esi - standing orders- apprentice act

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Page 1: ESI - Standing orders- Apprentice Act

Unit – 4

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Syllabus

• Employees’ State Insurance Act , 1948• Industrial Employment (Standing

Order) Act, 1946• Apprentice Act , 1961

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ESI Act 1948

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Applicability

• 1) All factories excluding seasonal factories employing 10 or more persons and working with electric power.

2) All factories excluding seasonal factories employing 20 or more persons and working without electric power.

3) Any establishment which the Government may specifically notify as being covered.

4) Shop employing 20 or more persons.• Note: As soon as the above conditions are fulfilled the employer

should furnish the details in Form-01 to ESI office for registration under the ESI Act, 1948 & Obtaining of the employer’s Code No.

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Eligibility• 1) Any person employed for wages (up to Rs.

6,500) in or in connection with the work of a factory or establishment end.2) Any person who is directly employed by the employer in a factory or through his agent on work which is ordinarily part of the work of the factory or incidental to purpose of the factory

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Benefits• 1) Free medical treatment is offered to covered employees at

hospital and dispensaries run by the ESI Corporation.

2) About 7/12th of employees normal wage will be payable to him by ESI during sickness.

3) Maternity benefit for 12 weeks of which not more than 6 weeks should be preceding confinement.

4) Injury during/in course of employment resulting in temporary/permanent disablement entitles the covered employee to a regular payment to substitute his lost wages.

5) Death during course of employment entitles specified dependents to a regular payment.

6) One time payment of Rs. 1,500 to help meet funeral expenses.

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Penal Provisions

• 1) For employees’ contribution : Imprisonment for minimum 2 yrs. to maximum 5 yrs. and/or fine of Rs. 25,000/- .

2) For employer’s contribution : Imprisonment for minimum 6 months to maximum 3 yrs. and/or fine of Rs. 10,000/-

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UNIT IV

Standing Order Act 1946

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OBJECT OF THE ACT

• To require employers in industrial establishment to define with sufficient precision the conditions of employment under them and to make the said conditions known to workman employed by them.

• The latest amendment made in 1982.

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Formal declaration of terms and conditions of employment

• the act was passed in 1946 and its main object is to require the employers in industrial establishment ,to which the act applies ,to define formally the terms and conditions of employment in their establishment, before the employees accept the employment.

• Another object of act is to introduce uniformity of terms and conditions of employment in respect of workman belonging to same category and discharging the same or similar work under an industrial establishment.

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Scope and application of the act

• The act extend to whole of India.• It applies to every industrial establishment

wherein 100 or more workman are employed or were employed on any day of the preceding 12 months.

• Once the act become applicable to an industrial establishment ,it does not cease to apply on account of fall in the no of workman in that establishment below 100.

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The act does not apply to• Any industry to which the provision of chapter v11 of

Bombay industrial relation act 1946 apply or• Any industrial establishment to which the provision of

the Madhya Pradesh industrial employment SO act 1961 apply.

• The provision of act shall apply to all industrial establishment under the control of CG.

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Act not apply to certain industrial establishment (sec 13 b)

The civil services regulation

• Indian railway establishment code• Revised leave rules• Fundamental and supplementary rules• Civil service(classification, control, appeal )rules• Civil service temporary service )rules.

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Definitions

• Appellate authority• Certifying officer-labor commissioner or

regional labor commissioner.• Employer• Standing order– the term SO means rules

relating to matter set out in the schedule to the act.

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The Schedule

• Matters to be provided in SO:• Shift working,Atttendance and late coming,• Classification of workman as

permanent ,temperorary,apprentices ,probationers or baldis.

• Procedure in applying for leave and procedure for the authority to grant leave and holidays.

• Mean of redress for workman against unfair treatment by employers or his agents and servants.

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• Manners of intimating workmen periods and hours of work, holidays,pay days and wage rates.

• Rights and liabilities of employer and workman• Requirement to enter premises by certain gates• Closing and reopening of industrial establishment

and temporary stoppages of war.• Termination of employment and notice given by

employer and workman.

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Procedure for submission of draft standing order (sec 3)

• Within 6 months of application of act to industrial establishment ,the employer submit to the certifying officer 5 copies of the draft standing order proposed by him in adoption in his establishment.

• Such draft SO covers every matter in the schedule to the act.

