Staffing and recruiting industry -legal updates

Sounder Rajan V (Advocate) 01 February 2011

IMMEDIATE LEGAL QUESTIONS HAUNTING INDIAN STAFFING COMPANIES

Dear All

In continuation of our earlier post on the subject :

Questions are raised on the rotation of employees of contractors working with Principal Employers ,

The Contractor’s employees are working in XYZ co. [Client] and the employees are on the Contractors pay roll. The Contractor provides them PF . ESIC , Gratuity ,bonus , leave salary ,etc, But the Principal Employer wants rotation of the Contractor Employees who have completed 180 days and wants appointment of new employees in the place of left employees,

Can the request be acceded because ,all the employees are on the permanent rolls of the Contractor and not on contract basis.

The request of the Client can be accepted and is meant to provide break of service from continuous employment. Otherwise the Staffing Company or Contractor will lose business .The concept of continuous employment is found in Sec 25 B of the Industrial Disputes Act .

25-B. Definition of continuous service: -- For the purpose of this Chapter,-

(1) a workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorized leave or an accident or a strike which is not illegal, or a lock-out or a cessation of work which is not due to any fault on the part of the workman;

(2) Where a workman is not in continuous service within the meaning of clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer—

(a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than—

(i) one hundred and ninety days in the case of a workman employed below ground in a mine; and
(ii) two hundred and forty days, in any other case;

(b) for a period of six months, if the workman, during a period of six calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than—

(i) ninety five days, in the case of a workman employed below ground in a mine; and
(ii) one hundred and twenty days, in any other case;

Explanation: -- For the purpose of clause (2), the number of days on which a workman has actually worked under an employer shall include the days on which—

(i) he has been laid-off under an agreement or as permitted by standing orders made under the Industrial Employment [Standing Orders] Act, 1946 (20 of 1946), or under this Act or under any other law applicable to the Industrial establishment;

(ii) he has been on leave with full wages, earned in the previous years;
(iii) he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment; and
(iv) in the case of a female, she has been on maternity leave; so, however, that the total period of such maternity leave does not exceed twelve weeks.

The Client from their end want to overcome the “continuous employment of the Contractor’s employee with them "for various reasons like avoiding a claim for permanency from the Contractor’s employees and this cannot be faulted. In case the employees are permanent on the Contractor’s rolls which means you need to swap your employees between different Clients. From the "dedicated" mode of deputation a need may arise to switch to "multiple" mode. This is where the Indian Temp Staff Industry must aim to go..The Appointment Letter and Agreement with the Contractors Staff has to be tuned to take care of all this with expert legal help.

There are many inter-related issues to this which we will address in our further posts.

With Regards

V.Sounder Rajan
VS Rajan Associates,
Advocates & Notaries -Legal Consultants
No.27, Ist Floor, Singapore Plaza,
No.164, Linghi Chetty Street,
Chennai - 600 001.
E-mail : rajanassociates@eth,net,
Off : 044-42620864, 044-65874684,
Mobile : 9025792684.

Sounder Rajan V (Advocate) 04 February 2011

Dear All

NEXT IMMEDIATE LEGAL QUESTIONS FOR INDIAN STAFFING OR TEMPING COMPANIES

A common question arises in Contractual Employment

What are the Statutory Registers to be maintained by the Staffing Agency in relation to Muster roll, wages registers, deduction register and overtime ?

As per Rule 78 of CLRA Rules it provides for maintenance of the following :
Muster roll, wages registers, deduction register and overtime register.-(1) (a)

Every contractor shall in respect of each work on which he engages contract labour -

(1) maintain a muster roll and a register of wages in Form XVI and Form XVII, respectively:
Provided that combined Register of Wage-cum Muster Roll in Form XVIII
shall be maintained by the contractor where the wage period is a fortnight or less;

(II) maintain a Register of Deductions for damage or loss, Register of Fines and Register of Advances in Form XX, Form XXI and Form XXII, respectively;

(III) maintain a Register of Overtime in Form XXIII recording therein the number of hours of, and wages, paid for, overtime work, if any.

