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This post is part of the Coffee Break Guide to Compliance by Anandan Subramaniam. Please subscribe to the blog updates if you’d like to be notified of these posts. Please comment below with your doubts and queries.

The Coffee Break Guide to Compliance – Vol. 31 {Employer’s duty – under the Maternity Benefit Act}

Do you have a Women employee going to avail Maternity leave?  Following is the routine actions to be carried out by the employers in such circumstances:

Whenever a woman employee joins an organization:

The employer shall prepare and maintain a muster roll in Form ‘A’ and shall enter therein particulars of all women workers from whom notices of confinement have been received.

Where a woman employee proposes to avail Maternity Leave/Benefit, the prerequisites to be compiled are listed below:

  • A woman employed in an establishment and entitled to maternity benefit shall give notice to her employer, in the respective form as specified in the State Maternity Benefit Rules
  • The notice shall have details of the proposed date of commencement of leave, expected date of delivery, nominee details, etc.
  • The employer shall make payment of the maternity benefit and any other amount due under the Act to the woman concerned.
  • The medical bonus shall be paid along with the second installment of the maternity benefit.

On production of such proof as may be prescribed a woman shall avail benefit and payment thereof, for Maternity related illnesses, from the date of such illness?

  • In case of miscarriage or medical termination of pregnancy – for a period of six weeks
  • In case of tubectomy operation – for a period of two weeks
  • A woman suffering from illness arising out of illnesses for a maximum period of one month

In case of her death during Maternity

  • before receiving such maternity benefit or amount, or where the employer is liable for maternity benefit, it shall be paid, to the person nominated by the woman in her notice
  • Where the nomination was not made, the employer must within one month of the date of the death of the woman concerned (a) report to the appellate authority (b) to ascertain the legal representative. On receipt of this intimation from the employer, the appellate authority shall, after making necessary enquiries, determine the legal representative to whom the maternity benefit or amount due shall have to be paid and inform the employer. On being informed by the appellate authority as to the person who as a legal representative is entitled to receive the maternity benefit or amount due, the employer shall pay to such a person maternity benefits
  • Maternity benefit or any other amount payable shall be paid within two months of the date of death of the woman entitled to receive such benefit or amount, to the nominee/legal heir

Others

  • Whenever the payment is made, a receipt shall be obtained by the employer in an appropriate format from the person to whom the payment is made.
  • The employer shall at request supply, free of cost, to every woman employed by him or to the person nominated by her or to her legal representative copies of Forms to claim Maternity Benefit/Medical Bonus, etc.
  • The fact that a woman is pregnant or has been delivered of a child or has undergone miscarriage or is suffering from illness arising out of pregnancy, delivery, premature birth of a child or miscarriage shall be proved by the production of a certificate in specified format as prescribed in the State-specific Maternity Rules.
  • Provided that the fact that a woman has been delivered of a child may also be proved by the production of a certified extract from a birth register under the provisions of any law for the time being in force.

An Employer shall ensure the following for any Inspecting authority to peruse:

  1. whether due action has been taken on every notice is given under section
  2. whether the Muster Roll prescribed is properly maintained
  3. whether there have been any cases of discharge or dismissal or notice of discharge or dismissal in contravention of the provisions of section 12 since the date of last inspection
  4. whether the amounts due have been paid within the prescribed time
  5. whether there have been any cases of deprival of maternity benefit or medical bonus in contravention of the Maternity Benefit Rules
  6. How far the irregularities pointed out at previous inspections have been remedied and how far orders previously issued have been complied with.

Display of Abstract

The abstract of the provisions of the Act and these rules required to be exhibited shall be in Form ‘J’ in the language understood by the majority of workers and shall be exhibited in a conspicuous place by the employer in every part of the establishment in which women are employed

Filing of Annual Return

The employer of every establishment shall on or before the 31st day of January every year submit to the Inspector returns in specified Form, giving information as to the particulars specified in respect of the preceding year.

Further return on Closure of Establishment

In case of closure of the establishment due to various reasons, he shall, within one month of the date of such closure shall file a further return.

Record Maintenance

Records kept under the provisions of the Act and these rules shall be preserved for a period of two years from the date of their representation.

Please subscribe to the blog updates if you’d like to be notified of these posts. Your questions are welcome. Please comment below with your doubts and queries.

Cet article Employer’s duty – under Maternity Benefit Act est apparu en premier sur Connect@ADP an ADP India HR Blog.

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Covering key information through Q&A – paperless EPFO webinar

We have tried our best to answer most questions asked during paperless EPFO webinar (29 January 2019). And we are still receiving enquiries…

Q: Even after the PF transfer from the Previous Employer to current employer, UAN Member Service date still shows the current employer DOJ and coz of this member are not able to apply partial withdrawal.

A: Member portal always shows DOJ of the current employer only. Try with online transfer again (ensure there are no missing details, KYC is complete and DOL is updated for the previous employment).  Partial withdrawal claim will happen.

Q: Without Aadhaar is it possible to create UAN

A: NO.

Q: Whether ISE employee can apply PF claim to their International account? If yes, would like to know what are all the documents need to be collected from the international worker?

A: Claim settlement for International Worker, usually happens through the Bank account in India.  Many IW’s keep this account active to receive the claim amount, which allowed.  To receive the claim amount to any other International account, the member can reach out to respective Regional Provident Fund Office or the Social security office in the home country for further process.

Q: if the Aadhaar is not linked to the mobile no, then can we still download the UMANG App and process for the PF withdrawal online?

A: Yes, but the OTP will be sent only the AAADHAAR seeded mobile number

Q: How to transfer employee’s old UAN amount to new UAN number? Recently we merged with other company by mistake finance team created new UAN number so what is the process?

A: You can retain the AAADHAAR seeded UAN.  Merge the other UAN/s with this AAADHAAR seeded UAN.  Upon merging the other UAN/s get deactivated.

Q: Regarding e- nomination, would like to know whether employer can view the nominee details at the time of any unfortunate happened to the employee?  If no, how PF office will identify whether the employee submitted the recent nominations.  Any identification for the recent updating of nominees?

A: No.  In such cases, employer can check with Regional Provident Fund office before entertaining any claim.

