I would like clarification regarding the definition of a worker under the Factories Act, 1947. Are the manager, general manager, or HR manager considered workers under the Factories Act? If they are not classified as workers, are they still eligible for leave and leave encashment under the Act?
Regards,
rks381
From India, New Delhi
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Regards,
rks381
From India, New Delhi
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Dear Rks381,
HR Managers and those involved in stores, procurement activities, administrative jobs, and works managers, if solely engaged in managerial activities, are not considered workers under the Workmen's Compensation Act. Leave and encashment will be governed by the company's leave rules, which are established and managed for the organization's use.
With warm regards,
S. Bhaskar
9099024667
From India, Kumbakonam
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1189HR Managers and those involved in stores, procurement activities, administrative jobs, and works managers, if solely engaged in managerial activities, are not considered workers under the Workmen's Compensation Act. Leave and encashment will be governed by the company's leave rules, which are established and managed for the organization's use.
With warm regards,
S. Bhaskar
9099024667
From India, Kumbakonam
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Definition of "Worker" Under the Factories Act, 1947
The following is the definition of "worker" as per Section 2(l) of the Factories Act, 1947.
2. (l) "Worker" means a person (Subs. by s. 2, ibid., for certain words (w.e.f. 26-10-1976)) employed, directly or by 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 a manufacturing process, or in any other kind of work incidental to, or connected with, the manufacturing process, or the subject of the manufacturing process (Ins. by Act 94 of 1976, s. 2 (w.e.f. 26-10-1976)) but does not include any member of the armed forces of the Union.
Copied from Factories Act
Regards
From India, Kumbakonam
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The following is the definition of "worker" as per Section 2(l) of the Factories Act, 1947.
2. (l) "Worker" means a person (Subs. by s. 2, ibid., for certain words (w.e.f. 26-10-1976)) employed, directly or by 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 a manufacturing process, or in any other kind of work incidental to, or connected with, the manufacturing process, or the subject of the manufacturing process (Ins. by Act 94 of 1976, s. 2 (w.e.f. 26-10-1976)) but does not include any member of the armed forces of the Union.
Copied from Factories Act
Regards
From India, Kumbakonam
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Yes, he is a worker under the FA Act because he is engaged in work incidental to the manufacturing process. However, as per state rules, the provisions of the chapter on working hours, except those relating to women, are not applicable to him. He is also eligible for overtime if his wages are less than Rs 10,001 per month.
Regards,
Varghese Mathew
Labour Law Consultant PVPM
[Phone Number Removed For Privacy Reasons]
From India, Thiruvananthapuram
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Regards,
Varghese Mathew
Labour Law Consultant PVPM
[Phone Number Removed For Privacy Reasons]
From India, Thiruvananthapuram
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Dear All, I want to know that if a person is working in factory as a consultant, he will be employee or worker of the factory. Best Regards Zeeshan Khan
From India, Ghaziabad
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From India, Ghaziabad
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Definition of "Worker" Under the Factories Act
"WORKER" means a person employed (indicating a Master-Servant Relationship):
1. DIRECTLY or through any AGENCY (including a contractor).
2. With or without the KNOWLEDGE of the principal employer.
3. Whether for REMUNERATION or not.
4. Employed DIRECTLY IN ANY MANUFACTURING PROCESS, or
5. In CLEANING ANY PART of the machinery or premises used for a manufacturing process, or
6. In any other kind of work INCIDENTAL TO, OR CONNECTED WITH (meaning a process without which manufacture cannot be completed), the manufacturing process, or the subject of the manufacturing process.
HR Manager's Role in Manufacturing
The HR Manager's position should be considered in this context:
1) Is the HR Manager's work such that without him, manufacture cannot proceed? The answer is yes. He procures the major element of manufacture: the workmen. Therefore, the HR Manager is performing work incidental and ancillary to manufacture.
