legal aspects of safety
TRANSCRIPT
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LEGAL ASPECTS OF SAFETYUNDER FACTORIES ACT, ESI
ACT AND WORKMENS
COMPENSATION ACT
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THE FACTORIES ACT, 1948
OBJECT : - An Act to consolidate and amend the law
regulating labour in factories.
COVERAGE:- Whole of India.
COMMENCEMENT:- w.e.f. 01.04.1949.
PURPOSE:- It is meant to provide protection to the workers from
exploitation by business establishment.
- It provides for improvement of working conditions with in
the factory premises.
- It is meant to provide for welfare of the workers and protectionfrom unhygienic working condition.
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IMPORTANT DEFINITIONS
ADULT PERSON - Who has completed his 18
th
year of age.
ADOLESCENT - Who has completed his 15th year of age but has not
completed his 18th year.
CHILD - Who has not completed his 15th
year of age
HAZARDOUS PROCESS - Any process which can cause material impairment
to the health of the persons engaged or which can
in result in the pollution of the generalenvironment.
MACHINERY- Includes prime movers, transmission machinery and all other
appliances whereby power is generated, transformed,
transmitted or applied.
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WORKER - Means a person employed-
directly or by or through any agency including a contractor
with or without the knowledge of the principal employer,whether for remuneration or not,
in any manufacturing process,
or in cleaning any part of the machinery
or premises used for a manufacturing process,
or in any other kind of work incidental to,
or connected with, the manufacturing process,or the subject of the manufacturing process
but does not include any member of the armed forces of the
Union.
PRESUMTION AS
TO EMPLOYEMENT- If a person found in a factory at any time exceptduring meals or rest shall be deemed to be in
employment in the factory. (Section 103)
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FACTORY - Means any premises including the precincts thereof
- Whereon ten or more workers are working
- and in any part of which a manufacturing process is being carried
- with the aid of power
- or whereon 20 or workers are working
- and in any part of which a manufacturing process is being carried
- without the aid of power
- but does not include a mine or
- a mobile unit of armed forces of the union, a Railway running shed
- or a Hotel, Restaurant or eating place.
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MANUFACTURING PROCESS - Means any process for
- making, altering, repairing etc. any article or substance
- with a view to its use, sale, transport, delivery or disposal
- or generating, transforming or transmitting power
OCCUPIER - The person who has ultimate control over the affairs of the factory
- appointed to manage the affairs of the factory.
APPOINTMENT OF OCCUPIER
INTERPRETATION The Act is meant for social welfare hence the provisions/definitions can not be interpreted in narrow sense.
GENERAL RULE OF INTERPRETATION OF STATUTES
APPROVAL LICENCING AND REGISTRATION OF FACTORIES
NOTICE BY OCCUPIER At least 15 days before occupying factory
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GENERAL DUTIES OF OCCUPIER
- To ensure heath safety and welfare of workers while at work in factory
- Shall include provision and maintenance of plant and systems of work in the
factory that are safe and without risks to health
- Ensuring safety and absence of risks in use, handling, storage and
transport of articles and substances
- Providing information, instruction, training and supervision to ensure the
health and safety of workers at work
- Maintenance and monitoring of working environment
- Maintenance of places of work in the factory
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POWERS OF FACTORY INSPECTOR
- Entry into the factory
- Examination of premises, plant, machinery, article or substance
- Enquiry into any accident or dangerous occurrence resulting in bodily injury
- Takes statements on the spot or otherwise
- Require the production of documents- Seize or take copies of documents
- Direction to the occupier to keep the premises undisturbed
- Take measurements and photographs
- Direction for dismantling or testing of any article of substance
- Taking possession of any such substance or article- Exercise such other powers as may be prescribed
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SAFETY
- Sections 21 to 41 relates to safety
- Every moving part of a machinery shall be securely fenced by safeguards ofsubstantial construction
- Work on or near machinery in motion
- Employment of young persons on dangerous machines
- Striking gear and devices for cutting off power
- Self-acting machines- Casing of new machinery
- Prohibition of employment of women and children near cotton-openers
- Hoists and lifts
- Lifting machines, chains, ropes and lifting tackles
- Revolving machinery- Pressure plant
- Floors, stairs and means of access
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- Floors, stairs and means of access
- Pits, sumps openings in floors, etc.
- Excessive weights
- Protection of eyes.
- Precautions against dangerous fumes, gases, etc.
- Precautions regarding the use of portable electric light
- Explosive or inflammable dust, gas, etc.
