PROFESSIONALS AND BUSINESSES PARTICIPATING IN DISCUSSION
Industrial Relations And Labour Laws
Partner - Risk Management
Retired Government Servant/advocate
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Madhu.T.KIf he is a native of other state (West Bengal) and he is engaged through a contractor to work in your company in Gujarat then he will be an interstate migrant labour. The nativity of the contractor is immaterial. At the same time, if he is paid by you (principal employer) directly without any intermediary, ie, contractor, he will not come under the purview of the present Interstate Migrant Labour (Conditions of Service) Act. The situation will change with the enforcement of the new Labour Code.
From India, Kannur
The person is interstate migrant worker if the contractor recruits someone in one particular state and deployed him in another state.
Since the worker has come to Ahmedabad on his own and has been recruited in Ahmedabad and deployed in Gujarat, he is not interstate migrant worker.
In order to ensure you do not have a problem later, I suggest that you ask the contractor for evidence that he was not recruited in a different state. For example, his appointment letter, any proof that he was already working in Gujarat before (could be from his previous ID card, or his ESIC records). Most of these are not direct but circumstantial evidence, but they help you prove that you did your due diligence to ensure that the worker was not Interstate Migrant.
The location of the contract, but its self, if immaterial.
Only if he has a branch in the home state of the worker, it is a rebuttable assumption that he was recruited in the home state.
From India, Mumbai
Madhu.T.KThe above interpretation by Mr Banerjee is fine. But I doubt if there is any relevance to the nativity of the contractor in deciding the scope of the act to a worker.
2(e) of the ISML Act says that "inter-State migrant workman" means any person who is recruited by or through a contractor in one State under an agreement or other arrangement for employment in an establishment in another State, whether with or without the knowledge of the principal employer in relation to such establishment.
In the above definition what I understood is that "if any person of one state" is employed in another state through a contractor, he will become an interstate migrant worker. The qualifying words "in one state " and "another state" in the definition have significance only with reference to the worker and not with reference to the contractor. Had it been otherwise, there would not be any interstate migrant labour in any state because there will not be hardly any such recruitment taken place but in most of the cases, the workers come from different states and the contractors can easily find them in their own state itself. If you are recruiting them in their base station to work for another state, obviously, some additional benefits like considering their travel time to be working time, payment of train fare etc are also applicable.
Accordingly, I believe that the Act will be applicable to such employers who employ workers from other states through a contractor. The principal employer need not know whether these people are recruited at their respective base state or in the state of the Principal employer itself. What is important is whether the worker is from other state and whether he is engaged through a contractor or not.
From India, Kannur
I will disagree.
The wording is "under an agreement or other arrangement for employment in an establishment in another State"
There are many cases where contractors recruit in a state because they can easily get people there and then deploy them elsewhere.
For example, 5 of the top security agencies in the country have offices in Bihar, only for the purpose of recruiting and training security guards who are then deployed all over the country. Their employment is in Bihar and not in Gujarat or Mumbai. Similarly, in the construction line, entire gangs of specialised teams are recruited from West Bengal, bihar, Orissa and Western UP, for construction projects in Delhi, Maharashtra, Andhra (must be more places, I am not personally aware). These are very efficient masonry gangs who are good and fast because they have been working together for a long time. They are used for bricklaying, boundary walls, even main walls of factory buildings. The act is basically meant to cover those type of cases,
If he has come to the work state on his own, and he is recruited there, he is not covered under the act because, he is not recruited by or through a contractor in one State (meaning his home state)...
The reason I talked about where the contractor is based, is because if he has a permanent establishment in the home state (as I have said in the examples above), the labour offices tend to assume that the person was recruited in that state. In that case, it would be necessary to have proof that the worker came on his own to the work state.
Hope I clarified my point.
From India, Mumbai
Madhu.T.KI agree to disagree, Sir. If that is the case, the relevance and the very purpose of the Act will be defeated.
From India, Kannur
firstname.lastname@example.orgAs I can understand, the definition provided under provisions ISMA. as suggested by Mr. Sasawata Banerjee, includes only those who are recruited in one State and employed in another State. This aspect is evident from the opening para of Statement of Objects and Reasons -
"The system of employment of inter-State migrant labour (known in Orissa as Dadan Labour) is an exploitative system prevalent in Orissa and in some other States. In Orissa, Dadan Labour is recruited from various parts of the State through contractors or agents called Sardars/Khatadars for work outside the State in large construction projects. This system lends itself to various abuses. Though the Sardars promise at the time of recruitment that wages calculated on piece-rate basis would be settled every month, the promise is not usually kept. Once the worker comes under the clutches of the contractor, he takes him to a far-off place on payment of railway fare only. No working hours are fixed for these workers and they have to work on all the days in a week under extremely bad working conditions. The provisions of the various labour laws are not being observed in their case and they are subjected to various malpractices."
Now, Occupational Safety, Health and Working Conditions Code, 2020 (OSHS) and Code on Social Security (CSS) have increased the scope of who qualifies as an interstate migrant worker by including persons who move from one state to another for employment on their own in addition to those workers who are recruited by contractors from one state to another for employment. However, While ISMA was applicable to every establishment with five (5) or more interstate migrants, this threshold has now been doubled to ten (10) workers under the OSHC.
From India, Kochi