24th Report-Rajya Sabha

PARLIAMENT OF INDIA RAJYA SABHA COMMITTEE ON PETITIONS HUNDRED AND TWENTY FOURTH REPORT on the petition praying for enactment of a comprehensive legislation for unorganized workers and effecting suitable amendments in the existing enactments to improve the conditions of construction workers/migrant labourers besides banning the use of asbestos to get rid of toxin in e-waste. (Presented on the 25th November, 2005 ) RAJYA SABHA SECRETARIAT NEW DELHI November, 2005 CONTENTS 1. COMPOSITION OF THE COMMITTEE 2. REPORT 3. APPENDICES I. Copy of the petition signed by Shri S.S. Chouhan, General Secretary, Indian National Building Construction Workers' Federation, Delhi and two others and countersigned by Miss Mabel Rebello, Member, Rajya Sabhapraying for enactment of a comprehensive legislation for unorganized workers and effecting suitable amendments in the existing enactments to improve the conditions of construction workers/migrant labourers, besides banning the use of asbestos to get rid of toxin in e-waste. II. Comments on the petition received from the Ministry of Labour & Employment. III. Comments on the petition received from the Ministry of Coal and Mines. IV. Comments on the petition received from the Ministry of Environment and Forests. V. The details of the progress of the implementation of the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 and the Building and Other Construction Workers Cess Act, 1996 made so far in different States. VI. Minutes of the meetings of the Committee. COMPOSITION OF THE COMMITTEE ON PETITIONS (2003-2004) 1. Shri Janeshwar Mishra - Chairman MEMBERS 2. Shri Vayalar Ravi 3. Shri Vijay J. Darda 4. Shri Ramachandra Khuntia 5. Dr. A.K. Patel 6. Shri M. Rajasekara Murthy 7. Smt. Sarla Maheshwari 8. Dr. Ramendra Kumar Yadav ‘Ravi’ 9. Shri Gandhi Azad *10. Shri Dinesh Trivedi (2004- 2005) & (2005-2006) 1. Shri Jana Krishnamurthy. K - Chairman MEMBERS 2. Shri Nandi Yellaiah 3. Shri V. Narayanasamy 4. Prof. Alka Balram Kshatriya 5. Shri Lalit Kishore Chaturvedi 6. Shri Dipankar Mukherjee 7. Shri P.G. Narayanan 8. Shri Bhagwati Singh 9. Shri Subash Prasad Yadav 10. Shri Dinesh Trivedi SECRETARIAT 1. Shri N.C. Joshi, Additional Secretary 2. Shri G.C. Miglani, Director 3. Shri A..K. Gandhi, Under Secretary 4. Shri Sanjeev Chandra, Committee Officer ___________________________________________________________________________ * Nominated on January 7, 2004 ___________________________________________________________________________ HUNDRED AND TWENTY FOURTH REPORT OF THE COMMITTEE ON PETITIONS I, the Chairman of the Committee on Petitions, having been authorized by the Committee to present the Report on its behalf, present this Hundred and Twenty-fourth Report of the Committee on Petitions on the petition (Appendix - I) signed by Shri S.S. Chouhan, General Secretary, Indian National Building Construction Workers’ Federation (INBCWF), New Delhi and two others and countersigned by Miss Mabel Rebello, Member, Rajya Sabha inter-alia praying for enactment of comprehensive legislation for unorganised workers and suitably amending the Building and other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 and the Inter- State Migrant Labour Act, 1979 and ensuring their effective implementation. The petition was found in conformity with the Rules and presented to the Rajya Sabha on May 7, 2003, by Miss Mabel Rebello pursuant to the provisions contained in Rule 145 of the Rules of Procedure and Conduct of Business in the Council of States. This petition, in terms of the provisions contained in Rule 150 of Rules of Procedure and Conduct of Business in the Council of States stood referred to the Committee on Petitions for examination and report. Issues raised by the Petitioner 2. The petitioners have in their petition inter-alia contended that over the years the construction activity in the country has witnessed manifold increase and the number of construction workers has swollen up to around 37 million. Due to failure of monsoons, the workers who would have been engaged in agricultural operations have also become part of migrant labour force constituting a work force of 43 to 45 million workers. In addition, a substantial chunk of workers/labourers migrate to Middle East and countries like Taiwan, Hongkong, Singapore, Malaysia, Canada, USA and UK but there is no legal protection available for this large size of working population. There are enactments like the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996, Building and Other Construction Workers Welfares Cess Act, 1996 and the Inter-State Migrant Labour Act, 1979 but their implementation has been tardy and other benefits envisaged thereunder have not accrued to the intended beneficiaries with the result that they continue to be an exploited lot so much so that no steps have been taken for registration of migrant labourers. Coupled with this is lack of an effective mechanism to ensure payment of minimum wages to them. There is no provision either of medicare for them and they are deprived of benefits of Schemes of Provident Fund and State Insurance. It is only the States of Tamil Nadu and Kerala which have brought into force the enactments for the Building and Other Construction Workers. 3. The petitioners have further pointed out in their petition that the construction activity per se is hazardous and there is an imperative need to regulate it. ILO conventions, for instance, have long time back prohibited use of asbestos and accordingly while in many countries these conventions have been enforced, nothing has been done in India to prohibit the use of asbestos in the manufacturing or construction process. Another issue to which the petitioners have drawn attention is the plight of women workers going for work in the Middle East and other countries with many instances being there of such women being sold for a price and being sexually exploited and initiated into flesh trade. In the light of these issues, the petitioners have prayed that the Central Government should - (i) enact a comprehensive legislation for unorganized workers to ensure employment guarantee, employment conditions, social security schemes like pension, gratuity, PF, ESI, health care; (ii) suitably amend the aforesaid Building and other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 and the Building and other Construction Workers Welfare Cess Act, 1996 and ensure their effective implementation in all States and Union Territories of India; (iii) suitably amend and ensure implementation of Inter State Migrants' Labour Act, 1979; (iv) develop a tripartite mechanism in consultation with ILO and UNO and all receiving countries to coordinate and monitor and ensure protection of all the migrant labourers working outside the country; and (v) enact special legislation to ban use of asbestos and to close asbestos mines and factories and to destroy all existing asbestos to get rid of toxin in e-waste. 4. In order to enable the Committee to make an in-depth examination of the issues raised in the Petition, the comments of the Ministries of Labour, Coal and Mines and Environment and Forests were obtained (Appendices-II, III & IV). The Committee considered the petition in a total of four sittings and undertook Study Visits to Mumbai (from 5th to 8th November, 2004), Bangalore, Hyderabad and Kolkata (from 3rd to 9th February, 2005) and Chennai, Pondicherry and Thiruvananthapuram (from 26th to 30th May, 2005) in the course of which it interacted with the Labour Secretaries of the respective State Governments/Union Territory of Pondicherry and representatives of some of the Central Trade Unions to acquaint itself with the status of implementation of laws for the welfare of Building and Other Construction Workers/migrant labourers and the measures being taken pursuant to the provisions contained therein. At its sitting held on February 3, 2004, the Committee had earlier heard the Secretary of the Ministry of Labour, Government of India on the issues raised in the petition. 5. The Committee considered and adopted this Report at its sitting held on October 19, 2005. The views of the petitioners, Ministries of Labour, Coal and Mines and Environment and Forests, respectively, the representatives of the Central Trade Union Organisations, and the points emerging on the basis of interaction of the Committee with the respective State Governments, vis-à-vis the issues raised in the petition, together with the observations/recommendations of the Committee are set out in the succeeding paragraphs. COMMENTS OF THE MINISTRIES: Ministry of Coal and Mines 6. With respect to one of the issues raised in the petition falling in its domain viz., mining of asbestos being banned/closure of asbestos mines, the Ministry of Coal and Mines (Department of Mines) in their written comments inter alia submitted that the grant of new lease or expansion of existing leases for mining of asbestos in India was banned in the year 1986 and in 1989, restriction was imposed for mining of minerals which were found in association with asbestos as well. In 1993 it was further decided that apart from not granting fresh mining leases for asbestos, renewal, etc. of the existing mining leases should also not be allowed. Further, till date, no decision had been taken on lifting of ban on mining of asbestos. II. The Ministry of Environment and Forests 7. The Ministry of Environment and Forests in its written comments with respect to the issue of banning of use of asbestos inter alia submitted as follows: - (a) various legislative measures have been put in place to regulate the asbestos industry from environmental and pollution control angle. The Ministry had issued EIA Notification vide S.O 60 (E) Dated 27 January, 1994 under the provisions of Environment Protection Act, 1986 making environmental clearance mandatory for specified activities which included asbestos industry. Accordingly, all new projects as well as expansion/modernization of existing asbestos units must obtain prior environmental clearance from the Ministry in accordance with the detailed procedures including public hearing. While granting environmental clearance, stringent environmental management and pollution control measures are stipulated for compliance by the project authorities. Also, specific conditions for strict adherence to medical health care of the workers, occupational health and hygiene and compliance to various BIS standards are imposed; (b) the Ministry has prohibited the import of waste asbestos (dust and fibre) by Gazette Notification Dated 13th October, 1998. Further, electronic wastes are proposed to be covered under Hazardous Wastes (Management and Handling) Rules, 1989/2000 to be amended shortly; (c) all units generating asbestos wastes are required to obtain Authorization from the State Pollution Control Boards/Pollution Control Committees under the provisions of Hazardous Wastes (Management and Handling) Rules, 1989/2000 for ensuring environmentally sound management and disposal; and (d) it has been proposed to revise and introduce new emission limits for emission of asbestos fibre for all types of asbestos manufacturing units (including all processes involving asbestos) from the existing 4 fibre/cc to a much lower value. III The Ministry Of Labour 8. The Ministry of Labour in its written comments on each of the five action points raised in the petition explained the position as follows: - (i) In pursuance of the recommendation of the Second National Commission on Labour, consultations with various agencies, Central Ministries/Departments of the Government of India and State Governments have been initiated in the Ministry of Labour for enactment of a comprehensive legislation for unorganized workers in order to provide protection, skill development and training for the workers of this Sector; (ii) The Government have enacted the Building and Other Construction Workers (RECS) Act, 1996 and the Building and Other Construction Workers Welfare Cess Act, 1996 for regulation of employment and conditions of service of the Building and Other Construction Workers as also their safety, health, certain welfare measures like immediate assistance for a beneficiary in case of accident, pension benefits, premia for Group Insurance Scheme, loans and advances for construction of house, assistance for education of children, medical expenses, maternity benefit to female beneficiaries. Under this Act, funds have to be created by collection of cess at the rate not exceeding two per cent of the cost of construction of the Project. As this Act is in the various stages of implementation, suggestions for amendments, if any, would be considered only on the experience of its working after the implementation of the Act in all the States/U.Ts; (iii) The Inter State Migrant Workmen (Regulation of Employment & Conditions of Service) Act, 1979 has been enacted to protect the interests of migrant workmen who are recruited through or by a contractor in one State for work in another State. The Act, inter alia, provides for registration of principal employer/contractor, issue of pass books to every inter state migrant workman with full details, payment of equal wages for performing same or similar kind of work in establishment along with local labourers, payment of displacement allowance, payment of journey allowance, provision of suitable residential accommodation, medical facilities, etc. All the State Governments/U.Ts. are responsible for implementation of this Act in their jurisdictions. The State Governments are continuously requested to ensure the implementation of various provisions of the above Act. Suggestions for amendment, if any, would be considered at the time when other proposals/suggestions of the State Governments would be examined; (iv) So far as provision of social security to migrant Indian workers working in other countries of Middle East, South East Asia and Europe is concerned, social security to such workers is provided under the Social Security laws of the concerned countries and the Indian Laws relating to social security do not apply to them. The suggestion regarding formulation of a Tripartite mechanism in consultation with ILO and UNO would be examined whenever any convention/resolution on the subject in question comes up for consideration of ILO; and (v) There is a separate schedule on Handling and Processing Asbestos annexed to the Model Rule 120 framed under Section 87 of the Factories Act, 1948. This Schedule elaborately prescribes the safety and health requirements in factories involving handling and use of asbestos. The second Schedule to the Factories Act prescribes the permissible limits of exposures in respect of certain chemical substances including asbestos. These limits have been revised as per the directives of the Hon'ble Supreme Court of India in W.P. 206/1986. Further, under Section 89 of the Act, 29 diseases have been included in the 3rd Schedule as notifiable diseases. As a result of this statutory measure in the organized sector the workers are eligible to receive appropriate medical attention and are thus protected against occupational diseases, arising out of exposure to asbestos. In addition, the Government through Director General, Factory Advise Service & Labour Institute (DG, FASLI) and other institutions under different Ministries provide advice, education and training in the field of occupational health. On the basis of results of these studies, suitable preventive and control measures are suggested to the management of factories for health protection of the workers. ORAL