Whether a workman who performs work other than the type of work specified in the contract license will be a direct employee of the principal employer?
From India, New Delhi
421From India, New Delhi
The contract employees will automatically become the employee of the principal employer If the following conditions are fulfilled.
1. If the wages are paid directly to the contract employees by the principal employer.
2. If Principal Employer have right to take penal and disciplinary action against the contract employees.
3. If the contract employee was working under the direct control and supervision of the Principal Employer to fulfill the obligation of the contract.
4. If the contract employees were recruited through Principal Employer.
5. If any obligation is on the new contractor as per the contract agreement to appoint the same contract employee continuously for the work with the Principal Employer.
From India, Chennai
1. If the wages are paid directly to the contract employees by the principal employer.
2. If Principal Employer have right to take penal and disciplinary action against the contract employees.
3. If the contract employee was working under the direct control and supervision of the Principal Employer to fulfill the obligation of the contract.
4. If the contract employees were recruited through Principal Employer.
5. If any obligation is on the new contractor as per the contract agreement to appoint the same contract employee continuously for the work with the Principal Employer.
From India, Chennai
Dear Kumar,
Mr. Shameel's post is correct.
A contract worker can not be deemed to be permanent or direct employee on any random ground. The only ones where he will be deemed to be a direct employee is the conditions listed above.
Further, in such cases also, he does not automatically become a direct worker, it will happen in case it is ordered by the labour court on a complaint by the worker or the labour officer.
However, in any complaint or case filed asking for regularisation, the lawyers will try and show various supporting evidence to show that the contract is a sham, intended only to prevent the workers from being made permanent and from getting fair wages and benefits. The fact that the company made (or allowed) the worker to do work other than what was in the contract is a good indication that the agreement was not intended to be followed and that the agreement / contract is a sham, meant as a cover for illegal or anti-labour activity.
The courts are likely to accept that contention.
From India, Mumbai
Mr. Shameel's post is correct.
A contract worker can not be deemed to be permanent or direct employee on any random ground. The only ones where he will be deemed to be a direct employee is the conditions listed above.
Further, in such cases also, he does not automatically become a direct worker, it will happen in case it is ordered by the labour court on a complaint by the worker or the labour officer.
However, in any complaint or case filed asking for regularisation, the lawyers will try and show various supporting evidence to show that the contract is a sham, intended only to prevent the workers from being made permanent and from getting fair wages and benefits. The fact that the company made (or allowed) the worker to do work other than what was in the contract is a good indication that the agreement was not intended to be followed and that the agreement / contract is a sham, meant as a cover for illegal or anti-labour activity.
The courts are likely to accept that contention.
From India, Mumbai
No contract employees will automatically become the employee of the principal employer.
The employee has to raise the matter with the appropriate authority to declare the contractor sham and camouflage for the following conditions;
1. The contractor does not hold a valid license under CL(R&A) Act.
2. The principal employer employed contract labour without having registration under CL(R&A) Act.
3. If the workers are performing same work of a permanent employee on continuous nature of work and deprived of payment & facilities extended to permanent employee ofthe principal employer
4. Engagement of contract labour on work declared prohibition by the appropriate government under section 10 (1) of the CLRA Act.
5. Wages paid directly and maintenance of records and register of the contract employees by the principal employer.
6. Where Principal Employer involves in Penal and disciplinary action against the contract employees.
7. If the contract employee was working under the direct control and supervision of the Principal Employer to fulfill the obligation of the contract.
8. If the contract employees are recruited through Principal Employer.
But following does not;
1. Non compliance with section 7 and 12 of the CLRA act will not lead to sham contract. Violation of these provisions will only lead to penal consequences.
2. 'Control' is one of the important tests but is not to be taken as the sole test in determining the relationship of employer and employee.
3. 'Integration' test is one of the relevant tests. It helps in determining whether the person was fully integrated into the employer's concern or is independent of it.
4. The other factors which may be relevant are who has the power to select and dismiss, to pay remuneration, deduct insurance contributions, organise the work, supply tools and materials and what are the 'mutual obligations' between them.
5. Mere supervision of the contract labour work by the officers of the principal employer cannot be the sole determinative factor to prove a contract to be sham.
5. If any obligation is on the new contractor as per the contract agreement to appoint the same contract employee continuously for the work with the Principal Employer.
From India, Mumbai
The employee has to raise the matter with the appropriate authority to declare the contractor sham and camouflage for the following conditions;
1. The contractor does not hold a valid license under CL(R&A) Act.
2. The principal employer employed contract labour without having registration under CL(R&A) Act.
3. If the workers are performing same work of a permanent employee on continuous nature of work and deprived of payment & facilities extended to permanent employee ofthe principal employer
4. Engagement of contract labour on work declared prohibition by the appropriate government under section 10 (1) of the CLRA Act.
5. Wages paid directly and maintenance of records and register of the contract employees by the principal employer.
6. Where Principal Employer involves in Penal and disciplinary action against the contract employees.
7. If the contract employee was working under the direct control and supervision of the Principal Employer to fulfill the obligation of the contract.
8. If the contract employees are recruited through Principal Employer.
But following does not;
1. Non compliance with section 7 and 12 of the CLRA act will not lead to sham contract. Violation of these provisions will only lead to penal consequences.
2. 'Control' is one of the important tests but is not to be taken as the sole test in determining the relationship of employer and employee.
3. 'Integration' test is one of the relevant tests. It helps in determining whether the person was fully integrated into the employer's concern or is independent of it.
4. The other factors which may be relevant are who has the power to select and dismiss, to pay remuneration, deduct insurance contributions, organise the work, supply tools and materials and what are the 'mutual obligations' between them.
5. Mere supervision of the contract labour work by the officers of the principal employer cannot be the sole determinative factor to prove a contract to be sham.
5. If any obligation is on the new contractor as per the contract agreement to appoint the same contract employee continuously for the work with the Principal Employer.
From India, Mumbai
Dear HR Leaders Thanks for your erudite and knowledgeable replies which are useful for my understanding.
From India, New Delhi
From India, New Delhi
Dear Team Whether a workman who performs work other than the type of work specified in the contract license will be a direct employee of the principal employer?
From India, New Delhi
From India, New Delhi
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