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Tuesday, November 9, 2010

Welfare of Employee - West Virginia Sues Remac for not having WC Policy

As you drive along, you regularly see lot of construction activity – in a few days new building would spring up in an area where you regularly pass by.  There are lots of construction equipment and also lot of manual labour.  You see men & women every where doing all sorts of activity – carrying construction material,  engaged in destruction of old buildings, cutting, welding, cleaning, perched on top of beams and semi finished buildings.  So vulnerable they are to accidents and injuries and sometimes most unfortunately death. 
They are not paid decent enough wages and these manual labourers come from villages and from States like Bihar, Orissa and Andhra.   Many of them are daily wage earners, some are experts in tinkering, welding, masonry and much more…  for earning daily bread they put their life to risk and once the big mall or an office building gets spruced these souls are totally forgotten.  Again for repairs, maintenance, refurbishments also – lot of manual labour  gets invovled…… 
There is an enactment called ‘The Workmen’s Compensation Act 1923’ which aims not at compensating the workmen the wages but to provide compensation for the injury or death.  This is a beneficial legislation for the workers.  This Act provides for payment of compensation to workmen and their dependants in case of injury and accident (including certain occupational disease) arising out of and in the course of employment and resulting in disablement or death. The amount of compensation to be paid depends on the nature of the injury and the average monthly wages and age of workmen.

This  Act extends to the whole of India. The act applies to factories, mines, docks, construction establishments, plantations, oilfields and other establishments which are explicitly mentioned in Schedule, however, it excludes establishments covered by the ESI Act.    The owner of the worksite or the Management of any workplace or the contractor who is undertaking some activity – all are responsible to their employees and have to provide compensation for any injury or death occurring during and in the course of employment.   They can shift the risk to the Insurers by taking a Policy upon payment of premium as appropriate.   I have earlier posted some specific caselaws and Supreme Court judgments on this and this article is different in some ways. 

In our Country, many a times, employee welfare does not simply happen.  The first place where the Employers explore saving money is reducing costs here and mostly they do not go in for insurance also.  The awareness of the employees – those  employed on short projects is abysmally low and their dependents may not even know the benefits or worst the employers or the worksite where their life dream was put paid to.  Exploitation of poor and ignorant…….

Elsewhere in US, the State of  West Virginia is a land of rugged mountains.  The mountain state with the highest mean altitude east of Mississippi river is the state with the largest natural scenic area – the Allegheny highlands.    For long   West Virginia was part of Virginia. Virginia was named to honor Queen Elizabeth of England often referred to as the "Virgin Queen.".  The capital and largest city is Charleston, which is at the confluence of Elk and Kanawha rivers. 

Coming back in many developed countries,  Employees' compensation laws are usually a feature, implemented after long and hard-fought struggles  over many years.  It is generally belived that such measures would provide economic safety and improve the working conditions of the labourers.    Before the statutory establishment of workers' compensation, employees who were injured on the job were only able to pursue their employer through  civil law or torts.  In early days in UK,the legal view of employment as a master-servant relationship required employees to prove employer malice or negligence, a high burden for employees to meet.   The liability was unlimited.   

Recently, a big construction company Remac America stands sued by the State of West Virginia for illegally operating in the State without WC insurance.  The sole owner of the company was also named a defendant in the Suit according to reports.   On March 23, Joseph Friend, an employee of Remac, was attempting to move a piece of scrap machinery when a metal chain broke and struck him in the head, according to a complaint filed Oct. 4 in Berkeley Circuit Court.  As a result of the accident, Friend suffered severe head injuries and other injuries that have required extensive medical treatment, according to the suit.  Consequently, he filed a workers' compensatory claim. The plaintiff claims Remac was performing business in West Virginia without maintaining workers' compensation coverage.

The Office of the Insurance Commissioner of West Virginia is seeking judgment against the defendants in the amount of $552,297.43 with post-judgment interest.

In India, the WC Act was amended recently in 2009 and it is no longer workmen but employees now.  There have been accidents at work places, some companies have compensated their workers promptly, some had insurance, there still are some cases of some contractors and some companies who have vanished without paying any amount to the injured or to the dependants of the deceased who are suffering in chill penury. 

It is expected that State should ensure that legislations are enforced strictly and the detractors are made to pay as also are punished criminally.  West Virginia is a classic example of State seeking punitive damages for not maintaining adherence to the laws.  It is natural justice that law breakers are punished – when will such things happen here is eternal question and concern……

Regards – S Sampathkumar.

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