EVIDENCE OF THE PETITIONER 9. The Committee at its sitting held on the 5th September, 2003 heard Shri S.S.Chouhan, the main petitioner who inter alia submitted that the Building and other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 was there on the statute book but it suffered from tardy implementation so much so that the Boards envisaged thereunder for the welfare of workers had yet to be constituted in most of the States. Similarly, the desired benefits under the Building and other Construction Workers Welfare Cess Act 1996 had not accrued to the construction workers. He suggested that a Tripartite Committee should be formed at Central and State levels to monitor the implementation of these laws at the ground level. He further stated that most of the workers are at the receiving end with no efficacious or effective machinery in place to take care of their interests so much so that their movements are not known; they are not registered at their work place and if they meet some mishap, it is difficult to know their whereabouts, not to say of providing them statutory protection about job guarantee, insurance cover, compensation, etc. ORAL EVIDENCE OF THE SECRETARY, MINISTRY OF LABOUR 10. The Committee on Petitions at its sitting held on the 3rd February, 2004 had the benefit of the views of the Secretary, Ministry of Labour on the issue raised in the Petition. Referring to one of the main issues raised in the petition viz., enactment of a comprehensive legislationfor unorganized workers to ensure employment guarantee, conditions of employment, social security schemes containing provisions of pension, gratuity, Provident Fund, ESI, Health care etc., the Secretary submitted that the Govt. of India had approved a Scheme on the 7th January, 2004 to provide social security to the unorganized workers which constitute 92% of the work force. The Scheme will be introduced in a phased manner, in the first instance, as a pilot project, in 50 districts of the country covering 1 crore workers during the first 5 years. Giving the year-wise break-up, he informed that in the first year, ten lakh workers would be covered, in the second year fifteen lakh workers would be covered, in the third year twenty lakh workers would be covered, in the fourth year, twenty-five lakh workers would be covered and in the fifth year thirty lakh workers would be covered under this scheme. The districts would be finalized in consultation with the Ministry of Finance. The draft proposals have been prepared by his Ministry and submitted to the Ministry of Finance for its concurrence. After two years of experience, the scheme would be studied by an independent agency viz., one of the IIMs or Xavier Labour Relations Institute, and then the same would be jointly reviewed by the Ministry of Finance and the Ministry of Labour. The scheme envisages the benefit of pension of Rs. 500/- per month for workers of sixty years of age and above and Rs. 1 lakh would be given in the case of personal accidental death. 11. The Secretary next referred to the convergence of universal Health Insurance Scheme in terms of which out of the amount so collected, Rs.548/- for a family of 5, would be transferred to the insurance companies which will be four Government Insurance Companies vested with the task of administering the scheme of health insurance. The contribution pattern would be that those workers who are in the age group of 18-35 will contribute Rs. 50/-p.m. and those in the age group of 36 onwards and upto 50 years will contribute Rs. 100/-p.m. and where the employers are identified, they will contribute Rs. 100/-p.m. This will result in cross-subsidy. The Govt. of India will contribute 1.16% of the wages of the workers calculated on a notional basis of the national minimum wage, which is presently being raised from Rs. 50/- per day to Rs. 66/- per day. The corpus would be administered with the help of various agencies. The Provident Fund Organisation has been requested to implement the scheme on a pilot basis. There will be facilitating agencies as well and the NGOs, Gram Panchayats, Rural Development Organisation, several branches of different Labour Ministries of both Central and State Organs would be asked to deal with the facilitation centers. It is the expectation of the Ministry that this scheme will prove to be a very good boon to the unorganized workers in the coming years. 12. Referring to another issue raised in the petition about non-implementation of the Building and other Construction Workers (Regulation of Employment and Conditions of Services) Act, the Secretary stated that after agriculture, the second largest employer in the country is the building and construction sector and the workers in that sector require a lot of protection. This Act is funded by a cess on buildings, which cost Rs. 10 lakhs and above, except those buildings which are meant for self use. The Act has to be implemented by all the State Governments and the Union Territories. However, at present the State Government of Kerala, Madhya Pradesh, NCT of Delhi and Pondicherry have started implementation of the Act. The Labour Minister has written to all the State Labour Ministers and Chief Ministers and similarly the matter has been taken up by the Secretary of the Ministry of Labour with the Chief Secretaries of respective State Governments to ensure effective implementation of the Act. The Committee was also apprised by the Director General, Labour Welfare about the progress of implementation of the Act in various States as follows:- In Andhra Pradesh the Expert Committee has been constituted to advise the State Government in formulating the rules. The report of the Committee is under consideration of the Government. The Constitution of State Advisory Committee and State Building and Other Construction Workers’ Welfare Board is under consideration of the Government. Authorities under the main Act and Cess Act have been notified on 25.8.1999. In Arunachal Pradesh, approval of State Government has been obtained for constitution of State Advisory Committee, Expert Committee etc., for framing of state rules and appointments of functionaries. In Assam, Welfare Board has been constituted. Implementing authorities notified and drafting of rules is in process. In Bihar, an Expert Committee has been notified to frame Rules under the Act on 1.8.2001. In Goa, the Expert Committee and State Advisory Committee have been constituted. Authorities under the Act are yet to be appointed. In Gujarat, the State Government has constituted a Committee to examine the Central Act. In Haryana, the Chief Minister has replied that the matter is being looked into. In Himachal Pradesh it has been reported that the implementation of the Act and constitution of Welfare Board is under consideration. In Jammu and Kashmir, an Expert Committee has been constituted. Constitution of the Welfare Board is under active consideration. Karnataka is contemplating to bring its own Karnataka Manual Workers Bill so as to cover construction workers and also other categories of unorganized workers, that is, agricultural workers, etc. Certain clarifications have been sought from the State Government of Karnataka. In Maharashtra, a State Advisory Committee has been constituted. An Expert Committee has been constituted to advise the State Government for framing State Rules. Registering Officers, Appellate Authority, Inspectors under the Act have been notified. Constitution of the Maharashtra Building and Other Construction Workers’ Welfare Board is under active consideration of the State Government. In Manipur, authorities have been notified. An Expert Committee has been constituted and rules are yet to be notified. In Meghalaya, the matter is under examination. In Mizoram, it has been reported that due to paucity of funds and ban on filling up of vacant posts, the Act is not being enforced in the State. Steps will be taken for the implementation of Labour Welfare Acts, Rules and Schemes as soon as the financial position of the State is improved. In Orissa, Rules have been framed and notified in August. The Building and other Construction Workers Welfare Cess (Central) Rules, 1988 have been adopted by the Government of Orissa on the 28th July, 2003. In Punjab, the State Advisory Committee and Expert Committee have been constituted. The authorities have also been notified under the Act. In Rajasthan, the State Government has constituted the State Advisory Committee and also an Expert Committee to advise the State Government for framing the Rules. In Tamil Nadu, the State Government of Tamil Nadu is implementing its own State Legislation which covers all the construction workers. In Tripura, the Government of Tripura has informed that State Rules under the Act have been framed in 2001. In Uttar Pradesh, the authorities for implementation of the Act have been notified. The Expert Committee has been constituted to advise the State Government to formulate the Rules. In West Bengal, draft rules under the Act have been framed and are in the process of finalisation. In Andaman and Nicobar Islands, rules have been framed. In Daman, Diu and Dadar, the UT administration of Dadar and Nagar Haveli has initiated action for implementation of the Acts. 13. The Members, thereafter, sought clarifications from the Secretary with regard to the efficacy of the Social Security Scheme approved by the Government for the unorganized workers, in the context of the tardy implementation of the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, measures contemplated by his Ministry to ensure effective implementation of the Acts meant for their welfare, particularly to ameliorate the lot of Inter-State Migrant Labour vis-à-vis. the provisions of the inter-State migrant Labour Act, identification and registration of workers moving from one State to another, protection to migrant labourers going outside the country, plight of women workers particularly those working in foreign countries and the mal-practices committed by the employers such as maintenance of duplicate registers and non-payment of the minimum statutory wages to the workers. Responding to some of these queries, the Secretary submitted that the National Labour Institute will be asked to hold a tripartite workshop where social partners, eminent Trade Union leaders, employers and the workers along with the State Government representatives will be invited to ensure better and faster implementation of the Act. Touching upon the issue of intra-migration and inter-migration, he stated that the migration outside India has gone up year after year in that in 1999 it was 1,99,552, in 2000 it was 2,43,182, in 2001 it was 2,78,664, in 2002 it was 3,67,663 and upto September in 2003 it was 3,66,864. As regards women workers, issuance of visas to women below the age of 30 has been banned in view of complaints being received in that regard. Steps have also been taken to amend the Immigration Act, 1983 whereby two specific provisions with regard to Central Manpower Export Promotion Council and a Welfare Fund have been made. The matter has gone to the Standing Committee for examination. Pending that, an Insurance Scheme has been introduced on the 25th December, 2003 for all those going abroad at a cost of less than Rs. 2000/- so that if migrants get stranded, they will get the return ticket and their families can be treated in India. In this context, the Joint Secretary concerned of the Ministry pointed out that basically three types of complaints viz., their not getting the wages in time or not getting them at all or their not even finding their employer when they go abroad are received from the emigrant workers. In such cases they fix the responsibility on the recruiting agent through whom they have gone abroad. The most of the complaints are from the Gulf countries and some times from Malaysia as some of these countries do not have transparent procedures. Action is taken against the agencies/agents who illegally recruit and send people abroad no sooner they come to know of it. Action is also taken against the authorized recruiting agencies/agents if complaints against them are received with such agencies/agents being blacklisted. Pravasi Bharatiya Bima Yojana has been introduced in the year 2003 whereunder such of the workers as are not given promised employment when they reach abroad can claim reimbursement of expenditure from the Insurance Company. Insurance, as a matter of fact, has been made mandatory. Responding to a query from a Member of the Committee as to whether the workers emigrating for work abroad are being registered in the Indian Embassies/High Commissions in the respective countries, the Joint Secretary replied that as of now there is no provision for registration of people going through agents in the Indian Missions. 14. Subsequently, in its written replies to a questionnaire on the subject, the Ministry of Labour inter alia gave the following clarifications:- (i) In order to regulate the wages, working conditions, safety and health and welfare measures to building and other construction workers, the Government has already enacted the Building and Other Construction Workers (Regulation of Employment and Conditions of Services) Act, 1996 and the Building and Other Construction Workers Welfare Cess Act, 1996. The Act applies to every establishment which employs 10 or more workers. As the building and construction industry covers vast multitude of work force, a provision has been made for constituting Advisory Committees at the central and state levels with the function to advise the governments concerned on such matters arising out of the administration of this Act. Further, at the Central level the Building and Other Construction Workers (RECS) Central Rules 1998 have been framed and State Governments are also to frame State Rules under the main Act. Besides, every State Government has to constitute a Building and other Construction Workers' Welfare Board. The major source of the fund to the Board shall be collection of cess at the rate of 1% of the cost of construction incurred by an employer under the Building and other Construction Workers' Welfare Cess Act, 1996. The exception made is only in respect of residential houses for own purpose constructed at a cost not exceeding Rs. 10 lakh. The fund will be utilized for immediate assistance in case of workers' accident, pension after the age of 60 years, loans for the purpose of construction of house, premia for Group Insurance Scheme, assistance for education of children, medical expenses, maternity benefits to female beneficiaries, etc. (ii) The Minimum wages Act, 1948 was enacted primarily to safeguard the interests of the workers in the unorganized sector as they, due to illiteracy and lack of bargaining power, are vulnerable to exploitation. The Act binds the employers to pay to the workers engaged in the scheduled employments, the minimum wages fixed and revised thereunder. Construction is a scheduled employment both in the Central and the State sphere. The Minimum Wages Act, 1948 provides for implementation of minimum wages both in Central and the State sphere. The Officers of the enforcement machineries conduct regular inspections of the establishments and advise the employers to make payment of shortfall of wages whenever they detect any case of non-payment or less payment of minimum wages. If an employee is paid less than the minimum rate of wages fixed for his class of work or less than the amount due to him under the provisions of the Minimum Wages Act, he can make an application to the