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India

January 15, 2021

By Suhas Srinivasiah

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India

KEY DEVELOPMENTS FOR 2021


 

India has enacted four new labour codes, which consolidate and simplify 29 existing Central (Federal) legislations. These Codes were expected to come into force on 1 April 2021 (beginning of India's ensuing financial year).

Briefly, the Codes are:

Code on Wages 2019 enacted

The Wages Code consolidates four laws and inter alia seeks to cover all "employees" including persons serving in managerial and supervisory roles (who were previously not eligible for all the protections under existing Indian labour laws), establish a base floor minimum wage, etc. The Code establishes Central (Federal) and State (Provincial) advisory boards which are tasked with making recommendations to increase employment opportunities for women in the workplace.


 

Occupational Safety, Health, and Working Conditions Code 2020 establishes uniform health and safety regulations

The OSHCW Code consolidates 13 laws and increases existing thresholds for its applicability. This Code seeks to establish uniform health and safety regulations to be followed by all establishments (and not just "factories"). The Code permits women to work in factories at night (which is presently not permitted) and empowers State (Provincial) Governments to exempt certain industries and factories from compliance to create more economic or employment opportunities.


 

Industrial Relations Code 2020 enacted

The IR Code consolidates three federal labour laws regulating industrial relations and disputes, working conditions in industrial establishments and trade unions. The IR Code has increased the employee threshold to 300 workmen (from the current 100 workmen) where prior Government approval will be required by a factory to close down, lay off or terminate workmen. A similar increase to 300 workmen is also seen where an establishment needs to have certified standing orders in place (from the current 100 workmen), which are prescribed working conditions for employment.


 

Social Security Code 2020 consolidates nine federal labour laws which provide social security to employees

The SS Code consolidates nine federal labour laws which aim to provide social security to employees. While broad social security benefits remain the same, a key change in the SS Code is coverage of the unorganised sector for the first time, where the Government will be setting up social security coverage funds in conjunction with "aggregators," i.e., entities utilising the services of these unorganised workers.

Some uniform features seen in all the above Codes are: (a) the number of registers to be maintained and returns to be filed with the authorities under each Code have been substantially reduced, (b) faceless and web based interaction with the authorities has been introduced, and (c) fines for violations have been substantially increased but at the same time, the penalties of imprisonment have been largely limited to repeat offenses. An immediate recommended action item for employers is to undertake review of their existing CTC (cost to company) salary structures to ensure compliance with the new Codes, especially the Wages Code and the Social Security Code.

With thanks to Suhas Srinivasiah of Kochhar & Co. for his invaluable contribution on this update.

 

KEY DEVELOPMENTS FOR 2020


 

Changes anticipated by the Code on Wages

The Code on Wages was implemented in 2019, but the effective date of commencement is still pending. The Code merges four central Indian laws relating to wages, minimum wage rates, bonus payments and pay parity for employees into one single piece of legislation. It is expected that such consolidation will result in fewer compliance requirements for employers and make it easier for businesses to operate in India.


 

Reduction in contributions under the Employees' State Insurance Act

India has reduced the employee contribution rate as required by the Employees' State Insurance Corporation to 0.75% (from 1.75%) and the employer contribution to 3.25% (from 4.75%).


 

Supreme Court judgment regarding treatment of "special allowances" payment

In the case of Regional Provident Fund Commissioner (II) and Ors v Vivekananda Vidyamandir and Ors, the Supreme Court of India (India's Apex Court) held that "special allowances" paid by an employer to its employees will fall under the definition of 'basic wages' and would be subject to provident fund contributions. Before this decision, employers would typically use the "special allowance" component of an employee's salary to reduce the amount of an employee's compensation that would be held as basic wages and subject to statutory contributions. This recent decision by the Supreme Court is binding on all employers in India, and accordingly, any special allowances paid to employees will be subject to provident fund contributions.

 

KEY DEVELOPMENTS FOR 2019


 

Fixed term employment open to all sectors

India has recently introduced an amendment to the Industrial Employment (Standing Orders) Central Rules, 1946 to allow fixed term employment across all sectors. Previously, fixed term employees were only permitted in the apparel manufacturing sector.


 

Increase in statutory limit under the Payment of Gratuity Act, 1972

India has increased the statutory maximum amount of gratuity payable to eligible employees to INR 2,000,000 from the previous limit of INR 1,000,000.


 

Provident fund contribution by the Government of India

To boost employment, the Government of India will (subject to certain conditions) pay the employer's share of the contribution to the provident fund (i.e. 12% of the monthly salary) in respect of any new employees for a period of 3 years starting from 1 April 2018. The scheme shall apply once the beneficiary has been registered on or before 31 March 2019.

With thanks to Vijay B. Ravi, Suhas Srinivasiah and Debjani Aich of Kochhar & Co. for their invaluable contribution on this update.

 

KEY DEVELOPMENTS FOR 2018


 

Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Act, 2017

The Maharashtra Shops & Establishments Act 1948 is being replaced with the Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Act, 2017 (“Act”). The Act will not apply to establishments employing less than ten workers, in contrast with the preceding legislation which applied to all establishments irrespective of the number of workers employed.


 

Launch of “SHe-Box” by the Ministry of Women and Child Development

An online portal has been launched to register complaints of sexual harassment in the workplace, named the “SHe-box” (sexual harassment electronic box).


