The applicability of ESI to construction workers in addition to the conflicting enactments already applicable to construction industry
The recent amendment and applying the ESI provisions to construction site workers with effect from 1 August 2015 are totally contradicting to the existing social security/welfare measures enacted by the Central Government and it appears its a ploy to generate revenue due to following:
The ESI provides coverage to the Organized Sector only and
The building and construction workers are considered to be the workers working in an informal & unorganized sector workers to which the facilities provided under the provisions of ESI Act, 1948 cannot be covered due to (i) the workers engaged in agriculture and allied activities, household industry, building and construction, small factories/establishments, home workers, domestic servants, artisans, self-employed persons such as fishermen, hawkers, auto-riskshaw drivers etc. all constitute the informal or unorganized sector. (ii) The main characteristics of workers in the unorganized sector are acute incidence of under employment, (iii) the scattered nature of work places, (iv) high incidence of home-based or, (v) low collective bargaining power and (vi) the absence of an employer-employee relationship.
The construction site workers are covered under various other enactments like The Employees' Compensation Act, 1923, The Interstate Migrant Workmen Act, 1979 & the Building and Other Construction Workers Act, 1996 and are provided benefits like medical facilities, compensations etc. The enactments are particularly designed in a view to provide health, safety, welfare and social security measures of construction workers.
The ESI Corporation has not at all come up with their disclosures as to how they will be providing the benefits through their limited Hospitals, dispensaries and other infrastructures to the constructions workers under the provisions of ESI Act, who work in the remote areas or miles away from the ESI setup.
The Mumbai High Court in one of its judgments has ordered that the employees of the establishment of construction company can be covered under the provisions of ESI; however the construction site workers cannot be covered under the provisions of ESI. It is noteworthy, the referred judgement is not challenged by ESI in Supreme court.
The Building and Other Construction Workers Act, 1996 is particularly made for the building and other construction workers who were deprived from the safety, health & social security - welfare measures because of their typical nature of work, acute unemployment, low bargaining power and in addition to above other welfare social security enactment the ESI Act will be a burden on employer of a construction worker in compare to the welfare, social security enactments applicable to organized sector.
May I request the forum to provide clarity for better implementation of the provisions of ESI.
From India, Mumbai
2The recent amendment and applying the ESI provisions to construction site workers with effect from 1 August 2015 are totally contradicting to the existing social security/welfare measures enacted by the Central Government and it appears its a ploy to generate revenue due to following:
The ESI provides coverage to the Organized Sector only and
The building and construction workers are considered to be the workers working in an informal & unorganized sector workers to which the facilities provided under the provisions of ESI Act, 1948 cannot be covered due to (i) the workers engaged in agriculture and allied activities, household industry, building and construction, small factories/establishments, home workers, domestic servants, artisans, self-employed persons such as fishermen, hawkers, auto-riskshaw drivers etc. all constitute the informal or unorganized sector. (ii) The main characteristics of workers in the unorganized sector are acute incidence of under employment, (iii) the scattered nature of work places, (iv) high incidence of home-based or, (v) low collective bargaining power and (vi) the absence of an employer-employee relationship.
The construction site workers are covered under various other enactments like The Employees' Compensation Act, 1923, The Interstate Migrant Workmen Act, 1979 & the Building and Other Construction Workers Act, 1996 and are provided benefits like medical facilities, compensations etc. The enactments are particularly designed in a view to provide health, safety, welfare and social security measures of construction workers.
The ESI Corporation has not at all come up with their disclosures as to how they will be providing the benefits through their limited Hospitals, dispensaries and other infrastructures to the constructions workers under the provisions of ESI Act, who work in the remote areas or miles away from the ESI setup.
The Mumbai High Court in one of its judgments has ordered that the employees of the establishment of construction company can be covered under the provisions of ESI; however the construction site workers cannot be covered under the provisions of ESI. It is noteworthy, the referred judgement is not challenged by ESI in Supreme court.
The Building and Other Construction Workers Act, 1996 is particularly made for the building and other construction workers who were deprived from the safety, health & social security - welfare measures because of their typical nature of work, acute unemployment, low bargaining power and in addition to above other welfare social security enactment the ESI Act will be a burden on employer of a construction worker in compare to the welfare, social security enactments applicable to organized sector.
May I request the forum to provide clarity for better implementation of the provisions of ESI.
From India, Mumbai
basics of the employment theme should be understood before the compliance
if a worker or group of is employed for half a day or a day for a certain repair job/ mason job / construction job, (and paid on day end or finish of work whichever comes earlier), which is not the primary activity of the organisation, then those workers are not paid "salary" but they are paid , charges for work.
but
if the worker/s is deputed on regular nature and works for certain period and paid on certain intervals , either weakly or monthly basis, then the employer - employee relations got established auto. it is irrelevant that the person (s) are employed direct or through contractor, but compliance should be made by the contractor or principal.
if a worker or group of is employed for half a day or a day for a certain repair job/ mason job / construction job, (and paid on day end or finish of work whichever comes earlier), which is not the primary activity of the organisation, then those workers are not paid "salary" but they are paid , charges for work.
but
if the worker/s is deputed on regular nature and works for certain period and paid on certain intervals , either weakly or monthly basis, then the employer - employee relations got established auto. it is irrelevant that the person (s) are employed direct or through contractor, but compliance should be made by the contractor or principal.
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