Dear All,
Hope you are doing well. Please clarify:
1. Who all come under the "Worker/Workman" category as per the Factories Act, 1948?
2. Do HR Managers and Finance Managers fall under the "Worker/Workman" category?
Thanks in advance.
T.S. Krishna Prasath
From Australia, Revesby
Acknowledge(0)
Amend(0)
1Hope you are doing well. Please clarify:
1. Who all come under the "Worker/Workman" category as per the Factories Act, 1948?
2. Do HR Managers and Finance Managers fall under the "Worker/Workman" category?
Thanks in advance.
T.S. Krishna Prasath
From Australia, Revesby
Acknowledge(0)Amend(0)
Dear Krishna Prasath,
1. Anyone working on the shop floor in Manufacturing Industries is considered a workman.
2. HR Managers, Office Assistants, individuals working in office premises, Directors, and Managers primarily involved in managerial activities are not classified as workmen or workers.
From India, Kumbakonam
Acknowledge(0)Amend(0)
1. Anyone working on the shop floor in Manufacturing Industries is considered a workman.
2. HR Managers, Office Assistants, individuals working in office premises, Directors, and Managers primarily involved in managerial activities are not classified as workmen or workers.
From India, Kumbakonam
Acknowledge(0)Amend(0)
Hi,
Read below logic, and you will get an idea: "All workers are employees, but not all employees are workers."
The person who gets a wage below 10000 is a worker. The person who gets above 10000 is called an employee, not a worker.
Hope you understand.
Thanks & Regards,
Ambika
From India, Madras
Acknowledge(0)Amend(0)
Read below logic, and you will get an idea: "All workers are employees, but not all employees are workers."
The person who gets a wage below 10000 is a worker. The person who gets above 10000 is called an employee, not a worker.
Hope you understand.
Thanks & Regards,
Ambika
From India, Madras
Acknowledge(0)Amend(0)
Hello Ambika,
Which Act defines a workman or worker like this?
@T.S. Krishna Prasath
It is a rather tricky question. The Factories Act defines a worker as a person employed directly in any manufacturing process or in any work incidental to or connected with such manufacturing process, such as bringing raw material for it, etc., or employed in cleaning any part of the machinery or the premises used for such a manufacturing process. Thus, you may observe that the definition is too wide to include any person employed not only in the manufacturing process but also those employed in any work connected with such a process. Therefore, the status of a person as a worker can be decided only on the facts and circumstances of each case, but at the same time, it cannot be stretched beyond the spirit and objectives of the Act to include every official employed in the company that runs the factory.
Coming back to your specific question, whether an HR Manager or Finance Manager will be a worker, I am of the view that they cannot come under the purview of a worker under the Factories Act, as they are not construed to be directly involved in any manufacturing process or in any work connected therewith.
"Workman" is a different concept defined under the Industrial Disputes Act 1947 and includes those persons employed to do skilled, unskilled, manual, technical, clerical, or supervisory work and clearly excludes persons who are performing functions of managerial nature. Thus, an HR Manager or Finance Manager are not workmen if they are really discharging functions of managerial nature such as sanctioning leave or appraising the performance of subordinates or exercising powers of disciplining them. It is not enough if they are merely designated as managers but in fact discharging clerical functions, in which case they may come within the definition of a "workman."
Thus, the concepts of "worker" and "workman" need to be understood differently.
B. Saikumar
HR & Labour Law Advisor
Mumbai
From India, Mumbai
Acknowledge(0)Amend(0)
Which Act defines a workman or worker like this?
@T.S. Krishna Prasath
It is a rather tricky question. The Factories Act defines a worker as a person employed directly in any manufacturing process or in any work incidental to or connected with such manufacturing process, such as bringing raw material for it, etc., or employed in cleaning any part of the machinery or the premises used for such a manufacturing process. Thus, you may observe that the definition is too wide to include any person employed not only in the manufacturing process but also those employed in any work connected with such a process. Therefore, the status of a person as a worker can be decided only on the facts and circumstances of each case, but at the same time, it cannot be stretched beyond the spirit and objectives of the Act to include every official employed in the company that runs the factory.
Coming back to your specific question, whether an HR Manager or Finance Manager will be a worker, I am of the view that they cannot come under the purview of a worker under the Factories Act, as they are not construed to be directly involved in any manufacturing process or in any work connected therewith.
"Workman" is a different concept defined under the Industrial Disputes Act 1947 and includes those persons employed to do skilled, unskilled, manual, technical, clerical, or supervisory work and clearly excludes persons who are performing functions of managerial nature. Thus, an HR Manager or Finance Manager are not workmen if they are really discharging functions of managerial nature such as sanctioning leave or appraising the performance of subordinates or exercising powers of disciplining them. It is not enough if they are merely designated as managers but in fact discharging clerical functions, in which case they may come within the definition of a "workman."
Thus, the concepts of "worker" and "workman" need to be understood differently.
B. Saikumar
HR & Labour Law Advisor
Mumbai
From India, Mumbai
Acknowledge(0)Amend(0)
Hello,
A "worker" is a term defined under the Factories Act, and it includes those employed by the factory, employees employed by the contractor - with or without knowledge of the employer - for wages or not, to do any work connected with the "manufacturing process," etc. The Factories Act, being an establishment legislation, uses the term "worker," and the scope is wide as the purpose is safety, health, etc.
Yes, there are certain categories to whom exemption from various provisions of the act is granted, and one has to follow a procedure stipulated. You will find details under Sec. 100 to 102 and the rules thereunder.
The term "workman" is defined under the Industrial Disputes Act, 1947, and includes all those, including white-collared employees who conform to this definition. The definition also excludes certain categories of workmen (those who are engaged mainly in supervisory or managerial work).
