More Vulnerable Than Ever, Construction Workers Protest Failures Of Law Meant To Protect them
Sumati Thusoo & Vedika Inamdar
India’s construction sector provides jobs to 51 million, the third-largest employer of Indians after agriculture and textiles, and the first stop for millions streaming out of failing farms. Few sectors have grown faster, but the pandemic disrupted its certainties. With lives in disarray, worker protests have swept states, as they demand the government implement laws meant to protect their tenuous existence.
Picture Credit: Abhishek Kirloskar /Unsplash
It employs 51 million Indians, the third-largest source of jobs after agriculture and textiles, and the first stop for the millions who stream out of the nation’s failing farms. Despite a record 50% decline in 2019 because of Covid-19 lockdowns and a resulting downturn—after growing nonstop over the last three decades—the construction sector is expected to grow again by 13% in 2021.
Yet this source of national economic growth and employment has been roiled by protests since the first Covid-19 lockdown threw the sector in particular and the economy in general into disarray.
For instance, over 2021 in Karnataka alone, after trade unions opposed the diversion of construction workers’ welfare funds to Covid-19 relief—instead of compensation for loss of employment, providing laptops for their children for online classes, housing, or other protective measures—10,000 construction workers protested against the misuse of these funds.
In July, the chief secretary of Karnataka asked the Private Hospitals and Nursing Homes Association to use labour welfare funds to vaccinate labourers free of cost. However, out of 1.49 million doses allotted to Karnataka in July 2021, private hospitals paid for and bought only 400,000.
The protests in Karnataka are a part of a nationwide campaign across at least 22 states, aimed at drawing attention to the lack of savings and inadequate social-security programs for construction workers during the second Covid-19 wave. There were protests even in villages in Haryana and Rajasthan and protest notes were submitted to officials at all levels, from the village sarpanch to the prime minister.
The protests addressed a variety of issues.
In September 2021, the MGNREGA (Mahatma Gandhi National Rural Employment Guarantee Act) and Construction Workers’ Union in Shimla, Himachal Pradesh demanded the release of dues reportedly pending for the past eight months in the form of scholarships for students and assistance to expectant mothers.
In July 2021, the Haryana chapter of the Construction Workers’ Federation of India (CWFI), in affiliation with the Centre of Indian Trade Unions (CITU), sought cash assistance of Rs. 7,500 per month to each individual engaged in construction work and an assurance of free treatment for those infected with COVID-19. This marked the beginning of the statewide campaign by the construction workers’ union to demand a more robust functioning of the state welfare board, especially in assisting the state’s vulnerable workforce.
In June 2021, around 1,000 workers attached to the construction industry and other unorganized sectors blocked a road in North 24-Parganas in West Bengal, demanding aid from the government and the scrapping of Covid-induced curbs. Protesters said they were in dire financial straits as work had repeatedly been suspended for 15 months.
Failures Of The Law Meant To Protect Workers
The lockdown left millions of migrant labourers stranded in cities in April 2020. Thrown out of their informal labour arrangements in cities and industrial centers and unable to return to their villages without transportation, they were stranded for over a month with no income and, often housing and food.
In addition to exposing the absence of migrant workers in existing social protection regimes, the pandemic-related lockdown imposed by the government also revealed the underlying inequities in the construction of “social citizenship”, a reference to the whole range from the right to a modicum of economic welfare and security to the right to share to the full in the social heritage and to live the life of a civilized being according to the standards prevailing in society.
The law for the welfare of construction workers, The Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996, or the BOCW Act has been largely ineffectual (here and here).
In theory, the BOCW Act regulates the employment and conditions of service of building and other construction workers and provides for their safety, health, and welfare. Section 24, for instance, states that every building worker between 18 and 60 and engaged in any building or other construction work for not less than 90 days during the last 12 months is eligible for registration as a beneficiary of the Construction Workers' Welfare Fund.
