it depends on the action initiated by the inspectorate of factories. You can pretty well see, so many companies are violated the law and pay their workers off the record and still they survive because of the nature of business. So if we get into other side of the law, hope it wont make sense. So better stick to the law and ensure you never violate the law. That's good for the company as well as to the employees.
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I have read a news about change in quaterly limit of overtime in Maharashtra. but in the labour cite i am not getting any amendment gazatte.
kindly guide me with the same.
1. is the quaterly limit extended from fifty to seventy five and now it says 115 if yes, kindly provide me with the amendment
2. can females in Maharashtra in factory, worl till 9 pm?
awaiting the answer
The definition of the term " worker" under the Factories Act,1948 is not a general one to include all and sundry employed therein within the meaning of the term but a qualified term restricting its application only to those who are engaged in actual manufacturing process. Therefore, those employed in a factory in managerial or supervisory levels, though such activities are performed in respect of the same manufacturing process can not be treated as workers for the purpose of overtime work.
2. No adult worker shall be required or allowed to work in a factory for more than NINE HOURS IN ANY DAY: Provided that, subject to the previous approval of the Chief Inspector, the daily maximum specified in this section may be exceeded in order to facilitate the change of shifts.
3. The periods of work of adult workers in a factory each day shall be so fixed that no period shall exceed five hours and that NO WORKER SHALL WORK FOR MORE THAN FIVE HOURS BEFORE HE HAS HAD AN INTERVAL FOR REST OF AT LEAST HALF AN HOUR.
4. State Government or, subject to the control of the State Government, the Chief Inspector, may, by written order and for the reasons specified therein, exempt any factory from the above provision SO HOWEVER THAT THE TOTAL NUMBER OF HOURS WORKED BY A WORKER WITHOUT AN INTERVAL DOES NOT EXCEED SIX.
5. The periods of work of an adult worker in a factory shall be so arranged that inclusive of his intervals for rest under section 55, THEY SHALL NOT SPREAD OVER MORE THAN TEN AND A HALF HOURS IN ANY DAY: Provided that the Chief Inspector may, for reasons to be specified in writing increase the SPREAD OVER UP TO TWELVE HOURS.
See this for total details Working Hours and Holidays Under Factories Act 1948 | Indian Labour Laws & Shram Suvidha Simplified
1. Is the eligibility based on the designation as mentioned in the above conversation?(only for workman)
2. if an employee drawing a gross salary of Rs.25000/-and above, will he be paid OT?
3. My doubt is to put a ceiling based on the salary or designation.
Quick response on the above queries will enable me to formulate a policy for my employees at my current company
Where a worker works in a factory for more than nine hours in any day or for more than forty-eight hours in any week, he shall, in respect of overtime work, be entitled to wages at the rate of twice his ordinary rate of wages.
Now it is important to know who falls under definition of worker. Under Factory Act 1948 there are 3 category of person i.e.
1. Occupier under Section 2 (n) of The Factory Act, 1948.
2. Manager under Rule of The Factory Rules of concern state.
3. Worker under Section 2 (l) of The Factory Act, 1948.
Here definition of Manager under Rule 2 (l) of The Punjab Factory Rules, 1952 does not include departmental manager like quality manager or HR Manager etc. because appointment intimation do not forwarded to Factory Inspector by occupier under section 7 (4) of factories Act, 1948 for appointment of departmental manager, so we can conclude that departmental manager are different from Manager under Rule of Factory Rules.
It is important to understand position of departmental manager under Factories Act, 1942. As per my understanding we can not import definition of workman under Section 2 (s) from the Industrial Dispute Act,1947 reason of this is objective of both Acts are entirely different.
The main object of the Factories Act, 1948 is to ensure adequate safety measures and to promote the health and welfare of the workers employed in factories whereas The Industrial Disputes Act, 1947 makes provision for the investigation and settlement of industrial disputes and for certain other purposes.
This is important to find categorization of departmental manager under Factories law only. We have to check definition of worker minutely because departmental manager can not be Occupier under Section 2 (n) of The Factory Act, 1948 or Manager under Rule 2 (l) of The Punjab Factory Rules, 1952.
