Staffing & recruiting industry -legal updates

Sub: Dealing with Temporary Employees Absconding cases in the Staffing Industry


Dear All

In the Staffing Industry one can find several instances of the Temporary Employees absconding from the place of work.i.e the place of the Principal Employer.

In such cases the Temporary Employee need to be terminated so that the Full & Final is done and the name removed from Pay rolling records.

Securing this process is a challenge for the HR Managers of Staffing and Temping Business .

The process will be dependent on each of the Staffing Company HR practice and needs of the Client.

There is a practice in the Staffing Industry that until the principal Employer i.e the Client gives the “No dues “the F & F cannot be done .This is a Standard practice in the Temping and Staffing Industry.Therefore the Termination practice has to be synchronized with that.

Staffing Companies have to have a secure Legal Department or avail Expert Legal advice on Severance and Termination practices tailor made for their needs which in the long run will be a security for the Staffing Industry to avoid post termination claims by the Temporary Employees which may make inroads into the slender margins earned from the Principal Employer [Client] .



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 : 9840142164-9025792684-9025792634

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 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

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

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

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

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

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

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

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
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,