Under the BOCW Act, construction workers are entitled to various social security benefits, such as a pension, maternity, scholarships, and loans, funded by a 1-2% cess on all construction sites. In March 2020, the unused corpus of the cess fund was Rs 31,000 crore.
The state governments and union territories (UT) are supposed to transfer funds from the cess fund to the bank accounts of construction workers, about 35 million of whom are registered under various state construction welfare boards.
Several women construction workers interviewed for a study by the Self-employed Women’s Association (SEWA), an NGO, and Initiative of What Works to Advance Women and Girls in the Economy (IWWAGE), an action-oriented research centre of IFMR Society (a not for profit society registered under the Societies Act), between July to August 2020 reported not being registered for BOCW welfare board cards, without which they could not access the benefits due to them.
Women, who also face higher levels of sexual harassment—almost all of it unreported or unacknowledge—at informal work sites, are more vulnerable to economic and health-related shocks than their male counterparts.
Not Aware Of Law, Not Registered
A rapid assessment report on the impact of the COVID-19 lockdown on internal migrant workers was released by Jan Sahas, a community, and survivor-centric not-for-profit organization, in April 2020. They surveyed 3,196 migrant workers in Madhya Pradesh, Uttar Pradesh, Delhi, and other states, revealing the infirmities of the workers’ registration system under the BOCW.
The report found out that 94% of the workers from Uttar Pradesh and Madhya Pradesh were not registered under the BOCW Act and thus could access relief benefits. Another study conducted by Samarthan in May 2020 reflected a similar situation: In Chattisgarh, 89% of workers interviewed did not have BOCW registration.
A study was conducted by Habitat for Humanity at an organized construction site in Thane, in the state of Maharashtra, over a period of three months—from January to early March 2020—found that 47% of the respondents worked in the construction sector and 62% of the construction workers were not aware of BOCW welfare schemes.
In June 2020, the Ministry of Labour and Employment had claimed that 20 million building and other construction workers received cash assistance of Rs 4,957 crores during the lockdown. The government stated that about 17.5 million transactions were made directly into the bank accounts of the workers, and cash benefits, ranging from Rs 1,000 to Rs 6,000 per worker, were disbursed during the lockdown.
The ministry of labour and employment, the nodal ministry to coordinate issues related to the welfare of construction workers with state governments and state welfare boards in the matter of the welfare of the construction workers, said it had left “no stone unturned in ensuring timely cash transfers” to building and other construction workers, who are acknowledged as being the most vulnerable segment among India’s unorganized-sector workers.
That the government’s efforts have fallen short is reflected in the nationwide workers’ protests.
The Tenuous Lives Of Informal Workers
The prevalence of informal jobs with no contracts or benefits in the construction sector, which relies largely on migrant labour, makes it ripe for grievance and unrest.
One example is the absence of contracts, which usually describe terms and conditions of employment. Labour law regulations rest on the assumption of a clear employer-employee relationship.
Due to the informal nature of the sector, formal employee contracts are usually absent. Informality in the construction sector is also evident in subcontracting as a process embedded within building construction work.
Most construction workers face trying employment conditions and an uncertain future. A 2019 statistical estimate by the International Labour Organization (ILO), based on National Sample Survey (NSS) data reveals that 97.6 % of jobs in the construction industry are informal, held by mostly migrant labourers far from home.
A 2017 report by the Centre for Policy Research (CPR), a think tank, suggests that 42.6 % of rural-urban migrants in the construction sector are interstate migrants and 52% of all migrant construction workers travel to the top eight metro cities (Mumbai, Delhi, Kolkata, Chennai, Bengaluru, Hyderabad, Ahmedabad, and Pune) in search of work.
Employment of migrant workers predominantly through informal channels results in what is called “double-marginalization” in the destination states: First, due to their status as migrants—often unable to speak the local language and integrate into local society—and second, due to the informal nature of their jobs, leaving them vulnerable to harassment and dire working conditions.
