MAHARASHTRA NATIONAL LAW UNIVERSITY MUMBAI
TERM PROJECT FULLFILMENT OF THE
ASSESSMENT IN THE SUBJECT OF LABOUR LAW-II
“OLD RIGHTS IN NEW DIMENSIONS: ENSURING LABOUR RIGHTS
FOR DISTANCE EMPLOYMENTS”
Submitted to: Prof. Abhijit More
Submitted by: Saket Pathak
Enrolment no.: 2019124
Section: B
Submitted on: October 15th, 2022.
B.A., LL.B. (Hons.) Seventh Semester, Fourth Year
Contents
1. Introduction 3
2. Constitutional Mandate For Ensuring Labour Welfare and Healthy Working Conditons 4
3. Premises Centric Nature of Labour Laws 5
4. Need for Reforms 7
a) Requirement for a Right to Disconnect Regarding Legislation 7
b) Laws Concerning Occupational Safety, Including the Necessity to Recognize New
Varieties of Occupational Diseases. 9
5. Conclusion 12
1. INTRODUCTION
This article makes a case against premises-based labour regulations for employers while
highlighting issues with them. The working conditions at an establishment are governed by
Indian labour laws, which also govern the interaction between employers and employees.
Given that India is a socialist country, 1 it is the responsibility of the state to safeguard the
health, safety, and welfare of its labour force. Through the use of an activist approach, the
Indian judiciary has already linked a number of labour rights with the fundamental rights
protected by the Indian Constitution.2 However, the laws governing labour welfare are
restrictive and provincial because they do not protect employees outside the four walls of the
occupier's property.
The primary goal of Indian law is to control and secure the welfare and safety of employees
when they are on the employer's property (hence, "employers' premises"). This seems logical
given the paucity of instances in the past where employers and employees interacted outside
of the workplace.3 Two major shifts in the Indian economy marked the beginning of
everything altering. First, the transition from an economy driven by manufacturing to one
driven by the service sector; second, the expansion and improvement of information and
communication technology (ICT) in India.
Not only can employers and employees contact outside of the premises of the company, but
in many circumstances, employees work for employers from a location that is quite a distance
away from actual physical premises. In contemporary era where information and
communications technology (ICT) predominates, the purpose of this article is to explain,
mostly via the use of deductive reasoning, that workers have very little protection. This
article will focus on labour rules relating to maximum working hours and laws on
occupational diseases and will argue that there is virtually any protection for employees
working outside employers’ premises under this legislation.
Following this introduction, the article will proceed to analyse the constitutional duty to
ensure the welfare of workers in the second section, will highlight the "premises" centric
nature of labour law in the third section, will analyse laws related to maximum work hours
and safety against occupational diseases, and will argue a case for the right to disconnect and
protection against occupational diseases beyond occupiers premises in the fourth section, and
will attempt to provide a meaningful conclusion in the fifth and final section of the article.
1 Ranbir Singh .
2 M.C. Mehta 193.
3 PUCL 1943; Bandhua Mukti Morcha v. Union of India, (1997) 10 SCC 549.
2. CONSTITUTIONAL MANDATE FOR ENSURING LABOUR WELFARE AND HEALTHY
WORKING CONDITONS
The Indian Constitution, which is a forward-thinking document for reshaping society,
mandates that the government look out for the welfare of its workforce. In accordance with
the Directive Principles of the State Policy, the state is required to implement policy
measures to protect workers' rights. According to Article 39 of the Constitution, the state is
required to develop policies and/or legislation in order to guarantee the health and safety of
workers, as well as the right of men and women to have a means of subsistence. 4 In a similar
vein, Article 41 stipulates that a person is entitled to public help in the event that they are
unemployed, of advanced age, sick or disabled, or experiencing any other form of deserving
poverty.5
However, the component that should be given the most weight in our consideration is Article
42, which requires the state to ensure that workers are subject to fair and humane working
conditions.8 This duty to ensure just working conditions is also imposed by various
conventions on employment safety and health that have been adopted by the International
Labour Organization (hereinafter referred to as the "ILO"). 9 By taking an aggressive stance,
the Supreme Court of India has established an equivalence between the fundamental rights to
life and liberty and the right to have one's work be free from danger.
In the case of Calcutta Electricity Supply Corporation v. Subhas Chandra Bose, the Tenth
Circuit Court of Appeals noted that the right to one's health is guaranteed by the Universal
Declaration of Human Rights (Articles 22-28) as well as the International Covenant on
Economic, Social, and Cultural Rights. Further, it is a Fundamental right to workmen.
