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WORKSHOP ON LABOUR LAWS
ANAND GOPALAN
Advocate
T.S.Gopalan & Co.
Advocates & Notaries
EMPLOYMENT LAW
COMMON LAW&
STATUTORY LAW
Contract of Employment
Invitation
Offer
Acceptance
Terms of Contract
Breach of Contract
Damages
CONTRACT
Agreement in Restraint of Trade ( Section 27)
“every agreement by which one is restrained from exercising a lawful profession, trade or business of any kind, is to that extent void”
EMPLOYMENT LAW
SERVICE LAW&
LABOUR LAW
EMPLOYMENT LAW
SERVICE LAW• Government Employee
• Central
• State
• Art 309-13
LABOUR LAW ENACTMENTS
CONCURRENT LIST
Private Sector
Includes PSU’s
Confers Special Rights
Provides Social Security
Job Security
Industry Specific Enactments
Conditions of Service
Facilities and minimum standards in work area.
INDUSTRIAL DISPUTES ACT
INDUSTRIAL DISPUTES ACT
An Act to make provision for investigation and
settlement of Industrial Disputes
DEFINITIONS UNDER THE ID ACT
Appropriate Government. Industry. Industrial Dispute. Workmen.
OBJECTS OF LEGISLATION
WELFARE
SOCIAL SECURITY
HEALTH AND
SAFETY
Industrial Disputes Act 1947
Act meant to investigate and settle industrial disputes.
Special Enactment governing contract of employment. Conferring benefits on persons employed in lower
cadre. Protects workmen from hire and fire at will. Provides for compensation in case of lay off,
retrenchment and closure.
Industrial Disputes Act 1947
Important Definitions Industry {2(j)}
Industrial Dispute {2(k)}
Lay off {2(kkk)}
Lock out {2(l)}
Public Utility Service
Retrenchment {2(oo)}
Workmen {2(s)}
Industrial Disputes Act 1947
Important Definitions
Industry {2(j)
Industrial Dispute {2(k)}
Lay off {2(kkk)}
Lock out {2(l)}
Public Utility Service
Retrenchment {2(oo)}
Workmen {2(s)}
DISPUTE RESOLUTION
INDUSTRIAL DISPUTES ACT
SECTION 2(k) Collective Union alone can raise a
dispute Must be referred by the
Government. Can be regarding any
dispute.
Section 2A Individual dispute Only workman can raise
dispute No reference required Can be only on limited
issues.
Conciliation Machinery and Adjudication process
Arbitration Tribunal.
Reference by Government.
Labour court and Tribunal.
INDUSTRIAL DISPUTES ACT, 1947
Dispute Conciliation Reference
Labour Court/Industrial Tribunal High Court
Supreme Court
Recovery of money due from an employer.
Types of Settlement
Bilateral and Trilateral Settlement
Settlement under Section 18(1) and Section 12(3)
Chapter VA
Lay off
Retrenchment
Chapter VB
Closure - Under the Act, closure of an industry or establishment means permanent closing down place of employment or part thereof.
In case of an establishment employing not less than 50 workmen, 60 days notice should be given to the Government stating clearly the reasons for the intended closure of the establishment.
The workmen who lose employment due to closure are entitled to compensation of 15 days wages for each completed year of service
When an establishment is closed due to unavoidable circumstances beyond the control of the employer, the maximum compensation would not exceed 3 months average wage of the employee. However financial difficulties, accumulation of stock or expiry of period of lease or license would not amount to unavoidable circumstances
Certain provisions under the Industrial Disputes Act.
Change in service conditions (Section 9A).
Prosecution.
Unfair labour practice.
Approvals and permissions
ENQUIRY
First show cause notice and reply Summary procedure and punishment. Enquiry – in terms of natural justice, Second show cause notice along with findings of
Enquiry Officer. Subsistence Allowance to be paid. Aid of an outsider. Briefing on legal aspects Evidence to be recorded in a fair and proper manner.
STANDING ORDERS
Industrial Employment Standing Orders Act 1946
Applies in Tamil Nadu to establishments employing 20 or more persons (G.O.Ms.No.2272 , 11th November 1986).
Model Standing Orders has been provided under the Rules.
Certification to be obtained. Difference between Model and Certified
Standing Orders
Classification of workmen
Permanent Probationers Temporary Badli Casual Seasonal and Apprentices.
MISCONDUCT
Misconduct Willful insubordination or disobedience.
Strike, theft, fraud, dishonesty.
Absence without leave.
Breach of Standing Orders.
Engaging in trade within the premises of Industrial establishment.
Drunkenness, riots or disorderly behavior .
Sleeping while on duty.
Distribution of pamphlets
Negligence or carelessness relating in damage to property.