I am NOT quoting definitions but am only providing broad guidelines since many issues involved in both definitions are not obvious or simple. Largely, however, the actual nature of work performed by the individual decides his status as a "workman" or a "non-workman," and it is open to third parties (courts, conciliation officers - in appropriate cases) to decide if any given individual conforms to the definition of "workman" under this act. This is significant as the Industrial Disputes Act is essentially a disputes processing legislation. That is why the scope of both definitions is different!
Your query seems to have emerged out of academic interests, but if you have a real-life situation on hand, kindly provide more specific inputs and receive better advice!
Regards,
Samvedan
August 30, 2012
From India, Pune
Acknowledge(1)Amend(0)
A "worker" is a term defined under the Factories Act, and it includes those employed by the factory, employees employed by the contractor - with or without knowledge of the employer - for wages or not, to do any work connected with the "manufacturing process," etc. The Factories Act, being an establishment legislation, uses the term "worker," and the scope is wide as the purpose is safety, health, etc.
Yes, there are certain categories to whom exemption from various provisions of the act is granted, and one has to follow a procedure stipulated. You will find details under Sec. 100 to 102 and the rules thereunder.
The term "workman" is defined under the Industrial Disputes Act, 1947, and includes all those, including white-collared employees who conform to this definition. The definition also excludes certain categories of workmen (those who are engaged mainly in supervisory or managerial work).
I am NOT quoting definitions but am only providing broad guidelines since many issues involved in both definitions are not obvious or simple. Largely, however, the actual nature of work performed by the individual decides his status as a "workman" or a "non-workman," and it is open to third parties (courts, conciliation officers - in appropriate cases) to decide if any given individual conforms to the definition of "workman" under this act. This is significant as the Industrial Disputes Act is essentially a disputes processing legislation. That is why the scope of both definitions is different!
Your query seems to have emerged out of academic interests, but if you have a real-life situation on hand, kindly provide more specific inputs and receive better advice!
Regards,
Samvedan
August 30, 2012
From India, Pune
Acknowledge(1)Amend(0)
Hello, Mr. Samvedan,
It's a real-life situation. I am working in a manufacturing company. This doubt mainly arose during a discussion on overtime for junior-level management staff (non-manufacturing), such as finance executives, HR executives, and customer support executives.
1. If they fall under the workers' category, do we need to obtain overtime exceptions from the Inspector of Factories?
2. We have decided to pay only for the aforementioned category (not for manufacturing employees). Is this advisable?
Thanks & Regards,
KP
From Australia, Revesby
Acknowledge(0)Amend(0)
It's a real-life situation. I am working in a manufacturing company. This doubt mainly arose during a discussion on overtime for junior-level management staff (non-manufacturing), such as finance executives, HR executives, and customer support executives.
1. If they fall under the workers' category, do we need to obtain overtime exceptions from the Inspector of Factories?
2. We have decided to pay only for the aforementioned category (not for manufacturing employees). Is this advisable?
Thanks & Regards,
KP
From Australia, Revesby
Acknowledge(0)Amend(0)
Dear Saikumar,
Sir,
This doubt mainly arose during our discussion regarding Overtime for Junior-level Management staff (Non-Manufacturing) (i.e. Finance Executive, HR Executive, Customer Support Executive).
1. If they fall under the workers' category, do we need to obtain Overtime exceptions from the Inspector of Factories?
2. We have decided to pay only for the aforementioned category (Not for Manufacturing Employees); is this advisable?
Thanks & Regards,
KP
Attribution: https://www.citehr.com/427519-worker...#ixzz252TgNB3K
From Australia, Revesby
Acknowledge(0)Amend(0)
Sir,
This doubt mainly arose during our discussion regarding Overtime for Junior-level Management staff (Non-Manufacturing) (i.e. Finance Executive, HR Executive, Customer Support Executive).
1. If they fall under the workers' category, do we need to obtain Overtime exceptions from the Inspector of Factories?
2. We have decided to pay only for the aforementioned category (Not for Manufacturing Employees); is this advisable?
Thanks & Regards,
KP
Attribution: https://www.citehr.com/427519-worker...#ixzz252TgNB3K
From Australia, Revesby
Acknowledge(0)Amend(0)
Hello,
The categories you have mentioned, prima facie, will come under the exempted category. However, the Factories Act is an OLD legislation, and the parts we are dealing with here have not been amended for quite some time.
It is best to recheck the position (Sections 100, 101, and 102 particularly) I stated in the earlier response before any policy decisions are made. If these categories are not mentioned in the present list of exempted categories, you may have to obtain fresh exemption.
To be technically correct, anyone who is NOT exempted will be entitled to get Overtime! The law does NOT prohibit the employer from paying OT even to the exempted categories, and it will have to be a managerial decision.
At this stage, I would like to draw your attention to a material fact, and that is NO OT is possible for ANY unexempted category UNLESS necessary exemption from working hours is obtained under Sections 61 onwards of the Factories Act!
Usually, the enforcement agencies do not object unless there is a specific complaint against a breach of the law or when they need to make some money in a clandestine manner! You will have to watch out for such a move.
Regarding whether your proposed action is advisable, I feel it is just to follow the law but very difficult to stop such a system at will, and it does become a precedent. To that extent, if I were in your position, I would try to steer clear of this "fairness and compensate concerned staff in some other way.
Regards,
Samvedan
August 30, 2012
From India, Pune
Acknowledge(1)Amend(0)
The categories you have mentioned, prima facie, will come under the exempted category. However, the Factories Act is an OLD legislation, and the parts we are dealing with here have not been amended for quite some time.
It is best to recheck the position (Sections 100, 101, and 102 particularly) I stated in the earlier response before any policy decisions are made. If these categories are not mentioned in the present list of exempted categories, you may have to obtain fresh exemption.
