University of Petroleum and Energy Studies Dehradun
College of Legal Studies
Labour Law - II
Project
Analysis of The Factories Act, 1948: Is there a need for Reform ?
Submitted To:
Submitted By:
Priya Mishra
Gaurav Yadu
Asst. Professor
B.A. LL.B
COLS
2010-2015
500012435
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Table of Contents Overview of the Factories Act
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Changes and amendments
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Lacunas and Suggestions
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Conclusion
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Overview of the Factories Act History of the Legislation The first law which sought to improve the conditions of labour and the regulations related to labour was the Factories Act, 1881. It was passed to improve working conditions of labour and their working hours. It was applicable to all establishments that employed 100 or more workers and used power. A committee which had been appointed in 1875 to inquire into the working conditions of factories in India had favoured the introduction of legal restrictions in the form of factory laws.
Finally in 1881, under Lord Ripon’s tenure as the Viceroy and Governor – General of India, the Factories Act 1881 was passed by the British Parliament based on the recommendations of the Committee. The legislation was the first aid for the problem of workers employed in the industrial establishments in India during that time. It limited endless working hours, stipulated endless working hours for the workers to be employed and provided for safeguards in places for the conditions of the workers in factories. It was designed to protect children and provide health and safety measures of the workers. The act dealt with powers of the owners of establishments, regulated the employment of children and fencing of machinery. It also imposed the duty of notifying accidents to the government and owners. It also provided that local governments to make rules for carrying out provisions of the act. What it did not look into was regulation of adult labour, male or female and the health and safety provisions of workers. Except for the fencing of machinery and notice of accidents, it did not impose any obligation on mill owners for the protection of workers. Bipan Chandra says that the primary problem that the Act tried to deal with was that of child labour. It fixed the minimum age of employment of children at seven years. Children between the ages of seven and twelve years were not to work longer than nine hours during a day and had to compulsorily be given an hour of rest each day exclusive of these nine hours. Furthermore, 1 four holidays were mandated in one month. The act was applicable only to factories which used mechanical power and employed 100 or more persons. It excluded workers of the indigo factories and tea and coffee plantations from its ambit. The working hours remained unregulated. Overall the legislation was quite rudimentary and half hearted. 1
Bipan Chandra, in The Rise and Growth of Economic Nationalism in India
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In 1882, the Government of Bombay invited Meade King, an English Factory Inspector, to investigate the implementation and working of the Act in Bombay. In his capacity as an inspector appointed by the Crown, he was to investigate factories and prevailing working conditions, the wages paid, and the operation and functioning of factories. He found that several grave abuses were still prevalent, and declared that the law was inadequate. He also made a series of proposals to remedy the situation, but nothing came out of his report immediately. Later, on May 23, 1884, the Government of Bombay appointed a commission to study Mr. King’s report, and to see how feasible his sug gestions were. It had four members who were representatives of the employers and other governmental members. They recommended the amendment of the Act. Among the proposals suggested were that the working hours of children be limited to 9.5 hours and of women to 11.5 hours. They also suggested the grant of four monthly holidays and the raising of the minimum and maximum age of children to nine and seventeen years, respectively. This report was then forwarded to the Government of India, which however, was not convinced that the situation warranted an 2 amendment. After many protests and disagreement with the prevailing legislation, The Factories (Amendment) Act 1891 was passed by the British Parliament in 1891 which was much more beneficial than the previous legislation. The law applied to those factories which employed 50 or more workers employed for 120 or days in a year and used power. Working hours for women were fixed to eleven hours and they were not allowed to work during night hours, except in Bengal where they were permitted to work during night shifts. The minimum age of children working in factories was raised to nine and their working hours were reduced to seven per day. Autonomy was given to the local authorities to set up sanitary and hygiene standards from time to time according to the situation in that time. The Act was amended again from time to time. An amending act was enacted in 1911 which was further amended in 1919 in accordance with the provisions of the International Labour Organisation on hours of work. It was amended twice in 1923 and 1926. The act was thoroughly revised and re enacted in 1934 on the recommendations by the Royal Commission of Labour set up in 1929.
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http://www.mylaw.net/Article/The_first_labour_statute/#.U0n46KiSxGQ by Kirthi Jayakumar.
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The Present Legislation In the year 1948, the Factories Act 1934 was revised and its scope was made wider to cover the welfare, health, cleanliness, overtime payments and similar measures. It was to ensure proper, safe and healthy working conditions so that workers may devote their time and labour in the working process of the factory without being afraid of bodily strains and fear of accidents. This act was regularly amended according to the circumstances till 1976.
