Perils of Construction Workers Draft 1

7/29/2019 Perils of Construction Workers Draft 1

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Perils of construction workers in India

Introduction

They are seen laboriously and meticulously laying bricks on cement-sand mortar up to hundreds

of meters in height, stepping on precariously built make-shift ladders of bamboo loosely tied bycoconut ropes and risking their lives only to make that dream home come true. It is below thisdream that they are forced to live in shanty hutments Once the building is complete they have to

shift with their meager belongings to another construction site. And again the same vicious circle

goes on. This is the irony of the 8.5 million workers working at various construction sites around

India.

Most of the construction workers are migrant labourers and landless labourers from U.P, Bihar,

Orissa, West Bengal, Madhya Pradesh, Rajasthan and other economically weaker regions ofIndia. A majority of them are OBC, Dalit or Scheduled tribes who come to urban centres like

Delhi, Mumbai and other Metros and cities in search of either livelihood or to supplement their

earnings during the lean period when their main source of employment ( agriculture and otherperipheral activities associated with it) is not available in season (i.e. in non-sowing season).

Many other people, especially Tribals, who are forced to leave their ancestral villages due to

reasons like the Naxalite issue,displacement due to dams and other development activitieslike mining and industrialisation, that renders them landless with little or almost no

compensation. These people who for centuries lived as subsistence farmers suddenly turn intolandless peasants who are forced to look for an alternative livelihood. Thus they come to the

urban centers with their only asset-labour power.

It is no surprise that this segment of the working class is the most exploited and vulnerable to all

sorts of scheming by contractors. Thus the purpose of this report is to highlight the absence of aunited voice that these helpless, voiceless workers hope to have but are forgotten and left to their

own misery in the city that takes pride in the buildings constructed with their tears toil sweat andblood.

Before we come to India we would like to throw light on practices around the world

Africa:

The History of Labour Law in Africa

The Wiehahn Commission of Inquiry was established in 1979 to investigate the labour situation

in South Africa. The resultant report of the Commission went on to change the face of South

African labour relations and labour law. The most consequential recommendation made by the

Commission was the extension of freedom of association to cover all persons, irrespective of

race or sex. The result was that trade unions representing Black workers were now able to make

use of the machinery of the Labour Relations Act of 1956.


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The period between 1991-1994 saw the birth of the new democratic South Africa. In 1994, the

Interim Constitution, Act 200 of 1993, came into effect. The Act totally changed the

constitutional basis of the South African legal system and it became clear that the Labour

Relations Act of 1956 was not in line with the new constitutional order.

In 1994, the Department of Labour appointed a Ministerial Legal Task Team to draft new labourlegislation and the Labour Relations Act 66 of 1995 was born and came into effect on 11

November 1996. The Act heralded a new era in South African labour law.

Labour Rights in the Constitution

The Constitution contains a Bill of Rights, Chapter Two, which enshrines the rights of all South

Africans. The following labour rights are enshrined in the Constitution:

Section 18: Freedom of Association Section 23: Labour Relations Everyone has the right to fair labour practices; Every worker has the right to form and join a trade union and to participate in the

unions activities;

Every worker has the right to strike Every employer has the right to form and join an employers organization and to

participate in the activities of the organization; and

Every trade union, employers organization and employer has the right to engage incollective bargaining.

The sources of labour law

The sources of South African labour law include:

Legislation; Judicial precedent (judicial decisions), including arbitration awards; Collective agreements; Common law; and Custom and legal writings

FEATURES:

LABOUR RELATIONS ACT (LRA)


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It is the centrepiece of labour law. All the other labour laws are subordinate to the LRA

Purpose of LRA:

To advance economic development, social justice, labour peace and a democratisation of the

workplace by fulfilling the primary objectives of the Act.

Primary objectives: to realise and regulate the fundamental rights of workers and employers in

the Constitution and to entrench the following rights:

Everyone has the right to fair labour practices Everyone worker has the right to form and join a trade union, to participate in the

activities and programmes of a trade union and to strike

Every employer has the right to form and join an employers organisation and toparticipate in the activities and programmes of an employer's organisation

Every trade union and every employers organisation has the right to determine its ownadministration, programmes and activities, to organise and to form and join a federation.

Every trade union, employers organisation and employer has the right to engage incollective bargaining. National legislation may recognise union security arrangements

contained in collective agreements.

Scope:

It applies to employment relationships between employers and employees and it makes nodistinction whether these are in private or public sector (except the South African National

Defence Force, the National Intelligence Agency, and the South African Secret Services).

Major issues addressed by the LRA:

a) Freedom of association and general protections: Workers have the right to form and to join

trade unions, and employers have the right to form employers organisations. The LRA provides

for the:

Protection of employees and persons seeking employment Protection of employers rights Rights of trade unions and employers organisations


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b) Collective bargaining: The LRA promotes collective bargaining and in particular, sectoral

level collective bargaining, as the desired method of setting wages and conditions of

employment.

