Ensuring the labour class’s safety and welfare is the government’s utmost priority. To provide such health and safety for workers in the real estate sector, the government of India came up with BOCW Act (Building and Other Construction Workers (Regulation of employment and conditions of service) Act of 1996 (BOCW Act).
BOCW Act got enacted to govern and regulate the working conditions of labourers in the real estate sector. It played a crucial role in keeping a check on exploitative activities of the builders or real estate employers. But, the implementation of the act’s provisions is complex because of less stringent penalties prescribed for the infringement.
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BOCW Act, 1996
The Building and other construction workers (regulation of employment and conditions of service) act 1996 is social security legislation enacted for the welfare of building and construction workers.
This act provides for the health, safety and welfare of the worker employed in this regard. The act applies to the building and construction workers only.
It defines building workers in section 2(e) of the Act and also prescribes the definition for “building or other construction work” in section 2(d) of the Act but excludes the provisions for the application of the building, and other construction works to which Factories Act 1948 apply.
Need of Building and Other Construction Workers Act
The BOCW Act protects construction workers from any form of employer exploitation.
It lays down the duty of the employers to maintain adequate working conditions for the workers employed by them in the building and construction works or any other work in the same regard.
It ensures that workers’ health and safety are not compromised at work. It provides provisions for taking adequate safety measures like installing safety kits and machines and providing them accidental insurance.
It provides penalties for the contravention of its provisions to ensure it doesn’t get repeated in future.
History and development of the BOCW Act
- Before the BOCW Act 1996, there were other legislations for the social security of the labourer working in industrial establishments, construction projects, etc. There was a need for legislation to emphasise the conditions of construction workers. The State Governments and Union Territory Administrations were consulted on the matter, and most agreed to create such legislation.
- It was requisite to establish Welfare Boards in every State to regulate the social security schemes and implement welfare measures for the benefit of building and other construction workers.
- It was the need of the moment to introduce legislation on the provisions of the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Bill, 1988, which was introduced in the Rajya Sabha on the 5th of December 1988.
It was considered necessary to levy a cess on the construction cost incurred by the employers to ensure sufficient funds for the Welfare Boards to undertake the social security Schemes and welfare measures.
- As Parliament was not in session, the President promulgated the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Ordinance, 1995, along with another Ordinance on 3rd November 1995 for the levying of a cess.
- The Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Bill, 1995, was introduced in Lok Sabha on the 1st December 1995 to replace the ordinance mentioned above with an Act of Parliament. But, the said Bill was not considered in the Winter Session, 1995.
- In the Budget Session of 1996, Lok Sabha came up with the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Ordinance, 1996 and the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Second Ordinance, 1996 respectively 1996 to provide continued effect to the legislative protection.
- The Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Bill, 1995, lapsed after the dissolution of the 10th Lok Sabha.
The Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Second Ordinance, promulgated on 27th March 1996, ceased to operate with effect from 4th July 1996 as per Article 123(2) of the constitution of India.
Considering the urgency and importance, As the parliament was not in session, the President promulgated the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Third Ordinance, 1996 on the 10th June 1996 to continue with the ordinances for providing social security to the construction workers.
The Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Third Ordinance, 1996 states provisions regarding the following matters:
- It states the application of the ordinance to every establishment which employs or has employed fifty or more workers on any day of the preceding twelve months
- Formation of Central and State Advisory Committee for advising the appropriate Government on matters arising out of the administration of the concerned Ordinance
- Formation of Expert Committee to advise the appropriate government on matters related to framing of rules
- Registration of establishments and construction workers as beneficiaries under the said Ordinance and provision for issuance of their identity cards, etc
- Formation of Welfare Boards by the State Governments and registration of beneficiaries under the Fund
- Providing temporary accommodation for all the construction workers near the worksite
- Making suitable accommodations for construction workers’ health and safety measures
- The appointment of registering officers, safety officers and establishment of the safety committee
- Empowering the Central Government to frame model rules regarding safety measures and giving directions to state governments
- Provision for penalties for obstructions, contravention, violation and offence
- Worker’s compensation under the Workmen’s Compensation Act of 1923 for those engaged in building and other projects.
- Application of the ordinance to every establishment which employs or has employed fifty or more workers on any day of the preceding twelve months
The Building and Other Construction Workers (Regulation of employment and condition of service) Bill seeks to replace the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Third Ordinance, 1996.
The bill was passed by both the Houses of Parliament and received the permission of the President on 19th August 1996.
Compensation to the workers
The construction workers or the workers associated with similar works primarily work on minimum wages and are unskilled workers. These workers come from socially marginalised sections of society and are not in a position to negotiate. So, most of the time, they get exploited by the employers in terms of wages less than minimum wages or compromise their health and safety.
They also get to work for uncertain working hours or extra hours without extra wages paid for such work.
