SAFETY OF WOMEN WORKERS IN HAZARDOUS OCCUPATIONS: AN ANALYSIS UNDER THE OSHWC CODE, 2020

This Article is written by Samiksha Sandhya, Fourth Year Law Student at UPES, Dehradun.

Introduction

The Indian labour force has been changing gradually over the last few decades, as more women are entering work spaces which were primarily large male-dominated areas. These jobs are dangerous. They are in the areas of mining, construction, manufacturing, chemical industries, and other labour-intensive areas of work. Economic imperative, educational achievement, and individual gender inclusion policies have all had an effect on this.

Yet, while work consideration is changing to incorporate women in these dangerous fields of work, the dialogue surrounding work safety needs to change too, with a focus on the unique needs and vulnerabilities of women. Occupations with hazards or hazardous occupations mean work where physical, chemical, and biological hazards exist.

For women in hazardous occupations, these hazards may be aggravated by the lack of safety culture or safety infrastructure, the absence of gender-safety specific facilities (e.g., toilets, protective equipment), and social/cultural norms that devalue women work (meaning that their safety is ignored or down-played). So, indirectly it is important that gender-sensitive safety practices ensure not only the basic requirements for occupational safety and health are implemented, but to consider how such workplaces can impact women workers differently.

The Government of India enacted the Occupational Safety, Health and Working Conditions (OSHWC) Code, 2020¹, as a response to changes in the nature of work and to update and consolidate diverse labour laws. This overarching law aims to consolidate and update workplace safety predictions across all various sectors.

 The master law consolidates 13 current labour laws relating to occupational safety, health and working conditions into one framework. The Code is applicable to places of employment with a certain number of employees and across various sectors of employment. One interesting aspect of the OSHWC Code is that it recognizes women’s presence within hazardous occupations and attempts legal protection for them. The Code tries to facilitate a healthier and more varied work environment by establishing working hours, night shift provisions and subjecting provision of sanitation and hygiene.

Nevertheless, the extent of the application of the provisions in reality will depend largely on their enforcement and application across the country. This paper seeks to critically examine the safety of female workers in hazardous occupations within the context of the OSHWC Code, 2020, by exploring the provisions of the Code regarding the concern, identifying areas for application gap, and comparing the legislation.

Understanding Hazardous Occupations

As a rule, hazardous occupations are understood to be types of jobs or working conditions, in which workers are significantly exposed to hazards to their life, health, or safety. So, for instance, in which they are exposed to: dangerous processes, dangerous materials or dangerous conditions; such as, toxic and/or corrosive chemicals, heavy machinery, extreme temperatures, and physically demanding and dangerous work. Under the previous Factories Act/Bill in 1948 (now amalgamated into the OSHWC Code 2020)², hazardous manufacturing/heavy industries were included under certain, specific processes, but the Code has introduced a new Schedule of Hazardous Processes formalising a more modern classification set of guidelines. Historically, sectors, such as mining and quarrying; construction; manufacturing; chemical plants; ship breaking; and collectively heavy engineering, have been considered hazardous occupations, because of the potential risks of accidents and health risks.

These sectors of work have, in fact, been referred to as hazardous occupations. Even with their historical connection to occupations male dominated, with an at times reluctance at the national level to diversify, more women are entering these policed occupations for economic reasons, programs designed specifically for women to learn skilled trades, and social change (this might be part of significant social change).

We can see more female workers employed in mining, construction, the extensive study of brick kilns, textile factories, etc., while also contemplating fully physically demanding and dangerous work.

Historically, Indian labour law included several restrictions limiting women’s employment in hazardous work. For example, under the Mines Act and the Factories Act³, women could not work in underground mines or for night shifts in some industries. These restrictions were initiated as protective measures for women but, in fact, limited women’s access to employment. However, as attitudes have changed toward gender equality and with international labour standards evolving, recent legal reforms including the OSHWC Code have attempted to remove blanket prohibitions and focus instead on safety measures.

It now seems women can work in, for example, night shifts and mines, on the basis the employer provides safe working conditions, security, consent and government approval if necessary.

Key Provisions of the OSHWC Code, 2020 Related To Women’s Safety

The Occupational Safety, Health and Working Conditions (OSHWC) Code, 2020 represents a major advance in reforming and rationalising India’s labour laws, especially in relation to women’s safety at work. The Code professionalises 13 central labour laws into a singular instrument to provide an integrated standard across all sectors. Several provisions address women’s safety and working conditions when working in hazardous occupations, which reflects a modern and inclusive approach.

• Responsibilities for employers:

Section 6 of the Code outlines an employer’s responsibility to ensure that the workplace is safe from any hazard causing injury or occupational disease. This includes creating any safety equipment, training, supervision, protection and health and safety controls on health risks (in particular hazards).

• Women and hazardous work:

 The Second Schedule of the Code outlines a listing of hazardous processes and sectors. Women can work in these sectors, but section 43 of the Code outlines, any work in the hazardous sector shall be subject to conditions set by the appropriate government to protect women workers. This includes obtaining the consent of the woman worker, and notifying the government on the employment arrangements.

• Working Hours and Night Shifts:

The Code has lifted the previous absolute prohibitions on women’s shift work during the night. Section 43 allows for women to work between the hours of 7 PM and 6 AM, subject to certain conditions. Firstly, there has to be the consent of the woman in WRITING. Secondly, the area has to be Supervised at all times by a female, Thirdly, there must be safe transportation, lastly, there has to be adequate lighting & security.

