If the employer has been given signing authority under for various listed compliance under terms of agreement with Consultant, then I think there is no issue for any legal complication. Because employer may assign signing authority which he thinks suitable. But it should be in writing.
From India, Mumbai
1From India, Mumbai
Harsh, TS, let me clarify.
I was referring to documents submitted to the government agencies / authorities or documents that need to authenticated and kept in the file as documents required under any statute. My reference to compliance is statutory compliance and not to ISO or other certifications.
So, the question is that whether or not the consultant can sign it, I am of the opinion that there is no specific bar. The only thing I am not sure is whether he can hold a position of officer in default (occupier, factory manager).
But most owners are not comfortable with the idea of a consultant signing the documents going to a third party, so in general they get the consultant to approve but have the new HR manager actually sign the documents.
From India, Mumbai
I was referring to documents submitted to the government agencies / authorities or documents that need to authenticated and kept in the file as documents required under any statute. My reference to compliance is statutory compliance and not to ISO or other certifications.
So, the question is that whether or not the consultant can sign it, I am of the opinion that there is no specific bar. The only thing I am not sure is whether he can hold a position of officer in default (occupier, factory manager).
But most owners are not comfortable with the idea of a consultant signing the documents going to a third party, so in general they get the consultant to approve but have the new HR manager actually sign the documents.
From India, Mumbai
NO, consultant cannot sign any documents whether compliance or otherwise on behalf of the company as he is not legal representative of the company. In the event of any issues, consultant cannot be held responsible for acts of violation by the company.
From India, Hyderabad
From India, Hyderabad
The debate is indeed taking interesting twists and turns.As the learned member Sh.Harsh Kumar Mehta pointed out, it is not possible to give a specific reply from a legal perspective to the member's query which is whether a consultant is legally eligible to sign a compliance document., without knowing the nature of the compliance document and the context of the query.Cautioning the readers that what I say here is not a reply to the query but an examination of the scope of compliance management in order to find a way to connect the dots in this compliance puzzle, I may be permitted to say that the one line query .stirred up several lines of thoughts in me to grapple with the issue.
Having said that, I do not see any problem if an establishment engages a consultant to advise them on compliances and assist them in preparing the returns registers and records etc required under various labour laws.and issue a certificate to the employer that they are complied in full.This is only an internal arrangement between the employer and the consultant.
Though the labour laws pin the responsibility on the employer/principal employer for fulfilling all compliances under various labour laws as seen from various/returns and registers, they do not restrain him from delegating this responsibility to a representative of his (with the exception of occupiers or owners with regard to some under Factories Act).The question is whether the employer can choose a consultant or a fixed term employee to delegate this responsibility.
Now coming to signing compliance documents purported to be submitted to government authorities under various Acts.The responsibility for compliance , in my view, does not begin and end with signing a compliance document, certifying that all is well. It is not a responsibility merely limited to submitting returns and maintaining registers but extending to actually implementing the obligations under various labour laws in day to day administration of labour welfare like adhering to working hours, muster roll management, over time, leave management,payment of wages, remittance of statutory contributions on time,displaying various notices, First Aid Boxes, cleanliness,fire equipment, amenities like water facilities,crech,canteen, accident reporting and a plethora of compliances on safety and health under Factories Act.Therefore any one who certifies to government that all these obligations are complied , must be some one who is involved with it directly on regular and day to day basis. If a consultant is directly involved with it on day to day basis, he must be stepping into the shoes of a regular employee. Compliances like deduction of statutory contributions from wages can be made by the officers of the company who are authorized to pay wages but not consultants.
A look at penal provisions of various laws also offers some clues to the tangle.Co-existing with the responsibility for compliance is also the accountability for breach of them. For any breach, first a complaint has to be filed and the complaint shall name the person who is responsible for the breach and such person shall be one who is actually in charge of the responsibility and involved in day to day affairs of labour administration . If the consultant by signing any compliance document to be submitted to government authorities or any correspondence there of, presents himself before the government authorities as some who has control and knowledge of the affairs and is likely to attract the accountability for breach of the provisions under various Acts. In such case it is doubtful whether a consultant agrees to accept this responsibility.If so, he is acting more like an employee than a consultant.
