Labour Gratuity

Describe the scope of payement of gratuity act 1972, to who this entire act does not apply. How the forfeiture of gratuity is applies to an employee.

1. Scope of coverage
2. Every factory (as defined in Factories Act), mine, oilfield, plantation, port and railway.
3. Every shop or establishment to which Shops & Establishment Act of a State applies in which 10 or more persons are employed at any time during the year end.
4. Any establishment employing 10 or more persons as may be notified by the Central Government.
5. Once Act applies, it continues to apply even if employment strength falls below 10.

The act does not apply to

a) Apprentices and

b) Persons who hold civil posts under central government or sate government and are governed by any other act or by any rules providing for payment of gratuity

PAYMENT OF GRATUITY
payment of gratuity by an employer to an employee as defined under the act is mandatory

(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 : Provided that the completion of continuous service of five years shall not be necessary where the termination of the employment of any employee is due to death or disablement : Provided further that in the case of death of the employee, gratuity payable to him shall be paid to his nominee or, if no nomination has been made, to his heirs, and where any such nominees or heirs is a minor, the share of such minor, shall be deposited with the controlling authority who shall invest the same for the benefit of such minor in such bank or other financial institution, as may be prescribed, until such minor attains majority. Explanation : For the purposes of this section, disablement means such disablement as incapacitates an employee for the work which he was capable of performing before the accident or disease resulting in such disablement.

(2) For every completed year of service or part thereof in excess of six months, the employer shall pay gratuity to an employee at the rate of fifteen days' wages based on the rate of wages last drawn by the employee concerned : Provided that in the case of a piece-rated employee, daily wages shall be computed on the average of the total wages received by him for a period of three months immediately preceding the termination of his employment, and, for this purpose, the wages paid for any overtime work shall not be taken into account : Provided further that in the case of an employee who is employed in a seasonal establishment and who is not so employed throughout the year, the employer shall pay the gratuity at the rate of seven days' wages for each season. Explanation : In the case of a monthly rated employee, the fifteen days' wages shall be calculated by dividing the monthly rate of wages last drawn by him by twenty-six and multiplying the quotient by fifteen.

(3) The amount of gratuity payable to an employee shall not exceed three lakhs and fifty thousand rupees.

(4) For the purpose of computing the gratuity payable to an employee who is employed, after his disablement, on reduced wages, his wages for the period preceding his disablement shall be taken to be the wages received by him during that period, and his wages for the period subsequent to his disablement shall be taken to be the wages as so reduced.

(5) Nothing in this section shall affect the right of an employee to receive better terms of gratuity under any award or agreement or contract with the employer.

(6) Notwithstanding anything contained in sub-section (1),

     (a)The gratuity of an employee, whose services have been terminated for any act, willful omission or negligence causing any
         damage or loss to, or destruction of, property belonging to the employer, shall be forfeited to the extent of the damage or
          loss so caused.

     (b) The gratuity payable to an employee may be wholly or partially forfeited -

            (i) If the services of such employee have been terminated for his riotous or disorderly conduct or any other act of violence
                on his part, or

            (ii) If the services of such employee have been terminated for any act which constitutes an offence involving moral
                 turpitude, provided that such offence is committed by him in the course of his employment. explain the procedure for
                 determination and recovery of gratuity determination of gratuity:

A person who is eligible for payment of gratuity under this Act or any person authorised, in writing to act on his behalf shall send a written application to the employer, within such time and in such form, as may be prescribed, for payment of such gratuity.

As soon as gratuity becomes payable, the employer shall, whether an application referred to in sub-section (1) has been made or not, determine the amount of gratuity and give notice in writing to the person to whom the gratuity is payable and also to the controlling authority specifying the amount of gratuity so determined.

The employer shall arrange to pay the amount of gratuity within thirty days from the date it becomes payable to the person to whom the gratuity is payable.

(3A) If the amount of gratuity payable under sub-section (3) is not paid by the employer within the period specified in sub-section (3), the employer shall pay, from the date on which the gratuity becomes payable to the date on which it is paid, simple interest at such rate, not exceeding the rate notified by the Central Government from time to time for repayment of long-term deposits, as that Government may, by notification specify: Provided that no such interest shall be payable if the delay in the payment is due to the fault of the employee and the employer has obtained permission in writing from the controlling authority for the delayed payment on this ground.]

