Construction Workers and Their Problems
A Concept Note

1. Who are construction workers? The Building and Other Construction Workers (Regulation of Employment and Condition of Services) Act. 1996, (referred to as the Main Act) while defining building and other construction work in Section 2 (d), defines 'building workers' as a person employed in construction with any building or other construction work, subject to some exclusions. Will or should persons employed in brick kiln be included in this definition?

Section2(d)" building or other construction work" means the construction, alteration, repairs, Maintenance or demolition, of or in relation to, buildings, streets, roads, railways, tramways, airfields, irrigation, drainage, embankment and navigation works, flood control works (including storm water drainage works), generation, transmission and distribution of power, water works ( including channels for distribution of water), oil and gas installations, electric lines, wireless, radio, television, telephone, telegraph and overseas communication, dams, canals, reservoirs, watercourses, tunnels, bridges, viaducts, aqueducts, pipelines, towers, cooling towers, transmission towers and such other work as may be specified in this behalf by the appropriate Government, by notification but does not include any building or other construction work to which the provisions of the Factories Act, 1948, or the Mines Act, 1952, apply"
It is also to be pointed out that the definition of 'building and other construction work' does not include any building or other construction work to which provisions of the actories Act 1948 or the Mines Act. 1952 apply. What is the significance and implication of this exclusion?

2. What is the present status of implementation of the above mentioned 1996 Act, and the Building and other Construction Workers' Welfare Cess Act 1996 (hereinafter the referred as the Cess Act) in various Sates/Union Territories and in the Central Government? What are the reasons for the delay in implementing both the laws even after the lapse of seven years and more? Have all the State Government/ Union Territory Administrations published the Rules under the Main Act? Have Expert Committees as contemplated in Sec. 5 of the Main Act. been constituted to facilitate the making of Rules under Act? To what extent, has the Central Govt. used the powers conferred on it under Section 60 to give directions?

3. Will the delay in promulgating Rules under the Main Act. stand in the way of collecting Cess under the Cess Act? Cant Cess be collected, if need be, with retrospect effect from 3.11.1995, or at least form 26.3.1998 when the Central Govt. made the Rules under the Cess Act.? Section 3 (3) of the Cess Act stipulates that the Cess collected should be made over the Board (setup under Section 18 ( 1),of the Main Act.); notwithstanding the delay in seething up the Boards by various States/ U.Ts. Cannot the Cess be collected by the local body concerned and kept in deposit by the State Govt/ UTs until the Board is constituted when the amounts can be transferred to the Board? There can be no justification for not collecting the cess, authorised by Statute. Even on a modest estimate the amount of the cess so far left uncollected by States/ UTs must run into thousands of crores, the money that legitimately belongs to the construction workers, to be used for their welfare and Social security. What alibi can state Govts/ UTs put forward, for this serous omission/ lapes?

4. While the Main Act carries ' Regulation of Employment' in its tital and even the preamble refer to it as "An Act to regulate the employment………..;" the Act has no provision for regulation employment. There is only provision for registering the employers and beneficiaries ( the very description of workers as beneficiaries is repugnant; they must be considered to be participants and not merely recipients of any benefits). In this connection, the related provisions in the Tamil Nadu Manual Workers ( Regulation of Employment and Condition of Workers ) Act. 1982 may be seen: Section 3 is the Tamil Nadu Act refers to Schemes for ensuring regular employment of manual workers: Sub Sections (1), 2 (c) . 2(d) 2 (e), and 2(f) are relevant. Particular attention is drown to sub section 2 (e) and (f) which are reproduced below:-

" 3(2)(e) for securing that, in respect of period during which employment or full employment is not available to manual workers though they are available for work, such manual worker will , subject to contain of the works, receive minimum wage;.

3(2)(f) for prohibiting, restricting or otherwise the employment of manual worke4rs to whom the scheme does not apply, and the employment of manual workers by employer to whom the scheme does not apply.

