Employees' right to refuse work: Need for legislation during COVID-19 and beyond

This article analyses the rights of employees to refuse work in an individual or collective capacity. This issue is of particular significance during the present COVID-19 pandemic.

Strike - A Collective Action

The right to collective bargaining has been recognized as an important tool in the hands of workmen in most democracies, including India. An expression of the said power in the form of a right to strike as an industrial action has been recognized and upheld by the Supreme Court. In the case of Bank of India v. TS Kelawala and Ors, the Supreme Court held that:

“26...The working class has indisputably earned the right to strike as an industrial action after a long struggle, so much so that the relevant industrial legislation recognises it as their implied right.”

Despite the absence of express mention of such right in any statute or the Constitution, it has been implicitly recognized in Sections 22 and 23 of the Industrial Disputes Act, 1947. The said Sections prescribe certain conditions which, if not fulfilled, would render a strike or lock-out illegal. Other limitations to the right to strike are set out in Sections 10(3) and 10(4A).

Strikes can also be prohibited in public interest under Section 3 of the Essential Services Maintenance Act, 1968. Participation in a legal strike would be a legitimate ground for denial of wages. However, participating employees are protected from further disciplinary action. The importance of this right has been elucidated by the Supreme Court.

The judgment of the Supreme Court in the case of BR Singh & Ors. v. Union of India is of particular significance in this respect.

“15. …. Therefore, trade unions with sufficient membership strength are able to bargain more effectively with the managements. This bargaining power would be considerably reduced if it is not permitted to demonstrate. Strike in a given situation is only a form of demonstration. There are different modes of demonstrations, e.g., go-slow, sit-in, work-to-rule, absenteeism, etc., and strike is one such mode of demonstration by workers for their rights. The right to demonstrate and, therefore, the right to strike is an important weapon in the armoury of the workers. This right has been recognised by almost all democratic countries. Though not raised to the high pedestal of a fundamental right, it is recognised as a mode of redress for resolving the grievances of workers.”

It would be useful to look at the definition of a "strike" at this point. The definition of the term is provided under Section 2(q) of the Industrial Disputes Act, 1947. “Strike” is defined as:

“a cessation of work by a body of persons employed in any industry acting in combination or a concerted refusal, or a refusal under a common understanding, of any number of persons who are or have been so employed to continue to work or to accept employment“.

A plain reading of the definition shows that a strike must be based on common understanding and by concerted efforts. The right to strike is, in other words, the right to refuse to work exercised in a collective capacity. The existence of a common understanding and concerted effort would be made based on the facts and circumstances of the particular case.

No redressal of individual concerns

There is little scope for individual refusal to work for reasons relating to health and safety of the individual employee. This is because individual concerns cannot be addressed by means of a strike under Section 2(q) of the Industrial Disputes Act. This raises a serious concern, which will be highlighted hereinafter.

It is pertinent to note various other labour Acts that deal with issues relating to labour welfare. Each of these Acts covers a specific category of employees or labour. The introduction of the Occupational Health and Safety Code, 2019 (OHSC) in the Lok Sabha is a critical development inasmuch as it seeks to consolidate and subsume existing laws on occupational health and safety such as the Factories Act, 1948; Mines Act, 1952; Dock Workers (Safety, Health and Welfare) Act, 1986; Contract Labour (Regulation and Abolition) Act, 1970, etc.

The rights of employee provided in the Code are of great relevance to the present issue. Clause 14(2) of the Code gives an employee the right to bring to the notice of the employer either directly or indirectly, and simultaneously to the notice of the inspector-cum-facilitator, reasonable apprehension that there is a likelihood of imminent serious bodily injury or death or imminent danger to health. Clause 14(2) reads as follows:

“Where the employee referred to in sub-section (1) in any workplace have reasonable apprehension that there is a likelihood of imminent serious bodily injury or death or imminent danger to health, they may bring the same to the notice of their employer directly or through a member of the Safety Committee referred to in sub-section (1) and simultaneously bring the same to the notice of the Inspector-cum-Facilitator”.

Clause 84 gives workers employed in factories engaged in a hazardous process a similar right. This clause is similar to an existing provision in the Factories Act, which gives workers engaged in hazardous processes the right to warn about imminent danger. However, neither Clause 14(2) nor Clause 84 allows an employee to refuse work on such grounds.

The denial of the said right would create significant problems. Health and safety issues faced by an individual that could cause serious bodily injury or death threaten his Right to Life and Personal Liberty guaranteed under Article 21 of the Constitution. Denial of the right of refusal to work in such instances would leave the employee with only a Hobson’s Choice. They would be faced with the choice of endangering their health and safety or facing disciplinary action, which would include the possibility of dismissal. It is necessary that the said issue is addressed in the proposed law and the employee’s right to health is not compromised within the framework of existing labour laws in the country.

US Law

This can be done by reference to United States laws and regulations. The Occupational Health and Safety Act, 1970 (US Act) contains similar provisions to those proposed in the OHSC introduced in the Lok Sabha. The regulations concerning the rights of workers are of particular relevance to the present discussion. It is seen that the US Act allows employees to request an inspection if employees feel that an imminent danger exists.

It was observed that the said law did not allow an employee to walk off the job because of potentially unsafe conditions at work. This was addressed subsequently. The law was modified to incorporate a provision giving an employee the express right to refuse to work in case of reasonable apprehension of serious bodily injury or death. It is but obvious that the exercise of said right is in accordance with strict conditions and not at the whims and fancy of the employee. It is to be exercised only in limited circumstances i.e. when there is insufficient time, due to urgency of the situation, to eliminate the danger through resort to regular statutory enforcement channels and in good faith.

Section 12(b)(2) of the Occupational Safety and Health Administration Standard 29 CFR Part 1977 reads as follows:

“However, occasions might arise when an employee is confronted with a choice between not performing assigned tasks or subjecting himself to serious injury or death arising from a hazardous condition at the workplace. If the employee, with no reasonable alternative, refuses in good faith to expose himself to the dangerous condition, he would be protected against subsequent discrimination. The condition causing the employee's apprehension of death or injury must be of such a nature that a reasonable person, under the circumstances then confronting the employee, would conclude that there is a real danger of death or serious injury and that there is insufficient time, due to the urgency of the situation, to eliminate the danger through resort to regular statutory enforcement channels. In addition, in such circumstances, the employee, where possible, must also have sought from his employer, and been unable to obtain, a correction of the dangerous condition.”

Conclusion

Such an express provision is in furtherance of the Right to Health and Personal Liberty. It allows an employee to preserve his/her health and safety without fearing disciplinary action. It is also preventive in nature insofar as it seeks to prevent loss of life as opposed to prescribing compensation for loss of life. It is a necessary provision to safeguard the interest of workmen and prevent significant harm which could be caused to the employee over a period of time during which the imminent danger is eliminated by normal statutory enforcement channels. Expansion of the limited right provided under the Code and existing laws is necessary in view of the above discussion.

This is of particular significance in the present times. COVID-19 has caused devastation in huge numbers across the world. As economic activity resumes, employees would be faced with difficult choices. The present times highlight the need to recognise the right of refusal to work of an individual employee/workman in case of reasonable apprehension of death or serious bodily injury. Further, the applicability and usefulness of such a provision is not limited to present times, during which its significance is merely heightened.

The author is a fifth year law student of Jindal Global University.