Plastic Negotiations and Crude Capitalism

Criminally intense lobbying by the fossil fuel industry in the drafting of a “Paris Agreement” for the Plastic Crisis should not come as a surprise, but as an alarm of consolidation of abusive power in treaty negotiations with potential consequence of replicating the Paris Agreement’s innumerable semantics-based instances of inefficacy and inertia. By basing itself at the centre of the negotiations, and outnumbering indigenous peoples and well-intentioned, radical environmental action groups, the plastics-cum-oil industry lobbyists is repeating its modus operandi of preserving its financial and extractive interests perniciously, and politically, the surrounding circumstances could not have exceeded their expectations- with the godfather enthusing the Big Oil with his “drill, baby, drill” declaration smoothening the terrain for the latter to project and document skyrocketing oil production levels. It is also not a surprise that these big fossil fuel giants have reneged on their already contestable “sustainability” and “net-zero” commitments, with now clearly investing more in fracking, drilling and extracting crude from the Shadow Lands- both onshore and offshore.

Interrogating the pervasiveness of plastic as an indispensable material commodity will unsurprisingly lead to a refined version of extractivism- Crude Capitalism as borrowed from the theorisation by Adam Hanieh. Unsurprisingly, plastic, derived as a by-product of crude oil refinement processes, is an expansion of the Big Oil’s stranglehold on the global industrial basics market- while oil and gas provide energy, plastic “creates” and conceptualises new commodities, defined by its diabolical versatility. Hanieh tracks the evolution of the petrochemical industry in Crude Capitalism, and centres militarism of World War II along with a subsequent takeover by US-based Oil giants of a predominantly German invention in the geopolitical story of plastic and other synthetic polymers including rubber.

“By de-coupling commodity production from nature, there was a radical reduction in the time taken to produce commodities, and an end to any limits on the quantity and diversity of goods produced. This qualitative transformation in the substance of commodity production came with far reaching ecological implications. As synthetic materials began to accumulate in ever-increasing quantities throughout the environment, their disruptive toxic effects soon became apparent – yet another manifestation of the Great Acceleration enabled by the transition to oil.”

- Crude Capitalism

One should take cognisance of the fact that this is not the first time that corporate interests have hijacked international discussion on legal mechanisms for ecological protection. Lobbyists from Big Oil, Big Agriculture and Big Corporate have captured CoPs of the UNFCCC constantly, and even increasingly, with the host countries themselves being dependent on crude economy-derived royalties, such as Egypt, UAE and Azerbaijan. Their overshadowing interests lead to advocacy for “market-based solutions” such as the massive failure called carbon credit system, transition from coal to oil (based on the fake claim of oil being a “clean energy source”) and maintaining oil dependency for perpetuity, inter alia, rather than system overhaul and questioning of the neoliberal-industrial-oil complex paradigm. The fact that our environmental treaties are soft agreements should not be normalised; there is a set of non-legal reasons for that. These treaties, due to lobbying helped by the principles of international law and a frail enforcement/judicial mechanism, are also situated in a world where power is condensed in a few private entities, aided by the governments that are supposed to fulfil democratic mandate through preserving “public trust” and “precaution”. And, predominantly, this power emanates from control over Crude, Coal and derivatively, Plastic. While Busan failed, what happens in Geneva, unfortunately, comes with a foreboding.

[PS.- be sceptical of the term “sustainability”. In all likelihood, it is used by Big Corporate to fool you.]

Heat Stress: ‘Sweatshop Effect’ in Vulnerable Employment

(This post expands the scope of this blog, where the climate crisis and law's multi-sectoral responsive dexterity will be investigated.)

