Hello,
For Mr. Shikerkar:
What I have understood may not be complete though I have a good idea of what you intend to convey.
At the outset let me clarify. A "supervisor" or a "Manager" is not so because of the designation or the salary he is paid!
The question always, and particularly in cases of disputes, whether someone is a "workman" under the Industrial Disputes Act 1947 or not is open for determination by a third party, viz: the appropriate courts or the Conciliation Officer in specific matters. This is NOT so clearly stated in the act definition of the term "workman" but there are scores of reported cases that demonstrate how the status of an employee is decided by courts.
The most simple indicators are, whether the concerned person is entrusted with authority over people, whether he has subordinates, can he commit the company, does he sanction leave, recommend punishments, conduct appraisals etc. And these should not be merely on the paper but should be provable by cogent evidence.
Having set out the preliminaries, if set out your problem with a greater clarity and a little more sharp focus, I may be able to advice better!
Regards
samvedan
August 5, 2012
--------------------
From India, Pune
315For Mr. Shikerkar:
What I have understood may not be complete though I have a good idea of what you intend to convey.
At the outset let me clarify. A "supervisor" or a "Manager" is not so because of the designation or the salary he is paid!
The question always, and particularly in cases of disputes, whether someone is a "workman" under the Industrial Disputes Act 1947 or not is open for determination by a third party, viz: the appropriate courts or the Conciliation Officer in specific matters. This is NOT so clearly stated in the act definition of the term "workman" but there are scores of reported cases that demonstrate how the status of an employee is decided by courts.
The most simple indicators are, whether the concerned person is entrusted with authority over people, whether he has subordinates, can he commit the company, does he sanction leave, recommend punishments, conduct appraisals etc. And these should not be merely on the paper but should be provable by cogent evidence.
Having set out the preliminaries, if set out your problem with a greater clarity and a little more sharp focus, I may be able to advice better!
Regards
samvedan
August 5, 2012
--------------------
From India, Pune
dear mr prasath,
A worker is defined in section 2(l) of Factories Act ...means a person employed, directly or by or through any agency (including a contractor) with or without the knowledge of the principal employer, whether for remnuneration or not in any manufacturing process, or in cleaning any part of the machinery or premises used for the manufacturing process, or in any other kind of work incidental to, or connected with, the manufacturing process, or the subject of the mfg process but does not include any members of the armed forces. Therefore it is a very wide definition. So depriving a section of workers from overtime will give rise to discontent consequently an IR issue might arise.
From India, Pune
A worker is defined in section 2(l) of Factories Act ...means a person employed, directly or by or through any agency (including a contractor) with or without the knowledge of the principal employer, whether for remnuneration or not in any manufacturing process, or in cleaning any part of the machinery or premises used for the manufacturing process, or in any other kind of work incidental to, or connected with, the manufacturing process, or the subject of the mfg process but does not include any members of the armed forces. Therefore it is a very wide definition. So depriving a section of workers from overtime will give rise to discontent consequently an IR issue might arise.
From India, Pune
Dear,
as per my knowledge these all have the managerial capacity so these people are not covered under Workman,
(under Industrial dispute act 1947)
But they are cover under employee because they are working for remuneration purpose or they are providing their working for benefit purpose so as per The factories act 1948 they all are employee
Rajbir
Labor Welfare Officer
From India, Coimbatore
as per my knowledge these all have the managerial capacity so these people are not covered under Workman,
(under Industrial dispute act 1947)
But they are cover under employee because they are working for remuneration purpose or they are providing their working for benefit purpose so as per The factories act 1948 they all are employee
Rajbir
Labor Welfare Officer
From India, Coimbatore
Dear samvedan
Thanks for your reply I wish to reply you with specific inputs, At our place employees offered the promotions and got their designations as managers, Asst. managers etc but they were put in the same roster as of that of normal employees. Now they have supervisory powers they can influence the appraisals etc, and also have leave sanctioning powers. After some days keeping them with us mgmt. took some working places to for these promo-tees. We have demanded the classification of job.
As this action turns out to be encroachment in our work area and subsequently reduction in strength of workman we took this issue to labour comm. I want to know about the definitions of workman in this context.
