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Employment Corner Bulletin – Employee Benefits & Compensation



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We welcome you to the 2nd Edition of Volume 2 of
IndusLaw’s Employment Corner Bulletin. The bulletin highlights
the key statutory and judicial updates for the period between March
2022 and May 2022 that are significant to employers, employees, and
the HR community. Our 2nd Edition also brings to you a
column on “D & I Initiatives at the Workplace” and
“Metaverse and Employment Laws”.

LEGAL UPDATES

  1. Statutory Updates

  1. Gender equality at the factory floor

Uttar Pradesh implements new rules for women working at
nights

The Government of Uttar Pradesh, vide a notification
dated May 27, 2022, has amended the Factories Act, 1948, which
imposes a blanket restriction on women to work between 7 PM and 6
AM in factories. As per the notification, women workers in Uttar
Pradesh shall not be bound to work before 6 AM or after 7 PM
without their written consent, and the services of such women
cannot be terminated if they deny providing their consent. For
women workers, who have consented to work during the night shift,
the employer is required to provide them with free transportation,
food and ensure adequate supervision during their working hours and
journey to and from the factory. The employer is also required to
intimate the Factory Inspector of such arrangements made for its
women employees.

Logistics and warehousing industries allowed to employ
women at night shifts in Haryana

The Government of Haryana, vide a notification dated
May 17, 2022, has amended the Punjab Shops and Commercial
Establishments Rules, 1958 to allow women working in logistics and
warehousing establishments to work during night shifts.

  1. The Government of Goa lays down conditions for
    employing women at night and introduces other changes

The Government of Goa, vide a notification dated May
05, 2022 has notified 02 May 2022 as the effective date for the Goa
Shops and Establishments (Amendment) Act 2021. The amendment act
inter alia provides for auto-renewal of registration, obtaining
electronic certificate of renewed registration, enhanced penalties
for non-compliances, and imposes a restriction on women employees
to work in any shop or establishment between 7 PM and 6 AM. The
Government has the power to allow women to work at night if it is
satisfied that adequate protection is being provided for them by
the employer or if such women have consented to work during night
shifts.

  1. Withdrawal of provident fund accumulation by
    international workers

The Employees’ Provident Fund Organization
(“EPFO“), vide a letter dated
April 27, 2022, has clarified that employees who qualify as
‘international workers under the Employees’ Provident Funds
and Miscellaneous Provisions Act, 1952 (“EPF
Act
“), from countries which do not have a social
security agreement with India, are eligible for full withdrawal of
their provident fund (PF) accumulation after they attain the age of
58 years, provided they have ceased to be in employment by the
establishment covered under the EPF Act.

  1. Karnataka on resuming creche facilities

The Government of Karnataka, vide a notification dated
April 13, 2022, has instructed all factories to resume creche
facilities, that were provided before the Covid-19 pandemic.

  1. Professional tax registration is now online for the
    State of Karnataka

The Government of Karnataka, vide a notification dated
March 31, 2022, has made it mandatory for employers to obtain
registration under the Karnataka Tax on Profession, Trades,
Callings and Employments Act, 1976 (subject to eligibility) on the
Karnataka Government’s online portal, with effect from April 1,
2022.

  1. Amendment to Tamil Nadu Shops and Establishment Rules,
    1948

The Government of Tamil Nadu, vide a notification dated
March 30, 2022, has introduced certain amendments to the Tamil Nadu
Shops and Establishments Rules, 1948. The amendment, inter
alia
, has given the flexibility to employers to maintain their
statutory registers in an electronic form. Prior to the amendment,
only manual maintenance of registers was permitted.

  1. Requirement to mention employee’s Aadhar Number in
    identity card has been removed

omitted

The Government of Maharashtra, vide a notification
dated March 17, 2022, has amended the Maharashtra Shops and
Establishments (Regulation of Employment and Conditions of Service)
Act, 2017 to omit the requirement of mentioning the Aadhar number
of employees on their identity card. The amendment also specified
the manner in which the name board of an establishment should be
designed and displayed.

