June 2018 Bulletin on Industrial & Labour Laws
· “STAFF” - Misconception
· Returns to be Sent
· CPI Numbers
· Change in account number of bank account of M/s. R&M Associates
· Bangalore Employers’ Association Bulletin
“The only place SUCCESS comes before WORK is the dictionary”
“STAFF” – MISCONCEPTION
In our 50 years of practice, we have seen most Managements have misunderstood the connotation of “Staff.”
In Industrial Law and particularly in codified Industrial Labour Laws, the word “Staff” is not used anywhere.
Dictionary meaning of “Staff” is all Employees engaged in an Organization.
In Industrial Law/ Labour Laws, the Industrial Disputes Act, 1947 defines a “workman” in Section 2(s) as -
“workman” means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-
(i) Who is subject to the Air Force Act, 1950 (45 of 1950) or the Army Act, 1950 (45 of 1950) or the Navy Act, 1957 (62 of 1957) or
(ii) Who is employed in the police service or as an officer or other employee of a prison; or
(iii) Who is employed mainly in a managerial or administrative capacity; or
(iv) Who, being employed in a supervisory capacity, draws wages exceeding ten thousand rupees per mensem or exercises, either by nature of the duties attached to the office or by reason of powers vested in him, functions mainly of a managerial nature.”
But “Staff” would mean all the above without exception, including the Managers and Directors.
Why is it necessary to understand the real meaning of “Staff” as different from “Workmen”?
Loosely interpreted, “Staff” means those working in the office and not directly involved in production activities on the shop floor.
But interpreted under Labour Laws (The Industrial Disputes Act, 1947) there can be only a “Workman” within the meaning of section 2(s) of the Industrial Disputes Act, 1947 and excludes:
1. Who is employed mainly in a managerial or administrative capacity; or
2. Who being employed in a supervisory capacity, draws wages exceeding ten thousand rupees per mensem or exercises, either by the nature of duties attached to the office or by reason of powers vested in him, functions mainly of a managerial nature.
The following are the Workmen who are normally excluded by Management by calling them Staff - Office boy, drivers, sweepers, clerks, etc. on shop floor.
Whether staff are eligible for overtime, leave, working hours restriction, bonus, joining union, etc. are other questions generally asked when “Staff” matters are involved.
Benefits governing over-time payment, leave, working hours, rest intervals, holidays, weekly-off are minimum requirements, to be extended to all employees, whether they are temporary, permanent, contract workers or anyone else.
By calling anyone Staff, it does not exclude them from these benefits.
EPF – CHANGES IN ADMINISTRATIVE CHARGES:
As informed in our previous “Bulletin”, there has been a change in the rate of Administrative Charges payable by the Employer to the EPFO in PF A/c. No. 2 under the Employees’ Provident Funds & Miscellaneous Provisions Act, w.e.f. 1st June 2018.
The Administrative Charges, which was earlier payable @ 0.65 % of the PF Wages, has now been reduced and will now be payable @ 0.50% of the PF Wages, subject to a minimum of Rs. 75/- p.m. for a non-functioning establishment having no contributory member or a minimum of Rs. 500/- p.m. for other establishments.
The above changes will have to be effected while remitting the PF contributions in July 2018, in respect of Salary paid for June 2018.
RETURNS TO BE SENT
1. The Factories Act:
Employers registered under the Factories Act, 1948 are once again reminded that as per the Karnataka Factories Rules, the half–yearly return in Form-21, in duplicate, for the half year ended on 30th June 2018, should be filed through the online portal of the Directorate of Factories, Karnataka (e-Surakshathe), following which the hard-copy has to be downloaded, and after duly affixing seal & signature, it has to be submitted to the Office of Sr. Assistant Director of Factories of the concerned division, on or before 15th July 2018. Since 13th July (Second Saturday) & 14th July are Government holidays, Employers are advised to ensure that the returns are submitted within the stipulated time.
Employers of Factories situated in Tamil Nadu may please note that, following an amendment in January 2018, to the Tamil Nadu Factories Rules, this Return in Form 21 should be furnished to the Inspector though the online portal of the Directorate of Industrial Safety and Health, Tamil Nadu (https://dish.tn.gov.in) on or before 31st July 2018.
2. The Employment Exchanges (CNV) Act:
The quarterly returns in Form ER–1 under the Employment Exchanges (CNV) Act for the quarter ending 30th June 2018, should be submitted to the Local Employment Exchange, on or before 30th July 2018.
3. The Contract Labour (Regulation & Abolition) Act:
Contractors employing Contract Labour, duly licensed as per the requirement and provisions under this Act, are required to submit the Half–yearly returns for the period ending 30th June 2018 in Form XXIV, in duplicate, to the concerned Licensing Officer in the Department of Labour on or before 30th July 2018. All employers who have engaged contractors are required to ensure satisfactory compliance of the same in respect of the contract workers engaged for their work.
