The long odd hour working in business firm and industry is exploiting the workers: Judicial Analysis
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This Blog is written by Anjana Vijay from University of Petroleum and Energy Studies, Dehradun. Edited by Karan Dutt.
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INTRODUCTION
Working overtime is an international work practice. “If overtime is driven by workload and intelligently balanced, planned and documented, it can be a very effective tool,” says Drummond Kahn, director of audit services for Portland, Oregon. If it’s not used appropriately, he adds, “It can lead to paying more than needed to get the work done.”[1] In a competitive business environment to achieve a competitive advantage the employer expects good production benefits. In the event of a shooting fall on a product the employer tries to achieve it by overtime working hours. There is always a conflict of interest where organizations want to match the needs of their business with the way their employees work and the people who want to find a better balance between work and home life. Attempts are being made in this article on ‘working – overtime’ to recruit employees and to understand the related issues in managing ‘work – overtime’ by employees in various business firms and industries. The purpose is to identify and document the various types of disturbances caused by overtime and to find other appropriate ways to manage the disruption.
THE NEED FOR DEVELOPMENT
Working weeks shorter than six days are often considered by employers to be less productive. The number of working days per week plays an important role in achieving productivity. Whenever the work week is short by six days, employers try to manage the product with overtime hours. At the time of the mandatory announcement of the weekly holidays, weekend is favored by the employer for overtime work. Obviously, thus the weekend is set to make extra time to pay for any type of holiday / holiday that falls within the next week (six days).
Thus, it is necessary to assess and understand the relationship between deadlines and schedules and to detect adverse effects on the mental and physical health of employees.
The major findings of various researches and surveys conducted through industries helped establish a variety of reasons as follows:
• Long working hours cause the mental health of industrial workers to decline even after controlling certain fixed outcomes.
• In addition, working weekends are associated with mental illness – the negative impact of an hourly increase in weekend work is two and a half to two times that of working overtime during the week for those employees.
• On the other hand, short periods of rest are not associated with mental health for them. The results show that taking long breaks on weekends is more important for keeping employees healthy than ensuring adequate rest time every day.
• Differences in the relationship between work schedule features and employees’ mental health can best be explained in terms of different work styles, different expectations, and different levels of choice. Therefore, working long hours or irregular hours reduces the mental health of employees.
Factors affecting Overtime working hours:[2]
• Lack of adequate equipment, trucks, or other equipment needed to cover times of high demand.
• Service availability problems – due to maintenance problems, etc.
• Lack of balance in the production process
• Improper planning practices that create unequal demands, supply deficits, or the production of inappropriate products
• Employee interest in earning more
• Poor record keeping practices due to lack of awareness by management regarding working hours
• Lack of general management and allowance of overtime by staff more easily than necessary.
SAFETY AND HEALTH IMPACTS OF LONG WORKING HOURS
There is a growing body of scientific literature that shows the effects of long and unusual working hours on a variety of health outcomes include both strong reactions such as depression, fatigue, sleep disturbances; unhealthy behaviors such as smoking and sedation, as well as long-term side effects such as heart disease, intestinal disorders and mental illness. It quickly becomes apparent that assessing the relationship between working hours and health is much more difficult and complicated than one would originally expect. It is suggested that the health of employees can be significantly affected by the amount of time spent per hour, but rather by the combination of that time, the intensity of the work at the time, the rest of the embedded energy over time, as well as the control of the employee. The data suggest that fatigue is the most important measure of the effect of working hours and shifting schedules on the human body and human performance.
Family and Work Conflict also exacerbates not only by long working hours, but by also the constant work of change. Occasional shift or irregular part-time work exacerbates family work disputes and is equally associated with high work pressures.
Excessive use, on the other hand, exacerbates work-and-family conflicts, regardless of the number of hours per week. Because about 1 in 6 employees show that they are “overworked” (determined to reduce work hours by one day a week and earn less than 20 percent), better comparisons of working hours with their favorite hours, in balance, can reduce the rate and incidence of work and family conflict. During controlled working hours, having a greater ability to set a work schedule (start and end times and to take breaks from work) is strongly associated with less work-related conflict.