This Act strongly promotes centralised bargaining at industrial or sectoral level. The Act does

not contain a statutory right to bargain in the strict sense of the word; however, a duty to bargain

is strongly promoted given the statutory organisational rights now afforded to trade unions. In

terms of collective bargaining, the Act covers the following:

Organisational rights Trade union access to workplace Leave for trade union activities Disclosure of information The exercise of organisational rights Collective agreements Agency shop agreements Closed shop agreements Bargaining councils

c) Strikes and lockouts: Every employee has the fundamental right to strike. The right is

subjected to certain limitations. The following is included in the LRA, in terms of strikes and

lockouts:

Defining strikes and lockouts Forbidden strikes and lockouts Procedures to be followed to engage in protected strike action Legitimate and compliant strikes and lockouts Secondary strikes (sympathy strikes) Picketing Essential and maintenance services Protest action

d) Workplace forums: The role of a workplace forum is to promote the interests of all employees

in the workplace, irrespective of whether they are trade union members but excludes senior

management employees.

Functions of a workplace forum are to:

Promote the interest of all employees in the workplace, whether or not they are tradeunion members

Enhance efficiency in the workplace


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Be consulted by the employer, with a view to reaching consensus, about specific mattersreferred to in Section 84.

Participate in joint decision-making about specific matters referred to in Section 86.e) Trade unions and employers organisations: This section contains the registration and

regulation of trade unions and employers organisations.

f) Dispute resolution: Various forums can be used to resolve disputes in an efficient and cost

saving manner at the lowest possible level. The way in which disputes should be resolved

depends on the reason for the dispute. Resolutions can be done through:

Internalwithin the company The Commission for Conciliation, Mediation and Arbitration (CCMA) The Labour Court The Labour Appeal Court

g) Unfair dismissals and unfair labour practice: Every employee has the right not to be unfairly

dismissed, or be subjected to unfair labour practices. This Act covers the following in terms of

unfair dismissals and labour practice:

Unfair dismissal applications Dismissal based on operational requirements Limits on compensation for dismissal Transfer of a business Amendments to the Insolvency Act Employment contracts Severance pay

A dismissal, according to the LRA, means:

An employer has terminated a contract of employment with or without notice An employee reasonably expected the employer to renew a fixed term contract of

employment on the same or similar term but the employer offered to renew it on lessfavourable terms, or did not renew it.

An employer refused to allow an employee to resume work after she:- Took maternity leave in terms of any law, collective agreement or her contract of

employment


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- Was absent from work for up to four weeks before the expected date, and up to eightweeks after the actual date, of the birth of her child

- An employer who dismissed a number of employees for the same or similar reasons hasoffered to re-employ one or more of them, but has refused to re-employ another.

- An employee terminated a contract of employment with or without notice because theemployer made continued employment intolerable for the employee.

- An employees contract of employment is terminated with or without notice, because anew employer, after the transfer of business, provided the employee with conditions or

circumstances at work that are substantially less favourable than those which were

provided by the old employer.

An unfair labour practice, in terms of the LRA, means:

Unfair conduct relating to the promotion, demotion, probation or training of an employee,or relating to the provision of benefits to an employee (this excludes disputes about

dismissals or a reason pertaining the probation of an employee)

Unfair suspension or other unfair disciplinary action short of a dismissal of an employee A failure or refusal by an employer to reinstate or re-employ a former employee in terms

of any agreement

An occupational detriment, other than a dismissal in contravention of the ProtectedDisclosures Act on account of the employee having made a protected disclosure in that

Act

1.3. BASIC CONDITIONS OF EMPLOYMENT ACT (BCEA)

Purpose: To advance economic development and social injustice by establishing and enforcing

basic conditions of employment.

Primary Objectives:

Give effect to and regulate the right to fair labour practices as contained in Section 23(1)of the Constitution by establishing and enforcing basic conditions of employment.

Give effect to obligations incurred by the Republic as member state of the InternationalLabour Organisation.


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Major issues addressed by the BCEA:

a) Work time and rules

Ordinary hours of work Overtime Extended ordinary daily hours of work Meal intervals Daily and weekly rest period Night work Sunday work and public holidays Emergency work Annual leave Sick leave Maternity leave Family responsibility leave

b) Remuneration and deductions

An employer must pay an employee according to arrangements made between them.Payment may take place daily, weekly, forthrightly or monthly.

An employer may only deduct money from an employees pay if permitted or required todo so by law, collective agreement, a court order or arbitration award. A deduction for

loss or damage caused by the employee in the course of employment may only be made

by agreement and after the employer has established, by a fair procedure, that the

employee was at fault. An employee may agree in writing to an employer deducting a

debt specified in the agreement.

c) Termination of employment

Notice period: During first 6 months of employment1 weeks notice

6 months to 1 year2 weeks notice More than 1 years service 4 weeks notice Notice must be in writing. Termination of employment by an employer on notice in terms of the Act does not prevent

the employee challenging the fairness or lawfulness of the dismissal in terms of the LRA.

An employee must receive fair remuneration on termination.


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d) Administrative obligations

An employer must: Give the employee written particulars of employment when the employee starts

employment. The Minister of Labour must prescribe the required particulars.

Keep these particulars of employment for four years after the end of the contract ofemployment.

