SAFETY ACTS – Indian & International perspective

- CS Saibal C.Pal Advocate

Safety ActsSafety, occupational safety & Indian laws

1. ‘Safety’ is a state of being safe and protected from danger or harm. (Oxford Dictionary)

2. Our focus on the discussion is occupational safety vis a vis business.

3. Occupational safety in business enjoys support of Government through legislations.

4. Business scenario has undergone change.5. From home to factory and again to home is the scenario of

business.6. Factories is not only the face of industry to-day.7. Industry is wide term and is an all inclusive concept.8. It is no more restricted to the promoters / entrepreneurs

employees and customers.

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1. Today number of stakeholders in industry have increased and industry thinking is focused on all inclusive growth.

2. Sensex & Nifty is the face of the Indian capital market while NASDAQ is that of USA, FTAC 100 is of UK and NIKKEI 225 is that of Japan. A number of SENSEX/NIFTY companies do not have factories and are dependent on work stations (applicable to IT sector) , branches for banks and financial services companies are the main thrust areas for generation of revenue.

3. Earlier industry meant manufacture but today they are categorised on the basis of operation i.e. Manufacturing, banking, Information Technology, Realty, FMCG, Telecommunication ,Entertainment ,Media, Hospitality , Pharma and health among others.

4. Safety in the aforesaid industries is not restricted to occupation only.

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5. Concept of all inclusiveness growth has fuelled thought on safety of all stakeholders. Safety has to be thought not only at the work place but from the time one steps out of home.6. Legislations have been passed by the Government. Additionaly several NGOs and NPOs have come forward to ensure road safety through voluntory particiapation for padestrians and vehicle users. So there are the trafifc rules. 7. Importance of road safety is such that it has been included in the list of eligibility for CSR funding by companies . ( MCA, circular no. 21/2014 dated. 18/06/2014 ).

Safety ActsSAFETY AND THE FACTORIES ACT,1948

However, safety in factories is the first reference point when we speak of safety in organisations.. The Factories Act, 1934 was enacted to make safety compulsory in factories . The Factories Act,1948 replaced the 1934 Act. Several amendments to the Act have come but the frame work remains unaltered.

Provisions for safety in the Factories Act, 1948 may be summarized as follows:

In West Bengal, The Factories Act, 1948(`ACT’) is to be read with the: (i) W.B.Factories (Welfare Officers) Rules,1971, (ii) WB Factories (Safety Officers) Rules 1978, and W.B. Factories (Exemption) Rules, 1982. The ACT is an act to consolidate and amend the law regulating labour in factories.

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The ACT was passed on 23/9/48 and amended 8 times. The Factories (Amendment) Act, 1987 was the last major amendment which was a result of the Bhopal Gas Tragedy in 1984.The provisions of the Act was inadequate to combat the severity of the disaster. For uniformity the state of West Bengal amended the rules with respect to `hazardous process’ in factories in 1991. States have the power to amend ,notify rules under S 112 of the Factories Act.

Safety is dealt in Chapter IV of the Act. Ss 21 to 41 deal with safety at work place/ factory. Factories having work force of 1000 or more are employed must appoint a Safety Officer.

S 21 deals with fencing of machinery. Rules are framed under the West Bengal Factories Rules,1958 under Chapter IV regarding safety precautions prescribed under ss (2) of S 21 of the Act. R 47 lays down safety precautions under Schedule I for Jute and Textile products

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Schedule II deals with textile machinery – except used in jute textiles.

Schedule III deals with Wood-working Machinery. Schedule IV deals with Rubber Mills Schedule V deals with Power Process Schedule VI deals with Shear, Slitters and Guillotine

Machines Schedule VII deals with Centrifugal Machines. Rules framed under S 41 Rule 48 deals with Buildings and Structures. Rule 49 deals with Examination of eye-sight of certain

workers. Rule 49A deals with Railways in factories. Rule 49B deals with Ovens ad driers . Rule 49C deals with Reaction Vessels and kettles.

Safety Acts Rule 50 deals with Machinery and Plant. Rule 50 A deals with Precautions against electrical hazards. Rule 51 Methods of work. Rules prescribed under S 41. Rule 51A deals with Fragile Roofs. Rule 52 deals with Stacking and storing of materials etc. Rule prescribed under ss (1) of S 22 . Rule 53 deals with Work on or near machinery in motion. Rule prescribed under ss (2) of S 23 . Rule 54A deals with Employment of young persons on

dangerous .machines. Rule prescribed under S 29(2) machines, chains, ropes and

lifting tackles. Rule 55 Lifting machines, chains,ropes and lifting tackles.

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Rule prescribed under R 56 and 56A under ss (2) and (3) of S 31.

