Kerala was the first State to set up a welfare board for construction workers in 1989, becoming a model for the Central Act in 1996
The Central Government’s proposed move to repeal 15 existing laws on social security, including the Building and Other Construction Workers Act 1996 (BOCW), and replace them with a single Labour Code on Social Security and Welfare, has led to much concern among construction workers.
Kerala was the first State to set up a welfare board for construction workers in 1989, becoming a model for the Central Act in 1996. It is also one state where the system has wide reach, with 20 lakh construction workers as members, and regular disbursal of various benefits. Across the country, around 3.5 crore workers are registered under such state-level boards for construction workers.
The funds for the running of the welfare board is raised from the 1% building cess levied during construction of buildings. The benefits provided included pension, accident insurance of ₹4 lakhs, medical aid, scholarship for children and around 15 other benefits. In Kerala, the board even runs an old age home for ‘retired’ construction workers in Thiruvananthapuram, perhaps the only such initiative in the country.
During the COVID-19 pandemic, an amount of ₹1,000 was released to all the 20 lakh registered members in Kerala, in addition to monthly pension of ₹1,300 to 3.5 lakh members.
“Once the board stops to have an independent existence, and is merged with other welfare funds, the construction workers stand to lose out, because it is one of the better managed compared to other funds. The Central Government will also get complete control over the fund, and steps like investment of these funds in the stock market, as it happened with PF fund could happen. The welfare fund is one of the biggest sources of support for existing as well as retired workers. We should only strengthen it, not weaken it,” said V.Sasikumar, Secretary of the Construction Workers’ Federation of India.
On Monday, the Centre of Indian Trade Unions(CITU) organised nationwide protests with five workers in each centre, against the move.
CPI(M) Rajya Sabha MP Elamaram Kareem, a member of the Parliamentary Standing Committee on Labour, says that the Central Act was enacted in 1996 after more than a decade of struggle by workers, and hence the repealing is unjust.
“This is part of the BJP Government’s plans to repeal all existing labour laws and merge them into four separate codes. One of the codes has already been passed in the Parliament without referring to the labour standing committee. The remaining three are in front of the standing committee. Due to the pandemic, the discussions have been held up. Now, under the centre’s pressure the meeting has been fixed on July 17, but many of us would be unable to make it to Delhi. The Speaker has also denied permission for an online meeting,” said Mr.Kareem.
The Federal | BS Nagraj | July 01, 2020 The government has set in motion a process to sell off 41 coal blocks across five states for private commercial mining through auctions
The Narendra Modi government’s cavalier approach to issues concerning the environment is well known. Equally subversive is its naked attempt to disregard a Constitutional provision that enjoins the state to safeguard the rights of tribal populations over land and resources in areas falling under the Fifth Schedule.
The government has set in motion a process to sell off 41 coal blocks across five states for private commercial mining through auctions. The promised moolah that the government expects to rake in at the end of the auction is an estimated ₹33,000 crore. If and when the money flows into the government’s coffers at the end of five years, it would have effectively defanged the Fifth Schedule of the Constitution.
The Fifth Schedule is, as the late Chief Justice of India M Hidayutallah termed it, “A Constitution within the Constitution, or miniature Constitution, for certain scheduled areas of India.” Fifth Schedule areas are those where tribals constitute over 50 per cent of the population and enjoy special rights under The Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996 (PESA), and Forest Rights Act, 2006.
PESA requires that the gram sabha and the Tribal Advisory Council be consulted before any project is undertaken in the Fifth Schedule areas. In all, 10 states have been designated Fifth Schedule areas with the coal blocks to be auctioned located in five of them – Chhattisgarh, Jharkhand, Maharashtra, Odisha, and Madhya Pradesh.
While such consultation has not taken place, the plan to auction the coal blocks also constitutes a blatant violation of the landmark 1997 Samata judgement of the Supreme Court.
