This article is written by Vividh Jain, a student of the Institute of Law, NIRMA University. In this article, the author deals with each and every aspect of a statute named as Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996.
Table of Contents
Introduction
The Building and Other Constructions Workers (Regulation of Employment and Conditions of Service) Act, 1996 hereinafter referred to as the “BOCW Act” is a social welfare statute enacted by the Indian government to provide a safe and healthy working environment for the workers engaged in construction activities. This act watchdog the employment and working conditions of the building and other constructions for workers and it aims to provide welfare measures for the construction workers. The ambit of BOCW Act in India is wide because countries like India where the construction sector rises with a pace, there are many workers engaged in this sector and to safeguard their interest the presence of this legislation is a must.
Is there a need for the Building and Other Construction Workers Act
In India, more than 80 crore workers, whether skilled or unskilled are engaged in the construction sector. The construction industry is majorly labour-intensive, and most of the workers are unskilled, unorganized and generally work in inhuman and miserable conditions. These construction workers are part of the vulnerable segments of the unorganized sector in India. In order to address these inhumane working conditions, ill-treatment, poor facilities, poor health, and necessary safety measures in the construction sector, the government enacted the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996.
Giving construction workers their due
Most of the construction workers are educated, unskilled, migrants, socially backward, and have low bargaining power, so the employer usually looted them by giving fewer wages for the work they did. Also, construction workers tend to work with uncertain working hours with an inherent risk of life. Section 45 of BOCW Act, 1996 deals with the responsibility of the employer for the payment of wages and compensation to each construction worker employed by him and if the employer, in any case fails to comply with this section, then he is liable to pay compensation to the workers employed by him in full or the unpaid balance which is due in accordance with Section 8 of the Workmen Compensation Act, 1923.
Is it mandatory to take registration under BOCW
Section 7 of the BOCW Act, 1996 talks about the registration of an establishment. Before explaining the provision mentioned in this section, we have to know something about establishments. Section 2(1)(j) of BOCW Act, 1996 defines ‘establishments’ as, an establishment belongs to any firm or organization or body of corporations or individuals or associations or government, who employs construction workers for any construction site, is said to be an establishment, but those constructions whose value or cost of such construction is less than 10 Lakhs rupees would not become under this definition.
Now, Section 7 of the BOCW Act, 1996 deals with the provisions related to the registration of establishments. It says that every employer of the construction work shall make an application to the registering officer for registration of such establishment. The applicant shall make an application for registration:
- If the establishment starts operating its function after the commencement of this act, the establishment is required to make an application within a period of sixty days from the date it starts functioning;
- If the establishment starts operating its function before the commencement of this act, then the establishment is required to make an application within a period of sixty days from the date of commencement of such act.
Provided that if a registering officer is convinced with the reason for late registration, he may grant registration for that establishment and if all the forms and documents are prescribed according to terms and conditions, he may issue the certificate of registration.
Section 8 of the BOCW Act, 1996 deals with the revocation of registration. It says that if the registering officer is satisfied by the reference made to him in this regard or if any employer of an establishment obtained a certificate of registration by misrepresenting the material facts or an establishment has not complied with any provisions mentioned under this legislation, a registering officer after giving a fair opportunity to the employer to represent his case may revoke the registration.
Benefits of having a BOCW card
Different states in India have their welfare schemes for the workers having BOCW cards. Section 13 of the BOCW Act, 1996 talks about identity card issues to the beneficiaries i.e. workers working in a building or at any construction site by the board. Every state offers various facilities or initiates multiple welfare schemes for the workers having BOCW cards or working in the construction sector. Some of the welfare schemes or benefits offered by different State Governments are as follow:
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- Ministry of Labour and Employment: They enacted schemes on life and disability cover, skill development, health and maternity cover, education, pension, housing, awareness programs.
- Punjab government: Stipend Scheme, LTC Scheme, Funeral Assistance Scheme, Ex-gratia Scheme, Maternity Benefit Scheme, General Surgery Scheme, Denture, Cycle Scheme for Construction Workers as well as for Children, Spectacles & Hearing Aid Scheme, Shagun Scheme, Reimbursement of expenditure for Dangerous Ailments, Tool Kit Scheme, Bhagat Puran Singh Sehat Bima Yojna (BPSSBY), Pension Scheme, Balri Birth Gift Scheme, Skill upgradation & Vocational Education Scheme, Mobile Lab Scheme.
- Assam government: Death benefit, cash award, general pension, disability pension, advance for purchase or construction of house, education institution, marriage assistance, family pension, educational assistance, medical assistance, funeral assistance, health check up, maternity benefit, loan for the purchase of tools, coverage under Pradhan Mantri Jeevan Jyoti Bima Yojana (PMJJBY) & Pradhan Mantri Suraksha Bima Yojana (PMSBY).
How is BOCW cess calculated
Section 3 of Building and Other Construction Workers Welfare Cess Act, 1996 mentions that one percent of the construction bill or cost of construction incurred by the employer to build construction is equal to the amount of cess and the same amount is deposited to the welfare board and the fund is utilized for the welfare of the workers or in the welfare schemes for the workers working in the building or a construction site.