       Introduction: Heat Stress as an Occupational Safety Hazard

In IPCC’s Sixth Assessment Report on Impacts of Climate Change, Heat Stress as an Occupational Safety Hazard (‘OSH’) has emerged as a “non-economic cost” to workers’ livelihoods vulnerable to heat waves.[1] ILO’s 2024 report titled “Heat at Work: Implications for safety and health” documents a spectrum of physiological impacts due to high temperatures at workplace, from heat fatigue and heat syncope (dizziness), to serious and fatal conditions of heatstroke, kidney/cardiovascular/respiratory illnesses.[2] Workers directly or indirectly exposed to threatening levels of heat are increasing across the world, especially impacting vulnerable groups such as migrant, informal, women and old-age workers in outdoor employment.[3] Sectoral vulnerability to Heat Stress as an OSH exists in workplaces that are constituted of manual workers, such as manufacturing units, construction, transportation and agriculture, termed as “vulnerable employment” as distinct from air-conditioned workplaces harbouring white collared workers.[4]

In India, extent of this impact is affected by a labour force composition comprising majority of the workers employed in informal, vulnerable employment demanding physical labour.[5] Relative recentness of Heat Stress as an OSH has brought into question the effectiveness of extant labour law framework, that has developed the concept of “safety” parochially. Moreover, a larger caveat here lies also in the fact that labour law’s applicability is restricted by definition of “worker” in respective statutes, that are most likely to exclude unorganised and irregular employees. This legislative vacuum calls for an examination of the readiness of Indian labour law framework to address heat stress, and explore how other jurisdictions have dealt with it.

In this article, I begin by referring to some Indian workers’ safety legislations to see whether they have requisite provisions to cover heat stress as an OSH. Thereafter, I outline some interesting legislative actions in other jurisdictions that have recognised and introduced safeguards to protect workers in vulnerable employment. Thereafter, I posit a rudimentary roadmap for a legislative intervention in India.

        Heat Stress as OSH in India

Beginning with the legal framework of workers’ safety in legally covered employment is prudent to unravel a bleaker state of affairs in unorganised, outdoor employment. The Factories Act, 1948 governs the safety conditions of workers employed in factories, where a factory[6] is not restricted to buildings, and can extend to outdoor employment, as long as the fundamental manufacturing process takes place.[7] Regarding workers covered by the Act, there are no restrictions in terms of the mode of recruitment or the requirement of remuneration, but they should be involved in manufacturing processes as defined u/s 2(k) carried out in the factory. Thus, workers in non-manufacturing vulnerable employment are excluded.

While the general duties of employer emphasise maintenance of safety and risk-free conditions at the factory, both specific to machinery and in general,[8] the workers also have a right to demand adherence to these statutory standards.[9] Regarding medical emergencies, the Act requires a certifying surgeon who is obligated to examine employees and discern impacts of working conditions on their health. For Third Schedule diseases, a requirements to disseminate requisite information to the authorities and investigate their causes exist.[10] Although Section 13 provides for maintenance of suitable ventilation and temperature controlling in the premises for workers’ comfort, it assumes the employer’s ability to modulate temperature levels that may not be possible in instances of heatwaves. Therefore, in light of non-viability of mitigatory strategies, adaptative mechanisms become important. In this context, the Act has provisions on prevention of overcrowding at the place of work, availability of drinking water, facilities for sitting, cool and well-ventilated shelters/rest rooms and resting intervals.^[11] These facilities are aided by free-of-cost availability to not deprive workers based on their affordability.[12]

However, certain inhibitory factors may limit accomplishment of heatwave-resilient workplaces covered by the Act. Variation in employer’s duties on the basis of number of workers employed make workers of small yet identically affected workplaces vulnerable to heat stress. For instance, the provision for “cool” drinking water during hot weather is limited to factories with more than 250 workers.[13] A threshold of at least 150 workers exists for the provision on rest rooms/shelters.[14] While it secures the employers from investment overburden, it leads to worker vulnerability.  Moreover, provisions for sitting facilities and shelter rooms are not complemented by separate paid sitting intervals of sufficient duration. This should be in addition to the resting intervals that authorise a half an hour break for every five hours, due to glaring disparity between working hours and duration of authorised interval, especially when workers working under heat stress are considered.[15]

