Dear All
NEXT IMMEDIATE LEGAL QUESTIONS FOR INDIAN STAFFING OR TEMPING COMPANIES
In the next few posts we will be dealing with issues concerning staffing Company Management and the Temporary Employee.to begin with Statutory compliance of Section 9 C of the Industrial Disputes Act will be required consequent to the Historic September 2010 amendments to the Industrial Disputes Act.
GRM -Grievance Redressal Machinery
9C. (1) Every industrial establishment employing twenty or more workmen shall have one or more Grievance Redressal Committee for the resolution of disputes arising out of individual grievances.
(2) The Grievance Redressal Committee shall consist of equal number of members from the employer and the workmen.
(3) The chairperson of the Grievance Redressal Committee shall be selected from the employer and from among the workmen alternatively on rotation basis every year.
(4) The total number of members of the Grievance Redressal Committee shall not exceed more than six:
Provided that there shall be, as far as practicable one woman member if the Grievance Redressal Committee has two members and in case the number of members are more than two, the number of women members may be increased proportionately.
(5) Notwithstanding anything contained in this section, the setting up of Grievance Redressal Committee shall not affect the right of the workman to raise industrial dispute on the same matter under the provisions of this Act.
(6) The Grievance Redressal Committee may complete its proceedings within thirty days on receipt of a written application by or on behalf of the aggrieved party.
(7) The workman who is aggrieved of the decision of the Grievance Redressal Committee may prefer an appeal to the employer against the decision of Grievance Redressal Committee and the employer shall, within one month from the date of receipt of such appeal, dispose off the same and send a copy of his decision to the workman concerned.
The GRM is meant for resolving disputes arising out of individual grievances of the Temporary Employees .
An Appeal will lie to the Management of the Staffing or Temping Company in case the Temporary Employee is aggrieved by the decision of the GRM.
Time frame of 30 days for resolution is given both to the GRM and the Appellate authority i.e Management.
With Regards
V.Sounder Rajan
Advocates & Notaries & Legal Consultants
E-mail : rajanassociates@eth,net,
Mobile : 9025792684-9025792634
From India, Bangalore
50NEXT IMMEDIATE LEGAL QUESTIONS FOR INDIAN STAFFING OR TEMPING COMPANIES
In the next few posts we will be dealing with issues concerning staffing Company Management and the Temporary Employee.to begin with Statutory compliance of Section 9 C of the Industrial Disputes Act will be required consequent to the Historic September 2010 amendments to the Industrial Disputes Act.
GRM -Grievance Redressal Machinery
9C. (1) Every industrial establishment employing twenty or more workmen shall have one or more Grievance Redressal Committee for the resolution of disputes arising out of individual grievances.
(2) The Grievance Redressal Committee shall consist of equal number of members from the employer and the workmen.
(3) The chairperson of the Grievance Redressal Committee shall be selected from the employer and from among the workmen alternatively on rotation basis every year.
(4) The total number of members of the Grievance Redressal Committee shall not exceed more than six:
Provided that there shall be, as far as practicable one woman member if the Grievance Redressal Committee has two members and in case the number of members are more than two, the number of women members may be increased proportionately.
(5) Notwithstanding anything contained in this section, the setting up of Grievance Redressal Committee shall not affect the right of the workman to raise industrial dispute on the same matter under the provisions of this Act.
(6) The Grievance Redressal Committee may complete its proceedings within thirty days on receipt of a written application by or on behalf of the aggrieved party.
(7) The workman who is aggrieved of the decision of the Grievance Redressal Committee may prefer an appeal to the employer against the decision of Grievance Redressal Committee and the employer shall, within one month from the date of receipt of such appeal, dispose off the same and send a copy of his decision to the workman concerned.
The GRM is meant for resolving disputes arising out of individual grievances of the Temporary Employees .
An Appeal will lie to the Management of the Staffing or Temping Company in case the Temporary Employee is aggrieved by the decision of the GRM.
Time frame of 30 days for resolution is given both to the GRM and the Appellate authority i.e Management.
With Regards
V.Sounder Rajan
Advocates & Notaries & Legal Consultants
E-mail : rajanassociates@eth,net,
Mobile : 9025792684-9025792634
From India, Bangalore
Subject: ERA 2011- Eighth Annual Convention
Dear All
We were invited to the ERA 2011-8 th Annual Convention -The convention theme being "Engaging the Unemployable Talent-Vision 2040 -Young India a double edged Sword held at Le Meridian Hotel Chennai between 18 th and 19 th March-2011.It was a great show organized by Mr Veerendra Mathur -President -ERA ,Mr Pramod Thilakan-,Dr K.Thirugnanam -Convenor ERA -Chennai Chapter and his Team .
The Topics deliberated on 18 th March were:
Harnessing Talent -Our march towards the future .
Compensation -A 3D Approach
New Age Leaders
Current Trends in Freshers Recruitment .
Encouraging Entrepreneurs in Recruitment and HR Industry.
On 19 th ;
Business Ethics
Branding Yourself -Employer of Choice .
Using Technology for effective Recruitment
Search Strategy
Account Management in Recruitment Industry
Strategies of Head Hunting -Then /Now /Future
Focus on the Risk -legal Aspects
Succession Planning
Attracting and Retaining Talent .
We had the chance to address the top notch HR professionals of the Recruiting and Staffing Industry on 19th March 2011 was -"Focus on the Risk- Legal Aspects".A major issue being Service Tax – Point of Taxation Rules, 2011to take effect from 1-4-2011 was raised for ERA to take it up with the Government .Of course ERA needs the support of all the players in the Recruiting and Staffing Industry.
The Convention gave an opportunity to the participants to understand the changing trends in the Industry and it ended on a promising note positioning the Recruiting and Staffing Industry for a sustained growth. If you were not there you really missed the emerging trends in the Industry.
Well done ERA and their Team and also thanks to ERA for taking us on board as their Honorary Legal Adviser .
A Memorable Convention of ERA held on the Historic day of the Full moon being closest to the Earth .
With Regards
V.Sounder Rajan
Advocates & Notaries
Legal Consultants
E-mail : rajanassociates@eth,net,
Mobile : 9025792684-9025792634
From India, Bangalore
Dear All
We were invited to the ERA 2011-8 th Annual Convention -The convention theme being "Engaging the Unemployable Talent-Vision 2040 -Young India a double edged Sword held at Le Meridian Hotel Chennai between 18 th and 19 th March-2011.It was a great show organized by Mr Veerendra Mathur -President -ERA ,Mr Pramod Thilakan-,Dr K.Thirugnanam -Convenor ERA -Chennai Chapter and his Team .