Must give employee information concerning remuneration, deduction and time workedwith their pay.

Keep a record of the time worked by each employee and their remuneration. Display at the workplace a statement of employees rights under the Act. On termination of employment, an employee is entitled to a certificate of service.

e) Children and forced labour

Children under 18 may not be employed to do work inappropriate for their age or thatplaces them at risk.

No person may employ a child less than 15 years of age.f) Variations

A collective agreement concluded by a bargaining council or between an employersorganisation and a trade union might replace or exclude any basic condition of

employment.

Bargaining council agreements take preference over other collective agreements, and thelatter in turn take preference over individual agreements.

A bargaining council agreement may vary any provision of the Act; accept the core rightsof an employee.

Other collective agreements include:

Averaging of hours of work

Family responsibility leave Deduction from an employees wages Shorter notice period for the termination of employment Removal of labour inspectors ability to issue a compliance order if the collective

agreement provides for arbitration

Certain conditions of employment within the limits set by the act, e.g. overtime, weeklyrest periods, Sunday work and sick pay.


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g) Monitoring, enforcement, legal proceedings: The Minister of Labour may appoint labour

inspectors who should perform their functions subject to the direction and control of the

Minister.

The function of labour inspectors is to promote, monitor or enforce compliance withemployment laws. They must advise employees and employers on their rights and

obligations in terms of employment laws. They may also conduct inspections, investigate

complaints and secure compliance with employment law.

A dispute concerning the exercise of these rights may be referred to a bargaining councilor to the CCMA. If this does not resolve the dispute, it may be referred to the Labour

Court.

1.5. OCCUPATIONAL HEALTH AND SAFETY ACT (OHSA)

Promulgated in 1993 to make provision for:

The health and safety of people at work and in relation to their use of operatingequipment and machinery

The protection of other people against threats to their health and safety arising fromthe activities of people at work

The establishment of an advisory council for occupational health and safety andrelated matters.

Each employee must take reasonable precautions at work for his/her own safety and health and

that of other people who may be affected by his/her actions or failures.

Each employer must establish and maintain a work environment that is safe and without risk to

the health of its employees. He/she should operate the organisation in such a way that people

who are not employees and who are directly affected by the activities of the organisation are not

exposed to threats to their health and safety as a result. There are separate acts for mining and

shipping merchants.

1.6. COMPENSATION FOR OCCUPATIONAL INJURIES AND DISEASES ACT(COIDA):

This allows for compensation to be aid to an employee who, as a result of his/her activities at

work is partially or totally disabled or contracts an occupational disease.

1.7. UNEMPLOYMENT INSURANCE FUND (UIF)


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Its a compulsory insurance scheme It cant claim in the following instances: Contributors who receive a monthly pension/disability grant from the state or in terms of

the COIDA

Contributor who refused to accept appropriate work Contributor who resigned voluntary, except constructive dismissal Benefits: Illness Maternity Adoption Dependents Unemployment

UIF Contributors Act: 1% of Employee and 1% of Employer

1.8. SKILLS DEVELOPMENT ACT (SDA)

Purpose: The Skills Development Act seeks to develop the skills of the South African

workforce and thereby:

Increase the quality of working life for workers Improve the productivity of the workplace Promote self-employment and the delivery of social services. The Act also seeks to encourage employers to use the workplace as an active learning

environment and to provide opportunities for new entrants to the labour market to gain

work experience.

Special focus is given to improve the employment prospects of previously disadvantagedpersons through education and training.

The objectives of the Skills Development Act are to be achieved by establishing astronger institutional and financial framework than previously existed under the

Manpower Training Act. The National Training Board is replaced by a National Skills Authority (NSA). The NSA

is an advisory body to the Minister of Labour with responsibility for ensuring that

national skills development strategies, plans, priorities and targets are set and adhered to.

Industry training boards are replaced by Sector Education and Training Authorities (SETAs) responsible for developing sector skills plans that correspond to the

national skills strategies and targets.


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Yet these workers, who are creating the base of the new economy, themselves live in a time

warp, trapped in low skilled, low paid, insecure working conditions, bound by feudal working

relationships, often literally in bondage. About one-third of these workers are women and

children.

EUROPEAN UNION

What is Labour Law?

Labour law is a body of legislation that defines your rights and obligations as workers and

employers in the workplace.

At Community level, labour law covers two main areas:

Working conditions, including working time, part-time and fixed-term work, andposting of workers

Information and consultation of workers, including in the event of collectiveredundancies and transfers of undertakings.

How does it work?

The European Community has worked towards achieving a high level of employment and social

protection, improved living and working conditions and economic and social cohesion.

In this framework, the role of the European Community (EC) is to support and complement the

activities of the Member States in the area of social policy, in line with the provisions of the EC

Treaty, particularly Articles 136-139.

To this aim, the EC adopts legislation defining minimum requirements at EU level in the fields

of working and employment conditions and the information and consultation of workers. The

Member States then transpose the Community law into their national law and implement it,

guaranteeing a similar level of protection of your rights and obligations throughout the EU.

