Unit - 4
Engagement of Labour and Labour &other construction-related Laws
Productivity in creation is frequently widely described as output in keeping with hard work hour. Since hard work constitutes a massive a part of the development fee and the amount of hard work hours in acting an undertaking in creation is greater at risk of the impact of control than are substances or capital, this productiveness degree is frequently called hard work productiveness. However, it's far critical to notice that hard work productiveness is a degree of the general effectiveness of a running gadget in utilising hard work, device and capital to transform hard work efforts into beneficial output, and isn't always a degree of the talents of hard work alone.
For example, with the aid of using making an investment in a chunk of latest device to carry out sure obligations in creation, output can be accelerated for the identical range of hard work hours, as a result ensuing in better hard work productiveness. Construction output can be expressed in phrases of useful gadgets or steady greenbacks. In the previous case, hard work productiveness is related to gadgets of product in keeping with hard work hour, inclusive of cubic yards of concrete positioned in keeping with hour or miles of motorway paved in keeping with hour. In the latter case, hard work productiveness is recognized with fee of creation (in steady greenbacks) in keeping with hard work hour. The fee of creation on this regard isn't always measured with the aid of using the gain of built facilities, however with the aid of using creation fee. Labour productiveness measured on this manner calls for good sized care in interpretation. For example, salary costs in creation had been declining within side the US at some point of the duration 1970 to 1990, and because wages are a critical issue in creation prices, the fee of creation installed area in keeping with hour of labour will decline as a result, suggesting decrease productiveness.
Productivity on the Job Site Contractors and proprietors are frequently involved with the hard work interest at process sites. For this purpose, it's far handy to specific hard work productiveness as useful gadgets in keeping with hard work hour for every kind of creation undertaking. However, even for such unique purposes, exclusive stages of degree can be used. For example, cubic yards of concrete positioned in keeping with hour is a decrease degree of degree than miles of motorway paved in keeping with hour. Lower-degree measures are greater beneficial for tracking person activities, at the same time as better-degree measures can be greater handy for growing enterprise-extensive requirements of overall performance. While every contractor or proprietor is unfastened to apply its personal gadget to degree hard work productiveness at a web page, it is a great exercise to installation a gadget which may be used to music productiveness traits over the years and in various locations. Considerable efforts are required to accumulate facts locally or nationally over some of years to supply such results.
The productiveness indices compiled from statistical records ought to consist of parameters inclusive of the overall performance of predominant crafts, results of task size, kind and location, and different predominant task influences. In order to expand enterprise-extensive requirements of overall performance, there ought to be a trendy settlement at the measures to be beneficial for compiling records. Then, the process web page productiveness records accrued with the aid of using diverse contractors and proprietors may be correlated and analyzed to expand sure measures for every of the predominant phase of the development enterprise. Thus, a contractor or proprietor can evaluate its overall performance with that of the enterprise average.
Productivity within side the Construction Industry Because of the variety of the development enterprise, an unmarried index for the complete enterprise is neither significant nor dependable. Productivity indices can be evolved for predominant segments of the development enterprise national if dependable statistical records may be acquired for separate business segments. For this trendy kind of productiveness degree, it's far greater handy to specific hard work productiveness as steady greenbacks in keeping with hard work hours because greenback values are greater without difficulty aggregated from a massive quantity of records accrued from exclusive sources. The use of steady greenbacks lets in significant approximations of the modifications in creation output from twelve months to any other whilst charge deflators are implemented to contemporary greenbacks to attain the corresponding values in steady greenbacks. However, because maximum creation charge deflators are acquired from an aggregate of charge indices for fabric and hard work inputs, they replicate simplest the alternate of charge stages and do now no longer seize any financial savings bobbing up from stepped forward hard work productiveness. Such deflators generally tend to overstate will increase in creation prices over an extended duration of time, and therefore understate the bodily extent or fee of creation paintings in years next to the bottom 12 months for the indices.
Labour Characteristics Performance evaluation is a not unusual place device for assessing employee first-class and contribution.
Factors that are probably evaluated include:
Quality of Work - quality of labour produced or accomplished. Quantity of Work - extent of applicable paintings Job Knowledge - verified understanding of requirements, methods, strategies and abilities concerned in doing the process and in making use of those to boom productiveness.
Related Work Knowledge understanding of results of labour upon different regions and understanding of associated regions that have an effect on assigned paintings
Judgment - soundness of conclusions, selections and actions. Initiative - capacity to take powerful motion without being told. Resource Utilization - capacity to delineate undertaking desires and locate, plan and efficiently use all sources available
Dependability - reliability in assuming and wearing out commitments and obligations. Analytical Ability-effectiveness in wondering via a hassle and accomplishing sound conclusions
Communicative Ability - effectiveness in the use of oral and written communications and in retaining subordinates, associates, superiors and others appropriately informed. Interpersonal Skills - effectiveness in bearing on in the perfect and efficient way to others. Ability to Work Under Pressure - capacity to satisfy tight closing dates and adapt to changes. Security Sensitivity - capacity to address personal records accurately and to workout care in safeguarding touchy records
Safety Consciousness - has understanding of suitable protection practices and demonstrates attention of personal non-public protection and the protection of others. Profit and Cost Sensitivity - capacity to are seeking for out, generate and put in force profit-making ideas. Planning Effectiveness - capacity to expect desires, forecast situations, set desires and requirements, plan and agenda paintings and degree results. Leadership - capacity to broaden in others the willingness and choice to paintings closer to not unusual place objectives. Delegating - effectiveness in delegating paintings accurately. Development People - capacity to select, educate and appraise personnel, set requirements of overall performance, and offer motivation to develop of their capacity.
Diversity (Equal Employment Opportunity) - capacity to be sensitive to the desires of minorities, women and different blanketed businesses and to illustrate affirmative motion in responding to those desires
These various factors ought to every be assessed on a 3 factor scale: (1) diagnosed strength, (2) meets expectations, (3) location desiring improvement. Examples of labour overall performance in those regions can also additionally be provided. Project Work Conditions Job-web page exertions productiveness may be anticipated both for every craft (carpenter, bricklayer, etc.) or every kind of production (residential housing, processing plant, etc.) below a particular set of labour situations. A base exertions productiveness can be described for a fixed of labour situations unique through the proprietor or contractor who desires to take a look at and degree the exertions overall performance over a time frame below such situations.
An exertions productiveness index can also additionally then be described because the ratio of the process-web page exertions productiveness below a specific set of labour situations to the bottom exertions productiveness, and is a degree of the relative exertions performance of an undertaking below this new set of labour situations. The results of different factors associated with paintings situations on a brand new undertaking may be anticipated in advance, a few greater correctly than others. For example, for extremely big production tasks, the exertions productiveness index has a tendency to lower because the undertaking length and/or complexity boom due to logistic issues and the "learning" that the paintings pressure should go through earlier than adjusting to the brand new environment.
Job-web page accessibility regularly can also additionally lessen the exertions productiveness index if the people should carry out their jobs in spherical approximately ways, along with warding off visitors in repaving the toll road floor or preserving the operation of a plant throughout renovation. Labour availability within side the neighbourhood marketplace is some other factor. Shortage of neighbourhood exertions will pressure the contractor to usher in non-neighbourhood exertions or agenda time beyond regulation paintings or both. In both case, the exertions performance may be decreased similarly to incurring extra expenses. The diploma of gadget usage and mechanization of a production undertaking actually can have direct referring to process-web page exertions productiveness. The contractual agreements play a vital position within side the usage of union or non-union exertions, using subcontractors and the diploma of discipline supervision, all of so one can effect process-webpage exertions productiveness. Since on-web page production basically entails out of doors sports, the neighbourhood weather will have an effect on the performance of people directly.
In overseas operations, the cultural traits of the host united states of America must be found in assessing the exertions performance. Non-Productive Activities The non-efficient sports related to an undertaking must additionally be tested if you want to take a look at the efficient exertions yield, that's described because the ratio of direct exertions hours committed to the final touch of an undertaking to the ability exertions hours. The direct exertions hours are anticipated on the premise of the high-satisfactory feasible situations at a process web page through aside from all elements which can also additionally lessen the efficient exertions yield. For example, within side the repaving of toll road floor, the flagmen required to divert visitors constitute oblique exertions which does now no longer make a contribution to the exertions performance of the paving group if the toll road is closed to the visitors. Similarly, for big tasks in faraway regions, oblique exertions can be used to offer housing and infrastructure for the people employed to deliver the direct exertions for a undertaking. The exertions hours spent on transform to accurate unsatisfactory authentic paintings constitute more time taken far from ability exertions hours. The exertions hours associated with such sports should be deducted from the ability exertions hours if you want to acquire the real efficient exertions yield.
Key takeaways:
The direct exertions hours are anticipated on the premise of the high-satisfactory feasible situations at a process web page through aside from all elements which can also additionally lessen the efficient exertions yield.
Legal risks for predominant employers Misclassification: Contract people may be misclassified as direct personnel of the predominant company, pursuant to a declare through the people or upon unbiased labour authority finding.
This could entitle the people to all blessings and privileges as normal personnel of the company, notwithstanding now no longer being at the rolls of the company. Statutory non-compliances through the contractor: Under the CLA, the predominant company steps into the footwear of the contractor, if the contractor defaults on its felony obligations. Consequences encompass the predominant company taking on charge of wages and social safety contributions, labour registrations, provision of specific canters which includes canteens, crèches, first resource canters, lavatories etc. The regulation entitles the predominant company to get better those quantities from the contractor, however powerful restoration could depend upon the contractor's economic potential to full fill its commitments. Mitigation measures The dangers recognized above may be confined to an quantity thru the subsequent measures:
Limiting control: The predominant company ought to now no longer control (without delay/indirectly) employment phrases of the settlement labour. For example, you ought to now no longer: - pay wages without delay to the settlement labour. All bills of wages/blessings ought to be paid through the contractor; - approve days of depart or make income selections regarding the settlement people; or take part in selections related to their hiring and firing. The hazard of misclassification is likewise decrease in which the settlement labour isn’t solely running for the predominant company. Contractor due diligence: Conduct due diligence on the time of on-boarding contractors to make certain they may be compliant with relevant legal guidelines and maintain required licenses. Antecedent’s tests may assist find any beyond non-compliances and sanctions.
If feasible, additionally don't forget pre-contract site visits to evaluate provision of required canters on the contractor's premises, in addition to ongoing "spot tests" for excessive hazard and touchy sectors which includes food. Robust offerings settlement: Engage settlement labour via an offering’s settlement with the contractor and absolutely seize the contractor's position and responsibilities (inclusive of well-timed bills and renewal of statutory registrations, with evidence to be submitted to the company). Include guarantee and indemnity provisions requiring compliance with Indian legal guidelines, and different mechanisms to in a timely fashion get better costs, which includes overall performance bonds, LDs, short dispute decision etc., as appropriate.
Use the offerings settlement as a conduit to get the proper settlement labour however do now no longer take part without delay of their choice and management. Monitor compliance: User your rights below the offerings settlement to screen the contractor's compliance with relevant labour legal guidelines which includes charge of wages, statutory dues, organization of anti-sexual harassment guidelines etc.