The Topics deliberated on 18 th March were:
Harnessing Talent -Our march towards the future .
Compensation -A 3D Approach
New Age Leaders
Current Trends in Freshers Recruitment .
Encouraging Entrepreneurs in Recruitment and HR Industry.
On 19 th ;
Business Ethics
Branding Yourself -Employer of Choice .
Using Technology for effective Recruitment
Search Strategy
Account Management in Recruitment Industry
Strategies of Head Hunting -Then /Now /Future
Focus on the Risk -legal Aspects
Succession Planning
Attracting and Retaining Talent .
We had the chance to address the top notch HR professionals of the Recruiting and Staffing Industry on 19th March 2011 was -"Focus on the Risk- Legal Aspects".A major issue being Service Tax – Point of Taxation Rules, 2011to take effect from 1-4-2011 was raised for ERA to take it up with the Government .Of course ERA needs the support of all the players in the Recruiting and Staffing Industry.
The Convention gave an opportunity to the participants to understand the changing trends in the Industry and it ended on a promising note positioning the Recruiting and Staffing Industry for a sustained growth. If you were not there you really missed the emerging trends in the Industry.
Well done ERA and their Team and also thanks to ERA for taking us on board as their Honorary Legal Adviser .
A Memorable Convention of ERA held on the Historic day of the Full moon being closest to the Earth .
With Regards
V.Sounder Rajan
Advocates & Notaries
Legal Consultants
E-mail : rajanassociates@eth,net,
Mobile : 9025792684-9025792634
From India, Bangalore
Dear All
NEXT IMMEDIATE LEGAL QUESTIONS FOR INDIAN STAFFING OR TEMPING COMPANIES
Sub :Temporary Employee Welfare
Placing Temporary Employee Welfare/ Satisfaction on the priority list will be the need for the hour. .The Staffing Industry deploying Temporary Employees in thousands to their Clients have to build a strong internal mechanism .
An internal mechanism/Nodal Agency needs to be established for the following :
(a)to establish contacts and hold consultations with a view to maintaining harmonious relations between the Staffing Entity management and Temporary Employees ;
(b)to bring to the notice of the Staffing Entity management the grievances of Temporary Employees , individual as well as collective, with a view to securing their expeditious redress and to act as a liaison officer between the management and labour ;
( c) to study and understand the point of view of Temporary Employees in order to help the Staffing Entity management to shape and formulate labour policies and to interpret these policies and to interpret these policies to the Temporary Employees in a language they can understand;
(d)to watch industrial relations with a view to using influence in the event of a dispute between the Staffing Entity management and Temporary Employees and to help to bring about a settlement by persuasive effort;
(e)to advise on fulfillment by time management and the concerned departments of the Staffing Entity of obligations, statutory or otherwise, concerning regulation of working hours, maternity benefit, medical care, compensation for injuries and sickness and other welfare and social benefit measures;
(f)to advise and assist the management in the fulfillment of its obligations, statutory or otherwise, concerning prevention of personal injuries and maintaining a safe work environment,
(g)to promote relations between the concerned departments of the Staffing Entity and Temporary Employees which will bring about productive efficiency as well as amelioration in the working conditions and to help Temporary Employees to adjust and adapt themselves to their working environments;
(h)to encourage provision of amenities at the Clients place ,sickness gratuity payments, and legal advice to Temporary Employees ;
(i)to help the Staffing Entity management in regulating the grant of leave with wages and explain to the Temporary Employees the provisions relating to leave with wages and other leave privileges and to guide the Temporary Employees in the matter of submission of application for grant of leave for regulating authorized absence;
(j) to advise on provision of welfare facilities, , social and recreational facilities, sanitation, advice on individual personnel problems and education of children;
(k)to suggest measures which will serve to raise the standard of living of Temporary Employees and in general promote their well-being.
Our future post will be indicative of the way forward and the legal sanction if any available for it.
With Regards
V.Sounder Rajan
Advocates & Notaries & Legal Consultants
E-mail : rajanassociates@eth,net,
From India, Bangalore
NEXT IMMEDIATE LEGAL QUESTIONS FOR INDIAN STAFFING OR TEMPING COMPANIES
Sub :Temporary Employee Welfare
Placing Temporary Employee Welfare/ Satisfaction on the priority list will be the need for the hour. .The Staffing Industry deploying Temporary Employees in thousands to their Clients have to build a strong internal mechanism .
An internal mechanism/Nodal Agency needs to be established for the following :
(a)to establish contacts and hold consultations with a view to maintaining harmonious relations between the Staffing Entity management and Temporary Employees ;
(b)to bring to the notice of the Staffing Entity management the grievances of Temporary Employees , individual as well as collective, with a view to securing their expeditious redress and to act as a liaison officer between the management and labour ;
( c) to study and understand the point of view of Temporary Employees in order to help the Staffing Entity management to shape and formulate labour policies and to interpret these policies and to interpret these policies to the Temporary Employees in a language they can understand;
(d)to watch industrial relations with a view to using influence in the event of a dispute between the Staffing Entity management and Temporary Employees and to help to bring about a settlement by persuasive effort;
(e)to advise on fulfillment by time management and the concerned departments of the Staffing Entity of obligations, statutory or otherwise, concerning regulation of working hours, maternity benefit, medical care, compensation for injuries and sickness and other welfare and social benefit measures;
(f)to advise and assist the management in the fulfillment of its obligations, statutory or otherwise, concerning prevention of personal injuries and maintaining a safe work environment,
(g)to promote relations between the concerned departments of the Staffing Entity and Temporary Employees which will bring about productive efficiency as well as amelioration in the working conditions and to help Temporary Employees to adjust and adapt themselves to their working environments;
(h)to encourage provision of amenities at the Clients place ,sickness gratuity payments, and legal advice to Temporary Employees ;
(i)to help the Staffing Entity management in regulating the grant of leave with wages and explain to the Temporary Employees the provisions relating to leave with wages and other leave privileges and to guide the Temporary Employees in the matter of submission of application for grant of leave for regulating authorized absence;
(j) to advise on provision of welfare facilities, , social and recreational facilities, sanitation, advice on individual personnel problems and education of children;
(k)to suggest measures which will serve to raise the standard of living of Temporary Employees and in general promote their well-being.