authority appointed for the purpose. There are legal and penal provisions in the Act against those employers who default by either not paying less than minimum wages to the workers. (iii) Enough protection to the women workers/labourers has been provided under various labour laws like the Minimum Wages Act, 1948, the Beedi & Cigar Workers (Conditions of Employment) Act, 1966; the Plantations Labour Act, 1951; the Contract Labour (Regulation & Abolition) Act, 1970; the Inter-State Migrant Workmen (Regulation & Conditions of Service) Act, 1979; the Factories Act, 1948; the Mines Act, 1952; the Maternity Benefit Act, 1961; the Equal Remuneration Act, 1976; the Employees State Insurance (General) Regulation, 1950; the Beedi Workers Welfare Fund Act, 1976, the Iron ore Mines, Manganese ore Mines and Chirome ore Mines Labour Welfare Fund Act, 1976, the Lime Stone and Dolomite Mines Labour Welfare Fund Act, 1972, the Mica Mines Labour Welfare Fund Act, 1946; the Building and Other construction Workers Welfare Cess Act, 1996; and the Industrial Employment (Standing Orders) Act, 1946. (iv) The Government of India do not encourage recruitment of Indian women as housemaids/domestic workers for employment abroad. On the recommendations of the National Commission for Women, women below 30 (thirty) years of age have been barred for emigration to the foreign countries for working as housemaids/domestic servants except under some special circumstances on merits of individual case. (v) The Building and Other Construction workers (RECS) Act, 1996 provides that in case of an accident the employer/contractor has to give notice of accidents to the authority concerned. The responsibility for the payment of compensation in the case of death or disablement of the building worker is on the employer who shall be liable to make payment of that compensation in full or the unpaid balance due in accordance with the provisions of the Workmen's Compensation Act, 1943. (vi) The Government has launched the Unorganized Sector Workers` Social Security Scheme (USWSSS) for the workers in the unorganized sector on a pilot basis. The scheme provides triple benefits as under: · Medical Insurance: coverage under the Universal Health Insurance Scheme (UHIS) for a family of five including member. The scheme provides for reimbursement of hospitalization expenses up to Rs. 30,000/- in a year and in case of worker (Member) of the family is hospitalized due to accident/illness, a compensation of Rs. 50/- per day upto a maximum of 15 days and also coverage of death of the worker (member) of the family due to accident (Rs.25, 000/-). · Personal Accident Insurance - Insurance cover of Rs.1,00,000/- in case of death or permanent disability. · Pension Scheme - A minimum pension @Rs.500/- per month on attaining the age of 60 years or permanent/total disablement and family pension in case of death of the worker with a provision for enhanced or reduced pension based on the contribution. It is the endeavor of the Government to encourage private institutions, social partners, NGOs, etc. who are engaged in skill development and training including self-certification for the workers of unorganized sector. During the Tenth Five Year Plan, training and skill development has been identified as one of the priority areas. Skill training is provided by various organizations like the Construction Industry Development Council (CIDC) for construction workers, besides Central and State Government institutions as per their capacity. (vii) The matter relating to implementation, etc. of the Act is also discussed in the Central Advisory Committee constituted under the Act, from time to time. (viii) A few suggestions for amendments to the Inter State Migrant Workmen Act, 1979 have been received from a few State Governments. These amendments are generally related to the coverage of the Act to those migrants who undertake migration on their own. The Second National Commission on Labour has examined the question of covering the migrant workers who undertake migration on their own. The Commission, however, felt that the Government may not be in a position to legislate a law for the workers who are migrating on their own in view of the freedom of mobility as guaranteed under Article 21 of the Constitution of India. The Committee was also apprised of the progress of the implementation of the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 and the Building and Other Construction Workers Cess Act, 1996 made so far in different States the details of which are given in Appendix-VI. ORAL EVIDENCE OF SECRETARY, CENTRE OF INDIAN TRADE UNIONS (CITU) AND GENERAL SECRETARY, HIND KHET MAZDOOR SABHA. (HKMS) 15. The Committee at its sitting held on the 29th November, 2004 heard Shri W.R. Varada Rajan, Secretary, Centre of Indian Trade Unions (CITU) and Shri Subhash Lomte, General Secretary, Hind Khet Mazdoor Sabha (HMS) on the issues raised in the petition. 16. Shri W.R. Varada Rajan in his submissions before the Committee stated that an exercise is presently on in the government towards enacting a comprehensive legislation for the unorganized sector workers and the Central Trade Unions have given their suggestions on the draft bill which was circulated to them. The unorganized sector workers, as a matter of fact, are least protected and they must be ensured a regular employment and payment of employment wages. Dwelling on the issue of providing social security to them, Shri Varada Rajan emphasized the need for social security being extended to the workers as a State funded benefit, as they are not in a position to make the required contribution from their earnings. The Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 is there, but most of the States have not even framed the rules under the Act. Similarly, barring the States of Kerala and Tamil Nadu, none of the States have constituted State Welfare Boards. The Central Trade Unions have their representatives on the State Boards. Likewise, some of the contractors who engage construction workers have their representatives on the Advisory Boards that have been constituted under the Act but that does not seem to serve the purpose, as they are motivated to protect their own interests. It is, therefore, imperative that action needs to be taken for framing of rules by all the States and for establishment of Advisory Boards with representatives from the Central Trade Unions as well as regional trade unions. The biggest problem, however, is about registration of workers. In the States, where the rules have been framed and Boards have been constituted, construction workers are being registered but, keeping in view the size of the workforce, which is enormous, registration is a gigantic task. In this context, responding to a query from the Chairman of the Committee as to what should be the agency to whom the task of registration be entrusted, Shri Varada Rajan clarified that the ground reality is that most of the workers in the unorganized sector fall outside the ambit of Trade Unions but he can say on the basis of his experience that in the States where Boards have been constituted and trade unions have been associated with the process of registration, there has been considerable progress. Nonetheless, keeping in view the fact that the construction workers are spread over throughout the length and breadth of the country, voluntary organizations/NGOs/Panchayats and whichever body can help in the matter should be associated with the job of registration of workers depending, of course, upon the place of presence of such workers. In other words, the Welfare Boards should be primarily assigned the task of getting the workers registered and others can help the Boards. 17. On being pointedly asked as to what could be the mechanism for registration of migrant labourers especially when they do not operate under the framework of trade unions. Shri Varada Rajan replied that since the process for omnibus legislation for unorganized sector workers is under way whereunder national level and State level Boards have been recommended, these Boards could be entrusted with the task of getting the migrant workers registered. It was pointed out to him by the Committee that the difficulty is that the contractors are least interested in getting the labourers engaged by them registered as they will have to provide to them all the facilities under the Act. Similarly, the labourers themselves do not approach the Boards for registration. In such a situation, could not the onus for registration of workers/labourers with the Welfare Boards be put on the contractors by a Government order thereby making them liable for punitive action like fine, etc. in the event of failure on their part to do so. He seemingly agreed with the suggestion and pointed out that in other countries nobody can be employed unless he has social security number and precisely for this reason the Central Trade Unions have been pressing for establishment of a National Social Security Authority under whom Social Security Boards could be set up with an obligation being cast on the contractors or whosoever undertakes the construction work, to engage/deploy only those workers who have social security number. As a matter of fact, at the time of celebration of the Employees’ Provident Fund Golden Jubilee, an announcement was made by the then Labour Minister that already a proposal has been made to constitute a National Social Security Authority with the Prime Minister as the Chairman but that proposal has yet not seen the light of the day. 18. Dwelling on the issue of desirability of a ban being imposed on the manufacture/use of asbestos, Shri Varada Rajan pointed out that ILO conventions are already there. Various studies have, however, revealed that the asbestos is very hazardous and no amount of safety measures can do away with the hazardous aspect of the use of asbestos. It has, therefore, been the demand of the trade unions that the use of asbestos needs to be totally banned/discontinued. 19. Shri Subhash Lomte, General Secretary, Hind Khet Mazdoor Sabha (HMS) thereafter in his presentation, inter-alia, submitted that there are more than 10 crore construction workers, but the Act of 1996 has not been implemented effectively in any of the States except Kerala and Tamil Nadu, which have taken some initiative in this regard. Of the 93% workers in the unorganized sector, the benefits of the enactment have accrued to just about 6-7% workers, which amply proves that very little protection is available to them. There is now a talk about comprehensive legislation for unorganized workers for which the Mathadi Act which was enacted in 1969 in Maharashtra and whereunder social security, revision of minimum wages after 2-3 years and implementation of employment regulations are ensured can provide the basis. However, in order to ensure adequate protection to workers responsibility for implementation of the legislation should lie with the Government, along with the trade unions. The onus for registration of workers, whether they be migrant or agricultural should lie with their employers with adequate provisions for punitive action in case they fail to do so. The penalty should be rationalized and raised substantially so as to act as a deterrent for the defaulting employers. The registration of migrant workers should be undertaken as well in the blocks or villages from where they migrate and the village headman or block tehsildhar should be entrusted the responsibility of keeping account of such workers. He also expressed his full agreement with the suggestion of Shri Vardha Rajan for setting up a Central Social Security Authority. STUDY VISITS OF THE COMMITTEE ON PETITIONS 20. During its study visits, the Committee had detailed discussions with the Labour Secretaries of the State Governments of Maharashtra, Karnataka, Andhra Pradesh, West Bengal, Tamil Nadu, Kerala and the Union Territory of Pondicherry as also the representatives of various Central Trade Unions on the status of implementation of the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996, Building and Other Construction Workers Welfare Cess Act, 1996 and the Inter-State Migrant Workmen (Regulation of Employment & Conditions of Service) Act, 1979, the measures being taken to improve the lot of unorganized workers/migrant labourers and the desirability of use/manufacture/mining of asbestos being banned. The points that emerged on the basis of these discussions are enumerated below, State-wise:- MAHARASHTRA 21. During its interaction with the Labour Secretary, Government of Maharashtra, the Committee was apprised that the Rules under the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 have since been prepared in consultation with the Expert Committee constituted for the purpose and the matter regarding implementation of the Act is at various stages of consideration/finalisation. It should be possible for the State Government to implement the Rules during the current financial year. The State had also undertaken a comprehensive legislation in 1969 for the welfare and service conditions of Mathadi Workers in the unorganized sector. The State Government has been able to organize them into groups and ensure that they are registered and get the benefits of wages, PF and health care, etc. On the issue of use of asbestos being banned in view of potential health risks involved, the Committee was informed that the asbestos is considered hazardous under the Factories Act and suitable regulatory mechanism is in place in the State to monitor and ensure that the Workers are not exposed to health hazards. A survey conducted by the Industrial Hygiene Laboratory in the State had not brought out any case of any worker being affected by any diseases due to his working in asbestos factory. 