According to the constitution, "the promotion and protection of health" is one of the highest
priorities. Health does not mean "absence of disease or infirmity" but a state of complete
physical, mental and social well-being."
In the case of Consumer Education & Research v. Union of India11, a three-judge bench of
the Supreme Court of India discussed the jurisprudence of person-hood, sometimes known as
the philosophy of the right to life as envisioned in Article 21 of the Constitution. According
to the ruling of the Court, the phrase "The phrase "life" that is guaranteed in Article 21 does
not refer to a drudgery-filled existence or a bare-bones animal existence. It has a far broader
definition that includes the right to a means of subsistence, an improved standard of life,
hygienic conditions in the workplace and recreational facilities, and the opportunity for
4..
5...
workmen to rid themselves of illness and physical impairment. The right to life includes the
worker's health as an essential component of that right. Medical facilities, therefore, is a
fundamental and human right to protect his health.
The Kirloskar Brothers Ltd. v. Employees' State Insurance Corporation case provided more
support for this viewpoint.6 In this particular case, the court has decided that the strategy of
liberalisation has led to many economic activities that were once carried out by the state
shifting over to be carried out by private groups. The Supreme Court has ordered that the
laws regarding the safety of workers that are given in Part-IV of the Constitution will also be
imposed on private businesses so as to guarantee the protection of workers' rights in this
predicament.
Thus, it can be said that Indian Constitution has given pivotal importance to working
conditions of labours in India. In India, the law recognises the need to ensure "labour health,"
which encompasses a much broader concept than the simple absence of sicknesses.
3. PREMISES CENTRIC NATURE OF LABOUR LAWS
The new Indian law governing occupational safety and welfare is consolidated under the
Code On Occupational Safety, Health And Working Conditions, 2020. 7 This code, in its
Chapter – III, outlines the responsibilities that fall on businesses, and its Chapter – IV, which
discusses occupational safety and health, outlines the roles that government agencies play and
how they operate. The employee-employer relationship is the sole one that the Code, along
with all other pre-existing regulations, regulates within the fixed four walls of occupiers'
premises.
In accordance with the provisions of subsection (t) of Section 2 of the Code, the term
"establishment" refers to the following: “(1) a mine, a motor transport undertaking, or the
place where dock work is performed; and (ii) any place where any industry, trade, business,
manufacture, or occupation is carried on, including a factory, a newspaper establishment, and
a plantation in which more than ten workers are employed.”
Only establishments are included in the scope of the Act's protection against all of the laws
relating to safety, time hours, and occupational diseases. This term only applies to actual
physical locations that have 10 or more personnel on staff. To further clarify the meaning of
term place or premises reference can be made to judicial rulings before the introduction of the
6 Kirloskar Brothers Ltd. v. Employees' State Insurance Corporation, 1996 SCC (L&S) 533.
7 The Occupational Safety, Health And Working Conditions Code 2020, No. 37 Of 2020, INDIA CODE
(2020),). (Hereinafter “The Code”).
Code. In Saurashtra Salt Manufacturing Co. v. Valu Raja,8 it was determined that occupiers
premises denotes the area owned and managed by the employer where employee works under
the supervision or control of the employer. Though this description seems to embrace all
locations owned or control by employer but in reality all provisions of the Code is restricted
to four walls of employers’ premises. In addition, it is essential to make the observation that,
according to this definition, labour rules can only be enforced in settings that are under the
direct supervision of the employer. Therefore, areas that are not directly connected to
occupants' premises do not fall under the purview of Indian labour regulations.9
The legal system, on the whole, adheres to a more expansive conception of employers'
liability in the event that an employee has an injury or is awarded compensation. For
instance, in the case of Sathybhamha v. Employees State Insurance Corporation, the court
compelled the employer to compensate an injured employee even if the injuries were
sustained while the employee was travelling for her occupation. 16 The term for this concept
is the "Doctrine of Notional Extension," and it refers to the idea that certain incidental acts
that take place outside of the occupier's premises might be governed by Indian labour law.10
Having said that, this doctrine does suffer from two significant drawbacks. To begin, it does
not address the issue of regulating employment that takes place beyond the premises, so it is
only applicable in a restricted number of specific circumstances involving injuries or
accidents. Second, the policy only covers activities that are either incidental to or closely
related with working hours. Thus, this approach can’t be applied to broaden scope of existing
labour law rules outside the employer’s premises. The Code and all of its regulations are
focused on the premises, and they exclusively discuss the connection between an employer
and an employee within the premises. For instance, in Section 6 of the Code, which discusses
the responsibilities of employers, it states that employers have a responsibility to maintain the
health and safety of all employees at "his place." 11 In a similar vein, Section 23 of the Act
requires employers to ensure that their establishments adhere to standard work and
occupational conduct.12 These standards are generally set by state or central Occupational and
Safety Health Advisory Boards. To this day, the authority has only concerned itself with
setting regulations that pertain to the physical environment of the workplace. Not even a
8 (1958) IILLJ 249 SC.
