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labour_laws:legislation_relating_to_working_conditions

Legislation Relating to Working Conditions

Legislation on working conditions comprises Acts dealing with subjects like hours of work, rest days, restrictions on employment of women and young persons, safety, health and welfare. Such legislation lays down certain standards which are then enforced through appropriate inspection machinery and penal measures. Generally speaking, the standards laid down in the various Acts are minimum standards, with provision for exemptions in suitable cases, leaving scope through collective bargaining or industrial adjudication to improve these standards in appropriate cases.

The basic and the most important legislation, with the longest history, is the legislation relating to factories, now incorporated in the Factories Act,1948, which regulates working conditions in factories where manufacturing process is carried with or without the aid of power. The next in importance from the point of view of number of workmen employed is the Mines Act, 1952, which regulates working conditions in mines. The Plantation Labour Act, 1951 has also a long history and applies to labour employed on land used for growing tea, coffee, rubber, cinchona, or any other plant and connected offices, etc.

In addition to the above, there are Acts dealing with special categories of labour like the Motor Transport Workers Act, 1961, which covers all persons employed in transport undertakings engaged in carrying passengers and goods or both by motor vehicles; the Indian Dock Labourers Act, 1934, and the Dock Workers (Regulation of Employment) Act, 1948, which deals with dock labour; the Indian Railways Act, 1890, which deals with rail labour, and the Working Journalists (Conditions of Service and Miscellaneous Provisions) Act, 1955, which lays down the conditions of service of a highly specialized class of employees called 'working journalist'. Besides there, the Shops and Establishments Acts of the various states lay down the working conditions of employees in shops and commercial establishments, which generally means places where goods are sold by retail or whole-sale or where business is carried on. In this category of employment will fall employees in places like offices, shops, hostels, cinema halls, theatres etc.

Hours of work of adults

The broad pattern in the above Acts with regard to hours of work of adults is 48 hours work in a week, with a maximum of 9 hours work in a day, and a compulsory day of rest in the week which should generally be Sunday. There are also restrictions on spread-over of hours of work, which vary, generally speaking, between 10-1/2 hours to 12 hours in a day depending upon the nature of the industry. If any worker is required to work beyond the above maximum hours, he has to be compensated for such over-time work generally at the rate of twice the ordinary rate of wages. Such overtime work is, however, subject to certain maximum limits during the week.

The above is the general pattern. However, there are special restrictions on hours of work in certain hazardous or more onerous jobs like underground mining, where hours of work are more severally restricted, or in highly intellectual employments, like that of working journalists for whom the hours of work are as low as 144 hours during a period of four consecutive weeks, or 36 hours a week. Plantations have longer permissible hours of work, the normal work allowed in a week being fifty-four hours, with no limit on the number of hours worked on a particular day.

Statutes on the matter of working hours generally lay down only maximum limits. There are industries and particularly offices not attached to factories where the hours of work are less-may be as low as 36 hours perweek- as a result of custom, usage, contract, settlement or award of industrial tribunals. Although statutes generally provide for payment at the overtime rate for hours of work worked in excess of the statutory limits, the general practice in cases where the actual hours of work are below the statutory limit is to pay at a higher rate for any hours of work beyond those prevalent in the establishment, although the rate of overtime payment in such cases upto the statutory limit is generally less, say one and a half or one and a quarter time the ordinary rate, as against twice the ordinary rate for overtime work in excess of the statutory maximum hours of work. Workmen of Overseas Airways Corporation v. British Overseas Airways Corporation1) and Karam Chana Thapar & Bros. Ltd. and Others v. Their Workmen2)

Restrictions on working hours and conditions for women and young persons

There are further restrictions in the matter of hours of work of young persons and women. For example, under the Factories Act, 1948, no woman shall be employed in any factory between 6 p.m. and 7 a.m. and no exemption with regard to daily hours of work can be granted by the chief inspector of factories, as he may grant for male workers. There shall further be no change of shifts in their case except after a weekly holiday or any other holiday. Employment of children below the age of 14 years has been completely prohibited. Further, a child who has completed his fourteenth year or is an adolescent, who has been defined as a person who has completed his fifteenth year of age but has not completed his eighteenth year, shall not be required or allowed to work in a factory unless he is certified to be fit to work by the certifying surgeon appointed under the Act. No child shall be employed or permitted to work in any factory for more than four and a half hours in a day or by night. Further, no adolescent who has not attained the age of seventeen years shall be employed or permitted to work in any factory during night.

