I appreciate the posting by Raj Kumar ji, our senior member and super moderator elaborating CSR projects and value addition in the discussion.
However, I have to differ with one of the senior members Saswata ji, with due respect to him.
"establishment" under CLRA means--
(i) any office or department of the Government or a local authority, or
(ii) any place where any industry, trade, business, manufacture or occupation is carried on.
On what basis we can say the school where the repair work is being done is not an establishment?
QUOTE=saswatabanerjee;2058044]
Even if it were to be, the principal employer would not be this company but the school management.
[/QUOTE]
"principal employer" under CLRA means--
(i) in relation to any office or department of the Government or a local authority, the head of that office or department or such other officer as the Government or the local authority, as the case may be, may specify in this behalf;
(ii) in a factory, the owner or occupier of the factory and where a person has been named as the manager of the factory under the Factories Act, 1948 (63 of 1948) the person so named;
(iii) in a mine, the owner or agent of the mine and where a person has been named as the manager of the mine, the person so named;
(iv) in any other establishment, any person responsible for the supervision and control of the establishment.
Even the company can be a PE. It's depends on how you take it. The company can assume its establishment in the premises of the school for repair work since it has issued the work order and responsible for supervision and control of the establishment i.e. repair work.
QUOTE=saswatabanerjee;2058044]
I do not think that the same level if compliance enforcement is required.[/QUOTE]
Under what provisions such relaxation?
This submission is to have more clarity on subject and nothing else.
From India, Mumbai
2556However, I have to differ with one of the senior members Saswata ji, with due respect to him.
"establishment" under CLRA means--
(i) any office or department of the Government or a local authority, or
(ii) any place where any industry, trade, business, manufacture or occupation is carried on.
On what basis we can say the school where the repair work is being done is not an establishment?
QUOTE=saswatabanerjee;2058044]
Even if it were to be, the principal employer would not be this company but the school management.
[/QUOTE]
"principal employer" under CLRA means--
(i) in relation to any office or department of the Government or a local authority, the head of that office or department or such other officer as the Government or the local authority, as the case may be, may specify in this behalf;
(ii) in a factory, the owner or occupier of the factory and where a person has been named as the manager of the factory under the Factories Act, 1948 (63 of 1948) the person so named;
(iii) in a mine, the owner or agent of the mine and where a person has been named as the manager of the mine, the person so named;
(iv) in any other establishment, any person responsible for the supervision and control of the establishment.
Even the company can be a PE. It's depends on how you take it. The company can assume its establishment in the premises of the school for repair work since it has issued the work order and responsible for supervision and control of the establishment i.e. repair work.
QUOTE=saswatabanerjee;2058044]
I do not think that the same level if compliance enforcement is required.[/QUOTE]
Under what provisions such relaxation?
This submission is to have more clarity on subject and nothing else.
From India, Mumbai
I do not think that the same level if compliance enforcement is required. Under what provisions such relaxation? This submission is to have more clarity on subject and nothing else.
From India, Mumbai
From India, Mumbai
Dear Saptarshi
Coming back to your original query; below is a brief of the suggestions, on the applicability of Labour laws in your case :
- The venue where the work is done; like inside the factory premises or in any open areas or any other areas (for example: loading and unloading material from and to the nearest rail-head - which may not lie within the premises of the company), does not make any difference to the liability of the Laws.
- In other words, the Principal Employer (having awarded the work to a contractor) can nor ESCAPE his liability under thee Act; either on the pretext of -
- the work is not being done inside his premises, (if this is the case, every co will take their work outside their premises or hire other's premises), or
- he has NO INFORMATION on how the work is being carried out !! Ignorance of the Law or simply saying "One is not aware" ca not be an excuse under the Law and does not allow anyone to ESCAPE ONE'S LIABILITIES.
Thus the relationship and obligations of Principal Employer continues irrespective of the fact where the work is being carried out, whether it is:
- out of the premises,
- in an existing school
- or an open ground, etc.
Hope it helps in clarifying your doubts, and avoiding non-compliances of any such Laws.