In terms of specific sectoral legislations, the Building and other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 covers “building workers” (employed both contractually or directly) involved in construction work not covered by the Factories Act.[16] This Act provides for general welfare measures such as drinking water, urinals, first-aid facilities, accommodation near the work site, and intervals under the discretion of employer.[17] Interestingly, employer’s obligation in terms of health and safety hazards is almost exclusively connected to the nature of hazards that may arise from the peculiar nature of construction work and thus, does not cover heat stress induced by non-employment factors.[18] As an aberration, Rule 232 of the Act’s Central Rules obligates an employer to provide for emergency care services for conditions including “dehydration caused due to any cause” and sunstroke to building workers.[19] This recognition is not hampered by a threshold for minimum workers and is more progressive than the Factories Act that restricts its approach to injuries arising out of dangerous/ hazardous processes from manufacturing.[20]

The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979, covers migrant workers employed by contractors in an establishment in another state on an agreement.[21] The only provision that deals with welfare measures provides for suitable accommodation, working conditions, free medical facilities and reporting mechanism in case of accidents.[22] However, the Central Rules elaborate on these measures which require contractors to provide funding for medical treatments for ailments arising due to employment.[23] Maintenance of first aid boxes, well-ventilated and spacious rest rooms in case the employment is of at least three months, and washing facilities are other duties of contractors which need to be fulfilled by the principal employer in case of former’s failure.[24]

For agricultural workers, there have been repeated efforts to introduce a welfare legislation, most recently being the Agricultural Workers (Welfare and Protection) Bill, 2022. The Bill provides for daily rest intervals and fixed hours of work,[25] but provisions on medical protection and availability of water, recreation, etc. are contingent upon a Fund created through contributions by the State and Central governments.[26] Thus, there are no specific obligations of the employers, and effectiveness of the Fund remains dubious due to foreseeable corruptive tendencies of middlepersons.  

In the Occupational Safety, Health and Working Conditions Code, 2020, (hereinafter, ‘the Code’) that forms a part of overhaul in labour law framework but is yet to be notified, both the ambit of sectors covered and types of rights differ variably. The Code streamlines definition of “employees” with that seen in the Industrial Disputes Act, by mentioning categories of work done for wages such as manual, unskilled, skilled, among others, with implied or express employment terms.[27] This is complemented by an equally inclusive definition of “employer” that expressly identifies principal and contractual employers.[28] An equal regard needs to be given to a liberal definition of “establishment” used for OSH provisions in the Code. Establishments encompass workplaces (with ten or more employees) carrying out an industry, trade, business, manufacturing or occupation, and sector-wise, it specifically includes motor transport undertakings, construction sites and plantations.[29]

A general requirement to maintain hazard-free workplace is accompanied by a provision on free, annual health examinations of employees of specified classes.[30] Particularly for factories, mines, construction and plantation as workplaces, the Code emphasises health and safety supervision.[31] Employees have an equal right to seek these facilities by approaching the employer or the Safety Committee[32], and also keeping the Inspector-cum-Facilitator informed about the grievance.[33] While maintaining basic safety standards of the Factories Act, the Code envisages to establish OSH standards that will account for hazards affecting the working life of employees to avert “material impairment” of health and include provisions for safety audits, medical examination, standardising precautionary measures, inter alia.[34]

While the Code has scope to broaden the coverage of security to a spectrum of workers, given the liberal definitions of employee and employer, the sufficiency of remedies that are specific to heat stress and heatwave-induced physiological conditions in different and vulnerable categories of workers remains speculative. The Code has failed to take a precautionary approach to the established hazard of heat stress.

In terms of relevant judicial pronouncements, in Occupational Health and Safety Association v. Union of India, the issue surrounded inadequacy of OSH combative measures for workers of coal-fired thermal power plants. Here, the workers suffered from pulmonary, lung and neurological conditions, similar to workers affected by heat stress.[35] The petitioners suggested adoption of measures including medical check-ups, free medical treatments, compensation under Workmen’s Compensation Act, measures to control heat/radiation/noise, inter alia.[36] Observing that employees working in risky and dangerous occupations have a right to live with dignity, the Court emphasised State’s obligation to constantly supervise and mitigate detrimental health impacts on workers.[37] Another relevant finding noted effects of high level of heat that can cause heat exhaustion, albeit in an indoor and modulative setting as a thermal power plant.[38] However, the court delegated the matter to High Courts for better implementation of guidelines.[39]

While the Courts may be proactive in protecting workers’ health by relying on constitutional rights, this is dependent on OSH types that are already statutorily recognised but lack effective implementation.[40] Thus, recognition of a recently emerged OSH as heat stress and suitable measures to combat it should ideally originate in legislative intervention.