(b) Every contractor shall, where the wage period is one week or more issue wage slips in Form XIX, to the workmen at least a day prior to the disbursement of wages.

(c) Every contractor shall obtain the signature or thumb-impression of the worker concerned against the entries relating to him on the Register of Wages or Muster Roll-cum-Wages Register, as the case may be, and the entries shall be authenticated by the initials of the contractor or his authorized representative and shall also be duly certified by the authorized representative of the principal employer in the manner provided in rule 73.
(d) In respect of establishments which are governed by the Payment of Wages Act, 1936 (4 of 1936), and the rules made there under, or Minimum Wages Act, 1948 or the rules made there under, the following registers and records required to be maintained by a contractor as employer under those Acts and the rules
made there under shall be deemed to be register and records to be maintained by the contractor under these rules, namely:
(a) Muster roll;
(b) register of wages;
(c) register of deductions;
(d) register of overtime;
(e) register of fines;
(f) register of advances;
(9) wage slip.

(3) Notwithstanding anything contained in these rules, where a combined or alternative form is sought to be used by the contractor to avoid duplication of work for compliance with the provisions of any other Act or the rules framed there under or any other laws or regulation where mechanized pay rolls are introduced for better administration, alternative suitable form or forms in lieu of any of the forms prescribed under these rules, may be used with the previous approval of the Chief Labour Commissioner (Central).

Technically when using mechanized Payroll previous approval of the Chief Labour Commissioner needs to be obtained.

Thanks & Regards

V.Sounder Rajan -VS Rajan Associates,
Advocates & Notaries -Legal Consultants
No.27, Ist Floor, Singapore Plaza,
No.164, Linghi Chetty Street,
Chennai - 600 001.
E-mail : rajanassociates@eth,net,
Off : 044-42620864, 044-65874684,
Mobile : 9840142164-9025792684-9025792634

Sounder Rajan V (Advocate) 08 February 2011

Dear All

NEXT IMMEDIATE LEGAL QUESTIONS FOR INDIAN STAFFING OR TEMPING COMPANIES

A viewer of our posting has posed the following crucial question which arises in Contractual Employment

In case the employee works for just a day and does not turn back to work....how could we make his personal data, coz you might understand here that in case of contract staff, to make their personal data we take atleast a week's time. if he quits within a day, how can we handle payment of ESI/ PF; as we do not have their details for registration. And according to CLA we need to pay and register the employee for all compliance.

The ESI Act provides that an employee is required to file a declaration form upon employment in factory or establishment to show that he is covered under the Act.
On registration every insured person is provided with a ‘temporary identification certificate’ which is valid ordinarily for a period of three months but may be extended, if necessary, for a further period of 3 months. Within this period, the insured person is given a permanent ‘family photo identity card’ in exchange for the certificate.

The above is a compliance requirement from the Employee which may give insight into compliance requirement from the Employee.

But the EPF Act charging Section 6 reads as follows:

6. Contributions and matters which may be provided for in Schemes. – The contribution which shall be paid by the employer to the Fund shall be ten percent. Of the basic wages, dearness allowance and retaining allowance, if any, for the time being payable to each of the employees whether employed by him directly or by or through a contractor, and the employee’s contribution shall be equal to the contribution payable by the employer in respect of him and may, if any employee so desires, be an amount exceeding ten percent of his basic wages, dearness allowance and retaining allowance if any, subject to the condition that the employer shall not be under an obligation to pay any contribution over and above his contribution payable under this section:

Provided that in its application to any establishment or class of establishments which the Central Government, after making such inquiry as it deems fit, may, by notification in the Official Gazette specify, this section shall be subject to the modification that for the words “ten percent”, at both the places where they occur, the words “12 percent” shall be substituted:

Provided further that where the amount of any contribution payable under this Act involves a fraction of a rupee, the Scheme may provide for rounding off of such fraction to the nearest rupee, half of a rupee, or quarter of a rupee.
Explanation I – For the purposes of this section dearness allowance shall be deemed to include also the cash value of any food concession allowed to the employee.
Explanation II. – For the purposes of this section, “retaining allowance” means allowance payable for the time being to an employee of any factory or other establishment during any period in which the establishment is not working, for retaining his services.

