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IMMEDIATE LEGAL QUESTIONS HAUNTING INDIAN STAFFING COMPANIES

In continuation of our earlier post on the subject :

Clients want the Staffing or Temping Company to terminate the Employee for dishonesty, theft, misconduct etc? Is it correct?

There is nothing like summary termination in Indian Law except if it is for proven mis-conduct.

It has to be proven beyond doubt in an Enquiry done for the purpose. In Staffing & Temping Business such Enquiry cannot be practically done as the incident would have occurred in the Clients place.Definitely the risk is there in such termination action without conducting an enquiry is there.There is an element of practical and high risk in such terminations.All such terminations can bounce back with possible Labour Claims.

A definitive process with expert Legal support has to be chalked out with the concurrence of the Client at the time of signing the Contract with the Client itself.

With Regards

Advocates & Notaries -Legal Consultants-HR

E-mail : [email protected],net,

Mobile : 9025792684-9025792634

From India, Bangalore
Dear All
We have found an interesting post on "What you need to know before buying background checks online "at What you need to know before buying background checks online which may be relevant in this post when hiring agencies for conducting Background checks while recruiting personnel for the Staffing Business.
In the Indian context the availability of on line check is still to start. NASCOM has made a beginning for the Software Industry by opening a "National Skills Registry" Pls see http://nationalskillsregistry.com <link updated to site home>
With Regards
Advocates & Notaries & Legal Consultants for Recruiting & Staffing Industry
E-mail : [email protected],net,
-9025792684-9025792634

From India, Bangalore
IMMEDIATE LEGAL QUESTIONS HAUNTING INDIAN STAFFING COMPANIES

Dear All

In continuation of our earlier post on the subject :

Questions are raised on the rotation of employees of contractors working with Principal Employers ,

The Contractor’s employees are working in XYZ co. [Client] and the employees are on the Contractors pay roll. The Contractor provides them PF . ESIC , Gratuity ,bonus , leave salary ,etc, But the Principal Employer wants rotation of the Contractor Employees who have completed 180 days and wants appointment of new employees in the place of left employees,

Can the request be acceded because ,all the employees are on the permanent rolls of the Contractor and not on contract basis.

The request of the Client can be accepted and is meant to provide break of service from continuous employment. Otherwise the Staffing Company or Contractor will lose business .The concept of continuous employment is found in Sec 25 B of the Industrial Disputes Act .

25-B. Definition of continuous service: -- For the purpose of this Chapter,-

(1) a workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorized leave or an accident or a strike which is not illegal, or a lock-out or a cessation of work which is not due to any fault on the part of the workman;

(2) Where a workman is not in continuous service within the meaning of clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer—

(a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than—

(i) one hundred and ninety days in the case of a workman employed below ground in a mine; and
(ii) two hundred and forty days, in any other case;

(b) for a period of six months, if the workman, during a period of six calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than—

(i) ninety five days, in the case of a workman employed below ground in a mine; and
(ii) one hundred and twenty days, in any other case;

Explanation: -- For the purpose of clause (2), the number of days on which a workman has actually worked under an employer shall include the days on which—

(i) he has been laid-off under an agreement or as permitted by standing orders made under the Industrial Employment [Standing Orders] Act, 1946 (20 of 1946), or under this Act or under any other law applicable to the Industrial establishment;

(ii) he has been on leave with full wages, earned in the previous years;
(iii) he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment; and
(iv) in the case of a female, she has been on maternity leave; so, however, that the total period of such maternity leave does not exceed twelve weeks.

The Client from their end want to overcome the “continuous employment of the Contractor’s employee with them "for various reasons like avoiding a claim for permanency from the Contractor’s employees and this cannot be faulted. In case the employees are permanent on the Contractor’s rolls which means you need to swap your employees between different Clients. From the "dedicated" mode of deputation a need may arise to switch to "multiple" mode. This is where the Indian Temp Staff Industry must aim to go..The Appointment Letter and Agreement with the Contractors Staff has to be tuned to take care of all this with expert legal help.

There are many inter-related issues to this which we will address in our further posts.

With Regards

V.Sounder Rajan

Advocates & Notaries -Legal Consultants-HR

E-mail : [email protected],net,

Mobile : 9025792684.

From India, Bangalore
Dear All

By way of refurbishing HR Knowledge for the Staffing Industry we have attached the historic ESI Circular which in effect had recognized Outsourcing as a legal practice in India .In our earlier post on the same subject we had not highlighted the gist whiich we are doing in this post.

