Dear Seniors,
Can any one explain what is the correct definition of a permanent employee and what is the definition of a temporary employee under the Shops & Establishment Act or any other labor act?
Thanks & Regards,
Srinivas B
From India, Hyderabad
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20Can any one explain what is the correct definition of a permanent employee and what is the definition of a temporary employee under the Shops & Establishment Act or any other labor act?
Thanks & Regards,
Srinivas B
From India, Hyderabad
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Dear Srinivas ji,
There is no definition of a permanent employee or a temporary employee under the Bombay Shops & Establishment Act, and I am also sure that there is no such definition in any other Shops & Establishment Act in India. This is the specific answer to your question.
From India, Mumbai
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There is no definition of a permanent employee or a temporary employee under the Bombay Shops & Establishment Act, and I am also sure that there is no such definition in any other Shops & Establishment Act in India. This is the specific answer to your question.
From India, Mumbai
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Dear Srinivas,
The Shops and Establishments Acts do not define an employee in terms of permanent and temporary categories and include every person whether employed permanently or temporarily in the establishment in connection with the business, as Afzar said. This is true at least of the Bombay Shops Act, as Mr. Keshav Koregaonkar stated. The fact that you too asked for clarification on this issue implies that the A.P. Shops Act also does not distinguish between a permanent employee or a temporary employee.
However, for your knowledge and information, I can refer to the definition of 'permanent employee' and 'temporary employee' as contained in the model standing orders (Central) in Schedule-I, appended to the Standing Orders Act 1946.
Clause (2)(b) of the Model Standing orders defines a permanent employee as follows:
"A 'permanent workman' is a workman who has been engaged on a permanent basis and includes any person who has satisfactorily completed a probationary period of three months in the same or other occupation in the industrial establishment including breaks due to sickness, accident, leave, lock-out (not being an illegal strike), or involuntary closure of the establishment."
It means a permanent employee is someone who is appointed in a vacancy of permanent nature or to do work of permanent or perennial nature and whose lien on employment stays irrespective of his absence due to sickness or accident or legal strike or illegal lock-out.
Clause (2)(e) defines a 'temporary workman' as a workman who has been engaged for work which is of an essentially temporary nature likely to be finished within a limited period.
It means a temporary employee is not recruited against a permanent vacancy or in any work of a perennial nature. He is recruited to do work which lasts for a limited period. For example, an employee appointed for a tenure of one year is a temporary employee or an employee appointed to finish work which increased temporarily in a permanent post. Thus, a temporary employee loses his lien on employment after some time or after the expiry of the contracted period.
B. Saikumar HR & Labour Law Advisor Mumbai.
From India, Mumbai
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The Shops and Establishments Acts do not define an employee in terms of permanent and temporary categories and include every person whether employed permanently or temporarily in the establishment in connection with the business, as Afzar said. This is true at least of the Bombay Shops Act, as Mr. Keshav Koregaonkar stated. The fact that you too asked for clarification on this issue implies that the A.P. Shops Act also does not distinguish between a permanent employee or a temporary employee.
However, for your knowledge and information, I can refer to the definition of 'permanent employee' and 'temporary employee' as contained in the model standing orders (Central) in Schedule-I, appended to the Standing Orders Act 1946.
Clause (2)(b) of the Model Standing orders defines a permanent employee as follows:
"A 'permanent workman' is a workman who has been engaged on a permanent basis and includes any person who has satisfactorily completed a probationary period of three months in the same or other occupation in the industrial establishment including breaks due to sickness, accident, leave, lock-out (not being an illegal strike), or involuntary closure of the establishment."
It means a permanent employee is someone who is appointed in a vacancy of permanent nature or to do work of permanent or perennial nature and whose lien on employment stays irrespective of his absence due to sickness or accident or legal strike or illegal lock-out.
Clause (2)(e) defines a 'temporary workman' as a workman who has been engaged for work which is of an essentially temporary nature likely to be finished within a limited period.
It means a temporary employee is not recruited against a permanent vacancy or in any work of a perennial nature. He is recruited to do work which lasts for a limited period. For example, an employee appointed for a tenure of one year is a temporary employee or an employee appointed to finish work which increased temporarily in a permanent post. Thus, a temporary employee loses his lien on employment after some time or after the expiry of the contracted period.
B. Saikumar HR & Labour Law Advisor Mumbai.
From India, Mumbai
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Dear Saikumar ji,
Thank you once again for your detailed explanation. However, it appears that you may have overlooked mentioning the provision under the ID Act. In some of your previous posts, you did refer to it.
Section 25-B of the Industrial Disputes Act establishes that a worker who completes 240 days should be treated on par with a permanent worker. Consequently, this section imposes certain obligations that the employer must fulfill.
I hope this clarifies the point I was trying to convey.
Best regards,
[Your Name]
From India, Mumbai
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Thank you once again for your detailed explanation. However, it appears that you may have overlooked mentioning the provision under the ID Act. In some of your previous posts, you did refer to it.