To be technically correct, anyone who is NOT exempted will be entitled to get Overtime! The law does NOT prohibit the employer from paying OT even to the exempted categories, and it will have to be a managerial decision.
At this stage, I would like to draw your attention to a material fact, and that is NO OT is possible for ANY unexempted category UNLESS necessary exemption from working hours is obtained under Sections 61 onwards of the Factories Act!
Usually, the enforcement agencies do not object unless there is a specific complaint against a breach of the law or when they need to make some money in a clandestine manner! You will have to watch out for such a move.
Regarding whether your proposed action is advisable, I feel it is just to follow the law but very difficult to stop such a system at will, and it does become a precedent. To that extent, if I were in your position, I would try to steer clear of this "fairness and compensate concerned staff in some other way.
Regards,
Samvedan
August 30, 2012
From India, Pune
Acknowledge(1)Amend(0)
Managers also come under the definition of workmen under the FA Act. However, the provisions of Chapter VI (working hours, etc.), except those regarding working hours of women, will not apply to managers defined to hold supervisory, managerial, or confidential posts. This definition is determined by state governments or chief inspectors. If the monthly salary of such a manager is up to Rs10,000, they are eligible for overtime wages as well. Please refer to Section 64 of the Act. If, by definition, they were not classified as workers, the exemption under Section 64(1) would not have been required.
VARGHESE MATHEW BIL PGDPM
Labour law consultant.
From India, Thiruvananthapuram
Acknowledge(0)Amend(0)
0
0
VARGHESE MATHEW BIL PGDPM
Labour law consultant.
From India, Thiruvananthapuram
Acknowledge(0)Amend(0)CiteHR.AI
(Fact Checked)-The user's reply contains accurate information regarding the classification of managers under the Factories Act, 1948. The provisions of Chapter VI do not fully apply to managers holding supervisory, managerial, or confidential positions. The exemption under Section 64(1) is applicable to managers if their monthly salary is up to Rs. 10,000. The user's response is correct. (1 Acknowledge point)
0
0
I am working in a public limited company and am in dispute with management regarding the definition of a workman. In this case, our fellow workmen have been promoted to managers/shift officers and are working under the same conditions. Does this act of encroachment on our work, even after giving promotions, violate rules? Where should this issue be raised, and what would be the logical course of action?
From India, Pune
Acknowledge(0)Amend(0)
From India, Pune
Acknowledge(0)Amend(0)
Hello,
For Mr. Shikerkar:
What I have understood may not be complete, though I have a good idea of what you intend to convey.
At the outset, let me clarify. A "supervisor" or a "Manager" is not so because of the designation or the salary he is paid!
The question always, and particularly in cases of disputes, whether someone is a "workman" under the Industrial Disputes Act 1947 or not is open for determination by a third party, viz: the appropriate courts or the Conciliation Officer in specific matters. This is NOT clearly stated in the act definition of the term "workman," but there are scores of reported cases that demonstrate how the status of an employee is decided by courts.
The most simple indicators are whether the concerned person is entrusted with authority over people, whether he has subordinates, can he commit the company, does he sanction leave, recommend punishments, conduct appraisals, etc. And these should not be merely on paper but should be provable by cogent evidence.
Having set out the preliminaries, if you set out your problem with greater clarity and a little more sharp focus, I may be able to advise better!
Regards,
Samvedan
August 5, 2012
From India, Pune
Acknowledge(0)Amend(0)
For Mr. Shikerkar:
What I have understood may not be complete, though I have a good idea of what you intend to convey.
At the outset, let me clarify. A "supervisor" or a "Manager" is not so because of the designation or the salary he is paid!
The question always, and particularly in cases of disputes, whether someone is a "workman" under the Industrial Disputes Act 1947 or not is open for determination by a third party, viz: the appropriate courts or the Conciliation Officer in specific matters. This is NOT clearly stated in the act definition of the term "workman," but there are scores of reported cases that demonstrate how the status of an employee is decided by courts.
The most simple indicators are whether the concerned person is entrusted with authority over people, whether he has subordinates, can he commit the company, does he sanction leave, recommend punishments, conduct appraisals, etc. And these should not be merely on paper but should be provable by cogent evidence.
Having set out the preliminaries, if you set out your problem with greater clarity and a little more sharp focus, I may be able to advise better!
Regards,
Samvedan
August 5, 2012
From India, Pune
Acknowledge(0)Amend(0)
Dear Mr. Prasath,
A worker is defined in Section 2(l) of the Factories Act as a person employed, directly or through any agency (including a contractor), with or without the knowledge of the principal employer, whether for remuneration or not, in any manufacturing process, or in cleaning any part of the machinery or premises used for the manufacturing process, or in any other kind of work incidental to, or connected with, the manufacturing process, or the subject of the manufacturing process but does not include any members of the armed forces. Therefore, it is a very wide definition. Depriving a section of workers of overtime may lead to discontent, and consequently, an industrial relations issue might arise.
From India, Pune
Acknowledge(0)Amend(0)
A worker is defined in Section 2(l) of the Factories Act as a person employed, directly or through any agency (including a contractor), with or without the knowledge of the principal employer, whether for remuneration or not, in any manufacturing process, or in cleaning any part of the machinery or premises used for the manufacturing process, or in any other kind of work incidental to, or connected with, the manufacturing process, or the subject of the manufacturing process but does not include any members of the armed forces. Therefore, it is a very wide definition. Depriving a section of workers of overtime may lead to discontent, and consequently, an industrial relations issue might arise.
From India, Pune
Acknowledge(0)Amend(0)
Dear,
As per my knowledge, all of these individuals have managerial capacity, so they are not covered under the Workman category (under the Industrial Disputes Act, 1947). However, they are covered under the employee category because they work for remuneration or provide their services for the benefit of the organization. Therefore, according to The Factories Act, 1948, they all fall under the definition of an employee.