Our future post will be indicative of the way forward and the legal sanction if any available for it.
With Regards
V.Sounder Rajan
Advocates & Notaries & Legal Consultants
E-mail : rajanassociates@eth,net,
From India, Bangalore
Dear All
We had highlighted the Staffing Company need for evolving a process for Temporary Employee Welfare .
The roots of this aspect of monitoring and placing Employees Welfare at a prime place is found in the Statute book viz Factories Act Section 49 provides for the following :
49. Welfare officers.
(1) In every factory wherein five hundred or more workers are ordinarily employed the occupier shall employ in the factory such number of welfare officers as may be prescribed.
(2) The State Government may prescribe the duties, qualifications and conditions of service of officers employed under sub- section (1)
Taking the cue and beneficial provision in the Factories Act a similar analogy can be adopted in the Staffing Industry and inducting it for the Staffing Industry .
Duties of Temporary Employee Welfare Officers .- The duties of a Welfare Officer shall be -
(a)to establish contacts and hold consultations with a view to maintaining harmonious relations between the Staffing Entity management and Temporary Employees ;
(b)to bring to the notice of the Staffing Entity management the grievances of Temporary Employees , individual as well as collective, with a view to securing their expeditious redress and to act as a liaison officer between the management and labour ;
( c) to study and understand the point of view of labour in order to help the Staffing Entity management to shape and formulate labour policies and to interpret these policies and to interpret these policies to the Temporary Employees in a language they can understand;
(d)to watch industrial relations with a view to using his influence in the event of a dispute between the Staffing Entity management and Temporary Employees and to help to bring about a settlement by persuasive effort;
(e)to advise on fulfillment by time management and the concerned departments of the Staffing Entity of obligations, statutory or otherwise, concerning regulation of working hours, maternity benefit, medical care, compensation for injuries and sickness and other welfare and social benefit measures;
(f)to advise and assist the management in the fulfillment of its obligations, statutory or otherwise, concerning prevention of personal injuries and maintaining a safe work environment,
(g)to promote relations between the concerned departments of the Staffing Entity and Temporary Employees which will bring about productive efficiency as well as amelioration in the working conditions and to help Temporary Employees to adjust and adapt themselves to their working environments;
(h)to encourage provision of amenities at the Clients place ,sickness and benevolent scheme payments, pension and superannuation funds, gratuity payments, and legal advice to Temporary Employees ;
(i)to help the Staffing Entity management in regulating the grant of leave with wages and explain to the Temporary Employees the provisions relating to leave with wages and other leave privileges and to guide the Temporary Employees in the matter of submission of application for grant of leave for regulating authorized absence;
(j) to advise on provision of welfare facilities, , social and recreational facilities, sanitation, advice on individual personnel problems and education of children;
(k)to suggest measures which will serve to raise the standard of living of Temporary Employees and in general promote their well-being.
It is a normal practice that the Welfare officers so appointed should not deal with disciplinary cases or appear on behalf of the management against Temporary Employees and No Welfare Officer should deal with any disciplinary cases against Temporary Employees or appear before a conciliation officer in a court or tribunal on behalf of the Staffing Entity management against a worker or Temporary Employees . If the person employed as a Temporary Employee in the Staffing Industry voluntarily approaches the welfare officer in respect of a grievance arising out of any case of disciplinary action against him the prohibition can be waived.
Qualification of Temp Welfare Officers
Qualifications.- No person shall be eligible for appointment as welfare officer, unless he possesses the following qualifications, namely:-
1) (a) a Master’s Degree in Labour Management (or) a Bachelors Degree in Labour Management awarded by the Institute of Labour Studies, ; or
(b) a Post Graduate Degree or Diploma in Social Work, Social Science, Personnel Management, Labour Relations or Social Welfare with Labour Laws or Industrial Relations and Labour Welfare or Industrial Relations as a main subject, of any University or Institution recognized by the University Grants Commission for the purpose of its grant ; or
(c) a Post Graduate Diploma in Labour Administration awarded by the Institute of Labour Studies,; or
(d) a Post Graduate Diploma in Personnel Management, Industrial Relations and Labour Welfare awarded by Productivity Councils in States or any other Institutions recognized by the State Government for this purpose; or
(e) a Post Graduate Diploma in Labour Laws and Administrative Laws conducted by Law University ; or
(f) a Degree of any University or Institution recognized by the University Grants Commission for the purpose of its grant and a Diploma in Labour Laws awarded by the Indian Law Institute, New Delhi.
(2) adequate knowledge of the language spoken by the majority of the Temporary Employees in the Area of operation of the Staffing Business to which he is to be attached:
The CLRA Law may require changes to replicate the relevant provisions of the Factory Act to see the deployment of Temporary Employee Welfare Officers becoming a reality.
Great Staffing Industry Entity –Temporary Employee relationships are vital for the success of any Staffing Business. If the Temporary employees are not happy, there is no way that they will make the Staffing Company's Clients happy. The Staffing Company will be throwing their profits and business away to strive for a good working environment for the Temporary Employees.
If one perceives from the point of the Principal Employer a Staffing company retaining TWO will actually reduce the burden of the Principal Employer in resolving issues of Temps and TWO can be designated to monitor and solve them.Literally they will have a single contact . This may also be a plus point for that Staffing Company having TWO ”s.
With Regards
V.Sounder Rajan
Advocates & Notaries & Legal Consultants
E-mail : rajanassociates@eth,net,
From India, Bangalore
We had highlighted the Staffing Company need for evolving a process for Temporary Employee Welfare .
The roots of this aspect of monitoring and placing Employees Welfare at a prime place is found in the Statute book viz Factories Act Section 49 provides for the following :
49. Welfare officers.
(1) In every factory wherein five hundred or more workers are ordinarily employed the occupier shall employ in the factory such number of welfare officers as may be prescribed.
(2) The State Government may prescribe the duties, qualifications and conditions of service of officers employed under sub- section (1)
Taking the cue and beneficial provision in the Factories Act a similar analogy can be adopted in the Staffing Industry and inducting it for the Staffing Industry .