22. The representatives of the Trade Unions had, however, differing views on the legislative and other measures taken for the welfare of the unorganized workers/migrant labourers in the State of Maharashtra. One of them submitted to the Committee that the workers engaged in construction activity do not have any permanent employment nor for that matter there is any implementation of the Cess Act. His suggestion was that the Government of Maharashtra should enact and implement suitable legislation for the benefit of the workers and separate machinery should be created for them as the Labour Commissioner is already overburdened with work. Similarly, a Welfare Board for construction workers should be set up on the pattern of the one existing for Mathadi Workers and the builders/contractors should be mandatarily required to approach the Board for their requirement of workers, which will ensure payment of Minimum Wages and other social security benefits to them. Another Trade Union representative pointed out that there is no systematic legal protection available to the construction workers many of whom get employment just for two days in a week. The benefits of minimum wages also do not accrue to them on a uniform basis. He was pointedly asked by a Member of the Committee as to whether appointment of a Commissioner for registration with the construction workers being required to get themselves registered with him within a specified period – say 120 days – and they being consequently issued identity cards would serve the desired purpose. The answer given was that the experience of Tamil Nadu is quite useful which could be adopted. A suggestion was also made that the limitation of 10 workers under the Central Act should be done away with and protection should be extended even in cases where the number of workers employed is less than 10. He admitted that the asbestos used as insulation is extremely hazardous but in cases where asbestos cement is used for roofing ban will not be feasible. KARNATAKA 23. The Committee was apprised by the Principal Secretary, Government of Karnataka that after the Central Government came out with a legislation in 1996, the State Government of Karnataka perhaps like most of the State Governments had for the first couple of years not really attempted to frame the Rules. Nonetheless, the State Government had been very conscious of the fact that some kind of legislation emanating from the Scheme of the Act had to be worked out for the unorganized sector and accordingly the Unorganized Workers Bill, 2002 was brought before the State Legislature. In the Legislative Council it was referred to a Select Committee and the Committee went on deliberating on this Bill for a couple of years. The Government in the mean time changed and they had to face a situation of withdrawing this Bill and submit again before the new body so that if required new elected members could look at the Bill again and take a decision whether to have a discussion in the Committee or otherwise. One of the reasons for not pursuing implementation of the Central Act was that the State Government had in mind its own an Unorganized Workers Welfare Bill but for the last two years they have been looking at the subject in great detail and the one great inhibiting factor in implementing the Act is the magnitude of funds involved. The Labour Secretary in this context cited in particular the provision of extending the maternity benefits which alone would entail an expenditure of Rs. 300 crores. She, therefore, expressed some reservations about extending all the benefits envisaged under the Central Act as the major question was how to find the resources. She in this context referred to the case of Tamil Nadu and Kerala which have taken the lead in implementing some kind of Schemes for the unorganized sector workers and pointed out that even in these States in terms of the position that obtains today the percentage of beneficiaries covered is very small. 24. The Labour Secretary further submitted to the Committee that it was accordingly felt to have some kind of a detailed study undertaken to look at what really the unorganized sector in terms of prioritising their needs really would want and in what manner should a scheme be introduced which would be a success, the idea being that once the scheme is introduced it will have to be a scheme which covers all beneficiaries who have to avail of that benefit. The study has been undertaken by a German Development Corporation and this has been brought to the notice of the Government of India as well. The Central Government on its part has drafted a Bill which has come to the State Government as part of the consulting process. The State Government has apprised the Central Government as to what are their concerns and the implications. Nevertheless, in the process of resubmitting their own Unorganized Workers Bill, they are looking at whether some changes can be made therein and pending that the State Government is going ahead with the Construction Workers Bill and the Rules on the lines of the Central Government Rules have been drafted which are going to be published. Referring to the Inter-State Migrant Labour Act, 1979, the Labour Secretary submitted that the Karnataka State did not have as many migrant labourers as some of the other States but in view of the definition of migrant labour as contained in the Act the implementation thereof had become somewhat difficult and the petition under consideration of the Committee on Petitions itself had suggested some amendments being effected in the Act. 25. During its interaction with the representatives of Trade Unions, the Committee was apprised that the migrant workers are totally in difficult living conditions and even the Central enactments both for migrant labourers and the building and construction workers in Karnataka have not been implemented and one of the reasons could be the influential builders lobby not interested in seeing these enactments enforced as they will have to contribute a fixed percentage of the cost of the building towards the welfare Fund for workers. They emphasized that the Rules should be framed as envisaged under the Act and a tripartite committee inter alia consisting of representatives of Trade Unions should be constituted to oversee that the benefits accrue to the intended beneficiaries. The Kerala Model could be adopted for better results. As regards the asbestos, their view was that it should be banned with due safeguards of alternative employment for the workers employed in this Industry. ANDHRA PRADESH 26. The Labour Secretary, Government of Andhra Pradesh in the course of her submissions before the Committee informed that the Rules under the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 have been framed and notified. There was, however, a slight omission about the constitution of a State Advisory Board as envisaged under the Act from the Rules and the matter is being examined in consultation with the Law Department. The process for appointment of Inspectors is also under way. Similarly, the rates of contribution to be made by the building contractors are being worked out and will be notified. Steps have also been taken to formulate an Insurance Scheme for construction workers on the pattern of the one in existence in Tamil Nadu. The minimum wages for construction workers have also been fixed by the State Government. The State Welfare Board for workers will be vested with the task of undertaking registration of workers no sooner it is constituted. 27. The Labour Secretary, Government of Andhra Pradesh further informed the Committee that the Central Government has already prepared a comprehensive draft bill for unorganized workers on which suggestions of the State Government have been forwarded to them. The State Government will accordingly have to wait till the Central Government takes a final view on this comprehensive draft bill. In so far as the Inter-State Migrant Workmen (Regulation of Employment & Conditions of Service) Act, 1979 is concerned it is being implemented in the State of Andhra Pradesh and 24 contractors have been given licenses thereunder. The benefits under the Act will accrue only to those inter-state migrant workers who are registered and not to those who are unregistered. Efforts are being constantly made to identify the contractors who are operating without the licences so that the workers employed by them could also be registered and the benefits due to them ensured. 28. The representatives of the Trade Unions, however, during their discussions with the Committee on the subject informed that the rules have not been framed and even the workers were being paid wages below the statutory wages. Not only that, there is disparity between the wages paid to male and female workers. The representative of AITUC suggested that theBuilding and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 should be suitably amended to make it applicable irrespective of the number of workers or the value of the project. WEST BENGAL 29. The Principal Secretary, Labour Department, Government of West Bengal in the course of his submissions before the Committee admitted at the outset that there has been delay on their part in finalizing the Rules as envisaged under the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996, which was mainly due to consultations with different departments of the State Government and Municipalities as ultimately they were to be vested with the responsibility of deducting the prescribed amount from the payments due to the contractors. In any case, the notification was issued in August, 2004 and the Rules have gone for publications and it was expected that in another seven days time Rules will be ready and immediately thereafter they will form the welfare Board for building and other construction workers. Minimum wages for construction workers are also being notified. The Inter-State Migrant Labour (Regulation of Employment and Conditions of Service) Act, 1979 has also been implemented in the State of West Bengal. In this context, he submitted that 12437 workers had been covered under the registration and about 12600 workers had been covered under licenses. Similarly, 724 principal employers had obtained their registration and 739 contractors obtained their licenses while employing the contract workers. On being asked specifically about the estimated number of unregistered migrant labourers in West Bengal, the Principal Secretary admitted that in order to circumvent the Act, the contractor often takes the plea that he has directly employed them and they are not employed through the contractor. To a suggestion from the Chairman of the Committee as to why not to make registration of non contractual labour compulsory, the Principal Secretary agreed that he would take note of this suggestion and bring to the notice of his Labour Minister. He also agreed that advertisements from the Labour Department prohibiting the contractors from recruiting workers without informing the department could be considered. The Committee was also told that the Government of West Bengal has, for the last four years, been implementing a P.F. Scheme for the workers in the unorganized sector from its resources. 6.5 lakh workers in the unorganized sector have subscribed in the scheme. They have contributed Rs.13 lakhs in the P.F. and the State Government have contributed similar amount. Regarding the issue of use of asbestos being banned raised in the petition, the Principal Secretary submitted the there are eight asbestos factories in West Bengal in which 1200 workers are engaged and asbestos has been notified as a hazardous industry by the Government of India and the State Government is following the instructions in this regard with a view to ensuring that the pollution does not exceed the permissible limit. 30. During its interaction with the trade unions on the issues raised in the petition, the representative of CITU demanded that the threshold limit of rupees ten lakh or as the cost of the construction project for purposes of levy of Cess and the limit of ten workers for purposes of applicability of the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996, should be brought down and it should be rupees one lakh. Similarly, the Act should be applicable irrespective of the number of workers. He also suggested that there has to be a machinery to check illegal immigration of labour from India to other countries. The representative of BMS suggested that the extension of the Minimum Wages Act to the building construction workers could help them better. TAMIL NADU 31. During its discussions with the Secretary Incharge, Labour and Employment Department, Government of Tamil Nadu, the Committee, was apprised that the State Government had enacted the Tamil Nadu Manual Workers (Regulation of Employment and Conditions of Work) Act 1982, which is a comprehensive legislation for the workers in the unorganised sector. This Act was enacted to regulate the conditions of work and to provide welfare measures to manual workers. This Act provides for the formulation of schemes for the workers in the employments listed in the Schedule to the Act and also for the establishment of Boards for the implementation of the welfare schemes for the workers. As on date 67 employments have been included in the Schedule to the Tamil Nadu Manual Workers (Regulation of Employment and Conditions of Work) Act, 1982. As far as the Construction Workers are concerned the Government of Tamil Nadu has established the Tamil Nadu Construction Workers’ Welfare Board for the welfare of manual workers employed in construction industry in the year 1994. The Government also formulated the Tamil Nadu Manual Workers (Construction Workers) Welfare Scheme, 1994 which covers the employments in construction or maintenance of dams, bridges, roads or any other building operations, stone breaking or stone crushing, brick manufacturing (other than those covered under the Factories Act) and construction of pandals. The scheme lists 38 categories of workers involved in construction activities who could register with this Board from the age of 15 to 60 and avail the scheme benefits. The worker has to make an application in the prescribed form together with the Certificate of Employment issued by an employer engaged in construction industry or a registered contractor or Government organisation or agencies engaged in building industry or a registered Trade Union. The registration is valid for a period of two years and can be renewed on payment of a renewal fee of Rs.10/-. The workers are issued an identity card at the time of registration. The registration of a construction worker is made in the Regional Offices of the Board functioning in the Offices of the Labour Department in 15 places and also in the Head Office at Chennai. In order to broad base the registration work, the Government has also ordered the 214 Assistant Inspectors of Labour to undertake the registration work. And till 28.2.2005, 6,58,277workers involved in construction activity have registered their names with the Board. The Benefits/assistance that the registered workers of the Board are provided with are: Ø The registered workers have been insured under Group Personal Accident Insurance Scheme. In the event of death of a registered worker due to accident a sum of Rs.1,00,000/- is paid to the nominee of the deceased. In the case of injury or loss of limbs or loss of eyesight compensation is paid upto Rs. 1,00,000/- depending upon the loss. Ø Assistance for the education of the son or daughter of a registered worker who has passed 10th standard is given Rs.1000/-. An amount of Rs.l,500/- is given for passing plus 2 examination. Educational assistance is also given to son or daughter of the worker who is studying ITI or Polytechnic Course or regular degree course or professional courses ranging from Rs.l, 000/- to Rs.6000/- Ø A sum of Rs.2,000/- is paid as assistance to meet the marriage expenses of the worker or his son or daughter. Ø A sum of Rs.2, 000/- is paid as assistance for the delivery of a child or for the miscarriage of pregnancy or for the termination of pregnancy by a registered woman worker. Ø Assistance of Rs.2,000/ - is paid to the nominee of the deceased worker to meet the funeral expenses of the deceased worker. Ø A sum of Rs.10, 000/- is paid to the nominee of the registered worker if the registered worker dies naturally. Ø A sum of Rs.250/- is paid to 1,000 registered Construction Workers every year as assistance for purchase of spectacles on first come first served basis. 32. The Government of Tamil Nadu has issued orders in G.O (D) No.486, Labour and Employment Department dated 31.3.2005 fixing a quantum of Rs.200/- per month towards pension to every registered construction worker who has completed 60 years of age and who has continued as such worker for a continuous period of not less than five years. A worker who has not completed 60 years of age but is registered with the Board for a continuous period of not less than five years is also eligible for pension, if he has become disabled due to sickness and incapacitated from normal work. In April 2005, the Hon'ble Minister for Labour, Govt of Tamil Nadu on the floor of the Legislative Assemblyannounced New Schemeswhich include: Ø Enhancement of Maternity Assistance from Rs.2, 000/- to 4,000/-. Ø Enhancement of Assistance from Rs.250/- to Rs.500/- towards reimbursement of cost of spectacles and number of workers from 1000 to 2000 per year. Ø Enhancement of Assistance on the Natural Death of a registered worker from Rs.10,000/- to Rs.15, 000/-. Ø Educational Assistance to the girl children of the registered construction workers as detailed below: § For studying 10th Standard - Rs.1000/­- § For studying 11th Standard - Rs.1000/-­ § For studying 12th Standard - Rs.1500/-­ Crèches are also proposed to be started in Chennai, Thiruchirapalli, Madurai, Tirunelveli, Salem and Coimbatore for the welfare of the children of the registered women construction workers. 