         Comparative Law analysis 

A glance at other jurisdictions in terms of legislative development in this regard exhibits a pattern of progressive development. For instance, in California, the California OSH Act, 1973 and California Code of Regulations provide for general OSH protection to workers in outdoor employment including agricultural workers that includes potable water requirement and first aid, albeit without a specific recognition of heat stress.[41] As a reaction to occurrence of several heat-stress related casualties in outdoor employment, the Maria Isabel Vasquez Jimenez heat illness standard was added to the Code.[42] It covers vulnerable employment in agriculture, construction and heavy load transportation of agricultural/ construction materials, without a minimum threshold for workers employed.[43] It also recognises individual workers’ susceptibility (personal risk factors for heat illness) to heat stress apart from environmental risk factors.[44]

The provision requires cool, fresh potable water to be provided near the areas where employees work with adequate reminders. Additionally, when the temperatures exceed 26 degree Celsius, shade with cooling, ventilation and enough space should be provided for employees’ rest and recovery periods.[45] Importantly, employees are allowed to take “preventative cool-down rest” in the shade without coercing them to work despite symptoms of heat stress.[46] “High heat procedures” focus on supervising and identifying cases of heat stress through mechanisms such as buddy system, observation and regular communication.[47] Emergency response procedures require monitoring and calling emergency medical services.[48] For specific days of heat wave (above 26 degree Celsius inter alia), proper acclimatisation of workers is required, and a general training of employees about set procedures and precautions to be taken is also mandated.[49]’

In terms of a nationwide legislation in the US, the Asuncion Valdivia Heat Illness and Fatality Prevention Bill, 2019 was introduced that sought to mandate OSHA[50] to bring requisite heat illness related provisions in its regulations.[51] The OSHA regulations have followed a similar trajectory as India where employers have a general obligation to maintain a “recognised” hazard free working environment. This non-specific standard has been criticised on the ground that it creates liability on the part of employer as a reactionary measure, when the heat illness has already caused death or severe physiological changes to the employees.[52]

The Arab States such as Bahrain, Qatar and Oman have the concept of “midday work ban” as an adaptive measure where workers in outdoor employment are not allowed to work during peak hours of heat in the summer season (June/July-August).[53] While the EU does not have a binding regulation on OSH, it aids the member countries in developing standards. Heat-shield is one of EU’s research ventures that has laid out certain standards including assessment of risk based on individual workers’ attributes, provision of extra breaks, reorganisation of work day (where peak heat hours are avoided) and creation of “cooling oases” (similar to the shade concept in the California regulation) for preventative breaks.[54] Similar standard-setting rather than binding obligations have been created by the UK’s Health and Safety Executive.[55] This has led to calls for legally recognising workable temperature windows rather than subsuming it within the employers’ self-regulatory domain under general obligations that exist under the Health and Safety at Work etc. Act, 1974.[56]

        The (Maybe) Way Forward

Danger to workers’ health amidst rising temperatures behoves lawmakers to formulate an adaptation strategy to protect their life and livelihood. The strategy should account for workers in vulnerable employment irrespective of their employment relation due to the objective of protecting workers from heat stress that does not differentiate between permanent and contractual workers. Similar to the EU’s Heatshield standards, such a strategy should also account for identifying vulnerable worker groups such as women, old-aged and persons with disabilities for risk assessment, and allocate relatively higher priority to them. The yardstick of minimum threshold of workers to make an employer liable to provide for adaptative measures should be substituted by a co-responsibility of the appropriate government and individual employers to amalgamate smaller vulnerable workplaces and provide for common facilities. This will reduce the investment burden on the employers while not compromising on employees’ health amidst raging heatwaves.