Rajbir
Labor Welfare Officer
From India, Coimbatore
Acknowledge(0)Amend(0)
As per my knowledge, all of these individuals have managerial capacity, so they are not covered under the Workman category (under the Industrial Disputes Act, 1947). However, they are covered under the employee category because they work for remuneration or provide their services for the benefit of the organization. Therefore, according to The Factories Act, 1948, they all fall under the definition of an employee.
Rajbir
Labor Welfare Officer
From India, Coimbatore
Acknowledge(0)Amend(0)
Dear Samvedan,
Thank you for your reply. I wish to respond with specific inputs. At our workplace, employees were offered promotions and received designations such as managers, assistant managers, etc. However, they were placed on the same roster as normal employees. Despite this, they now have supervisory powers, can influence appraisals, and have the authority to approve leave. After some time, management allocated specific working spaces for these promotees. We have requested a clear job classification.
This action is seen as encroachment into our work area, leading to a reduction in the workforce. Consequently, we have raised this issue with the labor commission. I would like to understand the definitions of "workman" in this particular context. Additionally, I am seeking guidance on how to address this matter with HR and management.
Thank you.
From India, Pune
Acknowledge(0)Amend(0)
Thank you for your reply. I wish to respond with specific inputs. At our workplace, employees were offered promotions and received designations such as managers, assistant managers, etc. However, they were placed on the same roster as normal employees. Despite this, they now have supervisory powers, can influence appraisals, and have the authority to approve leave. After some time, management allocated specific working spaces for these promotees. We have requested a clear job classification.
This action is seen as encroachment into our work area, leading to a reduction in the workforce. Consequently, we have raised this issue with the labor commission. I would like to understand the definitions of "workman" in this particular context. Additionally, I am seeking guidance on how to address this matter with HR and management.
Thank you.
From India, Pune
Acknowledge(0)Amend(0)
The designations mentioned are workers under the Factories Act. Otherwise, what is the need for exempting them under section 64? This shows that the intention of the legislature was to cover them also but for the exemption. As for clerical staff, please read the Supreme Court judgment in Central Railway Workshop, Jhansi v. Viswanath - 1970 (1) LLJ 351. The age of the Factories Act is not material as we all resort to the Indian Evidence Act, CrPC, CPC when needed, though they are old.
VARGHESE MATHEW
LABOR/HR Consultant TVPM
09961266966
From India, Thiruvananthapuram
Acknowledge(0)Amend(0)
VARGHESE MATHEW
LABOR/HR Consultant TVPM
09961266966
From India, Thiruvananthapuram
Acknowledge(0)Amend(0)
Hello,
As I have mentioned earlier, the "designation" or the "salary" paid to an employee does NOT make him a workman. It is the actual work duties assigned and/or performed by him that will decide if he is a "workman" under the Industrial Disputes Act of 1947 or not! One must, however, remember that the most predominant responsibilities will decide his status as a "workman" under the ID Act or not. Next, you must elaborate for me as to what exactly you wish to convey by "Now they have supervisory powers they can influence the appraisals etc., and also have leave sanctioning powers." I wish to know if their involvement is formal and provable? Do they sign the appraisal paper at some place? Similarly, do they "sanction" leave or merely "recommend" it? Even so, if their "approval" in most cases leads to the grant of leave by the superiors, it is good!
Do I understand that these "promotees" are now transferred to some other area and are no longer a part of your work team? If that be the case, please redefine your problem before the Labour Commissioner. Either you complain about the matter of such promotions or of the shortage of people to work with!
Notwithstanding all this, let me simplify the issue and state that:
1) A person who works with his own hands is prima facie a "workman" under the ID Act.
2) If he does not have any discretionary element in his job, he could be a workman. In such a case, he could be a technical or administrative employee and may escape being a "workman" under the act!
3) I repeat that in any case, if the predominant content of his job is routine, repetitive with no discretionary or authoritative element to guide, direct, and control the performance of others and be accountable for the performance of others, then also he could be a workman under the said act!
In sum, it all depends upon the job duties assigned to him or being performed by him and NOT on his fancy (otherwise) designation or the salary and perks!
I trust with these inputs you will be able to successfully handle the matter before the Labour Commissioner!
Best of luck!
Regards,
Samvedan
October 6, 2012
-------------------------------------------
Dear Samvedan,
Thanks for your reply. I wish to reply to you with specific inputs. At our place, employees were offered promotions and got their designations as managers, assistant managers, etc., but they were put in the same roster as that of normal employees. Now they have supervisory powers; they can influence the appraisals, etc., and also have leave sanctioning powers. After some days of keeping them with us, management took some working places for these promotees. We have demanded the classification of the job.
As this action turns out to be an encroachment in our work area and subsequently results in a reduction in the strength of workmen, we took this issue to the labor commission. I want to know the definitions of workmen in this context.
Also, I wish to know how to proceed in this matter with the HR and management.
Best regards.
From India, Pune
Acknowledge(0)Amend(0)
As I have mentioned earlier, the "designation" or the "salary" paid to an employee does NOT make him a workman. It is the actual work duties assigned and/or performed by him that will decide if he is a "workman" under the Industrial Disputes Act of 1947 or not! One must, however, remember that the most predominant responsibilities will decide his status as a "workman" under the ID Act or not. Next, you must elaborate for me as to what exactly you wish to convey by "Now they have supervisory powers they can influence the appraisals etc., and also have leave sanctioning powers." I wish to know if their involvement is formal and provable? Do they sign the appraisal paper at some place? Similarly, do they "sanction" leave or merely "recommend" it? Even so, if their "approval" in most cases leads to the grant of leave by the superiors, it is good!
