LABOUR REGULATORY UPDATES

The Employees’ Provident Fund And Miscellaneous Provisions Act, 1952

The Ministry of Labour and Employment (MoL&E) on March 29, 2023, issued a Press release regarding the launch of an e-passbook facility for EPFO members. 

The following has been stated namely: –

1. The e-passbook shall benefit and be convenient for the EPFO members, enabling them to view more details of their accounts in graphical representations.
2. The Ministry has also inaugurated the crèche facility in 63 regional offices of EPFO where 100 or more employees are working.

Extension of ESI Scheme to Construction Site Workers circular dated 03rd April, 2023

The ESIC Office is in receipt of a letter dated 18.02.2023 from Tata Projects Limited enclosing the list of field offices who issued notices, orders and recovery certificates allegedly in contravention to the Supreme Court’s Order dated 06.07.2018 and clarification issued vide this office circular of even number dated 26.09.2018.

The aforesaid issue can be dated back to the order passed by the Bombay High Court at Goa dated  14th March 2017 passed in W.P. No. 846 of 2016 and also the circular dated 31st July, 2015 of the ESIC covering the construction site workers which was stayed by the Hon’ble Supreme Court in SLP No. 13351/2018 filed by the Builders Association of India ,which was duly circulated vide Hqrs. Instruction No. T.11/13/11/03/2015 Rev. II dated 26.09.2018.

In light of the above facts ESIC has reiterated all the RDs/Directors/JD In charge Regional Office/SROs/DO to strictly comply with the orders dated 27.01.2023 passed by the Hon’ble Supreme Court stating that the adjudication proceedings which are pending before the Employees State Insurance Corporation authorities will be restricted to those workers who are employed on regular employment and not those employed periodically or on temporary basis.

Thus the Hon’ble Supreme Court order dated 27.01.2023 along with the instruction issued under the Circular No. P-12(11)-11/27/99-Ins.IV dated 14.06.1999 and 26.09.2018 needs to be complied with ,till the final outcome of the case pending in Hon’ble Supreme Court

The Telangana Shops and Establishments Act, 1988

In exercise of the power conferred by sub-section (4) of section 73 of the Telangana Shops and Establishments Act, 1988 , the Government of Telangana has hereby issued  guidelines for granting exemption from section 7 (Opening and Closing hours) of the Telangana Shops and Establishments Act, 1988 to all Shops & Establishments as defined in section 2 (21) of the Telangana Shops & Establishments Act, 1988 for operating 24/7 in the Telangana State, subject to following conditions

1. Issue of ID cards 
2. Weekly off
3. Weekly working hours
4. Overtime wages 
5. Compensatory holiday with wages in lieu of employees attending duty on a notified national /festival holiday
6. Adequate safety of Women employees
7. Consent of women employee to work in night shift
8. To and from transport for Women employees working in night shift 
9. The Management shall maintain the records and furnish returns as prescribed by the State Government within time
10. Subject to compliance of provisions under the Police Act & Rules in force 
11. Subject to payment of annual fee of Rs.10,000/- (Rupees ten thousand only) for each store to open 24×7 under the Telangana Shops and Establishments Act, 1988.

The Maharashtra State Tax on Professions, Trades, Callings and Employments Act, 1975

By order and in the name of the Governor of Maharashtra ,The Maharashtra Government has passed  the  Maharashtra State Tax on Professions, Trades, Callings and Employments (Amendment) Act, 2023 to further amend The  Maharashtra State Tax on Professions, Trades, Callings and Employments Act, 1975.

CHANGE IN SLAB RATE

OLD SLAB RATE:

NEW SLAB RATE :

For Male – No Change

For Female – Changed 

ENFORCEABILITY

It shall come into force on the 1st April 2023

The Employees’ Provident Fund Organisation (EPFO) on April 17, 2023, issued a notification to ensure coverage of the Agricultural Technology Management Agency (ATMA) under the EPF & MP Act, 1952.

The following has been stated namely: –

1. The letter No/9-4/16-AE dated July 28, 2016, states regarding the implementation of the EPF Scheme for the benefits of contractual manpower deployed under the ATMA Scheme.
2. It has been stated under the ATMA guidelines that the contractual staff will also be eligible for getting benefits of EPF, and ESIC as admissible from time to time as per prevalent laws and instructions and/or options exercised by the stakeholders concerned.
3. The Zonal offices are expected to coordinate with APC/Principal Secretary (Ag)/Secretary (Ag) and State Nodal Officers (ATMA) Scheme to expedite the process and ensure coverage accordingly.

