Provisions in Standard Bidding Document

Safeguard of women andchildren

Provisions in Standard Bidding Document

The Standard Bidding Document for Pradhan Mantri Gram Sadak Yojana provides for mandatory observance of existing Labour Laws. The provisions relating to safeguard of women and children engaged in construction activity are given in various labour laws. Clause 57 of General Conditions of Contract is reproduced below.

57.COMPLIANCE WITH LABOUR REGULATIONS

57.1During continuance of the Contract, the Contractor and his sub Contractors shall abide at all times by all existing labour enactments and rules made there under, regulations, notifications and bye laws of the State or Central Government or local authority and any other labour law (including rules), regulations, bye laws that may be passed or notification that may be issued under any labour law in future either by the State or the Central Government or the local authority. Salient features of some of the major labour laws that are applicable to construction industry are given in Appendix to Part I General Condition of Contract. The Contractor shall keep the Employer indemnified in case any action is taken against the Employer by the competent authority on account of contravention of any of the provisions of any Act or rules made there under, regulations or notifications including amendments. If the Employer is caused to pay or reimburse, such amounts as may be necessary to cause or observe, or for non-observance of the provisions stipulated in the notifications/bye laws/Acts/Rules/regulations including amendments, if any, on the part of the Contractor, the Engineer/Employer shall have the right to deduct any money due to the Contractor including his amount of performance security. The Employer/Engineer shall also have right to recover from the Contractor any sum required or estimated to be required for making good the loss or damage suffered by the Employer.

The employees of the Contractor and the Sub-Contractor in no case shall be treated as the employees of the Employer at any point of time.

The appendix to part –I General Conditions of Contract gives salient features of some major labour laws applicable to establishments engaged in building and other construction work the appendix is reproduced below.

Appendix to Part I General Condition of Contract

SALIENT FEATURES OF SOME MAJOR LABOUR LAWS APPLICABLE TO ESTABLISHMENTS ENGAGED IN BUILDING AND OTHER CONSTRUCTION WORK.

a)Workmen Compensation Act 1923: -The Act provides for compensation in case of injury by accident arising out of and during the course of employment.

b)Payment of Gratuity Act 1972: - Gratuity is payable to an employee under the Act on satisfaction of certain conditions on separation if an employee has completed the prescribed minimum years (say, five years) of service or more or on death the rate of prescribed minimum days’(say, 15 days) wages for every completed year of service. The Act is applicable to all establishments employing the prescribed minimum number (say, 10) or more employees.

c)Employees P.F. and Miscellaneous Provision Act 1952: The Act Provides for monthly contributions by the Employer plus workers at the rate prescribed (say, 10% or 8.33%). The benefits payable under the Act are:

Pension or family pension on retirement or death as the case may be.
Deposit linked insurance on the death in harness of the worker.
Payment of P.F. accumulation on retirement/death etc.

d)Maternity Benefit Act 1961: - The Act provides for leave and some other benefits to women employees in case of confinement or miscarriage etc.

e)Contract Labour (Regulation & Abolition) Act 1970: - The Act provides for certain welfare measures to be provided by the Contractor to contract labour and in case the Contractor fails to provide, the same are required to be provided, by the Principal Employer by Law. The principal Employer is required to take Certificate of Registration and the Contractor is required to take license from the designated Officer. The Act is applicable to the establishments or Contractor of Principal Employer if they employ prescribed minimum (say 20) or more contract labour.

f)Minimum Wages Act 1948: - The Employer is to pay not less than the Minimum Wages fixed by appropriate Government as per provisions of the Act if the employment is a scheduled employment. Construction of buildings, roads, runways are scheduled employment.

g)Payment of Wages Act 1936: - It lays down as to by what date the wages are to be paid, when it will be paid and what deductions can be made from the wages of the workers.

h)Equal Remuneration Act 1976: - The Act provides for payment of equal wages for work of equal nature to male and female workers and for not making discrimination against female employees in the matters of transfers, training and promotions etc.

i)Payment of Bonus Act 1965: - The Act is applicable to all establishments employing prescribed minimum (say, 20) or more workmen. The Act provides for payments of annual bonus within the prescribed range of percentage of wages to employees drawing up to the prescribed amount of wages, calculated in the prescribed manner. The Act does not apply to certain establishments. The newly set-up establishments are exempted for five years in certain circumstances. States may have different number of employment size.

j)Industrial Disputes Act 1947: - The Act lays down the machinery and procedure for resolution of industrial disputes, in what situations a strike or lock-out becomes illegal and what are the requirements for laying off or retrenching the employees or closing down the establishment.

k)Industrial Employment (Standing Orders) Act 1946: - It is applicable to all establishments employing prescribed minimum (say, 100, or 50). The Act provides for laying down rules governing the conditions of employment by the Employer on matters provided in the Act and get these certified by the designated Authority.