Do I understand that these "promotees" are now transferred to some other area and are no longer a part of your work team? If that be the case, please redefine your problem before the Labour Commissioner. Either you complain about the matter of such promotions or of the shortage of people to work with!
Notwithstanding all this, let me simplify the issue and state that:
1) A person who works with his own hands is prima facie a "workman" under the ID Act.
2) If he does not have any discretionary element in his job, he could be a workman. In such a case, he could be a technical or administrative employee and may escape being a "workman" under the act!
3) I repeat that in any case, if the predominant content of his job is routine, repetitive with no discretionary or authoritative element to guide, direct, and control the performance of others and be accountable for the performance of others, then also he could be a workman under the said act!
In sum, it all depends upon the job duties assigned to him or being performed by him and NOT on his fancy (otherwise) designation or the salary and perks!
I trust with these inputs you will be able to successfully handle the matter before the Labour Commissioner!
Best of luck!
Regards,
Samvedan
October 6, 2012
-------------------------------------------
Dear Samvedan,
Thanks for your reply. I wish to reply to you with specific inputs. At our place, employees were offered promotions and got their designations as managers, assistant managers, etc., but they were put in the same roster as that of normal employees. Now they have supervisory powers; they can influence the appraisals, etc., and also have leave sanctioning powers. After some days of keeping them with us, management took some working places for these promotees. We have demanded the classification of the job.
As this action turns out to be an encroachment in our work area and subsequently results in a reduction in the strength of workmen, we took this issue to the labor commission. I want to know the definitions of workmen in this context.
Also, I wish to know how to proceed in this matter with the HR and management.
Best regards.
From India, Pune
Acknowledge(0)Amend(0)
Dear Samvedan,
Thank you for your reply. As you mentioned, there is indeed a shortage of workers on the employee side. However, overnight, the positions were converted (declared) as management posts for these new individuals. Additionally, the management has included their names on the list of those who recommend leaves for subordinates. So far, they have not conducted any appraisals, but it is likely to happen in the future.
The question arises: Can positions that employees have worked in for 30 years be converted to management cadre? And how should we address this situation? Your assistance will be greatly appreciated.
Thank you.
From India, Pune
Acknowledge(0)Amend(0)
Thank you for your reply. As you mentioned, there is indeed a shortage of workers on the employee side. However, overnight, the positions were converted (declared) as management posts for these new individuals. Additionally, the management has included their names on the list of those who recommend leaves for subordinates. So far, they have not conducted any appraisals, but it is likely to happen in the future.
The question arises: Can positions that employees have worked in for 30 years be converted to management cadre? And how should we address this situation? Your assistance will be greatly appreciated.
Thank you.
From India, Pune
Acknowledge(0)Amend(0)
Hello,
Merely changing "labels" for jobs or enhancing remunerations does NOT change the nature of work! I repeat, recommending/sanctioning leave, or formally participating in appraisals will NOT necessarily change the character of the job. The main point is, what is the predominant content of set of responsibilities assigned to the specific employee. If despite such cosmetic changes the nature of responsibilities remains those of a "workman" there is nothing to worry!
Sometimes employers do resort to such cheap and dishonest gimmicks to steer clear of legal protection that a "workman" has under labor laws. If done, this is UNETHICAL besides being UNFAIR and blatantly WRONG.
Let me assure you that notwithstanding these gimmicks, the question of whether a given employee is a "workman" under ID Act 1947 is always decided by a third party (like the Conciliation officers/courts in appropriate cases) intervention. In such a case, just consider if it is wrong for the employee to let the employer have the satisfaction of escaping labor law bindings when the employee may not have really lost the protective shield of the labor law and in the process benefit by higher wages. However, to consent to receiving such benefits dishonestly, one will have to be prepared to put up a fight before appropriate forums, if need be and at own cost!
Either resist management moves now (perhaps incurring the wrath of your own colleagues for obvious reasons) or be prepared to fight it out if and when needed! There could be other hidden motives behind such a move by the management. For example, by doing so, the management could be bringing down the numerical strength of "workmen" below 100 so that downsizing is simplified in the future!
There are many ways of looking at possible consequences of such moves by the management, but I am happy for you that you are demonstrating alertness to the situation!
Feel free to contact me for any further help.
And yes, I had made reference to the Factories Act in an earlier post in this thread only to highlight the difference between a "WORKER" under that Act and a "WORKMAN" under the ID Act. Apparently, some members had misconstrued my purpose. I still maintain that what I had said remains valid. But this clarification is NOT aimed at generating a new debate! This is just a clarification!
Regards,
Samvedan
October 8, 2012
From India, Pune
Acknowledge(0)Amend(0)
Merely changing "labels" for jobs or enhancing remunerations does NOT change the nature of work! I repeat, recommending/sanctioning leave, or formally participating in appraisals will NOT necessarily change the character of the job. The main point is, what is the predominant content of set of responsibilities assigned to the specific employee. If despite such cosmetic changes the nature of responsibilities remains those of a "workman" there is nothing to worry!
Sometimes employers do resort to such cheap and dishonest gimmicks to steer clear of legal protection that a "workman" has under labor laws. If done, this is UNETHICAL besides being UNFAIR and blatantly WRONG.
Let me assure you that notwithstanding these gimmicks, the question of whether a given employee is a "workman" under ID Act 1947 is always decided by a third party (like the Conciliation officers/courts in appropriate cases) intervention. In such a case, just consider if it is wrong for the employee to let the employer have the satisfaction of escaping labor law bindings when the employee may not have really lost the protective shield of the labor law and in the process benefit by higher wages. However, to consent to receiving such benefits dishonestly, one will have to be prepared to put up a fight before appropriate forums, if need be and at own cost!
