Queries
Dear All

We are specially creating this Post for the Staffing & Recruiting Industry which has seen tremendous growth in the past 5 years. To keep pace Professionals need to keep themselves updated on the Legal compliance .

Many International players have come into the Indian Scene. But India consisting of Different States and Labour being on the Concurrent List the Legislation can be done both by the Centre and the States.That is why in India we find so many Labour Legislations.

In fact China has pioneered in enacting a "Contracting Law" which regulates the Industry.

The supporters of Globalization want to do away with a so many Legislation but they have not understood the Federal Nature of Our Constitution and the answer for that should not be " a cry without any result". Till that goal of Standardisation of Labour Laws is reached the Industry to operate and function within the four corners of the existing Laws.This post is an begining in that direction.

With Regards

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
13th November 2010 From India , Pune

Dear All

We are specially creating this Post for the Staffing & Recruiting Industry which has seen tremendous growth in the past 5 years. To keep pace Professionals need to keep themselves updated on the Legal compliance .

Many International players have come into the Indian Scene. But India consisting of Different States and Labour being on the Concurrent List the Legislation can be done both by the Centre and the States.That is why in India we find so many Labour Legislation.

In fact China has pioneered in enacting a "Contracting Law" which regulates the Industry.

The supporters of Globalization want to do away with a so many Legislation but they have not understood the Federal Nature of Our Constitution and the answer for that should not be " a cry without any result". Till that goal of Standardization of Labour Laws is reached the Industry to operate and function within the four corners of the existing Laws.This post is an beginning in that direction.

With Regards

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
13th November 2010 From India , Pune

STATUTORY COMPLIANCE MOST RELEVANT TO STAFFING INDUSTRY

Labour Welfare Fund ACT Statement of Contribution along with cheque to be submitted to the Authority Concerned.

The Profession Tax ACT Monthly Returns along with cheque.

The Contract Labour (R&A) ACT, 1970 Half Yearly Return - by Contractor to be submitted to Asst. Labour Commissioner

The Maternity Benefit ACT, 1961 Annual Return

The (National & Festival Holidays) ACT, 1963 Annual Return.

The Minimum Wages ACT, 1948 Annual Return

The Contract Labour (R&A) ACT, 1970 Annual Return by Principal Employer.

The Payment of Wages ACT, 1936 Annual Return

The Employees Provident Fund ACT, 1952 3A & 6A Annual Individual Returns & Returns of Contributions to the Regional Provident Fund Commissioner.

The Employees State Insurance ACT, 1948 Summary of Contribution

The Contract Labour (R&A) ACT, 1970 Renewal of Licence .

The Payment of Bonus ACT, 1965 Annual Return

Shops & Establishment Act Renewal & Registration Certificate.

With Regards

VS Rajan Associates,
Advocates & Notaries & Legal Consultants for Staffing & Recruiting Industry
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
13th November 2010 From India , Pune

Dear All
We request to see ID Act amendment enforced - its impact - Business Manager - HR Magazine update which gives the overall picture.
As we have just touched upon one aspect of the Amendment Setting up of Grievance Redressal Machinery in relation to the Indian Staffing Industry,we shall follow up with other aspects .
With Regards
VS Rajan Associates,
Advocates & Notaries & Legal Consultants[HR]
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
20th November 2010 From India , Pune

Dear All

Sub : Effect of the Amendment- Sec 2 A of the Act - Sub Section (2) & (3) Direct reference of Dispute.

Earlier the Temp could not approach a Labour Court without the assistance of a Labour Union. Now by the amendment he/she can approach the Labour court directly. This a drastic provision and will have a crippling effect on the Staffing Industry.

The remedy is:

1. First he/she has to make an application to the Labour Department Conciliation Officer.
2. If no action is taken by the Conciliation Officer then he/she can file an application to the Labour Court for adjudication of the Dispute.
3. Time limit for questioning all such disputes in relation to discharge, dismissal, termination or retrenchment is 3 years.

Issue for Staffing Industry:

1. Individual Employee grievance is subject to Conciliation by Labour Officer and thereafter by Labour Court.

2. Will open the floodgates of Employee Litigation.

Tips for avoidance:

1. Need to have a strong Internal redressal mechanism thereby closing all issues internally.
2. Take Notices from individual Temps and their Lawyers seriously and solve them immediately.
3. A pro-temp approach even without consulting the Principal employer [Client] needs to be taken.
4.A separate provision needs to be made out of the Staffing Company's funds to effect pro-active settlements.