Q: Is the Auto transfer also applicable if the employee rejoins the same organization within 2 months?

A: Yes.  As the member joins after separation, he will be assigned with new PF account number, though the UAN is same.

Q: I have transferred an account from previous employer to my current PF with my current organization. However, the pension fund balance is not reflected in the current statement. Rest is visible.

A: Pension transfer will not be displayed

Q: Within what duration should old employer enter the date of exit for the employee to see the transfer is made? This is asked because employer will not enter the last working date till full and final settlement is processed.

A: There is such fixed duration but if any employee (PF member) is separated the DOL is to be updated immediately. Transfer cannot happen if DOL is not updated.

Q: How to update Corporate Registered address in EPFO? Form 5A needs to be submitted physically or not?

A: Form 5A is to be updated online, first.  Upon online submission, same has to be printed out for ‘Owner’ to sign and submission with Regional Provident Fund Office.

Q: What happens if one does total PF withdrawal except for pension portion? In Next organization whether new UAN is needed? Or earlier UAN can be of use.

A: Same UAN can still be seeded if the Member joins an organization for employment.

Q: What is the difference in following when you update “Date of Exit” on portal?

  1. Retirement
  2. Superannuation
  3. Cessation (Short Service)

A: 1. Retirement – Contributed to 10 years of pensionable service and PF member was separated before 58 years of age
2. Superannuation – Contributed to 10 or more years and the member attained 58 years of age
3. Cessation – Any other separation, other than – Retirement, Superannuation, Disablement, Death.

Q: How far the response rate of the customer care of UAN Portal because we or our employees try a lot but we are not able to catch the customer care

A: Not to the expectation of General Public (PF members/pensioners)

Q: Will there is any option in member portal where member can apply correction in title & father’s/spouse name.

A: Yes, through manual Joint declaration form – signed both by Member and Employer, for submission with RPFC

Q: Modify the changes pertaining to name can be done through online. If yes where should we go? Who has the authorization either employer or employee?

A: In UAN Member portal, under Manage section, the name can be modified.  It can be done only by the employee (PF member).

Q: Just wanted to know how can one follow up for Annexure K from EPFO, and secondly how can we avoid error while transfer of EPFO. (Also inoperative account helpdesk/ escalation/ portal issues)

A: Raise a grievance @ https://epfigms.gov.in/homepage.aspx

Q: Is there a cap for PF contribution?

A: 100% Actual Basic (plus DA if any)

Q: A female who is unemployed for 3 years and does not want to get employed further, can she withdraw complete PF amount?

A: Only in case of Marriage she can withdraw immediately upon separation.  Otherwise she can withdraw after 60 days of last remittance.

Q: IT companies in India deduct their share of PF from the employee as well and this is a fact.  How does this work and how can it be fixed?

A: Employer contribution shall not be deducted from the “earnings” of an employee. Having part of CTC is an agreement between employee and employer.  Still the deduction cannot be part of “earnings”

How E-court runs?

A: Any default or delay in remittance is auto-calculated and notices are sent to the Employer through PF portal. Employer can remit if they agree (or) submit proof to disapprove the claims made by EPFO.  Even notices under Section 7A and 14B are now send only through emails.  Any proof to substantiate employers’ claim can be submitted through online for verification.

Q: Kindly elaborate on EDLI benefit

A: It is a benefit given to the nominees of the PF member, on his/her unfortunate demise.  Minimum is Rs.2.5 lakhs and maximum benefit is Rs.6 lakhs.

Q: What is the process to close an establishment and what are the important points to be resolved before going in for closing of establishment.

A: All members of such account, should have either withdrawn their funds, or transferred the funds to another account.  Then, the employer can apply through a standard format (available with PF office) and attach appropriate closure documents (cancellation of Labor license, settlement of wages/gratuity, cancellation of LWF license) etc.  Upon verification of such documents, RPFC will admit surrender of the Code and approve.

Thank you, Mr. Anandan! Did you miss the webinar? You can still listen in on the recording, just click here.

Cet article FAQ: Your Questions for Mr. Anandan on Paperless EPFO – The Takeaway for Employees and Employers est apparu en premier sur Connect@ADP an ADP India HR Blog.

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This post is part of the Coffee Break Guide to Compliance by Anandan Subramaniam. Please subscribe to the blog updates if you’d like to be notified of these posts. Please comment below with your doubts and queries.

The Coffee Break Guide to Compliance – Vol. 30 {When establishments need to follow Central Rules of Certain Acts?}

Is your establishment covered under Central Sphere?

How to identify yourself?

In every Employment legislation, there are essentially 4 specific factors, which determines compliance under the Provisions of such Act/s.

  1. Applicability of the Act
  2. Who is the Appropriate Authority?
  3. What is wages?
  4. Who is an employee?

Appropriate Authority is either State Government or Central Government. For establishments like Railways, Cantonment Boards, Major Ports, Mines and Oilfields, Banking and Insurance Companies, Air Transport Services, controlled industries like Cement, Petroleum industry, Telecommunication, and Central public sector undertakings, Central Government is the Appropriate Authority.

Following is the list of employment enactments which are governed by the respective authorities:

Enacted & Enforced by Central Government  Enacted by Central Government but enforced by both Governments Enacted by Central Government but enforced by State Government Enacted & Enforced by State Government
EPF Act Payment of Wages Act The Employee Compensation Act Shops and Establishments Act
ESI Act Standing Orders Act The Factories Act Labor Welfare Fund Act
Sexual Harassment Act Industrial Disputes Act The Employment Exchanges (Compulsory Notification of Vacancies) Act Subsistence Allowance Act
  Minimum Wages Act   Conferment of Permanent Status Act
  Apprentices Act    
  Maternity Benefit Act    
  Payment of Bonus Act    
  CLRA Act    
  Payment of Gratuity Act    
  Equal Remuneration Act    
  ISMW Act    
  BOCW Act    
  Child Labor Act    
  Labor Laws (exemption from furnishing Returns & maintaining Registers) Act    

Private establishment, which is a Bank or Insurance (both life and non-life) or Mines or Air service companies or Petroleum companies or Telecommunication companies or Cement or Asset Management Companies comes under the purview of Central Sphere. Besides, if you provide any of your establishments’ services through manpower to such establishment which is under the purview of central authorities, you will also come under the purview of the Central Sphere. 

