Dear Mr K P
To decide whether a particular person is workman or Not, we have to consider the nature of his duty. Say If a person supervise/manage the people at work, sanction their leave, plan their shift, recommend the promotions, punishments, apprisals etc. then he is not a workman. Merely he is appointed in staff category & his salary is higher are not the sufficient factors to decide he is workman or not not.The nature of duty & managerial capacity rights are important factors.
Regards
S D Patil
From India, Kolhapur
30To decide whether a particular person is workman or Not, we have to consider the nature of his duty. Say If a person supervise/manage the people at work, sanction their leave, plan their shift, recommend the promotions, punishments, apprisals etc. then he is not a workman. Merely he is appointed in staff category & his salary is higher are not the sufficient factors to decide he is workman or not not.The nature of duty & managerial capacity rights are important factors.
Regards
S D Patil
From India, Kolhapur
Eligibility of "Departmental Manager" for overtime under Factory Act, 1948
Section 59 says that:
Where a worker works in a factory for more than nine hours in any day or for more than forty-eight hours in any week, he shall, in respect of overtime work, be entitled to wages at the rate of twice his ordinary rate of wages.
Now it is important to know who falls under definition of worker. Under Factory Act 1948 there are 3 category of person i.e.
1. Occupier under Section 2 (n) of The Factory Act, 1948.
1. Manager under Rule of The Factory Rules of concern state.
2. Worker under Section 2 (l) of The Factory Act, 1948.
Here definition of Manager under Rule 2 (l) of The Punjab Factory Rules, 1952 does not include departmental manager like quality manager or HR Manager etc. because appointment intimation of such manger do not forwarded to Factory Inspector by occupier under section 7 (4) of factories Act, 1948, so we can conclude that departmental manager are different from Manager under Rule of Factory Rules.
It is important to understand position of departmental manager under Factories Act, 1942. As per my understanding we cannot import definition of workman under Section 2 (s) from the Industrial Dispute Act,1947 reason of this is objective of both Acts are entirely different.
The main object of the Factories Act, 1948 is to ensure adequate safety measures and to promote the health and welfare of the workers employed in factories whereas The Industrial Disputes Act, 1947 makes provision for the investigation and settlement of industrial disputes and for certain other purposes.
This is important to find categorization of departmental manager under Factories law only. We have to check definition of worker minutely because departmental manager cannot be Occupier under Section 2 (n) of The Factory Act, 1948 or Manager under Rule 2 (l) of The Punjab Factory Rules, 1952.
There is only category left under Factories Act, 1948 i.e. “Worker” means a person employed directly or by or through any agency (including a contractor) with or without knowledge of the principal employer, whether for remuneration or not, in any manufacturing process, or in any other kind or work incidental to, or connected with, the manufacturing process or the subject of the manufacturing process but does not include any member of the armed forces of the Union. [Section 2(1)]
The definition contains following ingredients:
There should be an ‘employed person’ meaning of the word “employed”: The concept of “employment” involves three ingredients, viz. employer, employee, and contract of employment. The ‘employer’ is one who employs, i.e., one who engages the services of other persons. The ‘employee’ is one who works for another for hire. Above understanding comes from case law of Chintaman Rao v. State of M.P. AIR 1958 S.C. 388 which said that:
The employment is the contract of service between employer and employee where under the employee agrees to serve the employer subject to his control and supervision. The prima facie test for determination of the relationship between the employer and employee is the existence of the right of the employer to supervise and control the work done by the employee not only in the matter of directing what work the employee is to do but also the manner in which he shall do his work.
Employed in work incidental to process: This clause is very important because it enlarges the scope of the term, manufacturing process.
Following illustrative cases will clarify the meaning of this clause:
(1) In Shinde v. Bombay Telephones, 1968 (11) LLJ 74, it was held that whether the workman stands outside the factory premises or inside it, if his duties are connected with the business of the factory or connected with the factory, he is really employed in the factory and in connection with the factory.
(2) In Works Manager, Central Rly. Workshop Jhansi v. Vishwanath and others, it was held that the definition of worker does not exclude those employees who are entrusted solely with clerical duties, if they otherwise fall within the definition of ‘worker. Timekeepers employed to maintain attendance of the staff, job cards particularly of the various jobs under operation, and time- sheets of the staff engaged in production of spare parts, repairs, etc.; and head time-keeper who supervise the work of the time-keepers, perform work which is incidental to or connected with the manufacturing process carried on in the factory and would therefore, fall within the definition of the worker in the Act.
