Objections to the Draft Code on Social Security (Karnataka) Rules, 2021 and the Draft Occupational Safety, Health and Working Conditions (Karnataka) Rules, 2021
- Common Objection regarding failure to publish in Kannada Language
The Codes mandate prior publication of Draft Rules in order to ensure that the necessary sections of society are provided an opportunity to participate in its framing i.e. the consultative process. The value of a public consultative process prior to the making of delegated legislation cannot be understated. The Government has failed to ensure the publication of Rules in Kannada language, which amounts to exclusion of the vast majority of the working class, who form stakeholders in the present case. The failure to ensure the same deprives the working class across the State from participating in this Rule making process.
Objections to the Draft Code on Social Security (Karnataka) Rules, 2021
- Objection regarding pushing of electronic modes of service etc. in respect of the working class: A number of Rules provide for optional use of either electronic or physical service of notices, copies etc. There must be compulsory physical service in all cases. Recent TRAI Reports show that out of 100 persons, there are only 69 internet subscribers in Karnataka. The Supreme Court in its order dated May 31, 2021 in Suo Motu Writ Petition (Civil) No.3 of 2021 (In Re: Distribution Of Essential Supplies And Services During Pandemic) recognised the massive digital divide in India, and noted that “It is the marginalized sections of the society who would bear the brunt of this accessibility barrier.” Hence, electronic mode may be offered as an additional option but should not be in substitution of mandatory physical service etc.
- Improper Sub-Delegation: As per Section 120 of the SS Code, Social Security Organisations have various powers, including to
§ Acquire and hold moveable and immoveable property,
§ Sell or transfer property vested in it / acquired by it,
§ Do all things necessary for such purposes and for the purposes for which the said Social Security Organisation is established.
§ Invest any moneys vested in it, which are not immediately required for expenses properly defrayable
§ From time to time re-invest or realise such investments:
§ Raise loans and realize loans
§ Constitute for the benefit of officers and staff or any class of them, provident or other benefit funds
This has all been made subject to the conditions as may be prescribed by the appropriate Government. By Rule 29 of the Draft Rules, these powers are delegated to the Board, and it is prescribed that these conditions shall be as decided by the Board by a resolution approved by not less than 2/3 majority. This is an impermissible sub-delegation and the Board, which is not subject to the mandate of prior public consultation etc. is granted these wide powers.
- Inadequate Representation
As per the proviso to section 7(3) of the SS Code, at least one member of the Board shall be a woman. This is absolutely inadequate, and does not correspond to the proviso to Section 6(12) in respect of Social Security Board, which mandates that adequate representation shall be given to persons belonging to the Scheduled Castes, the Scheduled Tribes, the minorities and women. The State should have prescribed better representation but the proviso to Rule 4 of the Draft Rules states that one member amongst the worker / employer nominees is to be a woman. This must be rectified.
- Membership at the Pleasure of the Government
As per section 6(13), the term of the State Unorganised Workers' Board shall be three years. However, in the Draft Rules, the term of nominated members has been made subject to the pleasure of the government. This must be amended to ensure that workers who raise issues are not victimized by removal from the Board.
- Reduction in amount to be deposited for Cess Appeal
In respect of BOCW (Building and Other Construction Work) Cess, previously, Union Government had framed Rules. As per the same, to file an appeal against an order, a deposit of 1% of the amount in question was required to be made. Now, the same has been reduced to 0.5% in Rule 27. The draft rules ought to be amended to maintain a deposit of 1% to prevent frivolous appeals.
- Failure to exercise powers granted by the SS Code
- As per section 112 of the SS Code, the appropriate government is empowered to set up toll free call centre or helpline or such facilitation centres as may be considered necessary from time to time. However, no Rules are formulated in respect of the same.
- As per section 122 (5) (e) of the Code, the Appropriate Government may empower the inspector cum facilitator to exercise any other powers. The role of the said inspector cum facilitator has been thoroughly diluted by the Code, and the Rules fail to ensure provision of adequate powers to the inspector to ensure that he could perform the duties necessitated by him.