33. The details of various welfare assistances given to the registered construction workers upto 31.3.2005 by the Government of Tamil Nadu are enumerated below: Sl. No Assistance No.of workers Amount Rs. 1 Accident Death 554 5,24,30,000 2 Disablement due to accident 112 22,14,550 3 Natural Death 5,431 5,11,95,000 4 Funeral Assistance 6,104 1,19,92,500 5 Spectacles Assistance 449 1,11,953 6 Maternity Assistance 737 14,71,000 7 Marriage Assistance 15,574 2,97,60,000 8 Education Assistance 10th Std., 14,965 1,46,42,250 12th Std., 7,857 1,15,09,500 Higher Education 3,632 57,03,800 . Total 55,415 18,10,30,553 34. The employers' contribution is collected from the persons and agencies engaged in any construction work at 0.3% of the total estimated cost of the proposed construction work and the amount is collected by the local bodies at the time of approval of the plans for the proposed construction. The Tamil Nadu Manual Workers Social Security and Welfare Board was constituted by the Government on 17.03.1999. The Board administers a Social Security Scheme for unorganised workers other than construction workers. The Board also extends benefits to the registered workers similar to the Construction Workers Welfare Board. The migrant workers in Tamil Nadu, which are meager in number are from West Bengal, Assam, Karnataka, Uttar Pradesh, Orissa, Bihar, Rajasthan and Kerala. They are concentrated in the Districts of Chennai, Coimbatore, Ramanathapuram and Thoothukudi. They are employed as labourers in Steel Rolling Mills, Flour Mills, Sea Food Processing and Fish Curing activities. In the Factories Inspectorate there are 81 Inspectors who are enforcing the Inter-State Migrant Workmen Act. They have conducted 8,058 inspections during the last three years. As regards banning the Asbestos, the Committee was apprised that there are 13 factories that are manufacturing Asbestos in Tamil Nadu and these factories were brought under the purview of the Factories Act, 1948. Three out of thirteen factories have not been functioning for the last 5 years. Membrane Filter Test is regularly conducted and the asbestos fibre in air is periodically monitored. The workers employed in the factories are covered under the Workmen’s Compensation Act, ESI Scheme, Group Insurance of Insurance Company. About 1000 workers are employed in asbestos handling process and the certifying Surgeon of the Factories Inspectorate examines them periodically. As per direction of the Hon'ble Supreme Court of India in W.P.No.260/2004 necessary proposal for the insertion of the provision to amend the Factories Act for maintenance of health register has already been sent and the Government, has also issued a preliminary notification on 3.8.2004. Necessary provision has been made in the Tamil Nadu Factory Rules, 1950 to conduct membrane filter test to detect the asbestos fibre concentration in working environment and periodical monitoring the same. 35. Responding to a query from the Committee as to how the Tamil Nadu Act compares with the Central Act of 1996, the Commissioner of Labour replied that the Central Act provides for 1% cess for projects costing above rupees ten lakhs whereas in the State Act there are no such limits prescribed. On being asked about the reasons for only six lakh workers being registered in a span of eleven years since 1994 out of a population of twenty lakh workers, the reply given was that the registration is optional and it is only after the introduction of the pension scheme in 2001 that many responded. PONDICHERRY 36. The Committee was apprised that the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 and the Building and Other Construction Workers Welfare Cess Act, 1996 came into force in the Union Territory of Pondicherry from 1.3.1996. The Ministry of Home Affairs empowered the Government of Pondicherry to exercise the powers under the Building and Other Construction Workers Act vide notification dated 14.7.2000. Subsequent to this, the Government of Pondicherry framed "The Pondicherry Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Rules, 2001" and notified the same on 28.8.2001.Thereafter, necessary authorities and inspectors have been appointed under both the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 and the Building and Other Construction Workers Welfare Cess Act, 1996. The Pondicherry Building and Other Construction Workers Welfare Board was constituted on 23.12.2002 and Welfare Fund was set up for extending various welfare measures to the Building and Other Construction Workers. Minimum Wages for the workers employed in Building Operations were initially fixed on 10.4.1997 vide G.O.Ms.No.21/97/Lab/AIL/G and the same was revised vide G.O.Ms.No.1/2005/Lab/G, dated 12.1.2005 wherein 31 categories of Construction Workers were covered. The Inter State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 was republished by the Government of Pondicherry in Gazette No.9, dated 3.3.1981 for general information of the public. The existing Act extends to any office or department of the Government or a Local Authority or any place where any Industry, Trade, Business, Manufacture or Occupation is carried on and where five or more workers are or were employed. They expressed a view that the minimum number of workers prescribed can be removed. 37. The Committee was further informed that 37 categories of Construction Workers have been enlisted for enrolment in the Construction Workers Welfare Board and they have been duly issued identity cards. An annual subscription of Rs. 240/- is being collected from the enrolled beneficiaries at the rate of Rs.20/- p.m. in addition to a one time registration fee of Rs. 25/-. However, in view of the genuine request by the construction workers, the annual subscription has been brought down from Rs.240/- ­to Rs. 100/- vide Notification G.O.Ms.No.10/AIL/LAB/G/2005, dated 10.6.2005. This reduction in annual subscription feeis expected to increase the enrolment of beneficiaries in the Welfare Board. 38. So far, 3727 workers have been enrolled as beneficiaries in the Welfare Board and all of them have been brought under Group Insurance Scheme of "Janashree Bima Yojana" of Life Insurance Corporation of India. An amount of Rs.21,46,373/- has been extended as welfare benefits during the period from June, 2003 to March, 2005. 39. At present the following benefits are being extended to the enrolled beneficiaries in addition to the Group Insurance Coverage under the Janashree Bima Yojana Scheme of LIC: Maternity Benefit Rs.1,000/- Funeral Assistance Rs.1,000/- Death benefit Rs.20,000/- Accident death Rs.50,000/- 40. The Pondicherry Administration proposes to enhance Funeral Assistance from Rs.1000-.to Rs.1500/- and Maternity Benefit from Rs.1000/- to Rs.1500/-. And to introduce the following new benefitsthis year: (a) Medical assistance to the enrolled Construction Workers not exceeding Rs.1000/. p.m. (b) Marriage assistance to the women workers to the tune of Rs.5000/-. The other benefits as provided in the Act and Rules will be extended in a phased manner. 41. To identify different categories of Construction Workers in Pondicherry and expand the enrolment of beneficiaries and extend various welfare benefits, a survey was conducted among different categories of Construction Workers and Unorganised Workers in all the four regions of the Union Territory of Pondicherry. The work of survey had been entrusted with the Directorate of Economics and Statistics, Pondicherry and it had commenced the survey in all the four regions of the Union Territory of Pondicherry on the 5th May,2005. The survey was expected to be completed by June. 2005 and the report to be finalised thereafter. 42. As per the provisions of the Building and Other Construction Workers Welfare Cess Act, 1996, 1 % of the total cost of Construction is collected from 2003 onwards for the welfare fund of the Board. The Labour Officer (Enforcement), Pondicherry and Labour Officer, Karaikal have been declared and appointed as Cess Collector in respect of Pondicherry, Mahe, Yanam and Karaikal region respectively. Some Officers have been declared as Assessing Officers for the purpose of assessment of cess under the Building and Other Construction Workers' Welfare Cess Act, 1996. The Appellate Authority will be the Surveyor of Works, Central Office, Public Works Department, Pondicherry. So far, an amount of Rs.1 crore has been realized as cess amount. 43. The Committee was apprised that in order to have a comprehensive law for providing social security to the workers in unorganized sector, the Government of India has already taken steps in this direction and once the law is enacted this Union Territory will also adopt the same. It was also apprised in this regard that the Government of Pondicherry had sent a proposal during the year 1997 to the Planning Commission, Government of India, seeking permission to constitute a Labour Welfare Board. But, the Planning Commission had turned down the proposal due to administrative reasons. However, in order to ensure protection to the unorganized work force an alternative method was thought of and as a result a society in the name and style of "The Pondicherry Unorganized Labourers Welfare Society" had been constituted during the year 2001. The Draft Unorganised Sector Workers' Bill, 2004 provides for establishment of State Welfare Board for Unorganised Sector Workers and the Draft Bill is under active consideration of the Ministry of Labour, Government of India. On its enactment, necessary Welfare Board will be constituted. Until such time, the Pondicherry Unorganised Labourers' Welfare Society would look after the welfare of the unorganized workers of the Union Territory. The object of the Society is to provide for the following welfare measures to the Unorganised Labourers' namely: -­ 1. Introduction of Group Personal Accident Insurance Scheme; 2. Grant of financial assistance to the dependants on the death of a beneficiary 3. Grant of financial assistance for the education and marriage of the son or daughter of a beneficiary; 4. Extension of Maternity benefits to women beneficiaries; 5. Grant of financial assistance to the beneficiary suffering from major ailments for getting necessary medical treatments at any of the specialized hospitals approved by the Government; 6. To do all such lawful acts as are conducive or incidental to the attainment of the objectives of the society. 44. The enrolment in the society is restricted to the persons whose income is Rs.30,000/- per annum and also subject to a declaration of the Annual income by the individual concerned. Beneficiaries are being enrolled in the society by collecting a Membership fee of Rs.25/- and Annual subscription of Rs.100/-. All the registered beneficiaries are being covered under the "Janashree Bima Yojana" Scheme of Life Insurance Corporation of India. As per the scheme Rs.2000/-has to be paid as premium annually and the premium is being shared at the rate of Rs.25/-,Rs.75/- and Rs.100/- by the beneficiaries, society and the Central Government (Social Security Fund) respectively. 45. The Committee was also apprised that there is no registered factory either processing asbestos fiber or manufacturing asbestos products in the Union Territory of Pondicherry. However, with respect to imposition of ban orders on asbestos, a decision has to be taken by Government of India and once such a decision is taken, this Union Territory will strictly enforce the same. KERALA 46. During its discussions with the Labour Secretary, Government of Kerala, the Committee, was apprised that Kerala is on the forefront in so far as labour welfare is concerned and nearly 45 lakh employees come under the umbrella of Welfare Schemes. Most of the sectors which remain unorganized in other states are almost well organized in Kerala and there are 15 welfare Boards, each one having its own administrative set up. The Building and Other Construction Workers' (Regulation of Employment and Conditions of Service) Act and the Building and Other Construction Workers' Welfare Cess Act, 1996 are effectively implemented which is perhaps cited as a model for the other states. The Kerala Government has issued separate Rules in this behalf. There is a well-knit system for the assessment and the collection of cess by the officials of the Labour Department. The Cess is collected at the rate of 1% from the owners of buildings with a total value of above Rs. 10 lakhs and the entire money is transferred to the Welfare Fund Board. The workers contribute twenty rupees per month and the amount collected from the workers is to the tune of Rs. 17 crores as against Rs. 38 crores by way of levy of Cess. Total amount of Cess collected from 1998-2004 was Rs.92,12,75,425.00; and for 2004-2005 Rs.34,61,85,622,00 have been collected as cess. The Board is implementing all the Welfare schemes provided under the Act and the Rules. The family of a construction worker who dies while engaged in construction activity, gets Rs. One Lakh by way of compensation. For permanent disability Rs. 50,000/- is given to the workman injured. There is full medical benefit for the workers, in as much as they get reimbursement of the medical expenses incurred by them. Apart from this, these employees are covered under the Workmen's Compensation Act 1926 also. The number of construction workers in Kerala is estimated to be over fifteen lakhs, out of which 10.676 lakhs have already registered their names with the Building and Other Constuction Workers’ Welfare Fund Board. There is no complaint at all with regard to timely sanction and disbursement of all the benefits provided under the scheme. A dozen of such benefits range from monthly pension to financial assistance for entrance coaching fee . 47. The Committee was further apprised that migrant workers are really a problem of any State in view of the complex nature of work, their living conditions, etc. The contractors have to take license from the District Labour Officer concerned and the establishment for which he is taking the workers should be registered with the authority under the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act. The State level agencies have to register and take licenses from the Labour Commissioner. 