By this time many chemical factories involving hazardous and toxic substances were established which brought more problem of health and safety. By the time government could react to the changing situations and developments the world’s biggest industrial disaster, The Bhopal Gas Tragedy occurred wiping out thousands of innocent lives and leaving many more incapable. In 1987, Factories Amendment Act was passed as a memorial to the victims of Bhopal. It provides for better facilities for use and handling of hazardous substances. It also calls for appointment of safety officers where more than 1000 persons are employed or where any risk of bodily injury is involved in any manufacturing process or any hazard to health of the persons employed. The act was comprehensively amended in 1987 in respect of hazardous processes with salient features as: 1. 2. 3. 4. 5. 6.
Constitution of site appraisal committee, Compulsory disclosure of information by occupier, Medical examination of workers exposed to haz ardous processes, Laying down permissible limits of exposure of chemical substances, Participation of workers on safety and health management, 3 Right of workers to warn about imminent dangers.
The main object of the present day legislation is to ensure adequate safety measures and promote health and safety of workers of persons employed in any factory. It prevents the workers from being exploited and provides for improvement of working conditions within the factory premises. It covers all factories which employ 10 or more persons in any manufacturing process with the use of power and all such factories which employ 20 or more persons in any manufacturing process without the use of power. It also covers factories notified under Section 85 of the Factories Act by the State governments and Union Territories.
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http://labour.nic.in/upload/uploadfiles/files/Divisions/LC%26ILAS/RajaRam.pdf
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Changes and Amendments 4 Although the Indian Factories Act 1948 has gone through many amendments after it came into force, the major amendments only took place after the Bhopal Gas tragedy which was the biggest industrial disaster in the history of the world. It shocked the world and due to this incident a need for reform in the prevailing legislation was felt urgently. It showed the lacunas and the backwardness of the legislation during that time and the unpreparedness for contingencies like the Bhopal Gas Tragedy. Amendments were made to Sections 2, 4, 9, 13, 16, 18, 19, 23, 25, 28-32, 36-A, 64, 70, 80, 87, 89, 90, 91-A, 92, 94-99, 114, 119 and schedule to the Act. The amended act provided for the omission of Section 100 of the principle act and insertion of new sections 7-A, 7-13, 87-A, 96-A, 104-A, 106-A, 111-A and 118-A, substitution of new sections for Sections 36.and 38, insertion of a new Chapter IV-A, after Chapter IV and the insertion of two new schedules before the schedule to the Principal Act. The newly inserted Sections 7-A, 7-B, 87-A, 96-A, 104-A, 106-A, 111-A and 118-A relate to general duties of the occupier, general duties of manufacturers, etc., regarding articles and substances for use in factories; power to prohibit employment on account of serious hazard; penalty for contravention of the provisions of Sections 41-B, 41-C and 41-H, onus of providing limits of what is practicable, etc; jurisdiction of a court. for entertaining proceedings, and so on, for offence, right of workers, etc.; and restriction on disclosure of information; respectively. The new Sections 36 and 38 relate to precautions against dangerous fumes, gases, etc., and 5 precautions in case of fire, respectively. The new Chapter IV- A inserted after Chapter IV of the principal Act, includes the following provisions relating to hazardous processes: 1. 2. 3. 4. 5. 6.
Constitution of Site Appraisal Committee. Compulsory disclosure of information by the occupier. Specific responsibility of the occupier in relation to hazardous processes Power of Central Government to appoint Inquiry Committees Emergency standards Permissible limits of exposoure of chemical and toxic substances
7. 8.
Workers participation in safety management Right of workers to warn about imminent danger.
'
The new schedules, inserted before the Schedule to the Principal Act, include the list of industries involving hazardous processes and permissible levels of certain chemical substances in the working environment.
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The Factories (Amendment) Act, 1987. The Factories Act,1948.
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All the provisions of the Factories (Amendment) Act, 1987 came into force with effect from 1st December, 1987 except the Schedule containing list of notifiable diseases and Sections 7-13 and 41-F which came into force with effect from 1st June, 1988.
List of Notifiable Diseases (Schedule III)
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1. Lead poisoning including poisoning by any preparation or compound of lead or their sequelae. 2. Lead tetra-ethyl poisoning. 3. Phosphorus poisoning or its sequelae. 4. Mercury poisoning or its sequelae. 5. Manganese poisoning or its sequelae. 6. Arsenic poisoning or its sequelae. 7. Poisoning by nitrous fumes. 8. Carbon bisulphide poisoning. 9. Benzene poisoning, including poisoning by any of its homologues, their nitro or amino derivatives or its sequelae. 10. Chrome ulceration or its sequelae. 11. Anthrax. 12. Silicosis. 13. Poisoning by halogens or halogens derivatives of the hydrocarbons, of the alipathic series. 14. Pathological manifestation due to
(a) redium or other radioactive substances. (b) X-rays.