Amount of cess = 1% of the Cost of construction
For example, if the total cost for construction of a building is Rs. 1 Crore then the total amount of cess is one percent of 1 Crore i.e. Rs. 1 Lakh.
State legislations
As already mentioned in this article, every state offers various facilities or initiates multiple welfare schemes for the workers working in the construction sector. Also Section 4 of the BOCW Act, 1996 empowers the State Government to constitute a State Advisory Committee which is called as ‘State Building and Other Construction Workers’ Advisory Committee to advise the State Government on the matters related to the administration of this act.
The State Advisory Committee consists of:
- a chairperson which has been appointed by the State Government;
- two members of the State Legislative Assembly;
- a member who has been nominated by Central Government;
- the chief-inspector;
- other members not less than seven, but not more than eleven, as nominated by the State Government to represent the building workers, employers, association of engineers or of architects and any of any other interest which the State Government thinks fit.
Its role during the COVID-19 pandemic
There has been a huge impact on the employment of construction workers during the COVID-19 pandemic. Due to the countywide lockdown for this pandemic, the rate of unemployment among construction workers have risen. With an aim to provide financial assistance and relief to construction workers, the Central Government directed all the State Governments to use the unutilized cess welfare fund as these funds provide the social securities to those construction workers who are registered with their respective State Governments.
According to a report generated by the Ministry of Labour and Employment, till March 2019 there was approx. Rs. 49,625 Crores of cess reserved by the states and Union Territories, but only less than Rs. 20,000 has been utilised. There are wide differences in the amount of cess collected among the states. If we talk about the utilization of funds, as many as 21 states and Union Territories utilize less than 30 percent of the amount of cess they collected for the welfare of construction workers. Only Kerala was the state who utilized around 121 percent of the amount of cess they collected, but states which had the highest cess welfare funds failed to provide welfare to the construction workers.
Now, what the government of the states and Union Territories can do is to utilise the remaining cess funds for the welfare of construction workers during the pandemic and also by implementing those unutilised funds for the upliftment of corona warriors like doctors, medical staff, police, etc.
Scope of improvement
In 2013, the Ministry of Labour and Employment presented The Building and Other Construction Workers Related Laws (Amendment) Bill, 2013 before Rajya Sabha to amend the grey areas present in the BOCW Act, 1996. This bill has presented the scope of improvement in this legislation. The salient features of this bill are:
- This bill wants to empower the Central Government to amend Section 2 (1) (j) of the BOCW Act, 1996 by changing the definition of ‘establishments’. The maximum limit of the cost of construction must be introduced instead of the minimum limit of the cost of construction which is Rs. 10 Lakhs.
- This bill wants to change Section 12(1) of the BOCW Act, 1996 to enhance the scope of the BOCW Act, 1996 for the registration of workers.
- This bill wants to amend Section 24(3) of the BOCW Act, 1996 by empowering the Central Government to notify the percentage of the total expenditure incurred by the State Building and Other Construction Workers Welfare Board on administration meetings.
- This bill wants to amend Section 12(3) of the Building and Other Construction Workers’ Welfare Cess Act, 1996 by empowering the State Government to file a complaint in the court of jurisdiction, and take cognizance against the offence.
Should this enactment be repealed under the new labour law codes
The Indian government is preparing the New Labour Code on Welfare and Social Security which is going to replace around 15 social security or social welfare laws including the BOCW Act, 1996. Many benefits that are accessible under these Acts may not exist under this New Labour Code, and its revocation could be proved as the most disastrous thing for the construction workers as the registrations of workers will expire.
Also, there is already a large gap between the registered construction workers with the welfare boards and the estimated number of construction workers engaged in the construction sector. If we talk about the data, less than 50% of estimated construction workers are registered with such welfare boards. This New Labour Code will lead to the shutdown of 29 State and 8 Union Territories’ BOCW boards and the construction workers will have to again register themselves with the respective state welfare boards. These newly formed state welfare boards will also take other unorganised sector workers under its ambit and all these workers would be listed in the same place. Also, the cess funds which have been collected for the construction workers would be merged with the social assistance fund.
If the new Labour Code is enacted, it would be beneficial for the construction workers because the scope of welfare measures would be increased in the construction sector, and also it would provide the overall benefit to the labour class engaged in the labour sector of the Republic of India.
Conclusion
It is commendable that the Indian government has made social welfare arrangements for the long-neglected construction workers, but there have been some grey areas left in the statute which requires clarification and enforcement until the judiciary has stepped in to resolve the matter. Section 2(1) (i) of the BOCW Act defines ‘employer’ and includes both contractor and owner of the construction site under its ambit. Hence, the contractor and owner start shifting their liability and responsibility to one another. Also, the State Governments have to be accountable for the unutilized cess collected fund and must implement the remaining funds for the welfare of construction workers.
References
- https://bocw.punjab.gov.in/index.aspx?id=Welfare%20Schemes&Data=38
- https://labourcommissioner.assam.gov.in/portlet-innerpage/various-welfare-benefits-for-registered-construction-workers
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