In the Samata versus the Andhra Pradesh government case, the apex court ruled that minerals are to be exploited by tribals (in Fifth Schedule areas) themselves either individually or through cooperative societies with the financial assistance of the state, and that transfer of mining lease to non-tribals, company, corporation aggregate or partnership firm, is unconstitutional, void, and inoperative.
The court, while stating that the government has no right to grant mining leases in these areas where lands belong to tribals, had ruled that mining activity in Fifth Schedule areas can be taken up only by the state and that too if it does not violate the Forest Conservation Act and the Environment Protection Act.
Ravi Rebbapragada, Executive Director of Samata, an NGO working for tribal rights which had filed the case in the Supreme Court says, “The decision taken by the government lacks stakeholder participation. Except for the central government and corporates, the other stakeholders were not consulted. It is also a violation of the Samata judgement.”
Since the Samata verdict of 1997, there have been a few other court judgements on similar lines.
In 2013, in the Orissa Mining Corporation Ltd versus Ministry of Environment & Forest (Niyamgiri Judgement) case, a three-judge bench of the Supreme Court said forest clearance to any mining project could be given only in consultation with and after taking the consent of the gram sabhas.
In the same year, in the Thressiamma Jacob & Others versus Department of Mining, Kerala, a three-judge Supreme Court bench headed by Justice RM Lodha held that ownership of minerals should be vested with the landowners. The court declared that the landowner has right not only over the soil but also the subsoil and minerals underneath the surface of his land.
In 2017, the National Green Tribunal cancelled four environmental clearances granted in December 2008 for four blocks in the Chintapalli Mandal in Visakhapatnam district of Andhra Pradesh for bauxite mining. The tribunal’s order came in response to the petition filed by Samata for cancellation of the environmental public hearing held in 2008 under a “curfew-like situation.”
The coal auction decision has been challenged by the Jharkhand government in the Supreme Court even as it appears that the ground made there is that the state government has not been consulted in the matter, rather than that the decision is violative of the Samata judgement.
“Commercial mining is a major policy change and it has to be taken in consultation with states. Unless states come on board, this won’t succeed,” Jharkhand Chief Minister Hemant Soren has been quoted in media reports as saying.
Sarpanches of nine panchayats in the densely forested area of Hasdeo Arand in Chhattisgarh have also written to the prime minister opposing the auction of the coal blocks. In fact, many of these blocks lie in the ecologically sensitive ‘no-go’ areas for mining, as observed by Congress leader Jairam Ramesh in a letter to Environment Minister Prakash Javadekar.
It will be interesting to see if and how the courts will view the current challenge to the coal auction decision. A publication Land and Governance under the Fifth Schedule – An Overview of the Law brought out by the Ministry of Tribal Affairs brought out with the support of the UNDP, notes, “Unfortunately, this (Samata) landmark judgment has not been able to achieve its full potential, and has been the subject matter of considerable debate and semantics.”
Referring to a “telling” Supreme Court ruling in the Balco Employees Union case, the ministry observes that a narrow interpretation of the Samata judgement is “clearly rooted in the alignment of the State with mining interests, rather than on any honest interpretation of the law it lays down.”
“Numerous decisions of the Special Forest Bench of the Supreme Court have permitted extensive industrialisation and mining in forest lands which are the traditional homelands of Scheduled Tribes, without consideration of the Constitutional framework,” it adds.
The District Mineral Foundation funds have nearly Rs 23,800 cr after less than 40% of the amount accumulated over the past five years was spent.
Mumbai/New Delhi: An under-utilized $3.1 billion fund targeted at the poorest in India’s mining belt could prove to be a crucial resource in the South Asian nation’s fight against the coronavirus pandemic.
Created under a new law in 2015, the so-called District Mineral Foundation funds have nearly 238 billion rupees, after less than 40% of the amount accumulated over the past five years was spent, according to data from the country’s mines ministry. The funds were created from contributions by miners in addition to royalty payments and were aimed at improving the lives of people in areas affected by mining.