(4) (a) If there is any dispute to the amount of gratuity payable to an employee under this Act or as to the admissibility of any claim of, or in relation to, an employee for payment of gratuity, or as to the person entitled to receive the gratuity, the employer shall deposit with the controlling authority such amount as he admits to be payable by him as gratuity. 2[***]

3[(b) Where there is a dispute with regard to any matter or matters specified in clause (a), the employer or employee or any other person raising the dispute may make an application to the controlling authority for deciding the dispute.]

4[(C) The controlling authority shall, after due inquiry and after giving the parties to the dispute a reasonable opportunity of being heard, determine the matter or matters in dispute and if, as a result of such inquiry any amount is found to be payable to the employee, the controlling authority shall direct the employer to pay such amount or, as the case may be, such amount as reduced by the amount already deposited by the employer.]

5[(d)] The controlling authority shall pay the amount deposited, including the excess amount, if any, deposited by the employer, to the person entitled thereto.

5[(e)] As soon as may be after a deposit is made under clause (a), the controlling authority shall pay the amount of the deposit-

(i) to the applicant where he is the employee; or

(ii) where the applicant is not the employee, to the 6[nominee or, as the case may be, the guardian of such nominee or] heir of the employee if the controlling authority is satisfied that there is no dispute as to the right of the application to receive the amount of gratuity.

(5) For the purpose of conducting an inquiry under sub-section (4), the controlling authority shall have the same powers as are vested in a court, while trying a suit, under the Code of Civil Procedure, 1908 (5 of 1908), in respect of the following matters, namely:-

• Enforcing the attendance of any person or examining him on oath;
• Requiring the discovery and production of documents;
• Receiving evidence on affidavits;
• Issuing commissions for the examination of witnesses.
  Recovery of gratuity:

If the amount of gratuity payable under this Act is not paid by the employer, within the prescribed time, to the person entitled thereto, the controlling authority shall, on an application made to it in this behalf by the aggrieved person, issue a certificate for that amount to the Collector who shall recover the same, together with compound interest thereon 1[at such rate as the Central Government may, by notification, specify], from the date of expiry of the prescribed time as arrears of land revenue and pay the same to the person entitled thereto

Labour Dispute

How would you categories a dispute into an industrial dispute. Explain illegal strike and lockouts
industrial dispute

Disagreement between an employer and its employees, usually represented by a trade union, over some aspect of the terms or conditions of employment. A dispute is often followed by industrial action, in the form of a strike or a work to rule.

A dispute arising from the negotiation ct a new collective agreement or the revision of on existing agreement on expiry.

An industrial dispute must necessarily be a dispute in an industry. An industrial dispute has three ingredients

• There should be real and substantial dispute or difference.
• The dispute or difference must be between employers and or workmen.

The dispute or difference must be connected with employment and non-employment, or with the conditions of labour of any person.

• The following dispute have been categorized as industrial dispute
• allegation of wrongful termination of service
• Compulsory retirement employee
• Claim for reinstatement of dismissed workmen.
• Dispute connected with minimum wages
• Dispute regarding payment to be made under production bonus scheme
• Claim fro compensation for wrongful dismissal.
• Dispute regarding interpretation of standing orders
• Dispute relating to lock out or bona fide and genuine closure of business.
• Non implementation of award and claim for compensation payable by workmen to the employer for loss caused by strike and
• Demand of an employee relating to his confirmation on a post holding in an acting capacity.

Strike and lockout are two coercive measure resorted to by the employees and the employers respectively, for compelling the employers or employees to accept their demands or conditions or services.

Strike (industrial)
Stoppage of work by employees, often as members of a trade union, to obtain or resist change in wages, hours, or conditions.

Strikes may be 'official' (union-authorized) or 'wildcat' (undertaken spontaneously), and may be accompanied by a sit-in or work-in, the one being worker occupation of a factory and the other continuation of work in a plant the employer wishes to close. In a 'sympathetic' strike, action is in support of other workers on strike elsewhere, possibly in a different industry. A general strike is action by members of several key industries, that aims to halt a country's economic activity.
Illegal strike
A strike called in violation of the law. Strikes are generally illegal when they occur as a result of a dispute over the interpretation of a collective agreement currently in force, when they occur before conciliation procedures have been complied with, or when certification proceedings are under way. If the strike is illegal, workmen are not only liable to those wages but are also liable to punishment by way of discharge or dismissal. Workers are however entitled to wages for a period of lock out which is illegal and unjustified. A lockout is a weapon of an employer to thwart or enforce such change by preventing employees from working. Another measure is work to rule, when production is virtually brought to a halt by the strict following of union rules.