The duty of an employer is as follows: 

  1. Registration – The registration of such establishment is through LIN (Labor Identification Number), which is automatic when such establishment is registered with EPFO or ESI.
  2. Any such establishments need to file annual returns, through online, with details on the following Acts:
    • The Building and other Construction Workers (Regulation of Employment & Conditions of Service) Act, 1996
    • The Contact Labor (regulation and Abolition) Act, 1970
    • The Interstate Migrant Workmen (regulation of Employment and condition of Service) Act, 1979
    • The Employment Provident Funds and Miscellaneous Provision Act, 1953
    • The Employees state Insurance Act, 1948
    • The Mines Act, 1952
    • Regulation 3 of Metalliferous Mines Regulations, 1961
    • The Factories Act, 1948
    • The Motor Transport Workers Act, 1961
    • The Shop & Establishment Act
  3. Obtaining Registration under CLRA while engaging manpower through Vendors.
  4. Ensure the Immediate employer obtains license under CLRA, if applicable.
  5. Ensure payment of Minimum Wages to employees of the establishment and contractual employees, as notified periodically.

Such establishments, irrespective of compliance under Central Sphere, continue to be covered under the State Acts, if not specifically excluded in the provisions of such Acts.  

Cet article When establishments need to follow Central Rules of Certain Acts? est apparu en premier sur Connect@ADP an ADP India HR Blog.

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This post is part of the Coffee Break Guide to Compliance by Anandan Subramaniam. Please subscribe to the blog updates if you’d like to be notified of these posts. Please comment below with your doubts and queries.

The Coffee Break Guide to Compliance – Vol. 29 {Profession Tax and task employers’ encounter}

Deduction and remittance of PT are not just as easy as everyone thinks.

Profession tax is levied on a person earning an income from salary/wages, or anyone practicing a profession, self-employed etc.   It is levied by the Local authorities which is a source of revenue for the government. The maximum amount payable per year is INR 2,500 and in line with tax payer’s salary, there are predetermined slabs.

It is applicable in the many States of India and slabs & frequency of deduction is different from State to State.

For applicable States, the slab is the same throughout.  But in Tamil Nadu, the PT slabs are different in each Corporation, Municipality and Village panchayat.  Adding confusion to this, many factory establishment premises falls in two Village panchayat, forcing them to make partial remittance to each.

In many States, the PT is a monthly deduction where the employer does not find any difficulty.

Whereas the remittance is half-yearly, the challenging tasks are listed below, for every employer to consider:

  1. Many employers deduct the Profession Tax by, Equated monthly PT deduction – a popular but flawed PT deduction logic.

The reason being, if the employee resigns in between the half-yearly, it can be either excess deduction of PT or under-deduction of PT, considering the sum of earned monthly gross for such period.

  1. This is more problematic if such deducted amount is remitted to Government, as and when it happens.

In such cases, the excess remittance cannot be gotten back from the authorities.

  1. Many establishments have a practice of deducting and retaining the same. The remittance happens on the due date, after every half-yearly.

Here, it is easier for the establishment to adjust the contribution in case of any separation of an employee, in between the half-yearly. Excess can be refunded or less can be deducted in the Full and Final settlement.

  1. Similar challenges happen if an employee joins in an organization, in the midst of a half-yearly. For him/her the PT remittance would have already been deducted in full, in the previous establishment considering his earning gross.  Again such employees will be subjected to the deduction and remittance of PT. 

To avoid this, upon joining the employee may be requested to provide the Income Certificate from the previous employer, which shall have PT deducted for the half-yearly and he/she can be excluded from deduction & remittance for the particular half-yearly.

In many manpower/staffing establishments, it is a practice that all employees are deducted with equated monthly PT deduction due to frequent attrition.  Employers may not have control to deduct PT at the time of separation, as most of the case shall be absconding and F&F shall have less than the amount to be deducted.

Besides, employers do deduct on monthly basis, to facilitate the employee have the same take home and not to burden him/her by deducting PT in a lump-sum before the due date.

Here, employers need to be cautioned not to deduct such deduction from Gratuity, if payable to employees.

Further, it will be cumbersome to deduct PT on an employee who was on Maternity leave, and the benefit is payable from ESIC.

Hence it is always suggested to deduct the PT during separation or on the month of the due date.

Notwithstanding all the above, any employee who was engaged in one State and joins an establishment in different State in a half-yearly, he/she needs to be considered for deduction and remittance considering the earning gross.

Employers in Chennai face a peculiar challenge of deduction and remittance of PT, every half-yearly as per the following schedule

  1. April to September half-yearly

To be deducted and remitted by 15th September.  Every employer in Chennai needs to consider the employee will be working till September.

  1. October to Next year March half-yearly

To be deducted and remitted by 15th of February.  Here the employer needs to consider the employee shall be with him for the next two wage month

Where the due date of PT remittance is September 15 & February 15, how to make remittance for employees who join in September, February and March.  An Establishment cannot stop recruitment to comply with the remittance of PT by the due date.  Though the PT remittance is accepted even after the due date, most of the Revenue Officer do levy penalty.

Hence, Employers need to take due care of these challenges in deduction and remittance of PT.

Cet article Profession Tax and task employers’ encounter est apparu en premier sur Connect@ADP an ADP India HR Blog.

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The Coffee Break Guide to Compliance – Vol. 28 {Statutory Compliance in Payroll Components – Determining Factors}

Is your Payroll Compliant?

It’s a significant process which is sensitive in keeping your internal customer (your employees) delighted.  Besides, there is a legislative requirement to comply with provisions of various Acts.  A brief on factors which needs to be considered while fixing the compensation, statutorily.

Compliance under Minimum Wages

Every establishment (both manufacturing and commercial) is covered under the Minimum Wages Act.  The Minimum Wages has to be paid without any deductions other than Statutory Deductions.

 Payment of wages less than minimum wages on the ground of poor performance is illegal.  If the employer could not provide the activities of the job then, the employee is entitled to receive full salary.  But if the employee has not worked due to his unwillingness then, the employee is not entitled to receive full salary.