That could come to the aid of mining states, which decide how the funds should be used, after a nationwide lockdown shut factories, malls and offices, bringing the economy to a halt. As restrictions begin to ease, the states will need the funds to buy protective equipment, strengthen their medical infrastructure and create jobs.
“The DMF has come as a huge support for mining districts,” Amit Kumar, the deputy commissioner of Dhanbad district in Jharkhand known for its coal mines, said on Friday. “At the moment we have seven positive cases, but should the numbers rise, we will not be short on funds to deal with this.”
Dhanbad has used the funds for filling in staff vacancies at hospitals and for water and sanitation projects, an investment that’s being put to good use today, Kumar said.
The contagion is escalating in the South Asian nation of 1.3 billion people, with 150,793 infections, including 4,344 deaths as of Wednesday, according to data from Johns Hopkins University. To combat the virus, India’s government introduced the world’s biggest lockdown in March and extended it until May 31, while easing restrictions in certain sectors to boost economic activity.
The lockdown has had a damaging economic impact, with the country hurtling toward its first full-year contraction in four decades. An estimated 122 million people lost their jobs in April while consumer demand has evaporated.
Under-Utilized “DMFs in various states and districts cannot afford to put the issue of livelihood in the backseat anymore,” Srestha Banerjee, a consultant at Brooking India, said in a report. “Given the urgency of the economic situation, the states and districts must shore-up investments towards this.”
Bureaucratic hurdles, ignorance by local political representatives of the DMF and its aims, lack of monitoring mechanisms and little pressure from the affected communities for its adequate utilization are some of the reasons for the slow deployment of funds in projects, according to Oxfam.
While some states like Chhattisgarh have spent a big portion of the funds on welfare projects, others like Odisha, which has collected the highest amount at 100 billion rupees, have spent about 35% so far, according to the mines ministry.
There is a lack of transparency and public accountability in the implementation of various welfare projects, Oxfam said. There is need for a mandatory monitoring mechanism tracked by the federal government, to ensure these funds are spent on projects that benefit communities and their local environment and livelihood rather than on capital and infrastructure projects only, it said. –Bloomberg
Over 91.3 million people engaged as workers in the construction sector or those with small businesses (mostly in the informal sector) stand jobless as of date.
Covid-19 has taken a serious toll over the employment status, with small traders and labourers being the worst hit. Over 91.3 million people engaged as workers in the construction sector or those with small businesses (mostly in the informal sector) stand jobless as of date. While this brings to the front a series of overlapping themes such as the informal sector, registered versus unregistered enterprises, construction workers, etc., the scope of this article is limited to covering the problems of building and other construction workers, and efforts taken by government institutions at various levels to address these.
In 2015-16, roughly 53 million (11 per cent) of all workers were employed in the construction sector; the workers employed in this sector nearly doubled between 2004-05 and 2015-16. Precisely, over the last three decades (1980‐81 to 2011‐12), there has been a rise to the tune of 1.2 per cent to 9.4 per cent in the construction sector’s workforce, the rate of which is faster than the sector’s contribution to the domestic output.
The rise in the construction sector workforce was propelled by many factors like urbanisation and growth in the number of million-plus cities, prices of cement, and the availability of housing credit. With the rampant rise in employment in the construction sector, migration ensued, to the sites demanding construction labourers. In order to regulate the employment and conditions of service of the construction workers, provision for their safety, health and welfare, and social security measures, the government had enacted the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 (BOCW Act) and the BOCW Cess Act, 1996..
