Mrs. JUSTICE S.VIMALA of the Madras High Court held recently on 7 January, 2019 in the matter of R.Devika vs The Chairman has held in the matter of denial of a Job on account of pregnancy had directed the Govt Authorities to take into account the constitutional provisions of India and the maternity protection and convention of the International Labour Organization, to frame guidelines by providing the best possible measures to support women candidates who are at difficult circumstances on account of pregnancy or maternity or other natural causes. as follows:
"The pregnancy and the child birth should not be considered as the impediment for discharge of duty. The concessions given to pregnant women shall not be construed as a concession towards personal comfort of the women. The child birth should be considered as a contribution to continuity of generations, without which the existence of the world is impossible."
V.Sounder Rajan
HR & Employment Law Attorney
Specializing for Recruiting and Contract Staffing Industry
M: 98401-42164
23"The pregnancy and the child birth should not be considered as the impediment for discharge of duty. The concessions given to pregnant women shall not be construed as a concession towards personal comfort of the women. The child birth should be considered as a contribution to continuity of generations, without which the existence of the world is impossible."
V.Sounder Rajan
HR & Employment Law Attorney
Specializing for Recruiting and Contract Staffing Industry
M: 98401-42164
Allowances for Provident Fund Contributions
LLR has been persistently notifying that the employers should rationalize the allowances which are being paid to the employees but on some of the allowances, provident fund contributions are not deducted. Repeated Seminars have been held to create awareness keeping in view that Gujarat, Madhya Pradesh and Madras High Courts have held that all allowances other than house rent allowance will form part of basic wages for provident fund contributions.
Aggrieved by the decisions, appeals were filed in the Supreme Court under the caption Surya Roshini Vs. State of Madhya Pradesh in SLP(C) No. 008781-008782/2012. After prolonged hearings, the arguments have been concluded on 06.02.2019 and now the Judgment is reserved. LLR has informed that the judgment would be notified immediately on its announcement.An important issue in EPF Law will get decided.
Source :Labour Law Reporter
V.Sounder Rajan
HR & Employment Law Attorney
Specializing for Recruiting and Contract Staffing Industry
M: 98401-42164
LLR has been persistently notifying that the employers should rationalize the allowances which are being paid to the employees but on some of the allowances, provident fund contributions are not deducted. Repeated Seminars have been held to create awareness keeping in view that Gujarat, Madhya Pradesh and Madras High Courts have held that all allowances other than house rent allowance will form part of basic wages for provident fund contributions.
Aggrieved by the decisions, appeals were filed in the Supreme Court under the caption Surya Roshini Vs. State of Madhya Pradesh in SLP(C) No. 008781-008782/2012. After prolonged hearings, the arguments have been concluded on 06.02.2019 and now the Judgment is reserved. LLR has informed that the judgment would be notified immediately on its announcement.An important issue in EPF Law will get decided.
Source :Labour Law Reporter
V.Sounder Rajan
HR & Employment Law Attorney
Specializing for Recruiting and Contract Staffing Industry
M: 98401-42164
The Women Development and Child Welfare Department , Government of Telangana has recently launched a web portal for Registration of Internal complaints Committee (ICC)under the Sexual Harassment of Women at Workplace ( Prevention, Prohibition and Redressal) Act 2013 . As per section 4 of the act , it is mandatory for all workplaces having 10 or more employees to constitute a committee under the act for each of the offices separately and also need to frame a policy under the act.
As per the Telangana State Government notification the details of the ICC’s shall be registered by the company through the webportal : http//tshebox.tgwdxw.in . The last date of completing the online registration is 15th July 2019 , failure of completion of registration will attract penalty of Rs.50000/-.
In the view of the above notification all Establishments will be required to furnish the details under the option of “Register As ICC” and the same should be done for each offices separately. This is only limited to the offices in the state of Telangana requiring the completion of registration on before 15th July 2019.
T-She Box: Sexual Harassment Electronic Box
As per the Telangana State Government notification the details of the ICC’s shall be registered by the company through the webportal : http//tshebox.tgwdxw.in . The last date of completing the online registration is 15th July 2019 , failure of completion of registration will attract penalty of Rs.50000/-.
In the view of the above notification all Establishments will be required to furnish the details under the option of “Register As ICC” and the same should be done for each offices separately. This is only limited to the offices in the state of Telangana requiring the completion of registration on before 15th July 2019.
T-She Box: Sexual Harassment Electronic Box
The Women & Child Development Department , Mumbai City Collectorate, Government of Maharashtra has issued an order to register internal complaints Committee (ICC) under the Sexual Harassment of Women at Workplace ( Prevention, Prohibition and Redressal) Act 2013 . As per section 4 of the act , it is mandatory for all workplaces having 10 or more employees to constitute a committee under the act for each of the offices separately and also need to frame a policy under the act.
