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The IT industry has brought about revolutionary change in the Indian economy. All the state governments in the country welcomed the change. Vast funds have been invested in the IT sector that has created numerous employment opportunities. The IT industry enjoys several concessions in FSI, electricity, taxes etc. but the employee who is the most vital element in the system has remained neglected. The IT industry also introduced several changes in HR policies. The duty hours of other countries were followed. The companies adopted the policy of restricting employment to staff from other companies. Since opportunities were abundant, the employees started switching to new jobs frequently for the slightest additional benefits and incentives. To check this tendency, some companies ask employees to deposit their original passports and certificates.

The IT companies in urban areas come under the Shops & Establishments Act. The question raised in this regard is whether the Factories Act applies to the IT sector. This issue is pending in the Supreme Court. However, an IT professional cannot be considered as a ‘workman’. This question is also pending in the Supreme Court. The IT professionals have an aversion towards labour unions, since they have a false notion that labour unions are concerned with manufacturing units. Several entrepreneurs in the field believe that the Trade Union laws do not apply to the IT field. In recent times there has been an attempt to establish a union and it is getting a positive response.

The murder of one employee is not just one incidence that draws our attention but the fact is that issues related to IT employees have always been neglected. A majority of employees are women who work in unsafe conditions. Many companies compel employees to resign so that they do not have to be given the benefits of gratuity, which is mandatorily payable after completion of 5 years of service. How many clauses in the appointment letters of the employees are legal and enforceable is a matter of investigation. The companies retain the right to dismiss employees any time but they point out clauses in the appointment letters when employees wish to change jobs for better prospects. Young people keep changing jobs when they get better offers. This fluctuation and unstable nature of the jobs has direct impact on the social aspect of their lives. To what extent is the social impact serious? The seriousness of the social impact is evident in the stressful life conditions and increasing number of divorces. Although some companies have taken positive steps to handle all these problems, the fact remains that IT employees have no support of law. Workers in the manufacturing companies do have the protection of Industrial Dispute Act and other related laws. However, their counterparts in the IT sector have no protective laws.

The company authorities are responsible for the safety and security of their employees as per the Factories Act. The incidence of molestation of a young woman in the pick-up vehicle in Bengaluru and her murder some years back is shocking.

As per the Shop Act in Karnataka state a case was files against the director of the company. Both the High court and the Supreme Court refused to withdraw the case against the director.

All the states have formulated some rules and regulations regarding women employees in the Shop Act. These rules and regulations are inadequate and are not followed strictly. The reason is that the IT sector enjoys a special and VIP status. There have been cases of rape and murder in cities like Pune, Bangalore, New Delhi, Mumbai and Hyderabad.

The Supreme Court has also agreed that there is a need for amendment in related laws, particularly for women employees. The laws are not confined to women in the IT sector but extend to women working in malls, 5 star hotels and other similar jobs. The fact remains that an IT employee has no legal provisions regarding safety and security. The police have issued circulars in the past urging IT Companies to implement specific safety measures for women. The IT sector has never received legal support like the manufacturing sector post-independence. There is an urgent need to frame laws related at least to the basic minimum working conditions for women. At the same time, it is necessary to take precautions that women do not take disadvantage of the laws.

Unless the company directors are held responsible, the safety of women employees cannot be achieved in a country like India. This, I believe is a matter of prime concern
22nd February 2017 From India, Pune
In the wake of brutal and inhuman cases like Nirbhaya, Nayana Pujari, to name a few, the first and foremost question that comes to mind is

“THE FOOLPROOF SECURITY OF EMPLOYEES, ESPECIALLY WOMEN”

A lot has been spoken, discussed and deliberated. But the question is “What really can assure a failsafe security?”

The following basic and common sense guidelines could be of much help to the companies regarding the same question:

*APPOINTING A DEDICATED DIRECTOR

*FOUNDING SAFETY POLICY

*VERIFICATION OF SECURITY AGENCIES

*TRANSPORTATION

If the house of a woman employee is located away from a motor able road, the security guard should accompany her to her house and confirm her safe arrival. Exercise control on the vehicle’s movement to check any unwarranted activities of drivers, such as picking up strangers & straying from the designated route. Install GPS sets in the cabs.

Hence, to conclude, safety and security is a result of joint efforts and diligence on the part of all the associated personnel of the company.

See the detailed article in the given link Improvised Safety & Security Measures of Women Employees | Asklabourproblem

Ask anything about your labour problem at Employment Agreement, Industrial Labour Laws, Employment Law
22nd June 2017 From India, Pune
Recent Case

In the current case, Madras High Court passed an order against a leading I.T. company, Tata Consultancy Services, restraining it from the termination of employment of a software analyst working therein.

