Umakanthan53
Labour Law & Hr Consultant
Bhartiya Akhil
Freelancer
Ssushr
Pune
+1 Other

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Hi, Certain clarity/advice is required on the below mentioned issues. We are a big retail Format store in Kolkata. As a standard practice here, we engage in our store "Sales-Trainees" and provide them monthly stipend. Now the question is whether we are supposed to pay them stipend, covering Min.Wage?
Pls. note that unlike Mumbai, in West Bengal, Standing Order is not a compulsion for the Commercial Establishments under the W.B.Shops & Establishment Act. Hence we do not have a Standing Order, and there by don't have the scope for classification of different categories of employment (like trainees, apprentices, etc etc.) and declaration of their respective stipend amount, to be given.
Seeking for suggestion pls.

From India, Hyderabad
Sir,
My question was not pertaining to the those trainees under The Apprentices Act. 1961.
As has been mentioned, in my earlier communication, it is about "Sales Trainee" , who does the retail counter sales.
Since we are not in to the manufacturing (plant/works), Apprentices Act.1961 is not applicable to us.
Kindly refer to my question.
Regards
Debashis

From India, Hyderabad
Dear Debashis,

Unless the nature of the job is such that it requires a fresh employee to undergo formal orientation on the job for a specified and pre-determined period with its subtle nuances under the guidance of a senior and experienced employee of the same trade, no on-the-job training would be required for the fresh employees. In such a case placing an employee on the job with the designation of trainee for a longer period would induce any reasonable person to come to the inevitable conclusion that it's only an attempt aiming at the flexibility of hire and fire.

Having said that as a general observation, I am of the view that the counter salesman in a retail outlet, howsoever large it may be, requires just a week's orientation only on the job. When he is wholly and principally employed for the business of the shop or establishment which is nothing but mere sales of the products exhibited with price-tags without giving room for long winding negotiations and independent on-the-spot decisions, how you say they are mere trainees?

Your statement about selective application of statutory Standing Orders to Shops and Establishments in the State of West Bengal needs further explanation with Govt notifications if any, in this regard.

From India, Salem
Dear Sir,

During festival time, we appoint few such persons to handle the rush of customer, temporary basis, for 3-4 months. They are not outsourced through third party,we show them on company's roll, provide monthly stipend, they are covered under ESI/P.F., also they are provided with App. letter (form-X, prescribed under Rule 53, under W.B. Shops and Estab. Rules, wherein it is clearly mentioned as "temporary" in nature.

After the festival session is over , their term is discontinued.We keep a list of their names, for future recruitment, from that panel, as and when required.

Hence we call them as Trainee, and provide them Stipend, the question is whether that stipend amount should match with the min. wage. Considering their nature of association, with the company, no other designation probably suits more.

Standing order is applicable only for the "Industrial Establishments" and not for

Shops/Commercial Establishments(like ours) . Had it been so, we could have opt for the S.O. and in which could have classified this "Trainee" designation, along with the "stipend" amount, under the scope of Jobs classification,there.

I have tried to explain the context and back ground of my question, in more detail.

Now, if you / any other person, can help/suggest me, providing clarity to my earlier two queries pls.

Regards

Debashis

From India, Hyderabad
Dear Debashis,

I have gone through your reply very carefully. It seems to me that your query dated 23-06-2020 and the context you have described in the last reply are different from one another. Your initial query relates to the general practice of engaging "Sales-Trainees" with monthly stipend in your retail outlets and as such whether the stipend should essentially match the statutory minimum wages or not whereas the context explained for such engagement is the seasonal requirement i.e 3 to 4 months of festival season in every year. You have also admitted the practice of issuing appointment orders to such persons as per rule 53 of the WBS&E Rules,1964 as temporary employees and their enrollment under the ESIA,1948 and EPFA,1952. Even after all these statutory compliance, I am not able to understand how you contend these people are " Sales Trainees" only and the remuneration paid to them is "stipend"only so as to avoid the payment of statutory minimum wages.

The objective and purpose of the application of the schemes under the ESI Act and the EPF Act are different from the application of the provisions of the Shops and Estts Act and the Minimum Wages Act,1948. Strictly speaking the coverage of such persons engaged during certain seasons under the schemes of the ESI and EPF will not, ipso facto, prove that they are trainees only.