As per the Mumbai City Collectorate order ( attached ) , the details of the ICC’s shall be submitted by the company as per enclosed format. The last date of submission is 20th July 2019 , failure of submission will attract penalty of Rs.50000/-.
In the view of the above order, Establishments will be required to furnish the details. This is only limited to the offices in the district of Mumbai City requiring such entities to submit the details on before 20th July 2019.
As per the District Women & Child Development Officer’s order, the details of the ICC’s shall be submitted by the company as per enclosed format to his office at Bldg. 117, BDD Chawl, 1st Floor, Dr. Ambedkar Colony Compound, Dr. G. M. Bhosale Marg, Worli, Mumbai 400 018. The last date of submission is 20th July 2019.
As per the Mumbai City Collectorate order ( attached ) , the details of the ICC’s shall be submitted by the company as per enclosed format. The last date of submission is 20th July 2019 , failure of submission will attract penalty of Rs.50000/-.
In the view of the above order, Establishments will be required to furnish the details. This is only limited to the offices in the district of Mumbai City requiring such entities to submit the details on before 20th July 2019.
As per the District Women & Child Development Officer’s order, the details of the ICC’s shall be submitted by the company as per enclosed format to his office at Bldg. 117, BDD Chawl, 1st Floor, Dr. Ambedkar Colony Compound, Dr. G. M. Bhosale Marg, Worli, Mumbai 400 018. The last date of submission is 20th July 2019.
There was question posed like this:
Dear all,
We are a Noida based BPO with strength of 300 employees. We have a data entry process in which volume inflow fluctuates across the week. The process witnesses 2 fold increase in volume for 5-6 hours on Monday & Friday. Employing full time employees to manage volume for 7-8 days in a month will results in under-utilization and add to the cost in a low margin process. To mitigate the situation, we are planning to manage the volume fluctuation by deploying 8-10 part-time resources on these days. We plan to hire services of such part time resources from a third party vendor and they will be working between 2:00 a.m. to 9:00 a.m. from the office premises. We will be providing them mid-night meals available in our office cafeteria. Please help by informing on:
1. Will these part time resources be considered as employees or can be treated as service providers, as they will be working from office premises on only 4 days of the month
2. Will PF, Bonus, ESIC etc will be applicable
3. Are we required to provide them transport by law even if the PTEs are males
4. Are there any other compliance requirements we need to follow
You are welcome to provide any other suggestion to manage the situation.
Our suggestion :-
The definition of employee under the UP Shops and Establishments Act is wide -(6)'employee' means a person wholly or mainly employed on wages by an employer in, or in connection with any trade, business or manufacture carried on in a shop or commercial establishmentand includes—(a)caretaker,mali or a member of the watch and ward staff;(b)any clerical or other staff of a factory or industrial establishment, which is not covered by the provisions of the Factories Act, 1948; and(c)any apprentice or a contract or piece-rate worker.So the welfare benefits like ESIC and EPF should either be provided by you or the Service provider.if it is provided by you then you can deduct it from the Bills of the Service provider.
V.Sounder Rajan
Advocate -Labour & HR & Consumer Law Consultant -Chennai
Legal Consultant for Indian Staffing & Recruiting Industry
Dear all,
We are a Noida based BPO with strength of 300 employees. We have a data entry process in which volume inflow fluctuates across the week. The process witnesses 2 fold increase in volume for 5-6 hours on Monday & Friday. Employing full time employees to manage volume for 7-8 days in a month will results in under-utilization and add to the cost in a low margin process. To mitigate the situation, we are planning to manage the volume fluctuation by deploying 8-10 part-time resources on these days. We plan to hire services of such part time resources from a third party vendor and they will be working between 2:00 a.m. to 9:00 a.m. from the office premises. We will be providing them mid-night meals available in our office cafeteria. Please help by informing on:
1. Will these part time resources be considered as employees or can be treated as service providers, as they will be working from office premises on only 4 days of the month
2. Will PF, Bonus, ESIC etc will be applicable
3. Are we required to provide them transport by law even if the PTEs are males
4. Are there any other compliance requirements we need to follow
You are welcome to provide any other suggestion to manage the situation.
