PROFESSIONALS AND BUSINESSES PARTICIPATING IN DISCUSSION
Labour Law & Hr Consultant
Industrial Relations And Labour Laws
Rajesh Kumar Dubey
Manager - Hr
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The BOCW Act and the CLRA Act are distinct and different in terms of their objectives and applicability. No possibility of their overlapping in respect of the one and the same establishment. Compare the definitions of the term "establishment" in both the enactments. The definition of establishment u/s 2(1)(j) of the BOCW Act is wider than that of the definition u/s 2(1)(e) of the CLRA Act for the same. While the definition under the latter covers only those establishments/places where any industry, trade, business,manufacture or occupation is carried on, the former covers all establishments including those of contractors and individuals who employ building workers in any building or other construction work thus defined u/s 2(1) (d) of the Act. The exclusion of the construction work relating to Factories and Mines provided for in the same definition clause categorically removes the possibility of the overlapping of the BOCW and CLRA Acts in such establishments. Since XXXXX Company has already issued the necessary form to you for taking up contractor's license under the CLRA Act, it must either be a factory or a mine as per the Factories Act,1948 or the Mines Act,1952 which fact is missing in your post. So , no is the answer for your first query.
Pl read the definition of "workman" u/s 2 (1) ( i) of the CLRA Act once again and you would be convinced that the JE (CIVIL), Jr Surveyor and Machine Operator are workmen in spite of their higher earnings per mansem.
From India, Salem
Thanks for your valuable reply.
still now we are confusing due to overlapping of CLRA act and BOCW act in same workplace/location/site and applicability of workman/ meaning of workman under CLRA act.
Please clarify following things
For my 1st query
In our view, we could n't able to find out any section to avoid overlapping the act of CLRA and BOCW act.
we think both act should be applicable to our company. Because we have taken contract. This is one point. And Also another point we are doing civil work in that same workplace/location/site under one principal employer control.
If we are wrong, please correct us
For your quick reference i added both acts below
As per CLRA act
(a) To every establishment in which twenty or more workmen are employed or were employed on any day of the preceding twelve months as contract labour;
(b) to every contractor who employees or who employed on any day of the preceding twelve months twenty or more workmen:
Provided that the appropriate Government may, after giving not less than two months' notice of its intention so to do, by notification in the Official Gazette, apply the provisions of this Act to any establishment or contractor employing such number of workmen less than twenty as may be specified in the notification.
(i) any office or department of the Government or a local authority, or
(ii) any place where any industry, trade, business, manufacture or occupation is carried on;
As per BOCW act
―building worker means a person who is employed to do any skilled, semi-skilled or unskilled, manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be expressed or implied, in connection with any building or other construction work but does not include any such person—
(i) who is employed mainly in a managerial or administrative capacity; or
(ii) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature;
―establishment‖ means any establishment belonging to, or under the control of, Government,
any body corporate or firm, an individual or association or other body of individuals which or
who employs building workers in any building or other construction work; and includes an
establishment belonging to a contractor, but does not include an individual who employs
such workers in any building or contraction work in relation to his own residence the total
cost of such construction not being more than rupees ten lakhs;
For my 2nd query
In our view, those employees are supervisory capacity draws wages exceeding five hundred rupees per month, that employees are not a workman as per CLRA Act.
If we are wrong, please correct us
For your quick reference i added below the "workman" u/s 2 (1) ( i) under CLRA act
"workman" u/s 2 (1) ( i) of the CLRA Act
"workman" means any person employed in or in connection with the work of any establishment to do any skilled, semiskilled or un-skilled manual, supervisory, or clerical work for hire or reward, whether the terms of employment be express or implied, but does not include any such person--
(A) who is employed mainly in a managerial or administrative capacity; or
(B) who, being employed in a supervisory capacity draws wages exceeding five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature; or
(C) who is an out-worker, that is to say, a person to whom any articles or materials are given out by or on behalf of the Principal employer to be made up, cleaned, washed, altered, ornamented, finished, repaired, adapted or otherwise processed for sale for the purposes of the trade or business of the principal employer and the process is to be carried out either in the home of the out-worker or in some other premises, not being premises under the control and management of the principal employer.
Please correct us soon.
Thanks with Regards
From India, Hyderabad
Madhu.T.KUmakanthan Sir has clearly defined the scope of BOCW and CLRA Acts. The BOCW is to esure service conditions of construction workers whereas CLRA speaks about all kinds of workers irrespective of their nature of work. The former also aims at collection of cess for the benefit of construction workers.
The remuneration part to decide whether a person employed is a workman or not has no relevance and what is important is their functional responsibilities and authorities. As such any person who has the right to approve leave of his subordinates, or initiate disciplinary action against his subordinates or appraise the performance of his subordinates is a not a workman. Therefore, whatever be the designation you have given or whatever be the salary you give, if your Engineers do not have these rights they will also come under the definition workman.
From India, Kannur
Rajesh Kumar DubeyDear Thirumurugan,
My submission to your entire matter and point wise query is as under
[My company] has taken civil contract from X X X X X company for constructing boundary wall. That X X X X X company already issued form V to our company to get licence under contract labour regulation and abolition act 1970. Our company applied for licence through Form IV. And also our company is asking me to get registration of establishment under Buildings and Other Construction Workers (Regulation Of Employment And Conditions Of Service) Act, 1996 through FORM-I*********
Ans / Suggestion -
When the PE ( xxxxx) has issued you FORM -V, your company is contractor and you have to get registered only under the provisions of CLRA - 1970.
No further registration are required under BOCW Act and its provisions. Since PE ( xxxx) have got registration under BOCW act and bound to pay cess under BOCW and get inspections and audit
2) Question - .Now how can we maintain Statutory Compliance, and records under that CLRA act for that workplace/site/location In that workplace/site/location total employees strength is approx. above 40 workman on any day of the preceding twelve months.
Ans / Suggestion -
All the forms ( Registers and Half Yearly returns which have to be maintained under CLRA ) having no any ambiguity or any special provision which can not be filled due to pay hike / managerial position.
Waiting for reply or remarks