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• SO to be accompanied by particulars of workman:• The draft SO submitted under sec3 is accompanied

by statement contain particulars of workman employed in industrial establishment. The statement also contain the name of eth TU ,which eth worker belong.

• Employers in similar establishment may submit a joint draft of SO:

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PROCEDURE FOR CERTFICATION OF SO• Certification of SO (SEC 5):• Copy of draft SO to be sent to TU or workman:• On receipt of so under sec 3,the certifying officer

shall forward a copy to TU OF workman.• If no TU ,it is sent to workman.• The certifying officer also sent a notice along with

the copy of the draft ,for objection if any the workman may desire to make to the SO.

The objection is submitted to certifying officer within 15 days from receipt of the notice.

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• Opportunity of hearing to tu/workman to be provided:

• The CO shall give opportunity to employer, TU or representative of workman of being heard if any modification or addition to SO is to be made.

• Then he decide whether or not any modification or additions to draft is necessary and make an order in writing of his decision.

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Certification:

• The CO shall certify the SO with the modification ,if any.

• He shall sent the copies of SO, and his order to employer ,TU,representatives of workman within 7 days.sec 5(3)

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CONT….

• Conditions for certification of SO(SEC 4)• In certifying the SO, The certifying officer shall see

that the conditions as laid down in sec 4 are compiled with:

• The SO are in conformity with the provisions of the act.

• Provision is made for every matter set out in schedule ,which is applicable to industrial establishment.

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Appeal (sec 6)• Any employer ,workman ,TU • ,representative of workman aggrieved by order of CO

,may within 30 days from the date on which copies of certified SO are sent by CO under sec 5(3) appeal to appellate authority.

• The appellate authority shall by Oder in writing confirm the SO either in form certified by CO.

• SO are modified ad certified by AA.• Appellate authority shall within 7 days of its

order ,send copies of certified SO to employer, TU or rep of woman .

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Other provisions relating to so

• Date of operation of SO (SEC 7):• SO unless an appeal is made ,it come to

operation on the expiry 30 days from the date of which the CO sent the copies under sec 5(3).

• When an appeal is preferred SO shall come into operation on the expiry of 7 days.

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• Register of SO (sec 8):• A copy of all SO as finally certified under the

act ,shall be filed by CO in a register in the prescribed form.

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Posting of SO(SEC 9)

• Text of SO as finally certified under the act is displayed by employer in English and in language understood by majority of workman.

• The display shall be on special boards at to be maintained for this purpose :

• At or near entrance thro’ the majority of workman enter the industrial establishment.

• In all department ,where the workman are employed.

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Duration and modification of SO:

• SO finally certified under the act shall not be modified until the expiry of 6 month from the ate on which the so or last modification came into operation except on agreement between employer and workman or TU or representative of workman.

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PAYMENT OF SUBSISITENCE ALLOWANCE(SEC 10-A)

• Subsistence allowance at 50/75 percent:• Dispute regarding subsistence allowance to be

refereed to LABOUR COURT:• If subsistence allowance more beneficial

under any other law ,provisions of that law to apply:

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Enforcement of act• Power of certifying officers and appellate

authority (sec 11): • They both have all powers of a civil court for

the purpose of • Receiving evidence• Administering oaths• Enforcing attendance of witness• Compelling the discovery and production of

documents.

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Penalties

• An employer who fails to submit draft SO as per sec 3 or modifies SO otherwise than in sec 10.

• Fine ---5000 ,if continues--- 200 every day.• An employer who does any act in

contravention of the SO finally certified under the act----fine rs 100.

• If continues----rs 25 every day.

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Apprentice Act 1961• Object of the Act:

Promotion of New manpower at skills. Improvement/refinement of old skills through theoretical and practical training in numberof trades and occupation.

Applicability of the Act:According to Sec.1 Areas and industries as notified by the Central Government.

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Period of Apprenticeship:

Training to be determined by the National Council.

ContractofApprenticeship: According to Sec.4 To contain such terms and conditions as may be agreed to by the apprentice, or his guardian (in case he is a minor) and employers.

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Obligations of Apprentice

• To learn his trade conscientiously, diligently. • To attend practical and instructional classes

regularly. • To carry out all lawful orders. • To carry out his contractual obligation

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Health Safety & Welfare measures for Apprentices

• As per Factories Act or Mines Act as the case may be when undergoing training. Hours of Work 42 to 48 in a week while on theoretical training.

