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Rights of Employees according to the Indian Labour...

Employment AgreementEmployment agreement detailing the employment terms and conditions including compensation, place of work, designation, work hours, and so on is mandatory. The employer’s rights and obligations including non-disclosure of confidential information and trade secrets, timely payment, provident fund, and so on are clearly stated in an employment agreement. If a dispute arises, the agreement incorporates an effective mechanism for resolution of disputes. Without a written employment agreement, the employee does not have recourses if a dispute arises.Maternity BenefitThe Maternity Benefit Act, 1961, has provisions for prenatal and postnatal benefits for a female employee. Owing to Amendments after 2017, the timescale of paid leaves for an expecting female employee has risen to 26 weeks, inclusive of eight weeks of postnatal paid leaves.If the pregnancy leads to complications like caesarian, premature birth then in such cases female employees have the right to paid leave for a month. In instances of tubectomy, an additional paid leave of two weeks is granted.Expecting female employees cannot be terminated because of pregnancy-related absences and employers cannot employ them within over a month of delivery or miscarriage; six weeks to be exact. employees are not to be employed by the employer within six weeks of delivery or miscarriage. If terminated, they can claim maternity benefits anyway.In India, men cannot claim any paternity leave while getting paid. There is provision for childcare leave and paid paternal leave if one is a Central Government employee. In the case of the private sector however, the employer has discretionary powers. Provident FundThe national organization is the Employee Provident Fund Organisation (EPFO) managing this benefits scheme post-retirement for all salaried employees. Any organization with over 20 employees is legally bound to have their organization registered with EPFO.It's the employee’s prerogative to opt-out of the scheme but they have to do it as they begin their career. The employee cannot withdraw the amount at will. The withdrawal amount and term of years in service are limited by the rules. Once the organization is registered, it's obligatory for employers and employees alike to contribute 12 % of the basic salary into the fund. In case of the employer not contributing his share or deducting the entire 12 % from the salary of the employee, the employer is liable to be prosecuted by the PF Appellate Tribunal.After a waiting period, of a maximum of two months, the amount can be withdrawn to fulfill emerging needs and essential expenses. The limits of withdrawal are specified by the rules for the tenure of service for each purpose. An employee can withdraw a maximum of 3 times, and if the amount is withdrawn prior to five years the amount is taxable. GratuityA statutory right to an employee in service for over five years is granted on the basis of The Payment of Gratuity Act, 1972. It is amongst the retirement benefits provided to the employee and is a bulk payment made as a gesture of appreciation for the services that the employee has provided. There is an incremental increase in the gratuity amount based on the tenure of service.However, the employee can be terminated for evidenced lawlessness or unlawful conduct gives up this right once dismissed.Timely and Fair SalaryArticle 39(d) of the Constitution mandates equal pay for equal work along with The Equal Remuneration Act and The Payment of Wages Act, mandating an employee’s timely and fair remuneration. If an employee does not get paid according to the employment agreement, the employee can lodge his/her grievances with the Labour Commissioner or file a lawsuit for non-payment of salary. An employee cannot be paid less than the legally stipulated minimum wages. Appropriate Working Hours and OvertimeAll employees have a right to work in a safe, secure and hygienic workplace with basic amenities. The Factories Act provides for and the Shop and Establishment Acts (statewide) protects the rights of the workers as well as the non-workers.According to the newest laws, an adult worker’s work hours would be more than nine hours daily or weekly 48 hours and any overtime would double the minimum wages. The work hours for a female worker would be from 6 am to 7 pm. The hours are stretchable up to 9.30 pm once explicitly permitted, along with overtime payment and a safe and secure transportation facility. Besides half an hour break time and 12 hours of work on a daily basis are obligatory. The work hours for juveniles are limited to 4.5 hours daily.Right to LeavesPaid public holidays including casual leave, sick leave, privilege leave, and other leaves are the rights of an employee. For every 240 workdays, an employee has rights to 12 days of leave annually. An adult worker may avail one earned leave every 20 days whereas for young workers its 15 days. While an employee is serving notice period leaves of employees are permissible only for emergencies, as long as the terms of employment do not bar prevent it.?Call 7604047601 for consultation with registered expert Employment and Labour Lawyers on Vidhikarya.

