Overtime Pay Confusion: Should It Be Based on Basic Wage or Gross Salary?

Overtime Wage Payment Inquiry

Could anyone guide me in finding information on judgments or amendments regarding the payment of overtime wages? Previously, the payment was calculated as twice the basic wage, but now I have learned that overtime pay should be based on the gross salary.

Regards,
Shahu

Can anybody guide me on how to calculate PT and PF for an employee working on an hourly basis?

Thank you.

The rate of overtime is specified in the Labor Law applicable to the establishment, and no general rule for the payment of overtime is available.

Regards,

Thank you, Mr. V. Harikrishnan. Sir, I am working in the engineering industry where we are paying twice the PF base for overtime wages. However, there was a recent judgment on the payment of overtime wages, stating that overtime wages should be paid twice the total gross salary of one day, which I am not currently receiving.

Regards,
Shahu

Overtime Wage Payment in Factories

Where a worker works in a factory for more than nine hours in any day or for more than forty-eight hours in any week, he shall, in respect of overtime work, be entitled to wages at the rate of twice his ordinary rate of wages.

For the purposes of sub-section (1), "ordinary rate of wages" means the basic wages plus such allowances, including the cash equivalent of the advantage accruing through the concessional sale to workers of food grains and other articles, as the worker is for the time being entitled to, but does not include a bonus and wages for overtime work.

Where any workers in a factory are paid on a piece-rate basis, the time rate shall be deemed equivalent to the daily average of their full-time earnings for the days on which they actually worked on the same or identical job during the month immediately preceding the calendar month during which the overtime work was done, and such time rates shall be deemed to be the ordinary rates of wages of those workers.

For more information, kindly check Factory Act 1948 Sec. 59.

Regards,
J.N. Modi

Mr. Modi has provided an excerpt from the Factories Act that is applicable in your case since you are employed in an engineering industry. The cash equivalent of the benefits arising through concessional sales to workers of food grains or other articles will only arise if the employer is providing food grains and other articles at a concessional rate. The subsidized food, if any, provided in the canteen is not considered a food grain or other article. Your overtime (OT) pay should be calculated based on the total of the basic salary and other allowances (i.e., gross salary).

With regards,

Hi Lalit, I have a special request for Mr. V. Harikrishnan and Mr. Modi for guidance, and others are welcome too.

In the case of a company engaged in the financial service sector, a 100% subsidiary of a nationalized bank with its head office located in Mumbai, and having more than 100 staff:

1. Is overtime allowed for staff working beyond the specified hours?
2. Are managerial personnel also covered, or is there a limitation on the scope of applicability of overtime?
3. Does calling on Sundays and national holidays constitute overtime? If not, are there any provisions restricting or prescribing compensation for this?
4. What if the organization denies overtime but allows out-of-pocket expenses equal to one-fourth of the average daily wage payable?

Suggestions are solicited, with references to case laws and relevant sections, please.

Regards,
LALIT

The wages, allowances, overtime, and the rate of payment of overtime in respect of nationalized banks are governed to a large extent by the settlements/agreements entered into between the various unions/associations representing employees governed by the provisions of the Industrial Disputes Act and also officers who are not governed by the provisions of the Industrial Disputes Act. These settlements may provide that those settlements would be applicable to the subsidiaries of the concerned nationalized bank. In the case cited by you, please ascertain and furnish this information. This information is necessary to formulate a view on the query raised by you.

With regards,

Compensation for Working on the 7th Day

In a factory, if an employee (operative) works on the 7th day of the week, does that mean they can take compensation off instead of receiving overtime pay? Can the law allow this?

Thanks in advance.

Regards,
Armathan

If you divide your monthly wages by 30, you will get the wages for 8 hours of work. Divide that by 8, and you will obtain the normal hourly wage. To calculate the overtime wages for one hour of work, simply multiply the normal hourly wage by two.

Regards

In a factory to which the provisions of the Factories Act apply, no worker can be required to work on the first day of the week (this is the day on which their weekly holiday falls). Therefore, if a worker in a factory works for seven days in a week, they would have worked on one of their weekly holidays, and they should be given a holiday for one whole day within three days prior to or after the weekly holiday. In such circumstances, the question of overtime does not arise.