ILLEGAL STRIKES AND LOCK-OUTS

1. A strike or a lock-out shall be illegal if - (i) it is commenced or declared in contravention of section 22 or section 23; or(ii) it is continued in contravention of an order made under sub-section (3) of section 10 [ lda-136 or sub-section (4A) of section 10A;.
2. Where a strike or lock-out in pursuance of an industrial dispute has already commenced and is in existence at the time of the reference of the dispute to a Board, an arbitrator, a Labour Court, Tribunal or National Tribunal, the continuance of such strike or lock-out shall not be deemed to be illegal, provided that such strike or lock-out was not at its commencement in contravention of the provisions of this Act or the continuance thereof was not prohibited under sub-section (3) of section 10 or sub-section (4A) of section 10A.
3. A lock-out declared in consequence of an illegal strike or a strike declared in consequence of an illegal lock-out shall not be deemed to be illegal.

Labour Factory Act 1948 (Part-I)

Describe objective, scope and coverage of factories act 1948. What are the employer's obligations in it?
The Factories Act, 1948 Objectives:

1. To ensure adequate safety measures and to promote the health and welfare of the workers employed in factories.
2. To prevent haphazard growth of factories through the provisions related to the approval of plans before the creation of a factory.
3. To regulate the working condition in factories, regulate the working hours, leave, holidays, overtime, employment of children, women an d young persons ext.
4. Scope and coverage
5. Regulates working condition in factories.
6. Basic minimum requirements for ensuring safety, health and welfare of workers.
7. Applicable to all workers.
8. Applicable to all factories using power and employing 10 or more workers, and if not using power, employing 20 or more workers on any day of the preceding 12 months.

Main provisions
• Compulsory approval, licensing and registration of factories.
• Health measures.
• Safety measures.
• Welfare measures.
• Working hours.
• Employment of women and young persons.
• Annual leave provision.
• Accident and occupational diseases.
• Dangerous operations.
• Penalties.
• Obligations and rights of employees.  

Obligation of employers:

1. Compulsory approval: the occupier of any factory has to obtain prior approval of the state government for the site on which the factory is to be situated and for the construction or extension of a factory.
2. registration/license and notice by occupier: The occupier of factory is also required to get the factory registered for obtaining a license for operating it and send a notice of occupation to a chief inspector of factories, at least 15 days before he begins to occupy the factory. The application for registration and notice of occupation shall be submitted in triplicate in the prescribed fee and such other information as may be required by the licensing authority. The license fee shall be paid a Treasury challenge under the appropriate head of the account.
3. Notice of change of manager: whenever a new manager is appointed the occupier must intimate the inspector and the chief inspector in the PRESCRIBE FORM, WITHIN 7 DAYS FROM THE DATE HE TAKES OVER THE CHARGE
4. General duties as to health, safety and welfare of workers: Every occupier shall

• Ensure, so far as is reasonably practicable, the health, safety and welfare of all workers while they are at work in the factory
• Provide and maintain plant and systems of work in the factory that are safe and without risks to health
• Make arrangements for ensuring safety and absence of risks to health in connection with the use, handling, storage and transport of article and substances.
• Provide necessary information, instruction, training and supervision for health and safety of all workers.
• Maintain all places in the factory in a condition that is safe and without risks to health.
• Provide and maintain such working environment in the factory that is safe, without risks to health and with adequate facilities and arrangements for the welfare of workers

CERTIFICATES OF FITNESS:

1. A certifying surgeon shall, on the application of any young person or his parent or guardian accompanied by a document signed by the manager of a factory that such person will be employed therein if certified to be fit for work in a factory, or on the application of the manager of the factory in which any young person wishes to work, examine such person and ascertain his fitness for work in a factory.
2. The certifying surgeon, after examination, may grant to such young person, in the prescribed form, or may renew -

• A certificate of fitness to work in a factory as a child, if he is satisfied that the young person has completed his fourteenth year, that he has attained the prescribed physical standards and that he is fit for such work.
• A certificate of fitness to work in a factory as an adult, if he is satisfied that the young person has completed his fifteenth year, and is fit for a full day's work in a factory : Provided that unless the certifying surgeon has personal knowledge of the place where the young person proposes to work and of the manufacturing process in which he will be employed, he shall not grant or renew a certificate under this sub-section until he has examined such place.

