TeamLease Compliance E-Bulletin – June 2023

LABOUR REGULATORY UPDATES

Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 

Employees’ Pension Scheme, 1995

It is an internal notification to all additional CPFCs, Zonal Offices, RPFCs, / OICs regional offices issued vide Notification No. Pension/PoHW/23/Circular-6(6)/1396101648 dated on 14/06/2023.

Proof of joint option under 26(6) of the EPF Scheme, 1952 duly verified by the employer-List of admissible documents verification.  

Highlights

With reference to the circular numbers Pension/2022/54877/15149 dated 29.12.2022, Pension/2022/54877/15238dated 05.01.2023, Pension/2022/56259/16541 dated 20.02.2023,  Pension/Supreme Court/judgement/HPM/2022/406 dated 23.04.2023 and online forms made available for filing of Applications for Validation of Option/Joint Options.

In this context, references have been received from all stakeholders as to the list of admissible document(s) that may be considered as Proof of joint option under Para 26(6) of the EPF Scheme, 1952 for the purpose of scrutiny and disposal of Applications for Validation of Option / Joint Options.

As per the earlier notifications, the joint request/undertaking/ permission under Para 26 (6) were made mandatory however, since most of the employers and employees were not submitted the said joint consent and found most the employees were not able to exercise the higher pension option due to said reason, hence EPFO has subsequently relaxed joint consent under Para 26(6) as an optional and directed other parameters to validate the documents to ascertain the applicability and same has been cited in the said notification herein below.

The directions given by the EPFO to their field officers as below:

Employer share of PF contribution has been remitted on employee’s pay exceeding the prevalent statutory wage ceiling of Rs.5000/6500/15000 per month from the day the pay exceeded the wage ceiling or 16.11.95 whichever is later, till date/ till the date of retirement or superannuation as the case may be; and

Administrative charges payable by employer have been remitted on such higher wages; and

The Provident Fund account of employee has been updated with interest as per Para 60 of EPFS,1952 on the basis of such contribution received; and

Any of the following documents have been submitted along with Applications for Validation of Option / Joint Option as proof of joint option and permission under Para 26(6).

Wage Details submitted by the employer along with Applications for Validation of Option / Joint Options

Any salary slip/letter from the employer authenticated by the employer

Copy of joint request and undertaking from the employer.

Letter from PF office issued prior to 04.11.2022 indicating PF contribution on higher wages.

The applicants who qualify and are already contributing/ have contributed till the retirement/superannuation on actual (higher) pay, if they have not submitted their joint requests and undertaking of employer, can submit the same at the time of final claim settlement through their last employer. Joint Request and undertaking of employer for permission under Para 26(6) (pro forma enclosed) can be submitted by pensioners/members any time before the grant of pension on higher wages in accordance with decision of Hon’ble Supreme Court dated 04.11.2022.

Further, as per direction of Hon’ble Supreme Court, the above shall apply to Applications for Validation of Option / Joint Options received from applicants from PF exempted establishments as well, in the same manner.

Employees’ Provident Fund and Miscellaneous Provisions Act, 1952 

Employees’ Pension Scheme, 1995

Ministry of Labour & Employment, posted by PIB Delhi dated on 26-Jun-2023 stating that EPFO provides last opportunity to employees to submit options within fifteen days to get pension on higher wages and Employers given three months time for uploading wage details online. The revised time has extended till 11.07.2023

Highlights:

EPFO has given last opportunity of 15 days is being given to remove any difficulty faced by the eligible pensioners/ members. Accordingly, the last date for submission of Applications for Validation of Option / Joint Options by employees is extended to 11.07.2023.

Further based on many representations received from Employers & Employers’ Associations wherein requests have been made to extend time period for uploading wage details of applicant pensioners / members. The request has been considered sympathetically and the employers are being given further period of three months to submit wage details etc. online latest by 30.09.2023.

The Government  of Maharashtra  has  separately  declared 24 Public Holidays for the year 2023 notified the section 25 of the Negotiable Instruments Act,1881

The Government  of Maharashtra  has  separately  declared 24 Public Holidays for the year 2023 notified the section 25 of the Negotiable Instruments Act,1881 (XXIV of 1881) as per Notification No. PHD.1122/C.R.117/Desk-29, dated 2nd December, 2022. In continuation of the same the changes in public holiday date of Bakri EID (Id-Ul-Zuha) has been notified.

Summary:

With reference to the above notification Government of Maharashtra has further notified the holiday of Bakri Eid (Id-Ul-Zuha) which has been shown earlier on Wednesday, June 28, 2023. However, the festival of Bakri Eid (Id-Ul-Zuha) falls on Thursday, June 29, 2023.

The public holiday declared on Wednesday, June 28, 2023 is cancelled.

Now public holiday of Bakri Eid (Id-Ul-Zuha) is declared as follows:

The Government of Haryana issued the notification to their internal authorities with No. HLWB/REV/2023/2733-2982 dated 27/06/2023 regarding increasing the contribution limit under section 9A of the Punjab Labour Welfare Fund Act, 1965.

This provision has to be complied with effect from 01-01-2023 in the following manner;

Each employee shall contribute to the Fund every month an amount equal to zero point two percent of his salary or wages or any remuneration subject to a limit of rupees thirty-one and each employer in respect of each such employee shall contribute to the Fund every month, twice the amount contributed by such employee.

The limit specified above shall be indexed annually to the consumer price index beginning from first of January each year.