The terminated employee claimed to be a ‘workman’ u/s 2 (s) of the Industrial Disputes Act, 1947. She was denied severance pay which happens to be compulsory u/s 25 F (b) of the Industrial Disputes Act, 1947. She had moved to the High Court against such an arbitrary decision of retrenchment stating that this move was a gross violation of the provisions of the Industrial Disputes Act, 1947.

The Madras High Court passed such an interim injunction against the orders of termination of employment after the lady was retrenched during her pregnancy. The lady has further submitted that the company had taken an unfair decision to terminate the job of 25,000 workers holding designation of assistant consultant and above. Also such workmen were entitled to severance pay which was denied by the company.

The Company has also failed to comply with various other requirements that have been mentioned under provisions of this Act such failing to publish seniority list, failure to give notice for retrenchment etc.

It is but the common perception that such an intervention by the court may pave the way for many such litigants who have been distressed and exploited by various big players of the I.T. industry.
22nd June 2017 From India, Pune
for detailed article and information visit this link of Asklabourproblem website Forced Resignations in the I.T. Industry | Asklabourproblem
22nd June 2017 From India, Pune
Introduction

For an employee to be regarded as a ‘workman’ under the Industrial Disputes Act, 1946, there are two basic essentials. Firstly, the establishment has to be considered an “industrial establishment” according to the definition of “industrial establishment” and secondly, the employee has to be a “workman” within the definition of a ‘workman’ under sec 2 of the Industrial Disputes Act, 1946.

Are IT Companies Industrial Establishments?

According to sec 2 (k a) of the Industrial Disputes Act, an Industrial establishment or an undertaking “means an establishment or undertaking in which an industry is carried on …..” Further, industry “means any business, trade, undertaking, manufacture, or calling of employers includes any calling, service, employment, handicraft or industrial occupation or avocation of workmen”

All I.T. Establishments, either electronic data processing or computer software development companies fall under the definition of ‘industry’ under the ID Act.

In Seelan Raj and Others v. Presiding Officer, I Addl. Labour Court, Chennai and Others, (2001) 89 FLR 342, tried to determine whether IT companies fall within the definition of “industry” under the ID Act or a ‘factory’ under the Factories Act, 1948. It was held by the Supreme Court in this case that since no manufacturing processes or activities are conducted in electronic data processing or computer software development companies, they would be considered “industrial establishments” under the ID Act.

Definition of ‘workman’

‘Workmen’ under sec 2 of the Industrial Disputes Act, 1947 have been defined as persons employed in any industry (or even an apprentice) to do any manual, unskilled, skilled, technical, operational or supervisory work for hire or reward, whether the terms of employment are express or implied, and for the purposes of any proceeding under the ID Act in relation to an industrial dispute, includes persons who have been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any person –

Who is subject to the Air Force Act, 1950;

Who is employed in the police service or as an officer or other employee of a prison;

Who is employed mainly in a managerial or administrative capacity; or

Who being employed in a supervisory capacity, draws wages exceeding Rs. 1600 per month, or who exercises functions of a managerial nature.

Employees under the definition of ‘workmen’

Courts in India, with regard to the ambit a ‘workman’ under the ID Act, have quite evidently followed the precedent laid down in HR Adyanthayavs v. Sandoz (India) (1995 ILCJ 303; AIR 1994, SC 2608), or for that matter in Raj Kumar v. Director of Education. In the above mentioned cases, it was held that merely being excluded of the 4 exceptions enlisted in the definition of ‘workman’ under sec 2 of the ID Act does not necessarily make an employee a workman. For being considered a workman, an employee must be doing a job that is be skilled, unskilled, manual, technical, operational or clerical in nature.

Classification of work

Employees holding Managerial or Executive positions have been disregarded as ‘workman’ under the ID Act. The kind of role that a manager or an executive actually performs has been variable though. To solve this issue, it has been unanimously held by Courts that the nature of work that an employee generally performs would stand as the test to ascertain whether he is a ‘workman’ or not. It was held in Delta Jute and Industries Ltd. V. State of West Bengal and others that if the nature of work is suggestive, the designation is immaterial. A judgement on similar lines was seen in the case of Ananda Bazar Patrika Ltd. v. Workmen (1969 (18) FLR 186 SC), where it was held by the court that if a person is primarily occupied in doing technical or clerical job and occasionally employed in supervisory work, he shall be considered a workman under the ID Act.