9 Rajjapa v. E.S.I. Corporation, ILR 1992 KAR 284.
10 (1991) ILLJ 247 P H.
11 The Code 2020, § 6.
12 The Code 2020, § 23.
passing mention of working remotely or online has been included in any of the definitions or
regulations.
It is essential to be aware that prolonged sitting postures, such as those required when
working at a computer or sitting in front of a screen for long periods of time, can have a
negative impact on human health. Research has demonstrated that working over such
extended periods of time may lead to a variety of health problems; nevertheless, the law has
not yet acknowledged this loophole, and there is no legislation regarding occupational safety
or diseases resulting from distance employment.
4. NEED FOR REFORMS
The primary difficulty with the premises based labour rules is no protection for employees
working from distant place. This section will examine two different scenarios in order to
provide support for its claim in this regard. In the first portion of this section, the article will
discuss the regulations that govern working hours and will argue that these restrictions are
ineffectual for jobs that are performed at a distance. The second section of this paper will
focus on regulations regarding occupational disorders and will demonstrate gaps in the
already applicable framework.
a) Requirement for a Right to Disconnect Regarding Legislation
The development of information and communication technologies has made it feasible to
maintain employer-employee relationships even when there is no physical interaction. It is
essential for the legal system to acknowledge the progression of society and to initiate the
process of regulating the new patterns of human conduct. One major change which is need of
the hour is to recognise “Right to Disconnect”. After the end of their shift, employees have
the legal right to forget about their employer and move on with their lives. This concept is
known as the "right to disconnect."13 This right was first recognised in France, later many
other countries such as Italy, Spain etc. have adopted it.14
According to Section 25 of the Code, no worker may be employed for more than 48 hours in
a week or more than 9 hours in a day. This provision applies to the country of India. 15
However, this need is only for labour that is done within the premises of the occupants.
Beyond the confines of the premises, there is no such restriction on the number of hours that
13 Anthony Guzman.
14 European Parliamentary Research Service, The Right to Disconnect, EPRS (Last visited: 17th Sep., 2022).
15 The Occupational Safety, Health And Working Conditions Code 2020, § 25.
can be worked. The provision that was ultimately chosen to be included in the Code is
comparable to what was included in prior legislation such as the Factories Act.
A worker cannot be required to put in more than 48 hours of work in a single week, as
stipulated by Section 51 of the Factories Act. It is required that each week contain a holiday
(day off from work). If he is requested to work on a weekly holiday, he should have a full
holiday (day off work) on one of three days immediately or after the customary day of
holiday.16 He is not able to work more than nine hours per day in any capacity. 17 The Act also
included requirements that related to work shifts and rest breaks during the workday. After
five hours of work, employees are entitled to a break of at least a half an hour, as mandated
by Section 55 of the Act.18 The cumulative amount of time spent working, including breaks,
must not exceed 10.5 hours.19 The Act prohibits workers from overlapping their shifts in any
way, shape, or form.20
If a worker puts in more than 9 hours per day or 48 hours per week, they are entitled to
overtime compensation, which is paid at double their regular rate. 21 The overall number of
hours worked, including overtime, should not go beyond sixty in a single week, and the
number of overtime hours worked in a single quarter should not go beyond seventy-five. In
addition to the Factories Act, there were around 16 other pieces of law that had working
hours rules for employees that were essentially identical to those of the Factories Act. All of
these Acts are now being governed by the Code, which will be responsible for ensuring the
health and safety of all areas of the workforce.
As was said in the preceding discussion, the Code only applies to circumstances in which the
employee is performing work in a location that is under the direct supervision of the
employer. Workers in factories and other conventional manufacturing and product making
businesses are the primary focus of Indian law, which is aimed toward protecting their rights.
It is essential to note, however, that under the current economic system, a large number of
employees are employed in service sector industries, many of which provide wages that are
either inadequate or nonexistent.22 In addition, because of advancements in information and
16 The Factories Act 1948, Act 63 of 48, INDIAN CODE, 1948 (India), §51 (Hereinafter “The Factories
Act”)
17 The Factories Act 1948, §54.
18 The Factories Act 1948, §55.
19 The Factories Act 1948, §56.
20 The Factories Act 1948, §61.
21 The Factories Act 1948, §59(1)].
22 Beth Stackpole, Health Hazards for IT Workers, WIRE..
communications technology, it is no longer necessary for an employer to house its staff in a
physical location.
