The Bombay Shops and Establishment Act, 1948 (“Previous Act”) and the Bombay Shops and Establishment Rules, 1961 (“Previous Rules”) have been repealed and replaced with the new Maharashtra Shops and Establishment (Regulation of Employment and Conditions) Act, 2017 (“Current Act”) and Maharashtra Shops and Establishment (Regulation of Employment and Conditions) Rules, 2018 (“Current Rules”). They have been successfully notified by the Maharashtra Industry, Energy and Labour Department. The New Act and Rules are more illustrative on the rights and duties of a worker working in an establishment, and for the establishment itself.
Applicability and Compliance
While the Previous Rules did not prescribe any minimum threshold to applicability, the Current Rules prescribes that an establishment with 10 or more workers have to submit the registration form in accordance with Form A[1], while an establishment with less than 10 workers have to submit Form F as an online intimation for the commencement of business.[2] A major change that can be observed is the use of the term ‘workers’ instead of ‘employee’. So does this mean that, especially taking into consideration the exclusion provided in the Current Act that the provisions thereof shall not apply for workers occupying position of confidential, managerial or supervisory character in an establishment, under the Current Act and Rules, only the manual, unskilled, skilled, technical, operational or clerical work for hire or reward are covered, and an employee is not? Further, since there is no wage cap, is it possible that that the employees would come within the purview of workers?
Along with the Forms, relevant documents are also to be submitted. It is pertinent to note that the Ministry has taken a big leap by digitalizing the processing of Forms. Not only are the Forms now submitted online but the Certificates are also signed by the Facilitator digitally.[3]
Further, the fees for the Form which earlier used to vary, has now been removed for any type of registration, i.e. regardless of it being a first-time registration or a renewal of registration. Though the employer may have to pay electronic transactions or service charges which are periodically fixed by the state government from time to time.[4]
Moreover, the concept of deemed grant or renewal of registration has now been removed.
A non-compliance with the abovementioned provisions would lead to a penalty of INR 1000 on the employer.[5]
Cancellation of Registration Certificate[6]
For the cancellation of the registration of certificate, the Facilitator must provide the employer with a period of 10 days to submit the reasons for non-cancellation of the registration. But, if there is no notice after these 10 days, the Facilitator may cancel the registration. However, if the employer provides for a reason, then after considering the reason and the documents provided along with it, the Facilitator may either keep or cancel such registration. The Current Rules have tried to bring in a fair and just procedure for the cancellation of the registration, which had been missing from the Previous Rules.
Maintenance of Registers and Records and Annual Returns
There has been no change in any of the rules save for the rule that the registers now have to be maintained for a period of 3 years instead of for a period of 2 years.[7]
Further, an employer must within a period of 2 months from 31 December upload the Annual Return and provide a copy to the Facilitator. There was no such mention of this in the Old Rules.[8]
Thus, it is seen that the provisions with regards to accounting and maintaining of registers have been made more stringent since the Old Rules.
Employee or Worker
Though the Current Act and Rules have made major changes and leap forward in ways of technology, health and women safety (as yet to be seen), but at the same time it has taken two steps back by replacing the term ‘employee’ with the term ‘worker’.
A worker as defined in the said Act means and includes “any person (except an apprentice under the Apprentice Act, 1961) employed to do any manual, unskilled, skilled technical, operational or clerical work for hire or reward, whether the terms of employment be express or implied.”
As opposed to the previous Act, which defined the term employee as “a person wholly or principally employed, whether directly or through an agency, and whether for wages or other consideration in or in connection with any establishment; and includes an apprentice but does not include a member of the employer’s family”.
Rights of “Workers”
There has been an increase in transparency in an establishment as the establishment must now provide the number of hours of work, rest interval, weekly holiday for a worker on the website of the establishment (in a conspicuous place) and on the notice board of the establishment.[9]
Moreover, any person working more than 9 hours in a day and 48 hours in a week, is entitled to wages at twice the rate of his ordinary wages. If the overtime hours exceed 125 hours in a period of 3 months, the employer shall be liable to a penalty.[10]
For workers working on shift basis, the establishment must give notice of the schedule of the shifts to the workers well in advance along with a weekly holiday. It also emphasizes on the prohibition of overlapping of shifts for workers, men and women alike. A minimum gap of 12 hours must be given to the worker for rest.[11]
Therefore, it is observed that the rights of a worker are now being regulated, so that the employer does not take their undue advantage.
Further, part-time employment, an employment option which had been unregulated in the previous Rules is now regulated. A part-time employ is not allowed to work for more than 5 hours a day. The method of computation of the wages has also been laid down by the Rules.[12]
Though the provisions for the Name Board to be in Marathi have stayed the same, but the Rules have also added that an establishment where liquor is either served or sold should not have the name of any legends or fort. This Rule requires a clarification by the Ministry so as to understand the reason for the implementation of such a Rule.
Health, Safety and Welfare of the Workers
The Current Rules have brought about many changes in respect to the health and safety of the workers. Not concentrating on these aspects of the workers, had been a major setback in the previous one.