These provision in the Tamil Nadu Act. follow closely the provision contained as scheme 3 of the Dock Workers ( Regulation of Employment) Act 1948, a Central Act. Appropriate provisions for regulation of employment, for establishment of autonomous tripartite Board for regulating employment, amendments of term and conditions of services, for dispute resolutions, for implementation the programme and scheme and the Act. are a must if the construction workers are to be given a fair deal. This has presently been the stand right through of the National Campaign Committee for Construction Workers under the chairmanship of Justice V. R. Krishna Iyer, retired Judge for the Supreme Court of India. This point cannot be overlooked or glossed over. Building and Construction work is an essential part of all activities, both government /quasi govt. and private, and accounts for a very high percentage of expenditure of government and government organization, both plan and non plan.

5. While looking at the Main Act, an important issue will be the relationship between the Main Act and similar legislations, if any in any of the States. Section 63 of the Main Acts states that" Nothing contained in this Act shall affect the operation of any corresponding law in a State providing welfare scheme which are more beneficial to the building and other construction workers than the provided for them by or under this Act".

Taking the Tamil Nadu Manual Workers ( Regulation of Employment and Condition Service ) Act. 1982 and the Tamil Nadu Manuel Workers ( Construction Workers) Welfare scheme 1994 under it, as and example; one find that the coverage under the Main Acts and the Tamil Nadu Scheme are different; while the Main Act applies only to establishment which employee or had employed on any day of the proceeding twelve months ten or more building workers in any building and other construction worker' ( section 1 (4)) , the Tamil Nadu scheme has no such employments limit and applies to all establishment where the construction workers are employed.

On the other hand, while the Cess under the Main Act is 1 % (up to a maximum of 2% ) of the cost of the project, it is only 0.3% under the Tamil Nadu Scheme. Further whereas the Main Act has in sector 16 provision for contribution to be made by the worker to the fund, Tamil Nadu Scheme as it operates now does not call for any contribution to be made by or collected form the workers.

Above all, whereas Tamil Nadu Act, as already indicated in Para (4) above, has provisions for regulation of employment, the Main Act does not have such provisions . In these circumstances, to compare State Law with the Main Act for purpose are of Section 63. appear to be a futile exercise.

The problem become ever more diffuse if already there are non statuary Schemes in any State providing for welfare and social security to construction workers. Some States like Karnataka and Andra Pradesh have drafted Bills in respect of workers in the Unorganized Sector and a comparison of the Main Act with those Bills may be fruitful .
Above all the Central Government has introduced a Bill to cover all workers in the unorganized sector; construction being one such sector, it will be interesting to see what the Central Bill will have vis a vis the Main Act.

6. The discussion in para 5 about raises a fundamental question as to whether Central Govt. should at all have any executive role in respect of unorganized sector workers, other than having a coordinating , standard setting and supervising role besides providing appropriate financial assurance to the Stats and Union Territories. There is no reason why the Central Govt. should have a welfare fund for Construction Workers, Agriculture Workers and so on. In fact it is a moot point whether the Central Govt. need at all be the appropriate govt. in respect of not only such laws but also in respect of Minimum Wages Act, Inter State Migrant Workers Act and so on.

7. An important question that arises when we examine the legal provision relating to one section of unorganized sector workers, such as construction workers that we are now considering, is whether such a sectoral approach is desirable and whether this may result in divisive forces among different sector of unorganized works. If the various such workers are to be covered by different set of welfare funds, then it may happen that those sectors where income to the fund by levy or Cess on the activity concerned can be large will always stand out as the favored one, compare to those sections where incomes to their funds may not be adequate, comparatively or even absolutely.

Also the mode of collection of the Cess may not be easy. For example, while in the case of the Cess Act, the Cess is collected by the local bodies at 1% of the cost of construction is easy. In the case of, say agriculture, the problem of levy and its collection will be enormous. If, for this reason , we think of a single fund for all sectors, then it may be more logical to have a universal social security levy rather than different kind and levels of levies for the various sectors.

Considering that 92% of the work force is in the unorganized sector and such workers and their families will constituted the bulk of the population, is a system of universal social security not preferable? How will this be designed, particularly in the matter of financing and prioritizing the various kinds of social security benefits are all the details that need to be worked out. This will require the adoption by the country of a National Social Security Policy which should contain the resolved that the present level of pension expenditure on social security as a percentage of GDP be progressively raised, so that by the next two years or so at least 15% of the GDP is set apart for social security.


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