l)Trade Unions Act 1926: - The Act lays down the procedure for registration of trade unions of workmen and Employers. The Trade Unions registered under the Act have been given certain immunities from civil and criminal liabilities.

m)Child Labour (Prohibition & Regulation) Act 1986: - The Act prohibits employment of children below 14 years of age in certain occupations and processes and provides for regulations of employment of children in all other occupations and processes. Employment of child labour is prohibited in building and construction industry.

n)Inter-State Migrant Workmen’s (Regulation of Employment & Conditions of Service) Act 1979: - The Act is applicable to an establishment which employs prescribed minimum (say, five) or more inter-state migrant workmen through an intermediary (who has recruited workmen in one state for employment in the establishment situated in another state). The Inter-State migrant workmen, in an establishment to which this Act becomes applicable, are required to be provided certain facilities such as Housing, Medical-Aid, Travelling expenses from home up to the establishment and back etc.

o)The Building and Other Construction workers (Regulation of Employment and Conditions of Service) Act 1996 and the Cess Act of 1996: - All the establishments who carry on any building or other construction work and employs the prescribed minimum (say, 10) or more workers are covered under this Act. All such establishments are required to pay cess at the rate not exceeding 2% of the cost of construction as may be modified by the Government. The Employer of the establishment is required to provide safety measures at the building or construction work and other welfare measures, such as canteens, first-aid facilities, ambulance, housing accommodations for workers near the work place etc. The Employer to whom the Act applies has to obtain a registration certificate from the Registering Officer appointed by the Government.

p)Factories Act 1948: - The Act lays down the procedure for approval of plans before setting up a factory, health and safety provisions, welfare provisions, working hours, annual earned leave and rendering information regarding accidents or dangerous occurrences to designated authorities. It is applicable to premises employing the prescribed minimum (say, 10) persons or more with aid of power or another prescribed minimum (say, 20) or more persons without the aid of power engaged in manufacturing process

The brief abstract of provisions relating to safeguard of Women Workers / Child Labour in the Standard Bidding Document is given in the table below.

Provisions for Safeguard of Women Workers/Child Labour in the

Standard Bidding Document

(Reference: Appendix to Part-I of General Conditions of Contracts)

# / Act / Section / General Provision
1. / Workmen’s Compensation Act / - /

Compensation to Workman including Women workers for injury by accident.

2. / Maternity Benefit Act 1961 / - /

Maternity Benefits Extended to workers

3. / Equal Remuneration Act 1976 / 4 &7- /

Equal remuneration to Male and female worker for same work. No discrimination in employment on the basis of gender.

4. / Building and other construction workers(Regulation of Employment and conditions of Service)Act 1996 and Cess Act 1996 / Chapter VI, Part-III ChapterVI,VII /

Provision of Crèchesfor children of women workers.
Restriction on the weight of loads to be lifted and carried by women workers.
Provision of accommodation facilities.
Emergency care (including gynecological emergencies).

5. / Payment of Gratuity Act 1972 / 2, 2A /

Same benefits for male and female workers.

6 / i) InterState migrant workmen Act 1979 / Chapter VI & VII /

Application of Labour Laws – same for female workers

ii) Central Rule 1980 / Chapter II /

No female migrant workmen shall be employed by any Contractor before 6 am or after 7 pm

Chapter V /

Separate and adequate washing and screening facilities shall be provided for the use of male and female workers.
Crèche facility also for migrant female workers.

7 / The Child Labour (Provisions and Regulation Act), 1986 / Section 3 /

Prohibition of employment of children in construction industry.

8. / The Factories Act 1948 / Chapter III /

Separate enclosed accommodation to be provided for male and female workers.

Chapter-V /

Separate and adequately screened working facilities shall be provided for the use of male and female workers.
Separate suitable room for children with adequate facilities.

Chapter VI Para (66) /

Restriction on working hours – No woman shall be required or allowed to work in any factory except between the hours 6 am to 7 pm.

9. / The Industrial Employment (Standing orders) Central Rule 1946 / Rule 14 /

Penalty for sexual harassment by any worker

The abstract of some provisions in some of the applicable laws is given below.

Workmen’s Compensation Act

CHAPTER – II

WORKMEN’S COMPENSATION

3. Employer's liability for compensation. - (1) If personal injury is caused to a workman 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 –

1)in respect of any injury which does not result in thetotal or partial disablement of the workman for aperiod exceeding [three] days;

2)in respectof any[injury, not resulting in death,caused by] an accident which is directly attributableto –

(i)the workman having been at the time thereofunder the influence of drink or drugs, or

(ii)the wilful disobedience of the workman to anorder expressly given, or to a rule expressly framed,for the purpose of securing the safety of workmen, or

(iii)the wilful removal or disregard by theworkman of any safety guard or other device which heknew to have been provided for the purpose of securingthe safety of workmen.

