TeamLease Compliance E-Bulletin – August 2023

LABOUR REGULATORY UPDATES

The Punjab Labour Welfare Fund Act, 1965

The Government of Haryana, vide notification No. Elec-2023/IR-II/PSCE/HoI/19276 dated 03/08/2023 hereby declares “Sunday” 13-Aug-2023 for the said jurisdiction to be paid holidays with wages for the all worker/employees working in all the shops and commercial establishments within the State of Haryana.

Summary

The General Elections of Panches and Sarpanches’ in Gram Panchayat Ajampur, Block Naraingarh District Ambala, Gram Panchayat Chabri, Block Jind, Gram Panchayat Bhartana, Block Pillukhera, Gram Panchayat Rojkhera, Block Uchana, District Jind and Gram Panchayat Juan-1 Block Sonipat, District Sonipat, for which poll shall be held on 13.08.2023 (Sunday) as per the Notification issued by State Election Commission vide Notification No. SEC/4E-II/2023/1403 dated 20.07.2023.

In exercise of the powers conferred by Section 28 of the Punjab Shops and Commercial Establishments Act, 1958 and all other enabling powers, the Governor of Haryana hereby fixes “Sunday” the 13th August, 2023 for the above jurisdiction to be the holidays with wages for all the workers/employees enrolled as voters working in all the shops and commercial establishments within the State of Haryana to enable them to cast their votes.

The Government of Telangana, Labour Employment Training and Factories Department issued the Order No. G.O.Ms. No.23 dated 11-Aug-23 regarding appointment of Appellate Authority under the Industrial Employment (Standing Orders) Act, 1946 for preferring appeals in the cases of Sexual Harassment of Women at Workplace.

Acts/Rules/Scheme

• The Industrial Employment (Standing Order) Act, 1946.
• The Industrial Disputes Act, 1947.
• The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013.

The Government of Telangana being an appropriate Government appoints eight (8) Labour Courts & Industrial Tribunals in the Telangana State constituted under section 7 of the Industrial Disputes Act, 1947 in exercise of the powers conferred by clause (a) of section 2 of the Industrial Employment (Standing Orders) Act, 1946 (hereinafter referred to as “the said Act”) read with Rule 11 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013.

As mentioned in column (2) of the schedule appended hereto, as the Appellate Authority in their respective jurisdictions, to exercise the functions of an Appellate Authority under the said Act in respect of the Industrial Establishments in relation to which the State Government is the appropriate authority for preferring appeals in the cases of Sexual Harassment of Women at Workplace.

Schedule

The Government of Delhi issued a Notification   No.53/634/CN/GAD/2023/dsgadiii/1802 on 24-Aug-2023, declaring Public Holidays on account of the G-20 Summit scheduled to be held in the NCT of Delhi.

In view of G-20 Summit scheduled to be held in NCT of Delhi, it has been decided to declare Public Holiday in the National Capital Territory of Delhi. The following has been stated namely:

All Government Departments, Offices, Organizations, Undertakings, Corporations, Boards, Statutory Bodies, Educational Institutions, etc. of the Government of the National Capital Territory of Delhi shall observe the public holiday on the following days namely: –

1. Public Holiday on September 08, 2023, in such offices wherein Saturday and Sunday are Public Holidays
2. Public Holidays on September 08, 2023, and September 09, 2023 (Friday and Saturday) in such offices wherein Sunday is a Public Holiday.
3. All Private Offices, Educational or other Institutions within the National Capital Territory of Delhi shall observe the following holidays namely:-

1. Public Holiday on September 08, 2023, in such offices wherein Saturday and Sunday are Public Holidays
2. Public Holidays on September 08, 2023, and September 09, 2023, in such offices wherein Sunday is a Public Holiday.
3. Public Holiday on September 10, 2023, in those private offices, educational, or other institutions wherein Sunday is not a Public Holiday.

All commercial banks and financial institutions situated within the jurisdiction of the New Delhi Police District shall observe the following holidays namely: –

1. Public Holiday on September 08, 2023, in such offices wherein Saturday and Sunday are Public Holidays
2. Public Holidays on September 08, 2023, and September 09, 2023, in such offices wherein Sunday is a Public Holiday
3. Public Holiday on September 10, 2023, in commercial banks and financial institutions wherein Sunday is not a Public Holiday.

