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satish malve (professional)     01 December 2012

Entitlement and compensation

Madam/Sir,
             Kindly suggest me in the below query.

               I worked for an manufacturing company for 28 yrs, later took VRS in 2004, again in the year 2007, the management called back me to work as i am a ex-employee of them and orally assured me that I would be entitled benifits as per the labour law.They didnt followed INDUSTRIAL EMPLOYMENT STANDING ORDERS ACT and no written contract is between us. Salary and E.S.I is payed by  the organization, However later in terms of wages and payments they didnt  followed any labour enactments at all, despite  many requests to management from me, they are not considering my request regarding higher payments and not even following minimum wages at all, inturn they threatened that if I again request then i would be layed off from the organisation. Managenment says that for exemployee they are not suppose to follow any labour enactments. After VRS I worked for more than 5yrs their and now my age is 63. Due to non consideration of my request many times, i am now  planning to approach labour department. I request you to avail me information regarding what benifits and compensation would I be entailed as per the labour enactments.



Learning

 5 Replies

Kumar Doab (FIN)     02 December 2012

You have posted that:

--“ After VRS I worked for more than 5yrs their and now my age is 63.”

What was the age of retirement as per standing orders of the company at the time you took VRS {age apparently 58 years.}

You might have withdrawn your PF and might be receiving PF pension thus you might be excluded employee and no PF contribution might be payable.

Or the employer might be contributing entire PF contribution 12% to EPF a/c without any share to pension.

--“Salary and E.S.I is payed by  the organization”

You have the proof of employment, and wages paid to you.

 Appointment letter should have been issued. Has the company recorded your name in muster/register as employee or contractual employee, contract for fixed period or on fixed pay out/honorarium/fee etc?

Another point is that fixed pay out/honorarium/fee may be taken as wages.

The labor Inspector may be in a position to write in his report about all individuals working in Factory.

Has the company board passed a policy/decision to employee to reemploy employees who had opted for VRS, and if yes on what terms?? Has it been included in standing orders of the company? Does the company has certified standing orders?Standing orders should be displayed near entrance/gate/notice board. Employer should supply copy of its standing orders to employee on reasonable cost say Rs.10/.

Have you signed any document accepting terms of your reemployment or everything is verbal??? You should be clear on  reemployment is express or implied?

You may request good offices to allow you to examine your personnel file being maintained in HO.

Obtain ESIC card. It has its own benefits.

You might be entitled to bonus if your salary is not more than Rs.10000/ as per def. of wages in Payment of Bonus Act.

 

THE FACTORIES ACT, 1948

Sec 103 Presumption of employment

 

ØIf a person is found in a factory at any time, except during intervals for meals or rest, when work is going on or the machinery is in motion, he shall until the contrary is proved be deemed for the purposes of this Act and the rules made thereunder to have been at that time employed in the factory.

(l)  "worker" means  a person 2*[employed, directly or by or

                  through any  agency (including  a contractor)  with  or

                  without  the    knowledge  of  the  principal  employer,

                  whether for  remuneration or not], in any manufacturing

                  process, or  in cleaning  any part  of the machinery or

                  premises used  for a  manufacturing process,  or in any

                  other kind  of work  incidental to,  or connected with,

                  the  manufacturing  process,  or  the  subject  of  the

                  manufacturing  process  1*[but  does  not  include  any

                  member of the armed forces of the Union];

--“Managenment says that for exemployee they are not suppose to follow any labour enactments.”

 

The statement of management is verbal and it is not true. They are mistaken.

The management might have employed retired/VRS employees as a carefully calculated strategy as many of the individuals might have been unemployed and willing to be hired {to avoid old age poverty as the managers in HR usually term it} and they hired the experienced and tried hands without any appointment letter at much less cost as compared to young and qualified hands and as a part of its strategy the employer is subduing the employees.

The IESO Act is applicable and employee{s} may obtain copy of certified standing orders which should have been displayed at the gate/entrance/notice place and employee can obtain these against nominal payment say Rs.10/.

If certified standing orders are not framed model standing orders shall apply.

--“not even following minimum wages at all,”

This is violation and you may persist.

--“After VRS I worked for more than 5yrs”

Stake your claim for all statutory benefits and let the company reply in writing e.g PF/Gratuity/bonus etc.

Approach the trade union, labor officials, labor consultant/service lawyer, proceed under expert advice and remain firm.

 

However management can lay off and in case you are within the category of workman, you may invoke the provisions of ID act, and demand lay off compensation.

