Hi, I work for a BPO in Mumbai. I have some queries about the leave policy governing companies in Maharashtra. My main query is which law these corporate companies need to follow in Maharashtra. If a BPO with a staff of over 800 employees is to draft a policy governing leaves for its employees, which rulebook should it follow? Should it adhere to the Factories Act 1948 or the Maharashtra Factories Rule 1963? Or are there other laws like the Companies Act or BPOs Act that a BPO should follow while outlining its leave policy? Once I get clarity on this, I will be able to ask more questions about the compensatory off policies of companies in Maharashtra.
From India, Thane
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From India, Thane
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Dear Andrey,
It falls under "The Shops & Establishment Act, 1948" and rules of leave under the said act are given below.
Chapter: Leave with Pay and Payment of Wages
Section 35: Leave
(1) (a) Subject to the provisions of clause (b), every employee who has been employed for not less than three months in any year shall be allowed leave for every 60 days on which he has worked during the year, consecutive or otherwise, for a period of not more than five days.
(b) Every employee who has worked for not less than two hundred and forty days during a year [irrespective of the date of commencement of his service] shall be allowed leave, consecutive or otherwise, for a period of not less than twenty-one days. Provided that such leave may be accumulated up to a maximum period of forty-two days. Explanation: The leave allowed to an employee under clauses (a) and (b) shall be inclusive of the day or days during the period of such leave on which a shop or commercial establishment remains closed under sub-section (1) of section 18 or on which he is entitled to a holiday under sub-section (1) of section 24 or section 31.
(2) If an employee entitled to leave under sub-section (1) [or (1-A)] is discharged by his employer before he has been allowed the leave, or if, having applied for and having been refused the leave, he quits his employment before he has been allowed the leave, the employer shall pay him the amount payable under section 36 in respect of the leave.
(3) If an employee entitled to leave under sub-section (1) [or (1-A)] is refused the leave, he may give intimation to the Inspector or any other officer authorized in this behalf by the [State] Government regarding such refusal. The Inspector shall enter such intimation in a register kept in such form as may be prescribed. The employee shall also send a copy of such intimation to his employer and, thereupon, the employee shall be entitled to carry forward the unavailed leave without any limit.
(4) Notwithstanding anything contained in this section, every employee, irrespective of his period of employment, shall be entitled to an additional holiday on the 26th January, 1st May, 15th August, and 2nd October every year. For a holiday on these days, he shall be paid wages at a rate equivalent to the daily average of his wages (excluding overtime) which he earns during the month in which such compulsory holiday falls. Provided that the employer may require any employee to work in the establishment on all or any of these days, subject to the conditions that for such work, the employee shall be paid double the amount of the daily average wages and also leave on any other day in lieu of the compulsory holiday.
Chapter: Leave with Pay and Payment of Wages
Section 36: Pay during leave
Every employee shall be paid for the period of his leave at a rate equivalent to the daily average of his wages for the days on which he actually worked during the preceding three months, exclusive of any earnings in respect of overtime.
Chapter: Leave with Pay and Payment of Wages
Section 37: Payment when to be made
An employee who has been allowed leave under section 35 shall, before his leave begins, be paid half the total amount due to him for the period of such leave.
From India, Mumbai
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208It falls under "The Shops & Establishment Act, 1948" and rules of leave under the said act are given below.
Chapter: Leave with Pay and Payment of Wages
Section 35: Leave
(1) (a) Subject to the provisions of clause (b), every employee who has been employed for not less than three months in any year shall be allowed leave for every 60 days on which he has worked during the year, consecutive or otherwise, for a period of not more than five days.
(b) Every employee who has worked for not less than two hundred and forty days during a year [irrespective of the date of commencement of his service] shall be allowed leave, consecutive or otherwise, for a period of not less than twenty-one days. Provided that such leave may be accumulated up to a maximum period of forty-two days. Explanation: The leave allowed to an employee under clauses (a) and (b) shall be inclusive of the day or days during the period of such leave on which a shop or commercial establishment remains closed under sub-section (1) of section 18 or on which he is entitled to a holiday under sub-section (1) of section 24 or section 31.
(2) If an employee entitled to leave under sub-section (1) [or (1-A)] is discharged by his employer before he has been allowed the leave, or if, having applied for and having been refused the leave, he quits his employment before he has been allowed the leave, the employer shall pay him the amount payable under section 36 in respect of the leave.