In the mines the restrictions on employment or women and children and adolescents are even more stringent. Thus, no woman shall be employed in any mine below ground nor in any mine above ground except between the hours of 6 a.m. and 7 p.m. Moreover, every woman employed in a mine above ground shall be allowed an interval of rest of not less than eleven hours between the termination of employment on any one day and the commencement of the next period of employment. With regard to young persons, it is provided that no child, who is defined as a person who has not completed his fifteen years, shall be employed in a mine nor shall any child to be allowed to be present in any part of a mine which is below ground, or in any open cast working in which any mining operation is being carried on. An adolescent, who is a person between the ages of fifteen and eighteen years, may, however, be permitted to work in a mine subject to certain restrictions. Thus, no adolescent shall be allowed to work in any part of a mine which is below ground unless he has completed his sixteenth year, and has been certified to be fit for working below ground by the certifying surgeon appointed under the Act. Moreover, he shall not be allowed to work except between 6 a.m. to 6 p. m. and must have an interval of rest of at least half and hour after every four and a half hours of continuous work on any day. With regard to above ground work, it has been provided that no adolescent who has not been granted a medical certificate certifying that he is fit for work as an adult, shall be employed or be permitted to be employed above ground in a mine for more than four and a half hours in any day or between the hours of 6 p.m. and 6 a.m.

On the plantations, the restrictions on employment of women and young persons are less stringent than under the Mines Act, or even the Factories Act, naturally, because they work in the open and the hazard to their health is not so much. Employment of women, except midwives and nurses and of a child worker, that is a person who has not completed his fifteenth year is, however, completely prohibited except with the permission of the state government. No child who has completed his twelfth year or an adolescent, i.e., who has completed his sixteenth year but not completed his eighteenth year, shall be required or allowed to work unless he has been certified as fir to work by the certifying surgeon appointed under the Act.

Restrictions on employment of young persons and their hours of work are also placed in respect of motor transport industry under the Motor Transport Workers Act. The Shops and Establishments Acts of the various states also generally place such restrictions on employment of women and children. With regard to employment of children there was also a special Act called the Employment of Children Act, 1938, which was repealed by the Child Labour (Prohibition and Regulation) Act, 1986. This Act provides that no child who has not completed his fourteen year shall be employed or permitted to work in any occupation connected with transport of passengers, goods or mails by railway. The Act clearly lays down that no child will be allowed to work for more than three hours of work before he has had an interval of rest for at least one hour. Once a week he will be given a holiday. No child will be allowed to work between 7 p.m. and 8 a.m. No over time will be permitted. The Act states that the government can make rules for the health and safety of children who are permitted to work in any establishment. These rules can be provided for matters such as cleanliness, ventilation, dust and fumes, lighting, drinking water and sanitary facilities etc. The penalty for violation of the Act will range from three months to one year of imprisonment with a fine of Rs. 10,000 to Rs. 20,000. Part 'Β' of the schedule has added one more process into existing list and that is “building and construction industry”. All other provisions are similar to the ones already existing in the Act of 1938. Finally, as early as 1933, the evil of pledging of child labour was outlawed under the Children (Pledging of Labour) Act, 1933, whereby any agreement under which the parent or guardian of a child, in return for any benefit received or to be received by him undertook to cause or allow the services of a child to be utilized in any employment was declared to be void. The ban under the Act does not apply to such agreement as is made without detriment to the child and for reasonable wages and is terminable at not more than one week’s notice.

Weekly rest day

There is a provision in almost all statutes with regard to a weekly day of rest, which generally should be on a Sunday. Workers who are deprived of their day of rest are, generally, to be given a substituted rest day in such manner that they do not work continuously for more then ten days.

Although all statutes do not necessarily provide for payment for the rest day— for example, the Factories Act and the Mines Act provide for rest day but not for payment for such rest day. However, the trend in recent legislation is to provide such payment. Even in mines and factories the standing orders framed under the Industrial Employment (Standing Orders) Act, 1946, generally provide for payment for the rest day. Moreover, the Minimum Wages Act, wherever applicable, makes payment for the weekly rest day compulsory. So also do the Shops and Establishments Acts of various states. Wherever payment for rest day is not provided for by legislation, tribunals to whom references may be made in this regard under the Industrial Disputes Act, 1947 have, through their awards, generally speaking, required employers to pay their workmen for the weekly rest day. It would, therefore, be broadly correct to say that the Indian worker is not only entitled to a rest day every week, but also for payment of full wages for the said rest day.