Though an employer can authorize a consultant to sign compliance document as there does not seem to be a legal bar, the member by his query probably hints at its seeming incompatibility with penal provisions of the Acts, apart from the risk of receiving demands from such consultants for a status of permanent employee
B.Saikumar
HR & Labour relations Consulatant
From India, Mumbai
Having said that, I do not see any problem if an establishment engages a consultant to advise them on compliances and assist them in preparing the returns registers and records etc required under various labour laws.and issue a certificate to the employer that they are complied in full.This is only an internal arrangement between the employer and the consultant.
Though the labour laws pin the responsibility on the employer/principal employer for fulfilling all compliances under various labour laws as seen from various/returns and registers, they do not restrain him from delegating this responsibility to a representative of his (with the exception of occupiers or owners with regard to some under Factories Act).The question is whether the employer can choose a consultant or a fixed term employee to delegate this responsibility.
Now coming to signing compliance documents purported to be submitted to government authorities under various Acts.The responsibility for compliance , in my view, does not begin and end with signing a compliance document, certifying that all is well. It is not a responsibility merely limited to submitting returns and maintaining registers but extending to actually implementing the obligations under various labour laws in day to day administration of labour welfare like adhering to working hours, muster roll management, over time, leave management,payment of wages, remittance of statutory contributions on time,displaying various notices, First Aid Boxes, cleanliness,fire equipment, amenities like water facilities,crech,canteen, accident reporting and a plethora of compliances on safety and health under Factories Act.Therefore any one who certifies to government that all these obligations are complied , must be some one who is involved with it directly on regular and day to day basis. If a consultant is directly involved with it on day to day basis, he must be stepping into the shoes of a regular employee. Compliances like deduction of statutory contributions from wages can be made by the officers of the company who are authorized to pay wages but not consultants.
A look at penal provisions of various laws also offers some clues to the tangle.Co-existing with the responsibility for compliance is also the accountability for breach of them. For any breach, first a complaint has to be filed and the complaint shall name the person who is responsible for the breach and such person shall be one who is actually in charge of the responsibility and involved in day to day affairs of labour administration . If the consultant by signing any compliance document to be submitted to government authorities or any correspondence there of, presents himself before the government authorities as some who has control and knowledge of the affairs and is likely to attract the accountability for breach of the provisions under various Acts. In such case it is doubtful whether a consultant agrees to accept this responsibility.If so, he is acting more like an employee than a consultant.
Though an employer can authorize a consultant to sign compliance document as there does not seem to be a legal bar, the member by his query probably hints at its seeming incompatibility with penal provisions of the Acts, apart from the risk of receiving demands from such consultants for a status of permanent employee
B.Saikumar
HR & Labour relations Consulatant
From India, Mumbai
Well-said Mr.Saikumar.
Firstly, reporting of the firm's/ the employer's statutory compliance to any Public Authority is not a mere verbal communication but a declaration of statutory observance to the extent either prescribed or possible. In either case it carries with itself the risk of scrutiny by the concerned authority as well as accountability for penal consequences in the event of any subjective short-fall as rightly pointed out by Saikumar.
Secondly, certain specific statutory reports do not permit their authentication by any other person authorised by a general and internal delegation of power to sign. Thirdly, even viewed from a general perception, signing of any document on other's behalf in an institutional context is a delegated responsibility arising out of administrative exegencies. Normally, it would be restricted to internal communications. In such case also, the authority to sign on other's behalf co-exists with the responsibility to vouchsafe.
Fourthly, coming to Fixed-Term-Contract Employees signing documents, though their appointment being adhoc and lasting for a relatively lesser period of employment, it does not alter their employment relationship with the employer other than its fixed duration in the contract of their employment. Therefore, for all practical purposes including statutory compliance reporting, their authority to sign on behalf of the employer depends upon their designated role-play in the subject-matter.