(3) If an employee entitled to leave under sub-section (1) [or (1-A)] is refused the leave, he may give intimation to the Inspector or any other officer authorized in this behalf by the [State] Government regarding such refusal. The Inspector shall enter such intimation in a register kept in such form as may be prescribed. The employee shall also send a copy of such intimation to his employer and, thereupon, the employee shall be entitled to carry forward the unavailed leave without any limit.
(4) Notwithstanding anything contained in this section, every employee, irrespective of his period of employment, shall be entitled to an additional holiday on the 26th January, 1st May, 15th August, and 2nd October every year. For a holiday on these days, he shall be paid wages at a rate equivalent to the daily average of his wages (excluding overtime) which he earns during the month in which such compulsory holiday falls. Provided that the employer may require any employee to work in the establishment on all or any of these days, subject to the conditions that for such work, the employee shall be paid double the amount of the daily average wages and also leave on any other day in lieu of the compulsory holiday.
Chapter: Leave with Pay and Payment of Wages
Section 36: Pay during leave
Every employee shall be paid for the period of his leave at a rate equivalent to the daily average of his wages for the days on which he actually worked during the preceding three months, exclusive of any earnings in respect of overtime.
Chapter: Leave with Pay and Payment of Wages
Section 37: Payment when to be made
An employee who has been allowed leave under section 35 shall, before his leave begins, be paid half the total amount due to him for the period of such leave.
From India, Mumbai
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Beauty. My employer who is in thane and not exactly mumbai, are they as well governed by the shops and establishments act bombay 1948.
From India, Thane
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From India, Thane
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Section one of the Act clearly states that it extends to the whole of Maharashtra.
You may want to engage with a Labor Law consultant to help you get your BS&E compliance straightened out and in place. It is imperative to have that compliance followed to the T.
From India, Mumbai
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You may want to engage with a Labor Law consultant to help you get your BS&E compliance straightened out and in place. It is imperative to have that compliance followed to the T.
From India, Mumbai
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Dear Andrey, Yes, it is applicable in Thane too. its comes under "Thane Municiple corporation" - TMC.
From India, Mumbai
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From India, Mumbai
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Thank you for the precise answer. Now, to tell the fact, I have always been deprived of compensatory time off, even though I have worked on public holidays. The management is not willing to accept its fault. I am fully prepared to take this to the next step. Going legally, can someone tell me who will be my next point of contact? Should I contact the 'Conciliation Officer,' the labor office, or directly approach the tribunal? I am absolutely hopeless with the legality of these things, but I am confident that I am on the right side of the case and the management is in the wrong.
So the only two questions I am really asking are:
1.) Will the Industrial Disputes Act be applicable for a BPO in Thane?
(Going by the term "industries," is a BPO considered an industry? If the Industrial Disputes Act can be relied upon, as an agent in a BPO, will I be considered a workman?)
2.) What will be the path to follow to raise a dispute? Do I contact a labor lawyer, or do I directly approach an officer in a legal institution? And what happens thereafter, in the sense of how will the case proceed?
Is there a case study that I can go through which relates to a case where an employee has filed a case against the employer for not granting leaves? If yes, please provide the link or upload a document for the same.
Thank you
From India, Thane
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So the only two questions I am really asking are:
1.) Will the Industrial Disputes Act be applicable for a BPO in Thane?
(Going by the term "industries," is a BPO considered an industry? If the Industrial Disputes Act can be relied upon, as an agent in a BPO, will I be considered a workman?)
2.) What will be the path to follow to raise a dispute? Do I contact a labor lawyer, or do I directly approach an officer in a legal institution? And what happens thereafter, in the sense of how will the case proceed?
Is there a case study that I can go through which relates to a case where an employee has filed a case against the employer for not granting leaves? If yes, please provide the link or upload a document for the same.
Thank you
From India, Thane
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Ok. First things first. I am assuming you are part of HR for your company. Why do you want to go against the management of your company? You need to understand the laws first and convince your management that they need to follow the law (for compensatory offs, etc.) going forward. It will take some time in policy creation, implementation, etc.
Moreover, I am not an expert on labor laws, but I am not sure if the ID Act will apply. While technically, there may be some employees who will come under the workmen category, I doubt if the Act will apply to the whole of the company. The way I see it is that this is an opportunity to set things straight (as far as legality and policy are concerned). Also, remember that whatever happened in the past, you will not be able to change that, but you need to plan for how you will manage the HR function in the future.