A Health, Safety and Welfare Committee must now be set up in an establishment where there are 100 or more members. The constitution of such a Committee must be such that there are an equal number of employers and workers in the Committee. The Rules elaborate the duties of the Committee such as surveying the premises, identifying accident prone areas, getting such areas rectified, conducting health care and wellness camps, creating awareness about contagious disease, conducting recreational, cultural and sport activities conducting social and educational awareness, etc.[14]
The introduction of a Committee can be seen to be similar to many other labour and employment Acts such as the Industrial Dispute Act, 1947 where a Works Committee is formed to encourage friendly relationships between employer and employee or the Factories Act, 1987 wherein a Safety Committee is to be established in factories where hazardous process takes place for the safety of the workers.
Moreover, it is observed that the facility which has not been included in the Current Act or Rules is the Canteen facility which has been provided in the Contract Labour (Regulation and Abolition) Act, 1970 (“CLRA Act, 1970”). According to the size of the establishment the canteens are to be provided in the organization. These canteens provide foodstuff to the labour at a reasonable charge.[15]
Further, it is prescribed that the premises of an establishment are to be free and clean from infection. There should be proper lighting, illumination and ventilation in the establishment.[16] Moreover, the employer should take measures to protect the premises and workers from fire. He must adopt the safety measures mentioned, suggested and recommended in the Fire and Safety Policy which is declared by the Government.[17] These provisions have vastly changed from the Previous Rules in the sense that while the Previous Rules prescribed a proper process for cleanliness, they had not done so against fire hazards in the establishment.
Additionally, an establishment must have neat and clean latrines and urinals. Proper facilities should be present in the latrines such as exhaust fan, water supply, antibacterial soap.[18] This has been a much-needed provision as it concentrates on the basic rights and necessities of a worker. This provision too has been vastly changed from the other labour acts such as CLRA[19] and the Factories Act, 1948[20] as the Current Act not only concentrate on having latrines and urinals but also prescribe measures for them to be kept clean. However, we notice that the Factories Act, 1948 do prescribe for separate accommodation of latrines for men and women, ventilated passages and sanitary conditions in such places.
Lastly, the first-aid appliances and medicines have to be maintained in the establishment. The Current Rules prescribe a list of mandatory appliances to be present in such first-aid appliance.[21]
All these changes have been made keeping in view with the health and cleanliness of the workers, which was not paid much heed in the Previous Rules.
Safety of Women[22]
The Current Rules have taken big strides forward for women working in nights shifts. It now prohibits discrimination against women. No other Acts or Rules relating to work and labour such as the Industrial Dispute Act, 1947, the CLRA Act, 1970 have incorporated any provision relating to safety of women. Though the Factories Act, 1948 does have various provisions relating to health of women such as creches, maximum weight to be carried. However, it is seen that there has been a discrimination for women workers as they are only allowed to work between 6AM to 7PM in a day. The Government is required to provide an exemption for women to work later than the hours mentioned.
The basic concentration on the sections of the Current Act and Rules is on dealing with women safety have been for women who are working in establishments such as Business Process Outsourcing (BPO), Knowledge Process Outsourcing (KPO), Legal Process Outsourcing (LPO). The Previous Rules had mandatorily prescribed that a woman was not allowed to work post 9:30PM, no matter whether she consents to it or not. However, now women are permitted to work at night (between 9:30PM to 7:00AM) provided they have given their consent for the same. It is mandatory that all reasonable safeguards for her safety have been taken and the provisions of the Sexual Harassment of Woman at Workplace (Prevention, Prohibition and Redressal) Act, 2013 have been complied with. The establishment must ensure that all women working the night shift are dropped safely from the office premises to their doorstep and vice versa.
Further, various measures are to be taken while a woman is working the night shift such as the office premises are to be illuminated in any part where a woman works or uses, separate bathroom facilities and sanitary napkins are to be provided to such women. Moreover, paid holidays during mensuration must be provided to her. It is also pertinent to note that a minimum of 3 women must be working in the night at the same point of time in the establishment for their safety.
On a general note as well, it has been made compulsory to maintain a complaint box and must display the phone numbers of local police stations, control room and women help line number in the establishment. Further, where there are more than 10 women workers, sufficient number of women security guards, whose police verification has been completed must be necessarily employed.
Conclusion
Therefore, it is observed that many vital and significant changes have been covered by the Current Act and Rules. The most important of those have been, the upliftment of women by prohibiting discrimination, digitalizing the compliances for the ease of doing business in Maharashtra.
However, one fundamental question that remains to be answered is on the rights of an employee. Though the Act and the Rules have covered the rights of a worker, they have neglected the rights an employee who is working in a shop or an establishment.
Therefore, it can be reasonably concluded that all the positive changes made by the Ministry would be nullified if a clarification on the scope and applicability of the Act and Rules is not provided by the Ministry.
Our next post shall outline the enforcement provisions of the Act and Rules and the consequences of the repeal of the Previous Act.