National authorities, including courts, are responsible for the enforcement of the national

transposition measures. The Commission controls the transposition of EU law and ensures


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through systematic monitoring that it is correctly implemented. The European Court of Justice

plays an important role in settling disputes and providing legal advice to questions formulated by

national courts on the interpretation of the law.

What are the outcomes?

The adoption of legislation setting minimum requirements has improved labour standards and

strengthened workers' rights and is one of European Union's main achievements in the field of

social policy.

Initially, EC labour law was designed with the aim of ensuring that the creation of the Single

Market did not lead to a lowering of labour standards or distortions in competition. Today,

labour law also has a key role in ensuring that a high level of employment and sustained

economic growth is accompanied by continuous improvement of the living and working

conditions throughout the European Union.

The European Agency for Safety and Health at Work (EU-OSHA):

What we do?

The European Agency for Safety and Health at Work (EU-OSHA) is committed to making

Europe a safer, healthier and more productive place to work. We promote a culture of risk

prevention to improve working conditions in Europe.

TYPES OF ACTIVITIES

a. Campaigning: We raise awareness and disseminate information on the importance ofworkers health and safety for European social and economic stability and growth.

b. Prevention: We design and develop hands-on instruments for micro, small and medium-sized enterprises to help them assess their workplace risks, share knowledge and good

practices on safety and health within their reach and beyond.

c. Partnership: We work side-by-side with governments, employers and workersorganisations, EU bodies and networks, and private companies. Our voice is multiplied

by occupational safety and health network represented by a dedicated focal point in all

EU Member States, EFTA countries and candidate and potential candidate countries.

d. Research: We identify and assess new and emerging risks at work, and mainstreamoccupational safety and health into other policy areas such as education, public health and

research.

How we do it?


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a. HEALTHY WORKPLACES CAMPAIGN: Our major activity for raising awarenessand promoting safety and health at work to various audiences across Europe.

b.

ONLINE INTERACTIVE RISK ASSESSMENT PROJECT (OiRA): Europeaninitiative led by EU-OSHA to develop an easy-to-use and cost-free web application for

creating online risk assessment tools.

c. ESENER ENTERPRISE SURVEY: Europe-wide establishment enterprise surveyexploring the views of managers and workers' representatives on how health and safety

risks are managed in their workplaces.

d. FORESIGHT PROJECTS: Innovative project producing sets of scenarios for 2020,covering new technologies in green jobsand the impact they could have on workers

safety and health.

e. NAPO films: Series of films produced in computer graphics. The stories havean educationalvalue and feature characters in the world of work, faced with safety issues.

Eurofound:

The European Foundation for the Improvement of Living and Working Conditions is a

European Union body, one of the first to be established to work in specialised areas of EU

policy. Specifically, it was set up by the Council: Council Regulation (EEC) No. 1365/75 of 26

May 1975, to contribute to the planning and design of better living and working conditions in

Europe.

Role

Eurofound's role is to provide information, advice and expertiseon living and workingconditions, industrial relations and managing change in Europefor key actors in the field of

EU social policy on the basis of comparative information, research and analysis.

Themes

With the four-year programme From crisis to recovery: Better informed policies for a

competitive and fair Europe, Eurofound's strategic objective for 20132016 is to provide high-


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quality, timely and policy-relevant knowledge as input to better informed policies in four priority

areas:

a. Increasing labour market participation and combating unemployment by creating jobs,improving labour market functioning and promoting integration

b. Improving working conditions and making work sustainable throughout the life coursec. Developing industrial relations to ensure equitable and productive solutions in a changing

policy context

d. Improving standards of living and promoting social cohesion in the face of economicdisparities and social inequalities

Eurofound will provide facts and figures, show trends and analyse policies and practices as the

basis of evidence-based advice for the development of policy responses in these four policy

priority areas.

Target Groups

Eurofound aims to support policy making by:

a. Employersb. EU policymakersc. Governmentsd. Trade unions

EUROPEAN LABOUR LAW NETWORK:

Background

The establishment of a network of European labour law experts was initiated by Prof. Bernd

Waas of the Labour Law Department at the University of Frankfurt (Germany) and Prof. Guus

Heerma van Voss of the Labour Law Department at the University of Leiden (the Netherlands).

The constituting conference of the European Labour Law Network (ELLN) took place in Hagen

(Germany) in 2005.

The ELLN consists of a team of non-governmental legal experts including all European Member

States and EEA countries, and of a Scientific Committee. The ELLN is entirely independent and


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has no affiliation with trade unions, employers' associations or individual employers.

The initial concept for the ELLN was to establish a platform for dialogue between labour law

experts from across Europe and to facilitate the comparison of the different existing national

labour law systems. The ELLNs objective is to provide a framework in which futuredevelopments in labour law throughout Europe can be debated.In December 2007, the ELLN

signed a contract with the Directorate-General for Employment, Social Affairs and Equal

Opportunities of the European Commission in Brussels and consequently acquired a new

dimension. The Network became the European Commissions official advisory board on issues

relating to the developments in individual and collective labour law. The official name then

became European Network of Legal Experts in the Field of Labour Law, dealing with both

individual and collective rights/aspects, hereafter referred to as the Network.In December 2011

there was a renewal of the contract with the Commission.

