Unconstructed safety net of construction workers in India

Media India Group | April 28, 2021

1 in 4 worker dies on construction sites: IIT Delhi study

Despite being the second-largest employer and present in almost every corner of the country, dismal conditions of workplace safety and health hazards of construction workers, leading to large-scale deaths, never make the headlines.

Every morning, groups of men and women squat on pavements in various streets of Delhi, hoping to find the day’s job. They carry their tools and often a measly meal in their bags. Their clothing worn and their skin leathery, the expressions on their faces are weary and resigned. These are construction workers of India, one of the largest sector for employment, but with practically no regulation over working conditions or workplace safety. Even in the national capital, the workers make barely INR 500 a day, and that too on a day that finds work as all of them do not manage to get work every day.

But even those who do manage to find work are not really fortunate ones as their workplace is often a dangerous, ill-equipped construction site. Construction is one of the most hazardous sectors in India, with an average of about 38 fatal accidents a day. Falls from heights, electrocutions and falling walls and scaffolding cause one in four Indian construction workers to die at construction sites, according to a 2019 study by the Indian Institute of Technology (IIT) Delhi.

“I am at the naka or at a site working all day. I cannot take care of her from there, so I prefer she comes with me and earns a bit for the house,” says Meena Ben Rathwa, holding her 14-year-old daughter Jhini’s hand, as they stand at Santnagar Naka in South Delhi, hoping to find work for the day.

Meena Ben and her husband Rajesh Rathwa are among the tens of millions of naka workers – casual workers who gather at a junction to get hired for daily wage work – employed in the construction sector, the fastest-growing and second-largest daily wage employer in India after agriculture. This has been Meena Ben’s livelihood for the past 13 years.

Little data on the huge sector
Nearly 50 million Indians worked in construction between 1983 and 2011-12, and the sector absorbs the largest proportion of rural workers surplus in agriculture. Workers at Santnagar say that despite the uncertainty, they prefer to work in the construction sector because work is more regularly available and wages slightly better than in agriculture.

As per the government of India, the construction sector contributes 9 pc of the GDP and employs 44 million workers, becoming the second-largest employer in India in 2017. “Surprisingly, while it is a huge number by all measures, the sector is also one where the workforce is forced to work in deplorable conditions with no provision of basic shelter, food, sanitation, safety, health care,” says Abhivyakti Raigarhi, a Delhi-based social worker who works with NGO Labourall.

Data on the sector is rare. A 2019 study by IIT Delhi says that around 48,000 people die at work in India every year, out of which 70 pc are construction workers. But Raigarhi says that the numbers may be highly understated as most cases of accidents or deaths at construction sites are not reported at all.

“If someone is injured and dies 15 days later in a hospital or at home, the connection between the accident and the death is very difficult to prove because the person was registered as injured. As more time passes, it becomes harder to establish responsibility,” she explains.

Expansion and management
Kumar Neeraj Jha, a civil engineering professor at IIT Delhi and author of Workplace deaths in India, describes the pattern of evasion of responsibility that repeats itself every time an accident occurs. “When a fatal accident takes place, the employer gets off by paying a small compensation to the families and conspires with police and labour inspectors to make the whole thing go away.”

Labourall says it is common for Indian companies not to invest in occupational safety because it’s cheaper to pay the puny compensation after accidents than to modernise their facilities to make them safer.

Professor Jha says that many agricultural labourers shift hastily towards the construction industry in anticipation of steadier or additional income. “They are hired from remote villages with the promise of a better lifestyle. However, once brought to the city, the workers are left to fend for themselves and provided almost no training, education, or safety mechanisms to protect themselves or their families,” he adds.

In order to curb the exploitation and provide for more safety and increase the effectiveness of employability structures and the benefits, two Central Acts came into being in 1996 – the Building and Other Constructions Workers (Regulation of Employment and Conditions of Service) Act (popularly known as the BOCW Act) and the Building and Other Constructions Workers Welfare Cess Act.