45 such licenses have been issued. There are workers coming from other States to Kerala to perform arduous nature of work, as wages in Kerala are more attractive. In order to ensure decent facilities to them the enforcement officials of the Labour Department inspect the work places and give them necessary education and instructions. Seminars have been conducted to make them aware of their rights and available facilities. The employers have also been invited for such seminars. Since the workers do not know the local language, Hindi teachers were invited to take classes in the seminars for their benefit. Whenever complaints are received they are passed on to the local inspectors or to the Labour Officers concerned. The print and electronic media in the State is active and prompt for reporting incidents of accident and violation of Rules. As soon as such reports come to the notice of the Labour Department, action is taken on the spot.Each migrant workman is to be issued with a passbook with his photograph affixed therein, which should contain essential details including wages. It serves the purposes of an identity card as well. The question of introducing insurance coverage was under the consideration of the State Government, and there seemed to be no amendment necessary for the time being. As far as migration of labour to foreign countries is concerned, in Kerala there is a separate Department itself viz., the Non-Resident Keralite Affairs Department (NORKA) to deal with the problems of Keralites employed abroad. There are complaints regarding the poor living conditions in the labour lines of some of the foreign countries like UAE. The Government of Kerala has also formed a public sector company viz. the Overseas Development and Employment Promotion Consultants Ltd. (ODEPC), for recruiting Keralites for jobs aboard. There has absolutely been no complaint from any body that has been recruited through this public sector organisation. 48. During its interaction with the Trade Union representatives a suggestion was made that the registration of workers should be without any monetary contribution being required to be made by them. ORAL EVIDENCE OF THE SECRETARY, MINISTRY OF OVERSEAS INDIAN AFFAIRS. 49. The Committee on Petitions at its sitting held on the 29th September, 2005 had the benefit of the views of the Secretary, Ministry of Overseas Indian Affairs on some aspects of the issues raised in the petition; viz, unscrupulous recruitment of labour by unauthorized persons and their illegal emigration; why his Ministry could not take any steps to put an end to such an unauthorized recruitment and why protection could not be extended by the Government of India either through law or any other arrangement so that there is humane treatment for Indian labour who go abroad for livelihood. 50. The Secretary of the Ministry inter-alia submitted that international migration or migration outside India for employment is governed by the provisions of the Emigration Act, 1983, the framework of which envisages that recruitment for International migration would take place through registered agents and these agents are to be registered based on the criteria and other things given by the Protector General of Emigration. However, it was not anticipated that the people would recruit without registering themselves with the Protector General. In many cases people also go abroad taking advantage of the provision of suspension of migration clearance requirement. He, then admitted before the Committee that prosecuting the agencies/agents engaged in illegal migration was indeed a weak area and one of the options that they are considering is to amend the law to make it self-contained. As regards the suggestions of the petitioners to have a tri-partite mechanism, the Secretary, Ministry of Overseas Indian Affairs pointed out that the bulk of Indian workers migrated for work to Gulf Countries which are not members of ILO, and hence do not subscribe to the tri-partite approach. But nonetheless, they do have labour legislation, which does not discriminate between domestic labour and ex-patriate labour. There is, however, a little problem with regard to domestic workers who are not governed by all the labour laws. The Government of India is, however, making efforts to address these issues and the affected individuals can approach Indian Embassies/High Commissions to whom legal help in whatever measure possible, is extended. He however, added that some assistance in this regard can be organized through his Ministry by engaging the services of law firms there. He informed that his Ministry is seriously pursuing the signing of MOU with the Ministry of Social Welfare, Government of Kuwait. Responding to a pointed query raised by a Member of the Committee as to whether no need was felt for amending the 1983 Act. The Secretary replied that in the limited time of 8 months, his newly created Ministry has felt the necessity to bring even more fundamental changes in this Act and make it a very modern Act, to be in the tune with reality of today. A member of the Committee asked as to whether the problem of migrant workers had been studied. To this, the Secretary replied that the V.V. Giri National Labour Institute of Management had studied the problems regarding remittances faced by workers and the Centre for Development Studies, Thiruvananthapuram had studied the problems of migrant workers from Kerala. When asked about the statistical figures about the labour migrants migrating from this country, the Secretary informed the Committee that the proposal of issuing a Smart Card to every immigrant worker is at its final stages of consideration. He hastened to add that the Smart Card would be a chip embedded card which would carry a lot of useful information about the worker; his personal data, his employer, wages, insurance policy, etc. He informed the Committee about a welfare measure, which existed since December 2003, viz., Pravasi Bhartiya Bima Yojana. This gives an NRI a benefit of Rs. 2 lakhs besides repatriation benefits and hospitalization benefits for Rs. 20,000/-, etc. He assured that his Ministry would work on the suggestions given by the Chairman of the Committee that through MoU with the labour importing countries we can also know the number of people who are there. 51. Responding to a query raised by a Member as to whether his Ministry had conducted any enquiry to ascertain whether the recruiting agents giving advertisements in the newspapers were registered or not, and the action initiated against those newspapers which had published such advertisements. He apprised the Committee that the matter has been taken up with the National Council of Newspapers which had assured that they would give name and registrations no. of the agent which has published such advertisement. He however, informed that in the Emigration Act, there is no provision for the Government to directly take action against newspapers, which carry advertisement of unauthorized agents. He admitted that one of the challenges facing his Ministry was empowerment of workers through initiating awareness campaigns to make them aware about the terms and conditions of work, restrictions, etc. that existed and the wages they could expect in the country they were going to work in; how they could be duped by an unregistered recruitment agency, how they should check its registration and ask for their copy of the contract, which has been approved by the Indian High Commission, etc. He also shared with the Committee the fact that the total remittances that annually come into the Country through this labour amounted to twenty billion dollars, which, given the size of our Human Resources, could be tried to be enhanced to fifty billion dollars. He stated that the suggestions given by the Committee during the discussion to handle expatriates and middlemen were well taken and that his Ministry would work on all fronts pointed out by the Committee. OBSERVATIONS ANDRECOMMENDATIONS 52. The reliefs which the petitioners have sought in their petition can broadly be divided into three categories. Firstly, they have sought enactment of a comprehensive legislation for unorganized workers and suitable amendments in the existing laws, namely, the Building and other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996, the Building and other Construction Workers Welfare Cess Act, 1996 and the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979, along with effective measures being taken for their implementation in all the States and Union Territories. Secondly, they have prayed for a Tripartite mechanism being put in place in consultation with the ILO and UNO and all receiving countries for purposes of coordinating and monitoring/ensuring protection of all the migrant labourers working outside the country. Thirdly, they have prayed that the Government should bring out a legislative enactment to ban use of asbestos and closure of asbestos mines/factories and destruction of all existing asbestos to get rid of toxin in e-waste. 53. In so far as the first issue whereby the petitioners have sought enactment of a comprehensive legislation for unorganized workers and suitable amendments in the existing laws for the Building and other Construction Workers and the Inter-State Migrant Workmen is concerned, the Ministry of Labour in its written comments on the petition informed the Committee that pursuant to the recommendation of the Second National Commission on Labour, consultations with various agencies, Central Ministries/Departments of the Government of India and the State Governments have been initiated for enactment of a comprehensive legislation for unorganized workers in order to provide them protection, skill development and training. Besides, the Committee was also informed by the Secretary of the Ministry during his evidence before it that the Government of India has on January 7, 2004, approved a scheme to provide social security to the unorganized workers of the country which constitute 92 per cent of the work force. This scheme will be in the nature of a pilot project being implemented in a phased manner with fixed number of workers being covered each year during the first five years. The scheme envisages the benefit of Rs.500/- per month for workers of 60 years and above and in the case of personal accidental death Rs.1,00,000/- will be given. The workers are also proposed to be covered under the Universal Health Insurance Scheme based on prescribed level of contributions being made by them with the Government of India contributing 1.16 per cent of the wages of the workers calculated notionally on the basis of the National Minimum Wages. The Committee has thus noted that the Government is alive to the need for a comprehensive legislation being enacted for the workers in the unorganized sector and the consultations on the proposed draft bill have already been initiated with the State Governments, Trade Unions and other agencies concerned. A Social Security Scheme for the workers in this sector has also been approved as a pilot project but keeping in view a miniscule number of workers being covered thereunder over a five year period, the Committee has a feeling that this Scheme will not be of much help as it will take years for all the unorganized workers being brought within its ambit. The process for enactment of comprehensive legislation which has hitherto lingered on for too long needs to be expedited and the Bill should be brought for passage before Parliament without any further delay. 54. The petitioners have also cited three specific existing enactments viz., the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996, the Building and Other Construction Workers Welfare Cess Act, 1996, and the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979, and emphasized the need both for their effective implementation by all the States/Union Territories as well as suitable amendments being effected therein. They have not specified the exact nature of amendments which they want to be effected in these enactments but this desire of theirs seems to arise more out of the fact that they have remained more on paper and the benefits envisaged thereunder have not accrued to the targeted population/intended beneficiaries. The statutory provisions for the welfare of workers like pension benefits, Group Insurance Scheme, loans and advances for construction of house, assistance for education of children, medical expenses and maternity benefits to female beneficiaries are already there in the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996. Similarly, minimum wages stand prescribed for various categories of employment. There are also various safeguards/facilities for Inter-State Migrant Workers provided under the relevant Act but the unfortunate part is that no serious effort has been made in most of the States to effectively implement these enactments with the exception, however, of the States of Tamil Nadu and Kerala which have not only had their own enactments for unorganized workers but have also put an effective mechanism in place to ensure that the social security benefits envisaged thereunder really accrue to the intended beneficiaries. It is really a pity that despite statutory protection being given to the Building and other Construction Workers/Inter-State Migrant Workers, they are still exploited with even minimum wages being not paid to fairly a large number of such workers. Very few States have framed rules and some other States are in the process of framing the same whereas the fact of the matter is that it has been nine years since the enactments for the building and other construction workers were enacted. This state of affairs is most deplorable and the paramount need is for their effective implementation. There is no dearth of welfare measures for the workers in these existing laws and no amount of fresh legislation or any amendments in the existing laws will be of any use unless there is will to implement the law. The Ministry of Labour, Government of India, has been pursuing the matter regarding implementation of these enactments from time to time at various levels with the Central Ministries/State Governments but the results are not manifestly visible. The reason could perhaps be lack of availability of financial resources with the respective State Governments to give effect to the social security schemes envisaged under the relevant enactments but the question is if the Governments of Kerala and Tamil Nadu can do it, why not others? Even if the problem of lack of availability of resources is there, the States themselves have to blame as they are not collecting cess from the Builders/Contractors as envisaged under the Building and other Construction Workers Welfare Cess Act, 1996. The Committee is, therefore, of the view that the Ministry of Labour, Government of India, has to take more pro-active approach and stringent measures to ensure implementation of the aforesaid enactments by the respective State Governments/Union Territory Administrations exploring even the feasibility of having a Central enactment, which could be enforced by the Central Agencies. 55. As mentioned above, no specific suggestions for amendments in the existing laws for workers have been given by the petitioners in their petition. The Ministry of Labour on its part informed the Committee that as the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996, and the Building and Other Construction Workers Welfare Cess Act, 1996, are under various stages of implementation, suggestions for amendments, if any, would be considered only on the experience of their working after their implementation in all the States/UTs. However, during the interaction of the Committee with the representatives of Trade Unions, suggestions were made for doing away with the limit of number of workers in an establishment as prescribed under the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996, for purposes of applicability of the Act. Similarly, it was also suggested that the threshold limit of Rs.10 lakhs prescribed as the cost of the project under the Building and Other Construction Workers Welfare Cess Act, 1996, for purposes of levy of cess should be reduced to Rs.1 lakh. The Committee in this context also noted that in the State Act of Tamil Nadu no limit as such by way of the cost of the project had been prescribed and the employers’ contribution was being collected from the persons and agencies engaged in any construction work at the rate of 0.3 per cent of the total estimated cost of the proposed construction work and the amount is collected by the local bodies at the time of approval of the plans for the proposed construction. Similarly, in Kerala there is a well knit system of collection of cess. While the Committee feels that the Tamil Nadu/Kerala models could be adopted by other States to provide benefits/facilities envisaged under the Act to the Building and other construction workers, the Ministry of Labour, Government of India, could also consider effecting necessary amendments in the relevant Acts based on the good experience of the said two States. 