Objectives

The Network is a tool for the promotion of debates on Europes future developments in labour

law. The aim of the Network is not to achieve greater harmonisation by imposing common rules

on Member States, but to broaden the knowledge of the Member States respective labour law

systems and provide a source of inspiration for national and European law-makers.

New objectives emerged following the signing of the contract with the Directorate-General for

Employment, Social Affairs and Equal Opportunities of the European Union based in Brussels.

By means of its informative role, the Network now contributes to the development and

improvement of labour law.

The Networks target groups are manifold. For example, national governments can benefit from

the outcome of information exchange in terms of the development of national labour law;

employers, trade unions and employees can collect new ideas that they can introduce in

negotiations and policy-making. Members of national courts, lawyers and other jurists may also

find this outstanding source of legal expertise to be very useful.

Activities

The main task of the Network is to provide the European Commission with information on

relevant labour law issues through monthly Flash Reports.

The Networks members also respond to Information Requests forwarded by the European

Commission and are required to give independent advice. They conduct legal analyses and

submit relevant information to the Commission, including, for example, information on the

implementation and application of Directives in the field of labour law, on relevant

developments in national labour law legislation and policies, promoting good practices, and


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drawing attention to areas in which difficulties could emerge (e.g. systematic misunderstandings

by tribunals or administrative agents, the Commission not having full knowledge of all national

legislations and the corresponding problems by Member States to conform to European laws,

extensive criticism from citizens regarding the methods used to implement laws, etc.).

Furthermore, the members of the Network are required to attend the annual legal seminar.During this two-day seminar circa 200 participants (Network members, EC officials, as well as

officials nominated by the Member States, European social partners and other academics)

discuss in-depth a theme related to labour law based on keynote papers and speeches from a

number of experts in this field. For further information on the annual seminar, click on section

events.

In addition to its EU activities, the Network is involved in establishing a restatement of European

labour law. The restatement work will further promote networking and information exchange on

national labour law policies. The goal is mutual learning and understanding by informing

interested parties about the similarities and differences in the respective laws of the EU MemberStates and EEA countries. Although most of the members of the study group are also the

networks legal national experts for the contract with the European Commission, it should be

emphasised that the restatement work of the study group is not supported by the European

Commission.

Besides, ELLN cooperates with the European Labour Law Journal.

Now let us come to India, look at the provisions under the law and the actual status with respect

to implementation of the laws:

Building and Other Construction Workers (Regulation of Employment) Act, 1996

The Building and Other Construction Workers (Regulation and Conditions of Service) Act, 1996

(for short the BOCW Act) provides for regulation of employment and conditions of service ofthe building and other construction workers including their safety, health and welfare measures

in every establishment which employs or employed ten or more workers. The BOCW Act

exempts for the construction of residential houses for own purpose constructed with a cost notexceeding Rs. 10 Lakh. The provisions in the Act for health and safety measures for the

construction workers are in conformity with International Labour Organisation convention

No.167 concerning safety and health in construction sector revising the Safety Provisions

(Building) Convention, 1937.

There is also a provision in the BOCW Act for constitution of safety committees in every

establishment employing 500 or more workers with equal representation from workers and

employers in addition to appointment of safety officers qualified in the field.It also specifies thePenalties of fine and imprisonment for violation and contravention of the BOCW Act.

The provisions of the Workmens Compensation Act 1923, included in the Second Schedule tothe BOCW act applies to building workers.


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The Building and Other Construction Workers Welfare Cess Act, 1996 This act provides for the levy and collection of a cess on the cost of construction incurred by

employers with a view to augmenting the resources of the Building and Other Construction

Workers Welfare Boards constituted under the Building and Other Construction Workers

(Regulation of Employment and Conditions of Service) Act,1996.

Under the Act 1% cess shall be collected from every employer where the cost of construction is

more than Rs. 10 lakhs. The proceeds of the cess so collected shall be paid by the local authorityor the State Government collecting the cess to the Board after deducting the cost of collection of

such cess not exceeding 1% 0f the amount collected. Further, the Central Government may, by

notification in the Official Gazette, exempt any employer or class of employers in a State fromthe payment of cess payable under this Act where such cess is already levied and payable under

any corresponding law in force in that State.

The proceeds of the cess collected under this Act shall be paid by the local authority or the State

Government collecting the cess to the Welfare Board after deducting the cost of collection ofsuch cess not exceeding one percent of the amount collected.

WELFARE BOARDS:

Every State Government shall constitute a Board to be known as the (name of the State) Building

and other Construction Workers Welfare Board to exercise the powers conferred on, and performthe functions assigned to it, under the BOCW Act.

The functions of the welfare boards are - (a) to provide immediate assistance to a beneficiary incase of accident; (b) to make payment of pension to the beneficiaries who have completed the

age of sixty years; (c) to sanction loans and advances to a beneficiary for construction of a house

not exceeding such amount and on such terms and conditions as may be prescribed; (d) to pay

such amount in connection with premium for Group Insurance Scheme of the beneficiaries as itmay be deem fit; (e) to give such financial assistance for the education of children of the

beneficiaries as may be prescribed; (f) to meet such medical expenses for treatment of major

ailments of a beneficiary or, such dependent, as may be prescribed; (g) to make payment ofmaternity benefit to the female beneficiaries; and (h) to make provision and improvement of such

other welfare measures and facilities as may be prescribed.