See this for more information: http://www.shramsamadhan.com/p/what-...e-covered.html
From India, Kolkata
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"WORKER" means a person employed (indicating a Master-Servant Relationship):
1. DIRECTLY or through any AGENCY (including a contractor).
2. With or without the KNOWLEDGE of the principal employer.
3. Whether for REMUNERATION or not.
4. Employed DIRECTLY IN ANY MANUFACTURING PROCESS, or
5. In CLEANING ANY PART of the machinery or premises used for a manufacturing process, or
6. In any other kind of work INCIDENTAL TO, OR CONNECTED WITH (meaning a process without which manufacture cannot be completed), the manufacturing process, or the subject of the manufacturing process.
HR Manager's Role in Manufacturing
The HR Manager's position should be considered in this context:
1) Is the HR Manager's work such that without him, manufacture cannot proceed? The answer is yes. He procures the major element of manufacture: the workmen. Therefore, the HR Manager is performing work incidental and ancillary to manufacture.
See this for more information: http://www.shramsamadhan.com/p/what-...e-covered.html
From India, Kolkata
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Eligibility of "Departmental Manager" for Overtime under Factory Act, 1948
Section 59 states 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 the definition of a worker. Under the Factory Act 1948, there are three categories of persons, i.e.:
1. Occupier under Section 2 (n) of The Factory Act, 1948.
2. Manager under the Rule of The Factory Rules of the concerned state.
3. Worker under Section 2 (l) of The Factory Act, 1948.
Here, the definition of Manager under Rule 2 (l) of The Punjab Factory Rules, 1952 does not include departmental managers like quality managers or HR Managers, etc., because the appointment intimation of such managers is not forwarded to the Factory Inspector by the occupier under section 7 (4) of the Factories Act, 1948. So, we can conclude that departmental managers are different from Managers under the Rule of Factory Rules.
Understanding the Position of Departmental Managers under Factories Act, 1948
As per my understanding, we cannot import the definition of workman under Section 2 (s) from the Industrial Dispute Act, 1947. The reason is that the objectives 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.
It is important to find the categorization of departmental managers under Factories law only. We have to check the definition of a worker minutely because a departmental manager cannot be an Occupier under Section 2 (n) of The Factory Act, 1948 or a Manager under Rule 2 (l) of The Punjab Factory Rules, 1952.
There is only one category left under the Factories Act, 1948, i.e., "Worker" means a person employed directly or by 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 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 member of the armed forces of the Union. [Section 2(1)]
Ingredients of the Definition
There should be an 'employed person.' The 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. This understanding comes from the 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 supervises 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.
Nature of Work of Departmental Managers
Now it is very important to understand the nature of work of departmental managers. Whether departmental managers work under the supervision and control of the employer or departmental managers have the liberty to work as per their discretion.
In Shankar Balaji Waje v. State of Maharashtra, AIR 1963 Bom. 236, the question arose whether a bidi roller is a worker or not. The management simply says that the laborer is to produce bidies rolled in a certain form. How the laborer carries 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 the 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.
Deciding Factors for Departmental Managers
So, the deciding factor about the category of departmental manager, whether falls under the definition of worker or not, is the working conditions under employment, which are required to be examined like:
1. Whether the departmental manager's working hours are as per his own sweet will or not?
2. Whether the departmental manager's working method is out of employer supervision or not?
3. Whether the departmental manager's working is out of employer control or not?
If the answer to the above three questions is "No," then the departmental manager falls under the definition of worker if he works within the factory for the manufacturing process or not. If the answer to the above three questions is "Yes," then the departmental manager does not fall under the definition of worker even if he works within the factory for the manufacturing process.
Court's View on Employee and Worker
In the question of whether all employees are workers, the 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 the 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 the onus to prove the contrary shifts to the accused (Prafulbhai Patadia v. The State, 1976 (12) E.L.R. 329).
