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Construction workers' hard-won rights threatened, redressal mechanism 'crippled'

By Bharat Dogra* 

Very significant gains were achieved by construction workers of India in the form of two laws enacted in 1996 for their social security and welfare. Then for over two decades another phase of struggle had to continue for their implementation in the right spirit.
By the year 2018 again there were significant successes in the form of decisions of Supreme Court and High Courts for proper implementation. Just when it appeared that the promising laws and the significant gains they could bring to the workers were being stabilized, a new and big hurdle has appeared in the form of the new labor codes.
Although all aspects of the new Labour Codes have not been finalized yet, there is enough evidence that several of the gains made by construction workers are badly threatened now. In an most updated, detailed and well-referenced review of recent changes published in the “Economic and Political Weekly” (5 February) titled ‘Building Workers Under the New Codes’, Chirayu Jain has written:
“The Code on Social Security (SS) 2020 and the Occupational Safety, Health and Working Conditions (OSH) Code 2020 now stand notified by the Central Government. Once they are brought into force, it would mean a death knell to the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act (BOCW Act), 1996 and the accompanying legislation, Building and Other Construction Workers Cess Act,1996 (Cess Act).”
Construction work is perhaps the second most important source of livelihood in the country after farming related work. Despite the setbacks of recent times, organizations of construction workers estimate their number to around 9 crore or so.
Construction workers faced extremely difficult times soon after demonetisation and again in COVID cum lockdowns phase. Those who are migrants faced even greater difficulties. Alongside there is also this longer-term setback in the form of the fate of the special welfare laws relating to them becoming much more uncertain.
The National Campaign Committee for Construction Labor (NCC-CL) had played a very important role in the campaign for these laws and in fighting cases in various courts for their proper implementation. 
These laws provided for a cess of one per cent to be imposed on construction works to create a fund that can provide pensions, health and maternity benefits for construction workers and scholarships for their children. Thirty six building and other construction worker boards (BOCW boards) have been set up in different states and union territories since then under these two laws.
Till 2019 over Rs 36,000 crore had been collected for welfare of workers under these laws although only a little over Rs 9,000 crore had been actually spent. If proper implementation had started immediately after 1996, certainly much more would have been collected, perhaps nearly four times more than the actual collection made.
Progress was certainly slow initially but after the court orders implementation hopes had been rising (particularly after a Supreme Court verdict in 2018). Some workers and their children had started receiving benefits while many more were hopeful. 
When I visited several construction colonies in Delhi around this time I met an elderly couple both of whom were getting Rs 3,300 each under these laws and this pension had become the main support of their old age. Then there were several others whose school-going children had started getting scholarships under these laws.
However on the whole very few worker households had yet received such benefits, and many more were getting frustrated at not getting any benefits. Another problem related to corrupt practices in the digital registration of workers and issue of cards as genuine workers were being ignored. Despite all this there was hope of better implementation of protective laws in future.
Now with the four codes these hopes have also been dashed to a large extent. The NCC-CL has strongly opposed replacing the hard-won existing rights with the new Codes. The Committee has instead demanded the implementation of the Supreme Court judgment of 2018 on the NCC-CL petition regarding better implementation of the two 1996 legislations.
It has also protested that thousands of crores of rupees already deposited with the boards are not being utilized in a satisfactory way to help construction workers who have faced great difficulties in recent times.
There is overcentralization in labour codes with less role for state governments to take welfare steps more in keeping with local needs
The paper by Chirayu Jain quoted above has stated, “The Codes gnaw away various rights of workers that are presently sanctified in the BOCW Act.” This review states that varying and confusing definitions of workers, building workers, unorganised workers, employees, family and dependent in the two codes SS and OSH will create several problems for workers. 
Instead of the simplicity and clarity of BOCW, we now see possibility of parallel regimes depending on size of establishment. In a confused set-up workers will have to find out where they can fit in.
Getting digital identity cards has been a nightmare for workers even in a big city like Delhi but this is what is now provided along with the mandatory Aadhaar identification. The task of proving 90 days employment in order to avail benefits has been made more difficult. 
Instead of the clear inclusion of all workers in BOCW, the category of contract workers creates more confusion in the new arrangement, and the responsibility for ensuring minimum wage may be fixed to the contractor rather then the main employer.
The mechanism of redressal is being made more difficult. In safety and related matters, inspectors are to be regarded more as facilitators who will mainly confine themselves to checking electronically kept records of employers and go beyond this only in exceptional circumstances. At the same time the role of workers and trade unions in safety matters is reduced. 
There is overcentralization in the codes with less role for state governments to take welfare steps more in keeping with local needs. The new arrangements favor bigger establishments. The government authorities have exceptional power to provide exemptions where they desire. As the review by Chiryu Jain says, “These exemption powers are unprecedented.”
There is thus a clear need for resisting the roll-back of workers’ rights and for demanding that the hard-fought gains achieved by many years of struggles are protected. The BOCW Act had the provision of workers continuing to benefit from some earlier law if it had even better welfare provisions and this proved to be actually the situation in Tamil Nadu.
Can’t the better provisions of BOCW and Cess Acts 1996 in many respects be asserted now? Certainly this issue needs to be taken in a very transparent way among construction workers in their own language so that they understand well the changes now being unleashed and can decide for themselves to what extent their hard-won gains are being lost or diluted.
---
*Journalist and author; recent books include “Man Over Machine” and “India’s Quest for Sustainable Farming and Healthy Food”

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