• Sanitary and Hygiene Facilities:

Section 23 states that there should be adequate lighting & ventilation, comfortable temperature, and working sanitation facilities that involves separate lavatories for women in all workplaces. This is even more important for workers in unsafe occupations, as the lack of formal hygiene facilities can worsen health concerns. Ideally, the Code will detail the provision of clean drinking water, waste disposal, lavatories, and lavatories that are proportional to the number of woman workers⁴.

• Consent and Notification to Government:

As discussed, when women are working in hazardous situations, or during night hours, the Code discusses voluntary participation. Employers must obtain consent from the woman and notify the relevant authority to ensure compliance and tracking of required safety measures.   In conclusion, the OSHWC Code, 2020 establishes a strong foundation for the protection of women in hazardous work.

However, the real challenge is ensuring proper implementation in sectors lacking regulatory oversight.

Challenges in Implementation

While the OSHWC Code, 2020 has laid down progressive legislative measures to improve the safety of women workers in hazardous occupations, the implementation of these provisions can improve in regard to functional efficacy and context (law) use. The challenges of implementation stem from systemic administrative obstacles, socio-cultural complexities, and limitations of resources and infrastructure; primarily in sectors where women often face disadvantage.

• Disinterest: bars to conduction enforcement and gaps

One of the major problems is the gulf that exists between legislation and conduction and enforcement on the ground. The labour inspectors are overwhelmed in their workloads, which means they often do not conduct inspections on timely basis (especially in informal or remote sector work such as brick kilns, small-scale manufactures or construction of sites). Further, many employers and workers are unaware of their rights and responsibilities under the Code so that there seem to be widespread instances of non-compliance either from ignorance of the Code or avoidance of regulation.

• Inadequate Protective Equipment for Women

Much of the protection in hazardous occupations is male-oriented and many items of PPE, such as gloves, helmets, coveralls, and other pieces of equipment affect safety and comfort when used. Employers have a general duty of care to provide adequate safety equipment in accordance with the OSHWC Code, but there is no general `duty of care’ to ensure equipment is actually for both sexes or at least accommodate both sexes. The lack of representation in standard setting for safety has resulted in a significant level of gender variability for women workers.

• Harassment in the Workplace and the Concept of Psychological Safety

 The regulatory duty to protect workers from physical harm should also extend to provide or place responsibility in operators such as employers, to protect workers from harm to their emotional and psychological safety, which should include providing workplaces that are harassment-free.

Women workers in hazardous jobs, including male-dominated workplaces have reported experiencing harassment, isolation, and the accompanying psychological stress, while Internal Complaints Committees (ICCs) have been established in accordance with the POSH Act⁵, they either do not exist or are ineffective in many hazardous working environments especially where employment is informal or short-term.

Suggestions and Way Forward

To connect to the legal stipulation created by the OSHWC Code, 2020, and the actualized safety of women in harmful occupations requires a distinct gender-sensitive and multi-dimensional approach. Although the OSHWC Code provides high-level responsibilities for safety, far more tactical measures need to be built around protecting, enabling, and including women in workplace safety governance.

• Gendered risk assessment frameworks

The majority of workplace risk assessments are based on a model that neither takes into consideration the unique aspect of gender-specific vulnerability nor considers particular situations of women like toxins exposure to toxins, ergonometric strains or adverse health impacts related to sanitation.

It is essential to create targeted risk assessment tools to assess hazards from a gender specific perspective for recommendations for protection and it should also include evaluations of the adequacy of facilities provided for women workers in hazardous occupations, including toilets, changing rooms and rest areas, and so forth.

• Improving Compliance and Monitoring Processes

Implementation of safe working standards, or practices compliant with the Code of Practice, will depend on the government having available effective compliance-monitoring methods, including adhering to the Code of Practice with gendering, unannounced compliance monitoring, and more punitive measures for non-compliance with the Code of Practice, where the worker’s safety is broken.

Other methods to improve accountability through transparency and reporting on compliance by sector (including gender disaggregation) and include improved transparency and accountability processes would improve compliance. 

• Inclusion of Women on Safety Committees

 The OSHWC Code enables Safety Committees in large worksites to be established. A meaningful next step would be to require that women are included on these Committees and advice on every decision made about safety is informed by women’s perspectives, experiences on the job.

Women could also be ensured to have elected a position in a leadership role on the Committee, because providing women’s place in authority on the Committee, not only allows women’s voices to be heard, but would provide women the authority to instruct and inform a process about how workplace aquatic and gender sustainability affect them through policy and practice. 

Conclusion

Women have entered the most dangerous occupations and professions across the economy- mining, construction, manufacturing etc. This caused for a much-needed gendered approach to workplace safety. Safety is multi-faceted, and encompasses dignity, equality and empowerment in addition to being physically safe.

Women understand their health, ergonomic and social vulnerability differently- it is critical that we acknowledge these concerns if we want people to be able to develop more inclusive and effective policies. The Occupational Safety, Health and Working Conditions (OSHWC) Code, 2020 is a meaningful legislative advancement in the context of safety. It represents a move away from an archaic protectionist agenda to a more rights based, progressive framework that recognizes women as colleagues. The OSHWC Code has examined the varied pathways women enter different workplaces, and at different hours, and protects women’s rights on matters related to sanitation, transportation and consent to employment⁶.

1. The Occupational Safety, Health and Working Conditions Code, No. 37 of 2020, Acts of Parliament, 2020 (India). ↩︎
2. The Factories Act, No. 63 of 1948, Acts of Parliament, 1948 (India) (repealed). ↩︎
3. The Mines Act, No. 35 of 1952, Acts of Parliament, 1952 (India). ↩︎
4. Constitution of India, art. 42 (Provision for just and humane conditions of work and maternity relief). ↩︎
5. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, No. 14 of 2013, Acts of Parliament, 2013 (India). ↩︎
6. ↩︎