Coming to your statement about the issuance of appointment orders u/r 53, that itself is a proof that they are "employed" under a contract of employment only for hire or reward which is the remuneration you pay them at the end of every month falling under "wages" so defined u/s 1(6) of the PW Act,1936. Then how can you call it as "stipend"?

Besides, for the purpose of obtaining registration u/s 16 of the WBS&EA,1963 or notifying subsequent changes thereof, are you not including the no of these so called sales-trainees?

Though the essential provisions of the PWA1936 have been incorporated in the WBSEA,1963, I think the former still applies to the shops and establishments and therefore, contrary to your contention, your retail outlets with the requisite no of employees will come under the IE(SO)Act,1946. As such these people are temporary workmen as defined under definition clause 2(d) of the State Model Standing Orders only.

In my opinion, therefore, these temporary employees cannot be trainees and as such their so called stipend is wages only and cannot fall below the statutory minimum wages fixed by the appropriate Government.

From India, Salem
Dear Sir,

Since those category of people we take are freshers, without any experience.They learn the job, gain experience during these 4 months.Hence the terms "Sales Trainee" and "Stipend" are being mentioned for them,suitably.

Subsequently, when they are absorbed (as and when, permanent vacancies arises) they are called as "Sales-Persons" and min. wages is given to them.

To maintain a discrimination, in terms of remuneration & designation as well, between these two category (Sales Trainee and Sales Person),we give stipend to the fresher group(call as Sales Trainee), which is lesser than the Min. Wage.

Now, this is almost a common practice, in relatively small categories of Hotels, Nursing homes,Retail shops etc..They keep freshers, as trainee, in their respective fields and provide stipend.

(Q-1) Is this a mall practice then, in the eye of law ?

(Q-2) Sir,You have mentioned (through indirect linkage) the IE(SO) Act.might be applicable for Shops & Establishments also. If so, then all commercial establishments/ corporate, instead of following model SO/certified SO, why do they go by their own respective company HR-policy guideline/ manuals (which contains their own terms of employment,actually. Like duty hours,leave,discipline etc. etc.)?

Requesting you to clarify my two above mentioned points.

Regards
Debashis Mukherjee

From India, Hyderabad
I always enjoy reading Umakanthan Sir. I salute him.

I just want to add some points over here with respect to Umakanthan Sir.

Stipend is a payment made to a trainees or learners for living expense, unlike a salary or wages which are paid to employees.

According to Washington University, to receive a stipend the job must be focused on training rather than employment. The training must be predominantly for the benefit of the person engaged as trainee and not to the employer. The trainee person can't be entitled to a job at the end of training. He also can't displace regular employees.

Trainees who are employed for 'hire or reward' could fall under the definition of `employees' under the MW Act.

In some States under the MW Act by notification, stipend is paid to such trainees at the rate of 75% of minimum wages as applicable to unskilled category. Otherwise, stipend is payable at 100% of minimum wages as applicable to unskilled category, as what I know.

Debashis Mukherjee has to find out whether in West Bengal is there any such notification of Stipend to be paid at certain percentage to minimum wages. If it is not there then he has to pay the stipend at 100% to minimum wages as applicable to unskilled category, as what I feel.

From India, Mumbai
They shall be given minimum wages, irrespective of designation as sales trainee which is misnomer and a ploy to evade law.
From India, Thiruvananthapuram
Most of employers try to mend the laws or interpret law as per their convenience. Some time knowingly they took calulated risk. Its all business tactics to earn more profit. With limited number of inspectors under labour laws and illitracy of work force about labour laws . Unions are also not taking keen interest to organise such a small group of workers and weakness of workers to save job has all results of such type of tactics adopted by employers. Many employers are not maintaining Muster roll of such persons required for a short duration and paying them cash payment so that their foot prints can be washed away every day. Our own fraternity gives advise to the employers to evade law which is unfortunate. We should appeal to employers to pay Minimum Wages which is just able that employee to maintain his working capacity to come back for work on the next day. Let the employer save on other unwanted expenditure of maintaining high end Car, Mobile, Five Star Parties. The amount they save by not paying minimum wages is much lesser than the amount they waste for luxuries things.
From India, Pune
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