WELFARE FUND:

The welfare fund is constituted by a Board and the fund is being called as the Building and Other

Construction Workers' Welfare Fund and there shall be credited thereto - (a) any grants and loansmade to the Board by the Central Government; (b) all contributions made by the beneficiaries;

(c) all sums received by the Board from such other sources as may be decided by the Central

Government.

PENALTIES:


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Whoever contravenes the provisions of any rules under BOCW Act shall be punishable with

imprisonment for a term which may extend to three months, or with fine which may extend totwo thousand rupees, or with both, and in the case of a continuing contravention, with an

additional fine which may extend to one hundred rupees for everyday during which such

contravention continues after conviction for the first such contravention.

If any person who has been convicted of any offence punishable under the Act is again guilty of

an offence involving a contravention or failure of compliance of the same provision, he shall be

punishable on a subsequent conviction with imprisonment for a term which may extend to sixmonths or with fine which shall not be less than five hundred rupees but which may extend to

two thousand rupees or with both.

The ESI Scheme is a unique multidimensional self financing social security scheme in which

every contributor is a benefactor and a beneficiary. This integrated scheme of health insurance

provides comprehensive medical cover and cash benefits in the contingencies of sickness,

maternity, disablement and death due to employment injury to the Insured Persons and theirdependants.

Employees, employers, State Govts and the Corporation are the major stake holders in the

system of organized and coordinated effort providing social protection to benefactors. The role

of employers, in particular remains pivotal to the success of the scheme, be it surveys for

coverage, implementation, registration of factories/ establishments, registration of employees,

regular payment of contribution, facilitating inspections and timely action to ensure steady flow

of benefits to the employees.

As on 29

th

July, 2009 due to the temporary and migratory nature of the construction labourers asper Release ID :51160 Minister of State for Labor and Employment, Shri Harish Rawat had

mentioned lack of coverage of construction workers under the ESI ACT.

According to the article Construction workers may be brought within ESI ambit,November 1,

2012 published in The Hindu, a pilot project has been started in Andhra Pradesh and Karnataka

which unlike commercial insurance, the ESI offers multiple benefits for single contribution,

including unemployment benefit, maternity benefit, disability benefit, death benefit and complete

medical care, that too without a pre-medical check-up. Even the retired/permanently disabled

beneficiaries can get medical benefit for self and spouse on a nominal annual payment of Rs. 120

and the quantum of these benefits increase according to the cost of living index as stated byESIC Insurance Commissioner, B.K. Sahu.

The Maternity Benefit Act, 1961

Economic dependence of women is what gives rise to their subordination in society today. Hence

to remove such subordination and lay the foundation of equality women too must be made

economically independent and must take an active role in all sectors of business today. Problem


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faced by women in the economic sphere of life are mostly relating to unequal wages and

discrimination resulting from their biological role in nature of childbearing. To curb such

problems and protect the economic rights of women the legislature introduced the Equal

Remuneration Act, 1976 and Maternity Benefit Act, 1961.

A maternity benefit is one that every woman shall be entitled to, and her employer shall be liable

for, the payment of maternity benefit, which is the amount payable to her at the rate of average

daily wages for the period of her actual absence. The Maternity Benefit Act aims to regulate of

employment of women in certain establishment for certain periods before and after childbirth

and provides for maternity and certain benefits.

Women can claim benefits under the act everywhere except in factories and the other

establishment where the Employees State Insurance Act is applicable. Women who are

employed, whether directly or through a contractor, have actually worked in the establishment

for a period of at least 80 days during the 12 months are eligible to claim the benefits under this

act. Cash benefits to women who are absent from work during the maternity leave, are not be

less than two-thirds of her previous earnings.

Discharge or dismissal during maternity leave is considered to be void. When pregnant women

absents herself from work in accordance with the provision of this act, it shall be unlawful for

her employer to discharge or dismiss her during, or on account of, such absence, or give notice ofdischarge or dismissal in such a day that notice will expire during such absence or vary to her

disadvantage any of the conditions of her services. Dismissal or discharge of a pregnant woman

shall not disentitle her to the maternity benefit or medical bonus allowable under the act except if

it was on some other ground.

Failure to pay maternity benefits or discharge or unemployment of woman due to maternity will

result in imprisonment of the employer for not less than three months which may extend to one

year and a fine of rupees two hundred which may extend to five thousand.

The worker 2 month b fore delivery and 1 month after delivery 50000

The Minimum Wages Act, 1948

The minimum wages Act was passed for the welfare of labours. This Act has been enacted to

secure the welfare of the workers in a competitive market by providing for a minimum limit of

wages in certain employments. The Act provides for fixation by the central government of


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minimum wages for employments detailed in the schedule of the Act and carried on by or under

the authority of the central government, by railway administrative or in relation to a mine,

oilfield or major port, or any corporation established by a central Act, and by the state

government for other employments covered by the schedule of the Act. The object of this Act is

to prevent exploitation of the workers and for this purpose it aims at fixation of minimum wages

which employer must pay.