Regards

The rule regarding compensatory off and overtime is independent of one another. The employee is eligible for compensatory off within 3 days prior or after the weekly off or holiday he has worked. At the same time, if he has worked more than 48 hours in that week or 9 hours on any day, he is eligible for overtime at twice his normal salary rate. So, only if he has taken compensatory off in advance will the company not have to give overtime.

Nowhere in the Factory Act does it say that overtime is not payable in case of compensatory off or that compensatory off is in place of overtime.

Dear Harikrishnan Sir, please tell us what is the OT amount for the below figure:

Salary Breakdown

- Basic + DA = 5000
- HRA = 2000
- Con Allowance = 1000 (Fixed)
- Other Allowance = 500 (Fixed)
- Total Gross = 8500/-

Overtime Calculation

OT hours = 21

Now, the amount of OT = 8500/30/8*2*21 = 1487 or?

Regards

Dear Mr. Saswata Banerjee, My post was made with reference to the provisions of the Factories Act. I believe that your post is also with reference to the provisions of the Factories Act. In case your post is with reference to some other law, please indicate that law. In the case of a worker governed by the provisions of the Factories Act, the law is very specific and clear that if he is required to work on a weekly holiday, then he should be given a compensatory off on any one of the three days preceding the weekly off or on any one of the three days following the weekly off. If overtime is given for compensatory off also, then the employer would be giving a double benefit to the worker, that is a compensatory weekly off and overtime for the compensatory weekly off (when the worker avails the compensatory weekly off, he would not be working for the employer). If any employer has the practice of giving a compensatory weekly off and, in addition, overtime wages for such weekly off, I would like to know the details of such employer. This practice could be cited as a precedent in other industries also.

Dear Mr. Lalit,

The wages, allowances, overtime, and the rate of payment of overtime in respect of nationalized banks are governed to a large extent by the settlements/agreements entered into between the various unions/associations representing employees governed by the provisions of the Industrial Disputes Act and also officers who are not governed by the provisions of the Industrial Disputes Act. These settlements may provide that those settlements would be applicable to the subsidiaries of the concerned nationalized bank. In the case cited by you, please ascertain and furnish this information. This information is necessary to formulate a view on the query raised by you.

With regards,
K/A: Mr. Hari

Sir, I checked with bank union people on the issue of OT or attending office on Sundays, holidays; there is no such provision for subsidiaries. No rules are given in the staff service rule book. All staff are in the officer cadre (from a designation point of view). Requested your considered view in light of the above on the following:

1. Eligibility for OT and/or comp off.
2. Quantum
3. What if the company denies such and allows out-of-pocket expenses which are approximately 1/4th to 1/6th of the average daily salary of the executive.
4. Legalities of compulsorily calling staff on national holidays, Sundays, and/or working over and above officer hours without any comp off or OT.
5. Relevant provisions, precedents, if any in support of your reply.

Regards,
Lalit

I was also talking in reference to the Factories Act.

Sections 53 and 59 of the Factories Act

Sec 53 (Comp Off) and Sec 59 (Overtime)

Sec 59 says, "Where a worker in a factory works for more than 9 hours in any day or for more than 48 hours in any week, he shall, in respect of overtime work, be entitled to wages at twice his ordinary rate of wages."

Nowhere in the section is there any reference to an exception for anything. Therefore, he is entitled to overtime irrespective of whether he gets compensatory off.

Similarly, in Sec 53, there is no mention of not getting compensatory off in case he gets overtime wages. Therefore, both sections operate independently of each other, and both apply to this case.

I can only guess that when making this act, the government wanted to discourage exploitation and fatigue in workers by making them work on holidays and therefore put this clause.

Many of my clients follow this rule and pay both overtime and compensatory off for work done on the weekly off. I cannot disclose names due to confidentiality issues. In many cases, they have started paying this after we showed them the provisions of the act.