Recent, surveys show that in online or distance employment regular working hours of
employees have seen increased of around 25%. 23 In addition to their regular shifts, employees
frequently receive e-mails from their employers or managers requesting that they put in many
more hours than the actual minimum required by law. Because of the current circumstances,
India should seriously consider establishing the Right to Disconnect. In spite of the fact that a
bill to recognise the right was introduced in the Lower House by an independent member,
there is currently very little serious work being done in this area.24
Taking into consideration the current state of affairs The laws of India need to evolve beyond
their current focus on premises. It is not impossible that the idea of premises may become
obsolete in the not-too-distant future. A significant number of established businesses and new
ventures have already implemented full-time work from home models. Because of this
change in industrial relations, many employees are now more likely to be exposed to
extended working hours and a wide variety of occupational disorders. Employees, whether
they are working in a physical location or through any kind of information and
communications technology (ICT), need to be brought under the protection of labour laws in
order to safeguard their interests and make sure that their workplaces are safe and healthy
places to work.
b) Laws Concerning Occupational Safety, Including the Necessity to Recognize New
Varieties of Occupational Diseases.
According to the World Health Organization (WHO), the term "occupational disease" refers
to “any disease that is largely contracted as a result of an exposure to risk factors emerging
from work activity”.25 “Work-related diseases” have multiple causes, where factors in the
work environment may play a role, together with other risk factors, in the development of
such diseases. India is considered as one of the worst affected countries, when it comes to
occupational diseases. Silicosis, musculoskeletal injuries, coal workers' pneumoconiosis,
chronic obstructive lung illnesses, asbestosis, byssinosis, pesticide poisoning, and noise-
induced hearing loss are the primary occupational diseases and morbidities of concern in
23 Pooja Singh.
24 Shubham Borkar & Priya Rane, Every Thing You Want to Know About Right to disconnect, MONDAQ,
25 WHO, Occupation Diseases, WHO, available at https://www.who.int/occupational_
health/activities/occupational_work_diseases/en/ (last visited: 10 th Sep, 2022)
India.26 Only the mining industry, factories, ports, and construction industry in India have
safety and health legislation that regulate the occupational safety and health (OSH) of
workers at this time. Construction is the only sector in India that does not have safety and
health statutes.27 Prior to the enactment of the Code, there were a total of 16 enactments that
were in place to deal with problems associated with occupational diseases. 28 The Factories
Act of 1948 and the Employees State Insurance Act of 1948 were the two laws that were
considered to be the most significant.
In accordance with the Factories Act, state governments have the authority to formulate rules
and regulations that apply to sectors of the economy that pose a risk of occupational
diseases.29 The list of diseases is notified under the Schedule III of the Factories Act. In the
event that a worker in a plant acquires any ailment that is listed in Schedule III, the physician
who examines the worker is required to send a report to the Chief Inspector. Furthermore,
detailed rules pertaining to working conditions in Factories prone to Occupational diseases
are also framed by state government. For example: In cases where employees are prone to
loss of hearing due to high exposure of industrial noise, the state rules mandates employer to
provide proper equipments such as noise proof headphones, break hours at higher frequency
and paid leaves on account of occupational disease. 30 Though, the Factories Act has been
replied same framework has been adapted under the Code under Section 16 to 22.
Another important frame works when it comes to occupational disease is the Employees State
Insurance Act, 1948. Under this Act, Employees State Insurance Corporation is created
which manages and look after insurance scheme for medical and sickness benefits to
employees.31 As per this Act, employees working in factories or notified shops can become
beneficiary of insurance scheme run by the government. This scheme covers various
occupational injuries as provided under the Schedule of the Act. 32 Furthermore, Section 73 of
the act provides that no employer shall dismiss, discharge or reduce or otherwise punish an
26 Dr. Raj Kumar Shah, Occupational Health in India, NATIONAL CENTER FOR BIOTECHNOLOGY
AND INFORMATION, available at <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6748231/#:~:text=In
%20India%2C%20major%20occupational%20 diseases,loss%2C%20pesticide%20poisoning%20and
th
%20accidents.> (Last visited: 10 Sep., 2022).
27 Amruta Sane Medhi and Mohit Gupta, Legal framework of Occupational Safety and Health, ISID
DISCUSSION NOTES..