Contribution is defined as follows:

(c) “Contribution” means a contribution payable in respect of a member under a scheme or the contribution payable in respect of an employee to whom the Insurance Scheme applies;

Employee Definition:

"Employee" as defined in Section 2(f) of the Act means any person who is employee for wages in any kind of work manual or otherwise, in or in connection with the work of an establishment and who gets wages directly or indirectly from the employer and includes any person employed by or through a contractor in or in connection with the work of the establishment.

Strictly speaking as the absconding Employee has been employed for a day there is no provision for exclusion.

But in practice each Organizations pay rolling procedure will definitely influence the Compliance on single day absconding cases.On a case to case basis you can check up with your EPF/ESI Inspector and go by their advice as they are the Enforcing Agency. It is high time that the EPF/ESI Law is amended to take care of such a situation especially arising in the Flexi-Staffing/Temping Industry.

The EPF website says if your Organization is a covered establishment under PF Act .Note: w.e.f 1-11-90 , an employee is eligible for membership from the very first date of joining a covered establishment.

Thanks & Regards

V.Sounder Rajan -VS Rajan Associates,
Advocates & Notaries -Legal Consultants
No.27, Ist Floor, Singapore Plaza,
No.164, Linghi Chetty Street,
Chennai - 600 001.
E-mail : rajanassociates@eth,net,
Off : 044-42620864, 044-65874684,
Mobile : 9840142164-9025792684-9025792634

Sounder Rajan V (Advocate) 11 February 2011

Dear All

NEXT IMMEDIATE LEGAL QUESTIONS FOR INDIAN STAFFING OR TEMPING COMPANIES

Whether Trainees employed by the Staffing Agency and sent for work to Establishments covered under Shops & Establishments Act are exempted for providing Statutory Benefits ?

Sec 2 (f) of EPF Act does not provide for an exclusion or exemption of an Apprentice/Trainee under the Shops & Establishments Act .

The Apex Court Judgment in the case reported in the matter of The Regional Provident Fund Commissioner, Mangalore Versus M/s. Central Aercanut & Coca Marketing and Processing Co-op. Ltd. the Hon’ble Bench comprising of THE HONOURABLE MR. JUSTICE ARIJIT PASAYAT & THE HONOURABLE MR. JUSTICE R.V. RAVEENDRAN touched on exemption of an apprentice engaged under the Apprentices Act or under the Standing Orders is excluded from the definition of an 'employee' as per Section 2(f) of the Act .

In the ESI Act also there is exemption of an apprentice engaged under the Apprentices Act or under the Standing Orders.

Shops & Establishments Act is not included either in Sec 2 (f) of the EPF Act or Sec 2 (9) of the ESI Act.Both these Statutes need to be amended to include this.

Hence coverage is not exempted unless he /she are taken into employment under Apprentices Act or under the Standing Orders. For availing this benefit the Certification of the Standing Orders is to be done or the Model Standing Orders adopted by the Staffing Company.

Thanks & Regards

V.Sounder Rajan -VS Rajan Associates,
Advocates & Notaries -Legal Consultants
No.27, Ist Floor, Singapore Plaza,
No.164, Linghi Chetty Street,
Chennai - 600 001.
E-mail : rajanassociates@eth,net,
Off : 044-42620864, 044-65874684,
Mobile : 9840142164-9025792684-9025792634

Sounder Rajan V (Advocate) 14 February 2011

Dear All

NEXT IMMEDIATE LEGAL QUESTIONS FOR INDIAN STAFFING OR TEMPING COMPANIES

Is there any recent development in Law giving a recognition to the Contract Staffing or Temp Staffing Industry?

Recently the Government of India introduced THE PROHIBITION OF SEXUAL HARASSMENT OF WOMEN AT WORKPLACE BILL, 2010.

