Dear Concern,
We have 10 workers (3rd party pay roll) working with same roles and responsibilities since 2015 (more than 7 years in continuous service). They have PF, ESIC, Gratuity, Bonus and all other statutory benefits which is charged by the agency and we are paying to them on monthly basis. Their employment is renewed every year with 1 year extension and also get wage revision on yearly basis.
In any way, the contract employee can go to court for permanent employment?
Any advise on the above will really appreciated.
Regards,
Paul
From India, New Delhi
1We have 10 workers (3rd party pay roll) working with same roles and responsibilities since 2015 (more than 7 years in continuous service). They have PF, ESIC, Gratuity, Bonus and all other statutory benefits which is charged by the agency and we are paying to them on monthly basis. Their employment is renewed every year with 1 year extension and also get wage revision on yearly basis.
In any way, the contract employee can go to court for permanent employment?
Any advise on the above will really appreciated.
Regards,
Paul
From India, New Delhi
Dear Paul,
Legally there is no contract of employment between the contract labor engaged through any contractor and the principal employer for whose benefit such contract workmen's services are utilized.
However, certain factors like regular engagement of such contract workmen on core activities, continuity of such engagement in the same establishment for a long period through the same contractor or different contractors by means of "umbrella contract", the ratio of the number of contract labor to that of the regular employees employed in the same operations, any difference in the scales of general service conditions between them are indicative of the fact of such contract being sham or ruse to deny the benefits of regular employment to such long serving contract labor simply for the sake of easy hire and fire.
Such a continuing situation can create disgruntlement in the contract labor in the long run and induce them seek Judicial remedy by means of raising collective industrial dispute under the ID Act, 1947 or pressurize the concerned appropriate Government for abolishment u/s 10 of the CLRA Act, 1970.
Therefore, it would be better to offer regular employment to such long serving contract labor in a phased manner during the years to come. Such a move of the PE would instill confidence and sense of belongingness in the minds of such contract labor , avoid unnecessary industrial disputes and will ensure smooth running of the establishment in the long run.
From India, Salem
Legally there is no contract of employment between the contract labor engaged through any contractor and the principal employer for whose benefit such contract workmen's services are utilized.
However, certain factors like regular engagement of such contract workmen on core activities, continuity of such engagement in the same establishment for a long period through the same contractor or different contractors by means of "umbrella contract", the ratio of the number of contract labor to that of the regular employees employed in the same operations, any difference in the scales of general service conditions between them are indicative of the fact of such contract being sham or ruse to deny the benefits of regular employment to such long serving contract labor simply for the sake of easy hire and fire.
Such a continuing situation can create disgruntlement in the contract labor in the long run and induce them seek Judicial remedy by means of raising collective industrial dispute under the ID Act, 1947 or pressurize the concerned appropriate Government for abolishment u/s 10 of the CLRA Act, 1970.
Therefore, it would be better to offer regular employment to such long serving contract labor in a phased manner during the years to come. Such a move of the PE would instill confidence and sense of belongingness in the minds of such contract labor , avoid unnecessary industrial disputes and will ensure smooth running of the establishment in the long run.
From India, Salem
Dear Umakanthan Sir,
Thank you very much for the advise.
Please guide, can the Permanent worker trade union appeal through court to confirm such old contract employees who are working in the same unit but not active member of the said union.
Regards,
Amit
From India, New Delhi
Thank you very much for the advise.
Please guide, can the Permanent worker trade union appeal through court to confirm such old contract employees who are working in the same unit but not active member of the said union.
Regards,
Amit
From India, New Delhi
Here my view is little different, if there is no relationship of Employer and Employee between the Management and the Contractor Workers and in the employment of the Contract workers, the workmen have no evidence. that such engagement is a Sham or Camouflage under this situation no need to make them permanent as in most of the organization all allied activities.
are being carried out by contract workmen even for more than fifteen years.
Regds
Ranjan Ku Dixit
From India, New Delhi
are being carried out by contract workmen even for more than fifteen years.
Regds
Ranjan Ku Dixit
From India, New Delhi
Dear Amit,
Espousal of the cause of the contract labor engaged in the same PE'S establishment by the existing trade union for its permanent employees depends on the by-laws of the same. In my observation, the existing clash of employment interests between the permanent workmen and the contract labor performing the same operations prevents such unions taking up such an issue. But any general workers union can do it provided the Contract labor are it's members or authorize it to do so.
Coming to the observation of Mr.Ranjan, though I would also admit it as the ground reality, I can also emphasize that it is an indication of the enforcement of the CLRAA,1970 being more of alarming violation than of compliance. If we closely observe the ratio decidendi of the case laws and the successive amendments to the Act every now and then, but for the flexible hire and fire, the cost effectiveness of the engagement of contract labor is gradually getting eroded and the morale and commitment of such labor become negative beyond a certain point in the long run and would result in in-plant violence as in the case of Suzuki's Manesar Car Plant, if I remember correct. Moreover, long-term engagement of same contract labor through umbrella contracts is an irrefutable facts of requirement of optimal labor strength and indulgence of unfair labor practice.
From India, Salem
Espousal of the cause of the contract labor engaged in the same PE'S establishment by the existing trade union for its permanent employees depends on the by-laws of the same. In my observation, the existing clash of employment interests between the permanent workmen and the contract labor performing the same operations prevents such unions taking up such an issue. But any general workers union can do it provided the Contract labor are it's members or authorize it to do so.
Coming to the observation of Mr.Ranjan, though I would also admit it as the ground reality, I can also emphasize that it is an indication of the enforcement of the CLRAA,1970 being more of alarming violation than of compliance. If we closely observe the ratio decidendi of the case laws and the successive amendments to the Act every now and then, but for the flexible hire and fire, the cost effectiveness of the engagement of contract labor is gradually getting eroded and the morale and commitment of such labor become negative beyond a certain point in the long run and would result in in-plant violence as in the case of Suzuki's Manesar Car Plant, if I remember correct. Moreover, long-term engagement of same contract labor through umbrella contracts is an irrefutable facts of requirement of optimal labor strength and indulgence of unfair labor practice.
From India, Salem
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