 

Cabinet approves introduction of the Payment of Gratuity (Amendment) Bill, 2017

As a result of inflation and wage increases, new legislation anticipates an increase in the maximum limit of tax free gratuities for employees who are not covered under the CCS (Pension) Rules.


 

Code on Wages, 2017

The Code on Wages Bill, 2017 (which is yet to come into force) proposes to replace four federal labor laws, and is intended to ensure minimum and timely payment of wages to all employees. The Central Government is pushing to regularise and unify working hours and ensure payment for overtime to employees as well.


 

Contract Labour (Regulation and Abolition) Amendment Act, 2017

This amendment will revise the definition of ‘contract labour’ to ensure workers who are in reality regular employees are excluded from the definition of ‘contract labour’, and will impose higher registration, notification obligations and sanctions on the employer.


 

The Factories (Amendment) Bill, 2016 / The Employment Exchanges (Compulsory Notification of Vacancies) Amendment Bill, 2013/ Employees' Provident Fund & Miscellaneous Provisions Act, 1952

These pieces of legislation, together with many others, are all in the pipeline for action by the Indian Government. Many changes are underfoot and it remains to be seen how many of these proposed amendments are passed into law in 2018.

 

KEY DEVELOPMENTS FOR 2017


 

On-going agenda to update very old employment laws

Mr. Modi’s government has taken steps to enact the Labour Code on Industrial Relations Bill 2015 (“IR Code”). The IR Code aims to consolidate three main enactments: the Trade Unions Act 1926 (“TU Act”) which deals with laws relating to trade unions; the Industrial Employment (Standing Orders) Act 1946 (“IESO Act”) which requires an industrial establishment to formally define conditions of employment; and the Industrial Disputes Act 1947 (“ID Act”), which is often regarded as the bible of Indian employment laws. As and when the IR Code gets parliamentary consent, and is promulgated into law, Indian labour laws may finally be seen to be aligned to the liberal investment climate that the government is promoting.


 

Strengthening of maternity laws

The Maternity Amendment Bill 2016 was approved by the Upper House, however, it is yet to become law. Currently, the Maternity Benefit Act 1961 entitles eligible female employees to receive 12 weeks of maternity leave and benefit. However, under the new Bill there would be increased maternity leave and benefits from 12 to 26 weeks other than for women who already have two children, a 12 week maternity leave period for adopting and surrogate mothers, greater flexibility to work from home, a mandatory requirement for companies having over 50 employees to have a crèche within a 1km range of the office and no continuity of service requirement for women to receive these benefits


 

Various additional legislative proposals

Proposed amendments to the current Employees Provident Fund & Miscellaneous Provisions Act, 1952 (“EPF Act”), the Employees Compensation Act 1923, better protections for those working in shops, minimum wage for contract labourers, the Employee State Insurance Act, the Factories Act and strengthen laws in relation to the Sexual Harassment at The Workplace (Prevention, Prohibition and Redressal) Act and Rules, 2013.

 

KEY DEVELOPMENTS FOR 2016


 

Wider coverage and changes to method of payment to the Employee’s Provident Fund scheme

An amendment to the Act has raised the threshold of applicability of the Act to all employees drawing up to 15,000 rupees per month. Previously the cap was set at 6,500 rupees. The central government has made it mandatory for all employers to make monthly provident fund contributions through internet banking of the State Bank of India or any other nationalised bank authorised to collect the contributions. Companies are advised to check if they are compliant with this change in the law.


 

Limited carve-out to child labour laws

The Child Labour (Prohibition and Regulation) Act, 1986 has been amended. The employment of children under 14 years of age is prohibited in all occupations and processes. However, an exception has been made, namely where the child helps his family or family enterprises, which is other than any hazardous occupation, or works after school hours or during vacations; or where the child works as an artist in an audio-visual entertainment industry. Foreign companies working with sub-contractors should be mindful of this provision to ensure their vendors remain compliant with the law.


 

More employees eligible to larger statutory bonus

The Bonus Act Amendment Bill has increased the threshold of applicability for statutory bonuses. Employees earning 21,000 rupees or less must now be given a statutory bonus in line with applicable laws. The amendment also increases the amount of bonus that would be received by the eligible employees to 7,000 rupees per month or the minimum wage for the scheduled employment (whichever is higher).


 

Changes relevant to expats to or from India

The citizens of many countries, including Belgium, Germany, France, Switzerland, Netherlands, Luxembourg, Hungary, Sweden, Norway, Finland, Denmark, Czech Republic, South Korea, Austria, Canada, Australia and Japan will not be expected to make social security contributions in India as provided for in the specific treaty. Reciprocally, Indian citizens working in the signatory country will also not be required to make any social security contributions in the host country. If the home country of the foreign citizen working in India has not entered into an SSA with India, then such foreign citizens will be obliged to make social security contributions in accordance with the EPF Act.

With thanks to Shalini Agarwal of In Se Legal for her invaluable collaboration on this update.

Contributors

Image: Suzanne Horne
Suzanne Horne
Partner, Employment Law Department

Image: Kirsty Devine
Kirsty Devine
Associate, Employment Law Department

Image: Aashna Parekh
Aashna Parekh
Associate, Employment Law Department

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