Duties of Temporary Employee Welfare Officers .- The duties of a Welfare Officer shall be -
(a)to establish contacts and hold consultations with a view to maintaining harmonious relations between the Staffing Entity management and Temporary Employees ;
(b)to bring to the notice of the Staffing Entity management the grievances of Temporary Employees , individual as well as collective, with a view to securing their expeditious redress and to act as a liaison officer between the management and labour ;
( c) to study and understand the point of view of labour in order to help the Staffing Entity management to shape and formulate labour policies and to interpret these policies and to interpret these policies to the Temporary Employees in a language they can understand;
(d)to watch industrial relations with a view to using his influence in the event of a dispute between the Staffing Entity management and Temporary Employees and to help to bring about a settlement by persuasive effort;
(e)to advise on fulfillment by time management and the concerned departments of the Staffing Entity of obligations, statutory or otherwise, concerning regulation of working hours, maternity benefit, medical care, compensation for injuries and sickness and other welfare and social benefit measures;
(f)to advise and assist the management in the fulfillment of its obligations, statutory or otherwise, concerning prevention of personal injuries and maintaining a safe work environment,
(g)to promote relations between the concerned departments of the Staffing Entity and Temporary Employees which will bring about productive efficiency as well as amelioration in the working conditions and to help Temporary Employees to adjust and adapt themselves to their working environments;
(h)to encourage provision of amenities at the Clients place ,sickness and benevolent scheme payments, pension and superannuation funds, gratuity payments, and legal advice to Temporary Employees ;
(i)to help the Staffing Entity management in regulating the grant of leave with wages and explain to the Temporary Employees the provisions relating to leave with wages and other leave privileges and to guide the Temporary Employees in the matter of submission of application for grant of leave for regulating authorized absence;
(j) to advise on provision of welfare facilities, , social and recreational facilities, sanitation, advice on individual personnel problems and education of children;
(k)to suggest measures which will serve to raise the standard of living of Temporary Employees and in general promote their well-being.
It is a normal practice that the Welfare officers so appointed should not deal with disciplinary cases or appear on behalf of the management against Temporary Employees and No Welfare Officer should deal with any disciplinary cases against Temporary Employees or appear before a conciliation officer in a court or tribunal on behalf of the Staffing Entity management against a worker or Temporary Employees . If the person employed as a Temporary Employee in the Staffing Industry voluntarily approaches the welfare officer in respect of a grievance arising out of any case of disciplinary action against him the prohibition can be waived.
Qualification of Temp Welfare Officers
Qualifications.- No person shall be eligible for appointment as welfare officer, unless he possesses the following qualifications, namely:-
1) (a) a Master’s Degree in Labour Management (or) a Bachelors Degree in Labour Management awarded by the Institute of Labour Studies, ; or
(b) a Post Graduate Degree or Diploma in Social Work, Social Science, Personnel Management, Labour Relations or Social Welfare with Labour Laws or Industrial Relations and Labour Welfare or Industrial Relations as a main subject, of any University or Institution recognized by the University Grants Commission for the purpose of its grant ; or
(c) a Post Graduate Diploma in Labour Administration awarded by the Institute of Labour Studies,; or
(d) a Post Graduate Diploma in Personnel Management, Industrial Relations and Labour Welfare awarded by Productivity Councils in States or any other Institutions recognized by the State Government for this purpose; or
(e) a Post Graduate Diploma in Labour Laws and Administrative Laws conducted by Law University ; or
(f) a Degree of any University or Institution recognized by the University Grants Commission for the purpose of its grant and a Diploma in Labour Laws awarded by the Indian Law Institute, New Delhi.
(2) adequate knowledge of the language spoken by the majority of the Temporary Employees in the Area of operation of the Staffing Business to which he is to be attached:
The CLRA Law may require changes to replicate the relevant provisions of the Factory Act to see the deployment of Temporary Employee Welfare Officers becoming a reality.
Great Staffing Industry Entity –Temporary Employee relationships are vital for the success of any Staffing Business. If the Temporary employees are not happy, there is no way that they will make the Staffing Company's Clients happy. The Staffing Company will be throwing their profits and business away to strive for a good working environment for the Temporary Employees.
If one perceives from the point of the Principal Employer a Staffing company retaining TWO will actually reduce the burden of the Principal Employer in resolving issues of Temps and TWO can be designated to monitor and solve them.Literally they will have a single contact . This may also be a plus point for that Staffing Company having TWO ”s.
With Regards
V.Sounder Rajan
Advocates & Notaries & Legal Consultants
E-mail : rajanassociates@eth,net,
From India, Bangalore
Dear All
Sub : Effect of the Recent Amendment- Sec 2 A of the Industrial Disputes Act - Sub Section (2) & (3) Direct reference of Dispute.
In one of our earlier Posts we had touched upon the second aspect of the recent historic amendments to the ID Act .
The following one which is in the nature of our view would touch upon another important aspect and whether the Staffing Entity Legal Department is well equipped to deal with its impact.
Earlier the Temporary Employee or Contract worker could not approach a Labour Court for disputes in relation to discharge, dismissal, termination or retrenchment without the assistance of a Labour Union. Now by the amendment he/she can approach the Labour court directly . This a drastic provision and will have a crippling effect on the Staffing Industry.
The remedy is:
1. First he/she has to make an application to the Labour Department Conciliation Officer.
2. If no action is taken by the Conciliation Officer then he/she can file an application to the Labour Court for adjudication of the Dispute.
3. Time limit for questioning all such disputes in relation to discharge, dismissal, termination or retrenchment is 3 years.
Issue for Staffing Industry:
1. Individual Employee grievance /disputes in relation to discharge, dismissal, termination or retrenchment is subject to Conciliation by Labour Officer and thereafter by Labour Court.
2. Will open the floodgates of Temporary /Contract Employee Litigation.
Tips for avoidance:
1. Need to have a strong Internal redressal mechanism thereby closing all issues internally.GRM-Grievance Redressal Machinery can resolve such issues.
2. Take Notices from individual Temporary employees and their Lawyers seriously and solve them immediately.Take expert Legal advice on each issue.
3. A pro-Temporary employee approach even without even consulting the Principal employer [Client] needs to be taken.
4. Because of the insertion of this provision a separate provision needs to be made out by way of contingent liability to cover such risks in the Staffing Company's Budget.