Cyclic nature of problems
The BOCW Act is social welfare legislation that aims to benefit workers engaged in building and construction activities across the country. However, professor Jha says that intentions behind the Act are not fructified on the ground due to multiple reasons.

“Fundamentally, the guidelines of the Act are ambiguous whilst explaining the registration of the worker. With no clarity on who would monitor or authenticate the worker as a bonafide worker, workers face problems in the registration process,” Jha explains.

He further says that the trade unions, which mobilise and unite the labour force in the state also have the authority to authenticate the workers as bonafide. This creates space for malpractices in an area that can easily be regulated. Trade unions often also charge discriminatory prices for naive workers. The registration amount charged is sometimes up to 200 times more than the actual registration charge.

The same practice is often repeated when it comes to the annual renewal of registration. Also as workers often work on different sites with different contractors, their registrations are practically never permanent. “Most often, therefore, they prefer to remain undocumented. This is a process that needs to be looked over by the Labour Offices in order to ensure that registration rates don’t fall, and every worker is documented,” says Jha.

No training for risky tasks
Workers in the construction industry are also poorly trained because their employers know that they are easily replaced. “Their contractors don’t give them adequate training because they know that they are only there on a temporary basis, so they are not interested in investing in their training and safety,” explains professor Jha.

A report by the Delhi Institute of Human Development shows that less than 30 pc of workers have completed secondary education and that only one in 10 receives training specific to their work.

Labourall hopes the situation for workers would improve once the Covid-19 pandemic is under control. “Our efforts, however imperfect, is the first step in shining light on an aspect of the construction industry that most of its prominent stakeholders would rather ignore – a pervasive lack of safety, and an equally shocking lack of government oversight,” says Raigarhi who plans to have a meeting with labour unions regarding the issue as soon as the lockdown currently on in New Delhi ends.

HC asks Delhi govt to provide medical assistance to construction workers infected with COVID-19

The Economic Times | April 22, 2021

The Delhi High Court Thursday directed the AAP government to provide medical assistance to the construction workers who got infected by COVID-19.

The high court directed the Delhi Building and Other Construction Workers Welfare Board, which comes under the Delhi government, to implement its direction of providing medical assistance and not to involve in any complicated procedure which would render the order infructuous.

“The counsel has suggested and we find merit in it that if any construction worker is found COVID-19 positive, he should be provided medical assistance on production of RT-PCR report,” a bench of Justices Vipin Sanghi and Rekha Palli said.

The bench was hearing an application seeking to be impleaded as a party to a petition of advocate Rakesh Malhotra related to COVID-19 testings and infrastructure, which was revived by the high court itself on April 19, in view of surge in coronavirus cases.

The application by National Campaign Committee for Central Legislation on Construction Labour, represented through advocates Shyel Trehan and Chirayu Jain, sought direction to the Delhi government and the Board to frame expeditious procedure for medical relief under The Building and Other Construction Workers (BOCW) Act for building workers and their dependants who get infected by COVID-19.

The counsel said that Section 22(1)(f) of the BOCW Act and Rule 280 of Delhi BOCW Rules provide for medical assistance to be paid in case a building worker or their dependent is affected by major ailment and the financial assistance shall be Rs 2,000 for the first five days and Rs 200 each for remaining days, subject to maximum of Rs 10,000.

The high court had on April 19 said that the Centre and AAP government had miserably failed to think about migrant workers during the 2020 lockdown and lessons were required to be learnt from it as daily wagers were again going to face the grim reality with the imposition of fresh six-day lockdown in the national capital in the wake of second wave of COVID-19.

The high court had said as the Delhi government has announced a six-day lockdown from the night of April 19 to April 26 morning, the reports showed that migrant workers are again going back to their native places from here.

The bench had directed the Delhi government to arrange funds for providing food and other essential items to daily wagers and if need arises, withdraw the amount from the corpus under the Building and Other Construction Workers Welfare Cess Act.

It had added that the Delhi government shall utilise the services of contractors who used to prepare mid-day meals in schools which are closed now.