With Regards

VS Rajan Associates,
Advocates & Notaries & Legal Consultants for Staffing & Recruiting Industry
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
20th November 2010 From India , Pune

Dear All

In fact many of the Clients of the Staffing Industry insist Compliance of Contract Labour (Abolition & Regulation ) Act 1970 [CLRA] . The Clients without understanding the implications of CLRA and the Industry reciprocating it just for the sake of getting the Business undertake its compliance without understanding that Compliance of CLRA is not a one way route.It involves nutual dutes and responsibilities.

It is the basic rule of CLRA compliance that the Contractor cannot get a licence without registration by the Principal Employer. Therefore one needs two hands to clap.

The relevant provisions for begining the Compliance under CLRA are:

The Principal Employer needs to do the following :

7. Registration of certain establishments.-

(1) Every principal employer of an establishment to which this Act applies shall, within such period as the appropriate Government may, by notification in the Official Gazette, fix in this behalf with respect to establishments generally or with respect to any class of them, make an application to the registering officer in the prescribed manner for registration of the establishment: Provided that the registering officer may entertain any such application for registration after expiry of the period fixed in this behalf, if the registering officer is satified that the applicant was prevented by sufficient cause from making the application in time.

(2) If the application for registration is complete in all respects, the registering officer shall register the establishment and issue to the principal employer of the establishment a certificate of registration containing such particulars as may be prescribed.

8. Revocation of registration in certain cases.- If the registering officer is satisfied, either on a reference made to him in this behalf or otherwise, that the registration of any establishment has been obtained by misrepresentation or suppression of any material fact, or that for any other reason the registration has become useless or ineffective and, therefore, requires to be revoked, the registering officer may, after giving an opportunity to the principal employer of the establishment to be heard and with the previous approval of the appropriate Government, revoke the registration.

9. Effect of non- registration.- No principal employer of an establishment, to which this Act applies, shall--

(a) in the case of an establishment required to be registered under section 7, but which has not been registered within the time fixed for the purpose under that section,

(b) in the case of an establishment the registration in respect of which has been revoked under section 8, employ contract labour in the establishment after the expiry of the period referred to in clause (a) or after the revocation of registration referred to in clause (b), as the case may be.

Application has to be made in Form I and Certificate will be issued in Form II

The Contractor is required to do the following :

12. Licensing of contractors.-

(1) With effect from such date as the appropriate Government may, by notification in the Official Gazette, appoint, no contractor to whom this Act applies, shall undertake or execute any work through contract labour except under and in accordance with a licence issued in that behalf by the licensing officer.

(2) Subject to the provisions of this Act, a licence under sub- section (1) may contain such conditions including, in particular, conditions as to hours of work, fixation of wages and other essential amenities in respect of contract labour as the appropriate Government may deem fit to impose in accordance with the rules, if any, made under section 35 and shall be issued on payment of such fees and on the deposit of such sum, if any, as security for the due performance of the conditions as may be prescribed.

13. Grant of licences.-

(1) Every application for the grant of a licence under sub- section (1) of section 12 shall be made in the prescribed form and shall contain the particulars regarding the location of the establishment, the nature of process, operation or work for which contract labour is to be employed and such other particulars as may be prescribed.

(2) The licensing officer may make such investigation in respect of the application received under sub- section (1) and in making any such investigation the licensing officer shall follow such procedure as may be prescribed.

(3) A licence granted under this Chapter shall be valid for the period specified therein and may be renewed from time to time for such period and on payment of such fees and on such conditions as may be prescribed.

14. Revocation, suspension and amendment of licences.-

(1) If the licensing officer is satisfied, either on a reference made to him in this behalf or otherwise, that--

(a) a licence granted under section 12 has been obtained by misrepresentation or suppression of any material fact, or

(b) the holder of a licence has, without reasonable cause, failed to comply with the conditions subject to which the licence has been granted or has contravened any of the provisions of this Act or the rules made thereunder, then, without prejudice to any other penalty to which the holder of the licence may be liable under this Act, the licensing officer may, after giving

the holder of the licence an opportunity of showing cause, revoke or suspend the licence or forfeit the sum, if any, or any portion thereof deposited as security for the due performance of the conditions subject to which the licence has been granted.