[(2) If a workman employed in any employment specified in PartA of Schedule III contracts any disease specified therein as an occupational disease peculiar to that employment, or if a workman,whilst in the service of an employer in whose service he has beenemployed for a continuous period of not less than six months (whichperiod shall not include a period of service under any other employerin the same kind of employment) in any employment specified in Part Bof Schedule III, contracts any disease specified therein as anoccupational disease peculiar to that employment, or if a workmanwhilst in the service of one or more employers in any employmentspecified in Part C of Schedule III for such continuous period as theCentral Government may specify in respect of each such employment,contracts any disease specified therein as an occupational diseasepeculiar to that employment, the contracting of the disease shall bedeemed to be an injury by accident within the meaning of this sectionand, unless the contrary is proved, the accident shall be deemed tohave arisen out of, and in the course of, the employment:

[Provided that if it is proved,--

(a)that a workman whilst in the service of one or more employers in any employment specified in Part C ofSchedule III has contracted a disease specified therein as an occupational disease peculiar to that employmentduring a continuous period which is less than theperiod specified under this sub-section for that employment, and

(b)that the disease has arisen out of and in the course ofthe employment, the contracting of such disease shall be deemed to be an injury byaccident within the meaning of this section:

Provided further thatif it is proved that a workman who havingserved under any employer in any employment specified in Part B ofSchedule III or who having served under one or more employers in anyemployment specified in Part C of that Schedule, for a continuous period specified under this sub-section for that employment and he hasafter the cessation of such service contracted any disease specifiedin the said Part B or the said Part C, as the case may be, as anoccupational disease peculiar to the employment and that such diseasearose out of the employment, the contracting of the disease shall bedeemed to be an injury by accident within the meaning of thissection.]

[(2A) If a workman employed in any employment specified in PartC of Schedule III contracts any occupational disease peculiar to that employment, the contracting whereof is deemed to be an injury by accident within the meaning of this section, and such employmentwas under more than one employer, all such employers shall be liablefor the payment of the compensation in such proportion as the Commissioner may, in the circumstances, deem just.]

(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 occupationaldiseases peculiar to those employments.]

(4)Save asprovided by [sub-sections (2), (2A)] and (3), nocompensation shall bepayable to a workman 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 workman 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 workman in any Court of law in respect of any injury –

(a)if he has instituted a claim to compensation in respectof the injury before a Commissioner; or

(b)if an agreement has been come to between the workman and his employer providing for the payment of compensation in respect of the injury in accordance with theprovisions of this Act.

Maternity Benefit Act 1961

2. Application of Act. - [(1) It applies, in the first instance, -

(a) to every establishment being a factory, mine or plantation including any such establishment belonging to Government and to every establishment wherein persons are employed for the exhibition of equestrian, acrobatic and other performances;

(b) to every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months:]

Provided that the State Government may, with the approval of the Central Government, after giving not less than two months' notice of its intention of so doing, by notification in the Official Gazette, declare that all or any of the provisions of this Act shall apply also to any other establishment or class of establishments, industrial, commercial, agricultural or otherwise.

(2) [Save as otherwise provided in [sections 5A and 5B], nothing contained in this Act] shall apply to any factory or other establishment to which the provisions of the Employees' State Insurance Act, 1948 (34 of 1948), apply for the time being.

Employment of or work by, women prohibited during certain periods.-(1) No employer shall knowingly employ a woman in any establishment during the six weeks immediately following the day of her delivery, [miscarriage or medical termination of pregnancy].

(2)No women shall work in any establishment during the six weeks immediately following the day of her delivery [miscarriage or medical termination or pregnancy].

(3)Withoutprejudice to the provisions of Section 6, no pregnant women shall, on a request being made by her in this behalf, be required by her employer to do during the period specified in sub-section (4) any work which is of an arduous nature or which involves long hours of standing, or which in any way is likely to interfere with her pregnancy or the normal development of the foetus, or is likely to cause her miscarriage or otherwise to adversely affect her health.

(4)The period referred to in sub-section (3) shall be-

(a)the period of one months immediately preceding the period of six weeks, before the date of her expected delivery;

(b)any period during the said period of six weeks for which the pregnant woman does not avail of leave of absence under Section 6.

Right to payment of maternity benefits.-[ [(1) Subject to the provisions of this Act, every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit at the rate of the average daily wage for the period of her actual absence, that is to say, the period immediately preceding the day of her delivery, the actual day of her delivery and any period immediately following that day.] ]

Explanation.-For the purpose of this sub-section, the average daily wage means the average of the woman's wages payable to her for the days on which she has worked during the period of three calendar months immediately preceding the date from which she absents herself on account of maternity, [the minimum rate of wage fixed or revised under the Minimum Wages Act, 1948 (11 of 1948) or ten rupees, whichever is the highest].