Minimum Working Conditions
Requirements in this regard are principally stipulated in the concerned S&E Acts and the OSH Code. The S&E Acts have stipulations relating to working hours, overtime, intervals of rest, provision of basic amenities such as drinking water, toilets, first aid facilities, etc., for employees at shops and commercial establishments. The Model Standing Orders formulated under the IR Code also have stipulations with respect to work timings, leave, and holidays, for industrial establishments engaging more than 300 workers.
The OSH Code has extensive provisions with respect to the health, safety and welfare of workers engaged in establishments—these include factories, mines, docks, newspaper establishments, building and construction work, plantations, and any place where any industry, trade, business, manufacturing process or occupation is carried out.
A National Occupational Safety and Health Advisory Board has been established to inter alia advise the Central Government on occupational health and safety standards, rules, and regulations to be framed under the OSH Code based on the nature of work undertaken in an establishment. Employers are obligated to provide adequate washing and bathing facilities, locker rooms, first aid boxes to male, female and transgender employees. Additionally, employers with 100 or more workers engaged at their establishment are required to provide canteen facilities.
Contractors are required to provide certain facilities, which include rest rooms, child nursery facilities, canteens, wholesome drinking water, toilets, washing facilities, and first aid. It is pertinent to note that if the contractor does not provide these facilities, the onus would fall on the principal employer.
Salary
Although the words ‘wages’ and ‘salary’ are commonly used interchangeably, there is a discernible difference between the two. The term ‘wages’ is uniformly defined under the Labour Codes to include all remuneration whether by way of salaries, allowances or otherwise, expressed in terms of money or capable of being so expressed which would, if the terms of employment, express or implied, were fulfilled, be payable to a person employed in respect of their employment or of work done in such employment. Whereas salary typically refers to income tax law to denote the total taxable income received by an employee.
Prior to the enactment of the Labour Codes, different labour laws had their own respective definitions of ‘wages’. However, these have been replaced by the uniform definition of ‘wages’ under the Labour Codes which contains specific inclusions and exclusions. The following components are expressly included in the definition of ‘wages’: (a) basic pay; (b) dearness allowance; (c) retaining allowance.
Whereas the following components are expressly excluded:
- Any bonus payable under applicable law which does not form a part of the remuneration payable under the terms of employment.
- Value of house accommodation, supply of light, water, medical attendance, or of any other amenity or service as notified by the appropriate Government.
- The Company’s contribution to any pension or provident fund and accrued interest thereon.
- Conveyance allowance or the value of any travelling concession.
- Any sums paid to defray special expenses entailed by the nature of their employment.
- House rent allowance (“HRA”).
- Remuneration under any award, settlement, or court/tribunal order.
- Overtime allowance.
- Commission payable to an employee.
- Gratuity payable on the termination of employment.
- Retrenchment compensation or other retirement benefits or ex-gratia on termination.
The definition of ‘wages’ contains a proviso which stipulates that if the explicitly excluded components listed under (a) to (i) above exceed 50% of an employee’s total remuneration, then the amount in excess of the 50% threshold will be notionally added back to ‘wages’ to ensure it comprises at least 50% of all remuneration. Further, the definition also provides that if an employee is provided any remuneration in kind by their employer in lieu of the whole or part of the ‘wages’, then the value of such remuneration in kind up to 15% of the total remuneration, will also form part of ‘wages’.
Maximum Working Hours
The OSH Code stipulates that no ‘worker’ may typically be required to work for more than 8 hours a day without attracting overtime payments. The corresponding weekly working hours limits are expected to be provided in corresponding State-level rules issued under the OSH Code. These requirements have to be read along with stipulations in the State-specific S&E Acts in cases of shops and commercial establishments.
Overtime Work
As described above, ‘workers’ typically working longer than 8 hours a day or in excess of weekly working hours limits set under State-level rules are typically entitled to overtime payments. An employee working ‘overtime’ generally becomes entitled to wages at the rate of twice their ordinary rate of wages and could also be entitled to a compensatory time off. This would however have to be analysed further as conflicts between requirements under the OSH Code and S&E Acts have to be examined and interpreted in accordance with judicial precedents.
Employer’s Obligation to Provide a Healthy and Safe Workplace
An employer’s health and safety obligations towards its employees are far more extensive in the manufacturing sector, mines and building and construction work. The various State-specific S&E Acts have special provisions with respect to ensuring safety of women who work during night shifts. Employers in such cases are required to ensure that adequate security and transport facilities are provided (at their own cost) to women employees.
As described above, the OSH Code read with State-specific rules and standards to be notified by Central and State Occupational Safety and Health Advisory Boards are expected to provide for elaborate provisions regarding health and safety of workers. These stipulations include maintaining cleanliness, disposal of wastes and effluents, provision of clean drinking water and toilets, ensuring a temperature control mechanism so as to prevent any injury to health of workers, ensuring adequate lighting and ventilation, measures to prevent inhalation of dust and fumes, regulation of artificial humidification, measures to prevent overcrowding on factory premises, construction and proper maintenance of floors, stairs, passages and ensuring that they are obstruction free for the safety of the workers, fencing of dangerous machinery, providing suitable gear or appliances, driving belts and other safety devices.
In addition, the Social Security Code also addresses compensation and other benefits that the employer must provide to employees in contingencies such as temporary or permanent physical disablement due to injury arising in the course of employment that results in loss of wages or earning capacity, death due to employment injury, as well as medical care to employees and their immediate dependents.
Complaint Procedures
Under the IR Code, where there are 20 or more workers employed in an establishment, a grievance redressal committee is to be constituted in the prescribed manner. In any case as a general practice, most employers do have an internal complaint mechanism that details the processes employees must follow, in case of any workplace related issues. It is also important to note that India has a standalone legislation pertaining to sexual harassment at the workplace—the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“SHW Act”)—which prescribes a detailed complaint mechanism for instances of sexual harassment, that all Indian establishments must adhere to.
Protection from Retaliation
India does not have extensive provisions regarding protection of employee complainants/whistleblowers, that apply to establishments in the private sector. However, the SHW Act stipulates that during the pendency of any inquiry, companies must take interim measures to protect the complainant from any retaliation at the workplace. Most employers do have stipulations in their employee handbooks/internal policies that address employee complaints and protection from any retaliation in this regard.
