LEARNING SERIES BY SHEKHAR GANAGALURU (ISSUE 4)

LABOUR LAW PRACTICE TEST – 01
1. Is the definition of WORKER in the Occupational Safety, Health, and Working Conditions Code, 2020, the same as the Factories Act, 1948?
a) Yes
b) No

2. As per the Factories Act, 1948 a CASUAL LABOUR employed to perform the work connected with the manufacturing process is a worker.
a) True
b) False

3. Is an HR EXECUTIVE A WORKER under the Factories Act, 1948? 
a) Yes 
b) No

4. The person, who is employed mainly in a MANAGERIAL OR ADMINISTRATIVE CAPACITY is not a worker under the Occupational Safety, Health, and Working Conditions Code, 2020.
a) True
b) False

5. The person, who is employed in a SUPERVISORY CAPACITY drawing a wage exceeding eighteen thousand rupees per month is a worker under the Occupational Safety, Health, and Working Conditions Code, 2020.
a) True
b) False

6. The Occupational Safety, Health, and Working Conditions Code, 2020 is not applicable to the person employed as a MANAGER as he is not a worker.
a) True
b) False

7. The definition of EMPLOYER in the Factories Act, 1948 is very clear and appropriate.
a) True
b) False

8. Who is an EMPLOYER of the factory in accordance with the Occupational Safety, Health, and Working Conditions Code, 2020?
a) MD
b) Manager
c) Occupier
d) Head – HR

Q1. Who is the “WORKER” as per the Factories Act, 1948 and the Occupational Safety, Health, and Working Conditions Code, 2020?
THE FACTORIES ACT, 1948 | SECTION 2 (l)

Important points:

• The expression “employed" referred to here does not necessarily involve the relationship of master and servant (State vs H.B. Namjoshi, AIR 1956, Bombay High Court, 189).
• Casual labour employed to perform the work connected with the manufacturing process is also will be a worker.
• A supervisor and manager are also workers if their work is incidental to or connected with the manufacturing process.
• An HR Executive is also a worker as his/her work is incidental to or connected with the manufacturing process.

THE OCCUPATIONAL SAFETY, HEALTH, AND WORKING CONDITIONS CODE, 2020 | SECTION 2 (zzl)

Important points:

• As per the Factories Act, the Manager is a “Worker” but as per the Occupational Safety, Health, and Working Conditions Code, 2020, the Manager is not a “Worker.”
• As per the Factories Act, the Supervisor irrespective of wage limit is a “Worker” but as per the Occupational Safety, Health, and Working Conditions Code, 2020, the supervisor drawing wage ≤18,000/- per month is a Worker. 

Q2. If the manager is not a worker under the Occupational Safety, Health, and Working Conditions Code, 2020, does this code apply to the manager?
Yes, the code applies to the manager employed in the establishment as per section 2 (t) of the code.
Section 2 (t) of the Code refers to the definition of "employee."

As per the definition, the following persons are not employees:

• Apprentices engaged under the Apprentices Act, 1961.
• Any member of the Armed Forces of the Union.
• The definition of “Employee” w.r.t. “Mines” consists of a few important provisions and suggested to refer the said section for the same.

As per the definition, the following persons are employees:

• Any person employed in a managerial or administrative capacity,
• Any person employed in a supervisory capacity drawing a wage exceeding eighteen thousand rupees per month. 

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Q3. Who is the “employer” as per the Factories Act, 1948 and the Occupational Safety, Health, and Working Conditions Code, 2020?

Apart from the above, the “Contractor” and “legal representative of a deceased employer” are also “employers” as per the code.

Q4. The establishment is functioning under the supervision of the “Manager”, who is the establishment's owner. Is he an “employer” according to the Occupational Safety, Health, and Working Conditions Code, 2020?
In this case, if the Manager has ultimate control over the affairs of the establishment, he will be the “Employer” according to the provisions of section 2 (u) (iii) of the code.

Q5. What are the major differences between “Employer” and “Principal Employer” in accordance with the Occupational Safety, Health, and Working Conditions Code, 2020?

Q6. I am a director with limited control over factory affairs. I think I am the occupier of the factory. Is my understanding correct in accordance with the Occupational Safety, Health, and Working Conditions Code, 2020?
The director with limited control over the factory will not be an Occupier of the factory. As per section 2 (zs) of the code, the occupier means, the person who has ultimate control over the affairs of the factory.

Q7. Can the HR Manager be the Company's Occupier as per the Factories Act, 1948?
The HR Manager cannot be the Company’s Occupier in accordance with the Factories Act, 1948. The Company cannot nominate the Manager, General Manager, or other employees as Occupier of the Factory.

As per the proviso of section 2 (n) (ii), an Occupier of the factory in case of a Company must necessarily be any one of its Directors.  The same proviso is applicable as per the Occupational Safety, Health, and Working Conditions Code, 2020.

Q8. A maximum of 40 contract workers were employed on a day in the last year in a factory.  Does the "Contract Labour" provision of the Occupational Safety, Health, and Working Conditions Code, 2020, apply to this factory?
The "Contract Labour" provisions of the Occupational Safety, Health, and Work Conditions Code, 2020, don't apply to this factory as per section 45 (1) of the code.

Part 1 of Chapter XI talks about the special provisions applicable for Control Labour.
​
As per section 45 (1) of the code, the Contract Labour special provisions applicability is as below:

Q9. What is the proviso in the Occupational Safety, Health, and Working Conditions Code, 2020 with respect to Licensing of Contractors?

Q10. What form and manner of application is applicable for obtaining the contractor license under the Code?
As per the rule 71 of the draft rules of the Occupational Safety, Health, and Working Conditions (Central) Rules, 2020, the following procedure is applicable for obtaining the contractor license: 

• Form: Form – XIII
• Manner: On-line
• Website: Shram Suvidha Portal of the Ministry of Labour and Employment
• Whom: Licensing authority​ 

Learning Series by Shekhar Ganagaluru (Issue 4)
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