[6]www.thehindu.com/news/national/karnataka/workers-at-wistrons-iphone-factory-near-bengaluru-go-on-a-ransacking/article33315369.ece The Minimum Wage Act of 1948 sets wages for the different sectors of the economy it is supposed to cover. It leaves a large number of workers unregulated. Central and state governments have the discretion to set wages by type of work and location, and they range from 143 to 1120 per day for work in the so-called central sphere. State governments have their own minimum wage plans. [17] Therefore, companies must formulate contracts and human resources (HR) taking into account the regulatory, social and cultural particularities set out in Indian labour laws and court decisions. This ensures that management, human resources and employees are fully informed of their rights and obligations, thus minimizing the possibility of disputes. An employer may also dismiss an employee for operational reasons such as dismissal, restructuring or closure by following the procedure prescribed by the Identification Act and the corresponding employment contract. In cases where there is no contract of employment or where the contract of employment does not define a method of termination, the matter falls within the competence of the labour law of the State concerned. Indeed, Indian federal law does not explicitly require employment contracts to be in writing. The Social Security Code, 2020, consolidates 9 key labor laws related to social security.
According to the “last in, first out” principle, which applies to employees, the employer must first dismiss the last employees who join the organization in the same function. This rule can be outsourced. The employer is also required to first offer reinstatement to the dismissed employee who is an Indian citizen. The West Bengal government has revised its labour laws, making it virtually impossible to close a loss-making factory. [44] West Bengal law applies to all state enterprises employing 70 or more people. [45] Yes, an employer may require employees to take a leave of absence during the notice period in accordance with the employee`s employment contract. Specific laws are also enacted for the recognition and protection of certain special types of workers, such as temporary agency work and fixed-term workers. The CLRA has been consolidated by the 2020 Code of Health, Safety and Working Conditions (Occupational Health and Safety Code), which has entered into force but has not yet entered into force. The OSH Code introduced some new definitions and revised some existing provisions relating to the employment of temporary agency work.
Archita specialises in labour law and advises clients on a wide range of labour law issues. She has been involved in various issues related to workforce management and restructuring, compensation and benefits, inventory reduction. The contractual provisions of the Occupational Health and Safety Act are triggered when at least 50 contract workers are employed in a company, compared to 20 contract workers as in the CLRA (subject to changes in state). Unlike the CLRA, the OsH Code does not require specific registration for the establishment of the main employer once the threshold of applicability has been reached, for the employment of contract workers. The Occupational Safety and Health Code introduces a common registration for each establishment with at least 10 employees, regardless of collective agreements. Thus, if an institution to which the Occupational Health and Safety Code applies has a valid registration under an existing Federal Act at the time the Occupational Health and Safety Act comes into force, this applies for the purposes of employing temporary agency workers. [9] India is highly regulated in the area of employment. Legal assistance should be sought with regard to employment contracts and conditions of service. Practical advice on best and current practices should be sought to ensure that guidelines are HR-friendly and compliant with the law.
Advice should also be sought in areas where compliance is difficult so that employers can take positions that balance convenience and risk. Is there a distinction between domestic and foreign workers? Overall, the law does not address the right of employers to regulate off-duty conduct. Employers generally insist in employment contracts and terms of use that employees cannot work elsewhere, and the courts have upheld these provisions. Some employment contracts provide that the certification of the employer is a ground for disciplinary action. The guidelines for the use of employer-provided equipment also apply to the use of such equipment outside the workplace. As part of the goal of facilitating business operations in India, the government has proposed to revise the federal labour laws and possibly merge them into two or three labour laws. When this is achieved, registration requirements will be streamlined. Amendments to certain federal laws concerning factories and the use of apprentices have also been proposed. There has been no progress in implementing these initiatives, and it seems unlikely that the government will do so. Temporary agency workers are workers who are hired in or in connection with the work of an establishment “by or by a contractor, without the knowledge or knowledge of the principal employer”[1].
The agreement was legally recognized when the Contract Labour Act 1970 (Contract Labour Act of India 1970 (CLRA) was enacted “to regulate the employment of contract workers in certain establishments and provide for their abolition in certain circumstances”. The gap between an independent contractor and a full-time employee goes beyond a difference in title. However, it is difficult to identify these differences, which is why accurate employee classification processes are an essential part of an organization`s framework. For law enforcement agencies, taxation is the most important differentiator. The “primary employer” is required to obtain the prior consent of the labour authorities (in the form of a registration certificate) if it wishes to employ contract workers beyond the prescribed threshold, which is currently 20 (50 in some Indian states). On the basis of the registration certificate of the main employer, the contracting agency is required to obtain a licence. This allows labour authorities to monitor the deployment and deployment of contract workers and ensure that parties comply with their requirements under the CLRA. In the case of such an intentional and unauthorized absence from work, the responsible authority may decide and order that the days when the work is not performed be treated as dying without the principle of “no work without pay”. This is without prejudice to any other measures that the competent authority may take against persons who resort to such practices.
[14] The principle of “no work, no wages” is widespread in the Indian banking sector. [15] All other manufacturing industries and large service facilities such as railways, postal services and telecommunications also implement them in order to minimize cases of unauthorized absence of workers. The term “industry” includes a contractual relationship between the employer and the employee for the sale of products and services produced through their cooperative efforts. India`s labour laws do not provide for the automatic transfer of employees in connection with a sale of a business without obtaining the consent of the employees. In a share sale scenario, the purchase of shares by a buyer does not result in a change of employer and only the company`s ownership model changes. Therefore, there will be no requirement for employee approval in the existing scenario. The Purpose of the Contract Labour (Regulation and Abolition) Act 1970 is to regulate the employment of temporary agency work so that it is treated as directly employed work. [12] Women are now also allowed to work at night (from 10 p..m. to 6 a.m.m.). [12] Gujarat Mazdoor Sabha v. Gujarat State – Gujarat Labour and the Employment Department had issued a notice under section 5 of the Factories Act 1948 exempting Gujarat state factories from “various provisions relating to weekly hours, daytime hours, rest intervals, etc.
for adult workers” under sections 51, 54, 55 and 56. The issue raised before the court in this case was whether the COVID-19 pandemic and the national lockdown fell within the scope of the “public emergency” within the meaning of section 5 of the Factories Act. It has been found that the legal provisions that grant dignity and rights to the worker cannot be abolished by the Government of Gujarat due to a pandemic situation. In this regard, the pandemic is not qualified as a “public emergency” under Article 5 of the 1948 Factories Act, which threatens the security of the nation. The notification was found to violate the worker`s right to life and the right to forced labour guaranteed by Articles 21 and 23 of the Indian Constitution, and the court ordered the payment of overtime pay to all eligible workers who have worked since the introduction of the notification. This repealed the opinion issued by the Gujarat government. Certainly, from an economic point of view, there are countless reasons that justify the use of independent contractors. In the long run, however, it will turn out that there are significant drawbacks to using independent contractors, with the government`s classification decision being one of the main reasons. An employee who is dismissed for a valid reason or for reasons has the right to challenge the dismissal on legal or contractual grounds with the competent authorities – usually the competent labour authorities. .