Comparative Guides

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Our Comparative Guides provide an overview of some of the key points of law and practice and allow you to compare regulatory environments and laws across multiple jurisdictions.

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4. Results: Answers
Labour and Employment
2.
Employment rights and representations
2.1
What, if any, are the rights to parental leave, at either a national or local level?
India

Answer ... Every female employee who has been employed for at least 80 days in the 12 months immediately preceding the date of expected delivery shall be entitled to paid maternity leave for the following purposes:

  • leave for delivery;
  • leave on account of miscarriage or medical termination of pregnancy;
  • leave for tubectomy;
  • leave for maternity-related illness; and
  • adoption leave.

Male employees have no statutory entitlement to parental leave. Male employees may use their annual or other leave for such purpose. However, employers may, at their discretion, provide such leave as a benefit for their employees.

For more information about this answer please contact: Tushar Chowdhary from Kochhar & Co.
2.2
How long does it last and what benefits are given during this time?
India

Answer ... Every eligible female employee shall be entitled to the following benefits:

  • Leave for delivery: All eligible female employees are entitled to a maximum of 26 weeks’ paid maternity leave weeks up to and including the expected day of delivery and 18 weeks immediately thereafter. However, if a female employee has two or more surviving children, she will be entitled to 12 weeks of paid maternity leave, of which up to six weeks can be taken prior to the expected date of delivery.
  • Leave for miscarriage or medical termination of pregnancy: In case of miscarriage or medical termination of pregnancy, a female employee shall, on production of sufficient proof, be entitled to paid leave for a period of six weeks immediately following the date of her miscarriage or medical termination of pregnancy.
  • Leave for tubectomy: In case of tubectomy, a female employee shall, on production of sufficient proof, be entitled to paid leave for a period of two weeks immediately following the day of the operation.
  • Leave for maternity-related illness: A female employee shall also be entitled to paid leave for a maximum period of one month in case of illness arising out of pregnancy, delivery, premature birth, stillbirth, miscarriage, medical termination of pregnancy or tubectomy. A female employee may be required to submit medical proof regarding any such illness as may be requested by the employer.
  • Adoption leave: Every female employee who adopts a child below the age of three months or who is a commissioning mother (ie, a biological mother who uses her egg to create an embryo implanted in another woman) will be entitled to paid maternity leave of 12 weeks from the date the child is handed over to her.

For more information about this answer please contact: Tushar Chowdhary from Kochhar & Co.
2.3
Are trade unions recognised and what rights do they have?
India

Answer ... The Trade Unions Act 1926 provides for the registration of trade unions, but it does not make registration mandatory. However, registration is beneficial as it leads to certain privileges. A registered trade union is deemed to be a body corporate, giving it the status of a legal entity. As a result, a registered trade union has perpetual succession, the power to acquire and hold property and the power to enter into contracts. It also has the power to sue and to be sued. A registered trade union is also immune from certain contractual, criminal and civil proceedings. Generally, registration of trade unions under the Trade Unions Act does not automatically imply that a particular trade union has gained recognition status from the employer.

Registration of trade unions is different from recognition of trade unions. The key distinction is that registration of trade unions is effected through the registrar of trade unions, while recognition of trade union is effected by the management as collective bargaining agents (in case of a single trade union) and collective bargaining councils (in case of more than one trade union). Recognition of trade unions is the process through which an employer accepts a particular trade union as having a representative character and hence engages in discussions with the union on matters concerning the interests of workers. In this regard, some states in India have enacted separate laws relating to recognition of trade unions. Ideally, in order to receive certain rights and privileges, a trade union must obtain legitimacy through registration under the Trade Unions Act and thereafter seek recognition as a sole bargaining agent either under the appropriate law or under an employer-employee agreement.

The rights conferred on a recognised trade union include the following:

  • The executive of the trade union is entitled to negotiate with the employer regarding employment, non-employment, terms of employment or conditions of employment on behalf of any employee or all employees.
  • The executive of the trade union is entitled to display trade union notices in the workplace and the employer must make necessary arrangements for the same;
  • The executive of the trade union may appear on behalf of any employee or employees in any domestic or departmental enquiry;
  • The trade union may appoint a nominee to represent workmen on a works committee constituted under the Industrial Dispute Act 1947; and
  • The trade union enjoys the right to be the sole bargaining agent or a principal bargaining agent.

For more information about this answer please contact: Tushar Chowdhary from Kochhar & Co.
2.4
How are data protection rules applied in the workforce and how does this affect employees’ privacy rights?
India

Answer ... India does not have robust laws on data privacy and protection. The Information Technology Act 2002 provides for privacy law in India with regard to personal information and sensitive personal data and information.

All employers (or entities authorised on their behalf) that collect, receive, process, store, deal with or handle personal data or sensitive personal information must put in place a privacy policy which covers the following aspects, among others:

  • details regarding the handling or processing of such information;
  • details regarding the type of information collected;
  • the purpose of collection and use of such information;
  • any disclosure or transfer of such information (including to a third party); and
  • reasonable security practices and procedures for the protection of information, as approved and notified by the government.

Other obligations include the following:

  • Employers should obtain consent in writing (through a letter, fax or email) from employees if they obtain information including passwords, financial information (eg, bank account, credit card or debit card or other payment instrument details), physical and mental health condition, sexual orientation, medical records and history or biometric information, or any other personal information;
  • This information must be used only for the purposes for which it was obtained; and
  • Employers must give employees access to carry out any necessary corrections to such information, or to withdraw consent.

In case of wrongful disclosure of personal information, an aggrieved employee can claim monetary compensation for any damage caused.

For more information about this answer please contact: Tushar Chowdhary from Kochhar & Co.
2.5
Are contingent worker arrangements specifically regulated?
India

Answer ... The Contract Labour (Regulation & Abolition) Act regulates contingent worker arrangements. An employer that engages 20 or more contingent workers must register under this act. A contractor that supplies contingent workers must also obtain a licence.

An employer which is covered by the Contract Labour (Regulation & Abolition) Act will be considered a ‘principal employer’. A principal employer must ensure that the contractor complies with all applicable labour and employment laws. In case of non-compliance by the contractor, the principal employer must take necessary corrective action (eg, if the contractor does not pay wages to the contingent workers, the principal employer must pay wages to the contingent workers and thereafter can recover the same from the contractor).

For more information about this answer please contact: Tushar Chowdhary from Kochhar & Co.
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Labour and Employment