5. CEO /HOD should be vigilant on this and take direct action in resolving disputes.They must get weekly reports from their Compliance Head /Team on resolution.They must appoint an official directly reporting to them to monitor and secure compliance.In special cases they must take Independent unbiased opinion from an Ombudsman appointed for such purpose as there will be a tendency by the handling team to justify their action which could possibly end up in Claims.
6.Resolution of Disputes will confer a satisfaction on the disgruntled Temporary Employee /Contract Worker . Ultimately Human Capital is the one which gives returns for the Business. Temps are the ultimate bread winners .But they are also the unsung heroes.
In one of our future posts we will deal with the issue of Ombudsman and also the effect of the Amendments on Industry as such.
With Regards
V.Sounder Rajan
Advocates & Notaries & Legal Consultants
E-mail : rajanassociates@eth,net,
-9025792684-9025792634
From India, Bangalore
Sub : Effect of the Recent Amendment- Sec 2 A of the Industrial Disputes Act - Sub Section (2) & (3) Direct reference of Dispute.
In one of our earlier Posts we had touched upon the second aspect of the recent historic amendments to the ID Act .
The following one which is in the nature of our view would touch upon another important aspect and whether the Staffing Entity Legal Department is well equipped to deal with its impact.
Earlier the Temporary Employee or Contract worker could not approach a Labour Court for disputes in relation to discharge, dismissal, termination or retrenchment without the assistance of a Labour Union. Now by the amendment he/she can approach the Labour court directly . This a drastic provision and will have a crippling effect on the Staffing Industry.
The remedy is:
1. First he/she has to make an application to the Labour Department Conciliation Officer.
2. If no action is taken by the Conciliation Officer then he/she can file an application to the Labour Court for adjudication of the Dispute.
3. Time limit for questioning all such disputes in relation to discharge, dismissal, termination or retrenchment is 3 years.
Issue for Staffing Industry:
1. Individual Employee grievance /disputes in relation to discharge, dismissal, termination or retrenchment is subject to Conciliation by Labour Officer and thereafter by Labour Court.
2. Will open the floodgates of Temporary /Contract Employee Litigation.
Tips for avoidance:
1. Need to have a strong Internal redressal mechanism thereby closing all issues internally.GRM-Grievance Redressal Machinery can resolve such issues.
2. Take Notices from individual Temporary employees and their Lawyers seriously and solve them immediately.Take expert Legal advice on each issue.
3. A pro-Temporary employee approach even without even consulting the Principal employer [Client] needs to be taken.
4. Because of the insertion of this provision a separate provision needs to be made out by way of contingent liability to cover such risks in the Staffing Company's Budget.
5. CEO /HOD should be vigilant on this and take direct action in resolving disputes.They must get weekly reports from their Compliance Head /Team on resolution.They must appoint an official directly reporting to them to monitor and secure compliance.In special cases they must take Independent unbiased opinion from an Ombudsman appointed for such purpose as there will be a tendency by the handling team to justify their action which could possibly end up in Claims.
6.Resolution of Disputes will confer a satisfaction on the disgruntled Temporary Employee /Contract Worker . Ultimately Human Capital is the one which gives returns for the Business. Temps are the ultimate bread winners .But they are also the unsung heroes.
In one of our future posts we will deal with the issue of Ombudsman and also the effect of the Amendments on Industry as such.
With Regards
V.Sounder Rajan
Advocates & Notaries & Legal Consultants
E-mail : rajanassociates@eth,net,
-9025792684-9025792634
From India, Bangalore
The recent ID Act amendments for the Staffing Industry we refer to the aspect Enhancement of wage ceiling by the ID Amendment Act.
Dear All,
Prior to the amendment Wage ceiling of workman in the definition clause Sec 2 (s) was Rs. 1600/- .Now it is enhanced to Rs. 10,000/- per month,.
Consequently any person working in any industry doing any manual, unskilled, skilled, technical, operational, clerical or supervisory work drawing wages up to Rs. 10000/- will be considered as a workman.
Present scenario a workmen is drawing more than 10k, as such whether these workmen attracts the aforesaid definition ? Kindly clarify
Regards
Rns
From India, Mumbai
Dear All,
Prior to the amendment Wage ceiling of workman in the definition clause Sec 2 (s) was Rs. 1600/- .Now it is enhanced to Rs. 10,000/- per month,.
Consequently any person working in any industry doing any manual, unskilled, skilled, technical, operational, clerical or supervisory work drawing wages up to Rs. 10000/- will be considered as a workman.
Present scenario a workmen is drawing more than 10k, as such whether these workmen attracts the aforesaid definition ? Kindly clarify
Regards
Rns
From India, Mumbai
Dear All
In our earlier post we highlighted the impact of the recent amendments to Section 2 A of the ID Act, we had suggested reference of the decision by the Management to an Ombudsman for reviewing its correctness.
On going through the material on Ombudsman in our vies expressed herein we cannot call that Independent person as an Ombudsman .The definition of Ombudsman Committee of the International Bar Association defines the term “Ombudsman” as follows:
An Office provided for by the constitution or by action of the Legislature or Parliament and headed by an independent high-level public official, who is responsible to the Legislature or Parliament, who receives complaints from aggrieved persons against government agencies, officials and employees, or who acts on [his] own motion and who has the power to investigate, recommend corrective action and issue reports.
Therefore the term Ombudsman is used in Administrative and Constitutional Law. In India there was induction of this concept in the realm of Banking and Insurance Industry in their disputes with their Customers.
In the Staffing Industry this concept can be adapted .Normally the decision of a Staffing Entity has to be consistent and needs to provide reasons for an adverse employment action, such as the termination of the Temporary Employee’s employment. When informing an employee of the decision, Staffing Entity needs to be honest with the Temporary employee.
If a Temporary employee complains about the Staffing Entity’s action before a Labour Authority the Staffing Agency must provide reasons for the challenged action which are consistent with Law and the reasons provided to the Temporary employee and sustain the termination. Thereafter, if the employee pursues a judicial action Court or Shop Appeal the employer must provide reasons for the adverse employment action to the court and which are consistent with Labour Law and those provided to the employee and the administrative agency.
To avoid such complications whenever a termination or severance of temporary employment is done in case the Temporary Employee is aggrieved by the action he or she should be permitted to file a review motion to an Independent Authority who will review the decision of the Staffing Agency Management.[In many cases it will be the decision taken by the Staffing Agency Management at the instance of the Client].The Independent Authority which we will call as an “Employment Ombudsman” or “Reviewing Authority” who should be an Employment Law Expert or a Retired Labour or Industrial Court Judge who was not a part of or involved in the earlier decision making process.