If you have an alternate explanation, I will be happy to tell my clients that they can avoid double benefits to the workers. We will all be very happy :-)

Regards,
Saswata

Dear Saswata Banerjee,

The basic section is Section 52 of the Factories Act. Section 53 comes into play only if an exemption is granted to a factory from the provisions of Section 52 of the Factories Act. If there is no such exemption, Section 52 is applicable. The discussion in this thread is not about what happens when an exemption is granted under Section 53 but as to when a worker is entitled to get overtime wages. It is correct that a worker has to be paid overtime if he works for more than nine hours per day and 48 hours per week.

While calculating the weekly hours worked by a worker, one has to first know when a "week" for a worker begins and when the "week" ends for him. Then only the hours worked in a week can be calculated. For this purpose, Section 52 is vital. If a worker avails a compensatory off within three days after his weekly off, definitely he would work for 48 hours or less in that week and will not be entitled to overtime.

In case a worker works on his weekly off and avails his compensatory off for such working within three days preceding the weekly off day in which he worked, the hours worked in that week have to be calculated according to the provisions of Section 52(3) of the Factories Act. Section 53 comes into play only if there is an ORDER or RULE EXEMPTING THE FACTORY FROM SECTION 52 OF THE FACTORIES ACT AND NOT IN ALL CASES WHERE COMPENSATORY OFF IS AVAILED. Because of Section 52(3), when a worker works on a weekly holiday and is given compensatory off on any one of the three days either preceding or succeeding the weekly off day on which he worked, the need to pay overtime for that week will not definitely arise.

Regards

Dear Mr. Lalit, the issue raised by you is a bit complicated. First of all, as a subsidiary of a nationalized bank, it has to be determined which law governs your working conditions, such as daily and weekly hours of work, overtime, and the rate of payment for overtime, etc.

I am from Tamil Nadu. Earlier, it was thought that the Tamil Nadu Shops and Establishments Act would apply to nationalized banks in Tamil Nadu. Subsequently, it has been held by the Supreme Court, based on certain provisions of the Tamil Nadu Shops and Establishments Act, that this Act is not applicable to nationalized banks. However, private sector banks are governed by the provisions of the Tamil Nadu Shops and Establishments Act.

I do not know in which state the subsidiary of the nationalized bank referred to by you is situated. If it is in Tamil Nadu, I will attempt an answer. If it is in other states, it will not be possible for me to answer your query without referring to the Shops and Establishments Act in force in that state. I do not have copies of the Shops and Establishments Act in force in other states.

With regards,

It seems I wrote Sec 53 when I meant to write Sec 52. Otherwise, I think we both said the same thing. If he has worked more than 48 hours in the week, he is entitled to overtime irrespective of comp off. And he is entitled to comp off irrespective of OT given. The week counts from the day after the weekly off. So if he has taken comp off before the weekly off, then he does not (generally) get OT but he gets it if he has taken comp off after the weekly off.

The maximum hours of work during which a worker can be required to be inside a factory, including lunch and/or tea breaks (spread out), is ten and a half hours (Section 56 of the Factories Act). In your case, you are required to work from 9:30 a.m. to 6:30 p.m. with a half-hour break for lunch. The total time you are required to be inside the factory (spread out) is only nine hours, and the hours worked are eight and a half hours. This is well within the provisions of Section 54 of the Factories Act. If you work beyond the eight and a half hours, you are entitled to overtime. In the case of your company, instead of giving overtime, they are providing time off. This does not strictly comply with the Factories Act. If Sunday is the weekly holiday, it is sufficient to give a compensatory day off. There should be no overtime for working on a weekly holiday if the worker is allowed to take the weekly holiday on any one of the three days preceding or succeeding the weekly holiday.

Regards

Clarification on OT Payments Under the Factory Act

I want some clarification on OT payments under the Factory Act:

1. Is it mandatory that OT is payable on the gross with all allowances like Conveyance Allowance, CCA, Washing Allowance, etc.?
2. Is it mandatory that OT is payable double on the gross?
3. If OT is paid double on the gross, then is it mandatory to pay a night allowance as well?

Please guide.

Regards,
Swarnalata