In other words, to ascertain if a particular person is to be considered a ‘workman’ owing to his managerial or executive designation, the emphasis should lie on the nature of work that such a person usually does.

Hierarchy in I.T. Industry

Following is a very common hierarchy chart of designations in any IT establishment:-

Associate Software Engineer;

Software Engineer Analyst;

Senior Software Engineer;

Team Leader;

Associate Manager;

Manager;

Senior Manager; and

Senior Executive.

Can IT Professionals be regarded as Workmen?

In a very recent case, K Ramesha, a software engineer working with HCL, a famous IT company, approached the Labour Court on allegedly being illegally terminated from his job. The Additional Labour Court Presiding Officer held that any person doing a skilled job is a workman. This rule was no different for all categories the employees of the IT Sector except for those specifically excluded by the Industrial Disputes Act, 1946.

It was further held that the job of a Software Engineer working for an I.T. Company is technical and skilled in nature. Hence he would be considered a ‘workman’.

In a recent statement, the Tamil Nadu Government has affirmed that employees of the I.T. Industry fall within the definition of a ‘workman’ under the Industrial Disputes Act, 1946.

Read further at Status of an Employee in the I.T. Industry | Asklabourproblem
22nd June 2017 From India, Pune
The IT industry has brought about revolutionary change in the Indian economy. All the state governments in the country welcomed the change. Vast funds have been invested in the IT sector that has created numerous employment opportunities. The IT industry enjoys several concessions in FSI, electricity, taxes etc. but the employee who is the most vital element in the system has remained neglected. The IT industry also introduced several changes in HR policies. The duty hours of other countries were followed. The companies adopted the policy of restricting employment to staff from other companies. Since opportunities were abundant, the employees started switching to new jobs frequently for the slightest additional benefits and incentives. To check this tendency, some companies ask employees to deposit their original passports and certificates.

The IT companies in urban areas come under the Shops & Establishments Act. The question raised in this regard is whether the Factories Act applies to the IT sector. This issue is pending in the Supreme Court. However, an IT professional cannot be considered as a ‘workman’. This question is also pending in the Supreme Court. The IT professionals have an aversion towards labour unions, since they have a false notion that labour unions are concerned with manufacturing units. Several entrepreneurs in the field believe that the Trade Union laws do not apply to the IT field. In recent times there has been an attempt to establish a union and it is getting a positive response.

The murder of one employee is not just one incidence that draws our attention but the fact is that issues related to IT employees have always been neglected. A majority of employees are women who work in unsafe conditions. Many companies compel employees to resign so that they do not have to be given the benefits of gratuity, which is mandatorily payable after completion of 5 years of service. How many clauses in the appointment letters of the employees are legal and enforceable is a matter of investigation. The companies retain the right to dismiss employees any time but they point out clauses in the appointment letters when employees wish to change jobs for better prospects. Young people keep changing jobs when they get better offers. This fluctuation and unstable nature of the jobs has direct impact on the social aspect of their lives. To what extent is the social impact serious? The seriousness of the social impact is evident in the stressful life conditions and increasing number of divorces. Although some companies have taken positive steps to handle all these problems, the fact remains that IT employees have no support of law. Workers in the manufacturing companies do have the protection of Industrial Dispute Act and other related laws. However, their counterparts in the IT sector have no protective laws.

The company authorities are responsible for the safety and security of their employees as per the Factories Act. The incidence of molestation of a young woman in the pick-up vehicle in Bengaluru and her murder some years back is shocking.

As per the Shop Act in Karnataka state a case was files against the director of the company. Both the High court and the Supreme Court refused to withdraw the case against the director.

All the states have formulated some rules and regulations regarding women employees in the Shop Act. These rules and regulations are inadequate and are not followed strictly. The reason is that the IT sector enjoys a special and VIP status. There have been cases of rape and murder in cities like Pune, Bangalore, New Delhi, Mumbai and Hyderabad.

The Supreme Court has also agreed that there is a need for amendment in related laws, particularly for women employees. The laws are not confined to women in the IT sector but extend to women working in malls, 5 star hotels and other similar jobs. The fact remains that an IT employee has no legal provisions regarding safety and security. The police have issued circulars in the past urging IT Companies to implement specific safety measures for women. The IT sector has never received legal support like the manufacturing sector post-independence. There is an urgent need to frame laws related at least to the basic minimum working conditions for women. At the same time, it is necessary to take precautions that women do not take disadvantage of the laws.

Unless the company directors are held responsible, the safety of women employees cannot be achieved in a country like India. This, I believe is a matter of prime concern.