As per ESI Circular the following types of Outsourcing Contracts are recognized It categorizes the outsourcing, process and calls outsourcing in a simple term of “Job work”:

(a) The Jobwork done inside the factory/establishment premises through Contractors/Immediate Employers having independent ESIC Code Nos.

(b) Jobwork done inside the factory premises through Contractors/Immediate Employers not having independent ESIC Code Nos.

(c) Jobwork done outside the factory/establishment premises through factories/establishments which are having independent Code Nos.:

(d) Jobwork done outside the factory/establishment premises through factories/establishments which are not having independent Code Nos but the supervision being exercised by the Principal Employer

(e) Jobwork done outside the factory premises through units engaging less than 10/20 employees but working exclusively for the Principal Employer

(f) Jobwork done outside the factory/establishment premises through factory/establishment engaging less than 10/20 employees which are not independently coverable, and where no supervision is exercised and who are undertaking the work for more than one employer

(g) Jobwork done outside the factory premises through Contractors/Immediate Employers who perform the work through Home workers or works in non-implemented areas

With regards

Advocates & Notaries & Legal Consultants

E-mail : [email protected],net,

-9025792684-9025792634

From India, Bangalore

Attached Files
File Type: doc -VSRA-ESI-circular on-outsourcing-231210.doc (82.0 KB, 127 views)

Sub: Union Government open to Changes in Contract Labour Law[CLRA] .

Dear All

As per the report of the Premier Press Organization in India Press Trust of India [PTI] in its report dated 22-10-2010 published in the Business Standard of 23 rd October 2010 Hon’ble Minister of State for Labour and Employment Mr Harish Rawat addressing a seminar on 'Management of Contract Labour in PSEs'[Public Sector Enterprises] organized by Standing Conference of Public Enterprise expressed concerns over denial of statutory benefits to contract labour, and said the government would proceed on amendments to the law for such workers with an open mind.

"As far as amendments to the Contract Labour (Regulation & Abolition) Act, 1970 are concerned, we will proceed with an open mind," Mr Rawat said Industry has been demanding for long that the Section-10 to the Contract Labour (Regulation & Abolition) Act 1970 should be dispensed with but indicated that on the contrary, the Unionists think the other way round. He indicated that under Section 10 the Government can identify any process, operation or other work in an establishment, where it can prohibit any employment of contract labour and pointed out that the act is aimed to abolish and regulate contract labour.

Asked whether, any amendment bill for making changes in the Act is expected to be tabled in the forthcoming winter session, Mr Rawat said, "We are preparing the draft bill which is unlikely to be tabled in the next Parliament session."

The Minister urged the public sector to be a role model employer and to show a pathway to the private sector in implementing government regulations on labour.

Echoing similar views, Labour Secretary P .C .Chaturvedi said, "The law (for contract labour) has lost its spirit. There was an intention to reduce labour law over period of time, but it happened the other way round."
"Everybody is employing contract labour to reduce cost. But cutting cost does not mean exploitation of labour. It should be done by increasing productivity by modernization, best practices and using best technology," he said.

Mr Chaturvedi said, "Now public sector is using contract labour to cut cost and such workers are treated as second grade citizens."

"It is the PSUs, which should show the way to private sector. If the contract workers are treated with human face, the demand of regularization (of employment) would mellow down," he added.

On this occasion, Director General SCOPE U D Choubey said: "There are plethora of social security laws in India and SCOPE endorses the views of the government that welfare of the workers is a real concern as large number of people in the country are living below poverty line."

We support the views of the Minister and Labour Secretary P C Chaturvedi that there should be a balanced approach.

We eagerly await the draft legislation on behalf of the Industry.

With Regards

Advocates & Notaries & Legal Consultants

E-mail : [email protected],net,

-9025792684-9025792634

From India, Bangalore
Though the Act in its title proclaims "Abolition" of contract labour, in effect, it only 'regulates' the employment of contract labour.
The reality is that today contract labour has become an essential source of employment in any industry/office, be it private or government. It is told that even is some judicial forums contract labour exists. So it is an accepted mode of employment.
Efforts should therefore be made to ensure that such mode of employment does not lead to exploitation of labour. At the same time the concerns of employers to have a disciplined and flexible workforce for effective and profitable working should also be addressed.