15. Primary epitheliomatous cancer of the skin. 16. Toxic anaemia.
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The Factories Act, 1948
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17. Toxic jaudice due to poisonous substances. 18. Oil acne or dermatitis due to mineral oils and compounds containing mineral oil base. 19. Byssionosis. 20. Asbestosis. 21. Occupational or contract dermatitis caused b y direct contract with chemical and paints. These are of types, that is, primary irritants and alergic sensitizers. 22. Noise induced hearing loss (exposure to high noise levels). 23. Berryllium poisoning. 24. Carbon monoxide. 25. Coal miners' pnuomoconiosis. 26. Phosgene poisoning. 27. Occupational cancer. 28. Isocynates poisoning. 29. Toxic nephritis.
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Lacunas and Suggestions Despite various amendments to the Factories Act, 1948, the act still stays behind the growing technologies and advancements in the modern society. Some sections are very unclear about the subject matter defined under them. Special provisions for women must be seriously looked into. 7 Some provisions which must be seriously looked in to are :1. Section 22: Work on or near machinery in motion - for the words 'No person below the age of 18 years, or a pregnant women or a person with disabilities' shall be substituted. 2. Section 27: Prohibition of employment of women and children near cotton openers, the following Section will be substituted - 'No person below the age of 18 years, or a pregnant women or a person with disabilities' shall be employed in any part of a factory for pressing cotton in which a cotton-opener is at work. 3. Section 43: Facilities for storing and drying clothing, the following section be substituted - 'The State Government may, in respect of any factory or class or description of factories, make rules requiring the provision therein of suitable and separate places for male and female workers to keep clothings not worn during working hours and to dry we clothing'. 4. Section 46: Canteens - A Proviso after clause ( d ) of sub-section ( 2 ) of Section 46 of the Act as follows - 'Provided that there shall be at least one women (worker) on the Canteen Managing Committee'. 5. Section 47: Shelters, rest rooms and lunch rooms - for the words '.....adequate and suitable shelters or rest-rooms and a suitable lunch room.....' the words '....adequate, suitable and separate shelters or rest-rooms for male and female workers and a suitable lunch room ..' shall be substituted. 6. Section 48: Creches - To substitute sub-section ( 1 ) of Section 48 and clause ( b ) of subsection 3 of Section 48 of the Act as follows - '48 (1) - In every factory wherein more than 30 workers are ordinarily employed, there shall be provided and maintained a suitable room for the use of children under the age of 6 years of such workers'. For clause ( b ) of sub-section ( 3 ) of Section 48 the following clause shall be substituted - '48(3)(b) requiring the provisions in factories to which the section applies of additional facilities for the care of such children, including suitable provisions for facilities for washing and changing their clothing'. 7. Section 66: Further restrictions on employment of women - Deletion of Section 66 of the Factories Act, 1948. 8. Section 87: Substitution of the exiting clause ( b ) of Section 87 as follows - '(b) prohibiting or restricting the employment of persons below the age of 18 years, or a pregnant women or a person with disabilities in the manufacturing process or operation.' 9. Section 105: Existing sub-section ( 1 ) of Section 105 to be substituted as - 'The Court shall take cognizance of an offence under this Act on a complaint made by an inspector or NGO or a trade union or a worker's representative or an individual worker'.
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http://ncw.nic.in/frmReportLaws15.aspx
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10. Section 108 : After sub-section ( 3 ) the following sub-section (4) to Section 108 shall be inserted as - 'Without prejudice to the provisions of sub-section (1), every factory shall set up an information center for women workers, which shall provide them with information regarding the protective measures under the Act and the rules made thereunder'.
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Conclusion Despite several amendments being made to the Factories Act, it cannot be said to be perfectly alright as requirements and situations of the workers as well as the employers are changing at a rapid speed. Also making an amendment in the legislation is a very complex process in a country like ours. Amending any legislation is a time consuming and a long process in our country. Even after such obstacles, the Factories Act still continues to be a fine legislation when it comes to protecting the rights of the employees. The provisions given in the act are almost appropriate to tackle the grievances of the employees and their rights. Similarly the health, safety and welfare provisions given are almost appropriate for the employees. The only thing which must be looked into is the proper application of these provisions in the factories. There must be strict observation for these provisions whether they are being followed or not. The monitoring of the application of these provisions must be improved. Talking about reform, the act has undergone many changes from time to time and as per the demands of the situation. It covers all the topics and subjects which are necessary for the employees. Some provisions especially for the interests of the women workers may be changed which have been specified earlier. As said earlier, situations are changing rapidly and no act can be changed on a day to day basis. For such purposes also the act gives powers to local authorities to apply the act according to the situations prevailing in the local limits.
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