Hours of work, annual leave and employment of women and young persons under the OSH Code

1. Daily hours (section 25)

No worker shall be required or allowed to work in any establishment for more than eight hours in a day (section 25(1)(a)) [Factories Act, s. 54: nine hours]. The period of work each day must be fixed so as not to exceed the hours, intervals and spread-over notified by the appropriate Government (section 25(1)(b)) [ss. 55 and 56: rest after five hours, spread-over 10½ hours]. Special rules apply:

• Mines: hours below ground are notified by the Central Government, work below ground must be in shifts within that limit, and no one may be below ground outside the hours shown against him in the register.
• Motor transport workers: hours include running time, subsidiary work (accounts, garaging, loading) and periods of mere attendance at terminals of less than fifteen minutes.
• Working journalists (section 25(2)): not more than 144 hours in four consecutive weeks, with at least 24 consecutive hours of rest in every seven days.
• Sales promotion employees and working journalists (section 25(3)) get earned leave on full wages of not less than one-eleventh of the period on duty and medical leave on half wages of one-eighteenth of service, with encashment on leaving.
• Adolescents (section 25(4)): working hours are regulated by the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986, not by the Code.

2. Weekly holidays, overtime and shifts

• Six days a week (section 26(1)) [s. 52]. In motor transport a worker may be called on a holiday, but never for more than ten days in a row without a whole day off. Eight hours a day for six days gives the 48 ordinary hours of the old law [s. 51].
• Compensatory holidays (section 26(3)) [s. 53]: a worker who loses a weekly holiday because of an exemption must be given an equal number of holidays within that month or the two months following.
• Overtime (section 27) [s. 59]: wages at twice the ordinary rate, calculated daily or weekly, whichever is more favourable to the worker. Overtime requires the worker’s consent; the total hours of overtime may be prescribed.
• Night shifts (section 28) [s. 57]: for a shift crossing midnight, the weekly holiday is 24 consecutive hours from the end of the shift, and hours after midnight count in the previous day.
• No overlapping shifts (section 29) [s. 58] and no double employment in a mine or factory within twelve hours of work elsewhere (section 30) [s. 60].
• Notice of periods of work must be displayed (section 31) [s. 61], and a register kept (section 33) [s. 62].

3. Annual leave with wages (section 32)

Section 32(1) [Factories Act, ss. 79 and 80] entitles every worker to leave with wages in a calendar year on these terms:

• he must have worked 180 days or more in the year (old: 240 days);
• one day for every twenty days of work; for an adolescent, and for a worker below ground in a mine, one day for every fifteen days;
• lay-off, maternity leave and annual leave count towards the 180 days, but no leave is earned for them;
• holidays falling within the leave are excluded from it;
• a worker joining mid-year qualifies if he works one-fourth of the remaining days;
• on discharge, dismissal, resignation, superannuation or death, wages for the unavailed leave must be paid, within two working days (discharge, dismissal or quitting) or two months (superannuation or death), even if the qualifying period is not complete;
• unavailed leave carries forward up to thirty days; leave refused when applied for carries forward without limit; the worker may encash leave at the end of the year and must be allowed to encash leave beyond thirty days.

4. Employment of women (Chapter X)

Section 43 provides that women are entitled to be employed in all establishments for all types of work, and may be employed, with their consent, before 6 a.m. and beyond 7 p.m., subject to conditions on safety, holidays and working hours prescribed by the appropriate Government. This reverses section 66(1)(b) of the Factories Act, which barred women from factory work outside 6 a.m. to 7 p.m., and the old bars on women cleaning moving machinery or working near cotton openers.

Section 44 allows the Government, where an operation is dangerous to women’s health and safety, to require adequate safeguards before women are employed in it. The approach is protection by safeguards, not exclusion. Section 82(b) still allows rules prohibiting or restricting the employment of pregnant women in dangerous operations in factories, and section 93(2) allows special safeguards for women and adolescents handling chemicals in plantations.

The constitutional reasoning is that of Anuj Garg v. Hotel Association of India, 2007 INSC 1242, (2008) 3 SCC 1. The Court struck down section 30 of the Punjab Excise Act, 1914, which barred women from employment in premises where liquor was served. Protective legislation that rests on stereotypes and restricts a woman’s choice of work fails Articles 14, 15 and 21; the State’s duty is to secure her safety, not to keep her out.