Now it is very important to understand nature of work of departmental manager. Whether departmental manager works under supervision and control of employer or departmental manager have liberty to work as per his discretion.
In Shankar Balaji Waje v. State of Maharashtra, AIR 1963 Bom. 236, the question arose whether bidi roller is a worker or not. The management simply says that the labourer is to produce bidies rolled in a certain form. How the labourer carried out the work is his own concern and is not controlled by the management, which is concerned only with getting bidies rolled in a particular style with certain contents. The Supreme Court held that the bidi roller is not a worker.
The whole conception of service does not fit in well with a servant who has full liberty to attend to his work according to his pleasure and not according to the orders of his master. Where the employer did retain direction and control over the workers both in manner of the nature of the work as ‘also its details they will be held as workers.
In State of Kerala v. R.E.DSouza; Women and girls employed in peeling, washing etc., of consignment of prawns brought on the premises at any time of the day or night, without any specified hours of work and without any control over their attendance or the nature, manner or quantum of their work and who after finishing the work go to other premises in the locality where similar consignment of prawns are received, are not Workers.
So deciding factor about category of departmental manager whether falls under definition of worker or not; working conditions under employment are required to examine like:
1. Whether departmental manager working hours is as per his own sweet will or not?
2. Whether departmental manager working method is out of employer supervision or not?
3. Whether departmental manager working is out of employer control or not?
If answer of above three question's answer are "No"; then departmental manager falls under definition of worker if his works within factory for manufacturing process or not.
If answer of above three question's answer are "Yes"; then departmental manager do not falls under definition of worker even he works within factory for manufacturing process.
In question of whether all employees are workers court said as below:
Since the word employee has not been defined in the Act it follows that all the workers within the ambit of the definition under the factories Act would be employees, while all employees would not be workers (Harbanslal v. State of Karnataka, (1976)1 Karnt.J.111).
All persons employed in or in connection with a factory whether or not employed
as workers are entitled to the benefits of the Act (Union of India v. G.M. Kokil, 1984 SCC (L&S) 631).
Once it is established prima facie that premises in question is a factory within the meaning of the Act, the provisions of Section 103 as to the presumption of employment are immediately attracted and onus to prove the contrary shifts to the accused (Prafulbhai Patadia v. The State, 1976 (12) E.L.R. 329).
From Malaysia, Seremban
Section 59 says that:
Where a worker works in a factory for more than nine hours in any day or for more than forty-eight hours in any week, he shall, in respect of overtime work, be entitled to wages at the rate of twice his ordinary rate of wages.
Now it is important to know who falls under definition of worker. Under Factory Act 1948 there are 3 category of person i.e.
1. Occupier under Section 2 (n) of The Factory Act, 1948.
1. Manager under Rule of The Factory Rules of concern state.
2. Worker under Section 2 (l) of The Factory Act, 1948.
Here definition of Manager under Rule 2 (l) of The Punjab Factory Rules, 1952 does not include departmental manager like quality manager or HR Manager etc. because appointment intimation of such manger do not forwarded to Factory Inspector by occupier under section 7 (4) of factories Act, 1948, so we can conclude that departmental manager are different from Manager under Rule of Factory Rules.
It is important to understand position of departmental manager under Factories Act, 1942. As per my understanding we cannot import definition of workman under Section 2 (s) from the Industrial Dispute Act,1947 reason of this is objective of both Acts are entirely different.
The main object of the Factories Act, 1948 is to ensure adequate safety measures and to promote the health and welfare of the workers employed in factories whereas The Industrial Disputes Act, 1947 makes provision for the investigation and settlement of industrial disputes and for certain other purposes.
This is important to find categorization of departmental manager under Factories law only. We have to check definition of worker minutely because departmental manager cannot be Occupier under Section 2 (n) of The Factory Act, 1948 or Manager under Rule 2 (l) of The Punjab Factory Rules, 1952.