(Although several CSR work in recent times, by some companies, are more of a scam conducted for embezzlement of funds or Publicity, with the collusion of several agencies involved; rather than genuine work of philanthropy; ANY VIOLATION OF LAW can not be suggested or recommended).
Warm regards.
From India, Delhi
Coming back to your original query; below is a brief of the suggestions, on the applicability of Labour laws in your case :
- The venue where the work is done; like inside the factory premises or in any open areas or any other areas (for example: loading and unloading material from and to the nearest rail-head - which may not lie within the premises of the company), does not make any difference to the liability of the Laws.
- In other words, the Principal Employer (having awarded the work to a contractor) can nor ESCAPE his liability under thee Act; either on the pretext of -
- the work is not being done inside his premises, (if this is the case, every co will take their work outside their premises or hire other's premises), or
- he has NO INFORMATION on how the work is being carried out !! Ignorance of the Law or simply saying "One is not aware" ca not be an excuse under the Law and does not allow anyone to ESCAPE ONE'S LIABILITIES.
Thus the relationship and obligations of Principal Employer continues irrespective of the fact where the work is being carried out, whether it is:
- out of the premises,
- in an existing school
- or an open ground, etc.
Hope it helps in clarifying your doubts, and avoiding non-compliances of any such Laws.
(Although several CSR work in recent times, by some companies, are more of a scam conducted for embezzlement of funds or Publicity, with the collusion of several agencies involved; rather than genuine work of philanthropy; ANY VIOLATION OF LAW can not be suggested or recommended).
Warm regards.
From India, Delhi
Under what provisions such relaxation?
This submission is to have more clarity on subject and nothing else.[/QUOTE][/QUOTE]
Dear Mr. Banerjee,
I would like put my submissions in this matter which are as follows:
1) Whether it is factory, establishment or site Principal Employer is always responsible for enforcing compliance as while issuing Form V he undertakes to follow provisions of the CL(RA) Act (Pl refer contents of Form V), PE has to ensure that contractor is complying with applicable laws.
2) Enforcing/ensuring safe working environment thru contractor is also responsibility of PE.
3) It is correct that legal/ criminal responsibility for any violation with respect to safety & compliance will go to contractor instead of PE & only financial Liability may come to PE.
4) PE has to ensure that workmen are paid as per applicable rates within stipulated timeline.
5) Ensuring social security for workmen vide ESI, Employees' Compensation & EPF is also responsibility of PE.
6) Taking due care, ensuring maintenance of relevant records, ensuring submission & deposition are also part of PE's responsibility.
Pl note that authorities may approach PE for ensuring compliance's at site in case sub-contractors' not complying with applicable Labour laws.
PE can't escape himself by stating that its not a factory/ establishment etc. as "Ignorance of law has no excuse"
It is better to be safe then sorry.
From India, New Delhi
This submission is to have more clarity on subject and nothing else.[/QUOTE][/QUOTE]
Dear Mr. Banerjee,
I would like put my submissions in this matter which are as follows:
1) Whether it is factory, establishment or site Principal Employer is always responsible for enforcing compliance as while issuing Form V he undertakes to follow provisions of the CL(RA) Act (Pl refer contents of Form V), PE has to ensure that contractor is complying with applicable laws.
2) Enforcing/ensuring safe working environment thru contractor is also responsibility of PE.
3) It is correct that legal/ criminal responsibility for any violation with respect to safety & compliance will go to contractor instead of PE & only financial Liability may come to PE.
4) PE has to ensure that workmen are paid as per applicable rates within stipulated timeline.
5) Ensuring social security for workmen vide ESI, Employees' Compensation & EPF is also responsibility of PE.
6) Taking due care, ensuring maintenance of relevant records, ensuring submission & deposition are also part of PE's responsibility.
Pl note that authorities may approach PE for ensuring compliance's at site in case sub-contractors' not complying with applicable Labour laws.
PE can't escape himself by stating that its not a factory/ establishment etc. as "Ignorance of law has no excuse"
It is better to be safe then sorry.
From India, New Delhi
There is a specific clause in contract labour act (definition of contractor worker), which clearly excludes the workers who are working outside the said premises from the coverage of contract labour act. The wording used us "out worker"
That is why most companies use vendors to do part of manufacturing and sub assemblies. Because they do not come under contract labour. If the work is done outside the premises under control of the principal employer, it does not come under the contract labour act and the compliances required are not applicable.