- Outsourced Staff
Rule 10 contemplates outsourced staff of the Board. There should be no outsourced staff in a State body, and civil servants are required to be appointed as permanent staff. The increasing contractualisation of employment results in a grave insecurity of tenure to the working class, and the State as a model employer must rectify this and not to perpetuate the same.
- Massive Gaps in the Draft Rules
There are a number of major gaps in the Draft Rules, that will result in denial of workers’ rights.
- Records and registers: The Rules fail to prescribe the registers and records mandated to be maintained under section 123(a) of the Code, which mandates that establishments maintaining particulars regarding persons employed, muster roll, wages; number of days for which work performed by employees; number of hours of work performed by the employees; wages paid; leave, leave wages, wages for overtime work and attendance; employees identification number, by whatever nomenclature it may be called; number of dangerous occurrences, accidents, injuries in respect of which compensation has been paid by the employer and the amount of such compensation relating to Chapter IV and Chapter VII, respectively; statutory deductions made by employer from the wages of an employee in respect of Chapter III and Chapter IV; details as to cess paid in respect of building and other construction work; total number of employees (regular, contractual or fixed term employment) on the day specified; persons recruited during a particular period; occupational details of the employees; and vacancies for which suitable candidates were not available during the specified period.
- Compulsory insurance: The manner of compulsory insurance of establishments for the purpose of gratuity is to be prescribed by the Appropriate government as per Section 57(3) of the SS Code, and the Rules fail to so prescribe
- Display of Provisions: The Rules fail to prescribe manner and form for display of notices at the workplaces of the employees in respect of rights under the Code in question, as mandated in section 123(b)
- Wage Slips: The Rules do not mandate form of wage slip as per section Rule 123(c)
- Maternity Benefit Forms: In respect of Maternity Benefit, no forms have been provided in respect of maternity benefit, whether it be the Form for making a complaint to the inspector-cum-facilitator under section 72(1) or the Form of appeal under section 72(3). Hence, the Rule regarding supply of forms free of cost is also deleted. Moreover, the specific roles of inspectors in relation to maternity benefit have been deleted, whereas the same ought to have been maintained.
- Unorganised Workers: There is no provision corresponding to Rule 12 of the Unorganised Workers’ Social Security (Karnataka) Rules, 2009, which prescribe how registration of unorganized workers is to be effectuated, though such registration is mandated under section 113 of the SS Code.
- Employment Exchange: The Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 has been repealed and its provisions have now practically been made optional in sections 139-140 of the SS Code. Whereas previously, Rules under the Act were prescribed by the Central Government, now, the appropriate government “may” effectuate the provisions. The role of the Employment exchange in ensuring employment to the increasing unemployed cannot be understated, and comprehensive rules in this regard ought to be framed
The lack of prescription in this regard will gravely affect the rights of the working classes.
Objections to the Draft Occupational Safety, Health and Working Conditions (Karnataka) Rules, 2021
- Comprising safety of workers:
- Definition of Hazardous substance watered down: Rule 2(1)(o) defines a “hazardous substance” as a chemical described under Schedule – BB or any other substance which the central government or state government may notify from time to time. However, Rule 2(1)(w) of the Building and Other Construction Workers’ (Regulation of Employment and Conditions of Service) (Karnataka) Rules, 2006 defines “hazardous stance” as any substance which due to its explosiveness, inflammability, radioactivity, toxic or corrosive properties, or other similar characteristics, may cause injury or affect adversely the human system or cause loss of life or damage to property in work-environment, while handing, transporting or storing and classified as such under national standards or in case such national standards do no exist to the generally accepted international standards. Thus, Rule 2(1)(o) of the OSH Rules, 2021 significantly dilutes the protective definition in the extant Rules, leaving it entirely upto the Central/State Governments to notify only chemicals from time to time. Schedule – BB to the OSH Rules, 2021 corresponding to Rule 2(1)(o) set extremely high standards for the classification of a chemical as a hazardous substance, meaning that most hazardous substances would not fall within the definition and thus, workers exposed to them will not be protected with adequate safety standards. Further, OSH Rules, 2021 only defines chemicals as hazardous substances, excluding any other substances, including inflammables or explosives that may cause injury to or affect human life or the work-environment. In effect, most substances would not be considered hazardous substances and thus, establishments will not have to provide notice to the Inspector as per Rule 21(3), would not have to provide data on accidents as well as health of workers exposed to the substances as per Rule 35(6)(b), would not have to exempt pregnant women from working around such substances as per Rule 70(1), would not have to disclose information to workers regarding handling of the hazardous substance as per Rule 106(1)(f)(h)(i) or (j), or undertake safety measures as per Rule 112. This gravely compromises safety within an establishment.
