confusion between shops and establishment act and BOCW act of Himachal pradesh.

I am constructing a factory and have built a site where engineers or architects will come. This site is inside the factory premises and will also be a part of the factory once the construction of the factory is completed. The site is basically a place for them to sit and guide how everything is going on in the construction of the factory.

My query is whether the employers who are engaged in the construction of the factory will be covered under BOCW Act, but what about the site where these engineers and architects will sit? Will it come under the Shops and Establishment Act? If yes, how? The state is Himachal Pradesh where the factory is being constructed.

Do I need to register the factory construction site under BOCW Act and the site for engineers and architects under S&E Act, or under one act?

My Analysis: The construction workers employed at the site where the factory is being constructed will fall under the BOCW Act. Engineers and architects, not being construction workers, will not fall under the BOCW Act. According to my interpretation, the engineers and architects will fall under the S&E Act.

Since the business has not commenced and the site is meant for a factory, neither the Factories Act nor the Shops Act will apply for the time being. The Building and Other Construction Workers Conditions of Service Act will invariably apply to the site office and the operations therein. Based on the value of the construction, you have to pay cess, and in that, the total value is considered, and not the functional status of employees. Their salaries do not matter.

Thank you for your response, sir.

Sir, I also concluded the same thing, but my point is that architects and engineers would also be covered under BOCW because BOCW is for the welfare of the construction workers who are very poor. I don't think engineers or architects will fall under BOCW. Here, my focus is not on the construction workers as the contractor has employed them.

My main concern is regarding the site where engineers and architects will sit and under what act I need to register it. If you are saying it should be under BOCW, the welfare provisions of BOCW will not be applicable to engineers and architects because they are not covered under it.

Yes, while registering the beneficiaries of the Fund, you can exclude the managers. The construction company, as it is, may have an office under which these officers will be enrolled as employees. Accordingly, they should have PF, insurance coverage, etc., and that will continue to be available to them while they are deputed to the construction sites as well.

Sir, apologies, but I didn't get your answer for YES. Could you explain to me once again under which act I should go?

Doesn't the construction company have an office away from the site? If yes, aren't these supervisors enrolled under the EPF and Insurance (if their salary is less than 21000 under ESI) schemes? Then that is enough for them. After all, the Building and Construction Workers Act is also meant for the same purpose: safety, health, and welfare of the workers engaged in the construction.

I feel that when you said the site is inside the factory premises, any activity carried out on this proposed site is covered under the Factories Act only. To be exempt from the coverage under the Factories Act, you should prepare a separate site plan with site fencing and an approach road for construction. The ingress and egress of workers must be restricted, and the plan must be approved by the Inspector of Factories to declare it as a construction site separate from the original part of the factory.

Once you obtain the exemption, your proposed construction site for the additional factory will be covered under The Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act.

Sir, the construction company is not a matter of concern here. The place where these architects and engineers are sitting is the place which will be a part of the factory eventually. For example, it's like a sample flat of an apartment tower, which will eventually be a part of the building.

If you refer to the H.P BOCW Act, you will notice that the main purpose and objective of the BOCW Act is regarding the welfare of the construction workers. These construction workers are different from engineers and architects. My architect is getting a salary of around 1.2 lakhs, and he is there for an under-construction property, so according to my interpretation, he won't come under the H.P BOCW Act.

It's a bit confusing, sir. Hope you got the query.

Mr. Alexander, the factory is still under construction. I don't think it will fall under the Factories Act as it has not started manufacturing anything. For the construction of the factory, this premise has been made for the architects and engineers.

As already mentioned, so long as the factory has not started production, the Factories Act will not come into play. I can't understand, has your architect come directly to the site or reported to an office for carrying out his joining formalities? Where does his reporting office sit? Obviously, there should be an office where the others permanently sit. That office will be covered by some law, i.e., the Shops and Commercial Establishments Act. The office would fall under the purview of some labor legislations, and that will be applicable to the architects who are deployed on the site.

Yes, sir.

The architect who has been hired is sitting in the office/site constructed inside the under-construction factory premises. This is the same premise that is related to my question. I also interpreted that it will be under the Himachal Pradesh Shops and Establishment Act, but I am not able to prove how and under which provision or if there's some case law for the same.

I am explaining again. There is a piece of land where a factory has to be built. On the same land, firstly, we have constructed a site for the engineers and architects where they will come and sit whenever needed. For the laborers who will construct the rest of the factory, they have been employed by the contractor. We hired a contractor for the construction, and he will do his job.

The query is regarding the site of engineers and architects. Under which act would these engineers and architects be liable for their welfare provisions like working hours, etc., and under which act should I register the site where these engineers and architects are sitting?

Is that the register relating to employment of these architects and contractors kept in this site office?

At present, there is no factory. But there is a boundary within which the office is built. Since there is no manufacturing activity going on within the office building/shed, you can call it a commercial establishment coming under the purview of the Himachal Pradesh Shops and Commercial Establishments Act. Eventually, the office will cease to exist once the factory is fully operational unless there is a boundary separating the office from the factory. As long as the office is independent, you can register the same under the Himachal Pradesh Shops and Commercial Establishments Act.

Sir if you by the definition of H.P S&E act:

“commercial establishment” means any premises wherein
any business, trade or profession is carried on for profit,
and includes journalistic or printing establishment and
premises in which business of banking, insurance, stocks
and shares, brokerage or produce exchange is carried on
or which is used as hotel, restaurant, boarding or eating
house, theatre, cinema or other place of public entertainment or any other place which the Government may
declare, by notification, to be a commercial establishment
for the purposes of this Act;

Will your answer fall under this definition?

Actually, a premise which is not covered by the Factories Act, Mines Act, or Plantation Labour Act is considered a commercial establishment and falls under the state's Shops and Commercial Establishments Act. Since the factory has not been commissioned, the location where the office is situated will be covered under the Shops Act. This is where business or professional activities are conducted. You can also inquire with the Inspector of Factories and Boilers to see if there is a provision for temporary registration to manage activities before manufacturing operations commence. This way, you can obtain it and once the factory is operational, obtain the RC as per the Factories Act. The Panchayat or local administration that permitted your construction activities should have issued a license based on certain norms. You should also verify that.

Please let me know if you need further assistance.

Your analysis sounds correct. Since they are not workers, the place they sit is immaterial for coverage under BOCW. Whether they will be covered under S&E will depend on whether the two of them are below the number required for S&E. Also, whether the S&E Act applies to the location (mostly it applies to urban areas).

But as Mr. Madhu said, they will probably be covered under the S&E license of their main office, even if they are temporarily working out of this site which does not have an S&E license.