Theme: Labour & Employment

Workplaces where you can File a Complaint

Sexual harassment can happen to you in these workplaces:

  • Government based organizations: Any establishment, such as offices, branches, undertakings, etc.that is owned, controlled, established or financed wholly or substantially by the government, local authority or a cooperative society.
  • Private sector based organizations: Any private establishment, such as non-governmental organizations, ventures, societies, trusts, etc., carrying on professional, commercial, vocational, educational,  entertainment-based, industrial, health-based or financial activities.
  • Unorganized sector based workplaces: Any enterprise which works in sale of goods or provides any kind of service, where the number of employees is less than 10.
  • Any hospitals and nursing homes
  • Any household 
  • Any sports institute, stadium, sports complex, etc., used for training, sports or related activities. This includes residential complexes also.
  • Any place visited by an employee due to the employment. This includes employer-provided transportation for any such journey. For example, if an employee working in an organization in Delhi needs to visit an office in Mumbai, the transportation as well as the Mumbai office will fall within the purview of this Act.

If you have faced sexual harassment (( The Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013)) at any of the workplaces given above, file a complaint with the Internal Committee.

Job Offer

When an employer is willing to hire you and gives you a job offer, they must:

  • Communicate to you about the offer
  • Specify the job role and the terms of the job
  • Offer some remuneration/salary/benefits in return for your work

Communication of the Offer

An employer has to communicate the willingness to hire you through a job offer in clear words, either in writing or verbally.

However, it is better to have the offer in writing, as it is easier to prove that the offer was indeed made, if your employer denies it in the future.

Job Role and Terms of Job

  • The offer made to you should be for a specific position or a role. If the offer is unclear, clarify the kind of job role they are interested in hiring you for. It will be hard to get out of the job, once you have taken it and signed the written contract.
  • Make sure that your job role, annual cost-to-company (CTC), benefits, monthly salary etc. are given. You should also clear up any doubts you have about the job details before you accept the offer.

Salary and Other Benefits

The nature of the job will determine your salary. Salaries are usually calculated based on the market rate for that particular job, previous work experience, and your bargaining skills. You can negotiate your salary by clearly communicating the advantage, in the form of your skillset, that you are bringing to the organization, and by utilizing your own market research regarding the salary as per industry rates.

If you are a salaried employee, your total salary will be broken up under different heads such as basic pay, dearness allowance (DA) , Provident Fund deduction, house rent allowance (HRA) etc. You will get your salary after deduction of tax at source. However, if you are not an employee, you will get your full salary amount, which is called a ‘retainership fee’.

After the job offer has been communicated to you, depending on your circumstances, you can always negotiate for additional benefits, a higher salary, or a better position. Your employer may or may not entertain such negotiations, in which case it is up to you to accept or reject the offer.

Timely Response to Offer

Your job offer may specify a time period within which you will have to reply and if you do not respond within the time given, the job offer will lapse. If there is no specific time period mentioned, you should reply to the employer within a reasonable time, either accepting or rejecting the job offer.

Employers Responsibility towards Child Artists

When child artists are being employed for work, there is an obligation on the employer to fill out Form C as given in the Child Labour (Prohibition and Regulation) Act, 1986. The employer by filling the Form C, has to promise to take responsibility in the following manner:

  • Child’s education should not be affected.
  • Child artists who are hired should be protected, given care and protection and full care of their physical and mental health should be looked into.
  • The employer should not violate the legal provisions of the child labour law.
  • The employer should take care of the child’s well being so that no sexual offences are committed.

Application for Permission

The District Magistrate (in the district where the activity is taking places) should give you an undertaking allowing the child to work. The parents or the guardian should also give approval for the work being done by the child. The undertaking will state and ensure:

  • Facilities for the physical and mental health of the child.
  • A nutritional diet of the child.
  • Clean and safe shelter for the child.
  • Compliance with all laws for the protection of children, right to education and protection against sexual offences.

Working Hours

The employer has to take note of the following points:

  • A child cannot be allowed to work for more than five hours in a day.
  • A child cannot be made to work for more than three hours without rest.
  • A child should not be made to work consecutively for more than 27 days.

When does the employer have to pay a bonus?

An employer should pay an annual minimum bonus to their employee if:

  • Their establishment has at least twenty employees
  • The employer has worked for at least thirty days in an accounting year (starting from 1st April)
  • The employee does not earn more than a specified amount in a month.

However, for the five accounting years immediately following the year in which the employer starts selling goods or giving services, they need to pay the bonus only for years in which they make a profit(( Section 26(6), Code on Wages, 2019.)).

Calculating the bonus

The bonus is eight and one-third percent of the employee’s wages, or Rupees one hundred, whichever is higher. It does not matter whether or not the employer has any allocable surplus during the previous accounting year(( Section 26, Code on Wages, 2019)).