Holidays

Apart from weekly rest day, through legislation by various states, but more often by practice or through awards of industrial tribunals, provision has also been made for grant of festival holidays to employees, the exact quantum of which, however, varies in accordance with the industry and the region. There has, however, lately been a tendency to reduce the number of such holidays wherever permissible, but without making any drastic changes.Pfizer (P) Ltd. v. Its Workmen3) and Bijli Cotton Mills (P) Ltd. v. Presiding Officer, Industrial Tribunal 4)

Leave

Practically all statutes provide for minimum annual leave with wages at the rate of one day’s leave for every 20 days of work for employees who have worked 240 days or more in the previous year. This does not preclude, however, more generous standards of leave being provided by awards, collective agreements, contracts of service or custom and usage. The Factories Act provides that every worker who has worked for 240 days or more in the previous year, will be allowed leave with wages in the subsequent year at the rate of one day for every 20 days of work performed by him during the previous calendar year. In the case of a child, the quantum of leave allowed is at a higher rate being one day for every 15 days of work performed during the previous calendar year.

The Mines Act provides for similar leave benefits, except that persons employed below ground are to be allowed leave at the rate of one day for every 15 days of work performed by them. The leave standards for motor transport workers are the same for adults as under the Factories Act, while an adolescent motor transport worker is entitled to one day of leave for every 15 days of work during the previous year. The Plantation Labour Act, 1951, makes provision for annual leave with wages calculated at the rate of one day for every 20 days of work performed by an adult and one day for every 15 days of work performed by a young person.

Similarly, the various Shops Acts also make provision for leave, with wages, or privilege leave, as it is sometimes called, at the rate of one day’s leave for 20 days of work performed. Generally speaking, under all statutes, the leave entitlements under them are the minimum and not the maximum. The employees are entitled to more leave, if so allowed under any contract, custom, usage, settlement, agreement or award applicable to them. Alembic Chemical Works Co. Ltd. v. Its Workmen5)

Accumulation of leave is generally allowed to the extent of two years’ leave entitlement. Encashment of such leave is allowed only at the time of termination of service by the employer, and in case of resignation, only where the employee had applied for leave but had not been granted leave by his employer. Restrictions are generally placed on the manner of availment of such leave so that normal work is not disrupted. Most Acts, therefore, require that sufficient notice of such leave should be given by the employee.

Most statutes do not provide for casual and sick leave, except for special Acts in various states. Casual and sick leave is, however, generally provided in the certified standing orders which are applicable to establishments which employ 100 workmen or more. Moreover, when disputes with regard to casual or sick leave are referred to tribunals or labour courts, they are generally favorably inclined to provide for such leave, particularly if practice with regard to the same is prevalent in other establishments in the region and the industry. Several states have also passed legislation for minimum casual and sick leave to be provided to workers working in industrial establishments. As a general rule, it may, therefore, be stated that there is practice in Indian industry for grant of casual and sick leave in addition to earned or privilege leave, although its exact quantum varies according to the industry and the region.

Health, welfare and safety

Almost all the Acts and/or rules framed thereunder make it obligatory on the employers to provide certain minimum welfare facilities for the workers, such facilities varying in detail with the nature of each industry. It is also well accepted that one of the primary duties of the modern industrial state is to protect the worker against physical and health hazards to which he may otherwise be exposed on account of his employment. The law on this subject is contained in the Acts dealing with various employments and differs with each employment. For detailed provisions in this regard, the reader may turn to the statutory provisions contained in the enactments governing various employments.

1)
1962 I LLJ 257 SC
2)
1964 I LLJ 429
3)
1962 I LLJ 543: AIR 1963 SC 1103
4)
1972 (II) LLJ 320: AIR 1972 SC 1903
5)
1961 ILLJ 328: AIR 1961 SC 647


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Created on 2020/10/19 23:14 by • Last modified on 2021/01/15 18:13 by LawPage