- Permitting deemed approval without verification: Rule 4 deals with approval of plans and permission before the establishment of a factory. Rule 4(5) states that if no order is made on the application of plan and permission submitted to the Chief Inspector Cum Facilitator within the timeline stipulated under the Karnataka Sakala Services Act (which is 90 days), the plan approval shall be deemed to have been granted and the certificate of permission shall be auto-generated. Such deemed approval would defeat the purpose of seeking permission, as the application for the plan and permission to commence operations is the most pertinent portion of commencing factory operations which ensures that the manufacturers and business owners ensure adequate safety, compliance with environmental laws, and protection to the workmen including on-site emergency plans, creche, the safety of the building and equipment, provision of health centres, and stability of the building and manufacturing processes. Without the application of mind of the Chief Inspector Cum Facilitator to the application for approval of plans and establishment of the factory, the safety of the factory is left to the whims of the operator of the factory, without any legislative oversight ensuring adequate compliance with the law. The provision contemplates conditions in which factory operators will make an application, and will be allowed to commence operations with little to no oversight on account of the laxity on the part of the Chief Inspector Cum Facilitator to check the application within the stipulated time. This grossly compromises the safety of the factory and the workmen.
- Auto-renewal of licence: Rule 7 regarding renewal of the license provides for auto-renewal of the license online upon payment of fees. This provides a carte blance permission to the factory operator to continue operations indefinitely, without any oversight of the Inspector and compliance with the law, as a mere application online will be sufficient for renewal. Rule 7(1) must be deleted and the Chief Inspector Cum Facilitator must mandatorily be required to apply her mind to the application for renewal to ensure compliance with safety requirements and the law.
- No prior information on commencement: Rule 18 introduces a procedure unknown to law regarding notice of commencement and cessation of operation, requiring the employer to only notify the Registering officer within 30 days of commencement and cessation of operations of a factory or mine or relating to contract labour, or building and other construction works. This procedure must be amended to require prior permission and intimation to the workmen before commencement and cessation of activities, and prior permission from appropriate authority only after compliance with rules regarding closure of the undertaking, and payment of dues to workmen.
- Annual health examination: Unlike Rule 242 of the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Karnataka, Rules, 2006 having extensive protective safeguards for workmen exposed to hazardous conditions and their medical examination, Rule 19 of the OSH Rules, 2021 merely has a perfunctory provision regarding yearly examination of workers in several establishments such as beedi, construction work, plantation etc. This is merely nominal in nature, and does not actually ensure the health of workers.
- Safety Officers and their Duties: In providing for a new authority called “safety officers” and their duties, the OSH Rules, 2021 fails in respect of protecting workmen working in smaller establishments, as Rule 42 provides for safety officers in factories with 500 workers or above, and 250 or above in factories carrying on hazardous process. However, the Rules fail to contemplate the safety officers for factories having less than 500 or 250 workers, and does not specify in what manner and who will be carrying out the duties of safety officers in these smaller factories. Further, the Safety officer only advises and assists the factory management to follow safety protocols. There is no enforcement powers or penal powers given to them if it is found that the factory does not follow safety protocols
- Excluding dependants and family members: Rule 3 looks to narrow the definition of family as provided in the OSH Code by stating that dependents who earn equal to or more than minimum wages applicable to that industry shall not be included. This is impermissible and Rules cannot circumscribe the main Act itself. Section 2(1)(x) of the OSH Code, 2020 defines a “family”, and is relevant to provisions such as Section 92 wherein the State Government may prescribe every plantation employer to make housing accommodation for the worker employed in the plantation and his family. This restricted definition of a dependent will exclude several vulnerable and actually dependent members of the family from being provided the benefits of the OSH Code, 2020.