3. A certificate of fitness granted or renewed under sub-section (2)

1. Shall be valid only for a period of twelve months from the date thereof;
2. may be made subject to conditions in regard to the nature of the work in which the young person may be employed, or requiring re-examination of the young person before the expiry of the period of twelve months.

4. A certifying surgeon shall revoke any certificate granted or renewed under sub-section (2) if in his opinion the holder of it is no longer fit to work in the capacity stated therein in a factory.
5. Where a certifying surgeon refuses to grant or renew a certificate or a certificate of the kind requested or revokes a certificate, he shall, if so requested by any person who could have applied for the certificate or the renewal thereof, state his reasons in writing for so doing.
6. Where a certificate under this section with reference to any young person is granted or renewed subject to such conditions as are referred to in clause (b) of sub-section (3), the young person shall not be required or allowed to work in any factory except in accordance with those conditions.
7. Any fee payable for a certificate under this section shall be paid by the occupier and shall not be recoverable from the young person, his parents or guardian.

EMPLOYMENT OF YOUNG PERSONS ON DANGEROUS MACHINES. - (1) No young person shall be required or allowed to work at any machine to which this section applies, unless he has been fully instructed as to the dangers arising in connection with the machine and the precautions to be observed and - (a) has received sufficient training in work at the machine, or  (b) Is under adequate supervision by a person who has a thorough knowledge and experience of the machine. (2) Sub-section (1) shall apply to such machines as may be prescribed by the State Government, being machines which in its opinion are of such a dangerous character that young persons ought not to work at them unless the foregoing requirements are complied with.

1. General duties as regards article and substances for use in factories: Every person who design, manufacture, Imports or supplies any article for use in any factory shall

• Ensure, so far as is reasonably practicable, that the article is so designed and constructed as to be safe and without risks to health of the workers when properly used
• Take necessary steps to ensure that adequate information will be available in the connection with the use of the article and conditions necessary to ensure that the article, when put to such use, will be safe and without risks to health of the workers.

2. To provide health measure: The occupier of factory is obligated to undertake following measure for measures for ensuring good health and physical fitness:-

• The occupier is required to keep the factory premises clean and free waste and effluvia. should make arrangement for sweeping and removing dirt daily.
• Keep the factory adequately ventilated temperature and humid.
• Prevents dust and fumes
• Avoid overcrowding

Sufficient and suitable natural or artificial Lighting and wholesome drinking water at suitable points and during hot season.

Every factory should provide and, maintain latrine, urinals and spittoons LATRINES AND URINALS. -

 (1) In every factory

1. Sufficient latrine and urinal accommodation of prescribed types shall be provided conveniently situated and accessible to workers at all times while they are at the factory.
2. Separate enclosed accommodation shall be provided for male and female workers.
3. Such accommodation shall be adequately lighted and ventilated, and no latrine or urinal shall, unless specially exempted in writing by the Chief Inspector, communicate with any workroom except through an intervening open space or ventilated passage.
4. All such accommodation shall be maintained in a clean and sanitary condition at all times.
5. Sweepers shall be employed whose primary duty it would be to keep clean latrines, urinals and washing places.

(2) In every factory wherein more than two hundred and fifty workers are ordinarily employed

1.  All latrine and urinal accommodation shall be of prescribed sanitary types.
2. The floors and internal walls, up to a height of ninety centimeters, of the latrines and urinals and the sanitary blocks shall be laid in glazed titles or otherwise finished to provide a smooth polished impervious surface.
3. Without prejudice to the provisions of clauses (d) and (e) of sub-section (1), the floors, portions of the walls and blocks so laid or finished and the sanitary pans of latrines and urinals shall be thoroughly washed and cleaned at least once in every seven days with suitable detergents or disinfectants or with both.

(3) The State Government may prescribe the number of latrines and urinals to be provided in any factory in proportion to the numbers of male and female workers ordinarily employed therein, and provide for such further matters in respect of sanitation in factories, including the obligation of workers in this regard, as it considers necessary in the interest of the health of the workers employed therein.

FIRST AID APPLIANCES.