EPFO issued internal Circular “Mandatory Aadhaar seeding with UAN of EPF members for filing of ECR-Extension upto 31.03.2024”

In partial modification of the circular dated 01.04.2022 under reference, the Competent Authority has granted an extension for mandatory seeding of Aadhaar for filing of ECR up to 31.03.2024 in respect of the certain class of establishments namely’: 

Beedi making, Building and Construction and Plantation Industries (Tea, Coffee, Cardamom, Pepper, Jute, Rubber, Cinchona, Cashew nuts etc.) and for North Eastern Region comprising of States of Assam, Arunachal Pradesh, Manipur, Meghalaya, Mizoram and Nagaland

The Punjab Shops and Commercial Establishments Act, 1958

In exercise of the powers conferred by Section 34 of The Punjab Shops and Commercial Establishments Act, 1958  and all powers enabling him in this behalf, the Governor of Punjab is pleased to make the following rules further to amend the Punjab Shops and Commercial Establishments Rules, 1958, namely The  Punjab Shops and Commercial Establishments (First Amendment) Rules, 2023

ENFORCEMENT

They shall come into force on and with effect from the date of their publication in the official Gazette (dated 31st March, 2023)

In the Punjab Shops and Commercial Establishments Rules, 1958, after rule 22, the following rules shall be added, namely:- 

23.Exhibition of Name Board

The Name Board of every establishment shall be in Gurmukhi script in Punjabi and wherever other languages are also used, the version in such other languages shall be below the Punjabi version. 

The name Board in the Punjabi version shall be written more predominantly by providing more space than for other languages, if any. 

Those establishments who have not done so, shall have to do so within six months from the date of commencement of the Punjab Shops and Commercial Establishments (First Amendment) Rules, 2023. 

24. Penalty for contravention 

Whoever contravenes the provisions of rule 23 shall be punishable with fine not exceeding rupees one thousand for first offence and rupees two thousand for every subsequent offence.”

EPFO issued internal circular dated 23rd April, 2023 on Application for Validation of Option / Joint Options – Scrutiny of Information and Wages details submitted by the employee and employer

This circular is issued in furtherance to the earlier instructions issued vide circulars dated 29.12.2022, 05.01.2023, 25.01.2023, 20.02.2023 regarding the Hon’ble Supreme Court Judgement dated 04.11.2022.

ONLINE FACILITY

An online facility has been deployed and is available upto 03.05.2023 for receipt of the following through the employers:

1. Application forms for validation of joint options from the employees who retired prior to 01.09.2014 and
2. Joint option forms from the employees who were members on 01.09.2014.

THREE PARAMETERS

The parameters on which the joint applications may be scrutinized could be (but not limited to):

1. All information is provided in the applications / joint option and have been vetted and approved by the employer.
2. Form is not approved by the employer.
3. Complete information is not provided in the applications / joint options and has been vetted and approved by the employer.

The notification talks in detail how the scrutiny of all the foregoing parameters will take place.

FIRST PARAMETER

Under the first parameter joint options will be examined for completeness of provided record as per Para 3 of this circular by the Dealing Assistant. In case, the records are complete, the file will be marked to SS / AO and will be reviewed by the concerned SS/AO. The cases where FO details and employers’ details match, the dues will be calculated and an order will be passed by APFC / RPFC-II / RPFC-I for depositing / transferring the dues.  A separate circular will be issued for this purpose.

In case there is a mismatch, the mismatch will be informed to the employer and the employee / pensioner by APFC / RPFC-II. They will be given a time of one month to complete the information.

SECOND PARAMETER

In case submitted application form / joint option is not approved by the employer, the DA will categorize these as 4 (ii) cases and send it to SS/AO.

SS/A0 will prepare the information draft to the member and the establishment and put up for orders of APFC /RPFC-II.

APFC /RPFC-I/RPFC-II will reject the cases and inform the members citing the reasons given by establishment for non-approval. However, before any such rejection, an opportunity will be given to the employer for providing any additional proof or evidence or correct any mistakes / errors (including those made by employees / pensioners). Such opportunity will be for a period of one month and under intimation to the employees / pensioners.