The Act contemplates that minimum wages rates must ensure not only the mere physical need of

the worker which would keep him just above starvation but must ensure for him not only his

subsistence and that of his family but also preserve his efficiency as a worker. It would therefore,

provide not merely for the bare subsistence of his life but the preservation of the workers and so

must provide for some measure of education, medical requirements and amenities.

As for as the above act is concerned, labours are often paid as per the market rate but on

interviewing the labours, we were told that they are not aware of how much minimum wages are

prescribed by the government, also they said these wages are in negotiation and the type of workthe labours do.

The Minimum wage in Maharashtra is Rs.136 a day .For picking up bricks, the workers are paid

around Rs.150.Masons get paid within the range of Rs.150 to Rs.200/day. At the sites weve

interacted with there is a uniform wage policy.

The Workmens Compensation Act, 1923

Objective

The purpose of this Act is to provide workmen and/or their dependents some relief in case of

accidents, during the course of or because of employment resulting in either death or disablement

of workmen.

Employees Entitled

Every employee (including those employed through a contractor but excluding casual employee),

who is engaged for the purposes of employer's business and who suffers an injury in any

accident arising out of and in the course of his employment, shall be entitled for compensation

under the Act. It is relevant to this project as it covers construction workers as well.Determination of a particular person as a workman under the Act depends on the following

factors:-

(1) Whether his employment was of a casual nature; and

(2) Whether his employment was otherwise for the purpose of employer's trade or business.


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Whether Contractor is a 'Workman'

When a person entered into a construction contract and agreed to work and employ his own

labor, while construction material is supplied by the owner, and the contractor died while

working himself, it is held that the dependents of the deceased are entitled to compensation.

Disablement

Injury caused to a workman by an accident ordinarily results in the loss of the earning capacity

of the workman concerned and this loss of earning capacity is technically "disablement".

Salient Provisions

Accident Compensation is payable when:

The employer is required to compensate an employee who has suffered

a) an accident arising out of and in the course of his employment resulting in the following:

(i) death(ii) permanent total disablement(iii) permanent partial disablement(iv) temporary disablement whether total or partial

Thus there is a connection between the injury, the accident and the work done in the course of

employment. Employment should be the proximate cause of the injury. The three tests for

determining whether an accident arose out of employment are:

(1) At the time of injury workman must have been engaged in the business of the employer and

must not be doing something for his personal benefit;

(2) That accident occurred at the place where he was performing his duties; and

(3) Injury must have resulted from some risk incidental to the duties of the service, or inherent in

the nature or condition of employment.

(b) who has contracted an occupational disease.

Payment of Compensation to Contract Labor


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The principal employer is liable to pay compensation to contract labour in the same manner as

his departmental labour. He is entitled to be indemnified by the contractor. The principal

employer shall not however be liable to pay any interest and penalty leviable under the Act.

Occupational Diseases

Workers employed in certain types of occupations are exposed to the risk of contracting certain

diseases which are peculiar and inherent to those occupations. A worker contracting an

occupational disease is deemed to have suffered an accident out of and in the course of

employment and the employer is liable to pay compensation for the same.

Compensation-when not payable

The employer is, however not liable to pay compensation for the injury to an employee under

any of the following circumstances:

(i) When injury does not cause total/partial disablement for more than 3 days;

(ii) When injury, not resulting in death [or permanent total disablement] is directly attributable to

employee's willful disobedience of the safety rules, or disregard of the safety devices, or the

employee having been under the influence of drink or drugs.

(iii) When the employee has contacted a disease which is not directly attributable to a specific

injury caused by the accident or to that occupation or

(v) When the employee has filed a suit for damages against the employer or any otherperson, in a Civil Court.

Statement of Fatal Accidents

When the commissioner receives information from any source that a workman has died as a

result of an accident arising out of and in the course of his employment, he serves a notice to the

employer who has to reply within 30 days of its service:

(a) Giving the circumstances attending the death of the workman, and

(b) Indicating whether he is or, is not, liable to pay accident compensation.


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If the employer feels that he is liable to pay compensation, he shall make the deposit within 30

days of the service of the notice. If the employer disclaims his liability, he should indicate the

grounds for such disclaimer.

Accident Report

If the accident results in death or serious bodily injury, the employer should send a report to the

Commissioner, within 7 days of the accident, in the prescribed from giving the circumstances

attending the death or serious bodily injury.

Amount of Compensation

The amount of compensation payable by the employer shall be calculated as follows:

(a) In case of death : 50% of the monthly wages x Relevant Factor or Rs. 50.000/-, whichever

is more and Rs. 1000 for funeral expenses.

(b) In case of total permanent disablement specified under Schedule I, 60% of the monthly

wages x Relevant Factor or Rs. 60,000/- whichever is more.

(c) In case of partial permanent disablement specified under Schedule I, Such percentage of the

compensation payable in case (b) above as is the percentage of the loss in earning capacity

(specified in Schedule I)

(d) In case of partial permanent disablement not specified under Schedule I, such percentage of

compensation is payable in case (b) above, as is proportionate to the loss of earning capacity ( asassessed by a qualified medical practitioner).

