Law 4th Semester - Labor Law

 

Short Answer Questions

1. Definition of wages
1. Section 2(h) of Minimum wages Act, 1948 defines wages
1. all remuneration, capable of being expressed in terms of money, which would if the terms of the contract of employment, express or implied, were fulfilled, be payable to person employed in respect of his employment or of the work done in such employment  and includes House rent allowance
2. Wages DO NOT include
1. the value of
1. any house accommodation,  supply of light, water, medical attendance or
2. any other amenity or any service excluded by general or special order of the appropriate government.
2. any contribution paid by the employer to any Pension Fund or Provident fund or under any scheme of social insurance
3. any travelling allowance or the value of any travelling concession where a trip allowance was prescribed by a notification, 
4. any some paid to the person employed to defray special expenses entailed on his by nature of employment
5. any gratuity payable on discharge.
2. Whitley Commission
3. Full Bench Formula
1. Mill Owners Association Vs Rastriya Mill Mazdoor sangh (1952) LAC 423
1. A Full bench of labour appellate tribunal observed that bonus could no longer be considered as an ex-gratia payment and laid down the formula known as Full Bench formula
2. Since labor and capital contributed to the earning of industrial concerns, it was only fair that labor should get some benefit if there was a surplus left AFTER meeting prior and necessary charges.
3. Prior Charges which should be deducted 
1. return on paid up capital generally at the rate of 6%
2. return on working capital varying from 2-4%
3. depreciation worked out on a notional basis
4. rehabilitation
5. income tax
4. Set on and Set Off
5. Social Security
6. Notional Extension
7. Maternity Benefit
1. Maternity Benefit Act, 1961 : enacted to regulate the employment of woman in certain establishments for certain period before and after child birth and to provide for maternity and certain other benefits
2. Intended to achieving object of social Justice to woman workers
3. Interpreting the provisions of this Act BENEFICIAL RULE OF CONSTRUCTION, which would enable the woman worker not only to subsist but also to make up her dissipated energy, nurse her child, preserve her efficiency as a worker and maintain the level of her previous efficiency and output [ B. Shah Vs Labour Court, Coimbatore AIR 1978 SC 12 ]
4. Section 4 : No woman SHALL work in any establishment during the 6w immediately following day of her delivery, miscarriage or medical termination of pregnancy. No work 1m proceeding her delivery upto 6w
5. Section 5 : Right to payment of maternity benefit , woman shall be entitled and her employer shall be liable for, is a payment to a worker at the rate of avg daily wages for the period of her actual absence immediately preceding and including the day of her delivery and for 6w immediately following that day.
1. Cannot avail Maternity benefit if worked < 160days
2. Min period of 12w , 6w upto and including the day of her delivery and 6w immediately following that day. - 5(3)
6. Section 8 : Payment of medical bonus - 1k for if no pre-natal confinement and post natal care is provided by employeer free of charge.
7. Section 9 :  Leave for miscarriage, Section 9A : leave for tubectomy 
8. Section 10 : woman suffering from illness arising out of pregnancy, delivery, premature birth of a child, miscarriage, medical termination or tubectomy  on production of proof entitled additional period of absence with wages for max 1month
9. Section 11 : Nursing breaks - In addition to the interval for the rest allowed to her, be allowed in course of daily work, 2 breaks of prescribed duration for nursing until child attains 15months.
10. Section 12 : Dismissal during absence of pregnancy : Unlawful for her employer to discharge or dismiss her during or on account of such absence 
11. Section 18 : forfeiture of maternity benefit : if woman works in any other establishment
12. Section 27 : Effect of laws and agreement inconsistent with act
1. provisions of this act SHALL have effect notwithstanding anything 
2. The above provision is subject to exception that where under any such award, agreement, contract of service or othewise, a woman is entitled to benefit in respect of any matter which is more favourable to her than those to which she would be entitled under act, woman shall continue to be entitle more favourable beneifts 
8. Labour Welfare
9. Gratuity
1. Is a kind of retirement benefit like the provident fund or pension.
2. It is regarded as legitimate claim which workmen can make and which in a proper case give rise to an industrial dispute.
3. General principle gratuity scheme is that , by length of service, workmen are entitled to claim a certain amount as retirement benefit.
4. It is reward for good, efficient and faithful service rendered for a fairly substantial period and it is not paid to the employee gratuitously or merely as a matter of retirement bonus but for long and meritorious service [ M.S Hydro Engineers Vs The Workmen AIR 1969 SC 182 ]
5. Case Law : Cloth & General Mills Co. Ltd Vs Their Workmen (1968) 36 FJR 247
1. The object of providing gratuity scheme is to provide a retiring benefit to the workmen who have rendered long and unblemished service to the employer and thereby contributed to the prosperity of the employer.

Questions

1. Explain the procedure for fixation and revision of minimum wages under the minimum wages Act, 1948.
1. Questions relevant for determination of wage structure
1. Amount necessary to maintain and improve the standard of living of the workers.
2. A comparison of wages paid to the workers concerned with the wages of similar workers in similar concerns of the region.
3. Capacity of industry to bear the burden
4. While comparing establishment with other establishment
1. Standing of the establishment
2. Strength of labour force employed 
3. Comparative study of profit and loss by then in preceeding years
5. A lower wage limit is necessary for bare living must be paid irrespective of extend of profits, financial condition of establishment or availability of workment [ Sangam Press Vs workmen AIR 1975 SC 2035 ]
6. wages must be fair, sufficient to provide a standard family with food, shelter, clothing medical care and education of children.
2. Discuss the concept of Bonus and salient features of payment of bonus Act, 1965
1. The payment of Bonus Act, 1965
2. Bonus is a cash payment made to employees in addition to wages. It is not ex-gratia payment
3. Since labor and capital contributed to the earning of industrial concerns, it was only fair that labor should get some benefit if there was a surplus left AFTER meeting prior and necessary charges.
4. SC laid 2 condition which had to be satisfied BEFORE demand for bonus
1. the wages fell short of the living standard; and
2. the industry makes huge profits part of which are due to the contribution made by the workmen in increasing production.
5. Bonus payable to an employee is wages is not liable to attachment ( 1970) I LLJ 697(AP)
3. Explain the liability of the employer for the injuries sustained by the workmen during the course of employment
4. Define the concept of gratuity and discuss the salient features of the payment of Gratuity Act, 1972

Grounds for revision of Wages

1. Increase in paying capacity of the employer
2. Rise in cost of living
3. Anomalies, mistakes or errors in the award fixing wage structrue.

Problems

1. There is an agreement between the workers and their employers by which the workers work, below the min wage and they do not claim for statutory min wages. Whether the agreement is valid?
2. A workman while coming to workplace met with an accident and died. Whether employer is liable for compensation?
3. A woman worker who is under maternity leave is transferred to a far off place which causes her most inconvenience. Advice.
4. A child below 14y of age is employed in a workshop run by the employer with the aid of this family. Discuss the legality of the employment of the child.

The Minimum Wage Act, 1948

Object of Act : for WELFARE of labourers. This act secures welfare of workers in a competitive market by providing for minimum limit of wages in certain employment

1. Such provisions exist in more advanced countries are even necessary in India
2. Where worker organizations are yet poorly developed  and the worker bargain power is consequently poor
3. The Object of the Act is directed against exploitation of the ignorant, less organized and less privileged members of the society by the capitalist.
4. The anxiety of the State for improving the general economic condition of some of its less favored member appears to be in suppression of old principle of absolute freedom of contract and doctrine of laissez faire and recognizes the new principle of Social welfare.