THIRD PARAMETER

In cases where submitted information is not complete or seems erroneous, the DA will prepare a list of all relevant information to be sought from the employer.

SS/A0 will thereafter with his comments, get the orders of APFC/RPFC-I for seeking such information.

APFC/RPFC-II will seek information from the employers under intimation to the employees / pensioners within one month.

In case, complete information is not received within one month, the order will be passed on merit by the APFC /RPFC-II/RPFC-I.

In cases where complete information is received, they will be scrutinized as per category 4 (i) cases.

SPECIAL CIRCUMSTANCES

In addition to this they have tried to address special circumstances requiring examination of the records of the establishments/trusts especially for rectification of wage details.

Office of the Chief Electoral Officer, Karnataka issued notification for declaring General Elections to the Karnataka Legislative Assembly, 2023 – Grant of Paid Holiday to employees on the day of Poll i.e. on 10.05.2023.

1. As per Section 3A of the Karnataka Industrial Establishments (National and Festival Holidays) Act, 1963, which states that “Notwithstanding anything contained in Section 3, when a General Election to the House of People or to the State Legislative Assembly or an election to, fill up, any casual vacancy in the House of People or to the State  Legislative Assembly is held under The Representation of the People Act, 1951 (Central Act 43 of 1951), every employee (other than an employee in an Industrial establishment owned or controlled by the Government of India) whose name is included in the electoral roll of the constituency where such election is held, shall be allowed on the polling day, a day’s paid holiday to enable him to exercise his franchise”.
2. As per the above said act, D.P.A & R (Elections) under Secretary to Government has instructed their authority to take necessary action in granting the paid holiday to the said employees across the State by issuing suitable instructions to all concerned on the day of Poll, which is fixed on 10.05.2023.

The Labour Commissioner-cum-Chief Inspector of Factories, H.P. Shimla-1 issued Election Holiday notice to their authorities with subject to the Paid Holiday (Wednesday) on the day of polling i.e. 10.05.2023 on account of Bye Election in 04-Jalandhar (SC) Parliamentary Constituency of Punjab State.

As per the notice, it is intimated that bye election 2023 to Lok Sabha in 04-Jalandhar (SC) Parliamentary Constituency of Punjab State are scheduled to be held on 10 .05 .2023 as per schedule announced by Election Commission of India.

Under Section 135-B of Representation of the People Act, 1951 Grant of paid holiday to employees on the day of poll

1. Every person employed in any business, trade, Industrial undertaking or any  other establishment and entitled to vote at an election to the House of the People or the Legislative Assembly of a State shall, on the day of poll, be granted a holiday.
2. No deduction or abatement of the wages of any such person shall be made on account of holiday having being granted in accordance with sub section (1) and if such person is employed on the basis that he would not ordinarily receive wages for such a day, he shall nonetheless be paid for such day the wages he would have drawn had not a holiday been granted to him on that day.
3. If an employer contravenes the provisions of sub section (1) or sub section (2), then such employer shall be punishable with fine which may extend to five Hundred Rupees.
4. This section shall not apply to any elector whose absence may cause danger or substantial loss in respect of the employment in which he is engaged.

As per the above said act The Labour Commissioner-cum Chief Inspector of Factories, H.P. Shimla-1 directed to bring the said provisions to the notice of occupiers/managers/owners of  factories/Industrial establishments, shops and other commercial establishments situated in the State of Himachal Pradesh and direct them to grant additional /special paid holiday to the employees / workers working in their factories/shops & commercial establishments who are registered voters of Jalandhar Parliamentary Constituency of Punjab State but working in Himachal Pradesh as per section 135-B of Act ibid on scheduled dates in order to exercise their right of franchise.

It is however, clarified that the special casual leave/special paid holiday may be given to those employees/workers who are working in the State of Himachal Pradesh but have a right to vote in the Jalandhar Parliamentary Constituency of Punjab State, on the production of certificate from the concerned Presiding Officer that the employee has actually casted his/her vote. 

LABOUR CODES UPDATE 

Team Lease’s Opinion – There has not been any major movement or discussion towards the implementation of the four Labour Codes due to central election which shall take place in next year i.e 2024 and a number of states are yet to notify these Codes rules while some continue to have some reservations.

