Works Contract
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This article is written by Shriyanshi Chitransh student of FIMT school of law, GGSIPU. In this article, she has given exhaustive measures that one should know about legal safety in a construction site. 

Introduction

Management and planning is one way of avoiding hazardous events on a site. Accidents and events are direct results of unsafe activities and conditions, both of which can be controlled by management. Nearly 8.5 million labourers are employed in India on construction sites. The construction industry in India is important as it generates employment in large numbers and also creates investment opportunities for various related sectors. The causes of the accidents are mainly poor safety measures, unskilled labourers, poor equipment, lack of training, uncontrolled operations, lack of safety regulations, unwillingness to input resources for safety, unsafe conditions, improper use of equipment, etc. The government has enacted various legislations to improve the working condition in India like the Minimum Wages Act, the Workmen’s Compensation Act of 1923 (modified in 1962), and the Contract Labor Act of 1970. Despite these acts and measures introduced by the companies themselves, the rate of accidents is still alarmingly high. In developing countries like India, awareness of safety measures can effectively reduce the cause of accidents and ultimately reduce the project cost. Efforts should be made to create effective safety knowledge among all the levels of the sector. 

The objective of the clauses 

The main objective of the clauses is to state the legal safety measures that are available to the labourers and workers on the construction site and these safety measures clauses ensure their right to have a safe environment to work in with utmost diligence. The safety of the workers is mostly ignored despite having so many rules and provisions.  

Scope and limit

The contractors are ignorant about the safety of their workers on the construction site. They merely pay any heed to train them or make them aware of the risk that comes with the work they are doing. Most of the workers coming from ill-educated backgrounds do not know the risks and health issues, the government has enacted acts and rules for ensuring the rights of the workers and for the contractors and owners to work accordingly. These laws help the workers to protect themselves from any mishappening.

Benefits of the legal safety clauses on construction sites

There are provisions and legislative sections provided to safeguard construction workers in India. There are two major pieces of legislation governing health and safety laws which are as follows:

  1. BOCW Act: Building and other construction workers (Regulation of Employment and Condition of Services) Act, 1996.
  2. The Building and Other Construction Workers (Regulation of Employment and Condition of Services) Central Rules, 1998.

The BOCW Act was enacted on 20 August, 1996 especially to safeguard the construction workers in India who are at high risk, to benefit them of any disparity done at their cost.

Under the welfare scheme, it is stated that every such worker on a construction site within the age between 18 to 60 years has been working on the site for not less than ninety days in the preceding 12 months and are entitled to be registered as a beneficiary.

Every such worker is entitled to receive benefits such as reimbursement of medical expenses, free medical care, and financial assistance in case of an accident, benefits of maternity benefits, etc, from the welfare fund under the BOCW’s welfare board under the provision of this Act. The wage hours, minimum basic payment, and their weekly rest are laid down in the provision under the BOCW act, following appropriate government decisions:

  • Rule 34 states the right of protection against excessive noise, the noise limit should not limit 90 decibels within 8 working hours.
  • Rule 35 states the provisions of fire extinguishing equipment which is sufficient to extinguish any fire at the construction site. There should be the availability of sufficient water that can be used for the fire extinguishing with ample pressure as per the National Building code or applicable fire safety standards. There should be any trained person on the construction site if any emergency arises and the equipment used must be inspected once a year.
  • Rule 36 states that when the contractor employs more than 500 labours, he should have prepared an emergency action plan to check on the following emergencies: 
  1. Fire or explosion;
  2. Any collapsing if lifting appliances and transport equipment;
  3. Scaffolding;
  4. Any leakage of gas or spillage of chemicals;
  5. Drowning of the worker;
  6. Landslides or any natural calamities.
  • Rule 37 states the proper fencing of motors and revolving machinery, etc.
  • Rule 38 states the rule of the prohibition on carrying excessive weight i.e. more than 55 kg for men and 35 for women.
  • Rule 39 states health and safety policy.
  • Rule 45 states Eye protection.
  • Rule 46 headgear for protection and other apparel.
  • Rule 47 states of Electrical hazards.
  • Rule 54 states the use of safety helmets and shoes.
  • Rule 56(1) test of lifting appliances.
  • Rule 56(2) periodical examination of lifting appliances.
  • Rule 61states Identification and marking of safe working load.
  • Rule 64 operation of lifting appliances.
  • Rule 108-118: safety precautions during the demolition of walls, partition, etc.
  • Rule 208 Safety committee.
  • Rule 209 Safety officer over every 500 workers.
  • Rule 213 Precautions during the handling of explosives.
  • Rule 223 Medical examination of building workers.
  • Rule 225 Safety precautions in hazardous processes.
  • Rule 230 notifiable occupational diseases to building workers.