In the Bill the following definitions are noteworthy:
2 (f) “employee" means a person employed at a workplace for any work on regular, temporary, adhoc or daily wage basis, either directly or by or through an agent, including a contractor, with or without the knowledge of the principal employer, whether for remuneration or not, or working on a voluntary basis or otherwise, whether the terms of employment are express or implied and includes a domestic worker, a co-worker, a contract worker, probationer, trainee, apprentice or by any other name called;
Contract Staff deputation is taken care by including a person employed at a workplace for any work on regular, temporary, adhoc or daily wage basis, either directly or by or through an agent, including a contractor, with or without the knowledge of the principal employer.

g) “employer” means:- (i) in relation to any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit of the appropriate Government or a local authority, the head of that department, organisation,undertaking, establishment, enterprise,institution, office, branch or unit or such other officer as the appropriate Government or the local authority, as the case may be, may by an order specify in this behalf; (ii) in any workplace not covered under clause (i), any person responsible for the management, supervision and control of the of the workplace;

l) “Workplace” includes:- (i) any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the appropriate Government or the local authority or a Government company or a corporation or a cooperative society(ii) any private sector organisation or a private venture, undertaking, enterprise, institution, establishment, society, trust, nongovernmental organisation, unit or service provider carrying on commercial, professional, vocational, educational, entertainmental, industrial or financial activities including production, supply, sale, distribution or service; (iii) a house or dwelling place; (iv) any place, vehicle either by air, land, rail or sea visited by the employee arising out of, or during and in the course of, employment;

Similarly in the Workplace definition the concept of service provider carrying on commercial, professional, vocational, educational, entertainmental, industrial or financial activities including production, supply, sale, distribution or service has been included.

Viewers may also note that THE PROHIBITION OF SEXUAL HARASSMENT OF WOMEN AT WORKPLACE BILL, 2010 is in the Bill stage and it has to be passed by both houses of Parliament ,then assent given by the President and then Notified in the Gazette to make it effective.

Thanks & Regards

V.Sounder Rajan -VS Rajan Associates,
Advocates & Notaries -Legal Consultants
No.27, Ist Floor, Singapore Plaza,
No.164, Linghi Chetty Street,
Chennai - 600 001.
E-mail : rajanassociates@eth,net,
Off : 044-42620864, 044-65874684,
Mobile : 9840142164-9025792684-9025792634

Sounder Rajan V (Advocate) 18 February 2011

Dear All

NEXT IMMEDIATE LEGAL QUESTIONS FOR INDIAN STAFFING OR TEMPING COMPANIES

What are the penal provisions in the EPF Act for non compliance of the provisions of Contribution both Employer and Employee by Staffing and Recruiting Companies?

The rate of penal damages for belated payment of EPF dues is as follows:

If the period of default less than 2 months -5 %
If the period of default is 2 months above but less than 4 months – 10 %
If the period of default is 4 months above but less than 6 months – 15 %
If the period of default is 6 months above–25 %

The above is in addition to 12 % simple interest .

Apart from the above the further consequences for default are:

Attachment of Bank Accounts

Realization of dues from Debtors[ Garnishee Order]

Attachment of moveable and immovable properties.

Arrest and detention in Prison..

Action under section 406/409 of the Indian Penal Code[ Criminal Law] and Section 110 of Cr .P.C

Prosecution.Prosecution for Non payment of contributions normally end in favour of the Department.Mandatory punishment of detention in Prison is provided .

Thanks & Regards

V.Sounder Rajan -VS Rajan Associates,
Advocates & Notaries -Legal Consultants
No.27, Ist Floor, Singapore Plaza,
No.164, Linghi Chetty Street,
Chennai - 600 001.
E-mail : rajanassociates@eth,net,
Off : 044-42620864, 044-65874684,
Mobile :9025792684-9025792634

Sounder Rajan V (Advocate) 22 February 2011

Dear All

NEXT IMMEDIATE LEGAL QUESTIONS FOR INDIAN STAFFING OR TEMPING COMPANIES

Are there any statutory provision to be followed by the Staffing or Temping Agency in respect of the Salary Payments of Contract employees sent by the Staffing or Temping Agency for work to the Client as per the CLRA Rules?