  1. ESIC provides exceptions to contribution period for
    claiming sickness benefit to women receiving maternity
    benefit

The Ministry of Labour and employment, vide a
notification dated March 07, 2022, has allowed an insured woman
receiving maternity benefit to claim sickness benefit in the
corresponding benefit period, even if her contribution period falls
short of the required contribution period (of 78 days)
under the Employees’ State Insurance Act, 1948
(“ESI Act“). This exemption is allowed
as long as the insured woman has paid her contributions for half
the number of available working days.

  1. The Labour Codes: Story So Far

The Ministry of Labour and Employment vide a press
release dated March 21, 2022 provided an update on the 4 labour
codes and the discussions it has been having with various
stakeholders for finalising the labour codes. However, the press
release was silent on the date of implementation of the 4 labour
codes, leaving room for uncertainty. However, few news articles
suggested that the Central Government is planning to implement the
labour codes from July 1, 2022. However, there has been no official
notification or confirmation in this regard.

Industry bodies are hopeful that the Central Government would
provide them sufficient time to streamline their internal processes
and practices with the provisions of the labour codes.

Please find below the list of developments that have taken place
with respect to the enactment of the State specific rules.




















Sl. No.

States/UT

Draft Rules/Rules

Current Status

1.

Andaman and Nicobar Islands

Code on Social Security (A&N Islands Rules,
2022
under the Code on Social Security 2020
(“SS Code”) (published on February
28, 2022)


a) Code on Wages (A&N Islands Rules, 2022)
under the Code on Wages (published on February 28,
2022
)

Draft Stage


The Government has invited suggestions /objections from all
stakeholders within a period of 45 days and 30 days respectively,
post which the draft rules shall be finalised.

2.

Sikkim

Sikkim Code on Wages Rules, 2022 under the Code
on Wages, 2019 (published on January 27,2022)

The Government has invited suggestions /objections from all
stakeholders within a period of 45 days, post which the draft rules
shall be finalised.

3.

Tripura

Tripura Occupational Safety, Health and Working
Conditions Rules 2022
under the Occupational Safety,
Health, and Working Conditions Code, 2020 (OSHW
Code
) (published on March 14, 2022)

4.

Puducherry

Puducherry Code on Social Security Rules, 2022
under the SS Code (published on March 18, 2022)

5.

Karnataka

Occupational Safety, Health and Working Conditions
(Karnataka) Rules, 2021
under OSHW Code (published on
April 04, 2022)


Code on Social Security (Karnataka) Rules, 2021
under SS Code (published on April 04, 2022)

6.

Tamil Nadu

Occupational Safety, Health and Working Condition (Tamil
Nadu) Rules, 2022
under the OSHW Code (published on
April 11, 2022)


Industrial Relations (Tamil Nadu) Rules, 2022
under the Industrial Relations Code, 2020 (published on April
11, 2022)


­Code on Wages (Tamil Nadu) Rules, 2022
under the Wage Code (published on April 11, 2022)

7.

Assam

Assam Occupational Safety, Health and Working Condition
(Assam) Rules, 2022
under the OSHW Code (published on
April 08, 2022)

8.

Ladakh

Draft Occupational Safety, Health and Working Conditions
Code (Ladakh) Rules, 2022
under the OSHW Code
(published on April 20,2022)


Draft Industrial Relations Code (Ladakh) Rules,
2022
under the Industrial Relations Code, 2020
(published on April 20, 2022)

  1. Judicial Developments














































SUPREME COURT OF INDIA

1. Interest on compensation payable under Employee’s
Compensation Act, 1923 is payable from the date of death (March 11,
2022)

Shobha and Ors. v. The Chairman, Vithalrao Shinde
Sahakari Sakhar Karkhana Ltd. and
Ors.
1

It was held that since the liability to pay the compensation to
the heirs of the deceased employee under the Employee’s
Compensation Act, 1923 arises from the date on which the employee
died, the liability to pay the interest on the amount of arrears
should also be calculated from the date of the employee’s death
and not from the date of the order passed by the commissioner.