Contract labour commonly refers to “Workers hired through or via a middleman on paintings of any established order”. Such labour may be outstanding from the direct employees in phrases of worker-organization courting and the technique of salary charge. The settlement labour does now no longer have any direct courting with the main organization. It has a wonderful manner of operating in contrast to in some other lessons of labour like everlasting, temporary, informal etc. The settlement labour machine is primarily based totally on triangular courting among the consumer enterprises, the contractors consisting of the sub-contractors as centre man, and the worker. The employees are recruited through an out of doors organisation or individual and are furnished to an established order or working on its paintings. Unlike direct labour, they neither characteristic at the muster roll of main organization/ established order nor are paid directly. In India, a prison definition of settlement labour is given in Contract Labour (Regulation and Abolition) Act, 1970. According to Section 2(b) of the Contract Labour (Regulation and Abolition) Act, 1970, a workman will be deemed to be hired as "settlement labour" in or in reference to the paintings of an established order while he's employed in or in reference to such paintings through or via a contractor, without or with the information of the main organization.
The expression “hired in or in reference to the paintings of the established order” does now no longer suggest that the operation assigned to the workman have to be a part of, or incidental to, the paintings completed through the main organization. Further, employees hired through a licensee for its personal advantage aren't taken into consideration as settlement labourers. Similarly, an everlasting worker of the contractor who can be located at distinct institutions at the selection of the contractor aren't referred to as settlement labourer.
Contract Labour is a huge and developing shape of employment. The exercise of using settlement labour is found all around the global and has been in operation due to the fact that ages.
The starting place of Contract Labour may be traced again to the emergence of the small-scale industries which discovered it economically unfeasible or unviable to adopt all sports of manufacturing procedure themselves and consequently were given a few a part of paintings executed from employees employed via contractors. The settlement employees commonly belong to the unorganized zone as they lack bargaining power, have very little social safety and are frequently engaged in risky occupations which can endanger their fitness and safety. They frequently have very little safety of employment.
However, elements like loss of continuity of paintings, problem in making sure nearer supervision through the organization, better output or productiveness of such employees, fee effectiveness, flexibility in manpower deployment, facilitation for that specialize in centre competencies, etc., represent blessings of the machine of settlement labour.
Various Committees and Commissions installation to investigate the settlement labour machine legal guidelines encouraged its abolition. However, spotting the want and inevitability of this machine within side an increasing number of unsure enterprise environment, the Labour Investigation Committee in 1946, encouraged the abolition of settlement labour, anywhere possible, and its law anywhere abolition became now no longer possible. Based in this view, the Contract Labour (Regulation and Abolition) Act, 1970 became exceeded in 1970. Under this Act, Contract Labour has been banned in positive classes of paintings. This Act applies to each established order wherein twenty or extra workmen are hired or had been hired on any day of the previous one year as settlement labour and to each contractor who hired on any day of the previous one year, twenty or extra workmen within side the established order of main organization. This Act isn't always carried out to institutions wherein paintings best of an intermittent or informal nature is completed. The goal of the Act is to make certain wholesome place of work environment, wholesome operating conditions, well timed Payment of wages and charge of complete wages. Section 16-19 of the Act cowl primary canters like canteen, relaxation rooms, first useful resource etc. to be furnished to settlement labourers.
However, Section 20 and 21 of the Act fixes the duty of the main organization in case while those canters aren't furnished through the contractor within side the time prescribed thereof and additionally charge of wages. According to Section 21(3) of the Act, it will be the obligation of the contractor to make certain the disbursement of wages within side the presence of the legal consultant of the main organization. As consistent with Section 21(4), in case the contractor fails to make charge of wages within side the prescribed length or makes brief charge, then the main organization will be at risk of make charge of wages in complete or the unpaid stability due, because the case may also be, to the settlement labour hired through the contractor and get better the quantity so paid from the contractor both through deduction from any quantity payable to the contractor below any settlement or as a debt payable through the contractor.
Apart from settlement Labour (Regulation and Abolition) Act, 1970, there are numerous different Acts which gives felony safety to settlement labourers/personnel a social safety and different rights. These rights are protected below Minimum Wages Act, 1948, Unorganised Workers Social Safety Act, 2008, the Employees’ Provident price range and Miscellaneous Provisions (EPF&MP) Act, 1952, the Employees State Insurance Act, 1948 and Employees Compensation Act, 1923 (in advance referred to as Workmen Compensation Act, 1923). There are diverse provisions below those Acts which guarantees that comparable rights and securities will be supplied to settlement labour, which can be to be had for an ordinary employee. In fact, due to the reputation of Contract Labourer as workman (relying upon the no. Of people in an organisation), all labour legal guidelines are relevant on Contract Labour. For instance, Section 2(f)(I) of the EPF&MP Act, 1952 recognises settlement employee as a worker and as a consequence assure the advantages of the Act to settlement people.
As in keeping with Section 12(1) of the Employees’ Compensation Act 1923, the legal responsibility of fundamental enterprise and the contractor for paying reimbursement has been constant within side the execution of the paintings through a settlement labour. Similarly, the Unorganized Worker’s Social Security Act, 2008 covers a settlement labour within side the definition of worker (Section 2.f.i) and offer social securities to settlement labour below this Act. Section forty of the Employees State coverage Act, 1948 fixes the obligation of Principal enterprise to pay contributions within side the first instance. Similarly in Factories Act, definition of ‘employee’ encompasses settlement labour and make certain health, safety, welfare, running hours, leave, vacations and the running situations to the settlement labour at par with the at once hired people. Therefore, the Contract Labour Act and Acts mentioned, seeks to meet the subsequent goals Affording safety to the labourers in consonance with the goals of a socialist monetary model. Affording identical remedy and safety to all labourers, be it personnel of an enterprise or settlement labourers. Curbing of exploitation of settlement labourers.
Key takeaways:
Therefore, the Contract Labour Act and Acts mentioned, seeks to meet the subsequent goals affording safety to the labourers in consonance with the goals of a socialist monetary model. Affording identical remedy and safety to all labourers, be it personnel of an enterprise or settlement labourers. Curbing of exploitation of settlement labourers
Subcontracting is the exercise of assigning, or outsourcing, a part of the duties and responsibilities below a settlement to some other celebration referred to as a subcontractor. Subcontracting is in particular universal in regions in which complicated initiatives are the norm, inclusive of production and facts technology. Subcontractors are employed with the aid of using the task's standard contractor, who maintains to have general obligation for task finishing touch and execution inside its stipulated parameters and deadlines. This can create a subcontractor chance for compliance.
Using the development enterprise as an example, while a central authority frame or a business enterprise desires to construct or make upkeep to infrastructure, it might generally award the settlement for the task to a contractor. The contractor is an enterprise proprietor who negotiates the deal and works on a contractual foundation for an agreed-upon fee. Sometimes the paintings to be completed is in a specialised area together with electrical, plumbing, insulation, or extra latest regions like electricity optimization and clever wiring infrastructure, which calls for the contractor to settlement out to any other party. In this case, the contractor can be subcontracting the paintings to a specialised subcontractor. A subcontractor is a sort of contractor who works in a specialised location and will be a freelancer, unbiased contractor, or vendor. While the contractor keeps relationships with clients (e.g., businesses or the government), the subcontractor works with a contractor, imparting their specialised talent set in alternate for a contractual fee. The subcontracting character or business enterprise reviews to the number one contractor, who's chargeable for handling the reduced in size paintings from initiation to completion.
Right here are numerous motives why subcontracting is accomplished. Subcontracting could be very beneficial in conditions in which the variety of required abilities for an assignment is simply too numerous to be accomplished with the aid of using an unmarried widespread contractor. In such cases, subcontracting elements of the assignment that don't shape the overall contractor's centre abilities might also additionally help in retaining fees beneath manipulate and mitigate typical assignment risk. It might also additionally even supply a few protection in a most important situation.
Also, a few huge authorities contracts or contracts that effect nearby network improvement might also additionally require the number one contractor to lease a positive wide variety of subcontracting entities from the network as a part of the contract. Additionally, an enterprise might also additionally determine to subcontract a few mundane however vital jobs to loosen up time and sources to take care of different worthwhile undertakings.
Finally, it's far much less high priced for a contractor to lease the offerings of a subcontracting company or freelancer than it's far to lease a worker because the number one contractor isn't always liable for paying workers’ reimbursement benefits, car and business widespread legal responsibility insurance, fitness insurance, full-time salaries, and Social Security taxes for impartial contractors or subcontractors. From a control factor of view, outsourcing is a variable fee that happens most effective whilst the paintings are wanted while hiring full-time personnel is a set fee that happens whether or not the paintings is to be had or not. That is referred to as running leverage. It is excessive whilst the constant fee shape is excessive and vice versa.
The recruitment of labour thru intermediaries is a protracted set up exercise within side the production enterprise in lots of growing international locations. The intermediaries who recruit and manage the team of workers are known through a lot of names: mistri or jamadar in India, kepala in Malaysia and Singapore, oyaji within side the Republic of Korea, naikea in Nepal, gato in Brazil, maestro in Mexico, etc. Although they will tackle various degrees of responsibility, their feature is basically the equal. They carry labour to the development web page while its miles wished and take it away while it's miles now not required. Thus, they represent a bridge among the labourers in search of paintings and contractors or subcontractors who can provide paintings (Vaid, 1999). A record organized through the writer for the International Labour Organisation (ILO, 2001) files the exercise of labour contracting within side the production enterprise in a big range of growing international locations. Drawing on an in depth literature, it's miles proven that the exercise is deeply embedded in India (Vaid, 1999; van der Loop, 1992), Malaysia (Abdul-Aziz, 1995), Korea (Yoon and Kang, 2000), Philippines (Yuson, 2001), Egypt (Assad, 1993), Brazil (Saboia, 1997; Zylberstajn, 1992) and Mexico (Connolly, 2001). It has also advanced in China following the release in 1984 of a reform programme within side the production enterprise entitled, Separation of Management from Field Operations (Lu and Fox, 2001; Sha and Jiang, 2003). Evidence is provided within side the equal record of a growth within side the exercise of labour contracting in some international locations in latest years, as employees who had formerly been hired at once on a greater everlasting basis, were laid off and re-hired thru subcontractors (ILO, 2001).
For example, evaluation of statistics from the country wide family survey in Brazil indicates that production personnel registered with the Labour Ministry (assumed to be the everlasting personnel of contractors) fell from 41% of the development team of workers in 1981 to 21% in 1999, even as unregistered and self-hired employees rose from 57% to 75% during the period. At the equal time there has been a large enlargement within side the range of employers, maximum of whom are believed to be labour contractors or Gatos (PNAD, 1999). More latest research in sub-Saharan Africa display a comparable decline within side the everlasting, at once hired team of workers and a corresponding growth within side the range of employees hired thru subcontractors and intermediaries. A look at of production labour in Cape Town discovered that the majority of the employees on production web sites across the town had been hired through subcontractors and thirds of the employers had been labour-simplest subcontractors (English, 2002). The 0.33 who had been imparting each labour and substances had been in flip outsourcing their labour necessities to labour simplest subcontractors. Further proof of contractors having these days shed their at once hired labour in favour of outsourcing lay within side the reality that a lot of the employers of labour had formerly been hired themselves in large production agencies and had been retrenched. They are actually imparting labour to their preceding employers (English, 2002).
Perspective of Contractors
The staying power and boom within side the production enterprise around the world of the exercise of outsourcing labour via subcontractors may be defined via way of means of the widespread blessings it gives to contractors. First and important is flexibility within side the recruitment of labour. Outsourcing permits contractors and subcontractors to get the labour they want after they want it and to pay for it best whilst needed (Vaid, 1999). Hence labour will become a variable in place of a set fee. This type of flexibility is particularly critical in production because of fluctuating labour requirements, which stem in element from versions within side the contractor’s workload, however additionally from modifications within side the product mix. Neither production merchandise nor capabilities are homogeneous. Building production particularly calls for a huge variety of capabilities with frequent, frequently day by day, versions. The capabilities required in civil production are greater homogeneous and this may be associated with the reality that outsourcing appears to be much less not unusual place on this field.