Our suggestion :-
The definition of employee under the UP Shops and Establishments Act is wide -(6)'employee' means a person wholly or mainly employed on wages by an employer in, or in connection with any trade, business or manufacture carried on in a shop or commercial establishmentand includes—(a)caretaker,mali or a member of the watch and ward staff;(b)any clerical or other staff of a factory or industrial establishment, which is not covered by the provisions of the Factories Act, 1948; and(c)any apprentice or a contract or piece-rate worker.So the welfare benefits like ESIC and EPF should either be provided by you or the Service provider.if it is provided by you then you can deduct it from the Bills of the Service provider.
V.Sounder Rajan
Advocate -Labour & HR & Consumer Law Consultant -Chennai
Legal Consultant for Indian Staffing & Recruiting Industry
Dear All
Sub: Recent trend in accepting permanency claim for Contract staff – reg.
In the process of enriching legal knowledge for HR professionals it is necessary to highlight that recently on 7/2/2020, Mr.Justice Chandrachud of the Hon’ble Supreme Court of India in the matter of ONGC –vs- Krishan Gopal has re-affirmed the power of Labour Courts alone to grant the relief of permanency. They are importantly as follows:
(i) The statutory power of the Labour Court or Industrial Court to grant relief to workmen including the status of permanency continues to exist in circumstances where the employer has indulged in an unfair labour practice by not filling up permanent posts even though such posts are available and by continuing to employ workmen as temporary or daily wage employees despite their performing the same work as regular workmen on lower wages;
(ii) Where an employer has regularised similarly situated workmen either in a scheme or otherwise, it would be open to workmen who have been deprived of the same benefit at par with the workmen who have been regularised to make a complaint before the Labour or Industrial Court, since the deprivation of the benefit would amount to a violation of Article 14; and
(iii) In order to constitute an unfair labour practice under Section 2(ra) read with Item 10 of the Vth Schedule of the ID Act, the employer should be engaging workmen as badlis, temporaries or casuals, and continuing them for years, with the object of depriving them of the benefits payable to permanent workmen.
With regards
V.Sounder Rajan
Advocate-Chennai
Sub: Recent trend in accepting permanency claim for Contract staff – reg.
In the process of enriching legal knowledge for HR professionals it is necessary to highlight that recently on 7/2/2020, Mr.Justice Chandrachud of the Hon’ble Supreme Court of India in the matter of ONGC –vs- Krishan Gopal has re-affirmed the power of Labour Courts alone to grant the relief of permanency. They are importantly as follows:
(i) The statutory power of the Labour Court or Industrial Court to grant relief to workmen including the status of permanency continues to exist in circumstances where the employer has indulged in an unfair labour practice by not filling up permanent posts even though such posts are available and by continuing to employ workmen as temporary or daily wage employees despite their performing the same work as regular workmen on lower wages;
(ii) Where an employer has regularised similarly situated workmen either in a scheme or otherwise, it would be open to workmen who have been deprived of the same benefit at par with the workmen who have been regularised to make a complaint before the Labour or Industrial Court, since the deprivation of the benefit would amount to a violation of Article 14; and
(iii) In order to constitute an unfair labour practice under Section 2(ra) read with Item 10 of the Vth Schedule of the ID Act, the employer should be engaging workmen as badlis, temporaries or casuals, and continuing them for years, with the object of depriving them of the benefits payable to permanent workmen.
With regards
V.Sounder Rajan
Advocate-Chennai
From Recent NHRD Conference at Hosur ,Tamilnadu
Key Highlights of the Panel discussion :
Panel Topic : Conflict to Confluence - Capital & Labour - Divergence to Convergence :
Is the need of the hour?
Panel Moderator: Dr. Balasubramanian – Founder - SVYM & GRAAM
Panel Speakers: Shri. Sitaram Yechuri – Former Chairman Agriculture Committee
Adv. Saji Narayanan – National President - BMS
Adv. S N Murthy – Sr. Advocate & Labour Law Advisor
Adv. Benny Thomas – Sr. Advocate & Labour Law Advisor
1. CTC - Contribution To Company – one should not see as costs but as contribution
2.Respect not only ‘Wealth Creators’ (Owners) but also ‘Value Creators” (Labour)
3.Management consultants have to see both sides of the coin and advise the management and show them the right direction to solve the labour problem, handling the union etc.,
4.Unity in diversity must be the policy: How best to maintain good relationship with the trade unions and employees of the organization not compromising on the principles of the organization / natural justice.
5.Employers need to be transparent to workers on financial matters
6.Need for National Wage Policy similar to GST
7. When multicultural workforce come into working together there is chance for misunderstanding cultures. Be sensible to cultural diversity. Understand other human beings from heart not through head.
8.Capital & labour are the 2 sides of the same coin. One cannot exist without the other. Zero tolerance cultures towards bullying and harassment, how to cultivate positive relations with the trade unions are the challenges of the capital.
