Arjun Singh and Vikramaditya Singh
Introduction
The International Court of Justice’s Advisory Opinion on States’ Climate Obligations, issued a few months back, firmly states that states owe a duty to prevent predictable climate harm, as well as to regulate private entities effectively, rendering reliance on non-binding guidelines inadequate to secure constitutional and international commitments. India’s Occupational Safety, Health, and Working Conditions Code, 2020 (‘OSHW code’), and associated instruments primarily employ aspirational rhetoric, decentralised enforcement, and advisory-only measures, resulting in significant gaps in protection, making it entirely counterintuitive for the increased threshold of care expected from the ICJ. It is a shame that the Peace Palace at the Hague is leaning towards sanctioning environmental harms as an internationally wrongful act. In contrast, India lacks a climate-resilient labour-law framework.
“There is no Planet B.” This warning from former UN Secretary General Ban Ki-moon is no longer rhetoric; it is the excruciating reality for millions of outdoor and socially marginalised workers in India, whose lives and livelihoods are increasingly imperilled by climate change. Rising temperatures and incidents of environmental destruction heighten the risk in agriculture, construction, and brick kiln sectors, causing heat stress, chronic kidney ailment, and other preventable illnesses.
In furtherance of its goals, this piece will first examine the urgency of the situation, specifically the rapid nature of climate change and its impact on labour productivity and labour health. Then, upon identifying the statutory lacunae in the OSHW Code 2020, the paper would suggest a headway for a more climate-compliant OSHW code through the incorporation of International environmental law principles into the existing labour-law frameworks. The suggestions made by the paper become increasingly relevant and contemporary, given the latest enforcement of all four labour codes in India, including the OSHW code.
Urgency for a Climate Reseilent OSH Code
Climate change is now recognised as one of the leading health threats of the 21st century. The growing problem of occupational heat stress in India is not a temporary disaster management issue or a minor environmental annoyance. The temperature rise is known to have a detrimental effect on human health. Millions of workers are exposed to predictable and avoidable harm due to this ongoing constitutional tort of regulatory omission. . It is essential to note that environmental damage resulted in the loss of 23 million years of working life between 2000 and 2015, and it is predicted that a shortage of hundreds of millions of jobs will occur by 2030.
According to the “Working on a Warmer Planet” Report by the International Labour Organization, Heat-related work stoppages and dwindling labour capacity will cause India to lose 5.8% of its total working hours by 2030, up from 4.3% in 1995. About 34 million full-time jobs would be lost as a result, and the GDP would likely decline by more than 5%. These are not purely theoretical macroeconomic forecasts; instead, they stem from a series of physiological harms that occur on the shop floor. India has experienced a significant loss of daylight working hours a decline in economic development, and a general decline in GDP growth across major sectors.
Apart from the already mentioned issues pertaining to labour-productivity and sustained employment, substantive health hazards continue to exist due to such statutory lacunae.
The most unmistakable evidence for such hazards lies in the public health crisis of chronic kidney disease of unknown aetiology (CKDu). CKDu is becoming more common among outdoor workers in the brick-kiln industry, according to an expanding corpus of occupational health literature. While the median daily water intake was only one litre, well below the three-litre minimum recommended by occupational medicine guidelines. Field measurements also revealed that Wet Bulb Globe Temperature (WBGT) levels during the summer exceeded the recommended Threshold Limit Values (TLVs), by more than 100%. Basis these lapses, the workmen had 2.9 times the odds of kidney impairment and permanent kidney damage, requiring permanent dialysis. This evidence serves as the corpus delicti, an endemic, irreversible occupational disease that is directly facilitated by the OSH Code, 2020’s failure to adopt quantifiable WBGT metrics and required precautionary measures.
Statutory Lacunae and Enforcement Deficits in the OSH Code, 2020.
The recognition of occupational heat stress as a serious hazard is not new in India. In Occupational Health & Safety v. Union of India, the Supreme Court, acting on a PIL concerning coal-fired thermal power plants, relied on the report of the National Institute of Occupational Health (NIOH). The Court directed the immediate adoption of control measures recommended by NIOH, including strict protocols for exposure to dust, heat, noise, vibration, and radiation. NIOH (an advisory body) reports highlighted risks of heat-related disorders such as heat exhaustion, alongside productivity loss, noise-induced hearing loss, musculoskeletal disorders, and occupational injuries due to vibration.[1] Yet, despite this judicial acknowledgement and the existence of a dedicated scientific body, India has made little sustained progress in addressing heat stress. There remains a severe lack of statutory/regulatory enforcement of concrete guidelines/laws that help fulfil this urgent need of the hour.
Considering such legal inadequacy that exists, it becomes imperative to note that the OSHW Code, 2020, is plagued by long-standing design flaws that make it inadequate to protect workers, particularly considering climate-linked occupational risks, despite its declared goal of “consolidation and modernisation”:
Firstly, the Section 23(2) of the code only imposes a general duty to maintain temperature and ventilation “as prescribed by the Central government,” yet it fails to embed a central, binding quantitative standard. This structural lacuna means that no uniformly enforceable threshold, whether by a universally deployed WBGT index, a domestic heat index ceiling or a mandatory rest break schedule exist across India.
