Work Hours and Overtime under the Factory Act, 1948 and Shops & Establishment Act
India has two major laws concerning working hours of workers i.e. the Factory Act, 1948 and Shops & Establishment Act. The regulations related to the working hours can be separated into four broad categories that help demarcate the dimensions of the discussion.
Working Hours for Factory Workers;
I. Employment of Adults:
However, the total number of hours of work in a week, including overtime, shall not exceed sixty and the total number of hours of overtime shall not exceed fifty for any one quarter. The employer has to make sure that no worker works more than 10 days without a rest day of 24 hours. Therefore, if the worker is asked to work on weekly holiday, he should have full holiday on one of three days immediately or after the normal day of holiday.
The Factories Act puts restriction on double employment and overlapping of shifts. No worker is allowed to work in any factory on any day on which he has already been working in any other factory. If a worker shift extends beyond midnight, a holiday of a whole day means 24 consecutive hours beginning when his shift ends must be provided to him.
Weekly holiday is compulsory as per the Factories Act. First day of the week i.e. Sunday shall be a weekly holiday. Compensatory holiday in lieu of weekly holidays deprived and such compensatory holiday must be given within the same month or two months following the month when the weekly holiday was missed.
II. Employment of Women:
A woman worker cannot be employed beyond the hours 6 a.m. to 7.00 pm. State Government can grant exemption to any factory or group or class of factories, but no woman can be permitted to work during 10 PM to 5 AM. Shift change can be only after weekly or other holiday and not in between.
III. Employment of Young Person:
Child below the age of 14 years is not allowed to be employed in a Factory. Young person above 14 but below 15 years of age can be employed only for 4.5 hours per day and that too subject to a doctor's permission by way of certification of fitness for work. A person over 15 but below 18 years of age is termed as “adolescent”. He can be employed as an adult if he has a certificate of fitness for a full day's work from certifying surgeon. There are more restrictions on employment of female adolescent.
Procedure for Overtime
A notice of period of work, in English and local language should be displayed at some prominent place. No worker shall be required or allowed to work in any factory otherwise than in accordance with the notice of periods of work displayed in the factory. Copy of notice of period in duplicate and any change is to be sent to the Inspector. Therefore, although, no direct procedure for overtime has been laid out, it becomes mandatory that work periods are notified. Moreover, for overtime, the consent of the worker would be required as the law prohibits the employer to require a worker to work in a factory for more than forty-eight hours in a any week and nine hours in a day, unless notified by the state government.
For the contract labourers, as per the Contract Labour Act, 1971 a notice showing the place and time of disbursement of wages, rate of wages, hours of work, wage period, dates of payment of wages, name and addresses of the Inspector having jurisdiction and date of payment of unpaid wages should be displayed in the premises in the local language understood by majority of the contract labourers.
Overtime Wages
If workers work for more than 9 hours a day or more than 48 hour a week, extra wages should be given at twice the ordinary rate. For agricultural labour under the Plantation Act, this is extended to 54 hours a week as the norm, rather than 48 for factory work.
Total working hours including overtime should not exceed 60 hours in a week and total overtime hours in a quarter should not exceed 50. Register of overtime should be maintained. An employee working outside the factory premises like field workers etc. on tour outside headquarters are not entitled to overtime.
Working Hours for Non-Factory Workers
The Shops and Establishment Act (“SEA”), which is a state legislation and each state has framed its own act and rules for the act, regulates the working hours of non-factory workers i.e., shops and establishments. SEA is applicable to all the employees (including managerial and non-managerial workers) of any shop of establishment covered under it. SEA also fixes the maximum number of work hours to 9 hours a day and 48 hours a week. The work hours may be increased upto 54 hours a week with prior notice to the local labour inspector subject to the condition that overtime work hours do not exceed 150 in one year. In line with the Factories Act, the SEA also requires payment of wages at twice the rate of regular wages. Similarly, the rest and substitute holiday provisions under the SEA are in line with the provisions of the Factories Act unless state governments have changes to their respective SEAs. The law does not really differentiate between managerial and non-managerial workers when it comes to regulations relating to working hours. However, it is a common practice that employees (management level and other white collar employees) rarely make any demands or are paid any overtime wages, although legally entitled to.
Penalties
The Factories Act provides for penal consequences for contravention of provisions of the act; any violation of overtime regulations under the Factories Act is punishable with imprisonment for a term which may extend to two years or with fine which may extend to one lakh (one lakh = 100,000) Rupees or with both, and if the contravention is continued after conviction, with a further fine which may extend to one thousand Rupees for each day on which the contravention is so continued. The penalties under the SEA depend on the specific laws of the states but in general are very low (as low as Rs. 100 in case of some states) in comparison with the penalties under the Factories Act.
This article was published in INDO-JAPAN TRADE AND INVESTMENT BULLETIN- DEC 2013 and has been written by:
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