Section 25-B of the Industrial Disputes Act establishes that a worker who completes 240 days should be treated on par with a permanent worker. Consequently, this section imposes certain obligations that the employer must fulfill.
I hope this clarifies the point I was trying to convey.
Best regards,
[Your Name]
From India, Mumbai
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Hi friends,
In how many spells/installments can an employee/worker avail his earned leave/Privilege leave in a calendar year?
The UP Shop and Establishments Act Section 10 Rule 10 provides for 3 times. Similarly, model leave rules also specify 3 times in a calendar year.
The Factories Act Section 79 sub-section 6 provision second also states that "the number of times in which leave may be taken during any year shall not exceed three."
Bipartite settlements between Banks and their workmen Chapter 13 para-13.20 stipulate that "An employee other than a member of the executive committee of a registered trade union of bank employees will not be entitled to take privilege leave on more than 3 occasions in a calendar year."
What is the basis for the grant of leave with wages under shop acts? I am of the opinion that the provisions of sections 78-79 of factories rules are the basis. Am I correct? Please advise.
Thanks and regards,
RLDhingra Advocate
Labour Law Consultants, Delhi
9818309937, Email: rld_498@rediffmail.com
From India, Delhi
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In how many spells/installments can an employee/worker avail his earned leave/Privilege leave in a calendar year?
The UP Shop and Establishments Act Section 10 Rule 10 provides for 3 times. Similarly, model leave rules also specify 3 times in a calendar year.
The Factories Act Section 79 sub-section 6 provision second also states that "the number of times in which leave may be taken during any year shall not exceed three."
Bipartite settlements between Banks and their workmen Chapter 13 para-13.20 stipulate that "An employee other than a member of the executive committee of a registered trade union of bank employees will not be entitled to take privilege leave on more than 3 occasions in a calendar year."
What is the basis for the grant of leave with wages under shop acts? I am of the opinion that the provisions of sections 78-79 of factories rules are the basis. Am I correct? Please advise.
Thanks and regards,
RLDhingra Advocate
Labour Law Consultants, Delhi
9818309937, Email: rld_498@rediffmail.com
From India, Delhi
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Dear Shri Dhingra Ji,
True, there is a cap on the number of occasions for availing earned leave or privilege leave stipulated by the Acts and settlements cited by you. My understanding of the employer's right to put a cap on the number of occasions for availing earned leave within the framework of the Shops Acts is as follows:
1) Where the Shops Act and the rules thereunder specifically prescribe a procedure for availing earned leave, including the number of occasions for availing it as in the case of UP Shops Act, then there is no dispute, and the same can be followed.
2) Where the Shops Act and the rules thereunder of a State specifically prescribe a procedure for availing earned leave but remain silent on the number of occasions on which such leave can be availed, then it is not prudent for the employer to stipulate any cap on the number of occasions as it is likely to be viewed as going against the legislative intent. Had the legislature or the executive under the delegated power to frame rules wanted to stipulate any cap, it would have done so while prescribing the specific procedure. The fact that it omitted to do so indicates that it does not desire any such cap.
3) Where the Shops Act and the rules thereunder merely speak about the total leave entitlement for an employee and the manner of computation, etc., as observed in the Shops Act of some states and are silent on the procedure as to how the leave is to be availed, etc., then, in my view, the concerned Act intends to leave to the discretion of the employer to lay down the procedure for availing such leave. In such cases, in my view, the employer can stipulate a cap on the number of occasions.
B. Saikumar
HR & Labour Law Advisor
Mumbai
From India, Mumbai
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True, there is a cap on the number of occasions for availing earned leave or privilege leave stipulated by the Acts and settlements cited by you. My understanding of the employer's right to put a cap on the number of occasions for availing earned leave within the framework of the Shops Acts is as follows:
1) Where the Shops Act and the rules thereunder specifically prescribe a procedure for availing earned leave, including the number of occasions for availing it as in the case of UP Shops Act, then there is no dispute, and the same can be followed.
2) Where the Shops Act and the rules thereunder of a State specifically prescribe a procedure for availing earned leave but remain silent on the number of occasions on which such leave can be availed, then it is not prudent for the employer to stipulate any cap on the number of occasions as it is likely to be viewed as going against the legislative intent. Had the legislature or the executive under the delegated power to frame rules wanted to stipulate any cap, it would have done so while prescribing the specific procedure. The fact that it omitted to do so indicates that it does not desire any such cap.
3) Where the Shops Act and the rules thereunder merely speak about the total leave entitlement for an employee and the manner of computation, etc., as observed in the Shops Act of some states and are silent on the procedure as to how the leave is to be availed, etc., then, in my view, the concerned Act intends to leave to the discretion of the employer to lay down the procedure for availing such leave. In such cases, in my view, the employer can stipulate a cap on the number of occasions.
B. Saikumar
HR & Labour Law Advisor
Mumbai
From India, Mumbai
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