If the allocable surplus is more than the amount of minimum bonus payable to employees, the employer must pay every employee a bonus proportionate to their wages for that accounting year (not more than twenty percent of their wages). However, if an employee has not worked for all the working days in an accounting year, they can proportionately reduce the excess bonus.

The employer should pay the bonus by crediting it in the employee’s bank account within eight months of the accounting year’s end. If the employer requests, the concerned Government can extend this by a maximum of two years.

Employees not eligible for bonus

An employee is not eligible for bonus if they have been dismissed from employment due to:

  • Fraud
  • Violent behaviour at the workplace
  • Theft or property damage
  • Conviction for sexual harassment(( Section 29, The Code on Wages, 2019.)).

Provisions for the bonus do not apply to(( Section 41, Code on Wages, 2019.)):

  • Employees of the Life Insurance Corporation of India;
  • Seamen;
  • Employees registered or listed under any scheme made under the Dock Workers (Regulation of Employment) Act, 1948;
  • Public sector employees;
  • Employees of the Indian Red Cross Society or any other similar institution;
  • Employees of Universities and other educational institutions;
  • Employees of institutions including hospitals, chambers of commerce and not-for-profit social welfare institutions;
  • Employees of the Reserve Bank of India;
  • Employees of inland water transport establishments operating on routes passing through any other country.

Who is a Pharmacist?

A pharmacist is a person who is trained to prepare, monitor and sell medicines. Under the law, a registered pharmacist(( Section 2(i), Pharmacy Act, 1948)) is a person whose name is entered in the register of the State where they are residing or carrying on the profession or business of pharmacy.

A register will include the full name and residential address of the registered person, the date of their first admission to the register, their qualifications for registration, professional address,  the name of their employer etc.(( Section 29,  Pharmacy Act, 1948))

Qualifications needed to be a pharmacist

Qualifications of a pharmacist differ from state to state. The State Pharmacy Council of each state lays down certain qualifications for a person to be registered as a pharmacist. The Pharmacy Council of India approves such qualifications.

Education/Degrees

An individual of at least 18 years can be eligible for registration as a pharmacist for the first time. After paying the required fee, their name will be added to the register of the State where they reside or carry on their pharmacy business/profession,(( Section 31, Pharmacy Act, 1948)) if they have:

  • A degree or diploma in pharmacy or pharmaceutical chemistry or a chemist and druggist diploma of an Indian University or a State Government, or a prescribed qualification granted by an authority outside India;(( Section 31(a), Pharmacy Act, 1948)) or
  • A degree of an Indian University other than a degree in pharmacy or pharmaceutical chemistry. In addition, the person should have been engaged for at least 3 years in compounding drugs in a hospital, dispensary, or another place where drugs are regularly dispensed based on prescriptions of medical practitioners;(( Section 31(b), Pharmacy Act, 1948)) or
  • Passed an examination recognised by the State Government for compounders or dispensers;(( Section 31(c), Pharmacy Act, 1948)) or
  • Been engaged for at least 5 years in compounding drugs in a hospital, dispensary, or another place in which drugs are regularly dispensed based on prescriptions of medical practitioners. This period is calculated starting from the date for application of registration as notified by the State government.(( Section 31(d), Pharmacy Act, 1948))

Other qualifications

In addition to the above qualifications, a person will be eligible for subsequent registration as a pharmacist:

  • If they are a registered pharmacist in another state.(( Section 32(1)(b), Pharmacy Act, 1948))
  • The Pharmacy Council of India can approve  qualifications granted by any authority outside India, with regard to making Indian citizens eligible for registration as  Pharmacists. The Council approves an application only after the qualification guarantees a minimum level of skill and knowledge. However, non-citizens can also qualify for registration if they come from countries where persons of Indian origin (who have the required qualifications) can practice pharmacy.(( Section 14, Pharmacy Act, 1948)) Here, to have their name entered in the register, the person should have passed a matriculation examination or any other equivalent examination.(( Section 32(1)(c);Section 14, Pharmacy Act, 1948))

How can Manual Scavengers be rehabilitated?

Both in urban and rural areas, if the officers of the Municipality or the Panchayat believe that manual scavenging may be taking place in their area of control, they have to do a survey and create a list of manual scavengers. The Municipality and the Panchayat have a duty to rehabilitate the people included in this list. The District Magistrate is responsible for rehabilitating manual scavengers in that district in accordance with this law. The District Magistrate or the State Government may assign responsibilities to subordinate officers and officers in the Municipality. The process for rehabilitation is as follows:

  • Immediate help – Give them a photo ID and some cash within 1 month.
  • Children’s education – Their children can get a government scholarship.
  • Property – The government must put in place schemes under which the person is allotted land and money to build a house or money for a built house.
  • Training for other jobs – The government has to help train either the person or another adult member of their family in other skills. The person should also be paid Rs. 3000 during the time they are undergoing training.
  • Loan – The government must put in place schemes under which the person (or another adult family member) has the option of getting a subsidy or loan with lower interest rates to help them get into another field or occupation.
  • Other Help – The government can choose to give them any other kind of legal or other help.
  • Government Schemes – The Central Government has put in place a scheme called the ‘Self Employment Scheme for Rehabilitation’ of Manual Scavengers. Read more about the scheme here. There are numerous loan schemes put in place by the National Safai Karamcharis Finance & Development Corporation which are offered through state channelling agencies. Read more about how to avail such schemes here.

