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hareesh kumar (sales)     08 June 2013

Overtime allowance

sir we are  working in the shop of  kerala state beverages corporation .we are working for 11 hours daily with an additional allowance of 200 rs per day .i just want to know whether it is as per the indian labour law



Learning

 5 Replies

Kumar Doab (FIN)     08 June 2013

The shop might have been registered under THE KERALA SHOPS AND COMMERCIAL ESTABLISHMENTS ACT. 1960

If yes the registartion certificate might have been displayed in the shop.

CHAPTER II

HOURS OF WORK

       6.Daily and Weekly Hours.-No employee in any establishment shall be required or allowed to work for more than eight hours in any day and forty-eight hours in any week:

Provided that the total number of hours of work including overtime, shall not exceed ten hours in any day except on days of stock taking and preparation of accounts and the total number of hours of overtime shall not exceed fifty for any quarter.

       7.Extra wages for overtime work.-Where an employee, works in any establishment for more than eight hours in any day or for more than forty-eight hours in any week he shall in respect of such overtime work be entitled to wages at the rate of twice the ordinary rate of wages.

 

Explanation.-For the purpose of this section “ordinary rate of wages” means the basic wages plus such allowances, including the cash equivalent of the advantage accruing through the supply of meals and the concessional sale to employees of foodgrains and other articles, as the employee is for the time being entitled to, but does not include bonus.

9.Spread over.-The period of work of an employee in an establishment shall be so fixed that, inclusive of his interval for rest, they shall not spread over more than ten and a half hours in any day.

 

{{ In  case of monthly rated employee, the procedure for calculation of hourly rate of wages should be:

The  cases  where  a  workman  is  paid  a  daily  rate  present  no  difficulty.  However,  when payment is made  on monthly scale of pay, the daily rate of wages for a worker can be obtained only by dividing the amount of wages for 30 days by 26. This is done because the workman is entitled  to four  days  as  weekly  rest  during  which  period  he  does  not  work.  The  reason  is  that workman actually gets monthly wages for the work done only for 26 days. Thus for a workman, it is the actual receipt for 26 days which is his monthly scale of pay, i.e., 30 days wages. Therefore, a day’s wage should mean the result obtained by dividing the monthly wages by actual number of working days,  i.e., 26 days. This principle will, however, be applicable in case of such workers 

who get monthly wages only for the actual number of working days. The formula for calculation of the overtime wages  for one hour is to divide the month’s wages by 26 into the number of normal working hours ( eight hours in any day) and the result so obtained by them then multiplied by two to calculate one hour’s overtime wages;  }}

You may however check at your end and proceed accordingly.


Attached File : 345466159 se act kerala.doc downloaded: 394 times
1 Like

Hemang (Advocate)     08 June 2013

 

follow the advise of Kumar Saheb

srinivas (engineer)     09 June 2013

Dear Sir,

Iam working in TCL tata communications hyderabad on payroll of Adecco India pvt ltd we are working in Rotational shifts we work in night shift also we do night shift for 11 hours per day and 66 hours in a week but we get any allowance .if we aske so the Adecco people will say its client requirement and when we ask for tata we are not concersed .and our salary is very minimal .

Kumar Doab (FIN)     09 June 2013

 

@ Srinivas,

Always initiate a new thread.

You should be in the category of employees eligible for OT.

Company may try to project that employee(s) is in category of excluded employees.

OT may be paid as per company’s internal  Departmental Rules ( for clocked hours up to 48 hours), Factory Act, State Shops and Establishments Act…………….

You can look into these and also the appointment letter issued to you.

It is assumed that your company is registered under (Name of State) Shops and Establishments Act…………………………

 

It shall be appropriate to approach a competent and experienced labor consultant/service lawyer with copies of your appointment letter, HR policy, service rules, attendance record, give inputs in person, spend some quality time with your lawyer and proceed under expert advice of your lawyer.

Your lawyer may ask you a set of structured questions and may opine that you fall within the category of workman as in ID Act and ‘Employee” as in SHOPS AND ESTABLISHMENTS ACT.

 

------According to the International Labour Organization (ILO), the standard weekly working hours (excluding overtime) cannot exceed 48 hours per week and eight hours a day. According to the ILO, "the imposition of hours limits was intended to ensure a safe and healthy working environment and adequate rest or leisure time between shifts."

Examples of exceptions where working hours may be extended under ILO Convention No. 1 include:

When "the nature of the process to be carried on continuously by a succession of shifts" requires it. In this case, average working hours shall not exceed 56 hours a week and shall not affect rest days……….

