Construction workers are one of the most exploited section of India’s workforce. There are an estimated 10-15 crores of such workers in our country, both women and men. Invariably, a vast majority of them are migrant workers, who move from one construction site to another, and one construction company to another. Their very conditions of work make it extremely difficult to organise this vast section of workers, enabling the construction companies to savagely exploit them. The struggle to ensure these workers their rights as workers has been a long standing one.
While the latest technology and machines are used for the construction of large buildings, construction workers live and work under terrible conditions caused by insecurity of livelihood, lack of safety and security at the workplace, and non-implementation of labour laws and specific laws for the industry.
After prolonged struggle, the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 (BOCW Act) was passed. This act stipulates the welfare measures and the Building and Other Construction Workers Welfare Cess Act, 1996, (Cess Act) has been enacted for levy and collection of cess on the ‘cost of construction’ incurred, from the ‘employer’ for use for the welfare of construction workers who are registered with the respective state. The Honorary Chairpersons of Lok Raj Sangathan, late Justice Krishna Iyer and Shri T.S. Sankaran played a significant role in formulating these laws and in assisting workers organisations such as the Nirman Mazdoor Panchayat Sangam and others in demanding the promulgation and implementation of these laws.
The Acts apply to all ‘establishments’ employing ten or more than ten ‘building workers’ in any ‘building or other construction work’ anytime during the preceding twelve months. BOCW ACT requires that employer of establishment to apply to the registering officer for registration of establishment within sixty days from the date of commencement of construction work and CESS ACT prescribes payment of cess of 1% of the cost of construction by the employer.
The acts impose obligations upon developers, employers and give powers to authorities under the Act to take steps for ensuring compliance. But the implementation of these Acts and Rules have been pathetic so far.
The National Campaign Committee for Central Legislation on Construction Labour (NCC-CL) has been raising the demand for the Provision of Grievance Redressal and Dispute Resolution under the 1996 Acts. However, none of the authorities have considered the need to constitute a Grievance Redressal Mechanism and Dispute Resolution Mechanism under the 1996 Acts and under the State/UT tripartite Boards. i In the absence of such a mechanism, the construction workers have been left with no place to go, to address their unresolved problems.
In this situation the central government issued directions under section 60 of the BOCW Act 1996, in September 2015, reversing many of the victories won earlier.
An Affidavit of the Union Labour Secretary has suggested a diversion of Rs. 3250.10 crore per annum from all the State Welfare Boards to the very recently floated central schemes such as Pradhan Mantri Suraksha BimaYojna, Pradhan Mantri Jeewan Jyoti BimaYojna, Atal Pension Yojna, Aam Admi BimaYojna and forthcoming schemes on skill building. This amounts to the diversion of more than 110% of the current annual cess collection of all the State/UT BOCW Boards.
This direction u/s 60 will leave no fund out of the current cess collection for any State/UT BOCW Board to spend for schemes prepared by them. While proposing that the financial support for primary education of the children of beneficiaries should be provided by the State/UT Boards as per their capabilities, it has simultaneous proposed the diversion of 110% of the current annual collection, leaving nothing with these Boards.
This direction has also put forward a totally non practical suggestion of collecting another Rs. 165 for Pradhan Manti Jeewan Jyoti Beema Yojna plus Rs. 1200 for ESIC premium annually as additional contribution from all the construction workers registered as beneficiary.
The experience so far has been that the State/UT Boards have not been to collect annual contribution from more than 90% registered beneficiaries. In such a situation, such boards can never collect this additional contribution of Rs. 1365/- per beneficiary.
This proposal has further imposed the responsibility of ensuring delivery of benefits under Employees Compensation Act, 1973 and other insurance scheme on the Welfare Boards. The Boards have been asked to ensure enrolment under Employees Pension Scheme 1985, Employees Deposit Linked Insurance Scheme.
In spite of the 18th January 2010 Order of the Supreme Court that “Welfare Boards have to be constituted by each state with adequate full time staff within three months”. the Central Government has not taken any step for the appointment of full time adequate staff either at Central Government level or at State & UT Boards levels to provide social security coverage to the construction workers and their family members.
Thus, almost all the assumptions taken up in the submission of the Union Labour Secretary given in the Affidavit are absolutely unrealistic and not based on real facts.
Contrary to the above suggestion of the Union Labour Secretary, the Recommendations of the amicus curaie and the Petitioner in the PIL have highlighted the need of a survey of all the construction activities by all the State/UT Boards so that the correct number of total construction establishments, their size in terms of the cost of construction and total number of construction workers working in each and every State/UT is estimated. This suggestion is based upon the Recommendation of the Audit of BOCW Boards by CAG.
By ensuring education through continuous financial assistance for the benefit of the children of all the construction workers from Class I to the highest Class and by ensuring health insurance to the entire family of a construction worker through ESI, all the Boards should achieve almost total registration and almost total live membership by ensuring regular depositing of annual contribution from almost all the registered beneficiaries.
The NCC-CL has demanded the allocation of the cess fund to different mandatory provisions provided under Section 22 of the BOCW Act, 1996 such as accident compensation, old age pension, loans for construction of house, premium for Group Insurance Schemes, .financial assistance for education of children, medical expenses for major ailments, maternity benefit, etc.
The just struggles of the building and other construction workers for the enactment of legislation to ensure their rights, and the continuing struggles for the enforcement of this legislation, shows clearly that the ruling establishment is least interested in enabling the rights of workers and in ameliorating their conditions of service.
The workers and their organisations have been made to run from pillar to post to ensure implementation of laws passed by the state. The three pillars of the Indian State – the Executive, the Legislature and the Judiciary – have each passed on the buck to the other. Workers organisations have taken their grievances to the door of the Supreme Court repeatedly. The Supreme Court has displayed its powerlessness to force the executive to act on its recommendations. In spite of several warnings to the Ministry of Labour to constitute the State welfare boards and address the demands of construction workers, nothing has happened in several states. In states where the Boards have been formed, they have remained understaffed or inactive. The Ministry has brazenly taken the decision to divert funds from the cess collection to other schemes without addressing the fundamental rights of these workers.
In the period since 1996, several governments have come and gone at the centre and states. Both the Congress and BJP and other regional parties have pretended to be friends of construction workers. But when it came to registering workers in the Boards, they have shown their allegiance to the large construction companies who fund their elections.
The building and other construction workers have to rely on their own strength to get the legislation implemented, just as they relied on their own strength to get the legislation passed in the first place. Lok Raj Sangathan will fight shoulder to shoulder with them to advance their demands, just as it has done in the past.