All shops, commercial, and business establishments situated within the jurisdiction of the New Delhi Police District shall remain closed from September 08, 2023, to September 10, 2023.

The Government of Meghalaya on 19-Jul-2023, issued vide notification (Published on 03/08/2023) no. No.LBG.132/82/Pt/Vol.l/86 permits all the establishments registered under the Act in the State of Meghalaya to keep open on all 365 days of the year, for a further period of 1 year i.e., upto 31^st December, 2023, unless it is revoked.

There are few key points subject to the following conditions:

• Every employee working in the establishment shall be given one day holiday in a week without making any deductions from his/her wages on account thereof and a list of the time table of such holidays for a month shall be placed on the notice board in advance.
• Every employee shall be given a rest period of one hour after 5 hours of continuous work.
• No employee shall be required to work for more than 9 hours in a day or 48 hours in a week.
• If the establishment remains open after 10:00 P.M. on any day, adequate safety and security arrangements shall be ensured for employees and visitors.
• Female employees shall be provided separate lockers, security, and rest rooms at the workplace.
• Every employer employing women employees shall constitute an Internal Complaint Committee against sexual harassment of women under the Sexual Harassment of Women at Workplace (Prevention Prohibition and Redressal) Act, 2013, and the said Committee shall be operative.

• Female employees will not be allowed to work after 7:00 P.M. Their written consent in this regard shall be taken as adequate safety and security arrangements for female employees shall be made during working hours and it shall be ensured that they safely reach home after their work is over.
• Consent letter shall be taken from the employees and it should be kept as record in the establishments.
• The spread over of an employee shall not exceed 11 hours in a day.

In case of violation of any of the above terms and conditions or any other provision of the Act the exemption shall be cancelled after giving a due opportunity of being heard by the Competent Authority.

The Government of West Bengal Labour Department issued Memorandum No. Labr./762/(LC-IR)/7S-06/17 dated 18/08/2023 declaring the paid holiday on account of Bye – Election to West Bengal Legislative Assembly from  15 – Dhupguri (SC) Assembly Constituency.

Government of West Bengal is hereby declared that it has been obligatory on the part of the employers of any business, trade, industrial undertaking or any other establishment in all the areas pertaining to constituency, to which elections have been notified, to grant paid holiday on the day of Poll to the workmen who are voter in the said constituency area, so as to enable them to exercise their right of franchise.

The daily wage/ casual workers are also entitled for a holiday and wages on the poll day.

As per the instructions to all shops, commercial and Industrial establishment in the area pertaining to the constituency, to which election have been notified and who units 5^th September, 2023 (Tuesday) is a working day, to grant a paid holidays on said day to all categories of workers and employees.

ESIC issued vide circular No. N-15015/1/2023-P&D dated 24-August-2023 updated the list of notified/ non-notified districts in continuation of previous circular no. 12653/2023 dated 06th April 2023.

The Summary of Notified and Non-Notified Districts is as under:

The Government of Tamil Nadu issued order G.O.(Ms.) No.528 dated  31-August-2023 declares the changes in Public Holiday on the account of  “Vinayakar Chathurthi”.

• The Government of Tamil Nadu notified after careful consideration decided to change the Public holiday from 09.2023 (Sunday)to 18.09.2023 (Monday) instead of 17.09.2023 (Sunday).

• Hindu Religious and Charitable Endowments has stated that as per the reports of the various temple heads, “Vinayakar Chathurthi” will be celebrated on 09.2023.

• The above-notified Public Holiday shall also apply to all State Government Undertakings/Corporations/ Boards, etc.

The Ladakh Rights of Persons with Disabilities Rules, 2023

The Ladakh Gazette notification issued by Department of Social Welfare No. A/11/2021-S&TW SEC published on dated 29-August-2023

The draft of the Rights of Persons with Disabilities Rules, 2021 was published as required in exercise of the powers conferred by sub-section (1) and sub-section (2) of Section 101 of the Rights of person with Disabilities Act, 2016 [No. 49 of 2016], the State Government, hereby, makes the rules may be called the “Ladakh Rights of Persons with Disabilities Rules, 2023.”

Employees State Insurance Act, 1948 – Extension of ESIC Scheme to the Casual/Contractual workers under Municipal Corporation/Municipal Bodies under the control of State Government/UT Administration.