9.Convergence not only on factories, on a larger frame work
10. Human values and value systems keep on changing: look into the value of the people working, encourage them, motivate them and develop skill building.
11. We need to look for the emergence of a stakeholder economy where corporates go beyond mere profit maximization to benefit optimization.
Courtesy: NHRD -Mr P Babu -Hosur
Regards
V.Sounder Rajan
Advocate -Chennai
Key Highlights of the Panel discussion :
Panel Topic : Conflict to Confluence - Capital & Labour - Divergence to Convergence :
Is the need of the hour?
Panel Moderator: Dr. Balasubramanian – Founder - SVYM & GRAAM
Panel Speakers: Shri. Sitaram Yechuri – Former Chairman Agriculture Committee
Adv. Saji Narayanan – National President - BMS
Adv. S N Murthy – Sr. Advocate & Labour Law Advisor
Adv. Benny Thomas – Sr. Advocate & Labour Law Advisor
1. CTC - Contribution To Company – one should not see as costs but as contribution
2.Respect not only ‘Wealth Creators’ (Owners) but also ‘Value Creators” (Labour)
3.Management consultants have to see both sides of the coin and advise the management and show them the right direction to solve the labour problem, handling the union etc.,
4.Unity in diversity must be the policy: How best to maintain good relationship with the trade unions and employees of the organization not compromising on the principles of the organization / natural justice.
5.Employers need to be transparent to workers on financial matters
6.Need for National Wage Policy similar to GST
7. When multicultural workforce come into working together there is chance for misunderstanding cultures. Be sensible to cultural diversity. Understand other human beings from heart not through head.
8.Capital & labour are the 2 sides of the same coin. One cannot exist without the other. Zero tolerance cultures towards bullying and harassment, how to cultivate positive relations with the trade unions are the challenges of the capital.
9.Convergence not only on factories, on a larger frame work
10. Human values and value systems keep on changing: look into the value of the people working, encourage them, motivate them and develop skill building.
11. We need to look for the emergence of a stakeholder economy where corporates go beyond mere profit maximization to benefit optimization.
Courtesy: NHRD -Mr P Babu -Hosur
Regards
V.Sounder Rajan
Advocate -Chennai
Very Important Internal Circular w.r.t to Section 7A of Employees’ Provident Funds & Miscellaneous Provisions Act, 1952
Section 7A of Employees’ Provident Funds & Miscellaneous Provisions Act, 1952provides for quantification of amount due from any employer under any provision of this Act and Schemes framed thereunder. The amount so quantified is recovered in accordance with the procedure prescribed under various provisions of the Act.
EPF has issued an Internal circular on 14th February 2020 and notified revised procedure/guidelines for initiation of inquiries u/s 7A of Employees’ Provident Funds & Miscellaneous Provisions Act, 1952.This circular is attached.
V.Sounder Rajan
Advocate -Labour & HR & Consumer Law Consultant -Chennai
Legal Consultant for Indian Staffing & Recruiting Industry
Section 7A of Employees’ Provident Funds & Miscellaneous Provisions Act, 1952provides for quantification of amount due from any employer under any provision of this Act and Schemes framed thereunder. The amount so quantified is recovered in accordance with the procedure prescribed under various provisions of the Act.
EPF has issued an Internal circular on 14th February 2020 and notified revised procedure/guidelines for initiation of inquiries u/s 7A of Employees’ Provident Funds & Miscellaneous Provisions Act, 1952.This circular is attached.
V.Sounder Rajan
Advocate -Labour & HR & Consumer Law Consultant -Chennai
Legal Consultant for Indian Staffing & Recruiting Industry
COVID-19 is declared as "notified disaster" in India.
Central Government notified COVID-19 as "notified disaster" on Sunday the 15th March 2020.Lot of State Govts have followed suit.
Critical Medical conditions or pandemic situations are not under the notified disaster lists under the Disaster Management Act, 2005 because the SDRF (State Disaster Relief Fund) funds shall be used only for cyclone, earthquake, drought, landslide, hailstorm, cloudburst, avalanche, frost, pest attack and cold waves.
Recently, Karnataka State also invoked the provisions of Epidemic Diseases Act, 1897 (Central Act 3 of 1897) and notified regulations called ‘Karnataka Epidemic Diseases, COVID-19 Regulations, 2020’ to prevent COVID-19.
Because COVID-19 has been brought under the fold of above two legislation, Spreading rumours and creating panic regarding disasters and epidemic diseases are punishable under the above cited Acts.
