Chapter 3(C) The Building and Other Construction Workers Act, 1996 – CS Professional Labour Laws and Practice Notes is designed strictly as per the latest syllabus and exam pattern.
The Building and Other Construction Workers Act, 1996 – CS Professional Labour Laws and Practice Study Material
Question 1.
“Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 (BOCW) was enacted to regulate the employment and conditions of service and to provide for safety, health and welfare measures for crores of building and other construction workers in the country”. One of the welfare measure to the workers by the builders is “Accommodation”. Explain the statutory provisions in this regard as per the Act. (Aug 2021, 3 marks)
Answer:
Accommodation :
According to Section 34 of the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996, it shall be duty of the employer to provide, free of charges and within the work site or as near to it as may be possible, temporary living accommodation to all building workers employed by him for such period as the building or other construction work is in progress.
Such temporary accommodation shall have separate cooking place, bathing, washing and lavatory facilities.
As soon as may be, after the building or other construction work is over, the employer shall, at his own cost, cause removal or demolition of temporary structures so erected by him and restore the ground in good level and clean condition.
In case an employer is given any land by a Municipal Board or any other local authority for the purposes of providing temporary accommodation for the building workers under this section, he shall, as soon as may be after the construction work is over, return the possession of such land in the same condition in which he received the same.
Question 2.
Briefly discuss the hours of works, welfare measures and other conditions of Building Construction Workers. (Dec 2021, 6 marks)
Answer:
Chapter VI (Sections 28-37) of the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 makes provisions for working hours, overtime wages and other social welfare of building workers.
The Appropriate Government may, by rules, (a) fix the number of hours of work which shall constitute a normal working day for a building worker, inclusive of one or more specified intervals; (b) provide for a day of rest in every period of seven days which shall be allowed to all building workers and for the payment of remuneration in respect of such days of rest; (c) provide for payment of work on a day of rest at a rate not less than the overtime rate.
Further for welfare measures and other conditions of service of building workers, the Act provides provisions pertaining to wages for overtime work; maintenance of registers and records; Prohibition of employment of certain persons in certain building or other construction work; drinking water; latrines and urinals; accommodation; creches; first aid and canteens, etc.
Question 3.
Discuss the constitutional validity of ‘Building and other Construction Workers (Regulation of Employment and Conditions of Service) Act’ with the help of decided cases. (Dec 2021, 6 marks)
Answer:
Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 was enacted to regulate the employment and conditions of service and to provide for safety, health and welfare measures for construction workers in the country and for other matter connected therewith or incidental thereto.
The constitutional validity of the BOCW Act and the Cess Act was challenged in the Delhi High Court by the Builders Association of India. As regards the BOCW Act it was contended that it is bad for vagueness and as far as the Cess Act is concerned, it was contended that the cess is a compulsory and involuntary exaction without reference to any special benefit for the payer of the cess and therefore the cess was in fact a tax. It was contended that Parliament lacked legislative competence to impose a tax on lands and buildings which was the effect of the Cess Act.
In Builders Association of India v. Union of India, ILR (2007) 1 Del 1143 the contentions urged were repelled by the Delhi High Court and the constitutional validity of the BOCW Act and the Cess Act was upheld.
The decision of the Delhi High Court was challenged and that challenge was repelled in Dewan Chand Builders & Contractors v. Union of India (2012) 1 SCC 101. The Supreme Court, while upholding the constitutional validity of both the Acts, noted the scheme of the BOCW Act in the context of Article 21 of the Constitution and observed as follows:
“It is thus clear from the scheme of the BOCW Act that its sole aim is the welfare of building and construction workers, directly relatable to their constitutionally recognised right to live with basic human dignity, enshrined in Article 21 of the Constitution of India. It envisages a network of authorities at the Central and State levels to ensure that the benefit of the legislation is made available to every building and construction worker, by constituting Welfare Boards and clothing them with sufficient powers to ensure enforcement of the primary purpose of the BOCW Act. The means of generating revenues for making effective the welfare provisions of the BOCW Act is through the Cess Act, which is questioned in these appeals as unconstitutional.’’
The interpretation of the BOCW Act and the Cess Act was again considered in A. Prabhakara Reddy and Company v. State of Madhya Pradesh (2016) 1 SCC 600. The emphasis in this case was on registering the construction workers and providing them necessary benefits. Since the levy of cess is a fee, it was urged that urgent steps should be taken for implementation of the two Acts. It was further observed that merely because there was some delay in the effective implementation of both the statutes it could not be a ground for invalidating the levy of cess, nor could the levy of cess be said to have retrospective application.
Question 4.
What is the rationale for enacting Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act.
Answer:
- Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act was enacted to regulate the employment and conditions of service and to provide for safety, health and welfare measures of building and other construction workers in the country.
- The Act is applicable to every establishment which employs 10 or more workers in any building or other construction work.