Willful slow going down.
Conviction by Court of law.
PUNISHMENT
Punishments
Wage cut Withhold of increment Demotion Suspension up to 30 days Dismissal
DISCIPLINARY AUTHORITY AND HIS
POWERS
Powers of the Disciplinary Authority
The manner in which the power is exercised
Judicial review of the same
FACTORIES ACT
Requirement to register factories
Hazardous Process Working hours Leave with wages Penalties and Procedures
HEALTH, SAFETY AND WELFARE
Health, Safety and Welfare
Health: Cleanliness Ventilation Drinking water Over crowd Lighting.
Health, Safety and Welfare
Safety - Safety of machinery. Excessive weight. Protection of eyes. Floor, Stairs, safety offices. Hazardous process
Health, Safety and Welfare
Welfare: Washing facilities, First Aid appliances. Canteen Rest Rooms.
TRADE UNION ACT
TRADE UNION Trade union is the spokesman for body of
workmen or it is the collective agent representing their voices. Recognition of trade unions is not codified so far in Tamil Nadu thus leaving it to the pleasure of the management. However times are changing and non recognition of the union which commands membership of substantial percentage of workmen is one of the important reasons for industrial unrest in the country.
Trade Union movement in the country date backs to pre independence period. Trade union has strong presence in Industries like the textile, banking, insurance, mines, steel, cement, sugar, etc
Is the trade union is a friend or a foe to the employer? This is a debatable issue
The trade union can be represented by an outsider rendering advice to the workmen
There can be more than one trade union in an establishment
Verification of membership of a trade union is also a debatable issue namely whether it should be through secret ballot or through check off system
Multinationals putting up industry in India has shown a distinct aversion to formation of trade union in their establishment
CONTRACT LABOUR (REGULATION & ABOLITION) ACT
1970 – CLRA Act came into force
Abolition of contract labour in any process, operation or any work in any establishment,
• Work is incidental to manufacture;
• Work is perennial in nature;
• Work is done ordinarily through regular workmen in the said establishment or similar establishment;
• Work is sufficient to employ whole time workmen.
RESPONSIBILITIES OF PRINCIPAL EMPLOYER TOWARDS CONTRACT LABOUR
To provide canteen if 100 or more contract labour are engaged
To provide rest room fortnight stay for contract labour
To provide clean drinking water To provide sufficient
latrines/urinals
RESPONSIBILITIES OF PRINCIPAL EMPLOYER TOWARDS CONTRACT LABOUR
To provide First Aid facility To ensure payment of due wages To ensure compliance of ESI Act, EPF Act, Payment
of Gratuity Act and any monetary liability under WC Act if establishment is not covered under ESI Act.
Contract workmen’s wages should not be less than the minimum rate of wages fixed for the industry.
If contract labour performing same work performed by the employees of principal employer, wages, hours of work and service condition should be the same.
TN PAYMENT OF SUBSISTENCE ALLOWANCE ACT, 1981
Employee placed under suspension entitled to receive payment from employer.
0 to 90 days – 50%
90 to 180 days – 75%
After 180 days – 100%
If enquiry prolonged beyond 90 days for reasons directly attributed to employee, then the employee is entitled to 50%.
Not entitled if employed elsewhere.
Non-recoverable
Shops and Establishments Act, 1947 This is a state enactment and each state has its own
Act -Tamil Nadu Shops and Establishments Act, 1947
Provides for regulation of conditions of work in shops, commercial establishments, restaurants, theatres and other establishment.
This act does not apply to persons employed in a position of management and to persons whose work involves traveling, canvassers and caretakers.
SHOPS State Govt. to fix opening and closing hours.[S.7] Weekly hrs- not more than 8 hrs in a day and 48 hrs in
a week. [S.9] OT- 10hrs in a day and 54 hrs in a week. Once in four hours a break of one hour.[S.(9)(2)] A persons work cannot spread over more than 12 hrs
in a day.[S.10] Weekly holiday. [S.11] All persons to be allowed one whole day in a week as
holiday. [11(2)]
SHOPS & ESTABLISHMENTS
State Govt to fix opening and closing hours.[S.13] Weekly hrs-OT- Spread over-Holiday.[s.14,s.15,s.16] No child employment– 14 yrs. 14-17 yr old allowed to be employed only betw:6am-
7pm. Contemplates Enquiry for dismissal. Dismissal is Appealable.
CHILD LABOUR (PROHIBITION AND REGULATION) ACT 1986
Prohibits engagement of children in certain employments.
Regulates conditions of work of children in certain others.
Child- “a person who has not completed his fourteenth year of age”.
Three hours work with one hour break.