From India, Madras
IMMEDIATE LEGAL QUESTIONS HAUNTING INDIAN STAFFING COMPANIES

In continuation of our earlier post on the subject :

A common question arises in Contractual Employment Whether on termination of the Contract Employee the Employer is bound to issue the Experience certificate ?

In Contract Labour Law [CLRA] the Relieving Letter is called as Service Certificate and governed by Rule 77 of the CLRA Rules .This can also be called as the Experience Certificate.

Service certificate.-On termination of employment for any reason whatsoever the contractor shall issue to the workman whose services have been terminated a

Service Certificate in Form XV.

The salient details are:

Name and address of contractor
Name and address of establishment in/
under which contract is carried on …………
Nature and location of work
Name and address of the workman
Age or Date of Birth
Identification Marks
Father's / Husband's name
Total period Employed
Starting Date:
Ending date:
Nature of the Work :
Details of Salary/Wages;

Consequently issue of the Service Certificate as per Form XV is mandatory.It has to be automatically issued without request from the Contract Employee for the following cases:

1.Termination
2.Resignation
3.Absconding or voluntary cessation of work.

Issue of the Service Certificate is also protective as the Last working Day with the Contractor and the Principal Employer is established.Therefore from the Employers side there should be no hesitation in issuing this certificate as a part of the F & F.Impression to the contrary may lead to Labour claims for back wages and re-instatement claims.

With Regards

V.Sounder Rajan

Advocates & Notaries & Legal Consultants

E-mail : [email protected],net,

-9025792684-9025792634

From India, Bangalore

Attached Files
File Type: doc VSRA-form15-SERVICE CERTIFICATE.doc (33.0 KB, 295 views)

Dear All

IMMEDIATE LEGAL QUESTIONS HAUNTING INDIAN STAFFING COMPANIES

In continuation of our earlier post on the subject:

A common question arises in Contractual Employment "Whether on termination of the Contract Employee the Employer is bound to settle the dues to the Employee at his own sweet will and pleasure or there is any rule to settle it within a time?

In the Contract Labour Law [CLRA] Rule 66 provides for the answer. It reads like this:

“Where the employment of any worker is terminated by or contractor the wages earned by him shall be paid before the expiry of the second working day from the day on which ‘he employment is terminated. “

Therefore there is a duty to settle the dues of employee before the expiry of the second working day from the day on which the employment is terminated.

Employers therefore cannot legally delay the Full & Final Settlement of Temporary or Contract Employees beyond the Statutory period .

With Regards

V.Sounder Rajan

Advocates & Notaries & Legal Consultants

E-mail : [email protected],net,

Mobile : 9025792684-9025792634

From India, Bangalore
BEST WISHES TO OUR FOLLOWERS FOR A PROSPEROUS 2011.

IMMEDIATE LEGAL QUESTIONS FOR INDIAN STAFFING COMPANIES

In continuation of our earlier post on the subject:

A common question arises in Contractual Employment on the duty of the Principal Employer in ensuring timely payment of Salaries to the Contract workmen

Rule 72 of the CLRA Rules states as follows:

"The principal employer shall ensure the presence of his authorized representative at the place and time of disbursement of wages by the contractor to workman and it shall be the duty of the contractor to ensure the disbursement wages in the presence of such authorized representative. "

Consequently when the rule clearly stipulates a duty on the part of the Principal Employer to be present at the place and time of disbursement of wages by the contractor to workman and also the duty of the contractor to ensure the disbursement wages in the presence of of the Principal Employer it is a matter of Joint responsibility .

With Regards

V.Sounder Rajan

Advocates & Notaries & Legal Consultants

E-mail : [email protected],net,

-9025792684.

From India, Bangalore
Dear All

In continuation of our earlier post on timely payment of wages to the Contractor's employees under Rule 72 of CLRA Rules under the next Rule 73 it is expressly provided that the authorized representative of the principal employer shall record under his signature a certificate at the end of the entries in the register of wages or the [Register of Wages-cum-Muster Roll as the case may be in following form:

“Certified that the amount shown in column No---------- has been paid to the workmen concerned in my presence on -------- at ---------“

Actually the Rules provide for supervision and certification by the Principal Employer at the time of very payment to the Contractor's employees by the Contractor .

With Regards

V.Sounder Rajan

Advocates & Notaries & Legal Consultants

E-mail : [email protected],net,

-9025792684.

From India, Bangalore

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