The Authority can receive and consider complaint relating to the Staffing Entity discharging in any manner inclusive of Contract ending , dismissal, retrenchment or otherwise termination or discharge of the services of an individual Temporary Employee or any dispute or difference between that Temporary Employee and Staffing Entity connected with, or arising out of, such discharge inclusive of Contract ending, dismissal, retrenchment or termination shall be deemed to be a complaint for decision by the Authority.
The Scheme and Procedure to be followed by the Authority can be prescribed by the Staffing Entity Management
With Regards
V.Sounder Rajan
Advocates & Notaries & Legal Consultants
E-mail : rajanassociates@eth,net,
From India, Bangalore
In our earlier post we highlighted the impact of the recent amendments to Section 2 A of the ID Act, we had suggested reference of the decision by the Management to an Ombudsman for reviewing its correctness.
On going through the material on Ombudsman in our vies expressed herein we cannot call that Independent person as an Ombudsman .The definition of Ombudsman Committee of the International Bar Association defines the term “Ombudsman” as follows:
An Office provided for by the constitution or by action of the Legislature or Parliament and headed by an independent high-level public official, who is responsible to the Legislature or Parliament, who receives complaints from aggrieved persons against government agencies, officials and employees, or who acts on [his] own motion and who has the power to investigate, recommend corrective action and issue reports.
Therefore the term Ombudsman is used in Administrative and Constitutional Law. In India there was induction of this concept in the realm of Banking and Insurance Industry in their disputes with their Customers.
In the Staffing Industry this concept can be adapted .Normally the decision of a Staffing Entity has to be consistent and needs to provide reasons for an adverse employment action, such as the termination of the Temporary Employee’s employment. When informing an employee of the decision, Staffing Entity needs to be honest with the Temporary employee.
If a Temporary employee complains about the Staffing Entity’s action before a Labour Authority the Staffing Agency must provide reasons for the challenged action which are consistent with Law and the reasons provided to the Temporary employee and sustain the termination. Thereafter, if the employee pursues a judicial action Court or Shop Appeal the employer must provide reasons for the adverse employment action to the court and which are consistent with Labour Law and those provided to the employee and the administrative agency.
To avoid such complications whenever a termination or severance of temporary employment is done in case the Temporary Employee is aggrieved by the action he or she should be permitted to file a review motion to an Independent Authority who will review the decision of the Staffing Agency Management.[In many cases it will be the decision taken by the Staffing Agency Management at the instance of the Client].The Independent Authority which we will call as an “Employment Ombudsman” or “Reviewing Authority” who should be an Employment Law Expert or a Retired Labour or Industrial Court Judge who was not a part of or involved in the earlier decision making process.
The Authority can receive and consider complaint relating to the Staffing Entity discharging in any manner inclusive of Contract ending , dismissal, retrenchment or otherwise termination or discharge of the services of an individual Temporary Employee or any dispute or difference between that Temporary Employee and Staffing Entity connected with, or arising out of, such discharge inclusive of Contract ending, dismissal, retrenchment or termination shall be deemed to be a complaint for decision by the Authority.
The Scheme and Procedure to be followed by the Authority can be prescribed by the Staffing Entity Management
With Regards
V.Sounder Rajan
Advocates & Notaries & Legal Consultants
E-mail : rajanassociates@eth,net,
From India, Bangalore
Dear All
In the previous posts in our opinion we had touched on the need to strive at cordial Management -Temporary Employee Relations .To recapitulate the following steps were suggested:
GRM -Grievance Redressal Machinery
Consequent to the Historic September 2010 amendments to the Industrial Disputes Act GRM has become Statutory.
9C. (1) Every industrial establishment employing twenty or more workmen shall have one or more Grievance Redressal Committee for the resolution of disputes arising out of individual grievances.
(2) The Grievance Redressal Committee shall consist of equal number of members from the employer and the workmen.
(3) The chairperson of the Grievance Redressal Committee shall be selected from the employer and from among the workmen alternatively on rotation basis every year.
(4) The total number of members of the Grievance Redressal Committee shall not exceed more than six:
Provided that there shall be, as far as practicable one woman member if the Grievance Redressal Committee has two members and in case the number of members are more than two, the number of women members may be increased proportionately.
(5) Notwithstanding anything contained in this section, the setting up of Grievance Redressal Committee shall not affect the right of the workman to raise industrial dispute on the same matter under the provisions of this Act.
(6) The Grievance Redressal Committee may complete its proceedings within thirty days on receipt of a written application by or on behalf of the aggrieved party.
(7) The workman who is aggrieved of the decision of the Grievance Redressal Committee may prefer an appeal to the employer against the decision of Grievance Redressal Committee and the employer shall, within one month from the date of receipt of such appeal, dispose off the same and send a copy of his decision to the workman concerned.
Temp Welfare Officers -TWO
Akin to Welfare Officers in the Factory scenario induct dedicated Zonal Temp Welfare Officers :
(a)to establish contacts and hold consultations with a view to maintaining harmonious relations between the Staffing Entity management and Temporary Employees ;
(b)to bring to the notice of the Staffing Entity management the grievances of Temporary Employees , individual as well as collective, with a view to securing their expeditious redress and to act as a liaison officer between the management and labour ;
( c) to study and understand the point of view of labour in order to help the Staffing Entity management to shape and formulate labour policies and to interpret these policies and to interpret these policies to the Temporary Employees in a language they can understand;
(d)to watch industrial relations with a view to using his influence in the event of a dispute between the Staffing Entity management and Temporary Employees and to help to bring about a settlement by persuasive effort;
(e)to advise on fulfillment by time management and the concerned departments of the Staffing Entity of obligations, statutory or otherwise, concerning regulation of working hours, maternity benefit, medical care, compensation for injuries and sickness and other welfare and social benefit measures;
(f)to advise and assist the management in the fulfillment of its obligations, statutory or otherwise, concerning prevention of personal injuries and maintaining a safe work environment,
(g)to promote relations between the concerned departments of the Staffing Entity and Temporary Employees which will bring about productive efficiency as well as amelioration in the working conditions and to help Temporary Employees to adjust and adapt themselves to their working environments;
(h)to encourage provision of amenities at the Clients place ,sickness and benevolent scheme payments, pension and superannuation funds, gratuity payments, and legal advice to Temporary Employees ;
(i)to help the Staffing Entity management in regulating the grant of leave with wages and explain to the Temporary Employees the provisions relating to leave with wages and other leave privileges and to guide the Temporary Employees in the matter of submission of application for grant of leave for regulating authorized absence;
(j) to advise on provision of welfare facilities, , social and recreational facilities, sanitation, advice on individual personnel problems and education of children;
(k)to suggest measures which will serve to raise the standard of living of Temporary Employees and in general promote their well-being.