(2) Subject to any rules that may be made in this behalf, the licensing officer may vary or amend a licence granted under section 12.

Application is to be made under Form IV and the Licence will be issued under Form VI .

Next time when you undertake Compliance of CLRA the Industry needs to tell the Client of mutual duties and responsibilities.

With Regards

VS Rajan Associates,

Advocates & Notaries -Legal Consultants-HR

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.
22nd November 2010 From India , Pune

Sub:CLRA Mutual rights and Duties

Dear All

In fact many of the Clients of the Staffing Industry insist Compliance of Contract Labour (Abolition & Regulation ) Act 1970 [CLRA] . The Clients without understanding the implications of CLRA and the Industry reciprocating it just for the sake of getting the Business undertake its compliance without understanding that Compliance of CLRA is not a one way route.It involves mutual duties and responsibilities.

It is the basic rule of CLRA compliance that the Contractor cannot get a licence without registration by the Principal Employer. Therefore one needs two hands to clap.

The relevant provisions for beginning the Compliance under CLRA are:

The Principal Employer needs to do the following :

7. Registration of certain establishments.-
(1) Every principal employer of an establishment to which this Act applies shall, within such period as the appropriate Government may, by notification in the Official Gazette, fix in this behalf with respect to establishments generally or with respect to any class of them, make an application to the registering officer in the prescribed manner for registration of the establishment: Provided that the registering officer may entertain any such application for registration after expiry of the period fixed in this behalf, if the registering officer is satified that the applicant was prevented by sufficient cause from making the application in time.
(2) If the application for registration is complete in all respects, the registering officer shall register the establishment and issue to the principal employer of the establishment a certificate of registration containing such particulars as may be prescribed.
8. Revocation of registration in certain cases.- If the registering officer is satisfied, either on a reference made to him in this behalf or otherwise, that the registration of any establishment has been obtained by misrepresentation or suppression of any material fact, or that for any other reason the registration has become useless or ineffective and, therefore, requires to be revoked, the registering officer may, after giving an opportunity to the principal employer of the establishment to be heard and with the previous approval of the appropriate Government, revoke the registration.
9. Effect of non- registration.- No principal employer of an establishment, to which this Act applies, shall--
(a) in the case of an establishment required to be registered under section 7, but which has not been registered within the time fixed for the purpose under that section,
(b) in the case of an establishment the registration in respect of which has been revoked under section 8, employ contract labour in the establishment after the expiry of the period referred to in clause (a) or after the revocation of registration referred to in clause (b), as the case may be.

Application has to be made in Form I and Certificate will be issued in Form II

The Contractor is required to do the following :

12. Licensing of contractors.-
(1) With effect from such date as the appropriate Government may, by notification in the Official Gazette, appoint, no contractor to whom this Act applies, shall undertake or execute any work through contract labour except under and in accordance with a licence issued in that behalf by the licensing officer.
(2) Subject to the provisions of this Act, a licence under sub- section (1) may contain such conditions including, in particular, conditions as to hours of work, fixation of wages and other essential amenities in respect of contract labour as the appropriate Government may deem fit to impose in accordance with the rules, if any, made under section 35 and shall be issued on payment of such fees and on the deposit of such sum, if any, as security for the due performance of the conditions as may be prescribed.
13. Grant of licences.-
(1) Every application for the grant of a licence under sub- section (1) of section 12 shall be made in the prescribed form and shall contain the particulars regarding the location of the establishment, the nature of process, operation or work for which contract labour is to be employed and such other particulars as may be prescribed.
(2) The licensing officer may make such investigation in respect of the application received under sub- section (1) and in making any such investigation the licensing officer shall follow such procedure as may be prescribed.
(3) A licence granted under this Chapter shall be valid for the period specified therein and may be renewed from time to time for such period and on payment of such fees and on such conditions as may be prescribed.
14. Revocation, suspension and amendment of licences.-
(1) If the licensing officer is satisfied, either on a reference made to him in this behalf or otherwise, that--
(a) a licence granted under section 12 has been obtained by misrepresentation or suppression of any material fact, or
(b) the holder of a licence has, without reasonable cause, failed to comply with the conditions subject to which the licence has been granted or has contravened any of the provisions of this Act or the rules made thereunder, then, without prejudice to any other penalty to which the holder of the licence may be liable under this Act, the licensing officer may, after giving
the holder of the licence an opportunity of showing cause, revoke or suspend the licence or forfeit the sum, if any, or any portion thereof deposited as security for the due performance of the conditions subject to which the licence has been granted.
(2) Subject to any rules that may be made in this behalf, the licensing officer may vary or amend a licence granted under section 12.