56. One of the grey areas noticed by the Committee in regard to the benefits not accruing to the building and construction workers is that they are not being registered and many a time their employers are not identifiable. Similarly, the employers/contractors are also not getting themselves registered or even applying for licences which just appears to be a ploy on their part to circumvent the law. Statutory provisions for registration of workers in the manner prescribed with attendant benefits are already there and what is needed is establishment of designated machinery in the respective States and vigorous enforcement of provision of registration and the employers/contractors being required to provide the necessary benefits/facilities to the workers employed by them. The Committee is of the view that in view of the migration of large number of construction workers from one State to another, incorporation of a legal provision for registration of all such workers with a single authority and the Registration Certificate issued by such an authority being enforceable in all the States of the country could help relieve the situation and ensure benefits reaching them. There should also be a compulsion on the builders and contractors that the labour they engage should possess registration certificate and if the builder errs in this, he must be punished. It has also to be ensured that the statutory minimum wages are paid to the workers and the enforcement machinery in this regard has to be strengthened. There should be a grievance redressal machinery for the construction workers to look into their complaints, if any. In order to mitigate the hardships of workers engaged in construction work, wheel burrows must be provided to them to carry construction materials and the load that the male and female workers have to carry must be specified. 57. Coming to the second issue of evolving a tripartite mechanism in consultation with the ILO and UNO and all receiving countries as demanded by the petitioners to coordinate and monitor protection of all the migrant labourers working outside the country, the Committee was apprised by the Ministry of Labour in its comments on the petition that social security to such workers is provided under the Social Security Laws of the concerned countries and the Indian Laws relating to social security do not apply to them and that the suggestion regarding formulation of a tripartite mechanism in consultation with ILO and UNO would be examined whenever any convention/resolution on the subject in question comes up for consideration of ILO. The Committee, however, in the course of its deliberations on the petition and interaction with NGOs/Trade Unions came to know that the workers emigrating for work abroad many a time fall prey to the unscrupulous recruiting agencies and when they reach abroad, they do not even find their so-called employer. There are also cases where upon their getting employment abroad they are not even paid any wages. The officers of the Ministry of Labour during their submissions before the Committee informed that action is initiated against the agencies/agents making illegal recruitments for work abroad no sooner such cases come to their notice. Action is also taken against authorized recruitment agencies in case any complaints are received against them. They are even blacklisted. A Pravasi Bharatiya Beema Yojana was launched in the year 2003 to facilitate reimbursement of expenditure by workers from the insurance company in cases where they are duped and the foreign employers do not receive them. The Secretary, Ministry of Overseas Indian Affairs in the course of his depositions before the Committee admitted that prosecuting the agencies/agents engaged in illegal immigration was indeed a weak area and one of the options that they are considering is to amend the law to make it self contained. As regards the suggestion of the petitioners to have a tripartite mechanism, the Secretary, Ministry of Overseas Indian Affairs pointed out that bulk of the Indian workers migrated for work to the Gulf countries which are not members of the ILO and hence do not subscribe to the tripartite approach. But nonetheless they do have labour legislation which does not discriminate between domestic labour and expatriate labour. There is, however, a little problem with regard to the domestic workers who are not governed by all the labour laws. The Government of India is, however, making efforts to address these issues and the affected individuals can approach Indian Embassies/High Commissions to whom legal help in whatever measure possible is extended. 58. The Committee feels that the problems faced by the Indian labour emigrating abroad need to be addressed by the Government internally as well as in the countries of their work through Indian Embassies/High Commissions. Law has to be made more stringent to regulate agencies engaged in recruitment of workers going abroad. The Embassies/High Commissions have to coordinate more effectively with the countries concerned where Indian labourers go for work and in this regard, signing of MOUs with such countries could be of much help. An obligation under such MOUs could be cast on the contractors/employers engaging Indian workers to inform the Indian Embassies/High Commissions about such workers employed by them. Such a mechanism would not only help identify the number of Indian workers working in a particular country but would also help the Embassies to find out the unauthorized agencies/agents which have sent them. 59. With regard to the plea of the petitioners for use of asbestos being banned and asbestos mines being closed, the Ministry of Mines informed the Committee that the grant of new lease or expansion of existing leases for mining of asbestos in India was banned in 1986. Further, in 1993 it was decided that apart from not granting fresh mining leases for asbestos, renewal, etc. of existing mining leases should also not be allowed. Similarly, the Ministry of Environment and Forests informed that it has put in place various legislative measures to regulate the asbestos industry from environmental and pollution control angle. There is a separate Schedule on Handling and Processing Asbestos annexed to the Model Rule 120 framed under Section 87 of the Factories Act 1948 which elaborately prescribes the safety and health requirements in factories involving handling and use of asbestos. As a result of the statutory measures taken in the organized sector the workers are eligible to receive appropriate medical attention and are thus protected against occupational diseases, arising out of exposure to asbestos. The Committee during its interaction with the State Governments concerned and the NGOs/Trade Unions did not come across cases of workers being exposed to occupational diseases being reported. The mechanism of inspection of asbestos factories put in the respective states was also quite stringent and they were being subjected to periodical inspections. The Ministry of Mines has also taken preventive action to check leases of asbestos mines and the Committee trusts that the Government would take further action, as required, in accordance with ILO Conventions on use of asbestos having due regard to the domestic interests. NEW DELHI; October 19 , 2005. Asvina 27, 1927 (Saka) JANA KRISHNAMURTHY K. CHAIRMAN COMMITTEE ON PETITIONS RAJYA SABHA _______________________________________________________________________________________________ Appendix VI MINUTES OF THE MEETING OF THE COMMITTEE ON PETITIONS III THIRD MEETING The Committee met at 2.00 P.M. on Friday, the 5th September, 2003 in Room No. 63, First Floor, Parliament House, New Delhi. PRESENT 1. Shri Janeshwar Mishra - Chairman MEMBERS 2. Shri Vayalar Ravi 3. Shri Ramachandra Khuntia 4. Dr. A.K. Patel 5. Shri M. Rajasekara Murthy 6. Shrimati Sarla Maheshwari 7. Dr. Ramendra Kumar Yadav ‘Ravi’ 8. Shri Gandhi Azad SECRETARIAT Shri N.C. Joshi, Joint Secretary, Shri G.C. Miglani, Deputy Secretary, Shri M.K. Khan, Under Secretary, Shri Swarabji B., Committee Officer WITNESSES ******* ******* ******* Petition regarding enactment of special legislation to improve the conditions of Construction Workers/Migrant Labourers and to ban use of Asbestos. (i) Shri S.S. Chouhan, General Secretary, Indian National Building Construction Workers Federation (INBCWF), Delhi - Petitioner 2. ******* ******* *******. 3. ******* ******* *******. 4. ******* ******* ******* _______________________________________________________________________________________________ ***** relates to some other matter. _______________________________________________________________________________________________ 5. The Committee then heard Shri S.S. Chauhan, President, Indian National Building Construction Workers’ Federation (INBCWF), Delhi on the issues raised in his petition wherein he has prayed for enactment of comprehensive legislation for unorganized workers and suitable amendments in the existing laws to ameliorate the lot of construction workers and migrant labourers, besides banning use of asbestos. Making a brief presentation before the Committee, the petitioner stated that the Building and other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 was there on the statute book but it suffered from tardy implementation so much so that the Boards envisaged thereunder for the welfare of workers had yet to be constituted in most of the States. Similarly, the desired benefits under the Building and other Construction Workers Welfare Cess Act 1996 had not accrued to the construction workers. He suggested that a Tripartite Committee should be formed at Central and State levels to monitor the implementation of these laws at the ground level. He further stated that most of the workers are at the receiving end with no efficacious or effective machinery in place to take care of their interests so much so that their movements are not known; they are not registered at their work place and if they fall a victim of some mishap, it is difficult to know their whereabouts, what to say of providing them statutory protection about job guarantee, insurance cover, compensation etc. The Members of the Committee then raised pointed queries about the factors responsible for the non-implementation of the existing laws; the number of construction workers/migrant labourers in the country and the steps that he would suggest for welfare of workers in the unorganized sector particularly the mechanism to be provided for contribution towards Provident Fund. The petitioner replied to these clarifications sought by the Members and promised to send additional information to the Committee in due course. (The evidence of the petitioner was concluded). (The witness then withdrew). A verbatim record of the evidence was kept. 6. ******* ******* *******. 7. ******* ******* ******* 8. The Committee then adjourned at 3.40 p.m. _______________________________________________________________________________________________ ***** relates to some other matter. _______________________________________________________________________________________________ MINUTES OF THE MEETING OF THE COMMITTEE ON PETITIONS X TENTH MEETING The Committee met at 3.30 P.M. on Tuesday, the 3rd February, 2004 in Room No. 63, First Floor, Parliament House, New Delhi. PRESENT 1. Shri Janeshwar Mishra - Chairman MEMBERS 2. Shri Vijay. J. Darda 3. Shri Ramachandra Khuntia 4. Dr. A. K. Patel 5. Smt. Sarla Maheshwari 6. Shri Gandhi Azad SECRETARIAT Shri G.C. Miglani, Deputy Secretary, Shri M.K. Khan, Under Secretary, Shri Sameer Suryapani, Committee Officer WITNESSES A. Ministry of Labour 1. Dr. P.D. Shenoy, Secretary 2. Shri Baleshwar Rai, Additional Secretary 3. Shri K. Chandramouli, Joint Secretary, 4. Shri Manohar Lal, Director General, Labour Welfare 5. Shri J.S. Poonia, Joint Secretary, 6. Shri C.A. Bhaskaran, Deputy Secretary B. ******* ******* *******. 2. The Committee, first of all, heard the Secretary, Ministry of Labour on the issues raised in the petition submitted by Shri S.S. Chouhan, General Secretary, Indian National Building Construction Workers’ Federation (INBCWF), New Delhi and two others praying for enactment of special legislation to improve the conditions of construction workers/migrant labourers and to ban use of asbestos and get rid of toxins in-e-waste. _______________________________________________________________________________________________ ***** relates to some other matter. _______________________________________________________________________________________________ Referring to one of the main issues raised in the petition viz., enactment of a comprehensive legislation for unorganized workers to ensure employment guarantee, conditions of employment, social security schemes containing provisions of pension, gratuity, Provident Fund, ESI, health care etc., the Secretary submitted that the Govt. of India, had approved a Scheme on the 7th January, 2004 to provide social security to the unorganized workers which constituted 92% of the work force. The Scheme will be introduced in a phased manner, in the first instance, as a pilot project, in 50 districts of the country covering 1 crore workers during the first 5 years. Giving the year-wise break-up, he informed the Committee that in the first year, ten lakh workers would be covered, in the second year fifteen lakh workers would be covered, in the third year twenty lakh workers would be covered, in the fourth year, twenty-five lakh workers would be covered and in the fifth year thirty lakh workers would be covered under this scheme. The districts would be finalized in consultation with the Ministry of Finance. The draft proposals have been prepared by his Ministry and submitted to the Ministry of Finance for its concurrence. After two years of experience, the scheme would be studied by an independent agency viz., one of the IIM or Xavier Labour Relations Institute, and then the same would be jointly reviewed by the Ministry of Finance and the Ministry of Labour. The scheme envisages the benefit of pension of Rs.500 per month for workers of sixty years of age and above and Rs.1 lakh would be given in the case of personal accidental death. 