From India, Mumbai
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Moreover, I am not an expert on labor laws, but I am not sure if the ID Act will apply. While technically, there may be some employees who will come under the workmen category, I doubt if the Act will apply to the whole of the company. The way I see it is that this is an opportunity to set things straight (as far as legality and policy are concerned). Also, remember that whatever happened in the past, you will not be able to change that, but you need to plan for how you will manage the HR function in the future.
From India, Mumbai
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I am an employee of the organisation. Not an HR executive. I have clearly stated that I am an agent, just an employee who has been working for the company for past 4 years.
From India, Thane
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From India, Thane
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Hi HR Friends,
Regarding Compensatory Off: Here, the employee has worked on certain holidays in addition to regular working days. According to the Factories Act, the employee is entitled to avail Compensatory Off within 2 months. The employee should provide relevant Acts to their superior to resolve the issue. The superior should understand that if an employee's service is utilized on a Sunday or holiday, they should not be denied a day of rest and should be compensated with a Compensatory Off day.
I trust that the superior will acknowledge the statutory obligations of the employer, and the matter will be resolved without legal complications. Furthermore, even the superior, being a human being, will require a day of rest after working continuously for an extended period to take care of their health. The various Labour Acts are designed to safeguard the health and welfare of all individuals and should be respected and upheld.
Email: c.neyimkhan56@gmail.com
Ex-AGM-HR&A, HR Consultant & Advocate
9341111972
From India, Bangalore
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Regarding Compensatory Off: Here, the employee has worked on certain holidays in addition to regular working days. According to the Factories Act, the employee is entitled to avail Compensatory Off within 2 months. The employee should provide relevant Acts to their superior to resolve the issue. The superior should understand that if an employee's service is utilized on a Sunday or holiday, they should not be denied a day of rest and should be compensated with a Compensatory Off day.
I trust that the superior will acknowledge the statutory obligations of the employer, and the matter will be resolved without legal complications. Furthermore, even the superior, being a human being, will require a day of rest after working continuously for an extended period to take care of their health. The various Labour Acts are designed to safeguard the health and welfare of all individuals and should be respected and upheld.
Email: c.neyimkhan56@gmail.com
Ex-AGM-HR&A, HR Consultant & Advocate
9341111972
From India, Bangalore
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Dear Andrev,
Let's clarify your points as you asked.
First of all, you cannot file a case in the labor court or under the ID Act as your nature of work is not as a worker or laborer. However, you can file a case under the Industrial Tribunal under the Employment and Industrial Relations Act or in the Civil Court.
As you asked whether you should hire an advocate or not, before that, I would suggest that you first find out the ratio of the claim for compensation amount. If it exceeds the advocate's fees, then there is no point in fighting this case, and you will incur a loss.
From India, Mumbai
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Let's clarify your points as you asked.
First of all, you cannot file a case in the labor court or under the ID Act as your nature of work is not as a worker or laborer. However, you can file a case under the Industrial Tribunal under the Employment and Industrial Relations Act or in the Civil Court.
As you asked whether you should hire an advocate or not, before that, I would suggest that you first find out the ratio of the claim for compensation amount. If it exceeds the advocate's fees, then there is no point in fighting this case, and you will incur a loss.
From India, Mumbai
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If you work on a holiday, you must be paid overtime wages at twice your gross. Comp off is referred to in the Shops Act only for working on a 'compulsory holiday' such as 26th Jan, 1st May, 15th August, and 2nd October. Also, the maximum working hours as per the Shops Act are 48 per week. You may complain to the Government Labour Officer or Shops Inspector of your area in writing. However, this may affect your career as your present employer may inform your new employer once they become aware of it.
Email: shrikant@classiclabour.com
From India, Mumbai
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Email: shrikant@classiclabour.com
From India, Mumbai
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Dear Friends,
Please see the following URL where the answers to your queries may be available: https://www.citehr.com/126676-labour...tml#post532533.
Regards,
PBS KUMAR
From India, Kakinada
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Please see the following URL where the answers to your queries may be available: https://www.citehr.com/126676-labour...tml#post532533.
Regards,
PBS KUMAR
From India, Kakinada
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