Application is to be made under Form IV and the Licence will be issued under Form VI .

Next time when you undertake Compliance of CLRA the Industry needs to tell the Client of mutual duties and responsibilities.

With Regards

VS Rajan Associates,
Advocates & Notaries -Legal Consultants-HR
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.
22nd November 2010 From India , Pune

Subject - Insubordination in Temping Industry

Dear All

Insubordination which is a major issue to be tackled in HR in the Temping and Staffing Industry.

Clients come up with reports of Insubordination by the Temps .This is a recurring problem .

On such a report coming from the Client the Temping Company has to see that such Insubordination needs to be proved and it should be willful.

In service matters it would include an act of revolt against superior; a challenge to the authority of superior, an agitation against the superior, any act which humiliates, insults or degrades the dignity and decorum of superior's authority, words which deliberately cast a slur or stigma on the superior, language employed to denigrate the superior, condemnation which demoralizes and shatters the public confidence, an act or use of expression which pollutes and militates against loyalty, an unbecoming gesture without words and like matters; what constitutes insubordination depends on facts and circumstances of each case. The offender may not realize the consequences, therefore examination from his angle would be irrelevant. How it is received by the other side, what is the reflection on the administration and discipline of the office would be very relevant. Ref B.M. Baliga vs Vijaya Bank decided on 11 July, 1990 by Karnataka High Court ILR 1991 KAR 4361, 1991 (4) KarLJ 721-

On a report of Insubordination coming the follow up action can be by issuing a warning letter recording the Insubordination. But its language should be so structured that the fact-um of Direct supervision by the Client should be stated in a couched language.This would be a part of the large process that the Temping Company needs to follow.

With Regards

VS Rajan Associates,
Advocates & Notaries -Legal Consultants-HR
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
25th November 2010 From India , Pune

Subject - Legal Tip for the Recruitment Industry

Dear All

In the recruitment Industry the problem of chasing payments from the Clients is a perennial issue. The reward for the effort which is the essence of the Recruitment Industry is taken away and these unpaid Invoices become Bad debts .

This is on account of the absence of protective clauses in the Recruiting Agreement.

The solution for this is to include an Arbitration clause .This will help the Industry to have some hold on the Client in recovering the dues.

The advantage by including this clause is will result in protective step being initiated in the Court when there is default without incurring heavy costs of Court Fee by invoking the Arbitration Courts help by requesting the Court to issue a direction to the Client pending the Arbitration proceedings. This will ultimately protect the recovery process of outstanding Invoices. The Industry should make a beginning if the clause is already not there in their Template.

With Regards

VS Rajan Associates,
Advocates & Notaries & Legal Consultants for Recruiting & Staffing Industry
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
26th November 2010 From India , Pune

Dear All

Sub:Typical Arbitration Clause

In continuation to our earlier post Arbitration by itself means referring the dispute between the Client and the Agency to an Arbitral Panel instead of rushing to the Court.This saves time and money.The typical clause can be like this:

"In the event of any dispute, difference or question arising out of or in respect of this agreement or the commission of any breach of any terms thereof or of compensation payable thereof or claim made by either of the parties against the other in any manner whatsoever in connection with it, the same shall be referred to a Sole Arbitrator to be selected and appointed by mutual agreement for arbitration as provided in the Arbitration and Conciliation Act 1996 and Rules framed therein.. The decision or award so given by the Single Arbitrator shall be final and binding on the parties hereto.Initially the costs of the arbitration shall be borne equally by both parties and the award shall tax the costs of the Arbitration the party against whom the Award is passed."

Suitable modification can be made depending upon the need .The advantage of having a sole arbitrator is to reduce costs.Please see the Arbitration and Conciliation Act 1996 for more details on the process.

With Regards

VS Rajan Associates,
Advocates & Notaries & Legal Consultants for Recruiting & Staffing Industry
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
30th November 2010 From India , Pune


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