Either resist management moves now (perhaps incurring the wrath of your own colleagues for obvious reasons) or be prepared to fight it out if and when needed! There could be other hidden motives behind such a move by the management. For example, by doing so, the management could be bringing down the numerical strength of "workmen" below 100 so that downsizing is simplified in the future!
There are many ways of looking at possible consequences of such moves by the management, but I am happy for you that you are demonstrating alertness to the situation!
Feel free to contact me for any further help.
And yes, I had made reference to the Factories Act in an earlier post in this thread only to highlight the difference between a "WORKER" under that Act and a "WORKMAN" under the ID Act. Apparently, some members had misconstrued my purpose. I still maintain that what I had said remains valid. But this clarification is NOT aimed at generating a new debate! This is just a clarification!
Regards,
Samvedan
October 8, 2012
From India, Pune
Acknowledge(0)Amend(0)
We have taken this matter to the Labor Commissioner, but that office is biased and is not taking action. After several meetings, we have requested them to either produce a failure report or compel management to send a responsible representative to appear before the office by submitting FORM F. This is our stance, and I seek views and guidance on this matter from knowledgeable individuals like yourself.
From India, Pune
Acknowledge(0)Amend(0)
From India, Pune
Acknowledge(0)Amend(0)
Hello,
Disputes before the Commissioner of Labour are mostly under the ID Act of 1947.
Have you formally raised a "demand" with the management?
The management has either rejected your demand or is avoiding dealing with it.
Due to the lack of a proper response from the management, you may have approached the Commissioner of Labour's office and are becoming frustrated. My experience with this office indicates that they are prone to being "managed" by managements.
Initially, the Labour Office handles the matter under PMAS (Personnel Management Advisory Services). Although this is not explicitly stated in the act, it was administratively established many years ago by the then Commissioner of Labour of the state of Maharashtra. It was an honest effort, albeit time-consuming, to utilize the office before resorting to legal action (which is a one-way street). If PMAS does not resolve the dispute, then the process of "conciliation" (as stipulated under the act) must begin. Ultimately, this may either resolve the matter or result in a "failure report," leading to a judicial determination where lawyers become involved.
Please note that I am outlining a general path through which these matters are typically processed.
Do you not have a union (employee organization)? Have you sought assistance from a practicing labor advocate? If not, I strongly recommend doing so to handle the matter effectively.
If you all wish to stand up for what is right, you must present a competent and resolute response that is efficient and well-researched.
Kindly consider the appropriate course of action.
Best of luck!
Regards,
Samvedan
October 9, 2012
----------------------
From India, Pune
Acknowledge(0)Amend(0)
Disputes before the Commissioner of Labour are mostly under the ID Act of 1947.
Have you formally raised a "demand" with the management?
The management has either rejected your demand or is avoiding dealing with it.
Due to the lack of a proper response from the management, you may have approached the Commissioner of Labour's office and are becoming frustrated. My experience with this office indicates that they are prone to being "managed" by managements.
Initially, the Labour Office handles the matter under PMAS (Personnel Management Advisory Services). Although this is not explicitly stated in the act, it was administratively established many years ago by the then Commissioner of Labour of the state of Maharashtra. It was an honest effort, albeit time-consuming, to utilize the office before resorting to legal action (which is a one-way street). If PMAS does not resolve the dispute, then the process of "conciliation" (as stipulated under the act) must begin. Ultimately, this may either resolve the matter or result in a "failure report," leading to a judicial determination where lawyers become involved.
Please note that I am outlining a general path through which these matters are typically processed.
Do you not have a union (employee organization)? Have you sought assistance from a practicing labor advocate? If not, I strongly recommend doing so to handle the matter effectively.
If you all wish to stand up for what is right, you must present a competent and resolute response that is efficient and well-researched.
Kindly consider the appropriate course of action.
Best of luck!
Regards,
Samvedan
October 9, 2012
----------------------
From India, Pune
Acknowledge(0)Amend(0)
Thanks, sir. We do have a union, but there are other problems like this simultaneously propped up due to resolute and unethical ways of management. I was seeking your view on this matter to see if we are not going off track. Anyway, thanks for your reply.
From India, Pune
Acknowledge(0)Amend(0)
From India, Pune
Acknowledge(0)Amend(0)
Dear Mr. K. P.,
To decide whether a particular person is a workman or not, we have to consider the nature of his duty. If a person supervises/manages the people at work, sanctions their leave, plans their shifts, recommends promotions, punishments, appraisals, etc., then he is not a workman. Merely being appointed in the staff category and having a higher salary are not sufficient factors to determine if he is a workman or not. The nature of duty and managerial capacity rights are important factors.
Regards,
S. D. Patil
From India, Kolhapur
Acknowledge(1)
Amend(0)
To decide whether a particular person is a workman or not, we have to consider the nature of his duty. If a person supervises/manages the people at work, sanctions their leave, plans their shifts, recommends promotions, punishments, appraisals, etc., then he is not a workman. Merely being appointed in the staff category and having a higher salary are not sufficient factors to determine if he is a workman or not. The nature of duty and managerial capacity rights are important factors.
Regards,
S. D. Patil
From India, Kolhapur
Acknowledge(1)Amend(0)
Eligibility of "Departmental Manager" for overtime under Factory Act, 1948
Section 59 says that:
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.
Now it is important to know who falls under definition of worker. Under Factory Act 1948 there are 3 category of person i.e.
1. Occupier under Section 2 (n) of The Factory Act, 1948.
1. Manager under Rule of The Factory Rules of concern state.
2. Worker under Section 2 (l) of The Factory Act, 1948.
Here definition of Manager under Rule 2 (l) of The Punjab Factory Rules, 1952 does not include departmental manager like quality manager or HR Manager etc. because appointment intimation of such manger do not forwarded to Factory Inspector by occupier under section 7 (4) of factories Act, 1948, so we can conclude that departmental manager are different from Manager under Rule of Factory Rules.