There is only category left under Factories Act, 1948 i.e. “Worker” means a person employed directly or by or through any agency (including a contractor) with or without knowledge of the principal employer, whether for remuneration or not, in any manufacturing process, or in any other kind or work incidental to, or connected with, the manufacturing process or the subject of the manufacturing process but does not include any member of the armed forces of the Union. [Section 2(1)]
The definition contains following ingredients:
There should be an ‘employed person’ meaning of the word “employed”: The concept of “employment” involves three ingredients, viz. employer, employee, and contract of employment. The ‘employer’ is one who employs, i.e., one who engages the services of other persons. The ‘employee’ is one who works for another for hire. Above understanding comes from case law of Chintaman Rao v. State of M.P. AIR 1958 S.C. 388 which said that:
The employment is the contract of service between employer and employee where under the employee agrees to serve the employer subject to his control and supervision. The prima facie test for determination of the relationship between the employer and employee is the existence of the right of the employer to supervise and control the work done by the employee not only in the matter of directing what work the employee is to do but also the manner in which he shall do his work.
Employed in work incidental to process: This clause is very important because it enlarges the scope of the term, manufacturing process.
Following illustrative cases will clarify the meaning of this clause:
(1) In Shinde v. Bombay Telephones, 1968 (11) LLJ 74, it was held that whether the workman stands outside the factory premises or inside it, if his duties are connected with the business of the factory or connected with the factory, he is really employed in the factory and in connection with the factory.
(2) In Works Manager, Central Rly. Workshop Jhansi v. Vishwanath and others, it was held that the definition of worker does not exclude those employees who are entrusted solely with clerical duties, if they otherwise fall within the definition of ‘worker. Timekeepers employed to maintain attendance of the staff, job cards particularly of the various jobs under operation, and time- sheets of the staff engaged in production of spare parts, repairs, etc.; and head time-keeper who supervise the work of the time-keepers, perform work which is incidental to or connected with the manufacturing process carried on in the factory and would therefore, fall within the definition of the worker in the Act.
Now it is very important to understand nature of work of departmental manager. Whether departmental manager works under supervision and control of employer or departmental manager have liberty to work as per his discretion.
In Shankar Balaji Waje v. State of Maharashtra, AIR 1963 Bom. 236, the question arose whether bidi roller is a worker or not. The management simply says that the labourer is to produce bidies rolled in a certain form. How the labourer carried out the work is his own concern and is not controlled by the management, which is concerned only with getting bidies rolled in a particular style with certain contents. The Supreme Court held that the bidi roller is not a worker.
The whole conception of service does not fit in well with a servant who has full liberty to attend to his work according to his pleasure and not according to the orders of his master. Where the employer did retain direction and control over the workers both in manner of the nature of the work as ‘also its details they will be held as workers.
In State of Kerala v. R.E.DSouza; Women and girls employed in peeling, washing etc., of consignment of prawns brought on the premises at any time of the day or night, without any specified hours of work and without any control over their attendance or the nature, manner or quantum of their work and who after finishing the work go to other premises in the locality where similar consignment of prawns are received, are not Workers.
So deciding factor about category of departmental manager whether falls under definition of worker or not; working conditions under employment are required to examine like:
1. Whether departmental manager working hours is as per his own sweet will or not?
2. Whether departmental manager working method is out of employer supervision or not?
3. Whether departmental manager working is out of employer control or not?
If answer of above three question's answer are "No"; then departmental manager falls under definition of worker if his works within factory for manufacturing process or not.
If answer of above three question's answer are "Yes"; then departmental manager do not falls under definition of worker even he works within factory for manufacturing process.
In question of whether all employees are workers court said as below:
Since the word employee has not been defined in the Act it follows that all the workers within the ambit of the definition under the factories Act would be employees, while all employees would not be workers (Harbanslal v. State of Karnataka, (1976)1 Karnt.J.111).
All persons employed in or in connection with a factory whether or not employed
as workers are entitled to the benefits of the Act (Union of India v. G.M. Kokil, 1984 SCC (L&S) 631).
Once it is established prima facie that premises in question is a factory within the meaning of the Act, the provisions of Section 103 as to the presumption of employment are immediately attracted and onus to prove the contrary shifts to the accused (Prafulbhai Patadia v. The State, 1976 (12) E.L.R. 329).
From Malaysia, Seremban
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Average annual hours actually worked per worker.rar
NOTIFICATION_PF _INTERNATIONAL WORKER.pdf