There are a number of judgements in support of this.
From India, Mumbai
That is why most companies use vendors to do part of manufacturing and sub assemblies. Because they do not come under contract labour. If the work is done outside the premises under control of the principal employer, it does not come under the contract labour act and the compliances required are not applicable.
There are a number of judgements in support of this.
From India, Mumbai
Dear Mr. Banerjee,
You are clubbing two issues here, we are referring to engagement of contract workmen for CSR & related issues while you are unnecessarily adding manufacturing and sub assemblies by vendor which they normally do in their premises & such activities are suppose to be considered as mere supplying of goods nothing else.
I sincerely request you to please interpret definition of contractor in right perspective and also note that definition of contractor also includes sub-contractors.
You are also requested to share case laws.
From India, New Delhi
You are clubbing two issues here, we are referring to engagement of contract workmen for CSR & related issues while you are unnecessarily adding manufacturing and sub assemblies by vendor which they normally do in their premises & such activities are suppose to be considered as mere supplying of goods nothing else.
I sincerely request you to please interpret definition of contractor in right perspective and also note that definition of contractor also includes sub-contractors.
You are also requested to share case laws.
From India, New Delhi
Dear Shri. Saswata ji, Your discussion seems to be out of context. Also it seems you have misunderstood the term "out-worker" as defined in section 2 (i) (C).
From India, Mumbai
From India, Mumbai
I agree with the comments of Mr. Kapil Dev Singh and Mr. Koragaonkar.
Supplying of goods and sevices; as in outsourcing of services; is different from the work undertaken by the company and assigned to its contractors under a Work Order.
In the latter case; even from the view of Civil and Criminal Laws (apart from the specific Acts of Labour Laws); the Principal Employer can not ESCAPE ITS "VICARIOUS LIABILITIES."
This is the reason (or logic) that in Bhopal Gas Tragedy, Warren Andersen, the Chairman and CEO of Union Carbide Corporation (UCC) in USA could not escape their vicarious liabilities, and were hounded under the Law, as it was under their control the Indian subsidiary Union Carbide of India Ltd (UCIL) functioned.
If a company is ethical and respects the Laws in spirit; then it should not even attempt to think of ways or loopholes to avoid legal liabilities; else there are violations galore that one comes across in news everyday.
Warm regards.
From India, Delhi
Supplying of goods and sevices; as in outsourcing of services; is different from the work undertaken by the company and assigned to its contractors under a Work Order.
In the latter case; even from the view of Civil and Criminal Laws (apart from the specific Acts of Labour Laws); the Principal Employer can not ESCAPE ITS "VICARIOUS LIABILITIES."
This is the reason (or logic) that in Bhopal Gas Tragedy, Warren Andersen, the Chairman and CEO of Union Carbide Corporation (UCC) in USA could not escape their vicarious liabilities, and were hounded under the Law, as it was under their control the Indian subsidiary Union Carbide of India Ltd (UCIL) functioned.
If a company is ethical and respects the Laws in spirit; then it should not even attempt to think of ways or loopholes to avoid legal liabilities; else there are violations galore that one comes across in news everyday.
Warm regards.
From India, Delhi
Dear Saswata ji,
Thank u very much for giving me an opportunity to post the meaning of out-worker as defined u/r CLRA.
Out-worker is a person to whom any article & material is given out by or on b/o PE to be made up, cleaned, washed, altered, ornamented, finished, repaired, adapted or otherwise processed for sale for the purpose of trade / business of PE. This process is to be carried out either at home of out-worker or some other place not u/r control & management of PE.
From India, Mumbai
Thank u very much for giving me an opportunity to post the meaning of out-worker as defined u/r CLRA.
Out-worker is a person to whom any article & material is given out by or on b/o PE to be made up, cleaned, washed, altered, ornamented, finished, repaired, adapted or otherwise processed for sale for the purpose of trade / business of PE. This process is to be carried out either at home of out-worker or some other place not u/r control & management of PE.
From India, Mumbai
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Amended Labor Laws.doc
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