Secoondly, In Agriculture, scattered construction sites, brick kilns, and platform work are essentially unregulated since inspection and enforcement are still focused on fixed-site factories. This undermines the goal of Section 18 of the Code, which requires employers to maintain safe workplaces, and it conflicts with the ILO-recognised principle of “effectiveness” in labour inspection law.
Thirdly, Although there exist general prescription to maintain a safe work environment like in Section 6(2)d of the act, the lack of climate-specific standards or mandatory early-warning, rest-break, and hydration norms, coupled with the lack of comprehensive catalogues or practical safety measure guides like those available in Australia, means that predictable hazards such as heat waves, floods, and high humidity are treated as unforeseeable accidents rather than systemic, foreseeable occupational risks. Hence, making the whole OSH exercise in India at best vague and disingenuous.
Collectively, these flaws demonstrate how the OSHW Code allows climate-intensified labour, such as extreme heat, to remain largely unchecked by substituting legally enforceable obligations with aspirational and abstract generalities.
Towards a better OSH Code: A Labour- Environmental Law framework
Historically, India, a member of the International Labour Organisation (ILO), has not ratified any of the OSH Conventions issued by the ILO to date, particularly in relation to climate-related workplace hazards, which encourage national frameworks to become climate resilient, for instance, ILO Convention 152. These conventions do not bind a country unless it ratifies them, keeping India out of harm’s way vis-à-vis transnational accountability. However, several principles within these conventions have been recognised and applied by India historically, apart from the crucial footing these principles enjoy in international environmental law. Therefore, this section of the paper advocates for three core concepts to be incorporated into India’s OSH framework, in pursuit of making the OSH code climate resilient. The authors do not provide procedural/implementational suggestions for the code, given that this requires much more on-the-ground empirical reasoning and study than this article’s phrasal and ideational bandwidth can fulfil. The three principles, along with their analysis and suggestive plug-ins, are as follows:
Environmental Risk/Impact Assessments
No scientifically recognised system initially existed to identify occupational safety and health (OSH) hazards related to climate change until Schulte and Chun developed a framework based on an environmental risk assessment. This framework primarily engaged with seven categories of climate hazards: (1) increased ambient temperature; (2) air pollution; (3) ultraviolet exposure; (4) extreme weather; (5) vector-borne diseases and expanded habitats; (6) industrial transitions and emerging industries; and (7) changes in the built environment. All these metrics for occupational health and safety can be best met through a statutorily mandated Environmental Impact Assessment, which enables the identification and pre-emptive resolution of such issues. Therefore, it is the need of the hour to engage in geoengineering, prioritising research, surveillance, risk assessment, and management to protect workers better. This also solves the first statutory lacuna found in the previous section of this piece, as now a general duty of maintaining the workplace would transform into a strict and focussed environmental risk assessment of the workplace.
The OSH Code, 2020, has already incorporated the principle of risk assessment in Section 9(3) of the code, thereby reassuring the concept’s relevance. Putting such measures in the context of environmental risks draws parallel to the international environmental law concept of Environmental Impact Assessments (EIA), which has been recognised as essential by both India and as part of customary international law. The Supreme Court has mandated the conduct of an EIA or an environmental risk assessment on multiple occasions to protect workers’ health in cases likeNow, to evidence state practice in the realm of labour law, it is pertinent to note that Council directive 2011/92/EU issued by the European Parliament mandates that projects likely to be significantly affected by the neighbouring environment undergo an EIA before development consent is granted, requiring public information and participation, including workers likely to be affected by environmental hazards such as pollution, heat or noise at their workplace.
Rather than a specific and narrow clause like Section 9 (3), the code should dedicate a whole section to mandating guidelines, basis which these risk assessments be done. A useful reference point is the regulatory framework adopted in several U.S. states. There are currently regulations in California, Oregon, and Washington that govern the prevention of heat illness in outdoor workplaces, specifically when ambient temperatures reach or exceed 80°F. California and Oregon regulations also apply to indoor workplaces when the heat index reaches or exceeds 80°F. Regulations in all three states have requirements for the availability of drinking water, acclimatisation methods, employee training, and high-heat procedures, such as additional breaks, apart from state-specific thermal thresholds, standards ,and guidelines for the prevention of heat illnesses function at a national level.
However, for such assessments to be effectively conducted, guidelines or rules must be established by institutions like the National Institute of Occupational Health (NIOH), mirroring what NIOSH does, as already highlighted in the previous section of the paper, for the US.