- Precautions in case of fire
- Power to require specifications of defective parts or tests of stability
- Safety of buildings and machinery
- Maintenance of buildings
- Safety officer
- Power to make rules to supplement this chapter
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PROVISION RELATING TO HAZARDOUS
PROCESSES
- Constitution of Site Appraisal Committees
- Compulsory disclosure of information by the occupier
- Specific responsibility of the occupier in relation to hazardous processes
- Power of Central Government to appoint Inquiry Committee
- Emergency standards- Permissible limits to exposure of chemical and toxic substances
- Workers participation in safety management
- Right of workers to warn about imminent danger.
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WELFARE
- Washing facilities
- Facilities for storing and drying clothing
- Facilities for sitting
- First aid appliances
- canteens- shelters, rest rooms and lunch rooms
- creches
- Welfare officers
- Power to make rules to supplement this chapter
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WORKING HOURS OF ADULTS
- Weekly hours
- Weekly holidays
- Compensatory holidays
- Daily hours
- Intervals for rest
- Spreadover
- Night shifts- Prohibition of overlapping shifts
- Extra wages for overtive
- Restriction on double employment
- Notice of periods of work for adults
- Register of adult workers
- Hours of work to correspond with notice under section 61 and register under section
62
- Power to make exempting rules
- Power to make exempting orders
- Further restrictions on employment of women
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PENALTIES AND PROCEDURE
GENERAL PENALTY FOR OFFENCES
- Up to 2 years imprisonment or
- fine up to Rs. 1,00,000/- or both
- In case of continuation of contravention after
conviction fine up to Rs. 1,000/- per day
IN CASE OF DEATH OR SERIOUS BODILY INJURY
- fine shall not be less than 25,000/- in case of death
- fine shall not be less than 5,000/- in case of serious bodily injury
- same punishment for contravention of safety provisions (chapter IV)
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SERIOUS BODILY INJURY
- Means any injury involving permanent loss of the use of
- or permanent injury to any limb
- or the permanent loss of or injury to sight or hearing or
- the fracture of any bone
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ENHANCED PENALTY AFTER PREVIOUS
CONVICTION
- imprisonment up to 3 years
- or fine which shall not be less than 10,000/- up to Rs. 2,00,000/- or both
IN CASE OF DEATH OR SERIOUS BODILY INJURY- fine shall not be less than 35,000/- in case of death
- fine shall not be less than 10,000/- in case of serious bodily injury
- same punishment for contravention of safety provisions (chapter IV)
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PENALTY FOR OBSTRUCTING INSPECTOR
- imprisonment up to 6 months- or fine up to Rs.10,000/- or both
PENALTY FOR CONTRAVENTION OF PROVISIONS FOR HAZARDOUS
PROCESSES
FOR NON DISCLOSURE OF INFORMATION
ABSENCE OF EMERGENCY PLAN
ABSENCE OF DETAILED DISASTER CONTROL MEASURES
LACK OF MEASURES FOR HANDLING HAZARDOUS PROCESSES
- Imprisonment up to 7 years and fined up to Rs. 2,00,000/-- in case of continuation fined up to Rs. 5,000/- per day
- in case of continuation of offence beyond 1 year
- imprisonment up to 10 year
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EXEMPTION OF OCCUPIER OR MANAGER
- In case he has used due diligence
- and the other person committed the offence in question without his knowledge,
consent or connivance
COGNIZANCE OF OFFENCES
- Only on complaint by or with previous sanction in writing of an Inspector
- Only Magistrate of First class shall try the offences under this Act
LIMITATION OF PROSECUTIONS
- with in 3 months of the knowledge of offence to the Inspector
- with in 6 months in case of disobeying of written orders
- in case of continuing offence the limitations will be w.e.f. the last
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THE EMPLOYEES STATE
INSURANCE ACT, 1948
OBJECT- An Act to provide for certain benefits to employees in case of
sickness, maternity and employment injury and to make provision for
certain other matters in relation thereto.
APPLICATION - Whole of India
- To all factories
- To employees with monthly wages up to Rs. 15,000/-
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REGISTRATION OF FACTORIES OR OTHER
ESTABLISHMENT
NOTIFICATION OF APPLICATION OF ESI ACT
- The appropriate Govt. will notify in the official gazette the coverage of the
area / establishment under the ESI Act
REGISTRATION
- Factory / establishment to submit declaration in writing to Regional office
with in 15 days of the date of application of the ESI Act
(Form 01 i.e. Employers Registration Form)
- Employer to be responsible for the correctness of the declaration
- ESIC to allot employers code no.
