Describe the legislation and social security measures for the protection of workers in India.

The Factories Act and Related Legislation

• The factories act, 1948 is the principal legislation, applying to premises using power with 10 or more workers, or without power with 20 or more
• Its health provisions — cleanliness; disposal of wastes and effluents; ventilation and temperature; removal of dust and FUME; artificial humidification; prevention of overcrowding with a minimum air space per worker; lighting; drinking water; latrines and urinals; and spittoons
• Its safety provisions — fencing of machinery; work on or near machinery in motion; employment of young persons on dangerous machines; hoists and lifts; pressure plant; excessive weights; protection of eyes; precautions against fire; and precautions in confined spaces
• Its welfare provisions — washing facilities; facilities for storing and drying clothing; sitting facilities; first aid appliances, with an ambulance room where more than 500 workers are employed; canteens where more than 250; shelters and rest rooms where more than 150; creches where more than 30 women are employed; and a welfare officer where more than 500
• The creche provision is worth noting, since its absence is a practical reason women cannot take or keep industrial work
• Provisions on working hours — a maximum of 48 hours a week and 9 hours a day; a weekly holiday; a rest interval after 5 hours; a spread-over limit; overtime at double wages; and restrictions on night work for women and on the employment of young persons
• Provisions on hazardous processes, added by the 1987 amendment after BHOPAL — compulsory disclosure of information to workers and the public; specification of permissible limits of exposure; medical examination of workers; appointment of safety officers; site appraisal committees; the worker’S right to be warned of imminent danger; and the right to be informed of hazards
• The inclusion of a worker’S right TO know and to warn of imminent danger was the direct legislative response to Bhopal, and is a good illustration of how disaster shapes law
• Notifiable occupational diseases are listed in the third schedule, and a medical practitioner who attends a patient believed to be suffering from a listed disease must report it
• Notification is grossly incomplete in practice, chiefly because clinicians do not take an occupational history and therefore never recognise the disease as occupational
• Other relevant legislation — the mines act, 1952; the plantation labour act, 1951; the building and other construction workers act, 1996, which is important because it covers a very large and highly hazardous but largely unorganised workforce; the Dock Workers Act; the Beedi and Cigar Workers Act; and the Child and Adolescent Labour (Prohibition and Regulation) Act
• The occupational safety, health and working conditions code, 2020 consolidates thirteen earlier labour laws and extends coverage in principle to more categories of worker, though its implementation and its effect on the unorganised sector remain to be seen

Social Security and Compensation

• The employees’ state insurance act, 1948 is the principal social security scheme, and is the first major social security legislation in India
• Its coverage — employees in factories and specified establishments with 10 or more persons, below a prescribed wage ceiling
• Its financing is tripartite — contributions from the employer and the employee, with the state government sharing the cost of medical care
• The contribution is a percentage of wages, and the employer pays the larger share; and employees below a specified daily wage are exempt from contributing while remaining fully covered
• The six benefits should be listed, since this is a standard question:
• 1. Medical benefit — full medical care for the insured person and their family, from the first day of insurable employment, with NO ceiling on expenditure
• 2. Sickness benefit — cash payment during certified sickness, at about 70% of wages for up to 91 days in a year; with extended sickness benefit for specified long-term diseases
• 3. Maternity benefit — full wages for the prescribed period, extendable
• 4. Disablement benefit — temporary disablement benefit while the disability lasts, and permanent disablement benefit as a life pension proportionate to the loss of earning capacity
• 5. Dependants’ benefit — a pension to dependants where death results from employment injury
• 6. Funeral expenses; with rehabilitation and vocational training, and an unemployment allowance (Rajiv Gandhi Shramik Kalyan Yojana) as additional benefits
• The structure for delivery — ESI dispensaries and hospitals, with an insurance medical officer, and a panel system in some states
• The distinctive feature of ESI that should be highlighted — it combines cash benefit with the direct provision of medical care, and covers the family as well as the worker, which most compensation schemes do not
• The employees’ compensation act, 1923 (formerly Workmen’s Compensation) applies to workers not covered by ESI
• Its principle is that the employer is liable to pay compensation for personal injury or occupational disease arising out OF and IN the course OF employment
• The phrase "arising out OF and IN the course OF employment" is the legal test and is worth explaining — "IN the course OF" concerns the time and place of the injury, and "arising out OF" concerns its causal connection with the work; both must be satisfied
• Liability is on the employer regardless of negligence by either party, which is the essential feature of a NO-fault scheme, and is what makes compensation practicable
• Compensation is not payable if the disablement lasts less than 3 days, or if the injury results from the worker being under the influence of drink or drugs, or from wilful disobedience of a safety rule or wilful removal of a safety guard
• Other social security — the employees’ provident fund; the maternity benefit act, 1961, as amended to extend paid leave; the payment of gratuity Act; the minimum wages Act; and the Unorganised Workers’ Social Security Act, 2008 with the e-SHRAM database
• The central limitation of the entire framework, which any honest answer must state — ESI and the compensation legislation reach chiefly the organised sector, which is a small minority of Indian workers
• The agricultural labourer, construction worker, brick kiln worker, domestic worker and home-based worker are largely outside it, and they are precisely those with the highest exposure and the least capacity to bear loss
• Further problems — difficulty of proving that a disease with a long latency and multiple causes is occupational; gross under-notification; delays in settlement; and the absence of any medical surveillance that would have detected the disease early
• The conclusion — compensation is a remedy after the harm; the law’S more important function is prevention, and it is in prevention that Indian enforcement is weakest
• Compensation schemes are no-fault, which is what makes them work at all, since otherwise every claim becomes a lawsuit
• In the course of is time and place, arising out of is causation, and both must be satisfied
• The framework reaches the organised minority, not those with the highest exposure and least capacity to bear loss
• ESI covers the family as well as the worker, and combines cash benefit with direct provision of medical care
• ESI financing is tripartite, with employer, employee and state government all contributing
• The six ESI benefits should be listed — medical, sickness, maternity, disablement, dependants and funeral
• Medical benefit has no expenditure ceiling, and begins from the first day of insurable employment
• The right to warn of imminent danger was the direct legislative response to Bhopal, added in 1987
• Notifiable diseases are in the third schedule, and a practitioner who suspects one is legally obliged to report it
• Notification fails because histories are not taken, so the disease is never recognised as occupational in the first place
• Creches are required above thirty women workers, and their absence is a practical reason women cannot keep industrial jobs
• An ambulance room is required above five hundred, a canteen above two hundred and fifty, and shelters above one hundred and fifty
• Forty-eight hours a week is the statutory limit, with a weekly holiday and a rest interval after five hours
• Construction workers have their own Act, which matters because it covers a huge and hazardous but unorganised workforce
• The 2020 Code consolidates thirteen laws, though its effect on the unorganised sector remains to be seen
• Compensation is not payable below three days of disablement, nor for wilful removal of a safety guard
• Latency makes occupational causation hard to prove, which is a practical barrier to compensation independent of the law
• E-SHRAM registers unorganised workers, which is a first step toward extending any benefit to them
• Prevention matters more than compensation, and is where Indian enforcement is weakest
• The worker cannot negotiate safety individually, which is the reason law substitutes for bargaining power here
• Permanent disablement benefit is a life pension proportionate to the loss of earning capacity, not a lump sum
• ESI was India first major social security law, which is worth stating as a matter of historical fact