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RaghDeepak
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Hi members, Kindly share the details regarding how compensation is to be finalized if a manufacturing company is declared layoff due to Covid 19 situation resulted in to manpower shortage, raw material shortage, production loss, stacking of ready goods due to market situation.
Will labour dept accords consent if it is to be done as per ID Act.
regards,

From India, Pune
From the view point of ID Act, the 'Lay off' action may be governed -
Lay-Off:

The ID act defines the concept of Lay-off-the term ‘lay-off’ has been defined as the- i.failure, refusal or inability of an employer on account of the shortage of coal, power or raw materials or the accumulation of stocks or the breakdown of machinery or natural calamity or for any other unconnected reason to give employment to a workman whose name is borne on the muster rolls of his industrial establishment and who has not been retrenched.

ii.Essentially, a lay-off is a condition where the employers are constrained to deny work to their workforce owing to conditions that bring forth a temporary inability to keep their business going. The said case scenario can happen only in a continuing establishment.

Essentials: The conditions where Lay-off could be brought into play are:

There has to be a failure, refusal or inability of an employer

This failure, refusal or inability should be an offshoot of the shortage of coal, power or raw materials or the accumulation of stocks or the breakdown of machinery or natural calamity or for any other unconnected reason

-The names of the laid-off workers should necessarily feature on the muster rolls of the establishment

-The said workers should not have been retrenched

iii.Special Provisions: The employer cannot, without prior permission from the appropriate government, lay-off an employee featuring on the muster rolls of the establishment A copy of the said application has to be given to the concerned workmen as well.
-If the lay-off happened where the workmen (other than badli workmen or casual workmen) of an industrial establishment, being a mine, owing to reasons of fire, flood or excess of inflammable gas or explosion, the employer, in relation to such establishment, shall, within a period of thirty days from the date of commencement of such lay-off, apply in the prescribed manner, to the appropriate Government or the specified authority for permission to continue the lay-off. The said application will be considered and a reasonable opportunity to be heard shall be given to the employer as well as the workmen.
- After considering the same, the appropriate government may or may not grant the employer to close down. Even here, if the government does not respond within sixty days from application, the permission will be deemed to have been granted. There are provisions for review of the said decision by the authority suo-moto or in response to an application.

iv.Compensation for Laid-Off period: A workman who is laid-off is entitled to compensation equivalent to 50 percent of the total basic wages and dearness allowance for the period of lay-off.
a.The said compensation can be availed only if the employee has done a continuous service of at least one year;
b.Along with this, the muster rolls of the establishment should bear the worker’s name to avail of the compensation.
c.A badli or casual worker cannot avail of such compensation.
d.Refusal to accept alternative employment, absence from the establishment, strike or deliberate slowing down of production could be grounds that would entail disentitlement to such compensation.

If such Lay-off exceeds 45 days, the employer can either keep paying such lay-off compensation or retrench the workers.
Nonetheless, retrenchment should necessarily be applied abiding by the procedure set out in the Act/rules.

From India, Bangalore
Dear Sir,
Thanks for your detailed information. One of my known colleagues apprehension is that, if the company approaches the Gvot (labour dept), they may not give permission due to present c0vid 19 pandemic situation to industries.

From India, Pune
Yes friends, your apprehensions are possibilities, but what else todo, law is law. Have first hand discussions with the appropriate officers, explain your problems. They might suggest solutions workable.
Alternates:
1.Open dialogues with employees/unions explaining your position with a view to obtain their resignations. May be you have to negotiate deals mutually agreeable. You have to chalk out few alternates, plans-a, b, c etc. Atleast one may click. This is difficult but possible, there are advantages of averting post separation deals.
2. Can you think of reducing/settling your workmen in a phased manner, consider whether you can issue advance notices with a package for termination. If the package is attractive, they may consider quitting as well viewing lockdown periods are prolonging and there is not going to any hope of immediate reopening/restoration of normalcy.
3. Can plan for introducing VRS/VSS schemes offering packages more or less equivalent to retrenchment compensation.
You know well even SC has not pronounced any final verdict on pleas salary payments/idle wages for lockdown periods. It's likely take some more time for SC takes up & decide on the complex issues. Explain the position to your employees for workable solution.