Responsibility of Employers

Employers are people appointed by the government or the local authorities to supervise and control the employees of an organization. These employers have ultimate control over the establishment. (( Section 3(d), The Maternity Benefit Act, 1961.)) If no person is appointed as the employer, then the head of the department or the chief executive officer of the local authority will be considered to be the employer. People such as managers and managing directors are also considered to be employers in certain situations.

Duties of employers

Employers have the following duties:

  • At the time of joining the employment, employers have to inform women  about every maternity benefit available under the Maternity Benefit Act and within the organization. (( The Maternity Benefit (Amendment) Act, 2017, Section 11(2)))
  • The employer cannot knowingly employ a woman during the 6 weeks following the date of her delivery, abortion or miscarriage. (( Section 4(1), The Maternity Benefit Act, 1961))
  • The maternity leave starts  6 weeks before the delivery date of the woman. However, if she requests, it can start  one month before this period. During this period, the employer cannot give her arduous work, including any work that requires hours of standing or work that can negatively affect her health. (( Section 4(3) and Section 4(4), The Maternity Benefit Act, 1961))
  • Employers cannot dismiss women from their job during the maternity leave period.
  • Employers cannot deny payment of the maternity benefit to a woman eligible for such a benefit.

Punishments for Employers

Dismissal or non-payment of benefit

If an employer does not pay you the maternity benefit amount or dismisses you during your maternity leave, then he can be punished with imprisonment for up to one year and with a fine of up to five thousand rupees. (( Section 21(1), The Maternity Benefit Act, 1961.))

Punishment for any other violation

If your employer violates the law (The Maternity Benefit Act), then the punishment is imprisonment of up to one year, and/or a fine of up to five thousand rupees.

Obstructing Inspectors

If anyone, including the employer, obstructs the Inspector from doing his duty then they will be punished with imprisonment of up to one year, and/or  a fine of up to five thousand rupees .(( Section 22, The Maternity Benefit Act, 1961.))

If you are facing trouble while seeking the benefit or for any other maternity-related reason, you have a right to file a complaint. Read more here.

Accused of Sexual Harassment at the Workplace

If someone says you have sexually harassed them, you should take it seriously. If you don’t come three times in a row to hearings your employer has set up, you may not get to speak before a decision is made(( Section 7(5), Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013.)). Only women are protected from being sexually harassed at their place of work(( Section 2(a), Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.)), but sexual harassment can be done by anyone, male or female(( Section 2(m), Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.)).

Rights of Accused

  • You cannot be arrested without a warrant
  • You have the right to get a copy of the complaint within 7 working days of the complaint being filed(( Section 7(2), Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013.)).
  • You have the right to reply. You can submit documents and a list of witnesses within 10 working days of getting the documents from the person who accused you(( Section 7(3), Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013.)).
  • You have the right to appeal a decision made by the Internal Committee

If the Internal Committee decides that the sexual harassment claim against you is not true, you will not be punished. However, if they decide the claim is true, the Committee can give your employer or the District Officer options for how you could be punished. Please note that neither you nor the accuser will be allowed to have legal representation(( Section 7(6), Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013.)).

Importance of a Written Contract

You will get a written employment contract only after you accept the job offer. The written contract will include all the details of the offer letter and more details provided by the employer. With a written contract you can exert the rights given to you under the contract. Further, you are bound by the duties given in the contract. The contract will establish:

  • Your salary/remuneration.
  • Your role and job description.
  • The duration of time working with your employer.
  • The employer’s responsibilities such as following the notice period while firing an employee, payment of salary etc.
  • The employee’s responsibilities such as standard of performance of the job offered to them, following the work timings of the organization etc.
  • Remedial processes if things happen to go wrong, for example, methods of resolving disputes etc.
  • A list of all the things you are restricted from doing so that there is no conflict with your new employer. For example, non-disclosure, non-solicitation clauses.

Other purposes for which you can use the employment contract are:

  • applying to banks for loans, or when filing your tax return, you can also produce the contract as proof of employment.
  • renting a house or applying for any visa/passport application.

You should make sure that your contract covers all the important terms as it will be hard to add or change any term in your contract after you sign it.

Role of Schools in preventing Child Labour

The school has a role in preventing child labour.

The right to education of a child applies even if the child or adolescent is working as an artist or in the family business.

When the child is working in the family business and if the child hasn’t been coming to school for a consecutive period of 30 days, the Principal or Headmaster of the school, has to report the absence of any child, to the Inspector.

Further, if the members of the school are aware that the child or adolescent is engaged in any illegal work then they are required to report it.