 

Factory Act;

92. General  penalty for offences. Save as is otherwise expressly

 provided in  this Act  and subject to the provisions of section 93, if

 in, or in respect of, any factory there is any contravention of any of

 the provisions  of this  Act or of any rules made thereunder or of any

 order in  writing given  thereunder, the  occupier and  manager of the

 factory shall  each be  guilty  of  an  offence  and  punishable  with

 imprisonment for a term which may extend to 2*[two years] or with fine

 which may  extend to  2*[one lakh  rupees] or  with both,  and if  the

 contravention is continued after conviction, with a further fine which

 may extend  to 2*[one  thousand rupees]  for each  day  on  which  the

 contravention is so continued:

 

MODEL STANDING ORDERS

 

ACCORDING TO THE INDUSTRIAL EMPLOYMENT (STANDING ORDERS)

ACT - 1946 AND RULES MADE THEREUNDER

1.          APPOINTMENTS: -The Company may require applicants seeking employment to fill-up the Company’s prescribed application form, to undergo test/interview of proficiency before employment and may require a workman to pass a Medical Examination by a Doctor of its choice.  A Workman shall at the time of his appointment complete and sign his appointment letter and/ or service agreement with the Company, such a workman shall besides the provisions as laid down in these Standing Orders, be bound the provisions of his specific service agreement as well:

(ii)        At the time of employment all persons may be required to undergo a test of-proficiency and/or interview after submitting an application and fulfilling the prescribed work or of employment of the Company.

 

Did you fill up any application form and undergo any medical test? 

5.         ATTENDANCE CARD AND MUSTER ROLLS: -

 

(i)         The name of every workman shall be entered on the Muster Roll clearly indicating the classification to which he belongs.

 

(ii)                Every workman shall be given an attendance card/token/ticket sign their presence daily in the Staff Attendance Register.

What ticket, attendance card, I.Card has been provided to you?

 17.      CLOSURES, STOPPAGE AND LAY-OFF: -

The rules for lay off are well defined.

In a given situation employee can approach trade union, and/or invoke the provisions of ID Act, IESO Act, Payment of Wages Act, SE Act as per explanation of employee under the provisions of these enactments or approach civil court. Designation alone does not decide that employee is a workman or not.

It shall be appropriate to approach a competent and experienced service lawyer/labor consultant with copies of all of your documents and give inputs in person and proceed under expert advice of your lawyer. Do not conceal anything from your lawyer. Your lawyer shall evaluate the merits and may opine that you fall within the category of workman. Your lawyer may opine that the subject matter has limitation period of three years.Your lawyer may have some judgements to support your cause.

Company may yield to legal notice of your lawyer or you may have to agitate in the appropriate forum. Company may yield to your demands during conciliation proceedings in o/o ALC or the ALC shall issue reference to Labor Court.

Valuable advice of learned experts/members is sought.

 


Attached File : 371427119 model%20standing%20orders.doc, 371427119 factories act 1948.pdf downloaded: 84 times
1 Like

satish malve (professional)     02 December 2012

Kumar Doab,

I thank you and appreciate for your valueble suggestion which is clearly mentioned.

I request to consider the below..........

No Appointment letter have been issued.  company recorded your name in muster/register as contractual employee, however we dont know who  is our contractor.

No,  the company board didnt passed a policy/decision to employee to reemploy employees who had opted for VRS.

 Yes the company has certified standing orders, however it is only for permanant members, for exemployees they didnt mentioned

No, we havent  signed any document accepting terms of reemployment as everything is verbal.

You mentioned that If certified standing orders are not framed then model standing orders shall apply, may i know what are they?

 As you said, the Company may require applicants seeking employment to fill-up the Company’s prescribed application form, to undergo test/interview of proficiency before employment and may require a workman to pass a Medical Examination by a Doctor of its choice.  A Workman shall at the time of his appointment complete and sign his appointment letter and/ or service agreement with the Company     .i.e. nothing had done for the above,  no prescribed application form, no Medical Examination by a Doctor, no signing of appointment letter been done by us.

Kumar Doab (FIN)     02 December 2012

Who pays salary, company or contractor? Are you getting salary slip? Ideally both worker and employer should sign on the salary slip? Which establishment has issued ESIC Card Company or contractor? If ESIC card is issued it implies establishment which has issued ESIC card is covered for ESIC be it contractor or company?

