Acts

THE CODE ON WAGES, 2019

Trade Union [Sec. 2(h)]: Trade Union means any combination, whether temporary or permanent, formed primarily for the purpose of regulating the relations between workmen and employers or between workmen and workmen or between employers and employers for imposing restrictive conditions on the conduct of any trade or business and includes any federation of two or more Trade Unions. 

Provided that this Act shall not affect - 
(i) any agreement between partners as to their own business; 
(ii) any agreement between an employer and those employed by him as to such employment; or 
(iii) any agreement in consideration of the sale of the goodwill of a business or of instruction in any profession trade or handicraft.
The law relating to the registration and protection of the Trade Unions is contained in the Trade Unions Act, 1926 which came into force with effect from 1st June 1927. The Act extends to the whole of India except the State of Jammu and Kashmir. 
In common parlance, Trade Union means an association of workers in one or more occupations. Its object is the protection and promotion of the interests of the working class. Trade Unions have a home grown philosophy based on workers' experience and psychology. It grows out of the workers' day-to-day experience.

The Payment of Bonus Act, 1965 provides for the payment of bonus to persons employed in certain establishments, employing 20 or more persons, on the basis of profits or on the basis of production or productivity and matters connected there with.

The minimum bonus of 8.33% is payable by every industry and establishment under section 10 of the Act. The maximum bonus including productivity linked bonus that can be paid in any accounting year shall not exceed 20% of the salary/wage of an employee under the section 31 A of the Act.

Minimum Wages

The Minimum Wages Act, 1948 safeguards the interests of workers by providing fixation of minimum wages mainly focusing on unorganized sector and in specified occupations (called scheduled employments) (Section 2 g). The act binds the employers to pay their workers the minimum wages fixed under the Act from time to time (Section 12). Owing to their jurisdiction the Central and the State Governments fix, revise, review and enforce the payment of minimum wages without any discrimination of gender (Section 3).

Hours of work and overtime

The Act also regulates the working hours and enforces overtime payment for working longer hours or on holidays / off days (Section 13, 14)
If the worker has worked lesser hours not due to own fault like coming late then also minimum wages has to be paid, because the employer has failed to assign adequate work (Section 15).

There has been rise of large scale factory/ industry in India in the later half of nineteenth century. Major Moore, Inspector-in- Chief of the Bombay Cotton Department, in his Report in 1872-73 first of all raised the question for the provision of legislation to regulate the working condition in factories; the first Factories act was enacted in 1881. Since then the act has been amended on many occasions. The Factories Act 1934 was passed replacing all the previous legislation in regard to factories. This act was drafted in the light of the recommendations of the Royal Commission on Labour. This Act has also been amended suitably from time to time.
The experience of working of the Factories Act, 1934 had revealed a number of defects and weakness which have hampered effective administration of the Act, and the need for wholesale revision of the act to extend its protective provisions to the large number of smaller industrial establishments was felt. Therefore, the Factories Act, 1948 consolidating and amending the law relating to labour in factories, was passed by the Constituent Assembly on August 28, 1948. The Act received the assent of Governor General of India on 23 September 1948 and came into force on April 1, 1949.
Objective of Factories Act ,1948
The main objectives of the Indian Factories Act, 1948are to regulate the working conditions in factories, to regulate health, safety welfare, and annual leave and enact special provision in respect of young persons, women and children who work in the factories.

The Employers’ Liability Act was legislated with the objective of ruling out certain defences arising out of injuries sustained by workmen. This law was enacted to safeguard the interests and for the protection of workmen who bring suit for damages for injuries endured by them.

Under Common Law of England, in case of civil suits for damages sustained by workmen, the employer can plead the Doctrine of Common Employment, by virtue of which there was no liability on employers to pay damages to a workman for an injury resulting from the default of another workman. Similarly, another Doctrine which was protecting the employer was the Doctrine of Assumed Risk, by which an employee is presumed to have accepted the risk if it is of such a nature that he ought to know of it to be a part of his occupation. However, the Royal Commission on Labour recommended that a measure should be enacted abrogating these two defences and regarded these doctrines as inequitable. Provincial Governments were consulted in 1932 and they were in the favour of a legislation for the aforementioned purpose. Around that time, judicial decisions in British India, while generally agreeing to the inequitability of doctrines, had left it open to employers in most provinces to have recourse to them. The bill seeks to abolish these defences in case of all workmen. 