Read more about Laws for IT Industry at Asklabourproblem website Need for Special LAWS for IT Industry | Asklabourproblem
22nd June 2017 From India, Pune
REGULATORY FRAMEWORK:

The Industrial Disputes Act, 1947 (hereinafter the ‘Act’) is a beneficial piece of legislation, and hence the definitions of terms therein, including that of the term ‘workman’, are given wide interpretations. An attempt has been made to include a large number of categories of employees in the meaning of the term ‘workman’. The definition of ‘workman’ in the Act is as under:

Section 2(s):

“workman” means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, dischasrge or retrenchment has led to that dispute, but does not include any such person–

(i) Who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or

(ii) Who is employed in the police service or as an officer or other employee of a prison; or

(iii) Who is employed mainly in a managerial or administrative capacity; or

(iv) Who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.

As aforestated, the Act is a beneficial piece of legislation, aimed at protecting the rights and welfare of workers. The definition of ‘workman’ in the Act has been left sufficiently open ended so as to allow a wide gamut of persons to be covered by it, included workers employed through contractors, temporary workers, etc. Judicial interpretation of the term ‘workman’ has been aimed covering more and more categories of employees, as changing elements in industries tend to create work of newer and different kinds. However, although no straight jacket formula is available to determine who can be a workman, a large number of judicial precedents exist whereby many types of employment have been excluded from the definition of ‘workman’ under the Act.

In examining the question of whether an employee is a ‘workman’, the primary factor is a proper analysis of the nature of work performed by the employee, the actual nature of his functions. A common error is to assume that the designation of an employee is a determining factor as to his status as a ‘workman’. This is, however, an incomplete view, as many a time persons are designated as officers, but the nature of their functions are such as are performed by a ‘workman’. In such cases, such an employee is considered to be a workman only, regardless of his designation, and the protections available under various labour laws thereby extend over such a person.

Another important factor to be noted is that, on occasion, the duties actually performed by an employee might be substantially different from the duties that may have been stated in his Letter of Appointment, service contract, etc. For example, the duties listed in the Letter of Appointment may require an employee to identify new market opportunities, correspond with existing and potential clients, and make presentations to his superiors of his analysis of market conditions. But in reality, he may only be collecting payments from customers. This is just a simplified illustration to show that the actual duties performed by an employee may differ from what he has been employed to do. In such a case also, the courts will look at the actual duties performed instead on what is on paper.

One of the important tests that the Courts have laid down while examining the nature of work performed by an employee is to see if the work involves a certain minimal degree of creativity and exercise of intellectual skill, and taking an initiative in the absence of supervision or control. Simply put, if the employee is required to think on his feet in performing his functions, is required to make certain decisions independently as to his functioning, and is not subject to supervision and control in respect of matters in which he makes independent decisions, then such factors can lead to a conclusion that he is not a workman. This should be differentiated from the ideas of ‘skilled’ and ‘technical’ work as laid down in the definition of ‘workman’ in the Act. A driver of staff cars of a factory is a skilled worker. Similarly a typing clerk is a skilled worker. A railway engine driver may be considered a workman doing technical work. But an editor of a newspaper, or a chartered accountant, whose main duties are not clerical and are of the type which require some application of the mind and initiative, are not workmen.

For the purpose of this Note, we shall examine the examples of a teacher, a marriage counselor and a computer software / hardware professional to determine whether these may fall within the definition of ‘workman’ under the Act.

Teacher:

Ordinarily, the primary function of a teacher is to impart education. There is usually a syllabus to be followed, but the teacher has the independence to teach the syllabus in such manner as he thinks fit, and normally it requires creativity and initiative on the part of the teacher to carry out his functions.

In Miss A. Sundarambai v. Government of Goa, Daman and Diu & Ors. [1989 1 LLJ 61], the Supreme Court of India held as under:

“… we are of the view that the teachers employed by educational institutions, whether the said institutions are imparting primary, secondary, graduate or post-graduate education cannot be called as ‘workman’ within the meaning of Section 2(s) of the Act. Imparting of education which is the main function of teachers cannot be considered as skilled or unskilled manual work or supervisory or technical work or clerical work… The clerical work, if any they may do, is only incidental to their principal work of teaching.”

Thus, a teacher, though performing work that requires skill, and even technical knowledge and application, is not a workman.

