Introduction
There are more than 28 million skilled and unskilled workers engaged in the construction sector in India.1 The sector is labour intensive and most of the labourers are unskilled, unorganized and hence tend to work under inhuman and pitiful conditions. To address such inhuman 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 a social welfare legislation that aims to benefit workers engaged in building and construction activities across the country. The preamble of the BOCW Act explicates the said purpose:
"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 for other matters connected therewith or incidental thereto."
The ambit of the BOCW Act is wide, particularly in a country where the infrastructure and construction sectors have seen significant growth. The object of the BOCW Act as well as its framework is analogous to other labour law legislations, but in particular, the BOCW Act is similar to the Factories Act, 1948.
Conflict of BOCW Act and the Factories Act, 1948
The BOCW Act stipulates health, safety and welfare measures applicable to building workers. Building worker is defined 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 basically defined as a person involved in building or construction work, the definition of 'building or construction work' is to be looked 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, in relation to, 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, water works (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, aquaducts, pipelines, towers, cooling towers, transmission towers and such other work as may be specified in this behalf by the appropriate Government, by notification but does not include 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 term "building or other construction work" is defined in a manner that it does not include any building or other construction work to which the provisions of the Factories Act, 1948 apply. This exclusion clause of Section 2 (d) has been used by employers to evade registration and payment of cess under the BOCW Act. Employers covered under the Factories Act, 1948 refuse to come under the purview of the BOCW Act.
