Building and Other Construction Workers under the OSH Code

In the general law of the Codes, because a building worker is a worker and usually contract labour as well, so Part I of this Chapter, the wages provisions and the health and welfare Chapters all apply to him.

And in the rules, since most of the old Act's detailed safety requirements for lifting appliances, scaffolding, excavation and demolition are now rule making heads under section 133.

Some words this chapter uses

Building or other construction work, section 2(1)(h), is construction, alteration, repairs, maintenance or demolition in relation to buildings, streets, roads, railways, tramways, airfields, irrigation, drainage, embankment and navigation works, flood control works including storm water drainage, generation, transmission and distribution of power, water works, oil and gas installations, electric lines, internet towers, wireless, radio, television, telephone, telegraph and overseas communications, dams, canals, reservoirs, watercourses, tunnels, bridges, viaducts, aqueducts, pipelines, towers, cooling towers and transmission towers, and such other work as the Central Government notifies. It does not include building or other construction work related to any factory or mine, nor work for the own residential purposes of an individual or group of individuals where the total cost does not exceed fifty lakh rupees, or such higher amount, and employing not more than such number of workers as the appropriate Government notifies.

Building worker, section 2(1)(i), is a person employed to do any highly skilled, skilled, semi-skilled or unskilled, manual, technical or clerical work for hire or reward, whether the terms are express or implied, in connection with building or other construction work, but does not include a person employed mainly in a managerial or supervisory or administrative capacity.

Tendency to giddiness is a proneness to dizziness or vertigo.

Reasons to believe is the Code's own phrase in section 78, wider than actual knowledge and narrower than a duty to discover.

Section 78: the prohibition

No person, about whom the employer knows or has reasons to believe that he is a deaf or he has a defective vision or he has a tendency to giddiness, shall be required or allowed to work in any such operation of building or other construction work which is likely to involve a risk of any accident either to the building worker himself or to any other person.

Take it in four parts.

The three conditions. Deafness, defective vision, and a tendency to giddiness. The list is closed; the section names these three and no others.

The employer's state of mind. He must know or have reasons to believe. So a genuinely hidden condition does not make him liable, but he cannot rely on ignorance he had reason to displace. An employer who has seen a man stumble on a ladder twice has reasons to believe.

"Required or allowed". As elsewhere in the Code, permitting is as much a breach as ordering. A willing worker's consent is no answer.

The operation, not the site. The prohibition attaches to any such operation of building or other construction work which is likely to involve a risk of any accident, and the risk may be to the building worker himself or to any other person. Two consequences follow, and both are examinable. Work on the same site that does not carry that risk is not prohibited, so the section does not exclude the person from construction employment. And the risk to any other person is enough on its own, which covers the public passing below a scaffold.

What the section does not provide. No medical examination is required by it, no certification, no procedure for deciding whether a person has one of the three conditions, and no duty to find him other work. Those are the gaps, and they are the substance of any criticism of it.

The other provisions a building worker depends on

An examination answer on building workers under this Code should be able to name these, because Part VI on its own says almost nothing.

Section 9, the duty of architects, project engineers and designers. It is the duty of the architect, project engineer or designer responsible for the work, or for the design of any project or part of it, to ensure that at the planning stage due consideration is given to the safety and health aspects of the building workers and employees employed in the erection, operation and execution of the project. Adequate care must be taken not to include anything in the design which would involve the use of dangerous structures or other processes or materials hazardous to the health or safety of those workers during erection, operation and execution. And the professionals designing the structures must take into account the safety aspects associated with maintenance and upkeep.

This is one of the more interesting provisions in the whole Code, because it reaches a person who never comes to the site. Most construction deaths are decided on a drawing board, by a detail that can only be built by a man standing somewhere he should not be.

Section 38(2), the site prohibition order. If it appears to the Chief Inspector-cum-Facilitator or an Inspector-cum-Facilitator that any site or place at which building or other construction work is being carried on is in such condition that it is dangerous to the life, safety or health of building workers or of the general public, he may serve a written order prohibiting any building or other construction work at that site until measures have been taken to remove the cause of the danger to his satisfaction. It may be served on the employer of the building workers, on the employer of the establishment in which the site is situated, or on the person in charge of the site. An Inspector-cum-Facilitator serving such an order must endorse a copy to the Chief Inspector-cum-Facilitator, and the order shall be complied with by the employer forthwith. An appeal lies within fifteen days of communication to the Chief Inspector-cum-Facilitator, or where the order was his, to the appropriate Government.

Note the two features that make it effective: compliance is forthwith, and it does not wait for the appeal.