Section 54 in the Disaster Management Act, 2005
54. Punishment for false warning.—whoever makes or circulates a false alarm or warning as to disaster or its severity or magnitude, leading to panic, shall on conviction, be punishable with imprisonment which may extend to one year or with fine. —whoever makes or circulates a false alarm or warning as to disaster or its severity or magnitude, leading to panic, shall on conviction, be punishable with imprisonment which may extend to one year or with fine."
Regulation 6 of Karnataka Epidemic Diseases, COVID-19 Regulations, 2020
6. No person/institution /organization shall use any print or electronic media for misinformation regarding COVID-19 without prior permission of the Department of Health and Family Welfare. This is to avoid the spread of any rumour or unauthenticated information regarding COVID-19. In case any person/institution/organization is found indulging in such activity it will be treated as a punishable offence under these regulations."
HR Team of viewers while organizing awareness programs about COVID-19 needs to bring awareness among employees in their organization about penal provisions also for spreading false/misinformation in social media and through other type of communications.
vsrlaw
Central Government notified COVID-19 as "notified disaster" on Sunday the 15th March 2020.Lot of State Govts have followed suit.
Critical Medical conditions or pandemic situations are not under the notified disaster lists under the Disaster Management Act, 2005 because the SDRF (State Disaster Relief Fund) funds shall be used only for cyclone, earthquake, drought, landslide, hailstorm, cloudburst, avalanche, frost, pest attack and cold waves.
Recently, Karnataka State also invoked the provisions of Epidemic Diseases Act, 1897 (Central Act 3 of 1897) and notified regulations called ‘Karnataka Epidemic Diseases, COVID-19 Regulations, 2020’ to prevent COVID-19.
Because COVID-19 has been brought under the fold of above two legislation, Spreading rumours and creating panic regarding disasters and epidemic diseases are punishable under the above cited Acts.
Section 54 in the Disaster Management Act, 2005
54. Punishment for false warning.—whoever makes or circulates a false alarm or warning as to disaster or its severity or magnitude, leading to panic, shall on conviction, be punishable with imprisonment which may extend to one year or with fine. —whoever makes or circulates a false alarm or warning as to disaster or its severity or magnitude, leading to panic, shall on conviction, be punishable with imprisonment which may extend to one year or with fine."
Regulation 6 of Karnataka Epidemic Diseases, COVID-19 Regulations, 2020
6. No person/institution /organization shall use any print or electronic media for misinformation regarding COVID-19 without prior permission of the Department of Health and Family Welfare. This is to avoid the spread of any rumour or unauthenticated information regarding COVID-19. In case any person/institution/organization is found indulging in such activity it will be treated as a punishable offence under these regulations."
HR Team of viewers while organizing awareness programs about COVID-19 needs to bring awareness among employees in their organization about penal provisions also for spreading false/misinformation in social media and through other type of communications.
vsrlaw
Circular dated 1st July, 2020, the Employees State Insurance Corporation (“ESIC”)
ESIC (Attached Circular) allows Employers to file Return of Contribution up to 15th July, 2020 for the contribution period October 2019 to March, 2020
In a Circular dated 1st July, 2020, the Employees State Insurance Corporation (“ESIC”) [Attached] has informed that the employers are allowed to file Return of Contribution upto 15th July, 2020 for the contribution period October 2019 to March, 2020.
As you are aware previously, in a Circular dated 18th May, 2020 ESIC had relaxed the provisions of Regulation 26 under the Employees’ State Insurance (General) Regulation, 1950 wherein the employers were allowed to file the return of contribution upto 11th June, 2020 for the contribution period from October, 2019 to March, 2020.
Accordingly by the Attached Circular, relaxation is granted to the employers to file Return of Contribution upto 15th July, 2020 for the contribution period October 2019 to March, 2020
ESIC (Attached Circular) allows Employers to file Return of Contribution up to 15th July, 2020 for the contribution period October 2019 to March, 2020
In a Circular dated 1st July, 2020, the Employees State Insurance Corporation (“ESIC”) [Attached] has informed that the employers are allowed to file Return of Contribution upto 15th July, 2020 for the contribution period October 2019 to March, 2020.
As you are aware previously, in a Circular dated 18th May, 2020 ESIC had relaxed the provisions of Regulation 26 under the Employees’ State Insurance (General) Regulation, 1950 wherein the employers were allowed to file the return of contribution upto 11th June, 2020 for the contribution period from October, 2019 to March, 2020.
Accordingly by the Attached Circular, relaxation is granted to the employers to file Return of Contribution upto 15th July, 2020 for the contribution period October 2019 to March, 2020
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LEGAL COMPLIANCES.doc
Legal COMPLIANCEs and DUE dates.xls