It is important to understand position of departmental manager under Factories Act, 1942. As per my understanding we cannot import definition of workman under Section 2 (s) from the Industrial Dispute Act,1947 reason of this is objective of both Acts are entirely different.
The main object of the Factories Act, 1948 is to ensure adequate safety measures and to promote the health and welfare of the workers employed in factories whereas The Industrial Disputes Act, 1947 makes provision for the investigation and settlement of industrial disputes and for certain other purposes.
This is important to find categorization of departmental manager under Factories law only. We have to check definition of worker minutely because departmental manager cannot be Occupier under Section 2 (n) of The Factory Act, 1948 or Manager under Rule 2 (l) of The Punjab Factory Rules, 1952.
There is only category left under Factories Act, 1948 i.e. “Worker” means a person employed directly or by or through any agency (including a contractor) with or without knowledge of the principal employer, whether for remuneration or not, in any manufacturing process, or in any other kind or work incidental to, or connected with, the manufacturing process or the subject of the manufacturing process but does not include any member of the armed forces of the Union. [Section 2(1)]
The definition contains following ingredients:
There should be an ‘employed person’ meaning of the word “employed”: The concept of “employment” involves three ingredients, viz. employer, employee, and contract of employment. The ‘employer’ is one who employs, i.e., one who engages the services of other persons. The ‘employee’ is one who works for another for hire. Above understanding comes from case law of Chintaman Rao v. State of M.P. AIR 1958 S.C. 388 which said that:
The employment is the contract of service between employer and employee where under the employee agrees to serve the employer subject to his control and supervision. The prima facie test for determination of the relationship between the employer and employee is the existence of the right of the employer to supervise and control the work done by the employee not only in the matter of directing what work the employee is to do but also the manner in which he shall do his work.
Employed in work incidental to process: This clause is very important because it enlarges the scope of the term, manufacturing process.
Following illustrative cases will clarify the meaning of this clause:
(1) In Shinde v. Bombay Telephones, 1968 (11) LLJ 74, it was held that whether the workman stands outside the factory premises or inside it, if his duties are connected with the business of the factory or connected with the factory, he is really employed in the factory and in connection with the factory.
(2) In Works Manager, Central Rly. Workshop Jhansi v. Vishwanath and others, it was held that the definition of worker does not exclude those employees who are entrusted solely with clerical duties, if they otherwise fall within the definition of ‘worker. Timekeepers employed to maintain attendance of the staff, job cards particularly of the various jobs under operation, and time- sheets of the staff engaged in production of spare parts, repairs, etc.; and head time-keeper who supervise the work of the time-keepers, perform work which is incidental to or connected with the manufacturing process carried on in the factory and would therefore, fall within the definition of the worker in the Act.
Now it is very important to understand nature of work of departmental manager. Whether departmental manager works under supervision and control of employer or departmental manager have liberty to work as per his discretion.
In Shankar Balaji Waje v. State of Maharashtra, AIR 1963 Bom. 236, the question arose whether bidi roller is a worker or not. The management simply says that the labourer is to produce bidies rolled in a certain form. How the labourer carried out the work is his own concern and is not controlled by the management, which is concerned only with getting bidies rolled in a particular style with certain contents. The Supreme Court held that the bidi roller is not a worker.
The whole conception of service does not fit in well with a servant who has full liberty to attend to his work according to his pleasure and not according to the orders of his master. Where the employer did retain direction and control over the workers both in manner of the nature of the work as ‘also its details they will be held as workers.
In State of Kerala v. R.E.DSouza; Women and girls employed in peeling, washing etc., of consignment of prawns brought on the premises at any time of the day or night, without any specified hours of work and without any control over their attendance or the nature, manner or quantum of their work and who after finishing the work go to other premises in the locality where similar consignment of prawns are received, are not Workers.
So deciding factor about category of departmental manager whether falls under definition of worker or not; working conditions under employment are required to examine like:
1. Whether departmental manager working hours is as per his own sweet will or not?
2. Whether departmental manager working method is out of employer supervision or not?
3. Whether departmental manager working is out of employer control or not?
If answer of above three question's answer are "No"; then departmental manager falls under definition of worker if his works within factory for manufacturing process or not.
If answer of above three question's answer are "Yes"; then departmental manager do not falls under definition of worker even he works within factory for manufacturing process.
In question of whether all employees are workers court said as below:
Since the word employee has not been defined in the Act it follows that all the workers within the ambit of the definition under the factories Act would be employees, while all employees would not be workers (Harbanslal v. State of Karnataka, (1976)1 Karnt.J.111).
All persons employed in or in connection with a factory whether or not employed
as workers are entitled to the benefits of the Act (Union of India v. G.M. Kokil, 1984 SCC (L&S) 631).
Once it is established prima facie that premises in question is a factory within the meaning of the Act, the provisions of Section 103 as to the presumption of employment are immediately attracted and onus to prove the contrary shifts to the accused (Prafulbhai Patadia v. The State, 1976 (12) E.L.R. 329).
From Malaysia, Seremban
Acknowledge(0)Amend(0)
Section 59 says that:
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.
Now it is important to know who falls under definition of worker. Under Factory Act 1948 there are 3 category of person i.e.
1. Occupier under Section 2 (n) of The Factory Act, 1948.
1. Manager under Rule of The Factory Rules of concern state.
2. Worker under Section 2 (l) of The Factory Act, 1948.
Here definition of Manager under Rule 2 (l) of The Punjab Factory Rules, 1952 does not include departmental manager like quality manager or HR Manager etc. because appointment intimation of such manger do not forwarded to Factory Inspector by occupier under section 7 (4) of factories Act, 1948, so we can conclude that departmental manager are different from Manager under Rule of Factory Rules.