From India, Bangalore
No permission of Labour Department is mandatory for resorting to for lay-off under ID Act 1947.
From India, Faridabad
Dear friends,
I'm sharing an article which dwells upon the present challenges the entrepreneurs, employees are facing. May help you -
---------------
Alternatives to Layoffs & Retrenchment During COVID-19
July 15, 2020 - By Animay Singh, Simpliance COE 4.7 (11) FacebookTwitterLinkedIn
Layoffs & Retrenchment:
The economic consequences of COVID-19 have been formidable, several businesses have closed down while others teeter on the brink of closure. Vendors are faced with force majeure clauses invoked by cash strapped clients. Cash flow concerns exist along the supply chain and affect the end-consumer as well, who has either taken a pay cut or is out of a job. These circumstances have forced employers to undertake several cost-reduction/downsizing measures such as layoffs, retrenchment, compulsory leave, early retirement schemes etc. In this scenario, it is important to examine the efficacy of such employer actions from an HR perspective. This is because the current situation is one wherein all parties are afflicted by a common problem; thus it is important to examine whether there exists a way to find an effective solution that caters to the needs of all stakeholders?
This article begins with an examination of various employer actions and their resultant effects on employee morale, governance, and the financial health of an organization. These employer actions are then juxtaposed to determine their suitability to differing sets of circumstances as the one-size-fits-all solution is impractical owing to the varied circumstances companies might find themselves in.
Layoffs and Retrenchment: Explained
The term layoff is defined under Section-2(kkk) of the Industrial Disputes Act, 1947 as the failure of an employer to give employment to a workman whose name is on the muster rolls of an establishment and who has not been retrenched. This employer action can be due to shortage of coal, power, raw materials, accumulation of stocks, breakdown of machinery, natural calamities, or related reasons. Therefore, under the framework of the Act, layoffs must be justified by one or more of the above-mentioned reasons.
To understand the full import of this we must examine the definition of retrenchment under the Act and analyze their combined effect. The term is defined under Section-2(oo) of the Act as being the termination of service by the employer for any reason other than punishment by way of disciplinary action. Retrenchment does not include voluntary retirement, retirement on reaching the age of superannuation, termination due to non-renewal of contract on its expiry and termination on the ground of continued ill-health.
From the above, it is clear that retrenchment is a full and final termination of services whereas layoffs are changeable, as employees can be recalled once the layoff span ends. Therefore, we can conclude that layoff is an employer action that is used to deal with temporary situations whereas retrenchments are strategic decisions taken with lasting effects. It is important to note however, that these definitions are only applicable to establishments falling under the scope of ‘industry’ as per Section-2(j) of the Act. Therefore, it is inapplicable to businesses, IT companies, as well as shops and establishments.
The Shops and Establishments Act is the law regulating the conditions of work and employment of workers in the above-mentioned establishments. It, however, does not provide any definitions of the above terms, nor does it give any alternate terminology to define the removal of employees. It merely provides for a mandatory notice that must be provided before removal or compensation in the form of wages based on the length of the period for which services were rendered.
The last factor that must be taken into consideration while analyzing these employer actions is the employment agreement. These are contracts drawn up between employers and employees based on a shared understanding of the company’s workforce management policies.
Now that we have understood their functions as employer actions, let us examine their relative merits and demerits in the context of COVID-19.
The Effects of Layoff & Retrenchment:
It is clear from the above that layoff and retrenchment serve distinct, although not mutually exclusive purposes. The advantage of layoff as defined in the Industrial Disputes Act, 1947 is that they leave the employer with the option of recalling workers. However, the term used in its colloquial sense simply means reducing the number of employees in the workforce due to advances in technology, unpredictable market conditions as well as increase in competition.
We shall examine the merits/demerits of layoffs in the latter sense as well because it applies to establishments other than industries. IT giants and e-commerce companies had already begun downsizing due to the emergence of automation and AI-enabled tools. However, the pandemic situation has acted as a catalyst leading to job cuts on a large scale across the board.
Data on layoffs has revealed however, that they are a mixed bag when it comes to their viability as a solution. It is well accepted that they are a short-term financial solution with regards to their impact on the reduction of costs. However, other factors such as a decline in job performance of workers, loss of workers trained by the organization and the loss of an individual who understands the network of relationships within and outside the organization are drawbacks that are often ignored by managers. The decline in performance of workers is linked to a decrease in morale of the workforce and short-term productivity hikes are due to fewer workers covering the workload that a larger number of workers were responsible for. There is also evidence to suggest that layoffs lead to a decline in innovation in companies and adversely affect the relationship between salespersons and customers.
Thus, the link between layoffs and increased profitability is one that is difficult to establish, moreover, owing to the factors mentioned above they put a significant burden on a company’s human resource team due to lowered morale, productivity and the vacuum left by seasoned employees. Add to this the supplementary cost of having to pay workers if they are retrenched and the viability of downsizing as an employer action can be viewed as the last resort.
This might prompt one to question whether there are employer actions more effective in coping with the financial impact of COVID-19? If yes, the next question raised would be what are these employer actions and how are they more successful than layoffs from an HR perspective?
Workforce Change Philosophy:
Before discussing alternative employer actions, it is pertinent to discuss the importance of a workforce change philosophy/strategy that a company must have in place. This means having fundamental concepts that address questions such as the value brought in by employees, expectations with regards to employee engagement, loyalty, and flexibility as well as the role played by employees in the formulation and implementation of workforce change. The impact of a workforce change philosophy is felt even during recruitment as employers seek to identify talent whose skill set is in consonance with the policy. For example, companies might begin hiring people based on their potential rather than compartmentalized roles to allow for flexibility during restructuring. It is important to note that the elements of a workforce change policy or philosophy are linked to the nature of a business undertaking, prevailing market conditions, availability of talent and the position a company finds itself in, therefore the author believes that providing a set of essentials for a workforce change policy would be futile.
The author must, however, stress on the need for a clear method to explore alternatives to layoffs and implementing workforce change. Businesses must lay down a formal process for workforce change based on their individual needs. Consulting all stakeholders involved and understanding their respective positions is fundamental to ensuring that the process runs smoothly.
Alternatives to Layoffs:
While a workforce change policy helps employers examine suitable alternatives to layoffs and retrenchment, it merely acts as a guide towards identifying alternatives. To choose a particular alternative over others it is important for employers to know the relative advantages and disadvantages it possesses. Thus under this heading, the author will be examining different approaches to coping with pandemic related difficulties.
Compulsory Unpaid Leave:
This is essentially a furlough that employees are asked to take to reduce the operating expenses of a company while ensuring that valuable talent is retained. However, this measure is not easy to implement as it requires mutual agreement between employer and employee. Forcing employees into taking leave should not be adapted as it destroys any goodwill the employer has and burdens the employee with financial hardship. This is a measure that must be resorted to only in situations where it is absolutely necessary to prevent loss of jobs and preserve cash flow.
Wage Cuts:
They have been a common phenomenon across industries irrespective of size, with companies opting to protect long term financial interests. This marks a departure from traditional management approaches that advocate downsizing and dismissing a set of workers as opposed to lowering pay for everyone. A major reason for companies opting for wage cuts over layoffs are the expenses – both monetary and time related, associated with replacing employees. Another benefit of enacting a wage cut is that it applies across the organization and thus provides for a shared sense of sacrifice. Top executives tend to give up a vast share of their base pay to ensure that individuals in non-executive positions receive a larger share of their own wages. This is beneficial as it allows retention of employees while ensuring top executives are adequately compensated. It has been observed that most of their compensation comes in the form of stock awards which are not affected by wage cuts.
The advantage of employee retention is that it places companies in a better position to rebound when the economy begins recovering. This has been observed empirically as well, research found that firms that cut down their workforce during the 2008 recession were not ready when the economy eventually rebounded. This is why several companies have even adopted a no-layoff policy to promote employee loyalty.
Early Retirement Packages:
With the risk factors for COVID-19 being particularly high for workers above the age of fifty, several companies have offered early retirement packages. The contents of the scheme are diverse depending on a company’s policy, but they generally involve payment in lieu of a few month’s salary, the option to retain employer-sponsored health insurance for a specified period as well as reduced working hours. Thus, an early retirement package can be seen as a voluntary severance payment with both parties mutually agreeing on the mode of payment (either a lump sum or as a salary continuance over-time).
Redeploying & Restructuring:
Several companies have handled internal and external business pressures without resorting to layoffs by deploying individuals in certain roles into positions that are more profitable. This involves taking individuals in roles where automation can be utilized, or manpower can be reduced and trained to perform other tasks. For example, when demand drops due to a recession or a global pandemic as is the case, salespersons might find themselves with a reduced workload, leading to a situation wherein their labour capital is not being utilized. In such a situation transitioning these individuals from a sales-oriented position to a customer service job might help retain existing customers. Since both roles involve a basic level of personal interaction skills and dealing with people, the transition would not be a monumental task as well.
Conclusion:
Through the course of this post, it has been made clear that layoffs are a short-term solution and must be utilized as a last resort. Their impact on human resource utilization and creation of costs in terms of recruitment is significant. Its effects on employee morale and the ability of a firm to capitalize on market recovery are adverse and have been discussed in depth. To this end, it is beneficial for companies to have a workforce change philosophy/policy that guides leaders in situations where such decisions are required to be taken. The use of specific employer actions as alternatives to lay-offs depends on the distinct challenges faced by businesses and there is no universal formula with regards to the same.
If you are an employer, HR leader or an employee, do let us know how your business has coped with the challenges posed by COVID-19. If you believe there are more innovative ways to deal with this, drop your thoughts in the comments below.
(Disclaimer: This blog is meant for informational purposes and discussion only. It contains only general information about legal matters. The information provided is not legal advice and should not be acted upon without seeking proper legal advice from a practicing attorney. Simpliance makes no representations or warranties in relation to the information on this article.(https://www.simpliance.in/blog/layof...15%20July%2020)