There is only category left under Factories Act, 1948 i.e. “Worker” means a person employed directly or by or through any agency (including a contractor) with or without knowledge of the principal employer, whether for remuneration or not, in any manufacturing process, or in any other kind or work incidental to, or connected with, the manufacturing process or the subject of the manufacturing process but does not include any member of the armed forces of the Union. [Section 2(1)]
The definition contains following ingredients :
There should be an ‘employed person’
Meaning of the word “employed”: The concept of “employment” involves three ingredients, viz. employer, employee, and contract of employment. The ‘employer’ is one who employs, i.e., one who engages the services of other persons. The ‘employee’ is one who works for another for hire. above understanding comes from case law of Chintaman Rao v. State of M.P. AIR 1958 S.C. 388 which said that :
The employment is the contract of service between employer and employee where under the employee agrees to serve the employer subject to his control and supervision. The prima facie test for determination of the relationship between the employer and employee is the existence of the right of the employer to supervise and control the work done by the employee not only in the matter of directing what work the employee is to do but also the manner in which he shall do his work.
Employed in work incidental to process: This clause is very important because it enlarges the scope of the term, manufacturing process.
Following illustrative cases will clarify the meaning of this clause:
(1) In Shinde v. Bombay Telephones, 1968 (11) LLJ 74, it was held that whether the workman stands outside the factory premises or inside it, if his duties are connected with the business of the factory or connected with the factory, he is really employed in the factory and in connection with the factory.
(2) In Works Manager, Central Rly. Workshop Jhansi v. Vishwanath and others, it was held that the definition of worker does not exclude those employees who are entrusted solely with clerical duties, if they otherwise fall within the definition of ‘worker. Timekeepers employed to maintain attendance of the staff, job cards particularly of the various jobs under operation, and time- sheets of the staff engaged in production of
spare parts, repairs, etc.; and head time-keeper who supervise the work of the time-keepers, perform work which is incidental to or connected with the manufacturing process carried on in the factory and would therefore, fall within the definition of the worker in the Act.
Now it is very important to understand nature of work of departmental manager. whether departmental manager works under supervision and control of employer or departmental manager have liberty to work as per his discrition.
In Shankar Balaji Waje v. State of Maharashtra, AIR 1963 Bom. 236, the question arose whether bidi roller is a worker or not. The management simply says that the labourer is to produce bidies rolled in a certain form. How the labourer carried out the work is his own concern and is not controlled by the management, which is concerned only with getting bidies rolled in a particular style with certain contents. The Supreme Court held that the bidi roller is not a worker.
The whole conception of service does not fit in well with a servant who has full liberty to attend to his work according to his pleasure and not according to the orders of his master. Where the employer did retain direction and control over the workers both in manner of the nature of the work as ‘also its details they will be held as workers.
In State of Kerala v. R.E.DSouza; Women and girls employed in peeling, washing etc., of consignment of prawns brought on the premises at any time of the day or night, without any specified hours of work and without any control over their attendance or the nature, manner or quantum of their work and who after finishing the work go to other premises in the locality where similar consignment of prawns are received, are not Workers.
So deciding factor about category of departmental manager whether falls under definition of worker or not; working conditions under employment are required to examine like:
1. whether departmental manager working hours is as per his own sweet will or not?
2. whether departmental manager working method is out of employer supervision or not?
3. whether departmental manager working is out of employer control or not?
if answer of above three question's answer are "No"; then departmental manager falls under definition of worker if his works within factory for manufacturing process or not.
if answer of above three question's answer are "Yes"; then departmental manager do not falls under definition of worker even he works within factory for manufacturing process.
In question of whether all employees are workers court said as below:
Since the word employee has not been defined in the Act it follows that all the workers within the ambit of the definition under the factories Act would be employees, while all employees would not be workers (Harbanslal v. State of Karnataka, (1976)1 Karnt.J.111).
All persons employed in or in connection with a factory whether or not employed
as workers are entitled to the benefits of the Act (Union of India v. G.M. Kokil, 1984 SCC (L&S) 631).
Once it is established prima facie that premises in question is a factory within the meaning of the Act, the provisions of Section 103 as to the presumption of employment are immediately attracted and onus to prove the contrary shifts to the accused (Prafulbhai Patadia v. The State, 1976 (12) E.L.R. 329).
kindly help me to provide any notification for below points.
1. is the quarterly limit extended from fifty to seventy five and now it says 115 if yes, kindly provide me with the amendment
2. can females in Gujarat in factory, work till 9 pm?
awaiting the answer