According to section 45 of the BOCW Act, 1996, the employer is responsible for paying wages to each construction worker. The employer is also liable to pay compensation to the workers affected or injured in an accident.
This compensation will be the full wage or the unpaid balance due under Section 8 of the Workmen Compensation Act, 1923.
Is it mandatory to take registration under BOCW?
Section 2(1)(j) of BOCW Act, 1996 defines ‘establishments’. It states that an establishment is a place belonging to any firm, organisation, body of corporations, individuals, associations, or government, that employs workers for construction works. However, this definition does not cover the construction projects having a value or cost of construction of fewer than 10 Lakhs rupees.
Section 7 of the BOCW Act deals with the provisions related to the registration of establishments. It states that for registration of an establishment, an employer must make an application to the registering officer.
If an establishment initiates its operation after this act’s commencement, it must make an application within sixty days from the date it starts its operation.
In case of late registration, if a registering officer is convinced of the reason for late registration, he may grant a registration certificate if all the forms and documents are prescribed according to terms and conditions.
Section 8 of the BOCW Act contains provisions regarding the revocation of registration. A registering officer can revoke the registration of an establishment after providing the employer with a fair opportunity for representation.
The section states the condition under which a registration of an establishment can get revoked. The conditions include:
- The registering officer is satisfied by the reference made in the complaint addressed to him in this regard.
- An employer of an establishment obtained a certificate of registration by misrepresentation.
- An establishment contravened the provisions mentioned under this legislation.
Benefits of having a BOCW card
A BOCW identity card is issued to the workers employed in construction work or companies involved with such work. These workers are known as beneficiaries of the BOCW card.
Section 13 of the BOCW Act, 1996 states that building and other construction workers’ welfare boards should issue these identity cards to every worker. States also provide these beneficiaries with welfare schemes.
The Ministry of Labour and Employment introduces the welfare schemes for these cardholders at the national level. It introduced welfare schemes on life and disability cover, skill development, health and maternity cover, education, pension, housing, and awareness programs.
States also offer various facilities or initiate multiple welfare schemes for workers with BOCW cards or working in the construction sector.
How is BOCW cess calculated?
According to section 3 of the Building and Other Construction Workers Welfare Cess Act, 1996, the welfare cess is calculated as one per cent of the total construction bill or cost of construction incurred by the employer to build a project is equal to the amount of cess. The same amount is deposited into the funds of the welfare board.
The fund is for the workers’ welfare or to provide them with welfare schemes’ benefits.
Cess Amount = 1% of the Total Cost of construction
For example, if the total cost for building construction is Rs. 1 Crore, the total amount of cess will be Rs. 1 Lakh.
Scope of improvement
In 2013, the Central Government introduced The Building and Other Construction Workers Related Laws (Amendment) Bill 2013 before Rajya Sabha to amend the uncertain and doubtful provisions in the BOCW Act, 1996.
The salient features of this bill are:
- The bill presented the need to introduce the maximum construction cost limit instead of the minimum limit, which is currently Rs. 10 Lakhs.
- The bill presented the need to amend Section 12(1) of the act to enhance the scope of the registration of workers.
- The bill presented the need to amend Section 24(3) of the act to empower the Central Government to notify the percentage of the total expenditure incurred by the State Welfare Board during administration meetings.
- This bill presented the need to amend Section 12(3) to empower the State Government to file a complaint in the court of jurisdiction and take cognisance against the offence.
The health and safety of workers working at construction sites is a serious concern that needs to get addressed. Numerous accidents were reported in the past with workers at construction sites because of inadequate safety measures taken by the employers. It is where the role of legislation like the BOCW Act comes into play.
As per the act, the employers need to ensure that the workers are insured, and in any unforeseeable event, they get adequately compensated for fulfilling their medical and household expenses.
The BOCW Act also laid down provisions for building and other construction workers’ welfare boards that protect workers’ interests.
So, as per the Act, the workers should be provided with temporary accommodation near the construction site with the necessary facilities.
Will this enactment get repealed?
This legislation will get repealed with 14 other labour legislation by enacting the code on social security, 2020.
Where is the provision prescribed regarding the appointment of registering officers?
Section 6 of the BOCW Act, 1996.
What is the condition to form a safety committee and appoint a safety officer in the establishments involved in construction works?
Section 38 of the BOCW Act prescribes that every establishment employing five hundred or more construction workers is required to form a safety committee and appoint safety officers.
What is the penalty for any contravention committed against this act?
The penalty for contravening the act's provisions is imprisonment of three months and a fine of up to 2000 rupees. If the contravention continues, the penalty will be 100 rupees per day until the time contravention continues.
The penalty will be six months imprisonment and a fine between 500 to 2000 rupees for a subsequent conviction. In exceptional circumstances, a fine of fewer than 500 rupees can be imposed.