2. Primary burden to establish gainful employment post
dismissal is on the employee in order to claim back wages (April
22, 2022)

Allahabad Bank and Ors. v. Avtar Bhushan
Bhartiya
2

It was observed that the primary obligation is upon the employee
who is alleging wrongful dismissal and claiming back wages, to
plead that she/he was not gainfully employed post the
dismissal.

3. Ad Hoc employee can only be replaced by a permanent
employee (April 21, 2022)

Manish Gupta and Anr. V. President, Jan Bhagidari
Samiti and
Ors.
3

It was observed that it is a settled principle of law that an ad
hoc employee cannot be replaced by another ad hoc employee. An
ad-hoc employee can only be replaced only by another candidate who
is regularly appointed in accordance with due process.

4. Employer cannot recover excess payments made to
employees (May 02,2022)

Thomas Daniel vs State Of
Kerala
4

The Supreme Court has determined that an employer cannot recover
the salary increment granted to an employee while she/he was in
services after her/his retirement/resignation from the services, on
account of wrongful computation of such increment.

HIGH COURTS

1. An employee in a transferable job
has no vested right to remain posted in one place (March 07,
2022)

Amarjeet Singh Dagar v. Union of India and
Ors.
5

It was determined by the Delhi High Court that an employee in a
transferable job has no vested right to remain posted in one place
and that the courts should not readily interfere with transfer
orders issued by employers, especially issued for administrative
reasons and/or in public interest.

2. Depriving personnel of the status
and privileges of permanent workmen amounts to unfair trade
practice (February 26, 2022)

Shankar Bhimrao Kadam and Ors. v. Tata Motors
Limited
6

It was observed by the Bombay High Court that any systematic or
strategic attempt by employer to prevent temporary workers from
completing 240 days of continuous service to avoid its obligations
under applicable law, would amount to an unfair trade practice.

3. Ad-Hoc woman employee entitled to
maternity benefits beyond the term of contract, for pregnancy
occurring during contractual period (March 11, 2022)

Dr. Baba Saheb Ambedkar Hospital and Ors. v. Krati
Mehrotra
7

The Delhi High Court observed that the Maternity Benefit Act,
1961 (“MB Act“) does not have a
provision which links the grant of maternity benefits to be
provided to a female employee to her tenure of contract, as long as
the employee is eligible to receive maternity benefits under the MB
Act. The Court granted maternity benefits to an ad hoc employee for
a period that extended beyond the tenure of her employment
contract.

4. S.27 of the Indian Contract Act
needs to be reconsidered in light of non-compete obligations under
employment arrangements /engagement (05 April, 2022)

Sudipta Banerjee and Ors. v LS Davar and Company and
Ors
.8

The Calcutta High Court restrained the appellants from divulging
confidential information they gathered during their association
with the respondent organization, in any manner till the disposal
of the matter.


The Calcutta High Court also observed that “the time
has possibly come to have a re-look at Section 27 of the Indian
Contract Act since times have changed and there is a necessity to
impose some restrictions and recognize negative covenants in
service contracts especially where it involves specialized
knowledge as it must live up to the present needs.”

5. Production Units must set up an ICC
(March 17, 2022)

Women in Cinema Collective, Kochi and Ors. vs. State
of Kerala and
Ors
9.

The Kerala High Court determined that a film production, subject
to eligibility under the Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act, 2013 is required to
constitute an Internal Complaints Committee (ICC) for redressal of
sexual harassment complaints.

6. Termination of employment without
holding domestic enquiry is violative of principles of natural
justice and industrial jurisprudence (May 12, 2022)

Vmware Software India Private Limited vs Ashis Kumar
Nath
10

The Karnataka High Court directed the employer to compensate a
workman whose employment was terminated for refusing to undergo a
performance improvement plan (PIP), without holding any domestic
enquiry or serving a chargesheet. The Court held that such
termination was violative of the principles of natural justice and
industrial jurisprudence.