Rule 56 prescribes rule for Vessel and Plant. Rule 56A prescribes rule for Water-sealed gasholder. Rule prescribed under ss (2) of S 34 Rule 57 prescribes rules for Excessive Weights. Rule 58 prescribes rules for Protection of eyes. Rule prescribed under ss (6) of S 36 Rule 59 prescribes rules for Minimum demensions of

manholes. Rule prescribed under ss (5) of S 37 . R 60 prescribes exemptions. Rules prescribed under ss (3) of Ss 38 and 41. Rule 61 prescribes for fire.

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Rule 62 prescribes for First-aid,fire fighting arrangements. Chapter IV A dealing with hazardous processes and S 41A

(1) has prescribed the following rules: Rule 63 A deals with Site Appraisal Committee. Rules frame under Ss 7A(3), 41B (2) . 63B deals with Health and Safety Policy. Rule prescribed under S 41 and 41 (G) . R 63C deals with Safety Committee. Rule prescribed under S 41B R 63D deals with Collection, development and

dissemination of information R 63 E deals with Disclosure of information to workers R 63 F deals with Disclosure of information to the Chief

Inspector

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R 63G deals with Information on industrial wastes. R 63H deals with Review of the information to workers etc. R 63I deals with Confidentiality of information Rule prescribed under S 41B,41C R 63J deals with . Medical Examination R 63H deals with Review of the information furnished to

workers etc., Rule under S 41B,41C R 63K deals with Occupational Health Centres. Rule prescribed under S 41C. R 63 L Ambulance Van. R 63 M Decontamination facilities Rule prescribed under S 112 R 63 P prescribes rules in respect of Issue of Guidelines.

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R 63I deals with Confidentiality of information . S 22 deals with work on or near machinery in motion. S 23 deals with employment of young persons on

dangerous machines. S 24 deals with striking gear and devices for cutting off

power. S 25 deals with self acting machines. S 26 deals with casing of new machinery. S 27 deals with prohibition of employment of women and

children near cotton openers. S 28 deals with hoists and lifts. S 29 deals with lifting machines, chains, ropes and lifting of

tackes. S 30 deals with revolving machinery. S 31 deals with pressure plant

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S 32 deals with floors, stairs and means of access. S 33 deals with pits,pumps,opening in floors etc. S 34 deals with excessive weights S 35 deals with protection of eyes. S 36 deals with precaution against dangerous fumes, gases

etc. S 36A deals with precautions regarding the use of portable

electrical light. S 37 deals with explosive or inflammable dust, gas etc. S 38 deals with protection in respect of fire. S 39 deals with power to require specifications of defective

parts or tests of stability. S 40 deals with safety of buildings and machinery. S 40A deals with maintenance of buildings S 40B deals with appointment of Safety Officers.

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S 41 deals with power to make rules to supplement the chapter

With effect from 1/6/88 Chapter IVA was inserted Provisions relating to Hazardous Processes containing the following sections :

S 41A . Constitution of Site Appraisal Committees S 41B Compulsory disclosure of information by the

occupier. S 41 C Specific responsibility of the occupier inrelation to

hazardous processes. S 41 D. Power of central Government to appoint Inquiry

Committee . S 41 E Emergency Standards S 41 F Permissible limits of exposure of chemical and toxic

substances.

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S 41 G Workers’ participation in safety management. S 41 H Right to workers to warn about imminent danger.

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Indian Environmental Legislations

Prime Minister Indira Gandhi delivered a major speech at the UN Conference on hueeman environment held in Stockholm in June, 1973

India began enacting environmental laws thereafter. Initially such laws were few.

The Bhopal gas tragedy of 1984 changed the situation. Need to conserve environment and protect people was the

need of the hour. In 1990’s India passed many laws covering new areas such

as hazardous waste ,vehicular emissions, noise, transportation of toxic chemicals and environmental assessment.

The laws included provisions such as public hearings, citizen’s right to information, dead line for technology changes (e.g), workers’ participation and penalties on higher management of companies.

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Enforcing agencies (EG), Pollution Control Board received greater powers.

Acts enacted: 1. Environment (Protection) Act, 19862. Hazardous Waste Rules (1989), Biomedical Waste Rule

(1998)3. Recycled Plastic Manufacture and Usage Rules, 19994. Ozone depleting substances rules, 20005. Air (Prevention and Control of Pollution) Act, 19816. Water (Prevention and Control of Pollution) Act, 19747. Bharat Standard for Vehicular Emissions8. Environmental Impact Assessment by Ministry of

Environment and Forests mandatory from 1994

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Environmental Impact Assessment (EIA) is a systematic process to identity, predict, and evaluate environmental effects of proposed actions and projects.In India, an amended EIA notification was issued in 2006. EIA is required for 30 types of projects and consists of four stages including public consultation.The Bharat Vehicle Emissions norms are being progressively enforced in India.Contribution of Mr M. C. Mehta, Advocate of Supreme Court single handedly fought for environment protection. M.C.Mehta Environmental Foundation for Protection of Environment obtained more than 40 landmark judgments and numerous oreders from Supreme Court on polluters. Bantala leather complex is the result of Mr Mehta’s single handed fignt against pollution of the Ganges.

