What are the
important rights of a private sector employee protected by the Indian Labour laws?
Although there are terms of
employment defining the specific terms, the employees in the organised private
sector are governed by various laws such as Payments of Bonus Act, Equal
Remuneration Act, Payment of Gratuity Act, Employees Provident Fund and
Miscellaneous Provisions Act, Employees’ State Insurance Act, Maternity Benefit
Act, etc.
The right to safe working
place with basic amenities, right to appropriate working hours, right to any
assured incentive etc. are protected under the law. Here’s a list of essential
rights of an employee under the various laws and regulations:
Employment Agreement
These days the norm is to
enter into an employment agreement which details out the terms of employment
like, compensation, place of work, designation, work hours, etc. The rights and
obligations of both the employer and employee are listed out clearly like
non-disclosure of confidential information and trade secrets, timely payment,
provident fund etc. In case of a dispute, the agreement also contains a mechanism
for effective dispute resolution.
I remember when a client came
to me with his first employment agreement after 30 years of service! He wanted
me to have a look and tell him whether or not to agree to those terms. In a
cursory glance, it was evident how one-sided the whole agreement was. From
retrospective deductions and penalties to an ineffective dispute resolution
mechanism, it was dreadful! The owner had made appointed himself as the binding
authority in case of a dispute. After my advice, the client went and
renegotiated and got his old terms of service renewed.
But the point remains that
without a written employment agreement in place, the employee does not have
much protections afforded to him in case of a dispute.
Maternity Benefit
The Maternity Benefit Act,
1961, provides for prenatal and postnatal benefits for a female employee in an
establishment. Post-2017 amendments, the duration of paid leave for a pregnant
female employee has been increased to 26 weeks, including eight weeks of
postnatal paid leaves.
In case of a complicated
pregnancy, delivery, premature birth, medical termination, female employees are
entitled to one month paid leave. In case of tubectomy procedure, only two
weeks of additional paid leave is provided for.
Pregnant female employees
cannot be discharged or dismissed on account of such absence. Such employees
are not to be employed by the employer within six weeks of delivery or
miscarriage. If dismissed, they can still claim maternity benefits.
In India, men do not get any
paid paternity leave. The Central Government provides for child care leave and
paid paternal leave. But in case of private sector, it is a discretionary right
of the employer.
Provident Fund
Employee Provident Fund
Organisation (EPFO) is the national organisation which manages this retirement
benefits scheme for all salaried employees. Any organisation with more than 20
employees is legally required to register with EPFO.
Any employee can opt out of
the scheme provided they do it at the beginning of their career. The amount
cannot be withdrawn at will. The rules limit the withdrawal amount and term of
years in service. Once registered, both employer and employee have to
contribute 12 % of the basic salary to the fund. If the employer does not pay
his share or deduct the entire 12 % from the employee’s salary, he can be taken
to PF Appellate Tribunal for redressal.
The amount can be withdrawn
subject to a waiting period of maximum two months for emergent needs and
necessary expenses. The rules specify limits of withdrawal and the necessary
years of service for each purpose. An employee can withdraw a maximum of 3
times, and if withdrawn before five years the amount becomes taxable. A list of withdrawal rules of EPF is available here.
Gratuity
The Payment of Gratuity Act,
1972 provides a statutory right to an employee in service for more than
five years to gratuity. It is one of the retirement benefits given to the
employee. It is a lump sum payment made in a gesture of gratitude towards the
employee for their service. The amount of gratuity increases with increment and
number of years of service.
However, the employee if
dismissed for proven lawless or disorderly conduct, forfeits this right upon
dismissal.
Timely and Fair Salary
The whole point of providing
service for an employee is fair and appropriate remuneration. Article 39(d) of
the Constitution provides for equal pay for equal work. The laws under The
Equal Remuneration Act, The Payment of Wages Act, mandates timely and fair
remuneration of an employee. If an employee is not receiving his/her
remuneration as per the employment agreement, can approach the Labour
Commissioner or file a civil suit for arrears in salary. An employee cannot be
given wages less than the legal minimum wages, as per law. A more detailed look
into the remuneration under the Equal Remuneration Act, is available in this article.
Appropriate Working Hours and
Overtime
All employees have a right to
work in a safe workplace with basic amenities and hygiene.
The Factories Act provides
and the Shop and Establishment Acts (statewise) protects the rights of the
workers and non-workmen.
Under the most recent laws,
an adult worker shall work over 9 hours per day or 48 hours per week and
overtime shall be double the regular wages. A female worker can work from 6 am
to 7 pm. This can be relaxed to 9.30 pm upon explicit permission, and payment
for overtime and safe transportation facility. Apart from this weekly holiday,
half an hour break and no more than 12 hours of work on any given day is
mandated. The working hours for child workers are limited to 4.5 hours a day.
Right to Leaves
An employee has the right to
paid public holidays and leaves such as casual leave, sick leave, privilege
leave and other leaves. For every 240 days of work, an employee is entitled to
12 days of annual leave. An adult worker may avail one earned leave every 20
days whereas its 15 days for a young worker. During notice period an employee
can take leaves for emergencies, provided the employment agreement does not bar
it.
Prevention of Sexual Harassment
at workplace
Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Act, 2013 protects women at
the workplace from sexual harassment. The Indian Penal Code also provides a
penalty of upto three years imprisonment with or without fine, for sexual
harassment.
For organisations with ten or
more employees, there has to be an internal complaint committee constituted for
the aid of the victims of sexual harassment. The law mandates that a
grievance redressal policy and mechanisms be in place in such organisations
which outlines what constitutes sexual harassment, penalties, redressal mechanism,
etc. The committee should also include a senior woman as a member, two other
employees as members and a non-governmental member.
My attempt here is, simply to
demystify the jargons used with an employee who does not fully understand and
agree to it anyway. The HR or the company is not always going to educate you
about all this. It is not their job, but yours to learn about your rights.
This is by no means an
exhaustive list of rights and obligation of an employee under the laws and
regulations. There are so many laws governing different aspects of labour and
employment-related laws!
How does one learn about the
labour laws which directly impact most of us everyday?
Well, I will not say its an
easy task to accomplish. You have to do a lot of reading and research to
understand the labour and employment laws, and their implications. Although
there are easier way to learn like the comprehensive online courses covering the relevant aspects of
industrial and labour law. But all of this is incomplete without hard work and
dedication.
There is no shortcut here.
You have to put in the time to know your rights and obligations as an employee
or even as a lawyer advising one’s clients. The employment agreement is the
holy grail for an employee, but one must proceed with caution while signing
one. You have to know the prevalent laws and what you can or cannot do. I mean
I have learnt my lesson, why else will I research about this and write an
article to talk about it? But please don’t be as ignorant as me, and get stuck
in the nitty-gritty of things.
Just be more proactive, learn
and be wiser!
By Snigdha Source Ipleaders Intelligent legal solutions :-Used here for Educational Purposes only
No comments:
Post a Comment