Not more than 6 hrs (all inclusive).
8 A.M to 7P.M - No overtime
Can be employed in only one establishment on a given day.
EMPLOYEES PROVIDENT FUND AND MISC. PROVISIONS ACT
Provides for institution of Provident Funds, pension fund and deposit-linked insurance fund.
Applies to
Factory engaged in specified industry &
Employing twenty or more persons or
To establishments employing less than 20 or more persons if notified by Central Government.
EMPLOYEES’ STATE INSURANCE ACT, 1948
Provides for benefits to employee in case of sickness, maternity and employment injury.
Applicability : Area to be notified and employee’s salary less than Rs.10,000/- p.m.
Applies to all factories / establishments employing more than
-10 persons with the aid of power
-20 persons otherwise.
Once covered always covered.
Contribution of employer and employee
Principal Employer and Immediate Employer are liable to pay.
Benefits : six months – disablement, sickness etc.
PAYMENT OF BONUS ACT, 1965
Entitlement : 30 days and less than Rs.3,500/- Disqualification : Dismissal for fraud, violent
behaviour, theft and sabotage. Minimum : 8.33% , Maximum : 20% Covered establishment : 20 or more – Must
have allocable surplus. Settlement can provide for higher rate of bonus.
Employees’ Compensation Act, 1923
Injury arising out of and in the course of employment.
Compensation for different injuries and death provided including mode of computation.
Compensation to be deposited with the Commissioner.
Compensation based on last drawn wage. If covered by ESI, WC not applicable.
PAYMENT OF GRATUITY ACT, 1975
Eligibility:
-Continuous service not less than five years.
-Superannuation, Retirement, Resignation, Death or Disablement.
Entitled : 15 days’ wages for every completed year of service.
Computation: Monthly wage divided by 26 multiplied by 15. Maximum of Rs.3,50,000/-.
Compulsory Insurance
Nomination
Interest for delayed payment
Forfeit :
-Termination for willful omissions, negligence, destruction of property : to the extent of damage.
-Termination for disorderly conduct, violence or an offence involving moral turpitude whole or part.
Payment of Wages Act, 1936
Applies to persons drawing less than Rs.6,500/- p.m.
Wage period – Not exceeding one month
Time of payment – 7 days
Currency or coins
Permissible Deductions
Deductions for
-Fine
-Absence from duty
-Damage or loss
-Professional Tax
-Recovery of Loans
-Trade Union
-Others – written authorisation
TN INDUSTRIAL ESTABLISHMENTS (NATIONAL & FESTIVAL HOLIDAYS) ACT, 1958
National Holidays 26th Jan, 1st May, 15th Aug & 2nd Oct Festival Holidays : 5 days Notice to work on holidays Employee working on a holiday is entitled to : Twice the wages Wages for such day and can avail substituted holiday.
TN LABOUR WELFARE FUND ACT, 1972
Unclaimed accumulations Fines collected from employees Fines imposed on employers Contribution: Yearly Employee - Rs.10/- , Employer – Rs.20/- and Government – Rs.10/-
MATERNITY BENEFIT ACT, 1961
Applies if a woman employee has worked for 80 days in an establishment
Covers pregnancy, miscarriage, tubectomy , medical termination of pregnancy.
Leave with wages – 12 weeks.
One additional month for illness is also allowed.
Nursing breaks
No stressful jobs
OTHER ENACTMENTS
1. The Apprentices Act, 1961.
2. Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959.
3. Equal Remuneration Act, 1976.
4. Industrial Employment (Standing Orders) Act, 1946.
5. Minimum Wages Act, 1948.
6. Trade Union Act, 1926.
7. Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act 1981
OTHER ENACTMENTS
1. Beedi and Cigar Workers’ (Conditions of Employment) Act, 1966.
2. Building and other Construction Workers’ (Regulation of Employment & Conditions of Service) Act, 1996.
3. Cine Workers and Cinema Theatres Workers’ (Regulation of Employment) Act, 1981.
4. Motor Transport Workers’ Act, 1961.
5. Plantation Labour Act, 1951.
6. Private Security Agencies (Regulation) Act, 2005.
7. Sales Promotion Employees (Conditions of Service) Act, 1976.
8. TN Building & Construction Act, 1984.
9. TN Catering Establishments Act, 1958.
10.TN Handloom Workers’ Act, 1981.
11.TN Manual Workers Act 1982
12.Working Journalist and New Paper Employees Act, 1955.
THANK YOU
Anand Gopalan
Partner
T.S.Gopalan & Co.,
Advocates & Notaries,No. 2, Lakshmanan Street, T.Nagar,
Chennai – 600 017.
Mob: 99401 57326.
Email – [email protected]; [email protected]