The Code is a suitable legislation to incorporate this strategy due to its all-encompassing nature and unfragmented approach. New provisions specifically focussing on the intersection of informal and outdoor vulnerable employment such as agriculture, construction and transportation on a priority basis must be introduced. Since worker welfare is a Concurrent List subject, states particularly affected by intense heatwaves in the Indo-Gangetic plains should introduce outlined legislative interventions if the Code remains stalled or comes into force with inadequate measures for heat stress.[57] However, if the Code does not come into force soon and states fail to introduce suitable legislations, a separate Central legislation on heat stress as an OSH is required. This should ideally be similar to the Maria Isabel Vasquez Jimenez heat illness standard, with a broad coverage due to disproportionately fatal consequences for labour force in vulnerable employment, lest all workplaces become deadly “sweatshops”.

        Epilogue

Legislative action in the realm of heat-stress related worker safeguards should seek to protect the most endangered worker group in India- informal sector workers who support almost half of the country’s GDP yet are betrayed when their safety is concerned.[58] An inclusive legislation that takes an unfragmented approach towards all employees in vulnerable employment, and provides for customised preventative and protective mechanisms should be on agenda in the national and state legislatures before the summer of 2026 breaks yet another record of being the hottest summer ever recorded. Yardsticks established by the California Labour Code, Arabian embargo on work standard and EU’s heatshield guide are detailed, specific and targeted that must be referred to while developing an Indian response to heat stress as an OSH. However, a self-regulatory approach should be averted given that India has observed instances of non-compliance even in statutorily recognised health hazards.

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[1] Joern Birkmann et al., Poverty, Livelihoods and Sustainable Development, in Climate Change 2022: Impacts, Adaptation and Vulnerability: Contribution of Working Group II to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change 1207 (2022).

[2] Andreas Flouris et al., Heat at Work: Implications for Safety and Health. A Global Review of the Science, Policy and Practice ILO 9-10 (2024).

[3] Id. at 13-16.

[4] Id. at 7.

[5] Anirudh Krishnan, Heat Stress, Labour Well-being, and Productivity amidst Heat Waves, 5-7 (2022), https://sprf.in/wp-content/uploads/2022/08/SPRF-2022_DP_Heat-Waves.pdf.

[6] Section 2(m), The Factories Act, 1948.

[7] Ardeshir H. Bhiwandiwala v. State of Bombay, 1961 SCC OnLine SC 53, ¶ 6.

[8] Section 7A, The Factories Act, 1948.

[9] Section 11A, The Factories Act, 1948.

[10] Section 89 and 90, The Factories Act, 1948.

[11] Section 16, 18, 44, 47 & 55, The Factories Act, 1948.

[12] Section 114, The Factories Act, 1948.

[13] Section 18(3), The Factories Act, 1948.

[14] Section 47, The Factories Act, 1948.

[15] Section 55, The Factories Act, 1948.

[16] Section 2(d), (e), (g) & (i), the Building and other Construction Workers (Regulation of Employment and Conditions of Service) Act,1996.

[17] Sections 28, 32, 33, 34 & 36, Building and other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996.

[18] Section 40 r/w Part III of the Building and other Construction Workers’ (Regulation of Employment and Conditions of Service) Central Rules, 1998.

While Rule 165 mentions “working temperature”, it is the employer’s obligation to control temperature in tunnelling and excavation processes, thereby defined by its narrow understanding of modulative temperature and process-specific heat stress.

[19] Rule 232(a)(vi) & (xii), Building and other Construction Workers’ (Regulation of Employment and Conditions of Service) Central Rules, 1998.

[20] Section 41C, The Factories Act, 1948.

[21] Section 2(e), Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979.

As per section 1(4), establishments as defined under section 2(d) should have at least 5 inter-state migrants for the Act’s applicability. Notably, the definition of establishment is wide to cover vulnerable employment.

[22] Section 16, Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979.

[23] Rule 37, Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Central Rules, 1979.

[24] Rule 37, 40, 43 & 46, Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Central Rules, 1979.