The high court, on its own, has revived the disposed of petition filed by Malhotra, noting that the virus has raised its “ugly head” once again and the pandemic is raging with much greater intensity and “it is evident that the healthcare infrastructure is at the stage of imminent collapse”.

HC directs CPWD to follow law on workers in Central Vista project

The New Indian Express | March 27, 2021

Central Vista redevelopment is one of the biggest revamp projects taken in Lutyens’ Delhi area around Rajpath.

NEW DELHI: The Delhi High Court has issued notice to the Central Public Works Department regarding the Central Vista redevelopment project directing it to follow the guidelines of the Building and Other Construction Workers (BOCW) Act.The notice has been issued directing the agencies to follow the norms of the Act and other rules concerning the rights of construction workers. In the same order, India Trade Promotion Organisation has also been issued notice for the same concerns at the Pragati Maidan redevelopment project.

It has also directed the secretary of Delhi’s labour department to convene a meeting with the CPWD, ITPO and the petitioners to resolve any other issues. A petition filed by social worker Sunil Kumar Aledia has sought directions to all contractors and sub-contractors of the Central Vista and Pragati Maidan redevelopment project to duly comply with their obligations under the BOCW Act and ensure that all relevant provisions regarding filing of returns, details of construction workers etc. are duly filed by the contractors with the concerned authorities.

Central Vista redevelopment is one of the biggest revamp projects taken in Lutyens’ Delhi area around Rajpath. The project aims to revamp the area between Rashtrapati Bhavan and India Gate, and convert North and South Blocks to publicly accessible museums by creating a new common Central Secretariat to house all ministries. According to the petitioner, almost 5,000-6,000 construction workers are employed at this project.

The Delhi government has been pulled by the court on many occasions in the past over lack of registration of construction workers with the BOCW Act, which makes them eligible for many welfare schemes and protect them from construction agencies harassment, after which the government had even launched two special construction worker registration campaigns in the national capital.

Madhya Pradesh cannot divert funds meant for construction workers’ welfare, Centre tells SC

The Print | Jan 25, 2021

Madhya Pradesh government is seeking a Rs 1000-crore loan from a Rs 1,985-crore corpus that is meant to fund welfare schemes for construction workers.

New Delhi: The central government has opposed Madhya Pradesh government’s application seeking a loan from a fund that finances welfare schemes for construction workers, saying it would amount to diversion of funds.

In an affidavit filed before the Supreme Court last week, the Ministry of Labour opposed the BJP-ruled MP government’s application that sought a modification of an earlier SC order, passed in August 2017, that prohibited states from utilising the funds collected under the Building and Other Construction Workers’ Welfare Cess Act, 1996.

In 2017, a bench led by Justice M.B. Lokur (now retired) had directed the central government and states to implement two 20-year-old laws to augment the living conditions of construction workers and their families.

The two laws — the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 (BOCW Act) and the Building and Other Construction Workers Welfare Cess Act, 1996 — are meant to regulate employment service conditions of building and construction workers, and provide for safety, health and welfare measures.

However, the Madhya Pradesh government has now sought the apex court’s permission to take a loan of Rs 1,000 crore from the state welfare board that presently has around Rs 1,985 crore in its bank account.

According to the MP government, the state suffered financial losses due to the Covid-19 pandemic with its revenue collection falling by 50 per cent.

The matter was taken up by a bench led by Chief Justice S.A. Bobde Monday.

During the hearing, Additional Solicitor General Madhavi Divan said the central government had reservations “over diversion of funds.”

“These funds are specifically for vulnerable construction workers,” the ASG told the bench, which then said that it wanted to hear the statutory board, in-charge of the funds, before deciding the plea.

Funds important to sustain welfare schemes — Centre
The central government’s affidavit detailed the mitigating measures it had undertaken to protect the construction workers against economic disruption caused due to the pandemic.

It noted that, among other things, it had issued guidelines to all states to frame a scheme for the transfer of adequate funds to the bank accounts of construction workers through direct benefit transfer from the cess funds collected under the BOCW Act.