- The Act exempts for the construction of residential houses for own purpose constructed with a cost not exceeding ₹ 10 Lakh.
- The object of the Act is to confer various benefits to the construction workers, like fixing hours for normal working days, weekly paid rest day, wages for overtime, basic welfare amenities at site, temporary living accommodation near site, safety and health measures, etc.
- Every State is required to constitute a State Welfare Board to provide assistance in case of accident, to provide pension, to sanction loans, to provide for group insurance, to provide financial assistance for educating children, medical treatment, etc.
Question 5.
Is Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act(BOCW Act) constitutionally valid?
Answer:
The constitutional validity of BOCW Act was challenged in various cases.
Builders Association of India v. Union of India :
- Builders Association of India v. Union of India the constitutional validity of the BOCW Act and the Cess Act was challenged in the Delhi High Court by the Builders Association of India.
- It was contended that it is bad for vagueness and as far as the Cess Act is concerned, it was contended that the cess is a compulsory and involuntary exaction without reference to any special benefit for the payer of the cess
- In the said case, Delhi High Court upheld the constitutional validity of the BOCW Act and the Cess Act stating that sole aim is the welfare of building and construction workers, directly relatable to their constitutionally recognised right to live with basic human dignity, enshrined in Article 21 of the Constitution of India.
A. Prabhakara Reddy and Company v. State of Madhya Pradesh :
- The said case emphasised on registering the construction workers and providing them necessary benefits.
- It was further observed that merely because there was some delay in the effective implementation of both the statutes it could not be a ground for invalidating the levy of cess.
Question 6.
Explain the applicability of BOCW Act.
Answer:
- BOCW Act applies to:
- Whole of India including J&K.
- Came into force on the 1st day of March, 1996.
- It applies to every establishment which employs, or had employed on any day of the preceding twelve months, 10 or more building workers in any building or other construction work.
- BOCW Act is not applicable to:
- a person who is employed in a managerial or administrative capacity
- a person who is employed in a supervisory capacity, draws wages exceeding 1600 p.m.
- Any building or construction work to which the provisions of the Factories Act, 1948 or the Mines Act, 1952 are applicable.
- Establishment which employs, or had employed on any day of the preceding twelve months < 10 building workers in any building or other construction work.
- An individual who employs such workers in any building or construction work in relation to his own residence the total cost of such construction amounting <10 lakhs.
Question 7.
How is Builder Worker defined in BOCW Act?
Answer:
- Building Worker” means a person who is employed to do any skilled, semi-skilled or unskilled, manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be expressed or implied, in connection with any building or other construction work .
- It does not include any such person who is-
- Employed mainly in a managerial or administrative capacity
- Employed in a supervisory capacity, draws wages >1200 p.m.
- Act applies to casual workers and daily wage workers.
Question 8.
What is Central Advisory Committee and how is it constituted?
Answer:
- The Central Government shall constitute the Central Building and Other Construction Workers’ Advisory Committee (Central Advisory Committee).
- The Committee shall advise the Central Government on such matters arising out of the administration of BOCW Act as may be referred to it.
- The Central Advisory Committee consists of –
- 1 Chairperson to be appointed by the Central Government;
- 3 Members of Parliament (2 elected by the House of the People and 1 by the Council of States -members)
- the Director-General -member, ex officio
- Such number of other members, (>9 but <13, representatives from employers, building workers, associations of architects, engineers, accident insurance institutions and any other interests).
Question 9.
What is State Advisory Committee and how is it constituted?
Answer:
- The State Government shall constitute the State Building and Other Construction Workers’ Advisory Committee (State Advisory Committee).
- The Committee shall advise the State Government on such matters arising out of the administration of BOCW Act as may be referred to it.
- The State Advisory Committee consists of –
- 1 Chairperson to be appointed by the State Government
- 2 Members of State legislative assembly
- 1 Member nominated by Central Govt
- Chief Inspector -member, ex officio
- Such number of other members, (>7 but <13, representatives from employers, building workers, associations of architects, engineers, accident insurance institutions and any other interests).
Question 10.
What are the provisions regarding registering an establishment under BCOW Act?
Answer:
- Any establishment to which the Act applies need to register itself within 60 days of the applicability.
- Every such application shall be in such form and shall contain such particulars and shall be accompanied by such fees as may be prescribed.
- The Registering Officer shall register the establishment and issue a certificate of registration to the employer in such form and within such time and subject to such conditions as may be prescribed.
Question 11.
What are the provisions relating to environment of construction workers?
Answer:
- Drinking Water
- Drinking water should be made available by employer at suitable and convenient points.
- ‘Drinking water’ should be written legibly.
- It should not be situated within six metres of any washing place, urinal or latrine.
- Accommodation
- Accommodation Free of charges and within the work site or as near to it.