- Employer to furnish annual return (Form 01 A)
- Employer to be responsible for the correctness of the return
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DECLARATIONS
DECLARATION BY EMPLOYEES
- Declaration to be submitted by the employees in Form I
- Employees to fill temporary identification certificate
- Declaration Form to be sent to the ESIC office
- Allotment of insurance no. to the employees by ESIC office
- Family declaration and registration
- Changes in family
- ESIC office to issue identity card
- Smart cards are being issued by ESIC
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PAYMENT OF CONTRIBUTIONS
EMPLOYERS CONTRIBUTION
- To be paid @ 4.75% of the wages
EMPLOYEES CONTRIBUTION
- To be paid @ 1.75% of the wages
PAYMENT OF CONTRIBUTION
- To be paid in the bank authorised by ESIC
- Also payable online
LIABILITY FOR PAYMENT OF CONTRIBUTION
- Principal employer to pay in first instance
- Recovery of contribution from immediate employer
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PAYMENT OF CONTRIBUTIONS
TIME FOR PAYMENT OF
CONTRIBUTIONS
- With in 21 days of the last day of the
contribution period
INTEREST ON LATE PAYMENT OFCONTRIBUTIONS
- Interest to be paid @ 12% per annum
RECOVERY OF INTEREST
- As an arrear of land revenue
DAMAGES
Period of delay Maximum rate ofdamage
< 2 months 5%
2 to 4 months 10%
4 to 6 months 15%
Above 6 months 25%
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IMPORTANT DEFINITIONS
APPROPRIATE GOVERNMENT
- It is Central Govt. in case of establishment under the control of Central Govt.
- It is State Govt. in all other case
EMPLOYEMENT INJURY
- Means a personal injury to an employee caused by accident
- or an occupational disease arising out of and in the course of his employment,
- being an insurable employment,
- whether the accident occurs or the occupational disease is contracted
- within or outside the territorial limits of India
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EMPLOYEE
- Means any person employed for wages in or in connection with the work of afactory or establishment to which this Act applies
- Who is directly employed by the principal employer, on any work of, or
incidental or preliminary to or connected with the work of, the factory or
establishment, whether such work is done by the employee in the factory or
establishment or else where.
- Who is employed by or through an immediate employer, on the premises of
the factory or establishment or under the supervision of the principal
employer or his agent on work which is ordinarily part of the work of the
factory or establishment or which is preliminary to the work carried on inor
incidental to the purpose or the factory or establishment.
- Whose services are temporarily lent or let on hire to the principal employer bythe person with whom the person whose services are so lent or let on hire
has entered into a contract of service.
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PRINCIPAL EMPLOYER
- Means in a factory, the owner or occupier of the factory and includes the
managing agent of such owner or occupier, the legal representative of a
deceased owner or occupier, and where a person has been named as the
manager of the factory under the Factories Act, 1948,( 63 of 1948) the
person so named
- In other establishment any person responsible for the supervision and control
of the establishment.
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SICKNESS
- Condition which requires medical treatment and attendance- and necessitates absence from work on medical grounds
TEMPORARY DISABLEMENT
- Means a condition resulting from an employment injury
- which requires medical treatment
- and renders an employee temporarily incapable of doing work
WAGES
- Means all remuneration paid or payable in cash to an employee
- includes payment for leave, lock-out, strike, lay- off which is not illegal
- but does not include contribution of employer to pension fund, PF
- traveling allowance, gratuity
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ACCIDENTS
ACCIDENTS- Employer to maintain accident book
- Report of accident by employer immediately in case of serious injury andwith in 24 hours in other cases
PRESUMPTION AS TO ACCIDENT- Accident shall be presumed to be arising in the course of employment in theabsence of evidence
ACCIDENT IN BREACH OF REGULATION ETC.- Accident shall deemed to arise out of and in the course of employment even
if the person has acted in contravention of any regulation, withoutinstructions
ACCIDENT WHILE TRAVELLING
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BENEFITS
PAYMENTS IN CASE OF SICKNESS
- Sickness to be certified by duly appointed medical practitioner
- or person possessing qualifications and experience as specified by ESIC
- Benefit to be payable at standard daily benefit rate for the period of sickness
which is approximately half of the average pay of the person
MATERNITY BENEFIT
- Periodical payments in case of confinement or miscarriage
- or sickness arising out of pregnancy, confinement, premature birth of child
or miscarriage
- Such women to be certified to be eligible for such payments by an authorityspecified by ESIC