Flexibility within side the use of labour may be executed without resorting to outsourcing supplied there are no powerful guidelines proscribing the hiring and firing of labour. If labour may be hired on a short-time period foundation and launched whilst not required, flexibility may be mixed with direct employment via using short-time period or day by day employment contracts. However in many nations, contractors have been driven into outsourcing via way of means of restrictive labour guidelines. Assad (1993) explains that labour guidelines in Egypt permit for 2 styles of employment contracts; everlasting and temporary. Permanent contracts entitle employees to lifetime employment protection after a preliminary probationary length of 3 months. Temporary contracts are constant in length and can't exceed 365 days at a time.
Workers may be laid off on the close of the settlement length however they may be re-hired best as soon as earlier than the settlement will become everlasting. The creator continues that, with such sturdy barriers at the employers’ capacity to modify their team of workers at will, it's miles infrequently unexpected that contractors lodge to labour subcontractors and labour recruiters to advantage access to a bendy team of workers, in place of rent employees without delay on criminal contracts (Assaad, 1993). Labour subcontractors are generally small, unregulated and much less seen than primary contractors and usually better capable of keep away from the regulations on hiring and firing. In addition to imparting flexibility within side the employment of labour, the outsourcing of labour gives contractors an possibility to in addition lessen their labour fees.
They do that via way of means of heading off the overhead fees related to the employment of labour, however additionally (and greater importantly) via way of means of evading the "on-fees" related to criminal employment. In many nations labour guidelines require that employees hired past a minimal time frame are entitled to a variety of blessings such as social protection coverage, paid holidays etc., that could upload drastically to the fee of using them. In nations in which those fees are excessive and the guidelines are strictly enforced, there may be a sturdy incentive to rent labour via subcontractors, who're greater capable of keep away from the guidelines. Brazil is one such case in which the on-fees of using labour are very excessive, anticipated at among 90% (Saboia, 1997) and 187% (Sindus Con-SP, 2000) of the simple salary fee.
One of the principle motivations at the back of the exercise of labour subcontracting in Brazil is to keep away from those excessive fees which might be imposed via way of means of regulation on all registered employees. Studies in Brazil (Saboia, 1997) in addition to in some of different nations (Assad, 1993; Vaid, 1999; English, 2002; Jha, 2002) display that subcontractors and labour recruiters always rent employees on an informal foundation with none shape of criminal settlement and with none of the employment blessings assured via way of means of regulation.
As with flexibility, low labour prices may be realised without resorting to outsourcing in nations wherein labour law is vulnerable or wherein the regulation isn't always enforced. In this case labour may be at once hired on an informal each day foundation with none extra blessings being paid, so there's no want for contractors to outsource their labour. This is the scenario in lots of components of the growing world, which includes an awful lot of sub-Saharan Africa wherein labour policies are non-existent or weakly enforced. If decrease prices and flexibility have been the simplest blessings to be received from outsourcing one may count on the quantity of the exercise to be inversely associated with the improvement and enforcement of restrictive labour policies. However, the reality that outsourcing of labour is likewise not unusual place in conditions wherein there's little powerful labour regulation indicates that it gives different benefits. One of the extra benefits to contractors this is stated within side the literature is the delegation of duty for supervising the labour pressure (Bresnan et al., 1985; Deborah and Ofori, 1997; Leonard, 2000;). Construction paintings in growing nations is labour intensive, and labour productiveness is a key aspect in total fee and for this reason the contractor’s profit. It is crucial that contractors are capable of manipulate the output of labour which will keep productiveness. Control over output may be exercised at once thru close supervision, or circuitously thru a settlement with a dealer that has suitable incentives written in.
If labour contracts are offered on the idea of a hard and fast fee for a definable place of labor (that's frequently the case) the labour contractor has a sturdy incentive to govern output which will make certain that the venture is finished for the settlement sum. Labour contractors bid towards every different on the idea of a hard and fast fee for a given output so that they need to take note of productiveness which will win the tender. Hence as opposed to the contractor having to govern the labour pressure at once which will reap the specified degree of productiveness, manipulate is efficiently exercised thru the market (Bresnan et al., 1985; Winch, 1986, 1994). Supervision by the primary contractor may also nevertheless be had to make certain the fine this is required, however supervision to keep labour output is the duty of the subcontractor (Bresnan et al., 1985).
Associated with the delegation of duty for supervision is the offloading of risks, particularly the risk that the object of labour might not be finished for the given fee within side the given time because of business unrest, inclement climate or different factors. The availability of a corporation fee for a given place of labour additionally considerably simplifies the estimating process, saving in addition on overhead prices (Leonard, 2000). Perspective of the Workers The worker’s enjoy and examine of labour outsourcing is a topic which has been little researched in both growing or evolved nations. There is a few studies within side the UK that indicates there are discrete benefits and disadvantages, from the employees’ factor of view, in each direct and self-employment – the latter being the repute of the majority of the employees hired thru intermediaries in UK creation. A survey of employees within side the British creation enterprise located that at the least a share of the development team of workers decides on the repute of self-employment, which could offer better wages however on the fee of normal paintings and social security blessings (Nisbet, 1997). However, others argue that the self-hired employees are in reality deprived in assessment with direction.
Key takeaways:
Associated with the delegation of duty for supervision is the offloading of risks, particularly the risk that the object of labour might not be finished for the given fee within side the given time because of business unrest, inclement climate or different factors
According to section 2 (k) “industrial dispute” means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person.
Authorities under this act
(Section 3) Works Committee:
(1) In the case of any industrial establishment in which one hundred or more workmen are employed or have been employed on any day in the preceding twelve months, the appropriate Government may by general or special order require the employer to constitute in the prescribed manner a Works Committee consisting of representatives of employers and workmen engaged in the establishment, so however that the number of representatives of workmen on the Committee shall not be less than the number of representatives of the employer. The representatives of the workmen shall be chosen in the prescribed manner from among the workmen engaged in the establishment and in consultation with their trade union, if any, registered under the Indian Trade Unions Act, 1926 (16 of 1926).
(2) It shall be the duty of the Works Committee to promote measures for securing and preserving amity and good relations between the employer and workmen and, to that end, to comment upon matters of their common interest or concern and endeavour to compose any material difference of opinion in respect of such matters.
Conciliation Officers (Section 4)
(1) The appropriate Government may, by notification in the Official Gazette, appoint such number of persons as it thinks fit, to be Conciliation Officers, charged with the duty of mediating in and promoting the settlement of industrial disputes.
(2) A Conciliation Officer may be appointed for a specified area or for specified industries in a specified area or for one or more specified industries and either permanently or for a limited period.
Board of Conciliation (Section 5)
(1) The appropriate Government may as occasion arises by notification in the Official Gazette, constitute a Board of Conciliation for promoting the settlement of an industrial dispute.
(2) A Board shall consist of a Chairman and two or four other members, as the appropriate Government thinks fit.
(3) The Chairman shall be an independent person and the other members shall be persons appointed in equal numbers to represent the parties to the dispute and any person appointed to represent a party shall be appointed on the recommendation of that party:
Provided that, if any party fails to make a recommendation as aforesaid within the prescribed time, the appropriate Government shall appoint such persons as it thinks fit to represent that party.
(4) A Board, having the prescribed quorum, may act notwithstanding the absence of the Chairman or any of its members or any vacancy in its number: Provided that, if the appropriate Government notifies the Board that the services of the Chairman or of any other member have ceased to be available, the Board shall not act until a new chairman or member, as the case may be, has been appointed.
Courts of Enquiry (Section 6)
(1) The appropriate Government may as occasion arises by notification in the Official Gazette, constitute a Court of Inquiry for enquiring into any matter appearing to be connected with or relevant to an industrial dispute.
(2) A Court may consist of one independent person or of such number of independent persons as the appropriate Government may think fit and where a Court consists of two or more members, one of them shall be appointed as the Chairman.
(3) A Court, having the prescribed quorum, may act, notwithstanding the absence of the Chairman or any of its members or any vacancy in its number:
Provided that, if the appropriate Government notifies the Court that the services of the Chairman have ceased to be available, the Court shall not act until a new Chairman has been appointed.
Reference of certain individual disputes to grievance settlement authorities
Setting up of Grievance Settlement Authorities and reference of certain individual disputes to such authorities (Section 9C)
(1) The employer in relation to every industrial establishment in which fifty or more workmen are employed or have been employed on any day in the preceding twelve months, shall provide for, in accordance with the rules made in that behalf under this Act, a Grievance Settlement Authority for the settlement of industrial disputes connected with an individual workman employed in the establishment.
(2) Where an industrial dispute connected with an individual workman arises in an establishment referred to in sub-section (1), a workman or any trade union of workmen of which such workman is a member, refer, in such manner as may be prescribed such dispute to the Grievance Settlement Authority provided for by the employer under that sub-section for settlement.
(3) The Grievance Settlement Authority referred to in sub-section (1) shall follow such procedure and complete its proceedings within such period as may be prescribed.
(4) No reference shall be made under Chapter III with respect to any dispute referred to in this section unless such dispute has been referred to the Grievance Settlement Authority concerned and the decision of the Grievance Settlement Authority is not acceptable to any of the parties to the dispute.
Reference of disputes to boards, courts or tribunals
Reference of disputes to Boards, Courts or Tribunals (Section 10)
(1) Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing-
(a) refer the dispute to a Board for promoting a settlement thereof; or
(b) refer any matter appearing to be connected with or relevant to the dispute, to a Court for inquiry; or
(c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or
(d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication: Provided that where the dispute relates to any matter specified in the Third Schedule and is not likely to affect more than one hundred workmen, the appropriate Government may, if it so thinks fit, make the reference to a Labour Court under Clause (c).
(2) Where the parties to an industrial dispute apply in the prescribed manner, whether jointly or separately, for a reference of the dispute to a Board, Court, Labour Court, Tribunal, or National Tribunal, the appropriate Government, if satisfied that the persons applying represent the majority of each party, shall make the reference accordingly.
(3) Where an industrial dispute has been referred to a Board, 4[Labour Court, Tribunal or National Tribunal] under this section, the appropriate Government may by order prohibit the continuance of any strike or lock-out in connection with such dispute which may be in existence on the date of the reference.
(4) Where in an order referring an industrial dispute to 6[a Labour Court, Tribunal or National Tribunal] under this section or in a subsequent order, the appropriate Government has specified the points of dispute for adjudication the Labour Court or the Tribunal or the National Tribunal, as the case may be], shall confine its adjudication to those points and matters incidental thereto.
(5) Where a dispute concerning any establishment or establishments has been, or is to be, referred to a Labour Court, Tribunal or National Tribunal] under this section and the appropriate Government is of opinion, whether on an application made to it in this behalf or otherwise, that the dispute is of such a nature that any other establishment, group or class of establishments of a similar nature is likely to be interested in, or affected by, such dispute, the appropriate Government may, at the time of making the reference or at any time thereafter but before the submission of the award, include in that reference such establishment, group or class of establishments, whether or not at the time of such inclusion any dispute exists or is apprehended in that establishment, group, or class of establishments
Strikes and lock-outs
Prohibition of strikes and lock-outs (Section 22)
(1) No person employed in a public utility service shall go on strike in breach of contract-
(a) without giving to the employer notice of strike, as hereinafter provided, within six weeks before striking; or
(b) within fourteen days of giving such notice; or
(c) before the expiry of the date of strike specified in any such notice as aforesaid; or
(d) during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings.