- Such temporary accommodation shall have separate cooking place, bathing, washing and lavatory facilities
- Urinals
- Employer should make available urinals at suitable and convenient points.
- it shall not be necessary to provide separate urinals in any place where less than 50 persons are employed
- Creches
- Employer should make available creches if there are 50 or more females building workers.
- Creche should be available for children <6 years
- Such creche rooms shall be clean, hygienic and lighted
- Canteen
- Employer should make available canteen if there are 250 or more building workers.
Question 12.
What are the powers of Appropriate Government to make rules for the safety and health of building worker?
Answer:
Following rules can be made for safety and health of building worker by Appropriate Govt:
- Safe means of access to, and the safety of, any working place
- Precautions to be taken in connection with the demolition of the whole or any substantial part of a building or other structure
- Handling use of explosive under the control of competent persons so that there is no exposure to the risk of injury from explosion
- Installation, use and maintenance of transporting equipment, and appointment of competent persons to operate such equipment
- Installation, use and maintenance of hoists, lifting appliances and appointment of competent persons on hoists or other lifting appliances
- Suitable lighting of every workplace
- Precautions to be taken to prevent inhalation of dust, fumes, gases or vapours
- Safe handling and use of plant, including tools and equipment operated by compressed air
- Limitation on weight to be lifted or moved by workers;
- Safety policy to be framed by the employers and contractors for the operations to be carried on in a building or other construction work
- Information to be provided to the Bureau of Indian Standards established under the Bureau of Indian Standards Act, regarding the use of any article or process covered under that Act in a building or other construction work
Question 13.
What are the powers of an Inspector under BCOW Act?
Answer:
Enter, at all reasonable hours, any premises or place where building or other construction work is carried on, for the purpose of examining any register or record or notices required to be kept or exhibited by or under this Act, and require the production thereof for inspection
Examine any person whom he finds in any such premises or place and who, he has reasonable cause to believe, is a building worker employed therein
Seek information from any person giving out building or other construction work to any building worker, which is in his power to give with respect to the names and addresses of the persons to, for and whom the building or other construction work is given out or received, and with respect to the payments to be made for the building or other construction work;
Seize or take copies of such register, record of wages or notices or portions thereof as he may consider relevant in respect of an offence under this Act which he has reason to believe has been committed by the employer
Exercise any such other powers as may be prescribed.
The Building and Other Construction Workers Act, 1996 Notes
- Object of enactment of Construction Workers (Regulation of Employment and Conditions of Service) Act
- To regulate the employment and conditions of service.
- To provide for safety, health and welfare measures of building and other construction workers in the country.
- To fix hours for normal working days, weekly paid rest day, wages for overtime, basic welfare amenities at site, temporary living accommodation near site, safety and health measures, etc.
- To provide assistance in case of accident, to provide pension, to sanction loans, to provide for group insurance, to provide financial assistance for educating children, medical treatment, etc.
Gist of Safety, health and Welfare provision for building & construction workers
Drinking Water
- Drinking water should be made available by employer at suitable and convenient points.
- ‘Drinking water’ should be written legibly.
- It should not be situated within six metres of any washing place, urinal or latrine.
Accommodation
- Ac mmodation Free of charges and within the work site or as near to it.
- Such temporary accommodation shall have separate cooking place, bathing, washing and lavatory facilities
Urinals
- Employer should make available urinals at suitable and convenient points.
- it shall not be necessary to provide separate urinals in any place where less than 50 persons are employed
Creches
- Employer should make available creches if there are 50 or more females building workers.
- Creche should be available for children < 6 years
- Such creche rooms shall be clean, hygienic and lighted Canteen
- Employer should make available canteen if there are 250 or more building workers. Committees under BCOW Act Central Advisory committee:
- The Central Government shall constitute the Central Building and Other Construction Workers’ Advisory Committee (Central Advisory Committee).
- The Committee shall advise the Central Government on such matters arising out of the administration of BOCW Act as may be referred to it.
- The Central Advisory Committee consists of –
- 1 Chairperson to be appointed by the Central Government;
- 3 Members of Parliament (2 elected by the House of the People and 1 by the Council of States—members) the Director-General – member, ex-ofticio
- such number of other members, (>9 but <13, representatives from employers, building workers, associations of architects, engineers, accident insurance institutions and any other interests). State Advisory committee:
- The State Government shall constitute the State Building and Other Construction Workers’ Advisory Committee (State Advisory Committee).
- The Committee shall advise the State Government on such matters arising out of the administration of BOCW Act as may be referred to it.
- The State Advisory Committee consists of –
- 1 Chairperson to be appointed by the State Government
- 2 Members of State legislative assembly
- 1 Member nominated by Central Govt
- Chief Inspector – member, ex-officio
- Such number of other members, (>7 but <13, representatives)