Dearness allowance is part of Minimum Wages and in few States, it is revised monthly or half-yearly.  This change needs to be effected in the monthly wages without fail.

Payment of wages less than Minimum Wages is an offense.

Statutory deductions and remittances

Apart from Tax deduction at source under Income Tax Act, 1961, it is the employer’s duty to deduct and remit under various Social Security legislation, viz.

(1) Provident Fund (PF/Pension)

(2) Employee State Insurance (ESI)

(3) Labour Welfare Fund (LWF)

One other statutory deduction and remittance, towards Profession Tax too, is the employer’s duty.

Whereas for PF it may be restricted or excluded considering the wages of the employee, ESI can only be excluded on higher wages, as notified by ESIC, from time to time.

PT and LWF are mandatory for those who are earning more than the Minimum Wages.

The periodicity of PF and ESI is monthly.  For LWF it differs from State to State – either monthly or half-yearly or Annual.  In the case of PT, it is either monthly or half-yearly, specific to the State.

Employers are also required to contribute appropriate percentage towards the above statutory remittances, except PT.

An establishment needs to consider all such statutory deductions computed, before processing the payroll.  The right deduction reports from Payroll can ensure correct remittance against various social security legislation. 

Gratuity and Statutory Bonus

Other social welfare statutory provisions are Gratuity and Statutory Bonus, which are mandatory under specific employment legislation. Where Gratuity is payable within 30 days of the separation for eligible employees, the Statutory Bonus is to be paid annually, for the previous financial year.

Wages for Leave

Payment towards leave is a significant factor which needs to be considered while processing payroll.  Different types of leave are made available by each State.  Quantum of leave for each type also differs in each State.

Where the paid leave is not available after it got exhausted for the calendar year, non-payment of salary/wages can be considered for such days, which has a direct effect on Social Security contribution and Statutory Bonus computation.

Maternity Leave

Payment of Maternity benefit for eligible employees is to be rightly captured in the monthly payroll process, which is one of the responsibilities of the employer.  Payment of Medical Bonus for eligible women employees is mandatory under the Maternity Benefit Act.

Salary / Wage for such Paid leave and Maternity leave shall be on the gross wages.

Specific Allowances

Many establishments are providing different allowances for their employees/workers considering the nature of work.  Where such allowances are offered and mentioned in the appointment letter, it shall form part of monthly earnings.

Engaging International workers

Due care needs to be taken while processing payroll for International Workers, as the allowances and provident fund deduction, is not similar to Indian employees.

Allowances and reimbursements

The significant difference between allowance and reimbursement is,

  • Allowances are part of monthly wage/salary structure
  • Reimbursement are payments, towards expenses incurred by the employee

Reimbursements do not attract term “wages/salary” and not attract deductions towards social security benefits.

Please subscribe to the blog updates if you’d like to be notified of these posts. Your questions are welcome. Please comment below with your doubts and queries.

Cet article Statutory Compliance in Payroll Components – Determining Factors est apparu en premier sur Connect@ADP an ADP India HR Blog.

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The Coffee Break Guide to Compliance – Vol. 27 {Explanations of various specific queries – Benefits under the Maternity Benefit Act, 1961}

Do Trainees are covered under the Maternity Benefit Act?

As per Section 3 (o) “woman” means a woman employed, whether directly or through any agency, for wages in any establishment.  Hence trainees are covered under the Maternity Benefit Act.

Do Contractual employees or Consultant Woman get the benefit for a full period in case of termination of the contract in between?

Dr. Artiben R. Thakkar vs. Delhi Pharmaceutical Sciences & Research University, 2018 LLR 1293 (Del. HC)

In a case pertaining to this (Dr. Artiben R.Thakker vs. Delhi Pharmaceutical Sciences and Research University, 2018) Dr. Artiben R. Thakkar vs. Delhi Pharmaceutical Sciences & Research University, 2018 LLR 1293 (Del. HC)Dr. Artiben R. Thakkar vs. Delhi Pharmaceutical Sciences & Research University, 2018 LLR 1293 (Del. HC)Dr. Artiben R. Thakkar vs. Delhi Pharmaceutical Sciences & Research University, 2018 LLR 1293 (Del. HC)The Hon’ble Delhi High Court has ruled that “It is an elementary rule of service jurisprudence that benefits attached to service come to an end once the service tenure is completed.  So, it would be neither prudent nor reasonable to assume or presume that benefit of social enactment would flow even after the service tenure comes to an end”.  Hence Benefit ceases when the service comes to an end.

Work from Home – Upon expiry of Maternity leave, whether a woman employee is eligible to claim, as a matter of right, to work from home?

As per the Amended Act provisions it as an ‘option’.  The conditions provided in such provisions are:

  • the nature of work is such that a woman employee may work from home
  • the employer may allow so to a woman employee (who has availed the maternity benefit)
  • for such period and on such conditions as the employer and the woman may mutually agree

What is the Benefit payable to ‘woman’ under the Act?

 As per section 5 of the Act, every eligible woman shall be entitled to the payment of maternity benefit, at the rate of average daily wage for the period of her actual absence.  The average daily wage means the average of the woman’s wages payable to her for the days on which she has worked during the period of three calendar months immediately preceding the date from which she absents herself on account of maternity.

Whether PF needs to be deducted during Maternity period?

Section 3 (n) “wages” means all remuneration paid or payable in cash to a woman, if the terms of the contract of employment, express or implied, were fulfilled and includes– such cash allowances (including dearness allowance and house rent allowance), incentive bonus, but does not include— (i) any bonus other than incentive bonus; (ii) over-time earnings and any deduction or payment made on account of fines; (iii) any contribution paid or payable by the employer to any pension fund or provident fund or for the benefit of the woman under any law for the time being in force.  Hence, it is not required to deduct and remit contribution towards PF during such period. But if the employer wishes to make, it shall be accepted by PF. 

In case of a woman employee availing Maternity benefit, the employer should ensure the Muster Roll is marked with “Maternity Leave” for the days’ such woman was absent.

A woman employee availing Maternity Benefit, on her own choice submits resignation. Can the employer accept it?