The Union Cabinet today approved the Amendment to the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) { BOCW (RECS)} Act, 1996 and Building and Other Construction Workers’ Welfare Cess Act, 1996 and the introduction of the Building and Other Construction Workers Related Laws (Amendment) Bill, 2012 in Parliament in its ensuing session. 
This amendment will streamline the process of the registration of the construction workers. The State Welfare Boards will be able to consolidate their finances and incur expenditure on administrative and other purpose for smooth functioning of the Board. The amendments will facilitate speedy implementation of these Acts by the Central and the State Governments. 
The provisions in the Amendment are given below : 
1. Empower the Central Government to specify the maximum cost of construction by notification, in place of the present limit of Rs.10 lakh, which shall fall within the definition of establishment under the BOCW (RECS) Act. 
2. The prerequisite condition of engagement of ninety days for registration of workers under the BOCW (RECS) Act is proposed to be done away with. Moreover, in order to extend benefits to the workers, who are engaged in building and construction work after attaining the age of sixty years, the criteria of upper age limit of sixty years is proposed to be done away with. 
3. To empower the Central Government to notify such percentage of total expenditure, in place of existing 5 percent during the financial year, for meeting administrative expenses by the State Building and Other Construction Workers Welfare Board. 
4. To empower Central Government to appoint such number of Director Generals not exceeding 10 to coordinate with the Central Government in carrying out its responsibility of laying down the standard of inspection and to exercise the power of an inspector. 
5. To empower the State Governments to file complaints for contravention of provisions of the Act. 
6. To prescribe a time limit of 30 days for cess collecting authorities to deposit cess to the State Building and Other Construction Workers Welfare Board. 
7. To constitute a Committee consisting of Secretary (Labour), Secretary (Finance), Secretary (Planning) and Secretary (Social Welfare) of the State for performing the functions of the State Building and Other Construction Workers Welfare Board till such time a Board is formally constituted by the State Government. 
 

Sexual harassment of a woman in workplace is of serious concern to humanity on the whole. It cannot be construed to be in a narrow sense, as it may include sexual advances and other verbal or physical harassment of a sexual nature. The victims of sexual harassment face psychological and health effects like stress, depression, anxiety, shame, guilt and so on.

In this regard, to tackle the problem of sexual harassment, the Ministry of Women and Child Development (“Ministry”), by a Notification dated December 9, 2013 passed the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (the “Act”) which became effective from December 9, 2013. The Ministry also made the rules with regard to the same effective from the same date. These rules are called the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (the “Rules”).

The Payment of Wages Act regulates the payment of wages to certain classes of persons employed in industry and its importance cannot be under-estimated. The Act guarantees payment of wages on time and without any deductions except those authorised under the Act. The Act provides for the responsibility for payment of wages, fixation of wage period, time and mode of payment of wages, permissible deduction as also casts upon the employer a duty to seek the approval of the Government for the acts and permission for which fines may be imposed by him and also sealing of the fines, and also for a machinery to hear and decide complaints regarding the deduction from wages or in delay in payment of wages, penalty for malicious and vexatious claims. The Act does not apply to persons whose wage is Rs. 10,000 or more per month. The Act also provides to the effect that a worker cannot contract out of any right conferred upon him under the Act. 

On March 22, 2018, the Payment of Gratuity (Amendment) Bill, 2017 ("Amendment Bill") was passed by India's Upper House of Parliament (Rajya Sabha), seeking to amend the Payment of Gratuity Act, 1972 ("Gratuity Act"). The Amendment Bill was also passed by the Lower House of Parliament (Lok Sabha) on March 15, 2018. The Gratuity Act is one of India's key social welfare legislations. The Gratuity Act provides for payment of gratuity as a retirement benefit to employees inter alia engaged in private sector establishments who have been employed for a minimum of 5 years of continuous service (with exceptions in case of death or disablement) and the establishment employs 10 or more persons.

Gratuity is calculated at fifteen days of wages for each year of completed service (or part of the year in excess of six months), subject to a ceiling. The present ceiling is Rs. Ten Lakhs (approx. USD 15,150), which was fixed in 2010 (unless the employer and employee have agreed to a higher limit as better terms of employment).

By way of the Amendment Bill, the Government of India now proposes to increase the aforesaid ceiling of Rs. Ten Lakhs to such amount as may be notified by the Central Government. As of date, the proposed increase will be to Rs. Twenty Lakhs (approx USD 30,300). This increase flows from a commensurate increase in the ceiling of the gratuity amount for Central Government employees through the implementation of the seventh Central Pay Commission in 2016.