Section 24(2)(v) and (vi), accommodation. Rules may provide for the employer to give temporary living accommodation free of charges, within the work site or as near to it as possible, to all building workers employed by him, for the removal or demolition of that accommodation and the return of possession of any land obtained from a municipal board or local authority for the purpose; and for payment by the principal employer of the expenses incurred on providing the accommodation to the contractor, where the work is done through a contractor.

This is the one place in the Code where accommodation is provided for, and it is confined to building workers.

Section 5, notice of commencement and cessation. No employer of an establishment relating to building or other construction work may commence operations without electronic notice in the prescribed form to the prescribed authority, and he must intimate cessation likewise.

And the money is in the other Code. The cess, the Building and Other Construction Workers' Welfare Board and the benefits payable to a registered building worker are Chapter VIII of the Code on Social Security 2020. Section 62(b) of this Code makes those benefits portable to the destination State for an inter-State migrant worker.

A worked example

Girish Builders is putting up a twelve storey block. It employs, through two contractors, about two hundred and thirty building workers. One of them, Sadanand, is deaf in both ears. Another, Rehmat, has been treated for vertigo and Girish Builders' site engineer knows it.

May Sadanand be employed on the site at all? Yes. Section 78 does not exclude a deaf person from building work. It forbids his being required or allowed to work in any such operation which is likely to involve a risk of any accident to him or to another.

May he be put on the scaffolding? No, if that operation is likely to involve a risk of accident, which scaffolding plainly is. The whole warning system on a site is spoken.

May he be put to bar bending at ground level in a fenced area? That turns on whether that operation is likely to involve a risk of any accident to him or to any other person. Section 78 asks about the operation, not about the trade.

Rehmat is put on a lift shaft. That contravenes section 78. The site engineer knows of his tendency to giddiness, and lift shaft work is likely to involve a risk of accident to him, and to anyone below.

Girish Builders says Rehmat asked for the work and signed a consent. The section says required or allowed. Allowing a willing worker to do the work is the breach.

Nobody knew about a third worker's failing eyesight, and there is nothing on the site to suggest it. Section 78 bites where the employer knows or has reasons to believe. On those facts he has neither, though the free annual health examination under section 6(1)(c) exists precisely so that such conditions are found.

A slab is being poured over an unsecured edge and the Inspector-cum-Facilitator sees it. Under section 38(2)(a) he may serve a written order prohibiting any building or other construction work at that site until measures have been taken to remove the cause of the danger to his satisfaction. He must endorse a copy to the Chief Inspector-cum-Facilitator, and Girish Builders must comply forthwith. It may appeal within fifteen days of communication to the Chief Inspector-cum-Facilitator.

The design requires a man to stand on an unsupported ledge to fix a panel. That engages section 9: the architect, project engineer or designer must ensure that at the planning stage due consideration is given to the safety and health of the building workers, and must take adequate care not to include anything in the design involving dangerous structures, processes or materials.

The workers live in tin sheds on the site and are charged rent. Rules under section 24(2)(v) provide for temporary living accommodation free of charges within or near the work site for all building workers employed by the employer, and under clause (vi) for the principal employer to pay the expenses of accommodation provided to the contractor where the work is done through a contractor.

They ask about the welfare board benefits they were registered for in Odisha. That is the other Code. The cess, the Board and the benefits are Chapter VIII of the Code on Social Security 2020, and section 62(b) of this Code requires a scheme for portability of those cess fund benefits in the destination State.

Girish Builders is also building a small extension to a factory. That work is outside the definition. Section 2(1)(h) excludes building or other construction work related to any factory or mine.

A householder is adding a room to his own house at a cost of eleven lakh rupees. Also outside, because the definition excludes work for the own residential purposes of an individual where the total cost does not exceed fifty lakh rupees, or such higher amount, and employing not more than the notified number of workers.

What this does NOT mean

Section 78 is not a bar on employing a disabled person in construction. It bars putting a person with one of the three conditions on an operation likely to involve a risk of accident.

The three conditions are not illustrative. Deafness, defective vision and a tendency to giddiness are what the section names.

It is not confined to risk to the worker himself. Risk of accident to any other person is enough.

Ignorance is not always a defence. The test is knowledge or reasons to believe.

Consent is no answer. The words are required or allowed.

Part VI is not the law of building workers. It is one section; the rest is in sections 5, 9, 24 and 38 of this Code, in Chapter VIII of the Code on Social Security 2020, and in the rules.

Not every construction job is within the Code. Work related to a factory or mine, and small own residence work below the cost and worker thresholds, are outside the definition in section 2(1)(h).