“Reviewing Authority” or Ombudsman
The Ombudsperson should receive and consider complaint relating to the Staffing Entity discharging or terminating in any manner inclusive of Contract ending , dismissal, retrenchment or otherwise termination or discharge of the services of an individual Temporary Employee or any dispute or difference between that Temporary Employee and Staffing Entity connected with, or arising out of, such discharge inclusive of Contract ending, dismissal, retrenchment or termination shall be deemed to be a complaint for decision by the Authority.
The Staffing Entity management should endeavor to have all of them in place
.GRM is Statutory whereas TWO and Ombudsman are recommended. if all the three are there the Staffing Entity Management would be secure and insulated from Temp related disputes.The system of GRM-TWO & Ombudsman will take care of itself and a secure Internal Responsive Machinery created. In Staffing Industry glossary we can coin a new word "Temp Employee Relations " -TER.
With Regards
V.Sounder Rajan
Advocates & Notaries & Legal Consultants
E-mail : rajanassociates@eth,net,
From India, Bangalore
In the previous posts in our opinion we had touched on the need to strive at cordial Management -Temporary Employee Relations .To recapitulate the following steps were suggested:
GRM -Grievance Redressal Machinery
Consequent to the Historic September 2010 amendments to the Industrial Disputes Act GRM has become Statutory.
9C. (1) Every industrial establishment employing twenty or more workmen shall have one or more Grievance Redressal Committee for the resolution of disputes arising out of individual grievances.
(2) The Grievance Redressal Committee shall consist of equal number of members from the employer and the workmen.
(3) The chairperson of the Grievance Redressal Committee shall be selected from the employer and from among the workmen alternatively on rotation basis every year.
(4) The total number of members of the Grievance Redressal Committee shall not exceed more than six:
Provided that there shall be, as far as practicable one woman member if the Grievance Redressal Committee has two members and in case the number of members are more than two, the number of women members may be increased proportionately.
(5) Notwithstanding anything contained in this section, the setting up of Grievance Redressal Committee shall not affect the right of the workman to raise industrial dispute on the same matter under the provisions of this Act.
(6) The Grievance Redressal Committee may complete its proceedings within thirty days on receipt of a written application by or on behalf of the aggrieved party.
(7) The workman who is aggrieved of the decision of the Grievance Redressal Committee may prefer an appeal to the employer against the decision of Grievance Redressal Committee and the employer shall, within one month from the date of receipt of such appeal, dispose off the same and send a copy of his decision to the workman concerned.
Temp Welfare Officers -TWO
Akin to Welfare Officers in the Factory scenario induct dedicated Zonal Temp Welfare Officers :
(a)to establish contacts and hold consultations with a view to maintaining harmonious relations between the Staffing Entity management and Temporary Employees ;
(b)to bring to the notice of the Staffing Entity management the grievances of Temporary Employees , individual as well as collective, with a view to securing their expeditious redress and to act as a liaison officer between the management and labour ;
( c) to study and understand the point of view of labour in order to help the Staffing Entity management to shape and formulate labour policies and to interpret these policies and to interpret these policies to the Temporary Employees in a language they can understand;
(d)to watch industrial relations with a view to using his influence in the event of a dispute between the Staffing Entity management and Temporary Employees and to help to bring about a settlement by persuasive effort;
(e)to advise on fulfillment by time management and the concerned departments of the Staffing Entity of obligations, statutory or otherwise, concerning regulation of working hours, maternity benefit, medical care, compensation for injuries and sickness and other welfare and social benefit measures;
(f)to advise and assist the management in the fulfillment of its obligations, statutory or otherwise, concerning prevention of personal injuries and maintaining a safe work environment,
(g)to promote relations between the concerned departments of the Staffing Entity and Temporary Employees which will bring about productive efficiency as well as amelioration in the working conditions and to help Temporary Employees to adjust and adapt themselves to their working environments;
(h)to encourage provision of amenities at the Clients place ,sickness and benevolent scheme payments, pension and superannuation funds, gratuity payments, and legal advice to Temporary Employees ;
(i)to help the Staffing Entity management in regulating the grant of leave with wages and explain to the Temporary Employees the provisions relating to leave with wages and other leave privileges and to guide the Temporary Employees in the matter of submission of application for grant of leave for regulating authorized absence;
(j) to advise on provision of welfare facilities, , social and recreational facilities, sanitation, advice on individual personnel problems and education of children;
(k)to suggest measures which will serve to raise the standard of living of Temporary Employees and in general promote their well-being.
“Reviewing Authority” or Ombudsman
The Ombudsperson should receive and consider complaint relating to the Staffing Entity discharging or terminating in any manner inclusive of Contract ending , dismissal, retrenchment or otherwise termination or discharge of the services of an individual Temporary Employee or any dispute or difference between that Temporary Employee and Staffing Entity connected with, or arising out of, such discharge inclusive of Contract ending, dismissal, retrenchment or termination shall be deemed to be a complaint for decision by the Authority.
The Staffing Entity management should endeavor to have all of them in place
.GRM is Statutory whereas TWO and Ombudsman are recommended. if all the three are there the Staffing Entity Management would be secure and insulated from Temp related disputes.The system of GRM-TWO & Ombudsman will take care of itself and a secure Internal Responsive Machinery created. In Staffing Industry glossary we can coin a new word "Temp Employee Relations " -TER.
With Regards
V.Sounder Rajan
Advocates & Notaries & Legal Consultants
E-mail : rajanassociates@eth,net,
From India, Bangalore
Dear All
Pls see https://www.citehr.com/331279-esic-c...il-2011-a.html
A very important change on claiming the death benefits under the Act .
rajanassociates
From India, Bangalore
Pls see https://www.citehr.com/331279-esic-c...il-2011-a.html
A very important change on claiming the death benefits under the Act .
rajanassociates
From India, Bangalore
Dear All
We had earlier posted an item on Gratuity payment to Contract workers and the response for its relevance is enormous considering the mails we are getting.This shows that the Staffing Industry Professionals are very sensitive to happenings around them .