The Acts
The BOCW Act is applicable to every establishment which employs or had employed 10 workers or more, either directly or through a contractor/sub-contractor, with an exception to those buildings/construction work to which Factories Act, 1948 and Mines Act, 1952 applies. While the BOCW Act lays down the provisions for a safe working environment to be complied by every employer towards the employed construction workers, BOCW Cess Act mandates the levy of cess on a list of construction activities at the rate 1-2 per cent of the cost of construction incurred by the employer. The Cess Act enables the state governments and union territory administrations to collect cess from the eligible group of population and utilise the collected money in the welfare of the registered construction workers. States have come up with a bouquet of schemes for the construction workers, for which money is routed to them through the cess funds. Some of the major schemes matched by the cess funds are:
Social Security — like Pradhan Mantri Jeevan Jyoti Bima Yojna, Pradhan Mantri Suraksha Bima Yojna, Pradhan Mantri Shram Yogi Maan-Dhan Scheme, providing safety kits, etc.
Education — Conditional Cash Transfer Schemes to school-going children of the construction workers, keeping a certain level of school attendance as the eligibility criteria
Healthcare — Providing financial packages to pregnant women workers for delivery, providing INR 1 lakh for treatment of critical illness to the construction worker and his/her family, Mahatma Jyotiba Phule Jan Arogya Yojna, etc.
Few important institutional and regulatory aspects touched upon by the BOCW Act, 1996 & the BOCW Cess Act, 1996 are:
Registration of every employer whose construction cost is more than INR 10 lakh (excluding the cost of land). Every employer has to mandatorily submit a Cess Return Form to the Cess Collecting Authority, 30 days before commencement or completion of the works, faltering which he is liable to be imposed with a fine/imprisonment.
Registration of construction workers with the Welfare Board. This ensures streamlining the cess funds to the targeted group of construction workers. Many state governments have initiated the process of online registration/registration renewal for construction workers.
Constitution of Welfare Boards in every State, which will be a nodal agency for provisioning due assistance & welfare support to the construction employers. While the cess is collected by the various departments of the state governments, it is transferred to the Welfare Board Account within 30 days of collection, post which, penalty is levied to the collecting authority.
Decoding the construction spectrum
Taking a closer snapshot of the construction industry in India, it can be categorised across three major segments — infrastructure construction (like roads, highways, power plants, railway lines, dams, bridges, etc.); industrial construction (like pipelines, refineries, boilers, paper-mill/textile plants, etc.); and real-estate construction (like townships, housing projects, residential/non-residential facilities, commercial buildings, etc.).
NSDC Data from 2016 highlighted the structure of the Indian construction industry.
Due to a large number of unorganised players who work on a sub-contracting basis, the construction industry in India becomes highly fragmented. Among the major reasons for the fragmented industry is diseconomies of scale, implying lesser overhead costs and hence, better operational efficiency for small contractors.
All the firms falling in the unorganised sector do not register themselves with the government, and hence falter on the provisioning of social security benefits and a safe working environment to the workers engaged with them. Firms in the unorganised industry segment operate by hiring short term contract labourers and hence save on the cess to the tune of 1-2 per cent of the total worth of construction activity undertaken by them. However, firms in the small, medium and large industry segments that are assigned with big projects may choose to hire only specialised and skilled personnel on regular roles while undertaking a large number of construction activities through the workers on contract labour system. Such firms typically own machinery, with operators employed on a permanent basis. Parallelly, they also appoint unskilled labour or helpers on a daily basis that do not come under the Factory Act and therefore fall outside the safety and social security cover.
Rural/Urban Share: Between the years 2000 and 2012, NSSO Survey data shows that rural construction employment has grown by 2.5 per cent more times than urban construction employment. While the construction activity boomed in urban areas during this period, on the contrary, employment growth was seen in rural areas. This was attributed to the fact that in rural areas, construction workers accorded the construction work as their principal status work, while the same construction work in urban areas was reported as subsidiary status work by the construction workers. This indicated towards the short-term (circulatory, seasonal, or commuting) migration for urban construction workers who were largely employed in short tenure works on a labour-contract system, hence they reported construction as their subsidiary status work, implying their primary engagement in some other activity other than construction.