Also I wish to know how to proceed in this matter with the HR and mgmt.
From India, Pune
Thanks for your reply I wish to reply you with specific inputs, At our place employees offered the promotions and got their designations as managers, Asst. managers etc but they were put in the same roster as of that of normal employees. Now they have supervisory powers they can influence the appraisals etc, and also have leave sanctioning powers. After some days keeping them with us mgmt. took some working places to for these promo-tees. We have demanded the classification of job.
As this action turns out to be encroachment in our work area and subsequently reduction in strength of workman we took this issue to labour comm. I want to know about the definitions of workman in this context.
Also I wish to know how to proceed in this matter with the HR and mgmt.
From India, Pune
The designations mentioned are workers under Factories Act. Other wise what is the need of exempting them u/s 64.This shows that the intention of the legislature was to cover them also but for the exemption.As for clerical staff pl read the SC judgement in Central railway workshop,jhansi v.Viswanath-1970(1)LLJ.351.The age of Factories Act is not material as we all resort to Indan Evidence act,CrPC CPC when needed though they are old.
VARGHESE MATHEW
LABOR/HR consultant TVPM
09961266966
From India, Thiruvananthapuram
VARGHESE MATHEW
LABOR/HR consultant TVPM
09961266966
From India, Thiruvananthapuram
Hello,
Like I have said earlier, the "designation" or the "salary" paid to an employee does NOT make him a workman.
It is actual work duties assigned and/or performed by him that will decide if he is a "workman" under Industrial Disputes Act 1947 or not! One must however remember that the most predominant responsibilities will decide his status as "workman" under the ID Act or not. Next, you must elaborate for me as to what exactly you wish to convey by " Now they have supervisory powers they can influence the appraisals etc, and also have leave sanctioning powers." I wish to know if their involvement s formal and provable? Do they sign the Appraisal paper at some place? Similarly,do they "sanction" leave or merely "recommend" it" Even so, if their "approval" in most cases leads to grant of leave by the superiors, it is good!
Do I understand that these "promotees" are now transferred" to some other area and are no longer a part of your work team? If that be the case, please redefine your problem before the Labour Commissioner. Either you complain the matter of such promotions or of the shortage of people to work with!
Notwithstanding all this, let me simplify the issue and state that:
1) A person who works with his own hands is prima-facie a "workman" under the ID Act.
2) If he does not have any discretionary element in his job, he could be a workman. In such a case, he could be a technical or administrative employee and may escape being a "workman" under the act!
3) I repeat that in any case if predominant content of his job is routine, repetitive with no discretionary or authoritative element to guide, direct and control performance of others and be accountable for performance of others, then also he could be a workman under the said act!
In sum, it all depends upon the job duties assigned to him or being performed by him and NOT on his fancy (otherwise) designation or the salary and perks!.
I trust with these inputs you will be able to successfully handle the matter before the Labour Commissioner!
Best of luck!
Regards
samvedan
October 6, 2012
-------------------------------------------
From India, Pune
Like I have said earlier, the "designation" or the "salary" paid to an employee does NOT make him a workman.
It is actual work duties assigned and/or performed by him that will decide if he is a "workman" under Industrial Disputes Act 1947 or not! One must however remember that the most predominant responsibilities will decide his status as "workman" under the ID Act or not. Next, you must elaborate for me as to what exactly you wish to convey by " Now they have supervisory powers they can influence the appraisals etc, and also have leave sanctioning powers." I wish to know if their involvement s formal and provable? Do they sign the Appraisal paper at some place? Similarly,do they "sanction" leave or merely "recommend" it" Even so, if their "approval" in most cases leads to grant of leave by the superiors, it is good!
Do I understand that these "promotees" are now transferred" to some other area and are no longer a part of your work team? If that be the case, please redefine your problem before the Labour Commissioner. Either you complain the matter of such promotions or of the shortage of people to work with!
Notwithstanding all this, let me simplify the issue and state that:
1) A person who works with his own hands is prima-facie a "workman" under the ID Act.