3. The Secretary next referred to the convergence of Universal Health Insurance Scheme in terms of which out of the amount so collected, Rs.548/-, for a family of 5, would be transferred to the insurance companies which will be 4 Government Insurance Companies vested with the task of administering the scheme of health insurance. The contribution pattern would be that those workers who are in the age group of 18-35 will contribute Rs.50/-p.m. and those in the age group of 36 onwards and upto 50 years will contribute Rs.100/-p.m. and where the employers are identified, they will contribute Rs.100/- p.m. This will result in cross-subsidy. The Govt. of India will contribute 1.16% of the wages of the workers calculated on a notional basis on the basis of the national minimum wage which is presently being raised from Rs.50/- per day to Rs.66/- per day. The corpus would be administered with the help of various agencies. The Provident Fund Organisation has been requested to implement the scheme on a pilot basis. There will be a facilitating agencies as well and the NGOs, Gram Panchayats, Rural Development Organisations, several branches of different Labour Ministries of both Central and State Organs would be asked to deal with the facilitation centers. It is the expectation of the Ministry that this scheme will prove to be a very good boon to the unorganized workers in the coming years. 4. Referring to another issue raised in the petition about non-implementation of the Building and other Construction Workers (Regulation of Employment and Conditions of Service) Act, the Secretary stated that after agriculture, the second largest employer in the country is the building and construction sector and the workers in that sector require a lot of protection. This Act is funded by a cess on buildings which cost Rs.10 lakhs and above, except those buildings which are meant for self use. The Act has to be implemented by all the State Governments and the Union Territories. However, at present the State Governments of Kerala, Madhya Pradesh, NCT of Delhi and Pondicherry have started implementation of the Act. The Labour Minister has written to all the State Labour Ministers and Chief Ministers and similarly the matter has been taken up by the Secretary of the Ministry of Labour with the Chief Secretaries of respective State Governments to ensure effective implementation of the Act. The Committee was also apprised about the progress of implementation of the Act in various States. 5. The Members, thereafter, sought clarifications from the Secretary with regard to efficacy of the Social Security Scheme approved by the Government for the unorganized workers, in the context of the tardy implementation of the Building and other Construction Workers (Regulation of Employment and Conditions of Service) Act, measures contemplated by his Ministry to ensure effective implementation of the Acts meant for their welfare, particularly to ameliorate the lot of inter-State migrant labour vis.-a.vis. the provisions of the inter-State Migrant Labour Act, identification and registration of workers moving from one State to another, protection to migrant labourers going outside the country, plight of women workers particularly those working in foreign countries and the mal-practices committed by the employers such as maintenance of duplicate registers and non-payment of the minimum statutory wages to the workers. The Secretary in his replies clarified the points raised by the Members. 6. A verbatim record of the evidence was kept. (The witnesses then withdrew) 7. ******* ******* *******. 8. ******* ******* *******. 9. ******* ******* *******. 10. ******* ******* *******. 11. A verbatim record of the evidence was kept. 12. The Committee then adjourned at 5.25 p.m. ______________________________________________________________________________________________ ***** relates to some other matter. ______________________________________________________________________________________________ MINUTES OF THE MEETING OF THE COMMITTEE ON PETITIONS V FIFTH MEETING The Committee met at 3.00 P.M. on Monday, the 29th November, 2004 in Room No. 63, First Floor, Parliament House, New Delhi. PRESENT 1. Shri K. Jana Krishnamurthy - Chairman MEMBERS 2. Shri Nandi Yellaiah 3. Shri Dipankar Mukherjee 4. Shri P.G. Narayanan 5. Shri Bhagwati Singh 6. Shri Lalit Kishore Chaturvedi WITNESSES 1. Shri W.R. Varada Rajan, Secretary, Centre of Indian Trade Unions. (CITU). 2. Shri Subhash Lomte, General Secretary, Hind Khet Mazdoor Sabha. (HMS) SECRETARIAT Shri G.C. Miglani, Director, Shri M.K. Khan, Under Secretary, Shri Sameer Suryapani, Committee Officer. 2. The Committee heard Shri W.R. Varada Rajan, Secretary, Centre of Indian Trade Unions (CITU) and Shri Subhash Lomte, General Secretary, Hind Khet Mazdoor Sabha (HMS) on the issues raised in the petition seeking enactment of comprehensive/special legislation to improve the conditions of construction workers/migrant labourers. Welcoming them, the Chairman of the Committee gave an overview of the issues raised in the petition and told them that the purpose of their being called before the Committee was to get necessary feedback from them about the status of implementation of the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 and the Inter State Migrant Workmen (Regulation of Employment and Condition of Service) Act, 1979 in various States; whether the benefits envisaged thereunder were accruing to the intended beneficiaries; whether these enactments in the existing form served the interests of the workers/migrant labourers to the desired extent or some amendments therein were required to improve their lot. He, therefore, asked them to make presentation on the issues raised in the petition particularly on the status of implementation of the aforesaid two Acts for the benefit of the Members and clarify, in particular, whether there was any mechanism in the States for registration of workers and whether the migrant labourers were getting the benefits due to them. He also asked them to clarify their views on the need to ban the manufacture and use of asbestos which was another issue raised in the petition and whether the existing provisions in the Factories Act and the rules framed thereunder prescribed sufficient safeguards with regard to health of labourers employed in the asbestos factories. 3. Shri W.R. Varada Rajan first made a presentation in the course of which he apprised the Committee that an exercise is presently on in the government towards enacting a comprehensive legislation for the unorganized sector workers and the Central Trade Unions have given their suggestions on the draft bill which was circulated to them. The unorganized sector workers, as a matter of fact, are least protected and they must be ensured a regular employment and payment of employment wages. Dwelling on the issue of providing social security to them, Shri Varada emphasized the need for social security being extended to the workers as a State funded benefit as they are not in a position to make the required contribution from their earnings. The Building and Other Construction Workers (Regulation of Employment and Condition of Service) Act, 1996 is there but most of the States have not even framed the rules under the Act. Similarly, barring the States of Kerala and Tamil Nadu, none of the States have constituted State Welfare Boards. The Central Trade Unions have their representatives on the State Boards. Likewise, some of the contractors who engage construction workers have their representatives on the Advisory Boards that have been constituted under the Act but that does not seem to serve the purpose as they are motivated to protect their own interests. It is, therefore, imperative that action needs to be taken for framing of rules by all the States and establishment of Advisory Boards with representatives from the Central Trade Unions as well as regional trade unions. The biggest problem, however, is about registration of workers. In the States where the rules have been framed and Boards have been constituted, construction workers are being registered but keeping in view the size of the workforce which is enormous, registration is a gigantic task. In this context, responding to a query from the Chairman of the Committee as to which should be the agency to whom the task of registration be entrusted, Shri Varada Rajan clarified that the ground reality is that most of the workers in the unorganized sector fall outside the ambit of Trade Unions but he can say on the basis of his experience that in the States where Boards have been constituted and trade unions have been associated with the process of registration, there has been considerable progress. Nonetheless, keeping in view the fact that the construction workers are spread over throughout the length and breadth of the country, voluntary organizations/NGOs/Panchayats and whichever body can help in the matter should be associated with the job of registration of workers depending, of course, upon the place of presence of such workers. In other words, the Welfare Boards should be primarily assigned the task of getting the workers registered and others can help the Boards. 4. Shri Varada Rajan was pointedly asked as to what could be the mechanism for registration of migrant labourers especially when they do not operate under the framework of trade unions. The reply of Shri Varada Rajan was that since the process for omnibus legislation for unorganized sector workers is under way whereunder national level and State level Boards have been recommended, these Boards could be entrusted with the task of getting the migrant workers registered. It was pointed out to him by the Committee that the difficulty is that the contractors are least interested in getting the labourers engaged by them registered as they will have to provide to them all the facilities under the Act. Similarly, the labourers themselves do not approach the Boards for registration. In such a situation, could not the onus for registration of workers/labourers with the Welfare Boards be put on the contractors by a Government order thereby making them liable for punitive action like fine etc. in the event of failure on their part to do so. He seemingly agreed with the suggestion and pointed out that in other countries nobody can be employed unless he has social security number and precisely for this reason the Central Trade Unions have been pressing for establishment of a National Social Security Authority under whom Social Security Boards could be set up with an obligation being cast on the contractors or whosoever undertakes the construction work, to engage/deploy only those workers who have social security number. As a matter of fact, at the time of celebration of the Employees’ Provident Fund Golden Jubilee, an announcement was made by the then Labour Minister that already a proposal has been made to constitute a National Social Security Authority with the Prime Minister as the Chairman but that proposal has yet not seen the light of the day. 5. Dwelling on the issue of desirability of a ban being imposed on the manufacture/use of asbestos, Shri Varada Rajan pointed out that ILO conventions are already there. Various studies have, however, revealed that the asbestos is very hazardous and no amount of safety measures can do away with the hazardous aspect of the use of asbestos. It has, therefore, been the demand of the trade unions that the use of asbestos needs to be totally banned/discontinued. 6. Shri Subhash Lomte, General Secretary, Hind Khet Mazdoor Sabha (HMS) thereafter in his presentation before the Committee, inter-alia, submitted that there are more than 10 crore construction workers but the enactment of 1996 has not been implemented effectively in any of the States albeit Kerala and Tamil Nadu have taken some initiative in this regard. Of the 93% workers in the unorganized sector, the benefits of the enactment have accrued to just about 6-7% workers which amply proves that very little protection is available to them. There is now a talk about comprehensive legislation for unorganized workers for which the Mathodi Act which was enacted in 1969 in Maharashtra and whereunder social security, revision of minimum wages after 2-3 years and implementation of employment regulations are ensured can provide the basis. However, in order to ensure adequate protection to workers responsibility for implementation of the legislation should lie with the government, along with the trade unions. The onus for registration of workers, whether they be migrant or agricultural should lie with their employers with adequate provisions for punitive action in case they fail to do so. The penalty should be rationalized and raised substantially so as to act as a deterrent for the defaulting employees. He also advanced the suggestion that the registration of migrant workers should be undertaken as well in the blocks or villages from where they migrate and the village headman or block tehseeldar should be entrusted the responsibility of keeping account of such workers. He also expressed his full agreement with the suggestion of Shri Vardha Rajan for setting up a Central Social Security Authority. 7. The Members thereafter sought clarifications both from Shri Varada Rajan and Shri Lomte on various points arising out of their submissions, particularly with regard to the role that the Central Trade Unions could play in ensuring effective implementation of loss in the States; and the viability of the State Board’s functioning under the National Social Security Authority. The Committee also suggested to them that it would help the Committee to formulate its views on the issues raised in the petition if all the Central Trade Unions together with submit a memorandum of the Committee giving their comprehensive suggestions for the welfare of the workers in the unorganized sector. 8. The witnesses replied to the clarification sought by the Members and promised to submit a joint Memorandum from the Trade Unions on specific points to enable the Committee to consider the issues in depth. (The evidence was concluded.) (The witnesses then withdrew) A verbatim record of the evidence was kept. 9. The Committee then adjourned at 4.08 P.M. ______________________________________________________________________________________________ II SECOND MEETING The Committee met at 11.00 A.M. on Wednesday, the 19th October, 2005 in Room No. 126-A, Third Floor, Parliament House, New Delhi. PRESENT 1. Shri Jana Krishnamurthy K. - Chairman MEMBERS 2. Shri Nandi Yellaiah 3. Prof. Alka Balram Kshatirya 4. Shri Lalit Kishore Chaturvedi 5. Shri Dipankar Mukherjee 6. Shri P.G. Narayanan 7. Shri Bhagwati Singh SECRETARIAT Shri G.C. Miglani, Director, Shri A.K. Gandhi, Under Secretary, Shri Sanjeev Chandra, Committee Officer 2. The Committee took up for consideration its draft 124th Report on the petition signed by Shri S.S. Chouhan, General Secretary, Indian National Building Construction Workers' Federation, Delhi and two others, inter-alia, praying for enactment of a comprehensive legislation for unorganized workers and effecting suitable amendments in the existing enactments to improve the conditions of construction workers/migrant labourers, besides banning the use of asbestos to get rid of toxin in e-waste. After some discussion, the Committee adopted the Report with a minor amendment and authorized its Chairman to incorporate the same. 3. ****** ***** ****** ***** 3. The Committee decided to present these Reports to the Rajya Sabha on the 3rd day of its next session and authorised its Chairman and in his absence, Shri Nandi Yellaiah to present the Reports to the House. 4. ***** ***** ***** ****** 5. The Committee then adjourned at 11.45 A.M. _______________________________________________________________________________________________ ***** relates to some other matter. _______________________________________________________________________________________________