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 Bhartiya2

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 Kerala4

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 Limited6

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 Mehrotra7

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 Ors9.

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 Nath10

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.