Marriage Counselor:

The work of a Marriage Counselor to examine whether the relations between spouses has so irretrievably broken as to warrant a divorce, is one that requires a significant degree insight, judgement, knowledge, skill and creativity. Even though a marriage counselor may have a set of more or less standard questions which s/he may ask each couple, yet the counselor is expected to understand the purport of each such question, and must ultimately make an assessment based on his / her judgement as to whether or not an amicably settlement can be arrived at between the spouses.

The Bombay High Court has held in Chandrakant Devu Shinde, Kolhapur v. Director, Chhatrapati Shah Central Institute of Business Education & research, Kolhapur [2005 LLR 1206 (Bom HC)] that a Social Case Worker, helping to settle matrimonial disputes, will not be a ‘workman’.

Thus, from our analysis above, and the pronouncement of the Bombay High Court shows that a marriage counselor is not workman.

Software Engineer:

On the question of whether a software professional or a computer hardware engineer is a ‘workman’, there appear to be no judicial pronouncements. In the circumstances, the nature of work done by such professionals need to be examined.

A computer software / hardware installation professional, from the nature of his job, is required to be aware of the software / hardware that he may be installing. A software professional must be aware of the software, how it functions, what problems may arise in the use of the software and how to tackle such problems, system requirements for effective use of the software, and many other factors. Also, when installing new software at customer locations, often the software professional is required to impart basic training to the customer in the usage and maintenance of the new software. Although these functions may be seen as highly skilled and technical in nature, these are not expected out of a workman, nor does a workman perform such functions.

In the case of installation of computer hardware, the technician is also required to check if the hardware has been installed properly, and whether its components are working properly. Inevitably, there is some kind of software associated with the functioning of the hardware, and hence, in case there is any problem in installing the hardware or associated software, or carrying out maintenance activity thereon, the technician must be aware of discovering the problem, isolating it and finding the solution. The technician is required to be creative in finding quicker and lasting solutions, and works more or less independently without control or supervision while carrying out his activities. Also, when installing hardware, the technician is often required to impart some basic information to the customer as to the effective use and basic maintenance of the hardware. In such circumstances, it may be stated that such a technician is not a workman.

As has been aforestated, in the absence of case law on the subject, the cardinal rule in determining whether a computer software or hardware professional can be classified as a ‘workman’ will be to look at the actual nature of work performed and will naturally be on a case to case basis. But, as seen from the points above, the general functions of a computer software or hardware professional are such that he may be considered to be excluded from the definition of a ‘workman’ under the Act.

CONCLUSION

In conclusion, the following points emerge:

The definition of workman is intentionally open ended and courts tend to interpret it as widely as possible to protect more and more employees.

There is no straight jacket formula in determining whether an employee is a workman. Reference to his designation is not sufficient, and the true nature of his functions must be examined.

Certain general tests to show that an employee is not a workman are to examine if his job mainly involves a certain amount of creativity, initiative, independent judgement, and is not mainly of a clerical nature, or only involving manual labour without proper application of mind, or any such clerical or manual work is only incidental to his main working. However, these should not be considered the only guidelines to determine whether or not an employee is a workman, and it may differ on a case to case basis.

There seem to be no court decisions on whether a computer software / hardware professional is a workman. However, an examination of the functions generally performed by such employees shows that they are not likely to be considered as workmen.
22nd June 2017 From India, Pune
Much has been debated about the legality of Negative Covenants. Even though Section 27 of the Indian Contract Act, 1872, which states that any agreement by which a person restrained from exercising a lawful profession or trade or business of any kind is to that extent void, prohibits an employer from obstructing his employee from joining a competitor, Negative Covenants have become a necessity in light of recent occurrences in the corporate world, especially IT & ITES industry. Incidents of employees leaving their companies with valuable trade secrets, Intellectual Property etc., or for that matter, quitting their jobs for better prospects during the tenure of their agreements and on the other side of the coin, employers placing unfair negative covenants in employment agreements, have become commonplace in today’s corporate scenario. Employers nowadays seek Bank Guarantees, postdated cheques, original certificates etc. of recruits in order to protect their interests against employees quitting unfairly or pilfering trade secrets or company Intellectual Property. In this light, it is important to realise that it is as wrong and unfair for employees to quit their jobs in contravention of their employment agreements as it is for employers to make unfair terms of employment. Every employer must bear in mind that militant trade unions, even among the blue collared are now a reality and that unfair employment terms, unrealistic and draconian restrictions in employment agreements will serve to highly exacerbate the problem. Read about the present position of law on this subject and the things an employer and employee must keep in mind with regard to negative covenants in employment agreements here.

IT Industry And Its Employment Practices | Asklabourproblem
22nd June 2017 From India, Pune
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