4. The Tamil Nadu Industrial Establishment (Conferment of Permanent Status of Workmen) Act:
Employers of establishments located in Tamil Nadu are hereby informed that, following an amendment to the Act in April 2018, there is now no requirement to submit the Half–yearly returns under this Act in Form–2. Instead this is required to be submitted only once in a year, as an Annual return, along with a copy of the up–to-date list for the entire year compiled in Form–I, to the concerned Inspector on or before 15th January.
Besides, in January, if an establishment is filing a combined Annual Return in Form 22 under the Tamil Nadu Factories Rules, there is no requirement to file the Annual Returns in Form-2 also under this Act.
5. The Tamil Nadu Payment of Subsistence Allowance Act:
Employers of establishments are required to submit the half–yearly return under this Act, for the period ending 30th June 2018, to the concerned Deputy Commissioner of Labour, in Form–2, before 15th July 2018.
Please note that, following an amendment, vide the Tamil Nadu Payment of Subsistence Allowance (Amendment) Act, 2017, the provisions of the Act is not applicable to those employed in Supervisory capacity drawing salary exceeding fifteen thousand rupees per month. Prior to the amendment, the provisions of the Act was applicable to those employed in Supervisory capacity only if they were earning a salary upto three thousand and five hundred rupees per month.
[(4) & (5) above are applicable only to establishments in Tamil Nadu]
CONSUMER PRICE INDEX NUMBER
The Consumer Price Index Number for the Working class of Bangalore Centre, Simla Series (Base Year 1960=100) for APRIL 2018 = 7352 Points
Kind Attention: Accounts Department
Please note that our Bank Account number for online payment of retainer fees to M/s. R&M Associates has now been changed to new Account No: 10530210002421
Kindly update the changes in your records.
Thanks & Regards
BANGALORE EMPLOYERS’ ASSOCIATION BULLETIN
EXEMPLARY PENALTY FOR EMPLOYERS IN RESPECT OF SEXUAL HARASSMENT COMPLAINTS
The Government of India has enacted The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal), Act, 2013. In this Act, sexual harassment is defined under Section 2(n) as follows:
“2(n): “Sexual harassment” includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely: (i) Physical contact and advances; or (ii) a demand or request for sexual favours; or (iii) making sexually coloured remarks; or (iv) showing pornography; or (v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature”.
Further Section 4 of the Act requires every Management to constitute an Internal Complaints Committee for each of their offices, units, sub-divisions. The Presiding Officer should be a woman employee at senior level and not less than 2 members from among the employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge, one member from among the NGOs or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment. They can hold office for not exceeding 3 years and they shall be paid such fees and allowances for holding the proceedings of the Internal Complaints Committee, as may be prescribed.
A Lady Officer employed in a Software Company in Bangalore, nearly after two years, gave a complaint that the Senior HR Manager had commented on her nail polish and was about to touch her fingers. It was further alleged that the officer again referred to her and stated that she is spreading false rumour against his character and threatened that if the same continued, she may lose her job. After she came from maternity leave, the officer was not allotting her any work and any work done by her was not appreciated and she was told not to send any emails. Nearly after 2 years of such incident, she complained against the said Senior HR Manager that he was harassing her, creating situations which made it impossible for her to work in the company and therefore she gave a complaint on 10.04.2015.
The Management constituted an Internal Complaints Committee and to the Committee, the Senior HR Manager submitted his reply denying the allegations made by the complainant. The Committee after conducting an enquiry passed an Order dated 23.07.2015 holding that the complaint was false and therefore the Senior HR Manager was not guilty.
After the committee report, the Management terminated the services of the Lady Officer on 01.09.2015 stating that the role assigned to her had become redundant and it was decided to terminate her services in terms of clause 11 of her appointment order. Thus her services were terminated and relieved from the services of the Company forthwith.
The Lady Officer filed an appeal before the Additional Labour Commissioner, Industrial Relations and Appellate Authority under the Standing Orders Act, Karmika Bhavana, Bangalore. The Management also contended that she was an Officer in the Company and therefore not an employee under Section 2(s) of the Industrial Disputes Act and therefore, the Appellate Authority had no jurisdiction.
The Appellate Authority after hearing the parties passed an Order dated 27.12.2016 holding that the Management has not conducted proper enquiry, CCTVs are not installed in conference room and sexual harassment notices and punishments as required under the Act are not put up in all the places and thus Section 19 of the Act has been violated.
Therefore the Appellate Authority directed the Senior HR Manager to pay Rs.30 lakhs to the Lady Officer and the Management was also directed to pay more than Rs.2 crores to her. It was further ordered that the Senior HR Manager should not be promoted.
Being aggrieved, the Management have filed a writ petition before the Hon’ble High Court of Karnataka and have obtained interim stay on 20.01.2017.
Therefore, we are of the opinion that exemplary powers are granted to the authorities under The Sexual Harassment Act, 2013. Managements should be very careful whenever any sexual harassment complaints are received from lady employees and they have to be considered very seriously. Any lapse in this regard would entail the Management for severe consequences and exemplary penalty as ordered in the above case.
- Somashekar Advocate
Bangalore Employers’ Association
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