We are a German MNC. We have different subsidiaries all over world. Now, I want to send Indian employees to our Subsidiary in United States for 01 Year. How this transaction will be treated Delegation or Transfer? What are the process and procedure for this ? and Legal Compliance for India and USA?
I would appreciate if above query is replied with your valuable inputs.
From India, Mumbai
3I would appreciate if above query is replied with your valuable inputs.
From India, Mumbai
Hi Mahendra,
Greetings from Total Talent Solution.
You have not specified if the employees will work under the Indian subsidiary or directly under the German Mnc. when placed in Germany. Because, in either case different rules will be applicable. I previously used to work for ICICI NRI team. Again, there are different categories like :-
Like you need a resident permit for the purpose of taking up employment (Aufenthaltserlaubnis für abhängige Beschäftigung) in Germany.
This is for the person who is employed through the subsidiary in India. The residence permit for the purpose of taking up employment contains both: the permit to stay and the permit to work in Germany. The residence permit for the purpose of taking up employment contains a statement as to whether and to what extent work will be permitted.
Mostly, middle level employees go on HIB type of Visa IF YOU HAVE A WORK PERMIT or B1 if you do not have a work permit and their variants.
So, you can say this is for the people/personnel going through proper channel. This is for middle level to senior employees.
Rest can be discussed if you specify the type of employment you are sending for.
N. B. You are based in which city of India?
Arup Kumar Singh
Senior Recruiter
Total Talent Solution
9748753652
From India, Kolkata
Greetings from Total Talent Solution.
You have not specified if the employees will work under the Indian subsidiary or directly under the German Mnc. when placed in Germany. Because, in either case different rules will be applicable. I previously used to work for ICICI NRI team. Again, there are different categories like :-
Like you need a resident permit for the purpose of taking up employment (Aufenthaltserlaubnis für abhängige Beschäftigung) in Germany.
This is for the person who is employed through the subsidiary in India. The residence permit for the purpose of taking up employment contains both: the permit to stay and the permit to work in Germany. The residence permit for the purpose of taking up employment contains a statement as to whether and to what extent work will be permitted.
Mostly, middle level employees go on HIB type of Visa IF YOU HAVE A WORK PERMIT or B1 if you do not have a work permit and their variants.
So, you can say this is for the people/personnel going through proper channel. This is for middle level to senior employees.
Rest can be discussed if you specify the type of employment you are sending for.
N. B. You are based in which city of India?
Arup Kumar Singh
Senior Recruiter
Total Talent Solution
9748753652
From India, Kolkata
Dear Mahendra,
It is not a case of transfer but by deputation. It is settled by the Apex Court in Manager, M/S. Pyarchand vs Omkar Laxman Thange & Ors on 27 September, 1968
"The general rule in respect of relationship of master and servant is that a subsisting contract of service with one master is a bar to service with any other master unless the contract otherwise provides or the master consents. A contract of employment involving personal service is incapable of transfer".
If you treat it as a transfer then many issues like PF settlement dues settlement etc would so arise and above all service tax may have to be paid in terms of the following decision
In GUJARAT HC, TAX APPEAL NO. 138 of 2014 the issue was whether the respondent is a Manpower Supply Recruitment Agency.In order to reduce
its cost the respondent deputed some of its employees to its group company, who were also engaged in similar businesses. Reason for such deputation was also on
certain occasions stipulated work arising for a limited period. It was held that in order to reduce his cost of manufacturing, the company deputed some of its staff to its subsidiaries or group companies for stipulated work for limited period. All throughout the control and supervision remained with the respondent. As pointed out by the respondent, company is not in the business of providing recruitment or supply of manpower. Actual cost incurred by the company in terms of salary, remuneration and perquisites was only reimbursed by thegroup companies. There was no element of profit or finance benefit. The subsidiary companies could not be said to be their clients. Deputation of the employees was only for and in the interest of the company. There was no relation of agency and client. It was pointed out that the employee deputed did not exclusively work under the direction of supervision or control of subsidiary company. All throughout he would be under the continuous control and direction of the company.
Regards
Sushil
From India, New Delhi
It is not a case of transfer but by deputation. It is settled by the Apex Court in Manager, M/S. Pyarchand vs Omkar Laxman Thange & Ors on 27 September, 1968
"The general rule in respect of relationship of master and servant is that a subsisting contract of service with one master is a bar to service with any other master unless the contract otherwise provides or the master consents. A contract of employment involving personal service is incapable of transfer".
If you treat it as a transfer then many issues like PF settlement dues settlement etc would so arise and above all service tax may have to be paid in terms of the following decision
In GUJARAT HC, TAX APPEAL NO. 138 of 2014 the issue was whether the respondent is a Manpower Supply Recruitment Agency.In order to reduce
its cost the respondent deputed some of its employees to its group company, who were also engaged in similar businesses. Reason for such deputation was also on
certain occasions stipulated work arising for a limited period. It was held that in order to reduce his cost of manufacturing, the company deputed some of its staff to its subsidiaries or group companies for stipulated work for limited period. All throughout the control and supervision remained with the respondent. As pointed out by the respondent, company is not in the business of providing recruitment or supply of manpower. Actual cost incurred by the company in terms of salary, remuneration and perquisites was only reimbursed by thegroup companies. There was no element of profit or finance benefit. The subsidiary companies could not be said to be their clients. Deputation of the employees was only for and in the interest of the company. There was no relation of agency and client. It was pointed out that the employee deputed did not exclusively work under the direction of supervision or control of subsidiary company. All throughout he would be under the continuous control and direction of the company.
Regards
Sushil
From India, New Delhi
The above principles are common law principles and are applicable to international deputation. Many MNCs including TCS also sends its employees on deputation for specified period to its projects abroad.
Thanks and regards
Sushil
From India, New Delhi
Thanks and regards
Sushil
From India, New Delhi
Dear Mahendraji,
The old thread of you came to my reading today.
My answers to you are as under:
When you are sending any employee to your subsidiary company with an intension to take him back after some time, it should be treated as deputation and not transfer.
You simply need to give him a letter of deputation with details of salary and perks on deputation and continue to pay him from your home company account and charge the amount to the subsidiary company wherein the employee is sent on deputation.
When you are sending any employee on deputation abroad, you have three options with you. Either you pay him in INR or in foreign currency or in both. Basic working conditions will be as per the country wherein he is sent on deputation. Social security will be as per the origin country i.e. India when the deputation abroad is less than 5 years irrespective of SSA between the two countries.
Sorry to differ with Super Moderator (Cite Contribution) mam. I stand to be corrected.
From India, Mumbai
The old thread of you came to my reading today.
My answers to you are as under:
When you are sending any employee to your subsidiary company with an intension to take him back after some time, it should be treated as deputation and not transfer.
You simply need to give him a letter of deputation with details of salary and perks on deputation and continue to pay him from your home company account and charge the amount to the subsidiary company wherein the employee is sent on deputation.
When you are sending any employee on deputation abroad, you have three options with you. Either you pay him in INR or in foreign currency or in both. Basic working conditions will be as per the country wherein he is sent on deputation. Social security will be as per the origin country i.e. India when the deputation abroad is less than 5 years irrespective of SSA between the two countries.
Sorry to differ with Super Moderator (Cite Contribution) mam. I stand to be corrected.
From India, Mumbai
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