From Malaysia, Seremban
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Section 59 states 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 the definition of a worker. Under the Factory Act 1948, there are three categories of persons, i.e.:
1. Occupier under Section 2 (n) of The Factory Act, 1948.
2. Manager under the Rule of The Factory Rules of the concerned state.
3. Worker under Section 2 (l) of The Factory Act, 1948.
Here, the definition of Manager under Rule 2 (l) of The Punjab Factory Rules, 1952 does not include departmental managers like quality managers or HR Managers, etc., because the appointment intimation of such managers is not forwarded to the Factory Inspector by the occupier under section 7 (4) of the Factories Act, 1948. So, we can conclude that departmental managers are different from Managers under the Rule of Factory Rules.
Understanding the Position of Departmental Managers under Factories Act, 1948
As per my understanding, we cannot import the definition of workman under Section 2 (s) from the Industrial Dispute Act, 1947. The reason is that the objectives 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.
It is important to find the categorization of departmental managers under Factories law only. We have to check the definition of a worker minutely because a departmental manager cannot be an Occupier under Section 2 (n) of The Factory Act, 1948 or a Manager under Rule 2 (l) of The Punjab Factory Rules, 1952.
There is only one category left under the Factories Act, 1948, i.e., "Worker" means a person employed directly or by 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 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 member of the armed forces of the Union. [Section 2(1)]
Ingredients of the Definition
There should be an 'employed person.' The 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. This understanding comes from the 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 supervises 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.
Nature of Work of Departmental Managers
Now it is very important to understand the nature of work of departmental managers. Whether departmental managers work under the supervision and control of the employer or departmental managers have the liberty to work as per their discretion.
In Shankar Balaji Waje v. State of Maharashtra, AIR 1963 Bom. 236, the question arose whether a bidi roller is a worker or not. The management simply says that the laborer is to produce bidies rolled in a certain form. How the laborer carries 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 the 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.
Deciding Factors for Departmental Managers
So, the deciding factor about the category of departmental manager, whether falls under the definition of worker or not, is the working conditions under employment, which are required to be examined like:
1. Whether the departmental manager's working hours are as per his own sweet will or not?
2. Whether the departmental manager's working method is out of employer supervision or not?
3. Whether the departmental manager's working is out of employer control or not?
If the answer to the above three questions is "No," then the departmental manager falls under the definition of worker if he works within the factory for the manufacturing process or not. If the answer to the above three questions is "Yes," then the departmental manager does not fall under the definition of worker even if he works within the factory for the manufacturing process.
Court's View on Employee and Worker
In the question of whether all employees are workers, the 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 the 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 the onus to prove the contrary shifts to the accused (Prafulbhai Patadia v. The State, 1976 (12) E.L.R. 329).
From Malaysia, Seremban
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Understanding 'Incidental to' and 'Connected with' in Manufacturing
In any other kind of work incidental to, or connected with (means a process without which manufacture cannot be completed),
In my opinion, 'incidental' means supplementary, accompanying, or attendant, and 'connected' means linked, associated, allied, or related. 'Incidental' refers to a manufacturing process that requires supplementary, accompanying, and attendant activities like packing and material movement. 'Connected' refers to allied, related, and coupled activities like the maintenance of machines and engineering equipment such as compressors and generators. Persons working in functions like HR, Accounts, Purchase, and Quality may not be considered as workers.
From India, Madras
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In any other kind of work incidental to, or connected with (means a process without which manufacture cannot be completed),
In my opinion, 'incidental' means supplementary, accompanying, or attendant, and 'connected' means linked, associated, allied, or related. 'Incidental' refers to a manufacturing process that requires supplementary, accompanying, and attendant activities like packing and material movement. 'Connected' refers to allied, related, and coupled activities like the maintenance of machines and engineering equipment such as compressors and generators. Persons working in functions like HR, Accounts, Purchase, and Quality may not be considered as workers.
From India, Madras
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Factories Act.doc
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