(e) In case of temporary disablement (whether total or partial), A half-monthly installment equal

to 25% of the monthly wages, for the period of disablement or 5 years, whichever is shorter.

Notes:

(i) 'Relevant Factor' for calculation of the amount of compensation have been specified in

Schedule IV of the Act.

(ii) Where the monthly wages of an employee exceed Rs. 2000/-; his monthly wages for the

purposes of case (a) and (b) above, shall be deemed to be Rs. 2000/- only, (iii) 'Monthly wages'

for this purpose means


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(a) Where the workman has been in continuous service of the employer for a period of at least 12

months preceding the accident.

Total wages due for the last 12 months

Monthly Wages = ----------------------------------------------------

(b) Where the workman has been in continuous service of the employer for a period of less than

12 months, preceding the accident:

Total wages due to the period of 12 months preceding the accident being earned by a similar

workman

(i.e. on same work) Monthly Wages = ------------------------------------------------------

(c) In any other case:

Total wages earned in the last continuous period of service

Monthly Wages = ----------------------------------------------------------------------------- x 30

Number of Days in such period

Continuous service shall be a period of service not interrupted by absence from work for a period

exceeding 14 days.

(iv) 'Wages' for the purposes of this Act, includes any benefit or perquisite expressible in termsof money but excludes traveling allowance / concession, employer's contribution to pension or

provident fund or a sum paid to cover any special expenses incidental to his employment. The

definition of wages is very comprehensive. It includes bonus, night out allowance, dearness

allowance, gratuity, free quarter, food allowance, overtime.

Other problems being faced by labor in the industry

Safety

According toReport of the working group on construction for the 11th five year plan

(2007-2012) there may be a number of rules and regulations covering worker safety such as

Building and Other Construction Workers' (Regulation of Employment and Conditions ofService) Act, 1996 but implementation is the key .Inspections of stipulated measures for safety


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of workers should be properly documented along with names of inspecting officials and dates so

that responsibility for negligence could be fixed. A system of demerit-points can be thought for

action against those contractors who have poor safety records.

Safety is provided in the form of helmets, boots and harness. However lack of awareness of

health and safety issues is one of the biggest issues.

The immediate causes of accidents have been identified as follows:

Failure or collapsing of scaffolding, centering or shuttering Improper guards Night work without proper lighting Inadequate care regarding fire and against electrocution Excessive noise Handling of heavy finished and semi-finished materials like metals

Blasting Underground work.

Health Hazards

Cause Effect

Cement dust irritation to lungs, cancer and skin diseases

Plaster irritation to lungs, eyes and skin; lung cancer

Wood burning asthma and nasal cancer

Sand silicosis

Working at heights blood pressure

Sound loss of hearing; stress; blood pressureHeat heat cramps and sun burns

Vibration numbness of hands and fingers

Repetitive work sprain, rheumatism

Source: DWCD (Feb.1988) . Occupational health issues of women in the unorganized sector,

GOI,pp.108

Mechanization

Unemployment in the construction sector is increasing because of mechanization. Huge

construction sites where flyovers and roads are being built, activities of a large number of

workers are being replaced by sophisticated machinery such as crane-type concrete mixers that

mix the concrete and convey it mechanically to the place where it is required.


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Conclusion

Thus there is an urgent need to have established welfare boards all throughout the country and

make available social security schemes such as ESI for the benefit of the workers

QUESTIONNAIRE

S# Name Gender AgeMarital

status

No years

workingType of work Originality

1Ramaiah Male 25 Single 15 Carpentry AP

2Cheti Male 22 Single 5 Fitting UP

3Ravi Male 35 Married 20 Digging Karnataka

4Hari Male 33 Married 18

Carryingstone Karnataka

5Rama Female 40 Married 21 Carpentry UP

6Shanta Female 58 Married 25

Centering

steel Maharashtra

7Teja Male 28 Married 15 Carpentry AP

8Mahalakshmi Female 30 Married 18 Brick carrier Karnataka

9Dinabandhu Male 34 Married 20 Carpentry UP

10Banwari Male 32 Married 15 Brick carrier UP

After their identification we asked the following questions;


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1. How many hours you work per day?2. What are your monthly or weekly holidays?3. What is your family size?4. Are your children involved in work?5. What is the minimum wages you get?6. How much wages you are entitled and how much you get?7. How is the behavior of the contractor and work supervisor with you?8. Are you aware of Law?9. In case of any unexpected injury are you provided with the firs-aid facilities?10.Do you get your wages on time or the contractor postpones for some time?11.Does the contractor deduct any amount of money in case of your absence from duty,

in case of damages or lossetc?

12.How the police treat you if you have any case against your contractor?13.If a person dies or hardly injures in the workplace and loss an organ of his body,

does the contractor pay any compensation to the concern, if not who else is

responsible?

14.What bonuses are paid by the contractor?

Perils of Construction Workers Draft 1

Documents

Transcript of Perils of Construction Workers Draft 1