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BENEFITS
DISABLEMENT BENEFITS
- Notice of accident to be given in writing or oral- By the insured person
- Notice not required in case of employment injury caused by occupational
disease
- Payments in case of disablement as a result of employment injury
- Can be claimed
OTHER BENEFITS
- Payments to dependants of deceased
- Medical treatment
- Funeral expenses
CLAIM
- An insured person under the ESI Act can not claim compensation under the
Workmens Compensation Act
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DISPUTES AND CLAIMS
EMPLOYEES INSURANCE COURT
- To be constituted by State Govt. by notification in official gazette
- Judge to have at least five years experience
MATTERS TO BE DECIDED BY COURT
- Whether a person is an employee
- Whether he is liable to pay employees contribution
- The rate of wages
- The rate of contribution payable
- As to who is principal employer- Right of any person to any benefit and as to be amount and duration
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DISPUTES AND CLAIMS
START OF PROCEEDINGS
- By application to the court
REFERENCE TO HIGH COURT
- A question of law can be referred to the High Court for decision by the court
APPEAL
- Lies to the High Court
- Only if it involves a substantial question of law
- Period of limitation is 60 days
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PENALTIES
PUNISHMENT FOR FALSE STATEMENT
- Imprisonment upto 6 months
- Or fine upto Rs. 2,000/- or both
PUNISHMENT FOR FAILURE TO PAY CONTRIBUTIONS
- Imprisonment upto 3 years in case of failure to pay contributions
- Imprisonment for not less than 1 year in case of failure to pay contributions
which have deducted by him from the employees wages and shall also be
liable for fine upto Rs. 10,000/-
- Imprisonment not less than 6 months and fine upto Rs. 5,000/- in any other
case
ENHANCED PUNISHMENT AFTER PREVIOUS CONVICTION
- Imprisonment upto 5 years and fine upto Rs. 25,000/-
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EXEMPTION
- By notification in the official gazette by the appropriate Govt.
- On year to year basis
- Exemption of persons or class of persons
- Corporation to make representation before grant of exemption
- Exemption can be granted if the employees of the establishments are in
receipt of benefits similar or superior to the benefits provided under this Act
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WORKMENS COMPENSATION ACT, 1923
OBJECT
- An Act to provide for the payment by certain classes of employers to their
workmen of compensation for injury by accident
APPLICATION
- Extends to the whole of India
- W.e.f. 01.07.1924
INTERPRETATION
- To be done keeping in view the background and purpose of the Act
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DEFINITIONS
MINOR
- Who has not attained the age 18 years
PARTIAL DISABLEMENTS
- Disablements of temporary nature reducing the earning capacity of the
workmen in the work in which he was engaged at the time of injury- Disablements of permanent nature reducing the earning capacity of the
workmen in every work which he was capable of doing at the time of injury
PERMANENT TOTAL DISABLEMENTS
- If he is unable to perform the work which he was performing at the time of
the accident
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LIBILITY OF EMPLOYER FOR COMPENSATION
- For personal injury to the workmen by accident in the course of his employment
- Not liable to pay compensation
- If the injury does not result in the total or partial disablement for a period
exceeding 3 days
- In respect of injury not resulting in death or permanent total disablement caused
by an accident because of workmen being under the influence of drink
- or drugs or willful disobedience or willful removal of safety guard or other device
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AMOUNT OF COMPENSATION
- In case of death an amount equal to 50% of the monthly wages multiplied
by the relevant factor or Rs. 50,000/- which ever is more
- In case of permanent total disablement an amount equal to 60% of the
monthly wages multiplied by the relevant factor or Rs. 60,000/- which everis more
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PROCEDURE
APPLICATIONS
- Application to be filed by the workmen before the Commissioner appointed
by the State Govt.
PRODUCTION OF DOCUMENTS
- To be submitted along with the application
EXAMINATION OF APPLICANT
- Commissioner may examine the applicant on oath
SUMMARY DISMISSAL OF APPLICATION
- Application can be dismissed in case it is found that there are no sufficient
grounds to proceed further.
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PROCEDURE
PRELIMINARY INQUIRY INTO APPLICATION
- Applicant to produce evidence in support of his application
- Application can be dismissed after inquiry in case there is no case for the
relief claimed
NOTICE TO OPPOSITE PARTY
APPEARANCE AND EXAMINATION OF OPPOSITE PARTY
FRAMING OF ISSUES
JUDGMENT
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PROCEDURE
REVIEW
- Commissioner has no power of review his own orders
SUMMONING OF WITNESSES
EXEMPTION FROM PAYMENT OF COSTS