The ministry of labour and employment late last fiscal year held a series of discussions with stakeholders including industry representatives and trade union leaders to build consensus on the implementation date, but these efforts did not fructify, wherein certain  Trade unions are  opposed to them and a consensus with them had not been reached 

The status of publication of Draft State Rules , remains unchanged, with the following count of each Labour Codes:

1. Count of the Draft Wages Rules – 31 States / UT’s 
2. Count of the Draft Occupational Safety, Health and Working Conditions Rules – 25 States / UT’s 
3. Count of the Draft Industrial Relations Rules – 27 States / UT’s 4. Count of the Draft Social Security Rules – 27 States / UT’S

JUDGMENTS

In this section, we aim to highlight all relevant imperative judicial decisions rendered in the recent months in the area of Labour and Employment Law.

Interim order passed by The High Court of Kerala, Wednesday, the 12th day of April 2023 / 22nd Chaithra, 1945 WP(C) NO. 8979 OF 2023.

BACKGROUND

As per the decision of the Honourable Supreme Court in EPF Organization V. Sunil Kumar [2022(7) KHC 12 (SC)], certain directions were issued in this regard with respect to the options to be submitted by the employees concerned, to be eligible for the benefits of higher pension under the Employees Pension Scheme, 1995.

The Honorable Supreme Court permitted the employees who could not submit the options in the light of para 11(3) of the pre-amendment scheme, to submit fresh options within a period of four months. Though the said period expired on 3.03.2023, the same was further extended for two months i.e. up to 3.05.2023. 

The EPF organization made available to the employees the facility to submit the options through online mode by providing necessary links for the same on their website.

The petitioners through this petition have highlighted their grievance that one of the details to be furnished by the employees is the copy of the permission under para 26(6) of the Employees Provident Fund Scheme 1952. Their contention is that even though they were permitted to pay the contribution based on the salary, exceeding the ceiling limit prescribed (Rs 5,000/- and Rs 6,500/-), as contemplated under para 26(6) of the Scheme 1952, no formal option has been submitted and according to them submission of such an option was never necessitated or insisted upon, and instead, higher contributions were being accepted all along by the EPFO. 

Therefore, they are unable to fill up the said column in the online option form, and the said form is formulated in such a fashion that, unless the details of the option under para 26 (6) of the Scheme, 1952 are incorporated, they cannot successfully submit the online options. If they are not submitting their options on or before the cut-off date, i.e. 3.05.2023, they will be deprived of the benefits of the Scheme to which they are legally entitled.

KERALA HIGH COURT’S INTERIM DIRECTION

Considering all the aspects, the Honourable Kerala High Court has taken the view that the petitioners have succeeded in establishing a prima facie case and that the balance of convenience also favours the petitioners.

Therefore in light of all the facts and circumstances of the case the Honourable High Court of Kerala has passed an interim order directing the EPFO and the authorities under the same to make adequate provisions in their online facility to enable the employees/pensioners to furnish the options in tune with the directions of the Honourable Supreme Court, without the production of the copies of option under paragraph 26(6) of the Scheme, 1952 and the details thereof, for the time being.

However If appropriate modifications cannot be made in the online facility, feasible alternate arrangements, including the permission to submit hard copies of the options, shall be made/granted.

The facilities mentioned above shall be made available to all the employees/pensioners within a period of ten days from today (12th April, 2023).

TEAM LEASE OPINION 

Kerala High Court cited that, despite joint consent 26(6) has not been submitted by employers and employees however, the contribution on actual Basic wages which is higher than the prescribed ceiling of (Rs.5000/- Rs.6500/- Rs.15000/-) has been accepted by the EPFO all these years.  Subsequently submission of 26(6) in the portal shall not be the mandatory requirement to exercise higher pension in the portal.

Kerala High Court directed EPFO to come up with adequate facilities which shall not have 26(6) documents as mandatory to exercise higher pension in the portal.

If appropriate modifications cannot be made in the online facility, feasible alternate arrangements, including the permission to submit hard copies of the options, shall be made/granted.

The facilities cited in the interim order shall made available to all the employees/pensioners within a period of ten days from (12th April, 2023).

It is suggested all employers and employees to await for the response from EPFO

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The Contributors To This Edition Of The E-bulletin Are – Anandam Marimuthu, Mahesh Kumar, Shanmuga Sundaram (Subject-matter Experts), Teamlease Services Limited (Hr Tech)