Precautionary/Preventive Measures
The ILO conventions (148 and 187) mandate the deployment of preventive measures when it comes to building workplaces, sustaining them, and specifically making them climate-resilient. Schedule 2 of the OSH Code, 2020, also reiterates these precautionary/preventive measures in relation to several hazards. When dealing with the environment, the principle becomes analogous to the precautionary principle, recognised to further the Indian constitutional ideals in cases like Vellore Citizens Welfare Forum vs Union Of India & Ors , apart from being recognized as customary international law in the Southern Bluefin Tuna case. To evidence state practice, Australia’s Safe Work Australia guidance embodies the precautionary principle by proactively managing heat hazards before harm occurs. It addresses progressive heat illnesses, ranging from exhaustion to fatal strokes, through preventive measures such as stocking equipment and installing cooling facilities. Statutory duties include worker training, supervision, incident reporting, and mandating flexible working schedules. The Netherlands also illustrates how sustained implementation can be achieved through institutionalised capacity building and regulatory clarity. The Working Conditions Act (Arbowet), supported by the Arbo-besluit (detailed regulations) and the Arbocatalogus (sector-specific catalogues), clearly delineates the responsibilities of employers and employees while actively promoting training, skills development, and trade-union participation. These practices indicate the attitude of preparing for the future, rather than running away from it, which is sadly what the Indian OSHW framework does, as presently in force.
The precautionary approach cannot be confined to a single section; instead, it needs to be incorporated generously throughout the OSH Code, 2020, and in the guidelines/regulations, as is done in Australia. The deployment of preventive measures is crucial, given the propensity of climate stresses to impact labour productivity. Deployment of the prevention principle as a regulatory habit can also evolve into statutory development; a notable example of this is Australia’s sample sun protection policy for outdoor workers. Apart from statutory lacunae in the OSH code, the OSH regulatory framework in India needs a revamp through the institution of active research, scientific, and regulatory bodies (such as NIOSH or Safe Work Australia). Such bodies can release regular and updated OSH catalogues on several ongoing safety concerns, just like in the Netherlands ensuring an active climate-resilient regulatory framework. Such an approach, if incorporated throughout the code would solve the third lacuna identified in the previous section of this piece, mandating workplaces to ve better prepared for predictable climate hazards.
Green Collective Bargaining
The concept of green collective bargaining is rooted in the state practice of several states that effectively deal with climate-induced OSH concerns, and has also been explored and mandated by the ILO (Convention (No. 187), when suggesting a periodic review of the safety and health concerns to nations.
Green collective bargaining integrates environmental objectives and social dialogue to mitigate the impact of the climate transition on workers. It ensures worker participation and capacity building, as highlighted in the previous section of this paper. The Council of the EU recognises it as crucial in generating climate-resilient and worker-centric policy deliverables, thereby addressing OHS concerns. In line with such collective bargaining, the Netherlands’ Working Conditions Act as well as Works Councils Act mandate employer-employee collaboration, granting workers the right to consent and providing them with information on OSH measures taken. Such agreements also helped in deliberating the regular OSH catalogues that have released updated climate-resilient guidelines. Even Spain, where the Article 37 of the constitution protects collective bargaining, has started to deploy heat stress management in their collective bargaining under Articles 4(1)c and Article 82(3) of its worker’s statute, keeping the right to information of workers on environmental measures intact, and setting climate-resilient OSHW thresholds. In Canada, some collective agreements grant workers the right to refuse tasks that may endanger themselves, others, or even the environment. Workers have the right to refuse tasks if they have reasonable cause to believe that the work poses a danger to themselves or others. This right extends to refusing to use a machine, work in a particular place, or perform a potentially hazardous activity.
The provisions for green collective bargaining can be readily adapted, as they are present in other countries, in the OSHW Code of 2020, contingent on Indian climatic nuance. Such green collective bargaining also potentially solves the second statutory lacunae identified in the previous section of the paper. Such hope for an inclusion of even unorganized sectors like agriculture and construction in the OSHW framework in India is inspired by EU’s Working Time Directive. The Working Time Directive (Directive 2003/88/EC) limits weekly working hours, daily rest periods, breaks, and weekly rest days, thereby mitigating climate-exacerbated risks, such as heat stress, particularly in the most affected sectors, including agriculture and construction. This directive when read together with directive 2002/14/EC mandates informing and consulting employees on such risks, in undertakings with 50 or more workers or establishments, mirroring the threshold laid out in chapter IX of the Indian OSHW code.
Conclusion
India is at a turning point in reimagining the OSH Code to address labour risks brought on by climate change, given the OSH hazards that climate change has already caused and is likely to cause. Incorporating the suggested provisions for environmental risk assessments, precautionary measures, and green collective bargaining, while aligning with global best practices, will position the Indian labour law framework to be more climate resilient. Protecting workers is not only a regulatory task, but also a constitutional and moral imperative, as enshrined in Articles 21 and 42 of the Constitution, making the task at hand not only the need of the hour, but also a responsibility for the past and the future.
Arjun Singh and Vikramaditya Singh are students of B.A. LL.B. (Hons.) at the West Bengal National University of Juridicial Sciences, Kolkata
NUALS Law Journal 