As per section 12, only the dismissal or discharge is unlawful.  If the employer is convinced that the resignation is on her own choice, it may not attract this provision. Physically documented, signed resignation letter from such a woman employee, will support the employer in case of any maternity related litigation.

From when Maternity Benefit is applicable to Adopting and Commissioning mothers?

As per the newly amended insertion of provision Section 5(4), the entitlement of maternity leave shall be for a period of 12 weeks from the ‘date the child is handed over to her’.

Do adopt and Commissioning mothers eligible for Medical Bonus?

As per section 8, every woman entitled to maternity benefit under this Act shall also be entitled to receive from her employer a medical bonus, of Three Thousand Five Hundred, if no pre-natal confinement and post-natal care are provided for by the employer free of charge.  Where pre-natal confinement is infructuous in case of Adopting and Commissioning mothers, the woman employees are allowed to avail maternity leave from the date the child is handed over to them to take postnatal care. Hence Adopting and Commissioning mothers are not eligible for Medical Bonus.

A woman had 2 miscarriages and third time delivered baby.  Whether the Maternity leave is 26 weeks or 12 weeks as per the new provision, Section 5(3)?

It is clearly stated that in the newly inserted proviso 5(3), that the entitlement is restricted, to 12 weeks, only if the woman is having two or more than two surviving children.  Hence The Woman employee is eligible for 26 weeks, in the above case.

Proviso 5(3): ‘‘Provided that the maximum period entitled to maternity benefit by a woman having two or more than two surviving children shall be twelve weeks of which not more than six weeks shall precede the date of her expected delivery;’

Nursing break – to whom?

As per section 11 of the Act, every ‘woman who delivered a child’ and who returns to duty after such delivery shall, in addition to the interval for rest allowed to her, be allowed in the course of her daily work two breaks of prescribed duration for nursing the child until the child attains the age of fifteen months. 

In the above situation, it is not applicable to Adopting and Commissioning mothers.

Whether Crèche facility needs to be extended to Male employees, who are taking care of their child?

The Maternity Benefit Act is a social enactment applicable to Women employees.  And as per the recent amendment inclusion, it is mandatory for the employer to provide the Crèche facility to children of a woman. Providing the facility to Male employees is at the discretion of the Employer, which is not mandated by any law.

Please subscribe to the blog updates if you’d like to be notified of these posts. Your questions are welcome. Please comment below with your doubts and queries.

Cet article Explanations to various specific queries – Benefits under the Maternity Benefit Act, 1961 est apparu en premier sur Connect@ADP an ADP India HR Blog.

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The Coffee Break Guide to Compliance – Vol. 26 {ESIC – Employers’ duty Accident or Death due to employment injury @ workplace or during the course of employment}

ESIC takes care of hospitalization in case of an accident at the workplace or during the course of employment and also provides dependents’ benefit in case of death due to such employment injury.

What is Workplace?: Factory – any premises precincts wherein 10 or more persons are employed and otherwise as applicable under the ESIC scheme (or) class of establishments as notified by the appropriate authority.

The course of employment: An accident which may occur while commuting between the place of residence and workplace is also treated as notional extension of employment, and as a result, and the injury sustained from such an accident is construed as employment injury, if, the nexus between the time, place and circumstances and employment is established, for purpose of disablement or death benefit.

The process of reporting accidents/death

Events Reporting in Reporting to Reporting time
Accident (Employment injury)
Accident (Occupational disease)
Form 12 (online) • Branch Office
• Insurance Medical Officer Through special messenger
• Immediate : Serious injury, likely to cause death, permanent disablement
• Within 24 hours : any other case
Death due to Employment injury Form 12 (online) • Branch Office
• Nearest Dispensary /hospital/ clinic
IMMEDIATE Place of employment : Employer Course of employment : Dependent / Employer / any other person
Disposal of body of insured person dying by employment injury 1. Shall not be disposed until the body has been examined by an Insurance Medical Officer for arranging Post-Mortem.
2. If Insurance Medical Officer unable to arrive within 12 hours of such death, the body may be disposed-off after obtaining a certificate from Medical Officer, available

List of documents to be submitted in Claiming of Sickness / Temporary or Permanent disablement / Dependent benefits from ESIC

1. Accident (Employment injury)

  • ESIC IP number / TIC card – attested by employer
  • Copy of Form 12 – Accident Register signed by the Authorised Signatory
  • In and Out register for IP (attendance)
  • Wage register stating IP’s wages
  • The discharge summary from Hospital
  • Original hospital bills
  • Investigations did copies
  • Original Medicine bills
  • Details of the shift in which IP is performing a duty
  • Wage verification certificate

2. Death due to employment injury @ workplace

In addition to the above,

  • Letter from – First information receiver/s (2 persons)
  • At the time for accident whether IP was in uniform, give uniform received details. Copy of Uniform Register
  • Death Summary from Hospital
  • Post Mortem Certificate
  • Police Inquest Report
  • Death Report issued by the Police
  • Death Certificate
  • Burial Ground Certificate
  • Legal Heir Certificate
  • Dependent/s – Passport size photo (2 nos)
  • Dependent/s – Bank passbook copy

3. Death due to employment injury, during the course of employment

In addition to both the above,

  • Description – what was the IP’s daily mode of transportation to work?
  • The distance between accident spot to his house and accident spot to his workplace
  • Route map
  • If the IP was driving or pillion rider of two-wheeler, was he/she wearing a helmet at the time of the accident
  • If the IP was driving, copy of driving license
  • Driving License copy
  • Vehicle’s registration certificate
  • Vehicle’s Insurance coverage certificate
  • FIR / Panchanama

If the IP is a contractual employee:

In addition to the above documents following are to be attached for each event,
1. Agreement copy with Principal employer
2. CLRA license copy, if available
3. Posting Order
4. ESI code number of Client

Even if the Insured Person meets with an employment injury on the very first day of his/her joining the insurable employment at workplace/during the course of employment, the benefit is admissible.

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Cet article ESIC – Employers’ duty Accident or Death due to employment injury @ workplace or during the course of employment est apparu en premier sur Connect@ADP an ADP India HR Blog.