For women unorganized workers and construction workers, maternity benefits provided by their respective state boards (not employers) come in the form of cash, ranging from transfers conditional upon institutional delivery under the public health program called Janani Suraksha Yojana (JSY), a safe-motherhood intervention: Rs 700 for “high-performing” and Rs 1,400 for “low-performing” states to Rs 6,000, depending on rates of institutional deliveries.
The Impact Of Simplified Labour Laws
In 2020, the Indian government streamlined 44 labour laws into four labour codes to simplify the delivery of justice to the working class and ease regulations for business.
In this simplification or “codification” as it is formally called, the BOCW Act—which came into being after an 11-year struggle by workers between 1985 and 1996—and 15 other laws were placed under the 2020 Labour Code on Social Security and Welfare, a code to amend and consolidate the laws relating to social security with the goal to extend social security to all employees and workers either in the organized or unorganized or any other sectors.
This means the registrations of around 40 million workers with the BOCW Welfare Board will lapse, and they will have to re-register themselves with proposed state welfare boards, which will also function as registration centers for other unorganized-sector workers.
Since the formation of the BOCW Act, around Rs. 38,685.23 crore cess have been collected, and roughly Rs. 9,967.61 crorehas been used to benefit construction workers. The new labour code bills will cease these benefits, and the cess collected for construction workers would go into a common social assistance fund, which seems to be the case for vaccinations.
The codification of labour laws reinforces the view that migrant laborers, including construction workers and many others, are at the bottom of the labor welfare ecosystem and homogenizes their vulnerabilities.
Tech-Enabled Inclusion or Exclusion?
In August 2021, the government of India launched the e-Shram portal to register 380 million unorganized workers nationwide to enable their access to social welfare and employment benefits by issuing an e-Shram card (or Shramik card) upon registration.
This card assigns each worker a unique 12-digit number to access a number of social security benefits, such as claim PDS rations across the country, accident insurance, and disability insurance. These 12 social security welfare schemes are mentioned on the website, along with 6 employment schemes that are connected to the application. The data generated from this portal will be used to create India’s first National Database of Unorganized Workers (NDUW), linked to the national identity database, Aadhar.
This move will indeed bring unorganized workers under one umbrella, but the lack of access to digital services is likely to be an impediment to implementation, as it has proved to be for other programs, such as food subsidies and healthcare, amongst others. In India, 4.4% of rural and 42% of urban households have access to the Internet, and no more than 21 % of women across the country have access to mobile Internet services.
A 2021 commentary by the Working People’s Charter, a coalition of organizations working on labor-related issues, documents the concerns associated with the portal: the current e-shram system does not include workers already registered under state boards and does not mention how it will migrate the existing data into a national database. The new program is only good for individual workers, and there are currently no provisions to include details of families.
The Charter also lists suggestions to improve the current system to improve access and effectiveness of digital interventions for India’s poor and unorganized workforce. The experiences of workers attempting to access and register on the portal emphasize how employers, workers collectives, and civil society organizations will need to collaborate to ensure beneficiaries are reached.
Conclusion
It was in the midst of the pandemic in 2020, when the informal labour sector was already struggling to navigate the challenges associated with Covid-19, that the government decided to codify the existing 44 labour laws.
This codification, many have argued (here and here), catered more to business than it did to the working class. Many workers who registered under the BOCW were left confused with the clubbing of BOCW with other acts under the social security code.
The fund’s name has been changed from the BOCW Welfare Fund to a common social assistance fund. This fund is being unilaterally used for all categories of informal workers, as was the case of vaccinations in Karnataka.
The government’s new portal, which in theory makes sense, mainly because India’s last official data of its informal sector and migrant workers are from Census 2011, which is a decade old. But the new tech-enabled platform has its own set ofshortcomings, in its current version, and throws up a number of questions.
Are construction workers supposed to register themselves for the BOCW Welfare Board or the e-Shram portal? Do these bodies overlap? In what ways do they overlap? Is this tech-based portal another surveillance app, as we saw with the POSHAN app?
The government should answer these questions before it enforces its new program
This article was first published on Article-14 on November 5, 2021