The Act applies to:

• Every factory, mine or plantation (including those belonging to Government),
• An establishment engaged in the exhibition of equestrian, acrobatic and other performances, irrespective of the number of employees, and
• Every shop or establishment wherein 10 or more persons are employed or were employed on any day of the preceding 12 months.

Eligibility & Conditions for Claiming Benefits

The Act lays down that any women employed, whether directly or through any agency, for wages in any establishment is eligible to claim maternity benefits if she is expecting a child and has worked for her employer for at least 80 days in the 12 months immediately preceding the date of her expected delivery. (Section 5)
A woman looking forward to maternity benefits could ask the employer to give her light work for a month. Such request should be made atleast 10 weeks before the date of her expected delivery. At that time she needs to produce a certificate confirming her pregnancy. (Section 5)
Also she needs to give a written notice to the employer about 7 weeks before the date of her delivery regarding her absence period pre and post delivery. (Section 5).

According to Section 2A: Where any employer discharges, dismisses, retrenches  or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute.
Industrial Disputes have adverse effects on industrial production, efficiency, costs, quality, human satisfaction, discipline, technological and economic progress and finally on the welfare of the society. A discontent labour force, nursing in its heart mute grievances and resentments, cannot be efficient and will not possess a high degree of industrial morale. Hence, the Industrial Dispute Act of 1947, was passed as a preventive and curative measure.

The promulgation of Employees State Insurance Act, 1948 envisaged an integrated need based social insurance scheme that would protect the interest of workers in contingencies such as sickness, maternity, temporary or permanent physical disablement, death due to employment injury resulting in loss of wages or earning capacity. the Act also guarantees reasonably good medical care to workers and their immediate dependants.

Following the promulgation of the ESI Act the Central Govt. set up the ESI Corporation to administer the Scheme. The Scheme, thereafter was first implemented at Kanpur and Delhi on 24th February 1952. The Act further absolved the employers of their obligations under the Maternity Benefit Act, 1961 and Workmen's Compensation Act 1923. The benefit provided to the employees under the Act are also in conformity with ILO conventions.

Objective and applicability of the Employees’ Provident Fund & Misc. Provisions Act, 1952 – The EPF & MP Act, 1952 is created for the purpose of social welfare of an employee. Any factory or establishment engaging 20 or more employees, whether directly or through contractors is liable to be covered under this Act.

Basic Wages – The contribution is calculated on the basic wages and dearness allowance but does not include food allowance, house rent allowance (HRA), overtime allowance, bonus, commission etc.

The growing complexity of industry in this country, with the increasing use of machinery and consequent danger to workmen, along with the comparative poverty of the workmen themselves, rendered it advisable that they should be protected, as far as possible from hardship arising from accidents. After a detailed examination of the question by the Government of India, Local Governments were addressed in July 1921, and provisional views of the Government of India were published for general information. The advisability of legislation had been accepted by the great majority of Local Governments and of employers’ and workers’ associations and the Government of India believed that public opinion generally is in favour of legislation. In June, 1922 a committee was convened to consider the question. After considering the numerous replies and opinions received by the Government of India, the committee was unanimously in favour of legislation, and drew up detailed recommendations. On the recommendations of the committee the Workmen’s Compensation Bill was introduced in the Legislature.

Contract labour has its root from time immemorial. The size of contract labour in India has significantly expanded in the post-independence period with the expansion of construction activities. Contract workmen are hired, supervised and remunerated by the contractor who, in turn, remunerated by the establishment hiring the services of the Contractor. Contract labourers were considered exploited section of the working class mainly due to lack of organisation on their part. The primary objective of the Act is to stop xploitation of contract labourers by contractors and establishments. The Act does to produce a given result for an establishment through contract labour, or who supply contract labour for any work of the establishment, and include sub-contractors. The Act does not regard persons as contractors who only supply goods or articles of manufacture to an establishment.

The National Apprenticeship Act was launched in the year 1959 at first on voluntary cause. The Apprentices Act 1961 was presented in the Parliament during 1961 and came into effect from 1st January 1963. The act was eventually amended in 1973 and 1986. In the starting, the Act was meant for the training of trade apprentices.

The onus of administering the Apprentices Act, 1961 in relation to Trade Apprentices under Central Government and Departments lies with the Central Apprenticeship Adviser/Director of Apprenticeship Training in the DGE&T, Ministry of Labour and Employment with the help of six Regional Directorates of Apprenticeship Training (RDATs).