28 S.C. Shrivastav, Occupational Safety of Workers in India, 31 Ban.L.J.(2002) 11-42 (2002).
29 Id.
30 The Employee’s State Insurance Act 1948, Act no. 34 of 48, INDIA CODE, 1948 (India) (Hereinafter “The
ESI Act 1948”).
31 The ESI Act 1948, §3.
32 The ESI Act 1948,Schedule III.
employee during the period the employee is in receipt of sickness benefit or maternity
benefit.33
The occupational diseases which are generally covered under the Factories Act and ESI Act
are almost similar. These illnesses are associated with the manufacturing industries, and the
only people who may take preventative measures against them are personnel who work in
occupied buildings. The general reality that even personnel in the services sector who work
on their computers for lengthy working hours are at risk for various occupational ailments has
been neglected by lawmakers up to this point. It has been determined, based on the results of
numerous surveys administered to a wide variety of employees working in various digital
platforms, that conditions affecting eye vision, stress, and lower back pain are prevalent
among these employees. As per one study conducted on 1000 IT workers it is found that
stress and eye disorder are most common occupational disease among employees working on
screens. According to the findings of the study, approximately 41% of employees who work
in front of computer screens experience some form of stress or another. 34 According to the
findings of another survey, eighty percent of employees have reported having some type of
eye-related sickness.35
Musculoskeletal disorders, such as lower back issue, straight spine syndrome, or neck and
shoulder trouble, are another prominent type of occupational disorder. These problems can
manifest themselves in a variety of ways. According to surveys, the most prevalent muscular-
skeletal condition experienced by employees working long hours in front of computer screens
is issues and injuries related to the lower back. 36 Workers in businesses related to information
technology have also commonly reported experiencing injuries and difficulties in the neck.
According to a study conducted on employees of BPOs, 23–33 percent of people report
having neck pain, and 7–17 percent had decreased neck movement. 37 Due to diminished neck
muscular strength and restricted movement, chronic neck pain is related with a larger
activation of accessory neck muscles during repetitive upper limb tasks. This is a further
factor that is connected with chronic neck pain.
33 The ESI Act 1948, §73.
34 Shyam Pingle..
35 Geeta Kumari.
36 Keshvachandra C. & Sudish Rastogi, Working Conditions and Health among Employees at Information
Technology-enabled Services: A Review of Current Evidence, Indian Journal of Medical Science, available at
<https://www.researchgate.net/journal/0019-5359_Indian_Journal_of_Medical_Sciences> ((Last visited: 17th
Sep., 2022).
37 Jasmine M. & Vinodh Gana, Healthy workplace with ergonomics among software engineers: a review, 6
(10) International Journal of Community Medicine and Public Health 4605 (2018).
Therefore, there is a wealth of evidence to suggest that workers who are employed in service
industries or producing units that are located away from premises are more likely to contract
a variety of occupational diseases. Nevertheless, our legal system does not acknowledge this
reality to this day. Despite the fact that there has been a significant change in economic
activity and the dynamic between employers and employees, the labour laws have not
adapted to reflect this change. It is possible that an employee working from his home may fall
prey to any occupational dieses due to long working on computer screen. In these
circumstances, there is no mechanism that can protect him or even acknowledge the
predicament he is in.
5. CONCLUSION
In this article, the author argues that there is a pressing need to move away from relationship-
centric labour regulations and instead adopt premises-centric labour laws. According to the
claims made in this article, Indian labour laws only apply to workplaces that are occupied by
a single employer. This is due to the fact that laws were enacted to protect traditional
production and manufacturing units. According to the author, this method has become
obsolete as a result of two primary factors: first, the change toward an economy focused on
the service sector, and second, the expansion of ICT. Because of this, employer-employees
do not need to be physically present in the premises of the occupier in order to carry out their
responsibilities. As a result of this change, the attention that should now be placed is on
regulating the interaction between employers and employees, even if the employee is not
physically present on the premises of the employer.
To strengthen its argument this article has analysed problems related to working hours and
occupational diseases. By analysing the laws on working hours and occupational diseases the
article has concluded that the law only regulates situations in occupier’s premises. Many
employees working from their houses are forced to work for long hours. Furthermore, long
screening and sitting hours have made them prone to new type of occupational diseases.
However, there is no structure to protect them, as the Code on occupation safety is focused on
the premises and doesn't have much to provide in terms of protection.
This article concludes that there is need to shift focus from old parochial view to new
dynamic one. A growing number of companies are instituting policies that allow employees
to permanently work from home or from a remote location. In a circumstance like this, the
laws governing labour need to be adaptable and should make room for various configurations
of the relationship between employers and employees.