One viewer has raised a point on the very relevancy of Gratuity to Temporary Employment -
When the Employment is temporary and sent to the Client why is that Staffing Company should pay Gratuity ?
Our simple answer is the liability to pay rests with the Staffing Company .But the Principal Employer needs to re-imburse it.
To understand this the definition of Employee in the Gratuity Act under Section 2 (e) needs to be seen::
e) "employee" means any person (other than an apprentice) employed on wages, in any establishment, factory, mine, oilfield, plantation, port, railway company or shop, to do any skilled, semi-skilled, or unskilled, manual, supervisory, technical or clerical work, whether the terms of such employment are express or implied,and whether or not such person is employed in a managerial or administrative capacity, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity.
The qualifying period is provided under Section 4:
Section: 4
Payment of gratuity.
(1) Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years, -
(a) on his superannuation, or
(b) on his retirement or resignation, or
(c) on his death or disablement due to accident or disease:
In the Industry one will find Clients requiring the same Temporary Workers being continuously requisitioned beyond the qualifying period of gratuity.The problem will crop up if the Temporary Worker's Contract is terminated say on the 65 th month without payment of Gratuity when post completion of the 60th month the Temporary Employee would have qualified for Gratuity.Then who is liable to pay the Gratuity.The Client will just say he or she is not their employee and the Staffing Company has to shell it out from their funds.
As the whole Staffing concept in India works on re-imbursement of CTC of the Temporary Employee by the Client the Staffing Company will not understand the issue and initially try to wash of its hands .Supposing there is a claim .In this context the earlier Bench Judgment of the Madras High Court cited becomes relevant with the attendant risks on Gratuity accumulation as a contingent liability which can boomerang on the Staffing Entity if settled by the Client as per the dictum of the cited Judgment.
Staffing Entities can launch an audit of Gratuity Compliance by getting the details of those Temporary Employees who have completed or in the process of completing 5 years and their Gratuity payment compliance. If they are not paid then they should immediately direct their Compliance Team to make payment in compliance of the Act and seek re-imbursement from Clients or vice-versa.
Managing Directors and CEO's being at the helm of affairs may need to call for Monthly Compliance reports from their Compliance Head so that they are not caught napping on this crucial compliance .Non compliance may lead to penalties under Section 9 of the Act and will also lead to making hefty payments without re-reimbursement from their respective Clients .
For the Staffing Industry Professionals whenever they are going in for a long term relationship say beyond five years with a Client it should be ensured they make this liability explicitly clear to the Client and make a provision for it in the CTC .This pay out has to be made to the Temporary Employee whenever there is a resignation or termination beyond 5 years.In the case of disablement the liability would arise earlier than that period. The best precaution is to make a provision for Gratuity as a part of the Standard Form Contract of the Staffing Company.
With Regards
V.Sounder Rajan
Advocates & Notaries & Legal Consultants
E-mail : rajanassociates@eth,net,
From India, Bangalore
We had earlier posted an item on Gratuity payment to Contract workers and the response for its relevance is enormous considering the mails we are getting.This shows that the Staffing Industry Professionals are very sensitive to happenings around them .
One viewer has raised a point on the very relevancy of Gratuity to Temporary Employment -
When the Employment is temporary and sent to the Client why is that Staffing Company should pay Gratuity ?
Our simple answer is the liability to pay rests with the Staffing Company .But the Principal Employer needs to re-imburse it.
To understand this the definition of Employee in the Gratuity Act under Section 2 (e) needs to be seen::
e) "employee" means any person (other than an apprentice) employed on wages, in any establishment, factory, mine, oilfield, plantation, port, railway company or shop, to do any skilled, semi-skilled, or unskilled, manual, supervisory, technical or clerical work, whether the terms of such employment are express or implied,and whether or not such person is employed in a managerial or administrative capacity, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity.
The qualifying period is provided under Section 4:
Section: 4
Payment of gratuity.
(1) Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years, -
(a) on his superannuation, or
(b) on his retirement or resignation, or
(c) on his death or disablement due to accident or disease:
In the Industry one will find Clients requiring the same Temporary Workers being continuously requisitioned beyond the qualifying period of gratuity.The problem will crop up if the Temporary Worker's Contract is terminated say on the 65 th month without payment of Gratuity when post completion of the 60th month the Temporary Employee would have qualified for Gratuity.Then who is liable to pay the Gratuity.The Client will just say he or she is not their employee and the Staffing Company has to shell it out from their funds.
As the whole Staffing concept in India works on re-imbursement of CTC of the Temporary Employee by the Client the Staffing Company will not understand the issue and initially try to wash of its hands .Supposing there is a claim .In this context the earlier Bench Judgment of the Madras High Court cited becomes relevant with the attendant risks on Gratuity accumulation as a contingent liability which can boomerang on the Staffing Entity if settled by the Client as per the dictum of the cited Judgment.
Staffing Entities can launch an audit of Gratuity Compliance by getting the details of those Temporary Employees who have completed or in the process of completing 5 years and their Gratuity payment compliance. If they are not paid then they should immediately direct their Compliance Team to make payment in compliance of the Act and seek re-imbursement from Clients or vice-versa.
Managing Directors and CEO's being at the helm of affairs may need to call for Monthly Compliance reports from their Compliance Head so that they are not caught napping on this crucial compliance .Non compliance may lead to penalties under Section 9 of the Act and will also lead to making hefty payments without re-reimbursement from their respective Clients .
For the Staffing Industry Professionals whenever they are going in for a long term relationship say beyond five years with a Client it should be ensured they make this liability explicitly clear to the Client and make a provision for it in the CTC .This pay out has to be made to the Temporary Employee whenever there is a resignation or termination beyond 5 years.In the case of disablement the liability would arise earlier than that period. The best precaution is to make a provision for Gratuity as a part of the Standard Form Contract of the Staffing Company.
With Regards
V.Sounder Rajan
Advocates & Notaries & Legal Consultants
E-mail : rajanassociates@eth,net,
From India, Bangalore
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Legal COMPLIANCEs and DUE dates.xls
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