CASEs & LABOUR LAWS UPDATES:
"Pandemic is not an internal emergency threatening the security of India": Supreme Court
In its order in the case of Gujarat Mazdoor Sabha v State of Gujarat (Writ Petition (Civil) Number 708 of 2020), the Supreme Court of Ind:ia (Supreme Court) has quashed the notification issued by the government of Gujarat whereby it had exempted factories from provisions relating to daily and weekly hours of work, rest intervals etc. in view of the COVID-19 pandemic. Notably, the state had provided that factories may enjoy these relaxations subject to certain conditions, including that the overall daily limit of work hours would be 12 hours, and wages shall be paid in proportion to the existing wages (meaning that if the wages for 8 hours of work is INR 80, the wages for 12 hours of work would be INR 120). Interestingly, the notification was issued by the government by invoking Section 5 of the Factories Act, 1948, which allows a state government to exempt a factory from its provisions in the event of a 'public emergency'. 'Public emergency' here refers to a situation wherein the security of the country is threatened or where there is war, external aggression or internal disturbance.
The Supreme Court relied on Section 5 to observe that while the ongoing COVID-19 pandemic has adversely affected economic activities, it has not affected the security of India in a manner that "disturbs the peace and integrity of the country". The court accordingly held that when none of the abovementioned conditions is present, the government cannot its exercise its statutory power of exemption. The notification was quashed and the state government directed to pay overtime wages to all eligible workers who were made to work in accordance with the impugned notification.
Establishment contributed to COVID-19 spread among workers, closure order justified: Madras High Court
In Care 4 Life v Secretary to Government (Writ Petition Number 9381 of 2020), the petitioner-establishment approached the Madras High Court to seek a writ of mandamus that would direct the respondent to permit resumption of manufacturing operations by the petitioner. The petitioner is engaged in manufacture of surgical masks and related products, and it had been operating during the pandemic. Unfortunately, several workers were soon tested COVID-19 positive, and when inspection was conducted at the premises, the authorities found that the petitioner had not been adhering to safety protocols mandated by the government from time to time. Ultimately, the establishment was directed to be closed down. Hence the petition.
The court, however, declined to provide relief to the petitioner. It noted that courts should be slow in interfering with the order of the authorities, and that when the authorities found the petitioner to be contributing to the spread of the virus, it would not be appropriate on the part of the court to allow it to resume operations. The court accordingly directed that until normalcy returns, the petitioner should refrain from carrying on operations and that once the situation is normal, it may approach the respondents again for reopening the establishment.
No writ jurisdiction for retrenchment claims unless there are exceptional circumstances: Delhi High Court
The order of the Delhi High Court in PTI Employees' Union v PTI Limited (Writ Petition (Civil) 10596/2018) comes as a respite to employers to an extent. In this case, the petitioners approached the court challenging the retrenchment of 297 employees by the respondent and sought quashing of the retrenchment notices issued to the impacted employees.
The respondent, on the other hand, challenged the maintainability of the writ petition on the ground that the IDA already contains a dispute resolution mechanism for industrial disputes. On the merits, the respondent argued that there was no work for the retrenched workers for a long time and that the establishment had been facing operational losses. These reasons were also communicated to the retrenched employees and all requisite severance payments were made to them.
The court agreed with the respondent's contention, holding that the IDA is a complete code in itself when it comes to resolution of industrial disputes. Writ petitions in such matters should not be entertained by courts unless there are exceptional circumstances established. This principle assumes more significance when there are disputed questions of fact.
03. INDUSTRY INSIGHTS
Union Labour Minister advises limited use of fixed term employment arrangements
With the three labour codes receiving the assent of the President of India, the Ministry of Labour and Employment, Government of India, has been issuing statements to allay some of the concerns of the workers. On 5 October 2020, the Union Labour Minister stated that the industry should use fixed term employment contracts primarily for short-term projects or seasonal work. As regards permanent employment, he observed that when employees are involved in the affairs of an establishment for a longer duration, they are more productive.
The statement of the minister should, however, not come as a surprise to the industry. The statement reiterates the observations of the judiciary, which has noted in several cases that there should be a bona fide need to engage someone on a fixed term employment basis.
As Indian workforce spends significant time working from home, burnout becomes a problem
For majority of the Indian workforce, work from home at the first blush was a new and exciting experience. It was perceived that one would finally be able to witness a flexible working model and be around their family while meeting work deadlines. However, as Indian workforce spends a considerable time working from home, the situation is not that rosy.
It is being reported that employees are now facing a burnout as the line between the personal and the professional is getting blurred. Microsoft, too, has reported that India has the "second-highest percentage of workers facing increased burnout in Asia at 29%". Several employees have reported that there is a constant anxiety that they are grappling with during these times. There could be several reasons for the same: despite video conferencing, employees miss personal interaction. Further, it is stated that managers are developing "trust issues" with their subordinates due to lack of visibility. As noted by a survey of Harvard Business Review, when doubts come into picture, "managers can start to develop an unreasonable expectation that those team members be available at all times, ultimately disrupting their work-home balance and causing more job stress."
Companies are responding to these findings. Some employers are introducing a staycation policy and observing an organisation-wide holiday from time to time, thereby encouraging employees to avail leaves and rejuvenate. Another company has mandated that employees will not be disturbed during designated lunch hours. The idea of all such measures is simple: to create work boundaries even when the employee is not within the confines of an office. The new normal calls for a unique sensitization program for managers, who should be trained to allow their direct reports to take charge of matters without being micromanaged.
https://www.mondaq.com/india/employe...n--october-202