Welcome to the eighth edition of the e-Bulletin (Volume VI) brought to you by the Employment, Labour and Benefits (ELB) practice group of Khaitan & Co. This e-Bulletin covers regulatory developments (including those relating to the upcoming labour codes), case law updates and insights into industry practices that impact businesses from a sector agnostic standpoint.
Labour codes: story so far
In this section, we help you in understanding the developments that have taken thus far on the implementation of the 4 labour codes on wages, social security, industrial relations, and occupational safety, health and working conditions, which received the Presidential assent between the years 2019 and 2020.
Broadly speaking, the labour codes, which aim to consolidate and consequently replace 29 Central labour laws, are yet to be brought into force, barring provisions relating to
- employees' pension fund
- Central Advisory Board on minimum wages
- identification of workers and beneficiaries through Aadhaar number for social security benefits
Moreover, even if the codes are fully brought into effect, the same would require issuance of rules, schemes, and notifications of the relevant governments so as to have a comprehensive revised compliance regime.
Under the labour codes, the 'appropriate government' for an establishment can be the Central Government or the state government, depending on the nature of its operations or the existence of multi-state operations. Such appropriate government has the power to inter alia issue rules detailing some of the substantive aspects broadly set out under the codes and also prescribing procedural compliances such as filings, maintenance of registers, etc. In the past year, several key industrialised states such as Haryana, Delhi, Maharashtra, Gujarat, Andhra Pradesh, Telangana, Tamil Nadu, and Karnataka released draft rules under some or all of the labour codes for public consultation. Among the industrialised states, notably, West Bengal is yet to release their draft rules under any of the codes.
The Ministry of Labour and Employment, as a way ahead, has planned to conduct training workshops for state government labour officials in the coming months. These workshops are proposed to facilitate the nationwide rollout of the new labour codes, ensuring readiness and addressing potential legal challenges. Additionally, the Central Government has urged the state of West Bengal to expedite the drafting of rules under the four labour codes, highlighting the benefits for all societal sections, including women and migrant workers.
Recently, the Union Government has sought the opinion of the Ministry of Law and Justice regarding the enforcement of the proposed labour codes without unanimous consent from all states, particularly in light of West Bengal's hesitation to adopt the reforms. The potential for legal challenges exists if the codes are enforced without complete state consensus.
Regulatory Updates
In this section, we bring to your attention, important regulatory developments in the form of notifications, orders, bills, amendments, etc. witnessed in the past one month in the context of employment and labour laws.
West Bengal launched the programme 'Rattirer Shaathi' for the safety of women working on night shifts
By way of a notification dated 19 August 2024, the Department of Health and Family Welfare, West Bengal, has introduced a 'Rattirer Shaathi' programme emphasizing upon the safety of women employees working on night shifts in government hospitals, colleges, hostels, and other institutions where women are employed during night-time, and has prescribed certain conditions to ensure such safety of the women workers. As per the notification, these institutions are required to ensure that
- separate designated restrooms with attached toilets are set up
- female volunteers are present throughout the night shifts
- safe zones' are set up with full CCTV coverage
- regular security checks and breathalyzer tests are undertaken at hospitals;
- internal committees as prescribed under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 are formulated at eligible institutions
- the work schedules at the institutions are formulated such that women employees work in pairs, during their night shifts.
Employees' Provident Fund Organization (EPFO) has formulated Standard Operation Procedure (SOP) for joint declaration for member profile updation
As per the notification dated 31 July 2024, the EPFO has formulated an SOP for joint declarations related to member profile updates, thereby superseding all previously issued SOPs in this regard. The purpose of this SOP is to minimize incompleteness and discrepancies arising from the paper-based processes and member transitions between establishments. These discrepancies often led to data mismatches in key parameters inter alia such as name, gender, date of birth and father's name, etc. Accordingly, this SOP has been formulated to ensure the accuracy of member profiles, reduce the rejection rate of joint declarations and minimize the risk of fraud due to changes in Universal Account Number (UAN) identity.
The SOP outlines the process of submitting a joint declaration application by the member, the employer's approval of such applications, receipt of the application by the regional office, and the subsequent approval or rejection by the competent authority within a specified timeframe. Additionally, it provides a list of required documents for changes in various parameters when the member opts for modifications through the joint declaration application, along with the timeline for completing the joint declaration request.
EPFO issued SOP for transaction-less and inoperative accounts registered with EPFO
Through a notification dated 2 August 2024, EPFO has introduced an SOP aimed at tightening controls over inactive and inoperative accounts to prevent fraud and unauthorized withdrawals. The SOP prescribes stricter verification processes for accounts with no transactions for an extended period and mandates the generation of UANs for dormant accounts along with requiring biometric verification for those accounts without UANs. The SOP also establishes a systematic approval process for unblocking requests, with higher-value claims requiring more stringent scrutiny. Special cases, such as claims by nominees or legal heirs of deceased members, will necessitate additional documentation and verification. To ensure compliance, the EPFO is developing dashboards to monitor UAN generation, KYC seeding, unblocking requests and claim settlements, with regular audits mandated at various levels.
Case Updates
In this section, we share important judicial decisions rendered in the past one month from an employment and labour law standpoint.
Termination of employee cannot be applied retrospectively: Punjab and Haryana High Court
In the case of Bahadur Singh v PRTC and Others [Civil Writ Petition Number 15609 of 1999 (Own Motion)], the Punjab and Haryana High Court held that the termination of employment of an employee cannot be applied retrospectively to an earlier date and rather such termination can take effect from the date of order of termination with immediate effect or a future date specified in the order.
The decision arose from a petition filed by the petitioner, working as a bus driver with PRTC, Patiala, who was retired by a termination order in 1995 with effect from 1994 on account of an incorrect assumption of his date of birth to be in December 1936, as opposed to the date stated in the birth certificate of the petitioner which clarified such date to be in May 1938. The court while setting aside the order of dismissal of the petitioner held that the rights and benefits accrued by an employee during their service should be protected and the employer cannot deprive employees of such benefits by terminating their services retrospectively.
To view the full article, click here .
The content of this document does not necessarily reflect the views / position of Khaitan & Co but remain solely those of the author(s). For any further queries or follow up, please contact Khaitan & Co at editors@khaitanco.com.