(2) No employer carrying on any public utility service shall lock-out any of his workmen-
(a) without giving them notice of lock-out as hereinafter provided, within six weeks before locking-out; or
(b) within fourteen days of giving such notice; or
(c) before the expiry of the date of lock-out specified in any such notice as aforesaid; or
(d) during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings.
(3) The notice of lock-out or strike under this section shall not be necessary where there is already in existence a strike or, as the case may be, lock-out in the public utility service, but the employer shall send intimation of such lock-out or strike on the day on which it is declared, to such authority as may be specified by the appropriate Government either generally or for a particular area or for a particular class of public utility services.
(4) The notice of strike referred to in sub-section (1) shall be given by such number of persons to such person or persons and in such manner as may be prescribed.
(5) The notice of lock-out referred to in sub-section (2) shall be given in such manner as may be prescribed.
(6) If on any day an employer receives from any person employed by him any such notices as are referred to in sub-section (1) or gives to any persons employed by him any such notices as are referred to in sub-section (2), he shall within five days thereof report to the appropriate Government or to such authority as that Government may prescribe, the number of such notices received or given on that day.
General prohibition of strikes and lock-outs (Section 23)
No workman who is employed in any industrial establishment shall go on strike in breach of contract and no employer of any such workman shall declare a lock-out-
(a) during the pendency of conciliation proceedings before a Board and seven days after the conclusion of such proceedings;
(b) during the pendency of proceedings before a Labour Court, Tribunal or National Tribunal] and two months after the conclusion of such proceedings;
(bb) during the pendency of arbitration proceedings before an arbitrator and two months after the conclusion of such proceedings, where a notification has been issued under subsection (3-A) of Section 10-A; or
(c) during any period in which a settlement or award is in operation in respect of any of the matters covered by the settlement or award.
Penalties
Penalty for illegal strikes and lock-outs (Section 26)
(1) Any workman who commences, continues or otherwise acts in furtherance of, a strike which is illegal under this Act, shall be punishable with imprisonment for a term which may extend to one month, or with fine which may extend to fifty rupees, or with both.
(2) Any employer who commences, continues, or otherwise acts in furtherance of a lock-out which is illegal under this Act, shall be punishable with imprisonment for a term which may extend to one month, or with fine which may extend to one thousand rupees, or with both.
Penalty for instigation etc. (Section 27)
Any person who instigates or incites others to take part in, or otherwise acts in furtherance of, a strike or lock-out which is illegal under this Act, shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
Penalty for giving financial aid to illegal strikes and lock-outs (Section 28)
Any person who knowingly expends or applies any money in direct furtherance or support of any illegal strike or lock-out shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
Penalty for breach of settlement or award (Section 29)
Any person who commits a breach of any term of any settlement or award, which is binding on him under this Act, shall be punishable with imprisonment for a term which may extend to six months, or with fine, or with both and where the breach is a continuing one, with a further fine which may extend to two hundred rupees for every day during which the breach continues after the conviction for the first and the Court trying the offence, if it fines the offender, may direct that the whole or any part of the fine realised from him shall be paid by way of compensation, to any person who, in its opinion, has been injured by such breach.
Penalty for disclosing confidential information (Section 30)
Any person who wilfully discloses any such information as is referred to in Section 21 in contravention of the provisions of that section shall, on complaint made by or on behalf of the trade union or individual business affected, be punishable with imprisonment for a term which may extend to six months, or with fine, which may extend to one thousand rupees, or with both.
Penalty for closure without notice (Section 30A)
Any employer who closes down any undertaking without complying with the provisions of Section 25FFA shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to five thousand rupees, or with both.
Penalty for other offences (Section 31A)
(1) Any employer who contravenes the provisions of Section 33 shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
(2) Whoever contravenes any of the provisions of this Act or any rule made thereunder shall, if no other penalty is elsewhere provided by or under this Act for such contravention, be punishable with fine which may extend to one hundred rupees.
Key takeaways:
Any employer who contravenes the provisions of Section 33 shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
Collective bargaining is the process in which working people, through their unions, negotiate contracts with their employers to determine their terms of employment, including pay, benefits, hours, leave, job health and safety policies, ways to balance work and family, and more. Collective bargaining is a way to solve workplace problems. It is also the best means for raising wages in America. Indeed, through collective bargaining, working people in unions have higher wages, better benefits and safer workplaces.
Procedure for initiating collective bargaining
1. A charter of demands
The trade union will notify the employer for initiating collective bargaining negotiations. The representatives of the trade union draft a charter of demands which contains issues related to terms of employment and the working conditions namely wages and allowances, bonuses, working hours, benefits, holidays. In some cases, an employer may also notify the trade union and initiate collective bargaining negotiations.
2. Negotiations
Negotiation is the next step after the submission of the charter of demands by the trade union. Both the employer and the employee seek opportunities to suggest compromise solutions in their favour until an agreement is reached. If it impossible to reach out to an agreement, a third party (mediator / arbitrator) may be brought in from outside. If, even with the assistance of the third party, no viable solution can be found to resolve the parties’ differences, the trade union may decide to engage in strikes.
3. Collective bargaining agreement
Pursuant to the negotiations between the parties, a collective bargaining agreement will be executed between the employer and workmen represented by trade unions, setting out the terms of employment and the working conditions of labour.
4. Strikes
If both parties fail to reach an agreement because of mutual consensus, the union may go on a strike, which shall be in accordance with the provisions of the Industrial Disputes Act 1947 (“ID Act”).
5. Conciliation
Once the conciliation officer receives a notice of strike or lockout, the conciliation proceedings shall commence. The State Government may appoint a conciliation officer or a Board of Conciliation to investigate disputes, mediate and promote a settlement. Workers are prohibited from going on strike during the pendency of such conciliation proceedings. Conciliation proceeding may have one of the three outcomes, namely (i) a settlement; or (ii) no settlement; or (iv) reference being made to the appropriate labour court or any other industrial tribunal.
6. Compulsory arbitration or adjudication
When conciliation and mediation fail, parties may either resort to compulsory or voluntary arbitration. Arbitration and the recommendations of the arbitrator may be binding to the parties. Section 7A of the ID Act provides for a labour court or industrial tribunal within a state to adjudicate protracted industrial disputes such as strikes and lockouts. Section 7B of the ID Act provides for constitution of national tribunals to resolve disputes involving questions of national interest or issues concerning more than two states. In the event, a labour dispute is not resolved by conciliation and mediation, the employer, and the workers may refer the case by a written agreement to a labour court, industrial tribunal or national tribunal for adjudication or compulsory arbitration.
Key takeaways:
Collective bargaining is the process in which working people, through their unions, negotiate contracts with their employers to determine their terms of employment, including pay, benefits, hours, leave, job health and safety policies, ways to balance work and family, and more. Collective bargaining is a way to solve workplace problems.
This Act is to require employers in industrial establishments to formally define conditions of employment under them and submit draft standing orders to certifying Authority for its Certification. It applies to every industrial establishment wherein 100 (reduced to 50 by the Central Government in respect of the establishments for which it is the Appropriate Government) or more workmen are employed. And the Central Government is the appropriate Government in respect of establishments under the control of Central Government or a Railway Administration or in a major port, mine or oil field. Under the Industrial Employment (Standing Orders) Act, 1946, all RLCs(C) have been declared Certifying Officers to certify the standing orders in respect of the establishments falling in the Central Sphere.
Submission of draft standing orders (Section 3)
(1) Within six months from the date on which this Act becomes applicable to an industrial establishment, the employer shall submit to the Certifying Officer five copies of the draft standing orders proposed by him for adoption in his industrial establishment.
(2) Provision shall be made in such draft for every matter set out in the Schedule which may be applicable to the industrial establishment, and where model standing orders have been prescribed, shall be, so far as is practicable, in conformity with such model.
(3) The draft standing orders submitted under this section shall be accompanied by a statement giving prescribed particulars of the workmen employed in the industrial establishment including the name of the trade union, if any, to which they belong.
(4) Subject to such conditions as may be prescribed, a group of employers in similar industrial establishments may submit a joint draft of standing orders under this section.
Conditions for certification of standing orders (Section 4)
Standing orders shall be certifiable under this Act if—
(a) provision is made therein for every matter set out in the Schedule which is applicable to the industrial establishment, and
(b) the standing orders are otherwise in conformity with the provisions of this Act; and it shall be the function of the Certifying Officer or appellate authority to adjudicate upon the fairness or reasonableness of the provisions of any standing orders.
Certification of standing orders (Section 5)
(1) On receipt of the draft under section 3, the Certifying Officer shall forward a copy thereof to the trade union, if any, of the workmen, or where there is no such trade union, to the workmen in such manner as may be prescribed, together with a notice in the prescribed form requiring objections, if any, which the workmen may desire to make to the draft standing orders to be submitted to him within fifteen days from the receipt of the notice.
(2) After giving the employer and the trade union or such other representatives of the workmen as may be prescribed an opportunity of being heard, the Certifying Officer shall decide whether or not any modification of or addition to the draft submitted by the employer is necessary to render the draft standing orders certifiable under this Act, and shall make an order in writing accordingly.
(3) The Certifying Officer shall thereupon certify the draft standing orders, after making any modifications therein which his order under sub-section (2) may require, and shall within seven days thereafter send copies of the certified standing orders authenticated in the prescribed manner and of his order under sub-section (2) to the employer and to the trade union or other prescribed representatives of the workmen.
Appeals (Section 6)
(1) Any employer, workmen, trade union or other prescribed representatives of the workmen aggrieved by the order of the Certifying Officer under sub-section (2) of section 5 may, within 4 [thirty days] from the date on which copies are sent under sub-section (3) of that section, appeal to the appellate authority, and the appellate authority, whose decision shall be final, shall by order in writing confirm the standing orders either in the form certified by the Certifying Officer or after amending the said standing orders by making such modifications thereof or additions thereto as it thinks necessary to render the standing orders certifiable under this Act.
(2) hereof to the Certifying Officer, to the employer and to the trade union or other prescribed representatives of the workmen, accompanied, unless it has confirmed without amendment the standing orders as certified by the Certifying Officer, by copies of the standing orders as certified by it and authenticated in the prescribed manner.
Date of operation of standing orders (Section 7)
Standing orders shall, unless an appeal is preferred under section 6, come into operation on the expiry of thirty days from the date on which authenticated copies thereof are sent under sub-section (3) of section 5, or where an appeal as aforesaid is preferred, on the expiry of seven days from the date on which copies of the order of the appellate authority are sent under sub-section (2) of section 6.
Register of standing orders (Section 8)
A copy of all standing orders as finally certified under this Act shall be filed by the Certifying Officer in a register in the prescribed form maintained for the purpose, and the Certifying Officer shall furnish a copy thereof to any person applying therefore on payment of the prescribed fee.
Posting of standing orders (Section 9)
The text of the standing orders as finally certified under this Act shall be prominently posted by the employer in English and in the language understood by the majority of his workmen on special boards to be maintained for the purpose at or near the entrance through which the majority of the workmen enter the industrial establishment and in all departments thereof where the workmen are employed.