If you are a contractual employee then the contractor {you must know and you must find out who it is as you are working for last 5 years. You must also find out the contractor for all these 5 years has remained same or has been changing.} Whosoever has issued might have registered under SE Act. Under SE At of many states appointment letter is to be issued e.g.

SE Act Delhi:

2. Definitions.

(7)   “employee”       means     a  person     wholly   or  principally   employed,      whether     directly  or               otherwise, and whether for wages (payable on permanent, periodical, contract, piece-               rate    or   commission       basis)   or   other    consideration,     about    the   business     of   an               establishment and includes an apprentice and any person employed in a factory but

              not   governed   by   the   Factories  Act,   1948

34.   Employer      to   furnish   letters   of  appointment   to       employees.—The         employer     shall furnish every employee with a letter of appointment.

You may look into SE Act applicable to your state.

“company recorded our name in muster/register as contractual employee,”

If company has registered your name as contractual employee in its muster then you can be contractual employee of the company and the details must also have been mentioned in the records.

The employer should provide accurate proof of employment/contractual employment by appointment letter/contract of employment.

The occupier {/Manager of the factory as described in  2.  Interpretation. (n) and 7. Notice by occupier. (4) }

should be able to provide correct information and details.

The govt. has vested certain powers in Inspectors { 8. Inspectors.  (4) Every District Magistrate shall be an Inspector for his district.}

9. Powers of Inspectors.

d) require the production of any prescribed register or any other document relating to the factory;

62. Register of adult workers. (1) The manager of every factory

shall maintain a register of adult workers, to be available to the

Inspector at all times during working hours, or when any work is being

carried on in the factory,

 

How do you gain entry into factory? You must be showing some I. Card/ticket and who has issued it, company or contractor?

How do you mark your attendance?

“If certified standing orders are not framed then model standing orders shall apply, may i know what are they?”

Model Standing Orders refer to the draft standing orders given in the Industrial Employment (Standing Orders) Act, 1946.

The certified standing orders are already framed by the company for is employees an workers, and have not been extended to you as posted by you.

 

 

You have to establish employer-employee relationship and find out what kind of Relationship Company has shown in its records contract of service or contract for service?

{ The law makes a distinction between a contract of service and a contract for service. Basically, a contract of service applies to an employee-employer relationship, while a contract for service applies in the case of an independent sub-contractor. This distinction is most important as protection of employment legislation does not apply to independent sub-contractors – with the exception of health and safety legislation and equality legislation.}

 

Approach the trade union, labor officials, labor consultant/service lawyer, with complete and relevant information and proceed under expert advice.

You may find the attachments useful.

 

Once you entangle employer into litigation he may lay you off. If you have decided to give up this employment after working for 5 years of VRS and you feel that you have worked for enough number of years with this employer and you can manage on your own or you can be with another employer who shall value your experience and skill and shall award you with a fair contract then you may proceed as deemed fit. If you fell that you do not want to work you may act accordingly. If you can persuade this employer to make your contract fair by persuasion then it can be a good option.

Valuable advice of learned experts/members is sought.


Attached File : 371510959 equal right for contract workers.doc, 371510959 contract labor act pp-062-33.pdf, 371510959 industrial employment standing orders ruels 1946.pdf downloaded: 122 times

satish malve (professional)     03 December 2012

Kumar Doab,

I thank you for your valueble information which is availed to me.

 

satish malve (professional)     08 December 2012

Kumar Doab,

As you asked certain questions mentioned above, provide me certain suggestion

Who pays salary, company or contractor? Are you getting salary slip? Ideally both worker and employer should sign on the salary slip? Which establishment has issued ESIC Card Company or contractor?

for 2 yrs company paid salary, later a (i assume)binami contractor is paying the salary  to us. no salary slip availed to us, ESIC is provided by company which consists of companys personnel sign and seal of company (not contractor),  no appointment letter either by company or contractor provided to us till now,  about entering into the hazardous  factory premises is  through a identity card(which mentions that the below employee is undersigned contractor of........ and licence no.............) however neighter companys personnel nor contractor signed on the card, only companys seal is stamped.

lastly,  in the  name of contract employment they are using our service for core work and supporting core work of organisation, not as per the CLRA  ACT.

On the  whole i feel that the  personnel of  company  utilising our services for core work of orgnisation in the name of  binami  contractor who doesnt possess licence at all.

considering all the above what provisions can be invoked (under different acts)  on the OCCUPIER and also  on so called BINAMI CONTRACTOR.

i request to suggest me in the above regard.


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