The Government of Punjab on June 02, 2023, issued vide notification no. 21/08/2017-4L(5)/471 to permit all the establishments registered under the Punjab Shops and Commercial Establishments Act, 1958 in the State of Punjab to keep open on all 365 days of the year, for a further period of 1 year i.e up to May 31, 2024, unless it is revoked

This exemption shall remain in operation for the period of one year from the date of Notification published in Govt. Gazette.

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 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 pm on any day, adequate safety and security arrangements shall be ensured for employees and visitors.

As establishments are being given permission to be open for all days, new staff shall be appointed for the extended timing.

Female employees shall be provided separate locker, security and rest rooms at the work place.

Every employer employing women employees shall constitute Internal Complaint Committee against sexual harassment of women under the Sexual Harassment of Women at Workplace (Prevention Prohibition and Redressal) Act. 2013 (Central Act, 14 of 2013) and the said Committee shall be operative.

Female employee will not be allowed to work after 8.00 P.M. Their written consent in this regard shall be taken as adequate safety and security arrangements of female employees shall be made during working hours and it shall be ensured that they safely reach home after their work is over.

The Prevention of The Child and Adolescent Labour (Prohibition and Regulation) Act 1986, as amended from time to time, shall be implemented in the establishments.

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. M.I. Arun, J.
WP No. 100208/2023 (L-RES), Dt/– 17-3-2023

Tata Marcopolo Motors Limited
v.
The Tata Marcoplo Kratikari Karmika Union & Anr.

INDUSTRIAL DISPUTES ACT, 1947 – Section 33(3 & 4) – Industrial Disputes (Central) Rules, 1957 – Rule 61 – Trade Union requested the petitioner to recognize certain office bearers of the Union as protected workmen – When petitioner did not accede to it, union approached the appropriate authority who after hearing the parties passed impugned order recognizing 11 persons as protected workmen – Petitioner did not want to declare the persons at Sl. No. 2, 4, 7 and 11 in the list, as protected workmen – Petitioner challenged impugned order, filing writ petition, to the effect that declaring protected workmen the persons at Sl. No. 2, 4, 7 and 11 in the list is bad in law – With regard to other persons, petitioner has no objection for recognizing as protected workmen – Held, contention of petitioner is that, disciplinary proceedings against persons at Sl. No. 2 and 4 of the list, are pending against them – Further after holding disciplinary proceedings against persons at Sl. No. 7 and 11, they were dismissed from service – They were ordered to be reinstated by the Labour Court – But that order has been challenged in writ petition and order of reinstatement has been stayed – Contention of union is that proceedings initiated against said workmen have not reached finality – They are continued to be the workmen for Industrial Disputes Act, 1947 – There is no provision under the Industrial Disputes Act or the Rules made therein, imposing a condition that workmen can be denied the special status of a protected workmen, if he/she is facing any disciplinary proceedings or charges under criminal law – But there have been judgments wherein such restrictions are imposed – Basic object of law recognizing certain office bearers as protected workmen is to protect them against victimization by the employer, on account of raising certain concerns of the employees which are not in the interest of the employer – But it is possible for undesirable persons to get the status of protected workmen for using it for their selfish purposes, at the cost of the Industry – Trade Union leaders are meant to be role models for the rest of the work force – They are required to canvass the just and reasonable demands of the workmen in accordance with law and oppose the workmen from being exploited by the employer, but not to harass or blackmail the employer and scuttle the Industry – Accordingly Writ petition is allowed in part – Impugned order is set aside to the extent of workmen at Sl. No. 7 and 11 and insofar as it relates to workmen at Sl. No. 2 and 4, is upheld. Paras 26 and 27

For Petitioner: Mr. S.N. Murthy, Sr. Advocate for Mr. Shivakumar S. Badawadagi, Advocate.

For Respondent No. 1: Mr. Sanjay Singhvi, Sr. Advocate for Mr. Rajshekhar Burji, Advocate.

For Respondent No. 2: Mr. Shivaprabhu Hiremath, AGA.

IMPORTANT POINTS

There is no provision under the Industrial Disputes Act, 1947 or the Rules made therein, imposing a condition that workmen can be denied the special status of a protected workmen, if he/she is facing any disciplinary proceedings or charges under criminal law.

There have been judgments wherein restrictions are imposed for recognizing a workman as protected workman’.

Basic object of law recognizing certain office bearers as protected workmen is to protect them against victimization by the employer, on account of raising certain concerns of the employees which are not in the interest of the employer.

Care is to be exercised by the appropriate authority which passing order directing the management to declare a workman as protected workman that the protected workman is not undesirable persons to get the status of protected workmen from using it for his selfish purposes, at the cost of the Industry.

Trade Union leaders are meant to be role models for the rest of the work force, requiring to canvass the just and reasonable demands of the workmen in accordance with law and oppose the workmen from being exploited by the employer, but not to harass or blackmail the employer and scuttle the Industry.

The workmen who have been terminated from service on account of grave and serious charges may not be provided status of ‘protected workmen’.

The workmen who are facing mere disciplinary proceedings and no criminal proceedings are against them, may be declared as ‘protected workmen’

The employees shall be provided all the facilities mentioned in the relevant labour laws.

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.

Employee shall be given national and festival holidays with wages.

The wages including overtime wages of the employees shall be credited to their saving bank accounts.

In addition to these terms and conditions, all the provisions of the Act and other relevant Laws shall be applicable to the establishment.

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

“Always treat your employees exactly as you want them to treat your best customers.”

THE CONTRIBUTORS TO THIS EDITION OF THE E-BULLETIN ARE – ANANDAM MARIMUTHU, MAHESH KUMAR, SHANMUGA SUNDARAM (SUBJECT-MATTER EXPERTS), TEAMLEASE SERVICES LIMITED (HR Tech)