Limits and criticism

A statute for a trade of tens of millions has one section in its own Part. The Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act 1996 dealt with registration of establishments, registration of beneficiaries, hours, welfare amenities, safety committees and a great deal of detailed safety provision. What survives in the Code is distributed across general Chapters and rule making heads, so no single place in the statute now tells a building worker what he is entitled to.

Section 78 has no machinery. It states a prohibition and provides no examination, no certification, no procedure for determining whether a person has one of the three conditions, and no duty to redeploy him. The likely practical effect on a site is not reassignment but refusal of work.

The three conditions are stated in the language of the nineteen fifties. Nothing is said about any other impairment that might make a particular operation dangerous, and nothing about temporary conditions such as intoxication, illness or exhaustion, which are at least as common a cause of falls.

The definition of building or other construction work carries two large exclusions. Work related to a factory or mine is excluded, which leaves the men building a factory shed to be dealt with under other provisions, and self build residential work below the cost threshold is excluded, which is a great deal of the construction actually done in India.

Accommodation is a rule making head, not a duty in the Code. Section 24(2)(v) provides for rules; it does not itself require the employer to house anybody.

The safety of the site and the welfare of the worker are now in different Codes, administered by different authorities, with different registration systems. For a worker who moves between States and between employers every few months, that is not a drafting elegance but a real obstacle.

Quick revision

• Section 78: no person about whom the employer knows or has reasons to believe that he is deaf, has defective vision, or has a tendency to giddiness, shall be required or allowed to work in any operation of building or other construction work likely to involve a risk of any accident to the building worker himself or to any other person.
• Section 2(1)(h): building or other construction work covers construction, alteration, repairs, maintenance and demolition of a long list of works including internet towers; excludes work related to a factory or mine, and own residence work costing not more than fifty lakh rupees with not more than the notified number of workers.
• Section 2(1)(i): a building worker is anyone doing highly skilled to unskilled, manual, technical or clerical work for hire or reward in connection with such work, excluding those employed mainly in a managerial, supervisory or administrative capacity.
• Section 9: the architect, project engineer and designer must consider the safety and health of building workers at the planning stage and not design in dangerous structures, processes or materials, including for maintenance and upkeep.
• Section 38(2): the Chief Inspector-cum-Facilitator or an Inspector-cum-Facilitator may prohibit work at a dangerous site until the danger is removed to his satisfaction; a copy is endorsed to the Chief Inspector-cum-Facilitator; compliance is forthwith; appeal within fifteen days.
• Section 24(2)(v) and (vi): rules for free temporary living accommodation at or near the site for building workers, its removal and the return of land, and for the principal employer to bear the expense where the work is done through a contractor.
• The money is elsewhere: the cess, the Welfare Board and the benefits are Chapter VIII of the Code on Social Security 2020, and section 62(b) of this Code makes them portable for an inter-State migrant worker.

Test yourself

1. State section 78 and identify the three conditions. No person about whom the employer knows or has reasons to believe that he is deaf, has defective vision, or has a tendency to giddiness, shall be required or allowed to work in any operation of building or other construction work which is likely to involve a risk of any accident either to the building worker himself or to any other person.

2. Does section 78 prohibit the employment of such a person on a building site? No. It prohibits his being required or allowed to work in a particular class of operation, namely one likely to involve a risk of any accident. Work on the same site not carrying that risk is not caught.

3. Whose safety does the section protect? Both the building worker himself and any other person. Risk to another is sufficient on its own.

4. What is the duty of an architect or designer under section 9? To ensure that at the planning stage due consideration is given to the safety and health of the building workers and employees employed in the erection, operation and execution of the project; to take adequate care not to include anything in the design involving dangerous structures, processes or materials hazardous to their health or safety; and to take into account the safety aspects associated with maintenance and upkeep.

5. What may an Inspector-cum-Facilitator do about a dangerous construction site, and how quickly must it be obeyed? Under section 38(2)(a) he may serve a written order on the employer of the building workers, the employer of the establishment in which the site is situated, or the person in charge, prohibiting any building or other construction work at the site until measures have been taken to remove the cause of the danger to his satisfaction. He endorses a copy to the Chief Inspector-cum-Facilitator, and the order must be complied with forthwith. An appeal lies within fifteen days.

6. Where is the welfare cess and the Building Workers' Welfare Board dealt with? Not in this Code. They are in Chapter VIII of the Code on Social Security 2020. Section 62(b) of the OSH Code requires the appropriate Government to make a scheme for portability of those cess fund benefits in the destination State for an inter-State migrant worker.

7. Name two kinds of construction work outside the definition in section 2(1)(h). Building or other construction work related to any factory or mine; and work for the own residential purposes of an individual or group of individuals where the total cost does not exceed fifty lakh rupees, or such higher amount, and employing not more than such number of workers as the appropriate Government notifies.