In the CLRA Rules reference can be found from Rule 63 to 73 of Chapter VI .The same is extracted below.

63. The contractor shall fix wage periods in respect of which wages shall be payable.

64. No wage period shall exceed one month.

65 The wages of every person employed as contract labour is an or- by a contractor where less than one thousand such persons are paid before the expiry of the seventh day; in other case before the expiry of the tenth after the last day of the wage period in respect of which the wages are payable.

66. Where the employment of any worker is terminated by or contractor the wages earned by him shall be paid before the expiry of the second working day from the day on which ‘he employment Is terminated.

67 All payments of wages shall be made on a working day at the work premises and during the working time and on a date notified in advance and in case the work is completed before the expiry of the wage period, final payment shall be made within forty eight hours of the last working days.

68.Wages due to every Worker shall be paid to him direct or to other person authorized by him in this behalf.

69.All wages shall be paid in current coin or currency or in both.

70. Wages shall be paid without any deductions of any kind except those specified by the Central Government by general or special order in this behalf or permissible under the Payment of Wages Act, 1936 (IV of 1936).

71. A notice showing the wage period and the place and time of disbursement of wage shall be displayed, at the place of work and copy sent by contractor to the principal employer under acknowledgment.

72. The principal employer shall ensure the presence of his authorized representative at the place and time of disbursement of wages by the contractor to workman and it shall be the duty of the contractor to ensure the disbursement wages in the presence of such authorized representative.

73. The authorized representative of the principal employer shall record under his signature a certificate at the end of the entries in the register of wages or the [Register of Wages-cum-Muster Roll as the case may be in following form:
“Certified that the amount shown in column No---------- has been paid to the workmen concerned in my presence on -------- at ---------“

In our earlier posts reference to Rule 66,72and 73 has been done.The remaining Rules are referred to in this Post.

Please note that the whole idea of Contract Labour Regulation on this aspect is to ensure timely payment of Salaries and the Law has provided for such stringent provisions as there will be a tendency to avoid/delay the Salaries by Contractors to the Contract Employees.

Thanks & Regards

V.Sounder Rajan -VS Rajan Associates,
Advocates & Notaries -Legal Consultants
No.27, Ist Floor, Singapore Plaza,
No.164, Linghi Chetty Street,
Chennai - 600 001.
E-mail : rajanassociates@eth,net,
Off : 044-42620864, 044-65874684,
Mobile :9025792684-9025792634

Sounder Rajan V (Advocate) 24 February 2011

Dear All

NEXT IMMEDIATE LEGAL QUESTIONS FOR INDIAN STAFFING OR TEMPING COMPANIES

In case the Staffing or Temping Company engages women Employees and they are sent for work at the Clients place what are the special provision in the CLRA Rules on welfare measures for them?

Rule25. Of the CLRA Rules provides that Every licence granted under sub-section (1) of Sec. 12 shall be in Form VI.and (2) Every licence granted under sub-rule (11) or renewed under 29 shall be subject to the following conditions, namely:

(a) In every establishment where twenty or more women are ordinarily employed as contract labour, there shall be provided two rooms of reasonable dimensions for the use of their children under the age of six year

(b) one of such rooms shall be used as a play-room for the children and the other as bed-room for the children;

(c) the contractor shall supply adequate number of toys and games in the play¬room and sufficient number of -cots and bedding in the sleeping room;

(d) the standard of construction and maintenance of the creches shall be such as may be specified in this behalf by the Chief Labour Commissioner-(Central);

By the above provision in case the Staffing Agency employs 20 or more women the necessity of compliance of the above provision may be necessitated.

It is understood that implementation of the above provision is presently limited to Factories and the time when it is extended to all Establishments is not far off.