1. There shall in every factory be provided and maintained so as to be readily accessible during all working hours first-aid boxes or cupboards equipped with the prescribed contents, and the number of such boxes or cupboards to be provided and maintained shall not be less than one for every one hundred and fifty workers ordinarily employed at any one time in the factory.
2. Nothing except the prescribed contents shall be kept in a first-aid box or cupboard.
3. Each first-aid box or cupboard shall be kept in the charge of a separate responsible person who holds a certificate in first-aid treatment recognized by State Government and who shall always be readily available during the working hours of the factory.
4. In every factory wherein more than five hundred workers are ordinarily employed there shall be provided and maintained an ambulance room of the prescribed size, containing the prescribed equipment and in the charge of such medical and nursing staff as may be prescribed and those facilities shall always be made readily available during the working hours of the factory.

7) To undertake safety measures:

Every factory must take appropriate safety measure as provided under the act

1) Fencing of all dangerous and moving parts of the machinery while in motion or use
2) Young persons (between 15 to 18) are not supposed to work on any dangerous machine without adequate training and supervision.
3) Keeping floors, stairs, steps, etc free from obstructions and slippery substances and provided with substantial handrails.
4) taking necessary precautions and providing screens or goggles for protection of eyes, precautions to prevent exposure to dangerous fumes, gases or dust, and measure to prevent accumulation of explosive or in flammable dust, fumes , gases or vapors.

Welfare amenities:

All the factories shall provide adequate and suitable facilities for
a) Washing and drying of wet cloths and storing of cloths
b) Sitting arrangements for employee who are required to work in standing position in order that they may take shorts rests in the course of their work
c) First aid box or cupboards equipped with prescribe contents shall be provided
d) Factory should provide ambulance room if workers are more than 500
e) The canteen should be provided with sufficient light and ventilated
f) They should provide drinking water in rest rooms, shelters and lunch rooms.
g) Crèches should provide when more tan 30 women workers are employed in than factory.

Working hours, holidays and overtime:

1) Restriction for women workers not to work at night. And the child below 14 is not to be employed in the factory
2) No dual employment
3) The working hours for an adult should not exceed 48 hours in a week.
4) Every worker should allowed at least half an hour rest interval after a maximum working of 5 hours at a stretch
5) No overlapping of shift
6) Every worker should have one holiday in a week
7) If a person does more work at usual time he should receive the wages double the ordinary rate of wages

Leave with wages:

Earned leave- every workers who has worked for a period of 240 days or more during a calendar year or. If his services commence after first of January, then for at least two third s or the total number of days in the remaining part of the year. Display notice, maintain and submit returns:

The occupier and manager should required to intimate ant intention of closure of factory or any section or department thereof, along with the reasons for such closure, number of workers to be affected, etc. they should also maintain register of accidents and dangerous occurrence, inspection book etc. the manager is generally required to furnish certain returns such as annual return, half yearly returns which relating to wages, leaves holidays etc.

DISPLAY OF NOTICES. - (1) In addition to the notices required to be displayed in any factory by or under this Act, there shall be displayed in every factory a notice containing such abstracts of this Act and of the rules made thereunder as may be prescribed and also the name and address of the Inspector and the certifying surgeon.

(2) All notices required by or under this Act to be displayed in a factory shall be in English and in a language understood by the majority of the workers in the factory, and shall be displayed at some conspicuous and convenient place at or near the main entrance to the factory, and shall be maintained in a clean and legible condition.

(3) The Chief Inspector may, by order in writing served on the manager of any factory, require that there shall be displayed in the factory any other notice or poster relating to the health, safety or welfare of the workers in the factory.

RETURNS: - The State Government may make rules requiring owners, occupiers or managers of factories to submit such returns, occasional or periodical, as may in its opinion be required for the purposes of this Act. Notice of accidents, dangerous occurrence and diseases: the manager of a factory is required to send notice of the fatal and other accidents causing disablement to worker for a period of 48 hours or more, dangerous occurrences whether causing any bodily, injury or not, and any worker contacting any occupational disease Obligations regarding hazardous process/ substances; The manager required to undertake the following measure for ensuring safety of life and health of the workers the occupier or manager inform the workers, the local authority and the general public in the vicinity of the factory, about the dangerous and health hazards caused by the hazardous process

a) They should have plane to handle usage and storage of hazardous inside the factory and their deposal outside the factory

b) The occupier shall also maintain accurate and up to date health/medical records of the workers who are exposed to any chemical, toxic or ant other harmful substances.