Dear friends,
To me, the gist of the question raised by our friend HRLEARNER seems to be: Whether the provisions of the CLRA Act, 1970, and those of the BOCW Act, 1996 would be simultaneously applicable to the same construction work undertaken by an establishment through a contractor?
To the best of my knowledge and belief, the answer can be a 'NO' only so long as the construction work is distinctly separable from the main or overall activity of the concerned establishment.
Application of the CLRAA
The application of the CLRAA arises only when twenty or more workmen are employed through a contractor by an establishment as defined under section 2(1)(e) of the Act in any of its activities or operations which are not intermittent. If we go deeper into the above definition and analyze its sub-clauses (i) and (ii), we can conclude that it can be only a place where any industry, trade, business, manufacture, or occupation is carried on.
That is why the Kerala High Court held in Powar v. Labor Enforcement Officer (C) [1993 (1) LLJ 521] that residential quarters of a bank are not covered by the definition of 'establishment' under the Act.
Therefore, it implies that to be covered under the CLRAA, 1970, the activity done through a contractor must be one of trade, business, or the like.
Definition of 'Establishment' under BOCWA
Reverting to the definition of the term 'establishment' under section 2(1)(j) of the BOCWA, 1996, no such limitation as to the nature of activity of the establishment or body of individuals carrying on any building or other construction work except the construction work relating to an individual's own residence not exceeding a total cost of rupees ten lakhs. That's why the term 'employer' under section 2(1)(i) includes the owner in the absence of a contractor and the contractor when he supplies the construction workers.
By distinguishing the two Central Labor Legislations from the above, we can conclude that the BOCWA, 1996 is a Special Law vis-a-vis the CLRAA, 1970 for the former covers exclusively the building and other construction work and the building workers only. That is why specific provisions pertaining to conditions of employment such as normal working hours, wages for overtime, workers' contribution to welfare fund, etc., are separately provided in the Act itself. Whereas the contract labor under the CLRAA, 1970 are covered by the statutory working conditions prescribed under the respective establishment-specific law only and hence no such separate provisions.
Exemption to Construction Works in a Factory
While dealing with the application of the exemption to construction works in a factory under the definition clause of building or other construction work under section 2(1)(d) of the BOCWA, 1996, the honorable Supreme Court held that the BOCWA applies to construction workers engaged within the factory premises for they are not covered under the Factories Act, 1948.
Combining the ratio decidendi of the above two judgments, we can safely conclude that the application of the CLRAA, 1970, and BOCWA, 1996 have different objectives depending on the nature of activities in relation to the overall activity of the establishment.
Therefore, since the construction of a new building by a hospital cannot be considered as an activity related to its regular business, the construction workers engaged through one or more contractors will not be covered by the CLRAA, 1970 though under which the hospital already covers the outsourced workmen engaged in its activities of security, housekeeping, etc.