From India, Bangalore
Lay off -Legal position
Extract of proviso as regards Lay off under ID act 1947 is as below
Layoff Definition:
According to [section 2 (kkk)] of Industrial disputes act, 1947
"lay-off" (with its grammatical variations and cognate expressions) means the failure, refusal or inability of an employer on account of shortage of coal, power or raw materials or the accumulation of stocks or the break-down of machinery [or natural calamity or for any other connected reason] to give employment to a workman whose name is borne on the muster rolls of his industrial establishment and who has not been retrenched;

Explanation : Every workman whose name is borne on the muster rolls of the industrial establishment and who presents himself for work at the establishment at the time appointed for the purpose during normal working hours on any day and is not given employment by the employer within two hours of his so presenting himself shall be deemed to have been laid-off for that day within the meaning of this clause:

PROVIDED that if the workman, instead of being given employment at the commencement of any shift for any day is asked to present himself for the purpose during the second half of the shift for the day and is given employment then, he shall be deemed to have been laid-off only for one-half of that day:

PROVIDED FURTHER that if he is not given any such employment even after so presenting himself, he shall not be deemed to have been laid-off for the second half of the shift for the day and shall be entitled to full basic wages and dearness allowance for that part of the day;]
The poster has not mentioned the workforce strength in his establishment /Factory . If is 100 or more then Permsiiion has to be sought from the state Government Labour Department as per Chapter 5 B of the act.
Assuming that if the Establishment/factory falls under the purview of chapter 5 B , it is quite unlikely that the Labour Department will do grant permission during this pandemic situation and especially when there is a union in existence at the Establishment to counter such move.Further it is a time
dragging affair .
Legal position apart, it is appropriate to think of the following options which may go a long way to sustain industrial peace and a win-win situation
Have a dialogue with union office bearers and come to some sort of understanding like an MOU wherein the Lay off period and compensation have to be clearly spelt out .Normally in leag lay off , the workmen are entitled to 50% of Basic wage and DA .In order to clinch an MOU with union at a bilateral level , something more than 50% of wages to be offered by employer ( it may be anything between 51% and 100% depending on the negotiation between parties .
Reasonably 3 to 6 months period may be mentioned in MOU for such lay off in the hope that we would recover from the present impasse ( covid 19 situation)
This kind of extra offer of compensation should be considered as an investment on human for generating Good will and support of workmen on resumption of operation in the factory.
Meanwhile the employer should plan to introduce new technology leading to higher productivity and redeployment of redundant manpower that may arise as a result of new technology leading to manner reduction .Further if the company's financial position warrants , a voluntary separation scheme or VRS be kept ready so as to introduce at appropriate time . Eventually such schemes could not be made without a formal negotiation with UNION .
The role of HR is paramount in this regard for marketing the above ideas
Panchsen
P.Senthilkumar

9884009193

From India, Chennai
Dear friends,
I would like to share business Ikon Mr.Ratan Tata's views on 'layoffs' during COVID-19:
https://www.rediff.com/business/repo.../20200724.html
Also another article discussing/highlighting issues & compulsions during COVID-19 -
https://www.simpliance.in/blog/covid...22%20July%2020

From India, Bangalore
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