May 12, 2021

The Building & Construction Workers' (Regulation of Employment & Conditions of Service) Act, 1996, and Rules, 2004 drafted there under aims to govern the employment and circumstances of service of building & other construction workers and provide for their security, well-being, and welfare measure. It comprises construction, alteration, servicing, maintenance, or demolition of buildings, streets, paths, railroads, tramways, airfields, irrigation, sewerage, dam, and navigating work, flood control works, generation, synchromesh, and distribution of power, waterworks, oil and gas installation, electric lines, radio, wireless, television, phone line, communications, and abroad communications, canals, reservoirs, watercourse, subways, bridges, viaducts, pipelines, aqueducts, towers, and cooling towers, broadcast towers, etc. Every building worker within the age limit of 18 to 60 years and who has served for not less than 90 days during the past 12 months shall be qualified for the registration of the beneficiary under this act. The government has established the West Bengal Building and Other Construction Worker's Welfare Board as per the act for administrating the benefits under the plan and all subjects related to the West Bengal Building & Other Construction administration worker's welfare fund. The committee is a corporate body. The Hon'ble MIC, Labor is the Chairman of the committee.

There are more than 28 million skillful and amateur workers involved in the construction sector in India. The area is labor-intensive, and most of the laborers are untrained, unorganized, and tend to work under inhuman and pathetic circumstances. To approach such inhumane working conditions and poor health and safety standards in the real estate industry, the Government of India enacted the Building and Other Constructions Workers (Regulation of Employment and Conditions of Service) Act, 1996 (hereinafter referred to as the "BOCW Act"). The BOCW Act is social welfare act that aims to serve workers employed in building and construction activities over the country. The preamble of the BOCW Act clarifies the said goal:

"An act to regulate the employment and conditions of service of building and other construction workers and to provide for their safety, health and welfare measures and other matters connected therewith or incidental thereto."

The BOCW Act’s ambit is extended, particularly in a country where the infrastructure and construction areas have seen important growth. The objective of the BOCW Act and its structure is similar to other labor law legislation, but in particular, the BOCW Act is related to the Factories Act, 1948.

The BOCW Act stipulates well-being, security, and health criteria applicable to building workers. Building worker described in Section 2(e) of the BOCW Act as "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."

Since a building worker is described as a person involved in a building or construction job, the description of "building or construction work" is to be scanned into.

As per Section 2(d) of the BOCW Act, "building or other construction work" includes "the construction, alteration, repairs, maintenance or demolition- of or, concerning, 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, waterworks (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 particularized in this behalf by the appropriate Government, by notification but does not involve any building or other construction work to which the provisions of the Factories Act, 1948 (63 of 1948), or the Mines Act, 1952 (35 of 1952), apply."

Hence, the phrase "building or other construction work" is explained in a manner that does not include any building or other construction work to which the provisions of the Factories Act, 1948, apply. Employers have used this exclusion condition of Section 2 (d) to evade registration and tax payment under the BOCW Act. Employers included under the Factories Act, 1948, refuse to come under the purview of the BOCW Act.

As per Section 2 (l) of the Factories Act, 1948, "worker" means a person engaged in any construction process, or in cleansing any part of the machinery or premises used for a construction process, or in any sort of work subsidiary to or connected with, the manufacturing process, or the title of the manufacturing process.

As under Section 2 (k), the "Manufacturing process" involves the following.

-Making, changing, restoring, ornamenting, finishing, packing, oiling, washing, cleaning, splitting up, destroying, or otherwise satisfying or adapting any article or material with a view to its use, trade, transport, delivery, or destruction.

-Pumping oil, water, sewage, or any other material.

-Generating, remodeling, or conveying power.

-Composing types for publication, printing by letterpress, lithography, photogravure, or other similar manner or bookbinding.

-Constructing, renovating, refurbishing, refitting, finishing, or breaking up ships or vessels.

-Preserving or storing any substance in cold storage.

Because of the above, it is inferred that the word "worker" under the Factories Act, 1948, does not involve a person included in the construction of buildings. Also, the phrase "manufacturing process" does not include any process for the construction of buildings. Hence, the Factories Act comprises only those workers who are involved in the manufacturing process or any work that is related to the manufacturing process, and not workers who are involved in construction and building work.

It is praiseworthy that the Indian government has made welfare provisions for long-neglected construction workers. However, there have been gaps in transparency and implementation until the courts have walked in. The Supreme Court has clarified that building and construction workers employed in factory premises are qualified for welfare measures under the BOCW Act. Nonetheless, now the question emerges as to who is accountable for responsibilities under the BOCW Act. The word "employer" in the BOCW Act is determined to include both contractors and owners. Hence, the owners and the contractors relinquish the responsibility to one another.

It is known that the Central Government is also thinking to make revisions to the BOCW Act to broaden the scope of applicability of the BOCW Act to facilitate the respective state governments to perform the Acts. It is anticipated that the amendments will truly serve the construction workers by providing more trustworthy and safer work conditions.