Duration and modification of standing orders (Section 10)
(1) Standing orders finally certified under this Act shall not, except on agreement between the employer and the workmen or a trade union or other representative body of the workmen, be liable to modification until the expiry of six months from the date on which the standing orders or the last modifications thereof came into operation.
(2) Subject to the provisions of sub-section (1), an employer or workman or a trade union or other representative body of the workmen may apply to the Certifying Officer to have the standing orders modified, and such application shall be accompanied by five copies of the modifications proposed to be made, and where such modifications are proposed to be made by agreement between the employer and the workmen or a trade union or other representative body of the workmen, a certified copy of that agreement shall be filed along with the application.
(3) The foregoing provisions of this Act shall apply in respect of an application under sub-section (2) as they apply to the certification of the first standing orders.
(4) Nothing contained in sub-section (2) shall apply to an industrial establishment in respect of which the appropriate Government is the Government of the State of Gujarat or the Government of the State of Maharashtra.
Payment of subsistence allowance (Section 10A)
(1) Where any workmen is suspended by the employer pending investigation or inquiry into complaints or charges of misconduct against him, the employer shall pay to such workman subsistence allowance—
(a) at the rate of fifty per cent. Of the wages which the workman was entitled to immediately preceding the date of such suspension, for the first ninety days of suspension; and
(b) at the rate of seventy-five per cent of such wages for the remaining period of suspension if the delay in the completion of disciplinary proceedings against such workman is not directly attributable to the conduct of such workman.
(2) If any dispute arises regarding the subsistence allowance payable to a workman under sub-section (1) the workman or the employer concerned may refer the dispute to the Labour Court, constituted under the Industrial Disputes Act, 1947 (14 of 1947), within the local limits of whose jurisdiction the industrial establishment wherein such workman is employed is situate and the Labour Court to which the dispute is so referred shall, after giving the parties an opportunity of being heard, decide the dispute and such decision shall be final and binding on the parties.
(3) Notwithstanding anything contained in the foregoing provisions of this section, where provisions relating to payment of subsistence allowance under any other law for the time being in force in any State are more beneficial than the provisions of this section, the provisions of such other law shall be applicable to the payment of subsistence allowance in that State.
Penalties and procedure (Section 13)
(1) An employer who fails to submit draft standing orders as required by section 3, or who modifies his standing orders otherwise than in accordance with section 10, shall be punishable with fine which may extend to five thousand rupees, and in the case of a continuing offence with a further fine which may extend to two hundred rupees for every day after the first during which the offence continues.
(2) An employer who does any act in contravention of the standing orders finally certified under this Act or his industrial establishment shall be punishable with fine which may extend to one hundred rupees, and in the case of a continuing offence with a further fine which may extend to twenty-five rupees for every day after the first during which the offence continues.
(3) No prosecution for an offence punishable under this section shall be instituted except with the previous sanction of the appropriate Government.
(4) No Court inferior to that of 5 [a Metropolitan Magistrate or Judicial Magistrate of the second class] class] shall try any offence under this section.
Key takeaways:
An employer who does any act in contravention of the standing orders finally certified under this Act or his industrial establishment shall be punishable with fine which may extend to one hundred rupees, and in the case of a continuing offence with a further fine which may extend to twenty-five rupees for every day after the first during which the offence continues.
It is an Act to provide for the payment by certain classes of employers to their employees of compensation for injury by accident. Whereas it is expedient to provide for the payment by certain classes of employers to their workmen of compensation for injury by accident.
Employer's liability for compensation (section 3)
(1) If personal injury is caused to a employee by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter: Provided that the employer shall not be so liable –
(a) in respect of any injury which does not result in the total or partial disablement of the employee for a period exceeding three days;
(b) in respect of any injury, not resulting in death or permanent total disablement caused by an accident which is directly attributable to—
(i) the employee having been at the time thereof under the influence of drink or drugs, or
(ii) the wilful disobedience of the employee to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of *[employees], or
(iii) the wilful removal or disregard by the employee of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of employee,
(c) Omitted by Act 5 of 1929.
(2) If an employee employed in any employment specified in Part A of Schedule III contracts any disease specified therein as an occupational disease peculiar to that employment, or if a employee, whilst in the service of an employer in whose service he has been employed for a continuous period of not less than six months (which period shall not include a period of service under any other employer in the same kind of employment) in any employment specified in Part B of Schedule III, contracts any disease specified therein as an occupational disease peculiar to that employment, or if a employee whilst in the service of one or more employers in any employment specified in Part C of Schedule III for such continuous period as the Central Government may specify in respect of each such employment, contracts any disease specified therein as an occupational disease peculiar to that employment, the contracting of the disease shall be deemed to be an injury by accident within the meaning of this section and, unless the contrary is proved, the accident shall be deemed to have arisen out of, and in the course of, the employment.
(3) The Central Government or the State Government, after giving, by notification in the Official Gazette, not less than three months' notice of its intention so to do, may, by a like notification, add any description of employment to the employments specified in Schedule III and shall specify in the case of employments so added the diseases which shall be deemed for the purposes of this section to be occupational diseases peculiar to those employments respectively, and thereupon the provisions of sub-section (2) shall apply,in the case of a notification by the Central Government, within the territories to which this Act extends or, in case of a notification by the State Government, within the State as if such diseases had been declared by this Act to be occupational diseases peculiar to those employments.
(4) Save as provided by sub-sections (2), (2A) and (3) no compensation shall be payable to a employee in respect of any disease unless the disease is directly attributable to a specific injury by accident arising out of and in the course of his employment.
(5) Nothing herein contained shall be deemed to confer any right to compensation on a *[employee] in respect of any injury if he has instituted in a Civil Court a suit for damages in respect of the injury against the employer or any other person; and no suit for damages shall be maintainable by a employee in any Court of law in respect of any injury—
(a) if he has instituted a claim to compensation in respect of the injury before a Commissioner; or
(b) if an agreement has been come to between the employee and his employer providing for the payment of compensation in respect of the injury in accordance with the provisions of this Act.
Amount of compensation (section 4)
(1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:--
(a) where death results an from the injury: an amount equal to fifty per cent. Of the monthly wages of the deceased *[employee] multiplied by the relevant factor; or an amount of *[one lakh and twenty thousand rupees], whichever is more;
(b) where permanent total disablement results from the injury : an amount equal to sixty per cent. Of the monthly wages of the injured employee multiplied by the relevant factor; one lakh and twenty thousand rupees, whichever is more
(c) where permanent partial disablement result from the injury:
(i) in the case of an injury specified in Part II of Schedule I, such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury; and
(ii) in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury.
(d) where temporary disablement, whether total or partial, results from the injury: a half monthly payment of the sum equivalent to twenty-five per cent. Of monthly wages of the *[employee], to be paid in accordance with the provisions of sub-section (2).
(2) The half-monthly payment referred to in clause (d) of sub-section (1) shall be payable on the sixteenth day –
(i) from the date of disablement where such disablement lasts for a period of twenty-eight days or more, or
(ii) after the expiry of a waiting period of three days from the date of disablement where such disablement lasts for a period of less than twenty-eight days; and thereafter half-monthly during the disablement or during a period of five years, whichever period is shorter.
(3) On the ceasing of the disablement before the date on which any half-monthly payment falls due there shall be payable in respect of that half-month a sum proportionate to the duration of the disablement in that half-month.
(4) If the injury of the employee results in his death, the employer shall, in addition to the compensation under sub-section (1), deposit with the Commissioner a sum of *[not less than five thousand rupees for payment of the same to the eldest surviving dependant of the employee towards the expenditure of the funeral of such *[employee] or where the employee did not have a dependant or was not living with his dependant at the time of his death to the person who actually incurred such expenditure.
Method of calculating wages (Section 5)
In this Act and for the purposes thereof the expression "monthly wages" means the amount of wages deemed to be payable for a month's service (whether the wages are payable by the month or by whatever other period or at piece rates), and calculated as follows, namely:
(a) where the employee has, during a continuous period of not less than twelve months immediately preceding the accident, been in the service of the employer who is liable to pay compensation, the monthly wages of the employee shall be one-twelfth of the total wages which have fallen due for payment to him by the employer in the last twelve months of that period;
(b) where the whole of the continuous period of service immediately preceding the accident during which the employee was in the service of the employer who is liable to pay the compensation was less than one month, the monthly wages of the employee shall be the average monthly amount which, during the twelve months immediately preceding the accident, was being earned by a *[employee] employed on the same work by the same employer, or, if there was no employee so employed, by a employee employed on similar work in the same locality;
(c) in other cases including cases in which it is not possible for want of necessary information to calculate the monthly wages under clause (b), the monthly wages shall be thirty times the total wages earned in respect of the last continuous period of service immediately preceding the accident from the employer who is liable to pay compensation, divided by the number of days comprising such period.
Commutation of half-monthly payments (section 7)
Any right to receive half-monthly payments may, by agreement between the parties or, if the parties cannot agree and the payments have been continued for not less than six months, on the application of either party to the Commissioner, be redeemed by the payment of a lump sum of such amount as may be agreed to by the parties or determined by the Commissioner, as the case may be.
Distribution of compensation (Section 8)
(1) No payment of compensation in respect of a employee whose injury has resulted in death, and no payment of a lump sum as compensation to a woman or a person under a legal disability, shall be made otherwise than by deposit with the Commissioner, and no such payment made directly by an employer shall be deemed to be a payment of compensation:
Provided that, in the case of a deceased employee, an employer may make to any dependant advances on account of compensation of an amount equal to three months' wages of such *[employee] and so much of such amount] as does not exceed the compensation payable to that dependant shall be deducted by the Commissioner from such compensation and repaid to the employer.
(2) Any other sum amounting to not less than ten rupees which is payable as compensation may be deposited with the Commissioner on behalf of the person entitled thereto.
(3) The receipt of the Commissioner shall be a sufficient discharge in respect of any compensation deposited with him.
(4) On the deposit of any money under sub-section (1), as compensation in respect of a deceased employee the Commissioner shall, if he thinks necessary, cause notice to be published or to be served on each dependant in such manner as he thinks fit, calling upon the dependants to appear before him on such date as he may fix for determining the distribution of the compensation. If the Commissioner is satisfied after any inquiry which he may deem necessary, that no dependant exists, he shall repay the balance of the money to the employer by whom it was paid. The Commissioner shall, on application by the employer, furnish a statement showing in detail all disbursements made.
(5) Compensation deposited in respect of a deceased employee shall, subject to any deduction made under sub-section (4), be apportioned among the dependants of the deceased employee or any of them in such proportion as the Commissioner thinks fit, or may, in the discretion of the Commissioner, be allotted to any one dependant.
(6) Where any compensation deposited with the Commissioner is payable to any person, the Commissioner shall, if the person to whom the compensation is payable is not a woman or a person under a legal disability, and may, in other cases, pay the money to the person entitled thereto.
(7) Where any lump sum deposited with the Commissioner is payable to a woman or a person under a legal disability, such sum may be invested, applied or otherwise dealt with for the benefit of the woman, or of such person during his disability, in such manner as the Commissioner may direct; and where a halfmonthly payment is payable to any person under a legal disability, the Commissioner may, of his own motion or on an application made to him in this behalf, order that the payment be made during the disability to any dependant of the employee or to any other person, whom the Commissioner thinks best fitted to provide for the welfare of the employee.