- Notice of periods of work: Rule 48 makes it optional to provide the notice of periods of work option. The notice must not only be displayed in electronic form, but mandatorily be displayed in physical form in a conspicuous place at which the workers have been informed regarding the display of such notices, in both English and Kannada language, in advance.
- Inspector-cum Facilitators
The OSH Rules, 2021 in providing for an Inspector Cum Facilitator, has empowered the Inspector to photograph any worker in Rule 55, in complete violation of the right to live with dignity and right to privacy of the workers as protected in Article 21 of the Constitution. No such photography must be permitted save with the express informed permission of the worker. Further, Rule 55(4) must be amended to make it mandatory for the inspector to carry out an inspection upon receipt of a complaint, and must not leave it to the discretion of the inspector to decide whether or not an inspection is needed, as this defeats the very purpose of a complaint seeking inspection.
- Failure to ensure rights of Contract Labour
- The OSH Rules, 2021 entirely dilute the hard-won rights and duties of the contractors and principal employers as contained in the Contract Labour (Regulation and Abolition) Act, 1970 (see Rules 20, 21, 28((2)(d), 29) and fails to make provisions for compliance with law regarding working conditions in order to attain registration or renewal of the license, provision of canteens, rest-rooms, and first-aid and welfare facilities of contract labour. Further, rules 78 and 81 completely fail in protecting the workmen as they do not place the burden on the principal employers to provide facilities and make payments of wages/dues on default of the contractor. The entire chapter must be amended to place the burden on the principal employer to provide all benefits upon failure of the contractor.
- The disputes regarding whether or not an activity is a “core activity” has been left entirely to the discretion of the employers, placing the burden on the workmen to raise a dispute to the government with reasons and documents to prove that an activity is a core activity and there is a prohibition on employment of the workmen in such activity. The entire OSH Rules, 2021 legitimise and perpetuates the employment of workmen through sham contractors in perpetuity to deny them the status of permanent employees to avail the consequent benefits.
- Attack on rights of Inter-state migrant workers, audio-visual worker, beedi and cigar workers
- The OSH Rules, 2021 entirely eradicate the protective provisions of the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Karnataka Rules, 1981 which provided for provision of passbook (Rule 23), medical facilities, protective clothing, drinking water, latrines, urinals, washing facilities (Rule 33), rest-rooms (Rule 34), canteens (Rules 35) etc. and merely have a bland Chapter on providing journey allowance, schemes, toll-free helpline and studying of their conditions, while entirely doing away with their protections.
- Similarly, none of the provisions of the Cine-Workers and Cinema Theatre Workers (Regulation of Employment) Act, 1981 and rules protecting the workmen from the vagaries of private employment and their working conditions have been saved.
- Beedi and cigar workers have similarly been provided for registration, but no provision has been given for their protection, provision against the health hazards they are exposed to, and safety equipment or health facilities.
- Further, Beedi & Cigar, plantation workers, inter-state migrant workers, audio-visual workers (cine-workers), contract workers are included in chapters and parts of the Rules. However, mine workers, working journalists, motor transport workers, sales promotion workers, dock workers and building and other construction workers have very little safety or welfare facilities being provided for in the Rules.
- Failure to ensure proper registers to be maintained by establishment
The OSH Rules, 2021 contemplate various registers to be maintained. However, the registers and forms, significantly dilute the protections present in existing enactments, and reduce to a great extent the compliances required by the establishments, in the name of ease of doing business. This only serves to the interests of the businesses and further the exploitation of already vulnerable workmen. For example, the registers fail to mention the number of adult workers, child workers, cleanliness, as required till now under the Factories Act, 1948, or the records of building workers including the number of hours of their work, work performed by them, day of rest etc. under the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996.
Thus, in serving corporate interests, the OSH Rules, 2021 betray the working class and must be withdrawn.