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3.SAFETY AND REALTY BASED SECTORS Rules framed : Fire Protection & Safety Requirements for Assembly,

Institutional, Educational (more than two storied and where built-up area exceeds 1000 sq. m), Business ( where plot area exceeds 500 sq.m) mercantile (where aggregate covered area rage, exceeds 750 sq.m) hotel, hospital, nursing homes, underground complexes, industrial storage, meeting/banquet halls, hazardous occupancies. Safety measures in sub stations have been separately spelt out in the rules.

SAFETY AND INFORMATION TECHNOLOGY SECTOR With globalization and advancement through out,

countries formed platforms to modernize the laws to bring uniformity world over. With the emergence of information technology and information

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Technology Enabled Industries Model Code of Conduct was evolved for safety of the industry and stakeholders.

The information Technology Act, 2000 was made effective in India from 17/10/2000. The act provides legal recognition to transactions carried out by means of electronic communication, commonly referred to as “ electronic commerce” involving use of alternatives to paper-based methods of communication and storage of information, to facilitate electronic filing of documents with Government agencies and further amend the IPC Act,1860, the Indian Evidence Act, 1872, the Banker’s Book of Evidence Act, 1891 and the RBI Act, 1934 and for matters connected therewith or incidental thereto. The acts have been amended and are in force.

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Computers are the back bone of all work. S 43(a) to (h) of the IT Act,2000 includes provisions to protect computers. Unauthorised use of computers is a crime. Ss 65 to 74 of the Act deals with various offences. Contravention of the Act is referred to as a cyber crime and are considered cognizable and non-cognizable offences.

SAFETY AND INTELLECTUAL PROPERTY . Industry gradually come to depend on intellectual property,

intellectual property rights . Stakeholders found that it was necessary to be protected through safety provisions in the laws. Laws on intellectual property were amended. The laws are summarized as under;

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The Trade Mark Act, 1999 – Act to amend and consolidate the law relating to trade marks, provide for registration and better protection of trade marks for goods and services and for prevention of use of fraudulent marks. Amended Act came into effect from 15/9/2003.

The Patent Act, 1970 – Act to amend and consolidate the law relating to patents .

The Copyright Act, 1957- Act to amend and consolidate the law relating to copyright.

The Designs, Act, 2000 – Act to consolidate and amend the law relating to protection of designs.

The Geographical Indications of Goods (Registrations and Protection ) Act 1999. - Act to provide for the regulation and better protection of geographical indications relating to goods.

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The Protection of Plant Varieties And Farmers’ Rights Rights Act, 2001.- Act to provide for the establishment of an effective system for protection of plant varieties, rights of farmers and plant breeders and encourage the development of new varieties of plants.

The Semiconductor Integrated . Circuits Layout- Design Act, 2000.- Act to provide for the protection of semiconductor integrated circuits layout-designs and for matters connected therewith or incidental thereto.

The Biological Diversity Act, 2002.- Act to provide for conservation of Biological Diversity, sustainable use of its components and fair and equitable sharing of the benefits arising out of the use of biological resources., knowledge and for matters connected therewith or incidental thereto.

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The above Acts provide safety for stakeholders. Unless safety provisions included in the Acts are imposed strictly the stakeholders are bound to suffer bringing untold misery. Take the instance of pharma industry, if patented formulas are not protected consumers would have to face misery as spurious drug manufacturers would enter the market and cause harm to the health of the society at large.

Tagore’s songs would not survive had not Viswa Bharati protected with the help of The Copyright Act,1957.

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SAFETY AND GENDER - SHWP With the increase of women work force in industry there have been instances which have compelled Government to enact an act applicable to organisations to ensure safety for women at work place. The Act, namely, the Sexual Harassment of Woman at Work Place (Prevention Prohibition and Redressal ) Act, 2013 came into effect from 19/12/2013. The act includes provisions on protection against sexual harassment of women at work place and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto.

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Preamble to the Act reads, whereas sexual harassment in work place was in the increase which resulted in violation of the fundamental rights of a women to equality under article 14 and 15 of the Constitution of India and her right to life and to live with dignity under article 21 of the Constitution and right to practice any profession or to carry on any occupation trade or business which includes a right to a safe environment free from sexual harassment.