Finally, a consultant by virtue of the very nomenclature is just an advisor specialised in a particular aspect or activity. His responsibility is restricted to tender advice on a particular issue referred to him. His advice may, at times, if not always, comprise of alternatives. Ultimate discretion remains with the contractee to choose the most appropriate suggestion or to reject them all in toto thus making the relationship a mere contract for service. Therefore, no consultant would be asked to sign statutory compliance reports for the same could be rejected for want of proper authentication. Instead, his advice could be sought in the matter of drafting compliance reports as suggested by Saswata Banerjee.
From India, Salem
Firstly, reporting of the firm's/ the employer's statutory compliance to any Public Authority is not a mere verbal communication but a declaration of statutory observance to the extent either prescribed or possible. In either case it carries with itself the risk of scrutiny by the concerned authority as well as accountability for penal consequences in the event of any subjective short-fall as rightly pointed out by Saikumar.
Secondly, certain specific statutory reports do not permit their authentication by any other person authorised by a general and internal delegation of power to sign. Thirdly, even viewed from a general perception, signing of any document on other's behalf in an institutional context is a delegated responsibility arising out of administrative exegencies. Normally, it would be restricted to internal communications. In such case also, the authority to sign on other's behalf co-exists with the responsibility to vouchsafe.
Fourthly, coming to Fixed-Term-Contract Employees signing documents, though their appointment being adhoc and lasting for a relatively lesser period of employment, it does not alter their employment relationship with the employer other than its fixed duration in the contract of their employment. Therefore, for all practical purposes including statutory compliance reporting, their authority to sign on behalf of the employer depends upon their designated role-play in the subject-matter.
Finally, a consultant by virtue of the very nomenclature is just an advisor specialised in a particular aspect or activity. His responsibility is restricted to tender advice on a particular issue referred to him. His advice may, at times, if not always, comprise of alternatives. Ultimate discretion remains with the contractee to choose the most appropriate suggestion or to reject them all in toto thus making the relationship a mere contract for service. Therefore, no consultant would be asked to sign statutory compliance reports for the same could be rejected for want of proper authentication. Instead, his advice could be sought in the matter of drafting compliance reports as suggested by Saswata Banerjee.
From India, Salem
Thanks Mr.Umakantan for bringing more clarity to the issue as you always do.My comments were based on summary understanding of the schemes under various labour enactments without diving deep into them to test where the query stands when pitted against the provisions of the Acts.For example, Sec.2(e) (ii) of the EPF Act 1952 defines 'Employer' for establishments other than a factory as the person or the authority which has ultimate control over the affairs of the establishment or the manager,managing director or managing agent to whom such control has been entrusted to by the employer.In my view, a logical inference that can follow from this definition is that either the employer shall comply with the obligations imposed by the Act and the various Schemes there under or the manager or the managing director or managing agent authorized by him in this behalf , can be held accountable for compliances .Here there is no use of any phrase in the definition of 'Employer' where you can fit a consultant as he does not fall under any of the authorities to whom the employer can entrust his powers and responsibilities.May be , we can come across such provisions as we wade through the Acts.Thanks once again.
B.Saikumar
HR & Labour Relations Consultant
From India, Mumbai
B.Saikumar
HR & Labour Relations Consultant
From India, Mumbai
Dear All,
I myself, was working with organisations as Head HR as consultant. I have myself drafted and signed the statuoty and the complaince documents and none of the govt. bodies have objected to the same. There was an internal delegation letter created to give me the rights to decide and sign the same on behalf of the company.
This was replecated by me in 2 states, Maharashtra and Gujarat. There is no law that says that only a permenant employee needs to sign any papers. The law states that proper authorized person needs to sign the documents, so that the company is liable for their actions.
Regards,
Ashutosh Thakre
From India, Mumbai
I myself, was working with organisations as Head HR as consultant. I have myself drafted and signed the statuoty and the complaince documents and none of the govt. bodies have objected to the same. There was an internal delegation letter created to give me the rights to decide and sign the same on behalf of the company.
This was replecated by me in 2 states, Maharashtra and Gujarat. There is no law that says that only a permenant employee needs to sign any papers. The law states that proper authorized person needs to sign the documents, so that the company is liable for their actions.
Regards,
Ashutosh Thakre
From India, Mumbai
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