(8) Where, on application made to him in this behalf or otherwise, the Commissioner is satisfied that, on account of neglect of children on the part of a parent or on account of the variation of the circumstances of any dependant or for any other sufficient cause, an order of the Commissioner as to the distribution of any sum paid as compensation or as to the manner in which any sum payable to any such dependant is to be invested, applied or otherwise dealt with, ought to be varied, the Commissioner may make such orders for the variation of the former order as he thinks just in the circumstances of the case: Provided that no such order prejudicial to any person shall be made unless such person has been given an opportunity of showing cause why the order should not be made, or shall be made in any case in which it would involve the repayment by a dependant of any sum already paid to him.
(9) Where the Commissioner varies any order under sub-section (8) by reason of the fact that payment of compensation to any person has been obtained by fraud, impersonation or other improper means, any amount so paid to or on behalf of such person may be recovered in the manner hereinafter provided in section 31.
Key takeaways:
It is an Act to provide for the payment by certain classes of employers to their employees of compensation for injury by accident. Whereas it is expedient to provide for the payment by certain classes of employers to their workmen of compensation for injury by accident.
It is an Act to regulate the employment and conditions of service of building and other construction workers and to provide for their safety, health and welfare measures and for other matters connected therewith or incidental thereto.
Central Advisory Committee (Section 3)
(1) The Central Government shall, as soon as may be, constitute a Committee to be called the Central Building and Other Construction Workers‘ Advisory Committee (hereinafter referred to as the Central Advisory Committee) to advise the Central Government on such matters arising out of the administration of this Act as may be referred to it.
(2) The Central Advisory Committee shall consist of—
(a) a Chairperson to be appointed by the Central Government;
(b) three Members of Parliament of whom two shall be elected by the House of the People and one by the Council of States—members;
(c) the Director-General—member, ex-officio;
(d) such number of other members, not exceeding thirteen but not less than nine, as the Central Government may nominate to represent the employers, building workers, associations or architects, engineers, accident insurance institutions and any other interests which, in the opinion of the Central Government, ought to be represented on the Central Advisory Committee.
(3) The number of persons to be appointed as members from each of the categories specified in clause (d) of sub-section (2), the term of office and other conditions of service of, the procedure to be followed in the discharge of their functions by, and the manner of filling vacancies among, the members of the Central Advisory Committee shall be such as may be prescribed: Provided that the members nominated to represent the building workers shall not be less than the number of members nominated to represent the employers.
(4) It is hereby declared that the office of member of the Central Advisory Committee shall not disqualify its holder for being chosen as, or for being, a Member of either House of Parliament.
State Advisory Committee (Section 4)
(1) The State Government shall constitute a committee to be called the State Building and Other Construction Workers Advisory Committee (hereinafter referred to as the State Advisory Committee) to advise the State Government on such matters arising out of the administration of this Act as may be referred to it. (2) The State Advisory Committee shall consist of—
(a) a Chairperson to be appointed by the State Government;
(b) two members of the State Legislature to be elected from the State Legislature—members;
(c) a member to be nominated by the Central Government;
(d) the Chief Inspector—member, ex-officio;
(e) such number of other members, not exceeding eleven, but not less than seven, as the State Government may nominate to represent the employers, building workers, associations of architects, engineers, accident insurance institutions and any other interests which, in the opinion of the State Government, ought to be represented on the State Advisory Committee.
(3) The number of persons to be appointed as members from each of the categories specified in clause (e) of sub-section (2), the term of office and other conditions of service of, the procedure to be followed in the discharge of their functions by, and the manner of filling vacancies among, the members of State Advisory Committee shall be such as may be prescribed: Provided that the number of members nominated to represent the building workers shall not be less than the number of members nominated to represent the employer.
Expert committees (Section 5)
(1) The appropriate Government may constitute one or more expert committees consisting of persons specially qualified in building and other construction work for advising that Government for making rules under this Act.
(2) The members of the expert committee shall be paid such fees and allowances for attending the meetings of the committee as may be prescribed.
Provided that no fee or allowances shall be payable to a member who is an officer of Government or of anybody corporate established by or under any law for the time being in force.
Registration of building workers as beneficiaries
Beneficiaries of the Fund (Section 11)
Subject to the provisions of this Act, every building worker registered as a beneficiary under this Act shall be entitled to the benefits provided by the Board from its Fund under this Act. 12. Registration of building workers as beneficiaries:
(1) Every building worker who has completed either eighteen years of age, but has not completed sixty years of age, and who has been engaged in any building or other construction work for not less than ninety days during the preceding twelve months shall be eligible for registration as a beneficiary under this Act.
(2) An application for registration shall be made in such form, as may be prescribed, to the officer authorised by the Board in this behalf.
(3) Every application under sub-section (2) shall be accompanied by such documents together with such fee not exceeding fifty rupees as may be prescribed.
(4) If the officer authorised by the Board under sub-section (2) is satisfied that the applicant has complied with the provisions of this Act and the rules made thereunder, he shall register the name of the building worker as beneficiary under this Act: Provided that an application for registration shall not be rejected without giving the applicant an opportunity of being heard.
(5) Any person aggrieved by the decision under sub-section (4) may, within thirty days from the date of such decision, prefer an appeal to the Secretary of the Board or any other officer specified by the Board in this behalf and the decision of the Secretary or such other officer on such appeal shall be final: Provided that the Secretary or any other officer specified by the Board in this behalf may entertain the appeal after the expiry of the said period of thirty days if he is satisfied that the building worker was prevented by sufficient cause from filing the appeal in time.
(6) The Secretary of the Board shall cause to maintain such registers as may be prescribed.
Identity cards (Section 13)
(1) The Board shall give to every beneficiary an identity card with his photograph duly affixed thereon and with enough space for entering the details of the building or other construction work done by him.
(2) Every employer shall enter in the identity card the details of the building or other construction work done by the beneficiary and authenticate the same and return it to the beneficiary.
(3) A beneficiary who has been issued an identity card under this Act shall produce the same whenever demanded by any officer of Government or the Board, any inspector or any other authority for inspection.
Cessation as a beneficiary (Section 14)
(1) A building worker who has been registered as a beneficiary under this Act shall cease to be as such when he attains the age of sixty years or when he is not engaged in building or other construction work for not less than ninety days in a year: Provided that in computing the period of ninety days under this sub-section, there shall be excluded any period of absence from the building or other construction work due to any personal injury caused to the building worker by accident arising out of and in the course of his employment.
(2) Notwithstanding anything contained in sub-section (1), if a person has been a beneficiary for at least three years continuously immediately before attaining the age of sixty years, he shall be eligible to get such benefits as may be prescribed.
Register of beneficiaries (Section 15)
Every employer shall maintain a register in such form as may be prescribed showing the details of employment of beneficiaries employed in the building or other construction work undertaken by him and the same may be inspected without any prior notice by the Secretary of the Board or any other officer duly authorised by the Board in this behalf.
Contribution of building workers (Section 16)
(1) A building worker who has been registered as a beneficiary under this Act shall, until he attains the age of sixty years, contribute to the Fund at such rate per mensem, as may be specified by the State Government, by notification in the Official Gazette and different rates of contribution may be specified for different classes of building workers: Provided that the Board may, if satisfied that a beneficiary is unable to pay his contribution due to any financial hardship, waive the payment of contribution for a period not exceeding three months at a time.
(2) A beneficiary may authorise his employer to deduct his contribution from his monthly wages and to remit the same, within fifteen days from such deduction, to the Board.
Effect of non-payment of contribution (Section 17)
When a beneficiary has not paid his contribution under sub-section (1) of section 16 for a continuous period of not less than one year, he shall cease to be a beneficiary.
Provided that if the Secretary of the Board is satisfied that the non-payment of contribution was for a reasonable ground and that the building worker is willing to deposit the arrears, he may allow the building worker to deposit the contribution in arrears and on such deposit being made, the registration of building worker shall stand restored.
Hours of work, welfare measures and other conditions of service of building workers
Fixing hours for normal working day, etc (Section 28)
(1) The appropriate Government may, by rules—
(a) fix the number of hours of work which shall constitute a normal working day for a building worker, inclusive of one or more specified intervals;
(b) provide for a day of rest in every period of seven days which shall be allowed to all building workers and for the payment of remuneration in respect of such days of rest;
(c) provide for payment of work on a day of rest at a rate not less than the overtime rate specified in section 29;
(2) The provisions of sub-section (1) shall, in relation to the following classes of building workers, apply only to such extent, and subject to such conditions, as may be prescribed, namely:
(a) persons engaged on urgent work, or in any emergency which could not have been foreseen or prevented;
(b) persons engaged in a work in the nature of preparatory or complementary work which must necessarily be carried on outside the normal hours of work laid down in the rules;
(c) persons engaged in any work which for technical reasons has to be completed before the day is over;
(d) persons engaged in a work which could not be carried on except at times dependent on the irregular action of natural forces.
Wages for overtime work (Section 29)
(1) Where any building worker is required to work on any day in excess of the number of hours constituting a normal working day, he shall be entitled to wages at the rate of twice his ordinary rate of wages.
(2) For the purposes of this section, ―ordinary rates of wages‖ means the basic wages plus such allowances as the worker is for the time being entitled to but does not include any bonus.
Maintenance of registers and records (Section 30)
(1) Every employer shall maintain such registers and records giving such particulars of building workers employed by him, the work performed by them, the number of hours of work which shall constitute a normal working day for them, a day of rest in every period of seven days which shall be allowed to them, the wages paid to them, the receipts given by them and such other particulars in such form as may be prescribed.
(2) Every employer shall keep exhibited, in such manner as may be prescribed, in the place where such workers may be employed, notices in the prescribed form containing the prescribed particulars.
(3) The appropriate Government may, by rules provide for the issue of wage books or wage slips to building workers employed in an establishment and prescribe the manner in which entries shall be made and authenticated in such wage books or wage slips by the employer or his agent.
Prohibition of employment of certain persons in certain building or other construction work (Section 31)
No person about whom the employer knows or has reason to believe that he is a deaf or he has a defective vision or he has a tendency to giddiness shall be required or allowed to work in any such operation of building or construction work which is likely to involve a risk of any accident either to the building worker himself or to any other person.
Drinking water (Section 32)
(1) The employer shall make in every place where building or other construction work is in progress, effective arrangements to provide and maintain at suitable points conveniently situated for all persons employed therein, a sufficient supply of wholesome drinking water.
(2) All such points shall be legibly marked ―Drinking Water‖ in a language understood by a majority of the persons employed in such place and no such point shall be situated within six metres of any washing place, urinal or latrine.
Latrines and urinals (Section 33)
In every place where building or other construction work is carried on, the employer shall provide sufficient latrine and urinal accommodation of such types as may be prescribed and they shall be so conveniently situated as may be accessible to the building workers at all times while they are in such place:
Accommodation (Section 34)
(1) The employer shall provide, free of charges and within the work site or as near to it as may be possible, temporary living accommodation to all building workers employed by him for such period as the building or other construction work is in progress.
(2) The temporary accommodation provided under sub-section (1) shall have separate cooking place, bathing, washing and lavatory facilities.
(3) As soon as may be, after the building or other construction work is over, the employer shall, at his own cost, cause removal or demolition of the temporary structures erected by him for the purpose of providing living accommodation, cooking place or other facilities to the building workers as required under sub-section (1) and restore the ground in good level and clean condition.
(4) In case an employer is given any land by a Municipal Board or any other local authority for the purposes of providing temporary accommodation for the building workers under this section, he shall, as soon as may be after the construction work is over, return the possession of such land in the same condition in which he received the same.