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This post is part of the Coffee Break Guide to Compliance by Anandan Subramaniam. Please subscribe to the blog updates if you’d like to be notified of these posts. Please comment below with your doubts and queries.

The Coffee Break Guide to Compliance – Vol. 25 {M & A’s – Establishment’s responsibility in complying with Employment Legislations}

M & A – it’s a routine endeavor in Indian business scenarios, whether in manufacturing or in Commercial establishments. In a common man language, it is called Mergers, De-mergers, Acquisitions, Takeovers, Amalgamations, Joint venture etc. But, in business terms it is a strategy for having a competitive advantage or for getting an enhancement in shareholder value or to increase market share or to increase revenue or a geographical diversification or a corporate synergy, and so on.

Not going into details of different types of mergers namely, Horizontal, Vertical, Conglomerate, Product extension, Market extension, etc., let us analyze what employer has to do after such transformation, in relation to employment legislation. During the initial phases of such transformation, the external or internal Corporate Legal team shall comply with regulations under Indian Companies Act, SEBI regulations, IT Act, etc. Once this activity is completed, entities need to comply with employment legislation. In case of transfer of ownership or change in the Management, both the transferor and transferee shall comply with specific labor legislation, including Industrial Disputes Act, 1961 (ID Act), which is the primary legislation which governs the working conditions of employees and their disputes with the employer.

Establishment Duties: Establishment (Transferor Company) which was acquired or taken-over or amalgamated with another entity need to comply with the following:

Notice to Employees: At least 21 days in advance to the change, give notice to all workman under Section 9A of Industrial Disputes Act.

Safeguarding the interest of Employees: By complying with section 25FF of ID Act,

  • Get consent from the employee to transfer to the new entity
  • Ensure the employment conditions – job responsibilities, working schedule, applicable leave, amenities, infrastructure, termination clause etc. are ‘not less favorable’ in furtherance to transfer to the new entity
  • Ensure the service of employees are not interrupted by the transfer of his/her employment to a new entity
  • The date of appointment with transferor entity be reckoned for all statutory purposes

Payment of Gratuity: Service continuity shall be safeguarded for the workman to get Payment of Gratuity.
“In the matter of Bombay Garage Ltd. v. Industrial Tribunal[(1953) 1 Lab LJ 14 (Bombay), the court held that an employer cannot deprive his employees of the benefits that have accrued to them by reason of past services merely by transferring his business to another person or to another limited company; for the work done by the employees is primarily is for the benefit of the concern although the owner also derives benefit therefrom; that, therefore, a new employer is bound to take into account the services rendered by them to their predecessor-in-title”

Social Security: Transferor shall ensure that the Social security benefits like PF, ESI and LWF are remitted to the last date of such transfer and ensure a smooth transfer of benefits.

  • Profession tax remittance is to be considered till the last date of such transfer

Statutory Bonus is settled till such date of transfer, to the applicable employees

Leave provisions: Accumulated annual leave as per the Factories Act / Shop and Establishment Act, is either encashed or carried forward to rolls of the new entity. Similarly any other leave viz. sick leave or casual leave is to be considered for the current year, as applicable.

Settlement to Employees who are not in favor of transfer in employment In the case of Sunil Kr. Ghosh & Ors vs K.Ram Chandran & Ors on 18 November 2011 the Honorable Supreme Court has stated that “It is settled law that without consent, workmen cannot be forced to work under different management and in that event, those workmen are entitled to retirement/ retrenchment compensation in terms of the Act”

  • In case the workman is not in agreement to transfer, pay legitimate retrenchment compensation, for those who have rendered more than 1 year of continuous service, as per Section 25F of ID Act.
    • One month’s written notice specifying the reasons for such dismissal (retrenchment) or one month’s pay
    • The payment of compensation equivalent to 15 days’ average pay for every completed year of service
    • Notice in the prescribed manner is served on the appropriate Government
  • In case if it is mutually agreed through an offer letter or an appointment letter, the actual term of notice

Surrender of Labour and other registrations

  • Surrender the Labour Registration Certificate (Labour License) with Appropriate Authority
  • Surrender LWF registration Certificate, if applicable
  • Closure of Profession Tax Registration, if applicable
  • Surrender ESIC Main code and sub-codes, if any, after due process of separation of all employees
    • A copy of Agreement on M & A and a copy of cancellation of Labour license also may be required during such surrender of ESIC code/s
  • Surrender of PF code may be possible only if all such members are either transferred their accumulation or settled. Until such time Admin charges need to be paid every month, within due date.

PF Liability in case of Transfer establishment: As per Section 17B of The Employees Provident Funds and Miscellaneous Provisions Act, 1952, Where an employer, in relation to an establishment, transfers that establishment in whole or in part, by sale, gift, lease or license or in any other manner whatsoever, the employer and the person to whom the establishment is so transferred shall jointly and severally be liable to pay the contribution and other sums due from the employer under any provision of this Act or the Scheme or the Pension Scheme or the Insurance Scheme, as the case may be, in respect of the period up to the date of such transfer. Provided that the liability of the transferee shall be limited to the value of the assets obtained by him by such transfer.

Notwithstanding with the said provision of EPF Act, the Honorable Supreme Court, in the case of McLeod Russell India Limited vs. Regional Provident Fund Commissioner, has observed that since EPF Act is a beneficial legislation it needs to be construed in the best interest of the employees and held that “inter se covenants between the two entities would not insulate the new employer from the rigors of damages imposed by the EPF Act”. It also clarified that even though the default in the payment of dues was made by the transferor entity, the transferee entity shall remain responsible of the liabilities even if such liabilities are specifically assigned to the transferor by entering into a Memorandum of Understanding.

This specific judgment of the Honorable Supreme Court highlights the due diligence to be conducted by both transferor & transferee to clearly determine the liabilities of any monies pertaining to the compensation of the employees.

Cet article M & A’s – Establishment’s responsibility in complying with Employment Legislations est apparu en premier sur Connect@ADP an ADP India HR Blog.

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This post is part of the Coffee Break Guide to Compliance by Anandan Subramaniam. Please subscribe to the blog updates if you’d like to be notified of these posts. Please comment below with your doubts and queries.