Thanks & Regards

V.Sounder Rajan -VS Rajan Associates,
Advocates & Notaries -Legal Consultants
No.27, Ist Floor, Singapore Plaza,
No.164, Linghi Chetty Street,
Chennai - 600 001.
E-mail : rajanassociates@eth,net,
Off : 044-42620864, 044-65874684,
Mobile :9025792684-9025792634

Sounder Rajan V (Advocate) 28 February 2011

Dear All

NEXT IMMEDIATE LEGAL QUESTIONS FOR INDIAN STAFFING OR TEMPING COMPANIES

Is there any provision for issue of Temporary Certificate of Registration in the CLRA?

Yes where conditions arise in an establishment requiring the employment of contract labour immediately and such employment is estimated to last for not more than fifteen days, the principal employer of the establishment or the contractor, as the case may be, may apply for a temporary certificate of registration or license to the Registering officer or the licensing Officer.

Rule 32 of the CLRA Rules provide for handling this situation.

32. Grant of temporary certificate of registration and licence

(1) Where conditions arise in an establishment requiring the employment of contract labour immediately and such employment is estimated to last for not more than fifteen days, the principal employer of the establishment or the contractor, as the case may be, may apply for a temporary certificate of registration or licence to the Registering officer or the licencing Officer, as the case may be, having jurisdiction over the area in which the establishment is situated.

(2) The application such temporary registration or licence shall be made in triplicate in Forms VIII and X, respectively and shall be accompanied by a Demand draft drawn in favour of the Pay and Accounts Officer, Office of the Chief Labour Commissioner (Central), New Delhi showing the payment of appropriate fees and in this case of the licence appropriate amount of security also. -

(3) On receipt of the application, complete in all respects, and on being satisfied either on affidavit by the applicant or otherwise that the work in respect of which the application has been made would be finished in a period of a nature which could not be carried out immediately the registering Officer or the Licensing Officer as the case may be, sha1l forthwith grant a certificate of registration of Form, or a licence in Form XL as the case may be, for a period of not more than fifteen days.

(4) Where a certificate of registration or licence is not granted the reasons therefor shall be recorded by the registering Officer or the LicensIng 0fficer as the case maybe.

(5) On the expiry of the validity of the registration certificate the establishment shall cease to employ in the establishment contract labour in respect of which the certificate was given.

It is better for Staffing Companies and Principal Employers to apply for Temporary Registration when such need arises.

Thanks & Regards

V.Sounder Rajan -VS Rajan Associates,
Advocates & Notaries -Legal Consultants
No.27, Ist Floor, Singapore Plaza,
No.164, Linghi Chetty Street,
Chennai - 600 001.
E-mail : rajanassociates@eth,net,
Off : 044-42620864, 044-65874684,
Mobile :9025792684-9025792634

Sounder Rajan V (Advocate) 04 March 2011

Dear All

NEXT IMMEDIATE LEGAL QUESTIONS FOR INDIAN STAFFING OR TEMPING COMPANIES

In case a CLRA Licence is obtained for deploying Contract Labour and it specifies the number of persons to be employed can the Contractor deploy in excess of the number ?

Rule 25 II of CLRA Rules specifies the number of workman employee as contract labour in the establishment shall not, on any day, exceed the maximum number specified in the licence and when the licence is issued and specifies the numbers it cannot be exceeded .

With Regards

V.Sounder Rajan
VS Rajan Associates,
Advocates & Notaries & Legal Consultants
No.27, Ist Floor, Singapore Plaza,
No.164, Linghi Chetty Street,
Chennai - 600 001.
E-mail : rajanassociates@eth,net,
Off : 044-42620864, 044-65874684,
Mobile : 9025792684-9025792634

Sounder Rajan V (Advocate) 07 March 2011

Dear All

NEXT IMMEDIATE LEGAL QUESTIONS FOR INDIAN STAFFING OR TEMPING COMPANIES

Is there any responsibility for the Contractor to maintain canteen for the welfare of Contract Employees ?

Yes Rule 42 of the CLRA Rules prescribes on the provision of Canteens and reads like this.

42.—(1) In every establishment to which the Act applies and wherein work regarding the employment of contract labour is likely to continue for six months and labour numbering one hundred or more are ordinarily employed an adequate canteen shall be provided by the contractor for the use of such contract labour within sixty days of the date of coming into force of the rules in the case of the existing establishments and within sixty days of the commencement of contract labour In the case of the establishments of the employment

(2) If the contractor fails to provide the canteen within the time laid down the same shall be provided by the principle employer within sixty days of the expiry of the time allowed to the contractor.