The act provides for appointment of Internal Complaints Committee under a Presiding Officer in organisations for protection of women work force.The committee shall have two members from amongst the work force, one member from non- governmental organisations committed to the cause of women. Not less than one half of the members of the committee shall be women.

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SAFETY AND BANKING SECTOR. Banking is an international industry and is a significant

player in the economy of the country. A strong economy has a sound banking system. To ensure this Banks thought it necessary to ensure safety to its depositors by seeing that its net worth is not eroded due to non- performing assets (NPAs). Hence the Government passed the Securitization & Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 with Security Interest (Enforcement) Rules 2002 w.e.f. 21/06/2002. Commonly the Act is referred to as the SARFAESI ACT. The preamble reads that it is an act to regulate securitisation and reconstruction of financial assets and enforcement of security interest and for matters connected

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therewith or incidental thereto. Through the proper application of the Act, banks are expected to restrict NPAs so that the depositors’ interest is protected and the economy is not allowed to suffer. Even after passing of the Act, NPAs continue to plague the PSU Banks. In recent times SBI and UBI share prices were hit due to increase in NPA provisioning. RBI is the regulatory authority of Banks and its policies ensure the safety of interest of the stakeholders in the banking industry.SAFETY AND CAPITAL MARKETIn the early 90s the Indian capital market was shaken with the Harshad Mehta scam and this caused the Government to initiate an ordinance and The Securities Exchange Board of India Act,1992 was promulgated through an Ordinance dated 20/2/1992. The SEBI Act was enforced to protect the

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capital market and the investors who had to incur huge losses due to practices being followed. The Act was enacted to save the capital market through regulations meant for the participants. Preamble to the Act reads,, ` to protect the interest of

investors in securities and to promote the development of, and to regulate, the securities market and the matters connected therewith or incidental thereto.’, SEBI has powers to announce regulations and in the interest of the stakeholders more than 50 regulations have been announced. Few of the prominent regulations in operation are:

(i), SEBI (Substantial Acquisition of Shares and Take Overs) Regulations, 2011 which first came into force in 1994. The regulation was announced to control take overs and M & A activity for listed companies..

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(ii) SEBI(Stock Broker & Sub-Brokers) Regulation, 1992 notified to regulate activities of Brokers and Sub-Brokers operating in the stock market. (iii) SEBI (Prohibition of Insider Trading ) Regulations,1992 came into w.e.f 20/2/2002 to check insider trading in listed securities in the interest of the capital market. Insider trading convictions have been noticed in the US but India is yet to experience such major issues though an Indian is convicted in an insider trading case in US and the conviction for two years has commenced .

Safety ActsFood and Safety

The Food Safety and Standards Act, 2006 with several rules were passed. The object of the Act is to consolidate the laws relating to food and establish the Food Safety and Standards Authority of India for laying down science based standards for articles of food and regulate manufacture, storage, distribution, sale and import , ensure availability of safe and wholesome food for human consumption and for matters connected therewith or incidental thereto.

1. The Food Safety and Standards Rules, 20112. The Food Safety and Standards (Licensing and Registration

of Food Business) Regulations, 20113. The Food Safety and Safety Standards (Packaging and

Labelling) Regulations, 20114. The Food Safety and Standards (Food Products Standards

and Food Additives) Regulations, 20115. The Food Safety and Standards (Contaminants, Toxins and

Residues) Regulations, 2011

International Legal frameworkUK & Other country laws

In 1883, HM Factory Inspectorate was formed in the United Kingdom to inspect factories and ensure prevention of injury to child textile workers.

In 1840 a Royal Commission published its findings on the state of conditions for the workers of the mining industry. The commission sparked public outrage which resulted in the Mines Act of 1842.

The act set up an inspectorate for mines and collieries which resulted in many prosecutions and safety improvements by 1850.

Otto von Bismarck inaugurated the first social insurance legislation in 1883 and the first worker’s compensation law in 1884 – the first of their kind in the Western world. Similar acts followed in other countries, partly in response to labor unrest

The Corporate Manslaughter and Corporate Homicide Act, 2007 came into force for prosecuting companies failing to take measures in health and safety at work place.

Safety ActsUS Law

The Law Enforcement Officers Safety Act, 2004 Maryland Firearm Safety Act of 2013These are some to the laws passed in US for protection of the people in the country.

Other Country LawThe General Product Safety Directive (GPSD) aims at ensuring that only safety consumer products are sold in the EU.

China Food Safety LawFood Safety Law was adopted in 2009.

Conclusion

Advancement of business is dependent on technology. This has caused several legislations on safety to be passed. While enactment of laws is significant, implementation of the same is more important to be safe at work place.