The Coffee Break Guide to Compliance – Vol. 24 {Who all can be Nominee & Dependent under various Labour Laws}

Every employee who works for a compensation, does also saves money in form of Provident Fund, get cover under EDLI of PF, coverage under ESI if eligible and be eligible for Gratuity for his later life. 

In case of sudden demise of the employee, his/her family cannot be put into financial adversaries.  Every applicable labour law (mainly Social Security legislations) is designed in such a way that the employee can nominate his family or others, while in service, for his/her nominees to get the financial benefits.

Following discusses the nomination facilities available for employees across various labour laws.

Nomination under The Payment of Gratuity Act

Every employee who has completed one year of service is required to make a nomination. There can be more than one nominee (which should be in Form F). Nominees may be changed at any time by the employee, by giving a written notice to the employer (in Form H). If no nomination has been made, it shall be paid to the legal heirs of the deceased employee or if the heirs are minor, the share of such minor shall be deposited by the controlling authority with a bank till he attains majority.  The meaning of Family under the Act is – Spouse, children, dependent parents and any adopted child.

Nomination under The Maternity Benefit Act

Provided that where the insured woman dies during her delivery or during the period immediately following the date of her delivery for which she is entitled to maternity benefits, leaving behind in either case, the child maternity benefits shall be paid for the whole of that period but if the child also dies during the said period, then for the days upto and including the day of the death of the child, to the person nominated by the insured woman (in Form E), in such manner as may be specified in the regulations, and if there is no such nominee, to her legal representative.

Nomination under The Payment of Wages Act

Every employed person shall make a declaration in Form-I, nominating a person conferring the right to receive the amount that may stand in his credit at the event of his death. If an employed person has a family at the time of making nomination, the nomination shall be in favour of the spouse or the spouse in preference followed by one more members of his family. Family means all or any of the following relatives of an employed person, namely :- (i) a spouse; (ii) a minor child dependent upon the employed person; (iii) a child who is wholly dependent on the earnings of the employed person and who is receiving education, till he or she attains the age of twenty-one years; (iv) an unmarried daughter; (v) a son or daughter who is inform by reason of any physical or mental abnormality or injury and is wholly dependent on the earnings of the employed person, so long as the infirmity continues;

Nomination under The Payment of Bonus Act

Where any money is due to an employee by way of bonus from his employer under a settlement or an award or agreement, in the case of the death of the employee, his assignee or heirs are eligible to receive such monies.

Nomination under the EPF & EDLI Scheme: The subscriber (Employee) needs to nominate his/her family while joining the establishment as member of Provident Fund and Pension. The subscriber can change his/her nomination whenever he/she wants to do so.  The nomination should be in favour of one or more member(s) of the family. If the member has no family, he or she can nominate anyone. There can be more than one family member as nominees with a defined percentage of the amount to be received by each. A family is defined in the Employee’s Provident Fund Scheme as:

In the case of Male Employees, the nomination can be filled for, (a) Wife, (b) Children, (c) Dependent parents and (d) Widow of son and children

In the case of Female Employees, the nomination can be filled for, (a) Husband, (b) Children, (c) Dependent parents, (d) Husband’s dependent parents, (e) Spouse’s dependent parents and (f) Widow of son and children

Nomination under Employee Pension Scheme: If the employee has family members, he cannot nominate anybody out of the family. Once an unmarried member marries, he will have to file a fresh nomination again.

A family is defined as, (a) Spouse of the employee, (b) Minor son and unmarried daughter of an employee and (c) Adopted son or daughter who was adopted before the death of an employee

For both EPF (which includes for EDLI) and EPS the nomination is to be done through online, in Form 2.

Nomination under Employee State Insurance Scheme (in Form 1)

ESI, Maternity Benefit : where the insured woman dies during her delivery or during the period immediately following the date of her delivery for which she is entitled to maternity benefits, leaving behind in either case, the child maternity benefits shall be paid for the whole of that period but if the child also dies during the said period, then for the days upto and including the day of the death of the child, to the person nominated by the insured woman, in such manner as may be specified in the regulations, and if there is no such nominee, to her legal representative.

ESI, Dependent’s benefit due to Employment injury:

In the case of death of the insured person, the dependents’ benefits shall be payable to his widow, children and widowed mother as follows :- (a) to the widow during life until re-marriage, an amount equivalent to three-fifths of the full rate and, if there are two or more widows, the amount payable to the widow as aforesaid shall be divided equally between the widows, (b) to each legitimate or adopted son, an amount equivalent to two-fifths of the full rate until he attains the age of eighteen years:

Provided that in the case of a [legitimate or adopted son] who is infirm and who is wholly dependent on the earnings of the insured person at the time of his death, dependents’ benefits shall continue to be paid while the infirmity lasts, (c) to each legitimate or adopted unmarried daughter an amount equivalent to two-fifths of the full rate until she attains the age of eighteen years or until marriage, whichever is earlier.

Dependent under Employee Compensation Act

A dependent of a deceased workman may apply to the Commissioner for the issue of an order to deposit compensation in respect of the death of the workman.  Dependent means any of the following relatives of a deceased workman, namely:- (i) a widow, a minor legitimate or adopted son, an unmarried legitimate or adopted daughter, or a widowed mother; and (ii) if wholly dependent on the earnings of the workman at the time of his death, a son or a daughter who has attained the age of 18 years and who is infirm; (iii) if wholly or in part dependent on the earnings of the workman at the time of his death, (a) a widower, (b) a parent other than a widowed mother, (c) a minor illegitimate son, an unmarried illegitimate daughter or a daughter legitimate or illegitimate or adopted][if married and a minor or if widowed and a minor, (d) a minor brother or an unmarried sister or a widowed sister if a minor, (e) a widowed daughter-in-law, (f) a minor child of a pre-deceased son, (g) a minor child of a pre-deceased daughter where no parent of the child is alive, or (h) a paternal grandparent if no parent of the workman is alive.

Please subscribe to the blog updates if you’d like to be notified of these posts. Your questions are welcome. Please comment below with your doubts and queries.

Cet article Who all can be Nominee & Dependent under various Labour Laws est apparu en premier sur Connect@ADP an ADP India HR Blog.