Number of workers registered state-wise and cess collected: Various state governments have initiated the process of registering the contractors/developers and construction workers for effective cess collection and efficient distribution to the eligible construction workers respectively. Still, there is a state-wide disparity in terms of the amount of cess collected, versus the percentage of the collected amount spent on labour welfare (refer to the maps below). While Uttar Pradesh accounted for the greatest number of construction workers registered with the board till December 2018, the amount spent on construction workers’ welfare remained very low. Similarly, while Maharashtra had the highest cess collected until December 2018, the amount spent was significantly low. The states of Karnataka and Kerala marked the maximum amount of collected cess spent on the welfare of workers registered with the Board.
Source: Ministry of Labour, 2019
Addressing issues with cess collection and disbursement process
Cess collection potential vs actual collection: Cess collection from all the state governments as of December 31, 2018, stood at approximately Rs 46,000 crore. However, based on the discrepancy highlighted by the CAG in the reporting of the cess collection figures, the Supreme Court had raised an alarm towards the understated cess collections as compared to the actual potential. This has made all the state governments undertake a host of actions in the direction of registering establishments and workers.
Governments of Maharashtra, Rajasthan & Haryana, for instance, have developed a dedicated portal for registering eligible establishments under the BOCW Cess Act. However, many establishments have stated limited information regarding the BOCW Cess Act and linked initiatives by the state governments. This results in weak compliance and poor collection of cess amount.
Second, the multiple organisations and institutions involved in the cess collection make it difficult for putting accountability on anyone. With departments of housing, industries, infrastructure, energy, irrigation, etc., appointed as nodal authorities for collecting cess, and thereafter directing the collections to the Labour Welfare Board’s account within 30 days of receipt of cess, there have been instances of delayed payments from the departments. This is primarily because of the lack of penal provisions to these departments, even though the establishments are fined on the account of late cess payment.
Third, government officials across the states have raised the concerns of under-reporting of the construction value of any particular project that registered establishments tend to do, making them pay less cess based on lesser quoted construction value. This calls for a detailed process flow by the state governments, fixing the timelines and accountability on concerned departments entrusted with the cess collection activities and penalising the delay, if any.
Beneficiary Identification & Registration: Every construction worker within the age limit of 18 to 60 years, and who has worked for minimum 90 days during the preceding 12 months, is eligible for registration as beneficiary. In this line, state governments ask for a set of documents like age proof, 90-day work certificate, residence proof, identity proof, and passport size photographs, along with a nominal registration fee of Rs 25.
The primary issues in registering construction workers are:
a) State governments ask workers for the 90-day work certificate from employers stating that they had been hired. However, the contractors who engage them refuse to provide the document.
b) Information asymmetry among the construction workers regarding the registration process. To fix this, some state governments like Maharashtra have established Workers’ Facilitation Centres at the district level to increase registrations and speed up the process.
The rise in construction sector workforce was propelled by factors like urbanisation and growth in the number of million-plus cities, prices of cement, and the availability of housing credit. (Photo: Reuters)
Cess Utilisation in Welfare Activities of Construction Workers: According to the 2018 judgement of Supreme Court regarding the judicial review of the implementation of the two labour welfare laws (BOCW Act, 1996 & BOCW Cess Act, 1996), it was observed that hardly 10 per cent of the collected amount of the cess was utilised for the benefits accruing to the beneficiaries.
While some state governments have taken initiatives like announcing schemes dedicated to labour welfare, supervision of the implementation process, monitoring and evaluation of the intended benefits of these schemes have still to be carried out. Also, the Supreme Court in its 2018 ruling had noted that instead of too many schemes being run by the states as populist policies, under the directions of Ministry of Labour and Employment, one composite Model Welfare Scheme for construction workers has to come in place, after due consultations from all stakeholders.