According to the affidavit, all state boards have cumulatively disbursed over Rs 5,000 crore to the bank accounts of 1.83 crore building and construction workers (BOC) during the lockdown and thereafter.

“It is submitted that in order to financially sustain these welfare schemes in the long run, with every increasing base of the BOC beneficiaries, the state boards need significant cess fund corpus,” noted the affidavit.

The two laws — BOCW and the Welfare Cess Act, 1996 — provide social security and welfare benefits to construction workers registered as beneficiaries and utilisation of the fund, by way of loan or any other means, for purposes other than those mentioned in the legislations, may not be permissible and tantamount to diversion of funds, the affidavit added.

Even the 2017 judgment came down heavily on states and warned them to ensure there is no diversion of funds, it noted.

Madhya Pradesh to return loan amount once state exchequer replenished
Meanwhile, according to the Madhya Pradesh government, the Covid-19 pandemic and the subsequent lockdown, which halted all economic activity, led to an acute decline in the state’s revenue.

“Due to the lockdown and spread of Covid pandemic, the revenue collection of the state in the months from April to June 2020 was only Rs 6,551 crore compared to Rs 12,992 crore in the same months in 2019,” noted the state’s application.

Even mining activity remained suspended, leading to sharp reduction in royalties and other taxes.

The decline in revenue receipts in stamps and registration has been 45 per cent, in state excise it is 57 per cent, while reduction of 20 per cent was seen in revenues and taxes on sale and trade, the MP government said.

“This is resulting in financial resource crunch for the state government, specifically for implementation of welfare schemes and completion of ongoing capital infrastructure projects,” read the application.

It added that since the state welfare board had spent around Rs 376 crore on construction workers in 2019-20, hence a loan of Rs 1,000 crore out of the Rs 1,985-crore corpus would not hinder its functioning.

The state also noted that it will return the loan amount to the corpus once its exchequer is replenished within a year.

On the state’s claim that it had to look after interests of a large number of migrant labourers who returned to MP due to Covid-19, Diwan submitted Monday before the CJI-led bench that such persons will be eligible for the schemes in states where they are registered as construction workers.

Pitching for ‘Self-Assessment’ of Welfare Cess, Draft Labour Rules to Hurt Construction Workers

News Click | Nov 16, 2020

It marks a break with legal tradition in the construction sector, wherein till now an assessing officer was authorised to indicate the cess amount payable by the employer.

New Delhi: The amount to be collected as cess towards welfare of the construction workers will be self-calculated by employers, the Centre has proposed in the new draft labour rules. The move, say trade unions, will serve to empower construction companies to further shirk their responsibilities towards labour.

A cess that is not less than 1% of the cost of construction, “shall be paid by an employer in advance, on the basis of his self-assessment duly certified by Chartered Engineer at the time of approval or before the commencement of the work,” stated the draft rules of the Code on Social Security, 2020, notified by Union Ministry of Labour and Employment on Sunday, November 15.

The draft labour rules have been notified by the Centre just days ahead of a general strike call by 10 central trade unions and several federations and associations of workers, including those in the unorganised sector, on November 26.

For the purpose of self-assessment, the employer shall calculate the cost of construction as per the rates specified by the State Public Works Department or Central Public Works Department or on the basis of return or documents submitted to the Real Estate Regulatory Authority, according to the draft rules made public by the Central government for inviting stakeholders’ suggestions within a period of 45 days.

The draft rules, which elaborate the procedure for self-calculation and payment of cess, mark a break with the legal tradition in the construction sector, wherein earlier, under The Building and Other Construction Workers’ Welfare (BOCW) Cess Rules, 1998, an assessing officer was authorised to indicate the cess amount payable by the employer, after scrutinising the information furnished by the latter.

The 1998 rules provided for operationalisation of provisions in the 1996 welfare Act for building and other construction workers, that is now subsumed, along with other eight Central labour enactments, under the social security code – passed by Parliament in September this year.

The Act provided for setting up of a welfare board by each state government for utilising the funds collected through the cess for the welfare of construction workers. The benefits for a registered worker with the board included pension, accident insurance, medical aid, scholarship for children among others.