Key provisions of Work Health and Safety (Construction Work) Code of Practice 2015

The Code of Practice, 2015 has been developed to guide the principal contractor or any other person carrying out the business on how to meet the health and safety requirements under The WHS Act. Under the WHS Act, it explains the type of construction work covered in the regulation and what other related duties are, and the specific duties relating to the construction work, managing risks with the construction work. Under the Act, safe work method statements are given which means a written document that sets out 18 high-risk construction work activities that have to be carried out at the workplace and the hazards and risks arising from this and the measures to minimize the risk. Its main purpose is to help supervisors and workers and to ensure them to take effective measures to carry out these high-risk tasks safely. All the construction workers must have a written WHS document even before the project commences from the principal contractors. The person conducting the business must ensure that the information training and instruction given to the workers are adequate and about the safety measures implemented to eliminate the risks and the true nature of the work that has to be done.

Responsibility of the owner for site safety

The owner of the site has the responsibility to look after every aspect of the construction that is going to happen. Some designers design projects like draftspersons, architects, engineers, and building designers. They must be aware of the shortcomings of the design they have given the layout of, considering the health and safety of the workers working on the site. It is the responsibility of the designer to provide the information on how they have designed the projects without any risk or health issues throughout the lifecycle of the project.

Under the WHS regulation, the person carrying out the business or undertaking the commission construction work has to consult with the designer if there is any chance of risk and health issues and try to eliminate the work. It’s their job to obtain a copy designer’s safety report if they haven’t commissioned the design of the construction project and to give the principal contractor any information on the possible risk and hazards in the vicinity of the workplace.

Under the WHS regulation, the principal contractor for construction has to make sure: 

  1. The signs are installed at the workplace containing his name and his telephone number and are visible from outside the workplace or the area and even where the construction is going on.
  2. Prepare and review the construction from every angle and ensure that the workers are known to the project’s insights.
  3. Obtain safety work management before the high-risk project commences on the site.
  4. He has managed the specific risks to health and safety-related with the storage of the plant that is not in use and movement and disposal of construction materials and wastes at the workplace and the traffic that can be caused by the construction work carried out in the particular area and other essential services to the workplace.

Issues and challenge

The construction industry is a labour-intensive industry that employs almost 56 million people in an unorganized sector in India. The labourers are not able to organize themselves to live a normal life. The reasons can be illiteracy among the people, migration from one state to another in search of employment, or ignorance. During the construction work, there are some issues and challenges faced by them daily and here there are as follows:

  • Lack of safety regulations: The absence of a set of safety regulations is one of the most prominent issues faced by the workers. The workers are not updated with the new technology and constructibility methods.
  • The small size of the construction companies: The Indian Government has encouraged its citizens to establish small businesses that are especially concentrated in construction. The longevity of these businesses is unpredictable therefore investing money in training and equipment is considered an unnecessary cost.
  • Extensive use of subcontractors: The excess use of subcontractors creates chaos on the construction site. Many of the companies doesn’t look for safety but to just earn profits, selling their projects to the subcontractors for a certain percentage of profit. This causes many problems in safety planning, coordination, and allocation of safety, responsibility, and communication.
  • Lack of relevant accident data: The lack of data from the previous accidents that have occurred on the site makes the safety the last concern for the contractors and owners.
  • Extensive use of migrated labourers: Migrant labourers are an important component of the construction work in India. These workers migrate from their city or state in search of a job and are ready to work in any job to establish a reasonable life for their families. Many of them don’t go home for 2-3 years for saving which leads to emotional vulnerability and preoccupation with their problems which can be a distraction in their work.
  • Disorganized labour: The construction sites have workers from different communities, they don’t have any union by which they can defend their rights and secure their work.  Hence, workers are unaware of the possibility of taking a stand for their safety and to defend themselves from the companies’ policies and rules.

Recommendations

The contractor solely should be responsible for ensuring the safety of the workers because those labourers are working under him and he should administer their safety and make sure to take precautions for the tasks that are of high risk. Contractors should provide the safety manual to the owner which has been compiled and designed for the facility. The contractor should have their safety manual. 

                   

Landmark judgment

In the landmark judgment of Brijesh Kumar Verma V. Aurangzeb & Anr, the appellant was granted recovery rights to recover the compensation amount from respondent no. two (contractor) after making the payment of the entire compensation amount to respondent number one. The Commissioner, Employees’ Compensation is directed to initiate the penalty proceedings under Section 4A(3) of the Employees Compensation Act following the law. The appellant is directed to deposit an interest amount with the Registrar General of this Court within four weeks. Vide order dated 9 March 2017, this Court directed the Commissioner, Employees’ Compensation to instruct State Bank of India, Tis Hazari Courts Branch to transfer the aforesaid amount of Rs.75,000.  All the original FDRs shall be retained by the State Bank of India, Tis Hazari Courts Branch.

Conclusion

The workers have no educational knowledge and have received almost no training to improve their competency for the job to allow them to learn how to prevent the risks. The workers pay no heed to their safety because they are unknown to the severity of damages that can be caused. Workers who have a knowledge of safety issues and have undergone training, they should change their perception of safety issues and also encourage other participants on the attainment of safety in the construction site. Employers should comply with the rules and regulations enabled by the government for the safety of their workers.

References


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