Further, the 38th report by the Standing Committee on Labour recommends that labour identity cards should be linked with Aadhaar cards to avoid duplication in labour registration. This will enable the Governments to seamlessly transfer the welfare amounts in the account of beneficiaries.
Hence, it becomes imperative for all the state governments to devise guidelines for all contractors to register their establishments as well as construction workers working for them, with the BOCW Board.
By defining the nodal agencies and assigning them with responsibilities, the labour department in each state government must also fix the accountability with these agencies, along with penalty in case of non-compliance/delay.
Lastly, the Ministry of Labour and Employment should in collaboration with the states, initiate an audit of the entire process of fund flow and processes-mapping, so as to evaluate the efficiency and impact of the BOCW Act.
News Live tv | May 21, 2020 New Delhi: The Delhi High Court on Wednesday directed the State government to renew the registrations of around five lakh labourers, who falls under the eligible category as they can get relief during the COVID-19 lockdown. A bench of Justices Vipin Sanghi and Rajnish Bhatnagar asked the Delhi government to renew the registrations of the construction workers who fall under the eligibility criteria under the Building and Other Construction Workers Welfare Act.
The bench has asked the Delhi government to send SMS to the over five lakh workers reminding them for registration. However, the detailed order will be made available later. The court was hearing a petition filed by activist Sunil Kumar Aledia seeking to provide relief and all mandated benefits to workers and migrant labourers.
Appearing for social worker Aledia, lawyer Shiven Varma has sought a direction to concerned authorities to provide relief to workers and labourers and all mandated benefits be provided to them including those who were previously registered in the last two years but have not renewed their membership under the BOCW act.
The plea has sought a direction to concerned authorities to ensure that all workers falling under the scope of the Act who is currently hosted at DUSIB shelter homes and emergency Shelter homes, Labour camps and construction sites are promptly registered under the BOCW Act. The plea has sought an order directing the respondents and concerned authorities to ensure that all the construction workers whose names have been filed by construction companies and employers with the Labour Department are promptly registered as beneficiaries under the BOCW Act.
The plea has also sought a direction to the DSLSA to set up programs and camps to ensure that all eligible construction workers employed in the state of Delhi are registered as beneficiaries under the building act.
Highlighting that due to the lack of responsibility taken by employers, governments and concerned departments alike, these workers are not just left to fend for themselves but are also deprived of the mandated benefits of crores of funds collected in their name, the petitioner said that “the fate of non-registration for welfare schemes has been faced by labourers and workers for far too long, and is particularly inflated by the Covid-19 lockdown.”
“It is a stark reality of Delhi that despite infrastructure projects being taken up by huge companies (including those arising out of lucrative government contracts for government buildings), these poor, uneducated and unaware workers have been left to fend for themselves. Neither the Delhi Government nor the companies/contractors have come forward to facilitate and/or ensure their registration as beneficiaries under said welfare and beneficial Act,” the petition stated.
Aledia, in his petition, has expressed concern with the violation of the right to equality and work, of the workers, whose right to the social welfare schemes and benefits mandated by the Building and other Construction Workers (Regulation of Employment and Conditions of Service) Act (BOCW Act) and the Building and Other Construction Workers’ Welfare Cess Act is being violated due to the violation of the provisions of the Act, as well as non-implementation of its provisions.
“Most construction workers of Delhi are not registered as construction workers, thus depriving them not only of monitoring on whether wages are being paid to them as per the guidelines under the Disaster Management Act, 2005, by their principal employers but also all benefits of the welfare schemes under the BOCW Act including the direct bank transfer relief provided by the government for construction workers,” the petition said.
The lack of implementation of these acts is particularly and greatly highlighted in the city of Delhi by the extraordinary emergent situation created by the Covid-19 pandemic, and it’s undeniably appalling attendant and consequent effects. There are an estimated more than 10 lakh construction workers who work in Delhi, the petition said. (ANI)
Source: Ministry of Labour, 2019