5. Adolescents and children

The Code defines an adolescent by reference to the 1986 Act (14 to 18 years) and an adult as a person who has completed eighteen. It does not regulate children at all: that is done by the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986, as amended in 2016, which the Labour Codes did not repeal.

• Child (s. 2(ii) of the 1986 Act): a person who has not completed fourteen years, or the age specified in the Right to Education Act, 2009 if that is higher. Section 3 prohibits employment of a child in any occupation or process. The only exceptions are helping the family or family enterprise in non-hazardous work after school hours or in vacations, and working as an artist in the audio-visual entertainment industry (not a circus), without affecting school education.
• Adolescent: section 3A bars employment in the hazardous occupations and processes in the Schedule. In other work, section 7 limits a spell of work to three hours followed by an interval of at least one hour, a spread-over of six hours, no work between 7 p.m. and 8 a.m., no overtime, and no work in a second establishment on the same day. Section 8 gives a weekly holiday.
• Penalty (s. 14(1) and (1A)): imprisonment from six months to two years, or fine of Rs 20,000 to Rs 50,000, or both.
• Mines: no person below eighteen may work in a mine, except apprentices and trainees of sixteen or over under supervision (OSH Code, section 70) [Mines Act, s. 40].
• Onus as to age (OSH Code, section 117): where the court thinks a person is prima facie under age, the accused must prove otherwise.

In M.C. Mehta v. State of Tamil Nadu, 1996 INSC 1454, (1996) 6 SCC 756 (the Sivakasi match factories case), the Court directed every employer of a child in contravention of the law to pay Rs 20,000 per child into a welfare fund, and the 2016 amendment now provides a Child and Adolescent Labour Rehabilitation Fund (s. 14B).

6. Problem

Somu, aged 13, works in a factory. He is made to work more than six hours without any interval, between 8 p.m. and 6 a.m., and is given no weekly holiday. Examine the liability of the employer. (February 2025)

Issue. Whether the employer is liable for employing a 13-year-old at all, and separately for the hours, night work and denial of a weekly holiday.

Law. Article 24 bars employment of a child below fourteen in any factory. Section 3 of the Child and Adolescent Labour Act, 1986 prohibits employment of a child in any occupation or process, and section 14(1) punishes it with six months to two years’ imprisonment or fine of Rs 20,000 to Rs 50,000 or both. The OSH Code fixes eight hours a day (section 25), six days a week (section 26) and sends the hours of adolescents to the 1986 Act (section 25(4)); section 7 of that Act bars work between 7 p.m. and 8 a.m. and requires an hour of rest after three hours.

Application. Somu is a child, not an adolescent. Neither exception in section 3(2) applies: a factory is not a family enterprise and he is not an artist. His employment is therefore unlawful from the first day, whatever the hours; there is no lawful pattern of hours on which a 13-year-old may work in a factory. The hours make the case worse. Even an adolescent could not be made to work more than three hours without an hour’s rest, could not work at night between 7 p.m. and 8 a.m., and is entitled to a weekly holiday. Even an adult worker could not be kept for over eight hours in the day without the notified intervals, or denied the weekly holiday under section 26. If the employer claims Somu is older, section 117 of the Code puts the burden on him to prove it, by Aadhaar, school certificate or birth certificate before any ossification test.

Conclusion. The occupier is liable to prosecution under section 14(1) of the 1986 Act for employing a child, and to penalty under the OSH Code for the breach of the hours and holiday provisions (section 94, Rs 2 lakh to Rs 3 lakh). Under M.C. Mehta v. State of Tamil Nadu he must also pay Rs 20,000 for the child’s rehabilitation. Somu must be withdrawn from work and rehabilitated, with his schooling secured under Article 21A.

How this is examined

The Somu problem (February 2025) is the model; the August 2024 and January 2026 papers asked for the prohibitions and regulations under the Child Labour Act and its 2016 amendment, which are answered from section 5 above. Under the new syllabus expect “Explain the provisions on hours of work and annual leave with wages under the OSH Code” (give old and new numbers side by side: nine to eight hours, 240 to 180 days) and a short note on employment of women at night under section 43.