(3)The canteen shall be maintained by the contractor or principal employer; as the case may be, in an efficient manner

43. (1) The canteen shall consist of at least a dining hall; kitchen, store room, pantry and washing places separately for workers and for utensils.
(2)(i) The canteen shall be sufficiently lighted at all times when any person has, access to it.
(ii) The floor’ shall be made of smooth and impervious material and inside walls shall be lime-washed or colour-washed at least once in each year
Provided that the inside walls of the kitchen shall be lime-washed every four months.
(3)(i) The precincts of the canteen shall be maintained in, a. clean and sanitary condition.
(ii) Suitable arrangements shall be made for the collection and disposal of garbage.

44.(1) The dining-hall shall accommodate at a time at least 30 percent of the contract labour working at a time.

(2)The floor area of the dining-hall, excluding the area occupied by the service in the counter and any furniture except tables and chairs shall be not less than one square metre per diner to be accommodated as prescribed In sub-rule (1). -

(3) (i) A portion of the dining-hall and service counter shall be partitioned off and reserved for women workers, in proportion to their number,,.
(ii) Washing places for women shall be separate and screened to secure private.

(4)Sufficient tables, stools, chairs or benches shall be available for the number of diners to be accommodated as prescribed in sub-rule (1).

45 (1) (i) There shall be provided and maintained sufficient utensils, crockery, cutlery, furniture and any other equipment necessary for the sufficient running of the canteen,
(ii)The furniture, utensils and other equipment. shall be and Hygienic condition.

(2) (1) Suitable clean clothes for the employees’ service in the canteen shall also be provided and maintained
(ii)A service -counter, if provided, shall have top of smooth and impervious material.
(iii) Suitable facilities including an adequate supply of hot water shall be provided for the cleaning of utensils and equipment.

46.The foodstuffs and other items to be served in the canteen shall be in conformity with the normal habits of the contract labour.

47 The charges for foodstuffs, beverages and any other items served in the canteen shall be based on “no-profit, no loss” and shall be conspicuously displayed in the canteen

48. In arriving at the prices of foodstuffs and other articles served in the canteen the following items shall not be taken into consideration as expenditure, namely’
(a) the rent for the land and buildings;

(b) the depreciation and maintenance charges for the building and ‘equipment provided for in the canteen;
(c) the cost of purchase, repairs and replacement of equipment including furniture, crockery, cutlery and utensils;
(d) the water charges and other charges incurred for lighting and ventilation;
(e) the interest on the maintenance of amounts spent on the provision and maintenance of furniture and equipment provided for canteen.

49. The books of accounts and registers and other documents used in connection with the running of the canteen shall be produced on demand to an inspector.

50.The account pertaining to the canteen shall be audited once every twelve months by registered accountants and auditors

Provided that the Chief Labour Commissioner (general) may approve of any other person to audit the accounts, if he is satisfied that it is not feasible to appoint a registered accountant and auditor i view of the site or the location of the canteen.

The Staffing Entity taking a CLRA Licence and employing contract or Temporary labour which is likely to continue for six months and contract labour numbering one hundred or more are ordinarily employed would require the above compliance.
With Regards

V.Sounder Rajan
VS Rajan Associates,
Advocates & Notaries & Legal Consultants
No.27, Ist Floor, Singapore Plaza,
No.164, Linghi Chetty Street,
Chennai - 600 001.
E-mail : rajanassociates@eth,net,
Off : 044-42620864, 044-65874684,
Mobile : 9025792684-9025792634

Sounder Rajan V (Advocate) 09 March 2011

Dear All

NEXT IMMEDIATE LEGAL QUESTIONS FOR INDIAN STAFFING OR TEMPING COMPANIES

Whether there is any classification of workmen in the Model Standing Orders in respect of Industrial Establishment?