  1. D& I INITIATIVES AT
    WORKPLACE

In recent times, conversations around diversity and inclusion in
India have been reinforced by the sheer volume of discussion in
social media, increased awareness of global events, policy
initiatives, efforts by advocacy and consultancy organizations and
some remarkable judgments from the Indian judiciary. During the
ongoing Pride Month, several India Inc. members came forward to
discuss the importance of D&I at workplace and the measures
they have put in place to ensure a more supportive and
collaborative work environment. Few of such organizational
initiatives and strategies have been listed below:

  •  Accenture India has extended its health benefit policies
    to cover its employees’ gender reaffirming surgeries.
    Similarly, Razorpay has extended its health benefit policies to
    employees’ partners and same-sex partners and provided medical
    coverage for medical treatments such as infertility treatment and
    gender reassignment surgeries.

  •  Pernod Ricard India Foundation has partnered with the
    Tata Institute of Social Sciences (TISS), and the Collective Good
    Foundation (CGF) to launch its Academic Corporate Fellowship
    Program for the transgender community. Trans persons between the
    age group of 18 to 25 years can apply for this program. The
    one-year fellowship program enables trans-persons to craft their
    careers in the corporate world.

  •  Few organizations have implemented Menopause Policy to
    render support and assistance to their female workforce who are or
    are about to undergo menopause.

  •  Return to work programs are becoming extremely common
    amongst employers in India wherein candidates with extended career
    breaks are being considered for employment within the
    organisation.

  •  Oracle conducts a monthly meetup of leaders as a part of
    their Executive Diversity Council in which they develop strategies
    and solutions to address D & I issues within the organization
    and within the industry.

  • Many organizations like Sanofi are constituting special
    committees, D & I Boards consisting of professional advisors to
    strengthen and implement its D & I policies and practices.

  1.  WHAT’S TRENDING?

  1. Employees pick their own pay

Frappe Technologies Private Limited has introduced an internal
policy wherein employees are allowed to pick their own pay during
the appraisal process subject to certain conditions.

  1. From delivery persons to company
    executives

Swiggy has launched an accelerator program called
“StepAhead Program” to transition its delivery partners
into full time managerial positions with fixed salary and
additional benefits. The eligible delivery executives would be
hired for the role of ‘fleet manger’ who would be managing
a fleet of delivery executives. Swiggy intends to reserve at least
20% of fleet manager positions for its delivery partners.

  1. METAVERSE AND EMPLOYMENT LAWS

The Covid-19 pandemic has compelled employers to re-work their
collaboration and interaction strategies, with remote working
becoming an important part of our professional lives. Meta
Inc’s virtual reality platform “Metaverse” is
gradually developing and evolving to meet the requirements of a
professional workplace. It is likely that in the coming years,
various organizations would commence operations on Metaverse, which
would also require virtual workforce consisting of real-life
employees.

While we are still learning and exploring the Metaverse, there
have been reports suggesting incidents of sexual harassment in the
Metaverse. Employers across the globe are slowly recognising the
need to regulate its employees’ conduct on such alternate
reality platforms and are considering implementing internal
policies around it. While this certainly seems a progressive move
by employers, it is yet to be seen if such policies can be
successfully implemented and enforced.

Footnotes

1. Civil Appeal no. 1860 of 2022

2. SLP (Civil) no. 9096 of 2019

3. Civil Appeal No. 3084-3088 of 2022

4. Civil Appeal No. 7115 of 2010

5. W.P. (C) 6311/2020

6. Writ Petition No. 5588 of 2017 and other writ
petitions

7. Writ Petition No. 1278 of 2020

8. FMAT 735 of 2021

9. Writ Petition (C) Nos. 33994 of 2018 and other writ
petitions

10. Writ Petition No. 8149 of 2021

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.



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