The unions representing construction workers have flayed the ‘codification’ of the 1996 Act that has led to the “dilution” of its already neglected provisions. “The changes will bred corruption that will result in underestimation of the cess amount,” said Thaneshwar Dayal Adigaur, convenor, Nirman Mazdoor Adhikar Abhiyan, a Delhi-based umbrella body of over 40 registered unions in the city.

According to him, the ‘self-assessment’ provision doesn’t address the issues that are plaguing the cess collection process, which is “grossly delayed or not paid”, especially when it comes to the private construction activities.

“Already, not many private firms are registered with the board. Hence, no cess is collected on construction activities that are carried out by them. When it comes to the ones that are registered, they usually have a history of being not completely honest with the authorities. Allowing them to calculate the cess amount on their own may further give rise to instances of under-collection or ill-calculation of the welfare cess,” said Adigaur, a member of the advisory committee to the Delhi government that oversees matters relating to the construction workers’ welfare board.

Even as an assessing officer retains the authority to issue notices to an employer in case of any discrepancies in the calculation of construction cost and the cess amount, much of their other powers in keeping a check on construction activities have been taken away, as per the draft rules.

The draft rules propose that an assessing officer should visit the construction site only with prior approval from the Secretary of the BOCW concerned. Also, the power to stop construction work – for a period deemed necessary for the purpose of any examination – is now proposed to be withdrawn.

Furthermore, the rate of interest for delayed payment of cess has been reduced from 2% every month or part of a month to 1%, thereby giving a “breather” to the offenders.

A press note by the Labour Ministry on Sunday, however, claimed that the new code entitles even those workers to benefits under BOCW, who have migrated from one state to another. The responsibility to provide benefits in such cases shall lie with the board of the state in which a worker is currently working, it says.

It may be noted that the 2020 Code on Social Security already reduces the coverage of the legal provisions under it by not including any construction work that employs less than 10 workers or any project for residential purposes that is worth up to Rs. 50 lakh. Such a threshold amount was Rs. 10 lakh under the earlier BOCW Act, which also required all the establishments – irrespective of the number of workers employed – to get registered under it.

Subhash Bhatnagar, coordinator, National Campaign Committee for Construction Labour (NCC-CL), rued how the labour codes rob vulnerable construction workers of the legal shield that was meant to protect them. “As many as 64 clauses of the 1996 BOCW Act have now been reduced to only seven (this number is actually nine) under the social security code; while 15 of those under the 1998 rules are now down to only six (which is actually seven),” he told NewsClick.

Bhatnagar admitted that this could be so because “90% of the BOCW Act was related to the safety of construction workers,” who were supposed to find space under The Occupational Safety, Health and Working Conditions (OSH&WC) Code, 2020 –one among the total four labour codes.

Is that the case? Not really, said Bhatnagar, adding that “in fact, what the Centre has done is to compromise the occupational safety provisions for construction workers by clubbing it with other industries.”

He said relaxing the threshold limit for cess collection on residential projects would also put “negative pressure” on the registration of construction workers employed for such activities with the welfare board.

In March, as the country was going through a sudden COVID-triggered lockdown, the Centre issued an advisory asking all state governments to distribute the Rs. 52,000 crore – a cumulative amount collected as cess by the respective BOCW boards – among the 3.5 crore construction workers.

Trade unions had then reportedly pegged the total number of labourers engaged in the sector, and in need of an assistance, to be nearly six crore.

The draft rules, in a bid to provide app-based workers and those within the unorganised sector with benefits under the social security schemes, has provided for an Aadhaar-based self-registration system on the portal of the Central government.

Here again, app-based firms (colloquially known as the gig economy) will be contributing towards the fund for welfare of their workers after self-assessment.

Gig economy companies are required to make contributions to the fund that “shall not exceed five per cent of the amount paid or payable” to its platform workers, the Code on Social Security had stated earlier. As for the funding towards the welfare of unorganised workers, the draft rules have reportedly failed to provide any clarity, say unions.

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