2) If he does not have any discretionary element in his job, he could be a workman. In such a case, he could be a technical or administrative employee and may escape being a "workman" under the act!
3) I repeat that in any case if predominant content of his job is routine, repetitive with no discretionary or authoritative element to guide, direct and control performance of others and be accountable for performance of others, then also he could be a workman under the said act!
In sum, it all depends upon the job duties assigned to him or being performed by him and NOT on his fancy (otherwise) designation or the salary and perks!.
I trust with these inputs you will be able to successfully handle the matter before the Labour Commissioner!
Best of luck!
Regards
samvedan
October 6, 2012
-------------------------------------------
From India, Pune
Dear samvedan
Thanks for your reply, as you have said it is indeed a shortage of workman at employee side, but overnight the positions were converted ( declared ) as management posts for these new fellows. Also management has put their names in the list of those persons who recommend leaves of subordinates, till now they have not done any appraisals but its likely in future.
Can positions worked by employee for 30 long years be converted to management cadre? is the question. and how to tackle with it ? Your help will immensely help us.
From India, Pune
Thanks for your reply, as you have said it is indeed a shortage of workman at employee side, but overnight the positions were converted ( declared ) as management posts for these new fellows. Also management has put their names in the list of those persons who recommend leaves of subordinates, till now they have not done any appraisals but its likely in future.
Can positions worked by employee for 30 long years be converted to management cadre? is the question. and how to tackle with it ? Your help will immensely help us.
From India, Pune
Hello,
Merely changing "labels" for jobs or by enhancing remunerations does NOT change the nature of work! I repeat, recommending/sanctioning leave, or formally participating in appraisals will NOT necessarily change the character of the job. The main point is, what is the predominant content of set of responsibilities assigned to the specific employee. If despite such cosmetic changes the nature of responsibilities remain those of a "workman" there is nothing to worry!
Sometimes employers do resort to such cheap and dishonest gimmick to steer clear of legal protection that a "workman" has under labour laws. If done this is UNETHICAL besides being UNFAIR and blatantly WRONG.
Let me assure that notwithstanding these gimmicks, the question if a given employee is a "workman" under ID Act 1947 is always decided by third party (like the Conciliation officers/courts is appropriate cases) intervention. In such a case just consider if it is wrong for the employee to let the employer have the satisfaction of escaping labour law bindings when the employee may not have really lost the protective shield of the labour law and in the process benefit by higher wages, However to consent receiving such benefits dishonestly, one will have to be prepared to put up a fight before appropriate forums, if need be and at own cost!
Either resist management moves now (perhaps incurring wrath of own colleagues for obvious reasons) or be prepared to fight it out if and when needed! There could be other hidden motives behind such a move of the management. For example, by doing so the management could be bringing down numerical strength of "workmen" below 100 so that downsizing is simplified in future!
There are many ways of looking at possible consequences of such moves by the management but I am happy for you that you are demonstrating alertness to the situation!
Feel free to take contact for any further help.
And yes, I had taken reference to Factories Act in an earlier post in this thread only to highlight the difference between "WORKER" under that Act and a "WORKMAN" under the ID Act. Apparently some member had misconstrued my purpose. I still maintain what I had said remains valid. But this clarification is NOT aimed at generating new debate! This is just a clarification!
Regards
samvedan
October 8, 2012
-------------------------
From India, Pune
Merely changing "labels" for jobs or by enhancing remunerations does NOT change the nature of work! I repeat, recommending/sanctioning leave, or formally participating in appraisals will NOT necessarily change the character of the job. The main point is, what is the predominant content of set of responsibilities assigned to the specific employee. If despite such cosmetic changes the nature of responsibilities remain those of a "workman" there is nothing to worry!
Sometimes employers do resort to such cheap and dishonest gimmick to steer clear of legal protection that a "workman" has under labour laws. If done this is UNETHICAL besides being UNFAIR and blatantly WRONG.