The Public health Department Government of Maharashtra issued the notification wide No. Rakayo-2021/Pra.Kra.130/RAKAVI2 dated 27.07.2023 published in Maharashtra State Gazette on 31.07.2023 In exercise of the powers conferred by sub-section (5) of section 1 of the Employee’s State Insurance Act, 1948 (34 of 1948), in its application to the State of Maharashtra and in partial supersession of all earlier notifications issued in this behalf with respect to the number of persons employed in the establishments.

The Government of Maharashtra in consultation with the Employee’s State Insurance Corporation and with the approval of the Central Government, after having given on months’ notice as required by said sub-section (5), hereby appoints the 1^st August 2023, to be the date on which all the provisions of the said Act shall extend to the classes of establishments mentioned in column (2) of the Schedule appended hereto wherein ten or more persons are employed, or were employed on any day of the preceding twelve months situated in the areas in which the provisions of said Act have been brought into force under sub-section (3) of section 1 of the said Act.

Extension of coverage under Section 1(5) of the ESI Act, 1948 to the Casual and Contractual workers engaged under Municipal bodies including Municipal Corporation (Nagar Nigam), Municipal councils, Nagar Palika & Other Urban Local Bodies run by State Government of Maharashtra shall be effective from 01.08.2023.

SCHEDULE

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 the next year i.e 2024 and 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 – 28 States / UT’S

JUDGMENTS

KARNATAKA HIGH COURT Hon’ble Mr. C.M. Poonacha, J. WP No. 41066/2014 (L-PF), Dt/– 1-2-2023

M/s. IBM India Pvt. Ltd.

vs

Union of India and Ors

Whether provident fund contributions would attract on the last drawn wages during pendency of the proceeding in the Higher Court

Background and Highlights of the Judgment

• The employer challenged the award whereby reinstatement with back wages had been granted by the Labour Court.
• Petitioner terminated the services of the respondent no.2 (hereinafter referred to as workman) by an order dated 5.11.2001 whose challenged the termination.
• The Labour Court by an award dated 17.12.2012 directed reinstatement with back wages.
• Direction issued by the High Court to pay last drawn wages to the workman under section 17B of the Industrial Disputes Act, 1947
• Workman approach the Regional Provident Fund Commissioner (Respondent no. 2) stating that provident fund contribution was not deducted by the petitioner.
• Notice was issued to petitioner and proceedings were held under paragraph 26B of the Employees Provident Fund Scheme providing for resolution of doubts.  In support of its contention that the last drawn wages being paid would come within the purview of section 2(b) of the EPF & MP Act relied upon various judgments of Supreme Court and other High Courts.
• Petitioner contended that it would not be treated as wages since the amount of last drawn wages were not earned by the workman while on duty.

• High Court relied upon the judgment of Orissa High Court which was squarely applicable wherein it was held that the payment of wages under section 17B of the Industrial Disputes Act to the workman were like subsistence allowance and has not been recoverable and refundable even after the award of reinstatement set aside – Hence, it cannot be treated as wages to attract provident fund contribution. Paras 3, 8, 14, 15, 17, 24 and 25

Facts considered by Honourable Karntaka High Court  in respect of the above verdict

• Section 17B of the Industrial Disputes Act, 1947 as inserted under section 2(rr) is the remuneration payable to workmen in respect of his employment to enable him to fight litigation pursuant to the award to the reinstatement passed by the Labour Court or the Industrial Tribunal hence the amount received by him is like suspension allowance which is neither refundable nor recoverableeven if the award of reinstatement is set aside and as such it will not be treated as basic wages under section 2(b) of the Employees’ Provident Funds & MP Act.

• The amount pertaining to last drawn wages payable to a workman by the employer challenging an award of reinstatement with back wages by the Labour Court would not be treated as basic wages since the workman has not performed his duties during the tenure of litigation but it was stayed paid to the hardship during litigation.

• The Regional Provident Fund Commissioner had erred in holding that the last drawn wages to a workman under section 17B of the Industrial Disputes Act amounted to basic wages for attracting employees provident fund contributions and as such the management challenged the impugned order wherein the High Court held that any such payment was made akin to subsistence allowance and as such it will not be treated as basic wages as defined by the EPF & MP Act

“You can not push anyone up the ladder unless they are willing to climb”

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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)