Creches (Section 35)
(1) In every place wherein, more than fifty female building workers are ordinarily employed, there shall be provided and maintained a suitable room or rooms for the use of children under the age of six years of such female workers.
(2) Such rooms shall—
(a) provide adequate accommodation;
(b) be adequately lighted and ventilated;
(c) be maintained in a clean and sanitary condition;
(d) be under the charge of women trained in the care of children and infants.
First aid (Section 36)
Every employer shall provide in all the places where building or other construction work is carried on such first-aid facilities as may be prescribed.
Canteens, etc. (Section 37)
The appropriate Government may, by rules, require the employer— (a) to provide and maintain in every place wherein not less than two hundred and fifty building workers are ordinarily employed, a canteen for the use of the workers; (b) to provide such other welfare measures for the benefit of building workers as may be prescribed.
Safety and health measures
Power of appropriate Government to make rules for the safety and health of building workers (Section 40)
(1) The appropriate Government may, by notification, make rules regarding the measures to be taken for the safety and health of building workers in the course of their employment and the equipment and appliances necessary to be provided to them for ensuring their safety, health and protection, during such employment.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely—
(a) the safe means of access to, and the safety of, any working place, including the provision of suitable and sufficient scaffolding at various stages when work cannot be safely done from the ground or from any part of a building or from a ladder or such other means of support;
(b) the precautions to be taken in connection with the demolition of the whole or any substantial part of a building or other structure under the supervision of a competent person and the avoidance of danger from collapse of any building or other structure while removing any part of the framed building or other structure by shoring or otherwise;
(c) the handling or use of explosive under the control of competent persons so that there is no exposure to the risk of injury from explosion or from flying material;
(d) the erection, installation, use and maintenance of transporting equipment, such as locomotives, trucks, wagons and other vehicles and trailers and appointment of competent persons to drive or operate such equipment;
(e) the erection, installation, use and maintenance of hoists, lifting appliances and lifting gear including periodical testing and examination and heat treatment, where necessary, precautions to be taken while raising or lowering loads, restrictions on carriage of persons and appointment of competent persons on hoists or other lifting appliances;
(f) the adequate and suitable lighting of every workplace and approach thereto, of every place where raising or lowering operations with the use of hoists, lifting applilances or lifting gears are in progress and of all openings dangerous to building workers employed;
(g) the precautions to be taken to prevent inhalation of dust, fumes, gases or vapours during any grinding, cleaning, spraying or manipulation of any material and steps to be taken to secure and maintain adequate ventilation of every working place or confined place;
(h) the precautions to be taken during stacking or unstacking, stowing or unstowing of materials or goods or handling in connection therewith;
(i) the safeguarding of machinery including the fencing of every flywheel and every moving part of prime mover and every part of transmission or other machinery, unless it is in such a position or of such construction as to be safe to every worker working on any of the operations and as if it were securely fenced; (j) the safe handling and use of plant, including tools and equipment operated by compressed air;
(k) the precautions to be taken in case of fire;
(l) the limits of weight to be lifted or moved by workers;
(m) the safe transport of workers to or from any work place by water and provision of means for rescue from drowning;
(n) the steps to be taken to prevent danger to workers from live electric wires or apparatus including electrical machinery and tools and from overhead wires;
(o) the keeping of safety nets, safety sheets and safety belts where the special nature or the circumstances of work render them necessary for the safety of the workers;
(p) the standards to be complied with regard to scaffolding, ladders and stairs, lifting appliances, ropes, chains and accessories, earth-moving equipments and floating operational equipments;
(q) the precautions to be taken with regard to pile driving, concrete work, work with hot asphalt, tar or other similar things, insulation work, demolition operations, excavation, underground construction and handling materials;
(r) the safety policy, that is to say, a policy relating to steps to be taken to ensure the safety and health of the building workers, the administrative arrangements therefor and the matters connected therewith, to be framed by the employers and contractors for the operations to be carried on in a building or other construction work;
(s) the information to be furnished to the Bureau of Indian Standards established under the Bureau of Indian Standards Act, 1986 (63 of 1986), regarding the use of any article or process covered under that Act in a building or other construction work;
(t) the provision and maintenance of medical facilities for building workers;
(u) any other matter concerning the safety and health of workers working in any of the operations being carried on in a building or other construction work.
Key takeaways:
It is an Act to regulate the employment and conditions of service of building and other construction workers and to provide for their safety, health and welfare measures and for other matters connected therewith or incidental thereto.
It is an Act to establish the Real Estate Regulatory Authority for regulation and promotion of the real estate sector and to ensure sale of plot, apartment or building, as the case may be, or sale of real estate project, in an efficient and transparent manner and to protect the interest of consumers in the real estate sector and to establish an adjudicating mechanism for speedy dispute redressal and also to establish the Appellate Tribunal to hear appeals from the decisions, directions or orders of the Real Estate Regulatory Authority and the adjudicating officer and for matters connected therewith or incidental thereto.
Registration of real estate project and registration of real estate agents
Prior registration of real estate project with Real Estate Regulatory Authority (3)
(1) No promoter shall advertise, market, book, sell or offer for sale, or invite persons to purchase in any manner any plot, apartment or building, as the case may be, in any real estate project or part of it, in any planning area, without registering the real estate project with the Real Estate Regulatory Authority established under this Act:
Provided that projects that are ongoing on the date of commencement of this Act and for which the completion certificate has not been issued, the promoter shall make an application to the Authority for registration of the said project within a period of three months from the date of commencement of this Act: Provided further that if the Authority thinks necessary, in the interest of allottees, for projects which are developed beyond the planning area but with the requisite permission of the local authority, it may, by order, direct the promoter of such project to register with the Authority, and the provisions of this Act or the rules and regulations made the reunder, shall apply to such projects from that stage of registration.
(2) Notwithstanding anything contained in sub-section (1), no registration of the real estate project shall be required—
(a) where the area of land proposed to be developed does not exceed five hundred square meters or the number of apartments proposed to be developed does not exceed eight inclusive of all phases: Provided that, if the appropriate Government considers it necessary, it may, reduce the threshold below five hundred square meters or eight apartments, as the case may be, inclusive of all phases, for exemption from registration under this Act;
(b) where the promoter has received completion certificate for a real estate project prior to commencement of this Act;
(c) for the purpose of renovation or repair or re-development which does not involve marketing, advertising selling or new allotment of any apartment, plot or building, as the case may be, under the real estate project.
Application for registration of real estate projects (Section 4)
(1) Every promoter shall make an application to the Authority for registration of the real estate project in such form, manner, within such time and accompanied by such fee as may be specified by the regulations made by the Authority.
(2) The promoter shall enclose the following documents along with the application referred to in sub-section (1), namely:
(a) A brief detail of his enterprise including its name, registered address, type of enterprise (proprietorship, societies, partnership, companies, competent authority), and the particulars of registration, and the names and photographs of the promoter;
(b) A brief detail of the projects launched by him, in the past five years, whether already completed or being developed, as the case may be, including the current status of the said projects, any delay in its completion, details of cases pending, details of type of land and payments pending;
(c) An authenticated copy of the approvals and commencement certificate from the competent authority obtained in accordance with the laws as may be applicable for the real estate project mentioned in the application, and where the project is proposed to be developed in phases, an authenticated copy of the approvals and commencement certificate from the competent authority for each of such phases;
(d) The sanctioned plan, layout plan and specifications of the proposed project or the phase thereof, and the whole project as sanctioned by the competent authority;
(e) The plan of development works to be executed in the proposed project and the proposed facilities to be provided thereof including fire fighting facilities, drinking water facilities, emergency evacuation services, use of renewable energy;
(f) The location details of the project, with clear demarcation of land dedicated for the project along with its boundaries including the latitude and longitude of the end points of the project;
(g) Proforma of the allotment letter, agreement for sale, and the conveyance deed proposed to be signed with the allottees;
(h) The number, type and the carpet area of apartments for sale in the project along with the area of the exclusive balcony or verandah areas and the exclusive open terrace areas apartment with the apartment, if any;
(i) The number and areas of garage for sale in the project;
(j) The names and addresses of his real estate agents, if any, for the proposed project;
(k) The names and addresses of the contractors, architect, structural engineer, if any and other persons concerned with the development of the proposed project;
(l) A declaration, supported by an affidavit, which shall be signed by the promoter or any person authorised by the promoter, stating:
(A) that he has a legal title to the land on which the development is proposed along with legally valid documents with authentication of such title, if such land is owned by another person;
(B) that the land is free from all encumbrances, or as the case may be details of the encumbrances on such land including any rights, title, interest or name of any party in or over such land along with details;
(C) the time period within which he undertakes to complete the project or phase thereof, as the case may be;
(D) that seventy per cent. Of the amounts realised for the real estate project from the allottees, from time to time, shall be deposited in a separate account to be maintained in a scheduled bank to cover the cost of construction and the land cost and shall be used only for that purpose:
Provided that the promoter shall withdraw the amounts from the separate account, to cover the cost of the project, in proportion to the percentage of completion of the project: Provided further that the amounts from the separate account shall be withdrawn by the promoter after it is certified by an engineer, an architect and a chartered accountant in practice that the withdrawal is in proportion to the percentage of completion of the project:
Provided also that the promoter shall get his accounts audited within six months after the end of every financial year by a chartered accountant in practice, and shall produce a statement of accounts duly certified and signed by suchchartered accountant and it shall be verified during the audit that the amounts collected for a particular project have been utilised for the project and the withdrawal has been in compliance with the proportion to the percentage of completion of the project.
The Authority shall operationalise a web based online system for submitting applications for registration of projects within a period of one year from the date of its establishment.
Grant of registration (Section 5)
(1) On recipt of the application under sub-section (1) of section 4, the Authority shall within a period of thirty days.
(a) grant registration subject to the provisions of this Act and the rules and regulations made thereunder, and provide a registration number, including a Login Id and password to the applicant for accessing the website of the Authority and to create his web page and to fill therein the details of the proposed project; or
(b) reject the application for reasons to be recorded in writing,if such application does not conform to the provisions of this Act or the rules or regulations made thereunder: Provided that no application shall be rejected unless the applicant has been given an opportunity of being heard in the matter.
(2) If the Authority fails to grant the registration or reject the application, as the case may be, as provided under sub-section (1), the project shall be deemed to have been registered, and the Authority shall within a period of seven days of the expiry of the said period of thirty days specified under sub-section (1), provide a registration number and a Login Id and password to the promoter for accessing the website of the Authority and to create his web page and to fill therein the details of the proposed project.
(3) The registration granted under this section shall be valid for a period declared by the promoter under sub-clause (C) of clause (1) of sub-section (2) of section 4 for completion of the project or phase thereof, as the case may be.
Registration of real estate agents (Section 9)
(1) No real estate agent shall facilitate the sale or purchase of or act on behalf of any person to facilitate the sale or purchase of any plot, apartment or building, as the case may be, in a real estate project or part of it, being the part of the real estate project registered under section 3, being sold by the promoter in any planning area, without obtaining registration under this section.
(2) Every real estate agent shall make an application to the Authority for registration in such form, manner, within such time and accompanied by such fee and documents as may be prescribed.
(3) The Authority shall, within such period, in such manner and upon satisfying itself of the fulfillment of such conditions, as may be prescribed—
(a) grant a single registration to the real estate agent for the entire State of Union territory, as the case may be;
(b) reject the application for reasons to be recorded in writing, if such application does not conform to the provisions of the Act or the rules or regulations made thereunder: Provided that no application shall be rejected unless the applicant has been given an opportunity of being heard in the matter.