It is important to understand position of departmental manager under Factories Act, 1942. As per my understanding we cannot import definition of workman under Section 2 (s) from the Industrial Dispute Act,1947 reason of this is objective of both Acts are entirely different.
The main object of the Factories Act, 1948 is to ensure adequate safety measures and to promote the health and welfare of the workers employed in factories whereas The Industrial Disputes Act, 1947 makes provision for the investigation and settlement of industrial disputes and for certain other purposes.
This is important to find categorization of departmental manager under Factories law only. We have to check definition of worker minutely because departmental manager cannot be Occupier under Section 2 (n) of The Factory Act, 1948 or Manager under Rule 2 (l) of The Punjab Factory Rules, 1952.
There is only category left under Factories Act, 1948 i.e. “Worker” means a person employed directly or by or through any agency (including a contractor) with or without knowledge of the principal employer, whether for remuneration or not, in any manufacturing process, or in any other kind or work incidental to, or connected with, the manufacturing process or the subject of the manufacturing process but does not include any member of the armed forces of the Union. [Section 2(1)]
The definition contains following ingredients:
There should be an ‘employed person’ meaning of the word “employed”: The concept of “employment” involves three ingredients, viz. employer, employee, and contract of employment. The ‘employer’ is one who employs, i.e., one who engages the services of other persons. The ‘employee’ is one who works for another for hire. Above understanding comes from case law of Chintaman Rao v. State of M.P. AIR 1958 S.C. 388 which said that:
The employment is the contract of service between employer and employee where under the employee agrees to serve the employer subject to his control and supervision. The prima facie test for determination of the relationship between the employer and employee is the existence of the right of the employer to supervise and control the work done by the employee not only in the matter of directing what work the employee is to do but also the manner in which he shall do his work.
Employed in work incidental to process: This clause is very important because it enlarges the scope of the term, manufacturing process.
Following illustrative cases will clarify the meaning of this clause:
(1) In Shinde v. Bombay Telephones, 1968 (11) LLJ 74, it was held that whether the workman stands outside the factory premises or inside it, if his duties are connected with the business of the factory or connected with the factory, he is really employed in the factory and in connection with the factory.
(2) In Works Manager, Central Rly. Workshop Jhansi v. Vishwanath and others, it was held that the definition of worker does not exclude those employees who are entrusted solely with clerical duties, if they otherwise fall within the definition of ‘worker. Timekeepers employed to maintain attendance of the staff, job cards particularly of the various jobs under operation, and time- sheets of the staff engaged in production of spare parts, repairs, etc.; and head time-keeper who supervise the work of the time-keepers, perform work which is incidental to or connected with the manufacturing process carried on in the factory and would therefore, fall within the definition of the worker in the Act.
Now it is very important to understand nature of work of departmental manager. Whether departmental manager works under supervision and control of employer or departmental manager have liberty to work as per his discretion.
In Shankar Balaji Waje v. State of Maharashtra, AIR 1963 Bom. 236, the question arose whether bidi roller is a worker or not. The management simply says that the labourer is to produce bidies rolled in a certain form. How the labourer carried out the work is his own concern and is not controlled by the management, which is concerned only with getting bidies rolled in a particular style with certain contents. The Supreme Court held that the bidi roller is not a worker.
The whole conception of service does not fit in well with a servant who has full liberty to attend to his work according to his pleasure and not according to the orders of his master. Where the employer did retain direction and control over the workers both in manner of the nature of the work as ‘also its details they will be held as workers.
In State of Kerala v. R.E.DSouza; Women and girls employed in peeling, washing etc., of consignment of prawns brought on the premises at any time of the day or night, without any specified hours of work and without any control over their attendance or the nature, manner or quantum of their work and who after finishing the work go to other premises in the locality where similar consignment of prawns are received, are not Workers.
So deciding factor about category of departmental manager whether falls under definition of worker or not; working conditions under employment are required to examine like:
1. Whether departmental manager working hours is as per his own sweet will or not?
2. Whether departmental manager working method is out of employer supervision or not?
3. Whether departmental manager working is out of employer control or not?
If answer of above three question's answer are "No"; then departmental manager falls under definition of worker if his works within factory for manufacturing process or not.
If answer of above three question's answer are "Yes"; then departmental manager do not falls under definition of worker even he works within factory for manufacturing process.
In question of whether all employees are workers court said as below:
Since the word employee has not been defined in the Act it follows that all the workers within the ambit of the definition under the factories Act would be employees, while all employees would not be workers (Harbanslal v. State of Karnataka, (1976)1 Karnt.J.111).
All persons employed in or in connection with a factory whether or not employed
as workers are entitled to the benefits of the Act (Union of India v. G.M. Kokil, 1984 SCC (L&S) 631).
Once it is established prima facie that premises in question is a factory within the meaning of the Act, the provisions of Section 103 as to the presumption of employment are immediately attracted and onus to prove the contrary shifts to the accused (Prafulbhai Patadia v. The State, 1976 (12) E.L.R. 329).
From Malaysia, Seremban
Acknowledge(0)Amend(0)Gathering data for an AI comment.... Sending emails to relevant members...
Join Our Community and get connected with the right people who can help. Our AI-powered platform provides real-time fact-checking, peer-reviewed insights, and a vast historical knowledge base to support your search.
Factories Act.doc
LIST OF HOLIDAYS UNDER FACTORIES ACT - ANDHRA PRADESH.pdf
CiteHR.AI
(Fact Checked)-The user's reply contains accurate information regarding the definitions of "worker" under the Factories Act and "workman" under the Industrial Disputes Act. The response provides a good overview of the distinctions between the two terms and the factors that determine an individual's status. Well done! (1 Acknowledge point)