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The Coffee Break Guide to Compliance – Vol. 23 {Employers’ Duties – New Maharashtra Shops and Establishment Act}

In line with the progression and change in functioning of shops and commercial establishments in India, the Union Government had revisited the Shops and Establishments Act (S&E Act) in the year 2016. The Maharashtra Government was the first to implement the amended S&E Act in the year 2017. The amended Act has many significant provisions, added in the interest of both the employer and the employee.  A brief is as follows:

Registration: Every establishment employing 10 or more workers shall apply for registration with appropriate documents. The Registration Certificate is valid for such period as requested by the applicant to the maximum of 10 years. Application of renewal must be applied online before 30 days of expiry. After expiry of 30 days, an additional fee of 50% is levied for such renewal.

Employer of every establishment employing fewer than 10 workers shall give an intimation of having commenced the business by submitting an online application. If, at any point of time, the number of workers engaged in the establishment becomes 10 or more, an application for Registration Certificate must be submitted. During this process, every time there is an increase in head count, it is the duty of the employer to inform the head count.

Closure: The employer shall notify within 30 days from the date of closing of the business that the establishment has been closed for business in such form and manner, as may be prescribed.

“Managerial Functions” means all such functions which are inherently supervisory in nature and are bestowed with powers and authority to take all policy and administrative decision in an organisation, e.g. power to sanction leave, award increment, take disciplinary action, to terminate, suspend or dismiss a worker or indulge in policy making decision regarding any aspect of the business or service, conditions of workers and such other similar powers.

Intimation of persons doing confidential work: Every employer shall inform in Form ‘U’ the names of such persons who are occupying position of confidential character in an establishment. However, the number of such persons shall not be more than 1% of the total strength of workers of the establishment, subject to a maximum of fifty persons. The information in Form “U” shall be submitted annually and whenever there is any change during the year.

Working Hours: No adult worker shall be required or allowed to work in any establishment for more than nine hours in any day and forty-eight hours in any week. No adult worker shall be asked to work continuously for more than five hours unless he has been given a break of not less than half an hour. An establishment may be kept open for business on all days in a week subject to the condition that every worker shall be allowed weekly holiday of at least 24 consecutive hours of rest.

Working hours or weekly holiday may be relaxed in case of work of urgent nature with the previous permission of the Facilitator. The spread-over of a worker in an establishment shall not exceed 10 and a half hours in any day, and in case a worker has been entrusted with intermittent nature of work or urgent work, the spread-over shall not exceed twelve hours.

Where a worker in any establishment is required to work beyond nine hours a day or forty-eight hours a week, he shall be entitled, in respect of the overtime work, wages at the rate of twice his ordinary rate of wages. The total number of overtime hours shall not exceed 125 hours in a period of three months. If a worker is denied weekly holiday, the compensatory leave in lieu thereof shall be given within two months of such weekly holiday. Where a worker is required to work on a day of his rest, he shall be entitled to wages at the rate of twice his ordinary rate of wages.

Engaging Women Employees: No woman worker shall be discriminated in the matter of recruitment, training, transfers, promotions or wages. No woman worker shall be required or allowed to work in any establishment except between the hours of 7:00 a.m. and 9:30 p.m. Provided that, the woman worker, with her consent, shall be allowed to work between 9:30 p.m. and 7:00 a.m. in any establishment in which adequate protection is provided of their dignity, honour and safety, protection from sexual harassment and their transportation from the establishment to the doorstep of their residence.

Part-time Employment: It shall be lawful for the employer to engage a part-time worker provided that he shall not be allowed to work for more than five hours in a day. No part-time worker shall be allowed to work overtime under any circumstances. Wages payable to a part-time worker shall be computed by dividing the per-day rate of Minimum Wages applicable to that schedule employment by eight (hours) with 15% rise in it or by dividing the prevailing rate of per-day wages fixed for permanent workers doing similar nature of work in that establishment by eight (hours) with 15% rise in it, whichever is higher.

Health, Safety and Welfare Committee: In every establishment where 100 or more workers are ordinarily employed, there shall be constituted a Health, Safety and Welfare Committee, consisting of equal number of employer and workers’ representatives. It shall include,-

  • Senior official who by his/her position in the organisation can contribute effectively to the function of the said Committee and he/she shall be the Chairman.
  • Representatives of heads of all the Departments or In-charge of Sections of the establishment, e.g. sales, purchase, material, personnel, marketing, finance etc., if any.
  • Maximum 10 worker representatives, nominated by the workers of the establishment, as members of the said Committee. The said Committee shall have sufficient number of representatives of women workers, wherever women workers are employed.

Leave: Every worker shall be entitled to eight days casual leave with wages in every calendar year, but shall lapse if un-availed at the end of the year. Every worker who has worked for a period of 240 days or more in an establishment during a calendar year shall be allowed during the subsequent calendar year, leave with wages for a number of days calculated at the rate of one day for every 20 days of work performed by him during the previous calendar year. Every worker shall be permitted to accumulate earned leave up to a maximum of 45 days.      

National & Festival Holidays: A worker shall be entitled to eight paid festival holidays in a calendar year, namely, 26th January, 1st May, 15th August and 2nd October and four such other festival holidays as may be agreed to between the employer and the workers as per the nature of business, before the commencement of the year.

Other Specific Provisions under the Act:

  1. In every establishment wherein 50 or more workers are employed, there shall be provided and maintained a suitable room or rooms as crèche for the use of children of such workers.
  2. The employer of an establishment shall furnish to every worker an identity card.
  3. Welfare amenities such as first aid, drinking water, urinals and latrines to be provided
  4. Canteen to be provided if 100 or more workers are engaged
  5. Statutory Records/registers to be maintained manually or electronically
  6. Annual return to be filed
  7. Name board should be primarily in Marathi. If any other language is used, Marathi should on the top and the font should be same as other scripts
  8. A separate registration should done for ware-house, store room, godown, if any.

Please subscribe to the blog updates if you’d like to be notified of these posts. Your questions are welcome. Please comment below with your doubts and queries.

Cet article Employers’ Duties – New Maharashtra Shops and Establishment Act est apparu en premier sur Connect@ADP an ADP India HR Blog.

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