Posted By

Avik Chakravorty

1 month ago

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WHAT IF MATERNITY BENEFITS ARE DENIED?

WHAT CAN HAPPEN IF MATERNITY BENEFITS ARE DENIED?WHAT IS MATERNITY BENEFIT? Maternity benefit is the amount which every woman is entitled to be paid and the employer is liable to pay to her at the rate of average daily wage for the period of her actual absence. It is a payment paid to the woman who is on her maternity leave from work and it is covered under social insurance (PRSI) An application for such payment must be made at least 6 weeks before intending to go for maternity leave. (12 weeks in case of self - employed). If the woman is already on some social welfare payments then she may avail half rate maternity benefits.In India, the maternity benefit rules are governed by the amended maternity benefit act, 2017, which regulates the eligibility, condition and duration for getting maternity benefit. The maternity benefit rules are applicable to factories, shops, mines and establishments which employ 10 or more employees. The maternity benefit law was regulated by the Maternity Benefit Act, 1961 previously but it was further amended in the year 2016. The amendments to the act had changed various provisions regarding the applicability and duration of maternity leave in India. The following changes were brought about by the new maternity benefit rules:1.INCREASED DURATION The maternity benefit leaves were previously available to women employees for 12 weeks. Later it was increased to 26 weeks after the 2017 maternity rules. This benefit can be availed in a duration of 8 weeks prior to the expected delivery date and 18weeks after the delivery. 2.CHANGED APPLICABILITYMaternity benefit leave in India is available to both adoptive mothers and commissioning mothers as well. Women employees who adopt a child gets 12 weeks of maternity benefit in India. 3.THE OPTION OF WORK FROM HOME The new maternity benefit rules of 2017 provide pregnant and lactating women with the option of working from home once the maternity benefit leave of 26 weeks expires. The conditions which govern work from home are mutually decided by the women employee and employer. 4.CRECHE FACILITY BY THE EMPLOYER The Maternity Benefit Act, 2017 makes it compulsory for the employers that employ more than 50 employees to provide creche facility in the premises and allow women employees to visit the facility 4 times a day. Even if there are 50 employees including men , such facility should be provided. In cases where there are only male workers even then the employer do away with such facility and must keep a creche whereby a father can take care of his child at ease. WHO IS ELIGIBLE TO GET MATERNITY BENEFIT IN INDIA?The Maternity Benefit Act, 2017 lays down the women employees who are most eligible to get maternity benefit. The act states that the women employees who had worked for at least 80 days in the past 12 months can apply for getting maternity benefits in India. Even the mothers who adopt a child under the age of 3 months are eligible to get a maternity benefit leave for a period of 12 months. A commissioning or a surrogate mother is also entitled to get maternity benefit for 12 weeks. If any woman suffers from a miscarriage then she is entitled to get a maternity benefit for a period of 6 weeks after providing a certificate from the doctor. Also if any women suffer from an illness that is caused due to her pregnancy, premature childbirth or delivery, she shall be entitled to get a maternity benefit of 1 month after providing the doctor’s statement. WHAT TO DO IF MATERNITY BENEFIT IS DENIED BY THE EMPLOYER?An employee’s maternity benefit can never be denied by any employer. If the maternity benefit services are dismissed or denied by your employer, you can take the following steps:-HR DEPARTMENT TO BE CONTACTED - Take your grievances to the HR department of the company. Usually, it is the HR representatives that clear up any confusion or grievance between the employer and the employee. Check the HR policies of the company to know about the company’s stance on maternity benefit. If in case the HR fails to provide any resolution, follow the next step. EMPLOYER TO BE SENT A LEGAL NOTICE - Consult an employment and labour lawyer in India and send a legal notice to your employer regarding the denial of your maternity benefit which is your right. But, still, if the employer doesn’t respond, he can be taken to the court. APPROACH THE LABOUR COURT- Hire an employment and labour lawyer to file a case against your employer in a Labour court. Any employer who denies a women employee’s maternity benefit claim in Indian can be punished with imprisonment for up to 3months, fine for up to Rs. 5000, or both. If you have been dismissed or discharged from your service, then he can be punished with imprisonment for a period of 3-12 months.  It is advised to contact an advocate practicing labour and employment acts if your maternity benefit claims are denied by your employer.         

Posted By

Sayaree Ganguly

7 months ago

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