Let me assure that notwithstanding these gimmicks, the question if a given employee is a "workman" under ID Act 1947 is always decided by third party (like the Conciliation officers/courts is appropriate cases) intervention. In such a case just consider if it is wrong for the employee to let the employer have the satisfaction of escaping labour law bindings when the employee may not have really lost the protective shield of the labour law and in the process benefit by higher wages, However to consent receiving such benefits dishonestly, one will have to be prepared to put up a fight before appropriate forums, if need be and at own cost!
Either resist management moves now (perhaps incurring wrath of own colleagues for obvious reasons) or be prepared to fight it out if and when needed! There could be other hidden motives behind such a move of the management. For example, by doing so the management could be bringing down numerical strength of "workmen" below 100 so that downsizing is simplified in future!
There are many ways of looking at possible consequences of such moves by the management but I am happy for you that you are demonstrating alertness to the situation!
Feel free to take contact for any further help.
And yes, I had taken reference to Factories Act in an earlier post in this thread only to highlight the difference between "WORKER" under that Act and a "WORKMAN" under the ID Act. Apparently some member had misconstrued my purpose. I still maintain what I had said remains valid. But this clarification is NOT aimed at generating new debate! This is just a clarification!
Regards
samvedan
October 8, 2012
-------------------------
From India, Pune
We have taken this matter to the Lab. Comm. but that office is biased and is not acting after several seating's we have asked to either come out with failure report or insist on magmt. to come with responsible person appearing before the office by filing FORM F.
This is our stand and I want view and guidance on this matter from persons like you who are knowledgeable.
From India, Pune
This is our stand and I want view and guidance on this matter from persons like you who are knowledgeable.
From India, Pune
Hello,
Disputes before the Commissioner of Labour are mostly under ID ACT 1947.
Have you formally raised a "demand" on the management?
The Management has either rejected your demand OR is avoiding to deal with it.
For want of a proper response from the management you have perhaps approached the Comm. of Labour's office and are getting frustrated. My experience with this office is that they are PRONE to being "managed" by managements.
At the first stage the Labour Office deals with the matter under PMAS (Personnel Management Advisory Services). You will NOT find it in the act was administratively brought in existence many years ago by the then Commissioner of Labour of the state of Maharashtra. It was an honest effort (albeit time consuming) to use the office but try and find a solution before starting walk the path of law (which is one way street). If PMAS does not resolve the dispute, then the process of "conciliation" (stipulated under the act) has to commence. In due course it will either resolve the matter or will end up in a "failure report"! Thereafter it will be "referred" judicial determination of the matter where Lawyers will enter!
Remember, I am stating a general path of these matters are processed.
Do you not have a Union (employee organization)? Have you at least enlisted help from a practicing labour advocate? If, not I recommend you that for handling of the matter!
If you all wish to stand up for what is right then you must put up competent and resolute response that is efficient and well studied!
Kindly consider appropriate line of action.
Best of luck!
Regards
samvedan
October 9, 2012
----------------------
From India, Pune
Disputes before the Commissioner of Labour are mostly under ID ACT 1947.
Have you formally raised a "demand" on the management?
The Management has either rejected your demand OR is avoiding to deal with it.
For want of a proper response from the management you have perhaps approached the Comm. of Labour's office and are getting frustrated. My experience with this office is that they are PRONE to being "managed" by managements.
At the first stage the Labour Office deals with the matter under PMAS (Personnel Management Advisory Services). You will NOT find it in the act was administratively brought in existence many years ago by the then Commissioner of Labour of the state of Maharashtra. It was an honest effort (albeit time consuming) to use the office but try and find a solution before starting walk the path of law (which is one way street). If PMAS does not resolve the dispute, then the process of "conciliation" (stipulated under the act) has to commence. In due course it will either resolve the matter or will end up in a "failure report"! Thereafter it will be "referred" judicial determination of the matter where Lawyers will enter!
Remember, I am stating a general path of these matters are processed.
Do you not have a Union (employee organization)? Have you at least enlisted help from a practicing labour advocate? If, not I recommend you that for handling of the matter!
If you all wish to stand up for what is right then you must put up competent and resolute response that is efficient and well studied!
Kindly consider appropriate line of action.
Best of luck!
Regards
samvedan
October 9, 2012
----------------------
From India, Pune
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