PROVISIONS IN THE LEGISLATURE
Under the Factories Act, 1948 (Factory Act), an employee may not be required or required to work more than 9 hours a day or 48 hours per week. It is important to note that for a typical 6-day week in the manufacturing sector, the daily work limit will be eight hours, keeping within the weekly limit. In addition, this eight-hour limit will only include actual working hours; such as including downtime, the distribution of work per day can increase to 10.5 hours.
As mentioned above, Section 59 of the Factors Act deals directly with overtime and stipulates that for overtime work, an employee “, in respect of overtime, will be entitled to double his or her regular wage. . In addition, unlike the provisions of many laws governing shops and buildings (which determine the working conditions of certain types of retail outlets), this condition does not specify any numerical limit for overtime hours. In the first study, Section 59 may be regarded as a legal impediment to overtime work, provided that employees are properly compensated. However, such reasoning is flawed and untrue.
Section 59 must be read with the following provisions of the Factories Act. It is section 64 which empowers the State Government to enact laws that provide for exemption from working hours for a specific type of work, such as part-time or part-time work, emergency repairs etc. Similarly, Section 65 allows the national government / Chief Inspector to issue a directive ordering such evictions in a factory or factory sector to face “exceptional operational pressure”. These exemptions are also reduced by the maximum limits set for extended working hours including overtime.
By reading these provisions, it is inevitably clear that the legal limit for working hours may be extended only by exemption granted by the national government / Auditor General may be under Section 64 or Section 65. It is in this case only in the absence of a waiver, an employer may not require factory workers who have a 6-day work week to work in regular shifts exceeding eight hours of work, whether or not they have additional compensation. This conclusion is supported by the various state exemptions issued after COVID-19 discussed below.
COVID-19 state exemptions
Due to tourism restrictions and the result of staff shortages, approximately 12 national governments issued exemption notices in April and May 2020 which temporarily extended the factory hours to 12 hours daily and 60/72 weekly. The main reason here is that fewer employees working longer shifts will also help better social segregation. Significantly, while major state expulsions clearly protect workers’ right to receive double the amount of overtime paid, notices issued by the governments of Uttar Pradesh and Gujarat respectively reduced this requirement by half, saying that overtime pay would be equal to current wages.
The two orders mentioned above met with great criticism and legal challenge. According to a notice issued by the Hon’ble High Court in Allahabad in a public interest case filed in this regard, the Uttar Pradesh notice was immediately withdrawn the following week.
On the other hand, the fate of release in Gujarat was finally decided on October 1, 2020 by the Hon’ble Supreme Court of India (Court). Court, Gujarat Mazdoor Sabha and Another v State of Gujarat [WP (Civil) No. 708 of 2020], dismissed the notice and its extension for a number of reasons. Firstly, the Court exercised the use of separate relaxation powers under Section 5 of the Industrial Act, and noted that the epidemic, despite its catastrophic impact, did not become a “public emergency” as described below in Article 5. Second, and most importantly, the Court maintained Article 59 sanctity which means that double the amount of overtime pay “is a protection against the huge inequality that may result in the relationship between employees and management”. The Court further held that the notices “violate workers’ right to life and their right against forced labor protected by Articles 21 and 23 of the Constitution”.
Labor Code 2020
Like other staff codes, the Occupational Safety, Health and Working Conditions Code, 2020 (OSH Code) has received the President’s approval but it will still be announced to be effective. To address the above-mentioned issue of emancipation, the OSH Code provides for a comprehensive amnesty for the appropriate government in the event of a “public emergency or disaster or disaster”.
In addition, in accordance with ILO Standards, the OSH Code reduces the daily working hours limit from 9 to 8 hours, leaving some news intervals and spread to be placed under regulations. With regard to overtime, from the current crisis situation, the OSH Code allows overtime work at double the amount of salary as long as the employee concerned agrees to do the work, and within the overtime limits will be set again under rules to be set by the appropriate government. While it may be prudent to wait for rules, this could be a win-win situation that gives employers the flexibility to create work schedules, gives employees the agency needed to accept or reject overtime work, and provides a legal measure to prevent any exploitation arising from negotiating power inequality. .