(4) Whereon the completion of the period specified under sub-section (3), if the applicant does not receive any communication about the deficiencies in his application or the rejection of his application, he shall be deemed to have been registered.
(5) Every real estate agent who is registered as per the provisions of this Act or the rules and regulations made thereunder, shall be granted a registration number by the Authority, which shall be quoted by the real estate agent in every sale facilitated by him under this Act.
(6) Every registration shall be valid for such period as may be prescribed, and shall be renewable for a period in such manner and on payment of such fee as may be prescribed.
(7) Where any real estate agent who has been granted registration under this Act commits breach of any of the conditions thereof or any other terms and conditions specified under this Act or any rules or regulations made thereunder, or where the Authority is satisified that such registration has been secured by the real estate agent through misrepresentation or fraud, the Authority may, without prejudice to any other provisions under this Act, revoke the registration or suspend the same for such period as it thinks fit:
Provided that no such revocation or suspension shall be made by the Authority unless an opportunity of being heard has been given to the real estate agent.
Functions and duties of promoter (Section 11)
(1) The promoter shall, upon receiving his Login Id and password under clause (a) of sub-section (1) or under sub-section (2) of section 5, as the case may be, create his web page on the website of the Authority and enter all details of the proposed project as provided under sub-section (2) of section 4, in all the fields as provided, for public viewing, including—
(a) details of the registration granted by the Authority;
(b) quarterly up-to-date the list of number and types of apartments or plots, as the case may be, booked;
(c) quarterly up-to-date the list of number of garages booked;
(d) quarterly up-to-date the list of approvals taken and the approvals which are pending subsequent to commencement certificate;
(e) quarterly up-to-date status of the project; and
f) such other information and documents as may be specified by the regulations made by the Authority.
(2) The advertisement or prospectus issued or published by the promoter shall mention prominently the website address of the Authority, wherein all details of the registered project have been entered and include the registration number obtained from the Authority and such other matters incidental thereto.
(3) The promoter at the time of the booking and issue of allotment letter shall be responsible to make available to the allottee, the following information, namely:
(a) sanctioned plans, layout plans, along with specifications, approved by the competent authority, by display at the site or such other place as may be specified by the regulations made by the Authority;
(b) the stage wise time schedule of completion of the project, including the provisions for civic infrastructure like water, sanitation and electricity
(4) The promoter shall:
(a) be responsible for all obligations, responsibilities and functions under the provisions of this Act or the rules and regulations made thereunder or to the allottees as per the agreement for sale, or to the association of allottees, as the case may be, till the conveyance of all the apartments, plots or buildings, as the case may be, to the allottees, or the common areas to the association of allottees or the competent authority, as the case may be: Provided that the responsibility of the promoter, with respect to the structural defect or any other defect for such period as is referred to in sub-section (3) of section 14, shall continue even after the conveyance deed of all the apartments, plots or buildings, as the case may be, to the allottees are executed.
(b) be responsible to obtain the completion certificate or the occupancy certificate, or both, as applicable, from the relevant competent authority as per local laws or other laws for the time being in force and to make it available to the allottees individually or to the association of allottees, as the case may be;
(c) be responsible to obtain the lease certificate, where the real estate project is developed on a leasehold land, specifying the period of lease, and certifying that all dues and charges in regard to the leasehold land has been paid, and to make the lease certificate available to the association of allottees;
(d) be responsible for providing and maintaining the essential services, on reasonable charges, till the taking over of the maintenance of the project by the association of the allottees;
(e) enable the formation of an association or society or co-operative society, as the case may be, of the allottees, or a federation of the same, under the laws applicable: Provided that in the absence of local laws, the association of allottees, by whatever name called, shall be formed within a period of three months of the majority of allottees having booked their plot or apartment or building, as the case may be, in the project;
(f) execute a registered conveyance deed of the apartment, plot or building, as the case may be, in favour of the allottee along with the undivided proportionate title in the common areas to the association of allottees or competent authority, as the case may be, as provided under section 17 of this Act;
(g) pay all outgoings until he transfers the physical possession of the real estate project to the allottee or the associations of allottees, as the case may be, which he has collected from the allottees, for the payment of outgoings.
(5) The promoter may cancel the allotment only in terms of the agreement for sale: Provided that the allottee may approach the Authority for relief, if he is aggrieved by such cancellation and such cancellation is not in accordance with the terms of the agreement for sale, unilateral and without any sufficient cause. (6) The promoter shall prepare and maintain all such other details as may be specified, from time to time, by regulations made by the Authority.
Obligations of promoter in case of transfer of a real estate project to a third party (Section 15)
(1) The promoter shall not transfer or assign his majority rights and liabilities in respect of a real estate project to a third party without obtaining prior written consent from two-third allottees, except the promoter, and without the prior written approval of the Authority:
Provided that such transfer or assignment shall not affect the allotment or sale of the apartments, plots or buildings as the case may be, in the real estate project made by the erstwhile promoter.
(2) On the transfer or assignment being permitted by the allottees and the Authority under sub-section (1), the intending promoter shall be required to independently comply with all the pending obligations under the provisions of this Act or the rules and regulations made thereunder, and the pending obligations as per the agreement for sale entered into by the erstwhile promoter with the allottees:
Provided that any transfer or assignment permitted under provisions of this section shall not result in extension of time to the intending promoter to complete the real estate project and he shall be required to comply with all the pending obligations of the erstwhile promoter, and in case of default, such intending promoter shall be liable to the consequences of breach or delay, as the case may be, as provided under this Act or the rules and regulations made thereunder.
Obligations of promoter regarding insurance of real estate project (Section 16)
(1) The promoter shall obtain all such insurances as may be notified by the appropriate Government, including but not limited to insurance in respect of — (i) Title of the land and building as a part of the real estate project; and
(ii) Construction of the real estate project.
(2) The promoter shall be liable to pay the premium and charges in respect of the insurance specified in sub-section (1) and shall pay the same before transferring the insurance to the association of the allottees.
(3) The insurance as specified under sub-section (1) shall stand transferred to the benefit of the allottee or the association of allottees, as the case may be, at the time of promoter entering into an agreement for sale with the allottee.
(4) On formation of the association of the allottees, all documents relating to the insurance specified under sub-section (1) shall be handed over to the association of the allottees.
Transfer of title (Section 17)
(1) The promoter shall execute a registered conveyance deed in favour of the allottee along with the undivided proportionate title in the common areas to the association of the allottees or the competent authority, as the case may be, and hand over the physical possession of the plot, apartment of building, as the case may be, to the allottees and the common areas to the association of the allottees or the competent authority, as the case may be, in a real estate project, and the other title documents pertaining thereto within specified period as per sanctioned plans as provided under the local laws: Provided that, in the absence of any local law, conveyance deed in favour of the allottee or the association of the allottees or the competent authority, as the case may be, under this section shall be carried out by the promoter within three months from date of issue of occupancy certificate.
(2) After obtaining the occupancy certificate and handing over physical possession to the allottees in terms of sub-section (1), it shall be the responsibility of the promoter to handover the necessary documents and plans, including common areas, to the association of the allottees or the competent authority, as the case may be, as per the local laws:
Provided that, in the absence of any local law, the promoter shall handover the necessary documents and plans, including common areas, the association of the allottees or the competent authority, as the case may be, within thirty days after obtaining the occupancy certificate.
Key takeaways:
It is an Act to establish the Real Estate Regulatory Authority for regulation and promotion of the real estate sector and to ensure sale of plot, apartment or building, as the case may be, or sale of real estate project, in an efficient and transparent manner and to protect the interest of consumers in the real estate sector and to establish an adjudicating mechanism for speedy dispute red ressal
The National Building Code of India (NBC), a comprehensive building Code, is a national instrument providing guidelines for regulating the building construction activities across the country. It serves as a Model Code for adoption by all
agencies involved in building construction works be they Public Works Departments, other government construction departments, local bodies or private construction agencies. The Code mainly contains administrative regulations, development control rules and general building requirements; fire safety requirements; stipulations regarding materials, structural design and
construction (including safety); building and plumbing services; approach to sustainability; and asset and facility management. The Code was first published in 1970 at the instance of Planning Commission and then first revised in 1983. Thereafter three major amendments were issued to the 1983 version, two in 1987 and the third in 1997. The second revision of the Code
was in 2005, to which two amendments were issued in 2015.Due to large scale changes in the building construction activities, such as change in nature of occupancies with prevalence of high rises and mixed occupancies, greater dependence and complicated nature of building services, development of new/innovative construction materials and technologies, greater need for preservation of environment and recognition of need for planned management
of existing buildings and built environment, there has been a paradigm shift in building construction scenario. Considering these, a Project for comprehensive revision of the Code was taken up under the aegis of the National Building Code Sectional Committee, CED 46 of BIS and its 22 expert Panels; involving around 1 000 experts. As a culmination of the Project, the revised
Code has been brought out in 2016 as National Building Code of India 2016 reflecting the state-of-the-art and contemporary applicable international practices.
The major changes incorporated in this third revision of the Code are as follows:
a) Provisions for association of need based professionals and agencies have been updated to ensure proper discharge of responsibilities for accomplishment of building project.
b) With a view to ensuring ease of doing business in built environment sector, a detailed provision for streamlining the approval process in respect of different agencies has been incorporated in the form of an integrated approval process through single window approach for enabling expeditious approval process, avoiding separate clearances from various authorities.
c) Further, with a view to meeting the above objective, the provision on
computerization of approval process has been detailed, enabling online submission of plans, drawings and other details, and sanction thereof, aiding in speedier approval process.
d) The mechanism of ensuring certification of structural safety of buildings by the competent professional and peer review of design of buildings, have been further strengthened.
e) Requirements for accessibility in buildings and built environment for persons with disabilities and the elderly have been thoroughly revised and updated.
f) Provisions on fire and life safety have been thoroughly revised to meet the challenges of modern complex building types including the high rises.
g) Latest structural loading and design and construction codes including those relating to wind load, earthquake resistant design of buildings, steel design and foundations have been incorporated with a view to ensuring structural safety of buildings including against a disaster.
h) Provisions relating to all building and plumbing services have been updated keeping also in view the latest international practices as related to the country.
j) Provisions have been updated to ensure utilization of number of
new/alternative building materials and technologies to provide for innovation in the field of building construction.
k) Construction management guidelines have been incorporated to aid in timely completion of building projects with desired quality in a safe manner within the budgeted cost.
m) Guidance has been provided for making buildings and built environment energy efficient and environmentally compatible, through the newly introduced and updated chapter on sustainability, namely Part 11 ‘Approach to Sustainability’
n) New chapters have been added on structural use of glass; escalators and moving walks; information and communication enabled installations; solid waste management; and asset and facility management.
Key takeaways:
The National Building Code of India (NBC), a comprehensive building Code, is a national instrument providing guidelines for regulating the building construction activities across the country
References:
1. B.S. Patil, Legal Aspects of Building and Engineering Contracts, 1974.
2. The National Building Code, BIS, 2017
3. RERA Act, 2017
4. Meena Rao (2006), Fundamental concepts in Law of Contract, 3rd Edn. Professional Offset
5. Neelima Chandiramani (2000), The Law of Contract: An Outline, 2nd Edn. Avinash Publications Mumbai
6. Avtarsingh (2002), Law of Contract, Eastern Book Co.
7. Dutt (1994), Indian Contract Act, Eastern Law House
8. Anson W.R. (1979), Law of Contract, Oxford University Press.
