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Dear All Please clarify whether do we have to pay a day’s wages for trainees / temporaries, etc. on "Weekly Off day" when we pay their wages on monthly basis. Regards Ravichandran M
Dear ravichandran
If an emplyee whether temporary or permannet is employed for six days continuously, he is entitled to one weekly off which shall be paid one under law.
B.saikumar
HR &Labour Law advisor
Mumbai

Dear Mr.Ravichandran Is your establishment is covered by the Factories Act or the Shops and Establishments Act? With regards
Sir, My establishment is covered under Factories Act. However, i would like to know your advice in case of establishments covered under Shops Act. Please clarify for both cases. Rgds Ravichandran.M
Dear Mr.Ravichandran

Please see section 52 of the Factories Act. It says that no adult worker shall be required or allowed to work on the first day of the week. In other words, every adult worker should have a weekly holiday. But the Factories Act no where says that the weekly holiday shall be with wages. That is when you pay monthly wages to a worker, you are paying him for the days worked less the number of weekly holidays. This concept becomes relevant when you want to deduct wages for being on leave without pay. That is, if you want to calculate the one day wage of a monthly rated and monthly paid employee in a Factory, you have to divide the monthly rate by 26 and not by 30 or 31. The principle is that though the worker is monthly rated, he cannot be expected to work for all the days in a month and needs rest for a day in a week. The issue is whether the worker is entitled to wages for the weekly rest/off. Under the Factories Act there is no statutory obligation to pay wages for the weekly holiday. In the case of Shops and Establishments Act, there is no Shops and Establishments Act having all India applicability. Each State have enacted separate legislation which regulates the working conditions of employees of shops and establishments. That Act in each State has to be looked into to see whether there is a statutory obligation to pay wages for weekly off. In Tamilnadu the Tamilnadu Shops and Establishments requires the employer not to deduct wages for allowing a weekly holiday to the workers. Therefore, in Tamilnadu the employees of shops and establishments are entitled to weekly off with wages. The Shops and Establishments Act of other States have to be looked into to decide about the condition in that State.

With regards

Mr.Ravichandran

Your query is whether a temporary employee paid on monthly basis is entitled to wages on a weekly holiday. I am not going into the issue whether he is entitled to weekly holiday as it is an admitted fact.

In my view, the temporary worker paid on monthly basis is entitled to wages on a weekly holiday. In this context I refer to Sec.54 of the Factories Act, which states that no worker shall be allowed to work for more than 48 hours per week which works out at 8 hours per day for six days in a week. A week as per Sec.2 (g) means seven days starting from Sunday. It therefore means if a worker puts in 48 hours in six days, he is deemed to have worked for seven days and accordingly needs to paid on the seventh day also. Thus Sec.52 contains an inherent ’deeming’ clause, casting an obligation on the employer to pay wages to a worker on a weekly holiday.

This view finds support from the provisions of another section namely section 59 of the Factories Act. Sec.59 states that if a worker works for more than 48 hours a week, he shall be entitled to over time at the rate of twice the ordinary wages i.e 1 normal wage + 1 extra wage. Thus if you require a temporary worker to work on a Sunday which, thus exceeds 48 hours a week, you need to pay him over time at the rate of twice the ordinary wages. if no wages are payable to a worker on a weekly holiday, he should have been paid a single wage only for working on a weekly holiday as in the case of any other working day.But you have to pay double the ordinary wage.

This apart, a worker may very well want to work for all the seven days in a week and earn wages for all the seven days. By not paying him wages on a weekly holiday and at the same time not allowing him to work also on the said day, the employer will be forcibly depriving him of his livelihood in violation of article 20 of the Constitution, thus rendering his action amounting a lay off for which wages become payable under the Industrial Disputes Act also. Thus the payment of wages is envisaged under labour laws where the employee is rested at the instance of the employer.

The concept of weekly holiday is incorporated in the Factories Act and the Shops Act as a welfare measure to enable a worker who toils with a hammer and sickle for six days, needs rest at least for one day to recuperate and be ready for another six days of strain and the reason for paying him wages on weekly holiday is to prevent him from going to work again for earning wages as his means of livelihood is too frugal to sustain him and his family. Thus how a welfare legislation like the Factories Act can deny payment of wages to a poor worker on a weekly holiday.

Therefore a conjoint reading of the above sections and the welfare nature of the Factories Act, affirm that a temporary worker who is paid wage son monthly basis, is entitled to a paid weekly holiday under Sec.52 of the Act. The weekly holidyas shall also be paid holidays for the same reasons unde rthe Shops Act

B.Saikumar

HrR & Labour Law Advisor

Mumbai

Dear Mr.Ravichandran

The Factories Act and the Tamilnadu Shops and Establishment Act with reference to which I have responded to your post do not refer to a "permanent worker", or "temporary worker" or "trainees". The Factories Act refers to an "adult worker". The Tamilnadu Shops and Establishments Act refers to "person employed". While deciding on the issue raised by you, you have to take into consideration the definition of the term "adult" and the term "worker" as defined under the Factories Act and the definition of the term "person employed" as defined under the Tamilnadu Shops and Establishments Act or any such similar term used in any other Shops and Establishments Act in force in any other State. Under the Factories Act the working conditions prescribed therein are applicable to any one who is a "worker" under that Act. As you have restricted your query to the Factories Act and the Shops and Establishments Act, I am not referring to the provisions of other laws relating to working conditions like the Plantations Labour Act, or the Mines Act etc.,

With regards

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