[25] Sections 11 & 12, Agricultural Workers (Welfare and Protection) Bill, 2022.

[26] Section 7 & 10, Agricultural Workers (Welfare and Protection) Bill, 2022.

[27] Section 2(t), Occupational Safety, Health and Working Conditions Code, 2020.

[28] Section 2(u), Occupational Safety, Health and Working Conditions Code, 2020

[29] Section 2(v), Occupational Safety, Health and Working Conditions Code, 2020.

Notably, Plantations are different from normal agriculture as the former covers specific cash crop plantations such as tea, coffee, inter alia. (Section 2(f), The Plantations Labour Act, 1951).

[30] Section 6(1), Occupational Safety, Health and Working Conditions Code, 2020.

[31] Section 6(2), Occupational Safety, Health and Working Conditions Code, 2020.

[32] Section 22, Occupational Safety, Health and Working Conditions Code, 2020.

[33] Section 14, Occupational Safety, Health and Working Conditions Code, 2020.

[34] Section 18, Occupational Safety, Health and Working Conditions Code, 2020.

[35] Occupational Health and Safety Association v. Union of India, (2014) 3 SCC 547, ¶ 3.

[36] Id. at ¶ 3.

[37] Id. at ¶ 10.

[38] Id. at ¶ 14.

[39] Id. at ¶ 18.

[40] For instance, in Peoples Rights and Social Research Centre (PRASAR) v. Union of India, [2024 SCC OnLine SC 1895] the Supreme Court was occupied with a contention about vulnerability of workers in stone quarries and construction sites to “silicosis”, a disease that is ironically a scheduled disease under the Act and the Code to set in motion enquiry and notice procedures to the appropriate authorities. Despite its statutory recognition, the petitioners contended that workers continued to be affected by it without sufficient medical care, compensation and rehabilitation. The Court directed the National Green Tribunal to mitigate the environmental aspect of these polluting enterprises and the NHRC to coordinate disbursal of adequate compensation to the affected workers.

[41] Heather Ward, Extreme Weather Events and Heat-Related Illness in Outdoor Employment, 17 SAN JOAQUIN AGRIC. L. REV. 326 (2007-2008); Section 3457, Title 8, California Code of Regulations.

[42] Section 3395, Title 8, California Code of Regulations.

[43] Section 3395(a)(2), Title 8, California Code of Regulations.

[44] Section 3395((b), Title 8, California Code of Regulations.

[45] Section 3395(d), Title 8, California Code of Regulations.

[46] Section 3395(d), Title 8, California Code of Regulations.

[47] Section 3395(e), Title 8, California Code of Regulations.

[48] Section 3395(f), Title 8, California Code of Regulations.

[49] Section 3395(g) & (h), Title 8, California Code of Regulations.

[50] Occupational Safety and Health Administration.

[51] Stephanie Milner, Hot Topic Getting Hotter: Employer Heat Injury Liability Mitigation in the Age of Climate Change 36(1) ABA Journal of Labour & Employment Law 181 (2022).

[52] Id. at 185-186.

[53] Flouris, supra note 2, at 34.

[54] Heat Shield, A Heat-Defense Plan for Keeping Workers Safe and Productive in the Heat: A guide for employers and enterprises, (May 25, 2020) https://www.heat-shield.eu/_files/ugd/441f54_0317e9a577054df9b4d17c9acb352d8b.pdf.

[55] HSE, Heat stress in the workplace: A brief guide (2013) https://www.hse.gov.uk/pubns/indg451.pdf.  

[56] BBC, ‘Too hot to work’ law urged (July 18, 2022) https://www.bbc.com/news/business-62197921.

[57] Items 23 and 24, List III (Concurrent List), Constitution of India, 1950.

[58] Preksha Sharma and Janet Orlene, Heat stress: how soaring temperatures are taking their toll on migrant workers in India’s garden city, The Guardian (May 22, 2024) https://www.theguardian.com/global-development/article/2024/may/22/india-bengaluru-heatwaves-climate-inequalities-cities-planning-informal-workers.