer provides.

7. Give two criticisms of Part VIII. Any two of: the whole of section 92 is a power to prescribe, so a State that makes no rules leaves the housing, creche, school and health facility unprovided; section 92(2) permits the employer to rely on a public scheme "for the locality" with no test of adequacy or accessibility; the housing requirement is stated only as necessary accommodation with no standard in the Code; section 93 leaves qualifications, examination, safeguards and notices to State rules, so protection varies by State; there is no counterpart of the section 84 duty to disclose dangers to the local authority and the general public in the vicinity; and section 93(8) requires permissible concentrations to be displayed without saying who fixes them.