Yes ,SCHEDULE I of [MODEL STANDING ORDERS IN RESPECT OF INDUSTRIAL ESTABLISHMENTS provides the following :

2. Classification of workmen.--(a) Workmen shall be classified as --
(1) permanent,
(2) Probationers,
(3) badlis,
(4) temporary,
(5) casual,
(6) apprentices.

(b) A “permanent workman” is a workman who has been engaged on a permanent basis and includes any person who has satisfactorily completed a probationary period of three months in the same or another occupation in the industrial establishment, including breaks due to sickness, accident, leave, lock-out, strike (not being an illegal strike) or involuntary closure of the establishment.

(c) A “probationer” is a workman who is provisionally employed to fill a permanent vacancy in a post and has not completed three months’ service therein. If a permanent employee is employed as a probationer in a new post he may, at any time during the probationary period of three months, be reverted to his old permanent post.

(d) A “badli” is a workman who is appointed in the post of a permanent workman or probationer who is temporarily absent.

(e) A “temporary workman” is a workman who has been engaged for work which is of an essentially temporary nature likely to be finished within a limited period.

(f) A “casual workman” is a workman whose employment is of a casual nature.

(g) An “apprentice” is a learner who is paid an allowance during the period of his training.

The import of the definition of “temporary workman” can be understood to be one who has been engaged for work which is of an essentially temporary nature likely to be finished within a limited period.

With Regards

V.Sounder Rajan
VS Rajan Associates,
Advocates & Notaries & Legal Consultants
No.27, Ist Floor, Singapore Plaza,
No.164, Linghi Chetty Street,
Chennai - 600 001.
E-mail : rajanassociates@eth,net,
Off : 044-42620864, 044-65874684,
Mobile : 9025792684-9025792634

Sounder Rajan V (Advocate) 14 March 2011

Dear All

NEXT IMMEDIATE LEGAL QUESTIONS FOR INDIAN STAFFING OR TEMPING COMPANIES

Is there any liability on the part of the Principal Employer to provide amenities like supply of Wholesome drinking water, a sufficient number of latrines and urinals, washing facilities and first-aid facilities, to the Contract workers on failure by Contractor ?

Yes Rule 40.(1) of the CLRA Rules provide that the facilities required to be provided under Sec., 18 and 19 of the CLRA, namely provision of sufficient supply of Wholesome drinking water, a sufficient number of latrines and urinals, washing facilities and first-aid facilities, shall be provided by the contractor in the case of existing establishment within seven days of the commencement of these rules and in the case of new establishments within seven days of the commencement of the employment of contract labour therein and sub rule (2) if any of the facility mentioned in sub-rule(1) is not provided by the contractor within the period prescribed the same shall be provided by the principal employer within seven days of the expiry of period in the said sub-rule.

Therefore on failure by the Contractor the principal employer becomes liable to provide amenities like supply of Wholesome drinking water, a sufficient number of latrines and urinals, washing facilities and first-aid facilities, to the Contract workers.

With Regards

V.Sounder Rajan
VS Rajan Associates,
Advocates & Notaries & Legal Consultants
No.27, Ist Floor, Singapore Plaza,
No.164, Linghi Chetty Street,
Chennai - 600 001.
E-mail : rajanassociates@eth,net,
Off : 044-42620864, 044-65874684,
Mobile : 9025792684-9025792634

Sounder Rajan V (Advocate) 17 March 2011

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
VS Rajan Associates,
Advocates & Notaries & Legal Consultants
No.27, Ist Floor, Singapore Plaza,
No.164, Linghi Chetty Street,
Chennai - 600 001.
E-mail : rajanassociates@eth,net,
Off : 044-42620864, 044-65874684,
Mobile : 9025792684-9025792634

Sounder Rajan V (Advocate) 21 March 2011

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
VS Rajan Associates,

Advocates & Notaries
Legal Consultants
No.27, Ist Floor, Singapore Plaza,
No.164, Linghi Chetty Street,
Chennai - 600 001.
E-mail : rajanassociates@eth,net,
Off : 044-42620864, 044-65874684,
Mobile : 9025792684-9025792634

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