In the cases of "force majeure", "but only so far as may be necessary to avoid serious interference" with ordinary operations (Article 3)

In other exceptional cases where these time stipulations cannot be applied. In these cases extended working hours must be agreed by workers' and employer organisations, or regulations set down by the government………………….

Another implication is that workers may be "impelled" to work overtime by their employers who may threaten replacement, or this pressure may tacitly exist within the corporate culture. Therefore, even if an employee is working overtime that is within legal guidelines, the simple fact that the worker has agreed to this overtime under duress or compulsion means that these extra hours are, in effect, illegal. These types of situations occur in countries where workers are not fully protected by labour laws, or the enforcement of labour laws is weak, or where trade union activity is restricted or banned.

 

 

You have posted that:

------“we are working …………………………”

Implies along with you many other employees are affected. All of you may join hands and be a witness to each other.

If you are eligible for OT, all of you may approach a trade union, o/o Labor Commissioner, Inspector Under Shops and Commercial Establishments Act…………..which are duty bound to take suo moto notice of violations/act on complaints and depute their Inspectors and check/take over records………………..

 

------“so the Adecco people will say its client requirement………………………………..”

The employer company has seconded the services to another company.

To TLC you may be contract workers made available by your employer: Adecco.

OT to contract workers should be paid.

Who marks the attendance and who approves the time worked and who pays the wages?

All employees may find their ways and means to obtain the details of the time worked without violating any of the policy of both companies………………….

Your employer does not appear to be refusing to acknowledge OT but is probably conveying the long shifts are to suit the requirement of the client.

Did you ever demand OT and did the company refuse to pay?

The claim of OT should be raised within reasonable time: The SE act of your state is liberal and put it at 1Y and even more with approval of authority.

Your point is that the shifts and sh*ts hours are rationalized and OT is paid.

-------“when we ask for tata we are not concersed .”

If any violation occurs at their floors they are responsible.

 

------“and our salary is very minimal. “

 

It can’t be below the minimum wages.

 

You have the option to try and be with another employer with good HR practices.

 

Are you getting the pay slip? You should demand and obtain it for all months of employment.

 

Have you been given appointment letter?

 

 

ANDHRA PRADESH SHOPS AND ESTABLISHMENTS ACT,

2. Definitions:……………… (5) commercial establishment means………..

 (8) employee means…………….

(9) employer means a person………………

(23) Wages means………..

(b) any remuneration to which the employee is entitled in respect of overtime work or holidays or any leave period;

16. Daily and weekly hours of work :- (1) Subject to the provisions of this Act, no employee in any establishment shall be required or allowed to work therein for more than eight hours in any day and forty eight hours in any week.

(2) Any employee may required or allowed to work in an establishment for any period in excess of the limit fixed under sub section (1), on payment of over time wages, subject to a maximum period of six hours in any week.

(3) For the purposes of stock taking and preparation of accounts, an employer may, with the previous intimation to the Inspector, require or allow any employee to work in an establishment for not more than any six days in a year in excess of the period fixed in sub section (1) on payment of overtime wages; so however, that the excess period shall not, in the aggregate, exceed twenty four hours.

17. Interval for rest;

18. Spread over of periods of work :-

37. Wages for overtime work :- Where any employee in any establishment is required to work over time he shall be entitled, in respect of such over time work, to wages at twice the ordinary rate of wages:

38. Time of payment of wages :-

CHAPTER IX
Appointment Powers and Duties etc., of the authority to hear and decide claims relating to Wages etc., of employees in Establishments

51. Claims arising out of deductions from wages or delay in payment of wages etc., and penalty for malicious or vexatious claims :-

(1) Where……………….. or any payment of wages…………. to him has been delayed,……….

Provided that every such application shall be presented within one year from…………

Provided further that any application may be admitted after the said period of one year when the applicant satisfies the authority that he had sufficient cause for not making the application within such period.

52. Single application in respect of claims from unpaid group :-

CHAPTER XII
Miscellaneous

68. Maintenance of registers and records and display of notices, etc., :-

(4) Every employer shall give an order of appointment to his employee in the establishment before such employee joins the service and shall also furnish a copy of such order to the Inspector having jurisdiction over the area, within three days of issue of each such order:

 

 

You may proceed as deemed fit at your end.


Attached File : 559221351 se act ap.doc downloaded: 166 times
1 Like

Sudhir Kumar, Advocate (Advocate)     09 June 2013

well elaborated by Mr Kumar Doab


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