Madhu.T.K
Industrial Relations And Labour Laws
Deepakbhavsar
Hr Officer
+2 Others

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Dear all Member,
Need help for above Topic.
We have two categorized worker, one is permenent(on Payroll) whose getting a benefits of Leave, PF, ESIC And another is Temporary worker whose getting only Esic Benefits.
But problem is that Permenent worker getting less Cash Carry againts Temporary worker because PF deduction of Permenent worker's salary so that they gets less Cash carry rather than temporary worker.
so There is big problem of Permenent worker's Turnover it will effect on Productivity, Quality, Time consume for worker recruitment.
Pls help me out for how can i positively diffrenciate a permenent worker & Temp.Worker. i want to retain both but there is some motivation for Temp.worker to be a permenant how?
Regards
Pundlik Bhavsar
HR Executive

Mr.Pundlik
You may distinguish between a permanent worker or temprary worker so far as benefits of P.F and ESI etc. are concerned but in my view the law doea not do so.An employee whether permanent worker or temporary worker is admissible to the above benefits, if he is employed by the employer to do the work of the estbalishment or any work connected with that of the establishment so long as he is under the employment of the company. the company may not, for it's own reasons, keep on the pay roll but it does not deprive him of these benefits. Thus this may bring pariy between the emporary worker and permanent worker and may motivate the temps to continue.
B.Saikumar
HR & labour Law Advisor
Mumbai

When the employee's work period is specific and he is subjected to work only for that particular predecided time period then he is considered as "temporary Employer". According to the Indian Contracts Act, temporarily, is the term which is interpreted as subject to time, for a specif amount of time.......

On the other hand when the time period of his employment is unknown and not decided for any amount, he is considered as "permanent employee"

When a employee joins the company, but we do not know how he works, so we put him on Probation/observation for specific period. Such employee is called an Employee under probation. And he is also temporary because we do not know yet, because he is under observation.

And when the employee signs and agreement for a specific purpose/time, and works only according to such agreement or contract, he is called employee under contract or contractual employment. The employee under consignment. He just agrees to do the specific work in a specified manner within specified time.

Company enters in to a contract with person who is a contractor who send employees for work to our company, even those employees are contact employees.

When the employee hired by one company, but that company hires the employee with the purpose of sending them to other company for work, Such employees are called outsourced employees. I am hiring you to send you or to outsource you another company.

refer section 2(f) of THE EMPLOYEES’ PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952, if you want the definition of employee, with reference to the PF..........

Refer Factories Act Section 2, for the definition of Worker.......

The expressions "permanent" or 'temporary' or 'probationer' need to be understood in the context of the meaning ascribed to them under the labour laws, having regard to the practice and customs prevailing in the industry.Thus they cannot be loosely defined nor can be defined subjectively.For example, a permanent employee is not one whose period of employment is not known nor was decided for any amount. In fact, the period of employment of permanent employee is too limited by the age of superannuation or retirement and every one knows that he will cease to be an employee after that date and he cannot continue eternally.Similarly a probationer cannot b classified as temporary employee merely because he is kept under probation because, if confirmed, he becomes a permanent employee whereas there is no question of confirming a temporary employee because a temporary employee is terminated once the work for which he was appointed gets over or the period for which he was appointed expires.Again the distinction between contract labour and outsourced empployee is nebulous. If the work is outsourced to an outside agency, how he can be the employee of the company which is outsourcing the work. he can be only the employee of the outside agency.

These words and expressions have been defined by the Model Standing Orders framed under the Industrial Employment(Standing Orders0Act 1946 and thus have statutory flavour and by the respective acts like the Contarct labour Act or the Sales Promotion Employees Act and need to be understood within the four corners of teh relevant Acts.

B.Saikumar

HR &Labour Law advisor

Mumbai.

A temporary worker is one who is "engaged" in a work of temporary nature, say, for example, person engaged for carrying out any repair, white washing or such work which are not related to or incidental to the activities of the company. At the same time, a permanent worker is one who is "employed" in a work of permanent nature. Probationer is one also one who is employed in a permanent job but is not confirmed.

I have used the words "engaged" and "employed" to distinguish the two because the term engaged sounds to be casual engagement and the other one is employment as it is. This has been clearly interpreted by Punjab and Haryana High Court in Employees State Insurance Corporation v. Malhotra and Co., Chandigarh, (1981 Lab I.C. 475), as:

“In fact, a clear distinction must be made between a casual worker and a person engaged for a specific item. The distinction is between employment and an engagement. If a person is engaged casually for a process unconnected with the operations of the establishment or some work which does not form integral part of such operations, he will not be an employee. There is no relationship of employer and employee. The employer has no control to take disciplinary action. He would only be engaged for the purpose”.

A similar interpretation has also been given by The Kerala High Court in the case of Regional Director, E.S.I. Corporation v. P. R. Narahari Rao, (1986 Lab I.C. 1981)

Regards,

Madhu.T.K

Dear All, It was really very healthy and knowledge sharing discussion.Its really very fruitful for new entrants in HR arena like me. Thanks for sharing. Regards Umesh
Dear Pundlik Bhavsar
first you read the pf act based on that all worker and staff are covered under pf act if he is getting less than 6500 salary of basic and da. what you are doing its a wrong practice of hr. one who is playing a role as a HR he should convey the message to management regarding the act, because any problem arise in future the pf people will ask hr only.
regards
rajesh

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