• 42 in a week while on basic training.• 42 to 45 in a week in second year of training.• As per other workers (in the third year). • Not allowed to work between 10 PM to 04 AM

unless approved by Apprenticeship Advisor.

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Leave and Holidays

• Casual Leave for the maximum period of 12 days in a year.

• Medical Leave for the maximum period of 15 days and the accumulated leave up to 40 days in a year.

• Extraordinary leave upto a maximum period of 10 days in a year.

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Payment of Apprentices

• The employer to pay such stipend at a rate of not less than prescribed minimum rate as may be specified.

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Employer's liability to pay compensation for injury

• As per provisions of Workmen's Compensation Act. Sec.16

• Offences & Punishment Imprisonment of a term upto 6 months or with fine when employer

• Engages as an apprentice a person who is not qualified for being so engaged or

• fails to carry out the terms and conditions of a contract of apprenticeship, or

• contravenes the provisions of the Act relating to the number of apprentices which he is required to engage under those provisions.

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The Equal Remuneration Act, 1976

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Existing Provisions Section 5

• No discrimination to be mad while recruiting men and women workers - On and from the commencement of this Act, no employer hall while making recruitment for the same work or work of a similar nature, (or in any condition of service subsequent to recruitment such as promotions, training or transfer), make any discrimination against

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continue

• women except where the employment of women in such work is prohibited or restricted by or under any law for the time being in force - Provided that the provisions of this section

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Continue…

• shall not affect any priority or reservation for Scheduled caste or Scheduled Tribes, ex-servicemen, retrenched employees or any other class or category of persons in the matter of recruitment to the posts in an establishment of employment

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Section 7 :• Power of appropriate Government to appoint

authorities for hearing and deciding claims and complaints - i) the appropriate Government may, by notification, appoint such officers, not below the rank of a Labour Officer, as it thinks fit to be the authorities for the purpose of hearing and deciding. a) Complaints with regard to the contravention of any provision of this Act. b) Claims arising out of non-payment of wages at equal rates to men and women or work of a similar nature;

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• and may , by the same or subsequent notification, define the local limits within which each such authority shall exercise its jurisdiction. ii) Every complain or claim ref erred to in sub-section (1) shall be made in such manner as may be prescribed. iii) If any question arises as to whether two or more works are of the same

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Continue…• nature or of a similar nature, it shall be decided by the

authority appointed under sub-section (1). iv) Where a complain... v) Every authority appointed under sub-section (1) shall have all the powers of a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), for the purpose of taking evidence and of enforcing the attendance of witnesses and compelling the production of documents, and every such authority shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).

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Continue..• Section 10 : Penalties (1) - If after the commencement of

this Act, any employer, being required by or under the Act so to do -a)...., b)...., c....., d)..he shall be punishable (with simple imprisonment for a term which may extend to one month or with fine which may extend to ten thousand rupees or with both).

• Section 15 : Act not to apply to certain special cases - Nothing in this Act shall apply - a) to cases affecting the terms and conditions of a women's employment in complying with the requirements of any law giving special treatment to women, or b) to nay special treatment accorded to women in connection with - i) the birth or expected birth of a child , or ii) the terms and conditions relating to retirement, marriage or death or to any provision made in connection with the retirement, marriage or death.

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Justification

• Section 5 : Under Section 5 women are prohibited or restricted by law to take up certain employment or to take up the employment during particular hours of the day. It is high time that the list of the category of the work, wherein women are prohibited or restricted by law from taking the work is pruned down, unless the same is hazardous and threatens the life and limp of the women. Today, the women are giving effective competition to men in different sphere of activity and has proven themselves. It the restrictions are not removed or significantly curtailed, then they are likely to be challenged on the ground of discrimination and violation of Article 14 of the Constitution.

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Section 7• Section 7 relates to the officer manning the

adjudicatory body. It is the first pint of contact for the aggrieved party. The Act provides for a Labour Officer to hear the complaint relating to contravention of any provisions of the Act of non-payment of equal wages. Since the complaints primarily emanates from Women section of the employees it is of utmost important that the adjudicatory authority should provide assurance and should inspire confidence of aggrieved party. For this reason, the Labour Officer who has been empowered under this Section should be a women with background of Labour practices.