Employer’s Checklist for Minimum Wages
• An employer may take a real job on any day up to 9 hours on a 12-hour shift, but must pay twice as much as any hour or part of the actual work in excess of 9 hours or more than 48 hours per week
• Every employer must keep an employee’s salary register stating the following details of each pay period in respect of each employee:
I. Minimum payroll;
II. Number of days overtime;
III. Total salary;
Payment and date of payment Child Labour (Prohibition and Regulation) Act, 1986 & The Child Labour (Prohibition and Regulation) Rules, 1988
No child shall be required or permitted to work overtime. No child shall be required or permitted to work in, any establishment on any day on which he has already been working in another establishment.
The Fair Labor Standards Act of 1938 (FLSA) also establishes minimum wage and overtime rights for most private sector workers, with a number of exemptions and exceptions
Cost of overtime:
Any work taken for a period in excess of the maximum permissible under the statute would undisputedly attract the statutory rate of overtime of wages.[3] Section 59 of the Factories Act does not provide for overtime wages for work done in excess of the normal working hours and upto 48 hours. [4] Working overtime involve extra cost to the employer as the employer has to pay double wages. Thus one has to understand that the following are the rate of wages to be paid: “In case of more than 9 hours of work in any day or 48 hours in any week, the worker shall be entitled to overtime wages at the rate of twice his ordinary rate of wages. At least half-an- hour break after every 5 hours of continuous work.
Section 14 of the Minimum Wage Act, 1948 states that after an employee has been paid his or her minimum wage for a fixed period, he or she is required to be paid an additional amount as an overtime limit.
Under section 33 of the Mining Act, 1952 if any miner works more than nine hours above ground and more than eight hours below the day or works more than 48 hours a week anywhere, or more or less, or is entitled to double the normal overtime pay. . Also, this practice does not allow anyone to work more than ten hours a day, including overtime under Section 36.
Under sections 17 and 18 of the Bid and Cigar Workers (Conditions of Employment) Act, 1966, no one should work more than ten hours a day and fifty-four hours a week, including overtime. Similarly, under the Plantation Labor Act, 1951, if a person works more than the normal number of hours, he or she must receive overtime pay.
Overtime rules for women and children
The Factories Act, 1948 prohibits the employment of women between 7:00 pm and 6:00 am, which may be open to the Chief Inspector of Factories in certain circumstances. If such rested working hours exceeds the normal working hours, employees will be able to receive additional overtime compensation. However, this break is premature, that is, women may not be required to work between 10:00 pm to 05:00 am.
Under the same Act, Section 75 stipulates that no child under the age of 14 years may be employed in any industry. A child over the age of fourteen who is fit to work in a factory cannot be allowed to work more than four and a half hours a day and cannot work between 10:00 pm and 6:00 am. In addition, a female child is not allowed to work in any firm, except at 8:00 a.m. and 7:00 p.m.
CASE LAWS
Hind Art Press v. ESI Corporation 1990 (1) LLJ 195
• It was observed that if an employee works more than 9 hours a day or 48 hours per week, overtime pay doubles the amount paid under Section 59 (1) of the Industrial Act.
• An employee cannot work in two factories. There is a double employment limit. [Section 60]. However, overtime pay is not paid when the employee is traveling. The total number of working hours including overtime should not exceed 60 per week and the total number of hours in a quarter should not exceed 50
R Ananthan v. Avery India 1972(42) FJR 304 (Mad HC)
• An overtime register should be kept. An employee working outside the factory premises such as field workers etc on a visit outside headquarters is not entitled to overtime.
Town Municipal Council, Athani vs. Presiding Officer, Labour Court, on 20 March, 1969
The term “salary” is given the broader meaning in terms of section 2 (h) of the Act and, apparently, includes remuneration in respect of overtime and overtime work required to be paid by any employer to employees under the provisions of that Act. Section 13 (1), which deals with days off work, and section 14 (1), which applies overtime, is as follows: –
(c) provide for the payment of work on a day off at a rate not less than the amount of overtime. ”
14. (1) Where an employee, whose minimum wage is prescribed under this Act per hour, on the day or for such longer period as may be prescribed, works on any day in excess of the number of hours forming a normal working day, additional provisions imposed under this Act or under any applicable State law during the period in which it operates, or any other.
Shri B. P. Hira, Works … vs Shri C. M. Pradhan Etc 1959 AIR 1226, 1960 SCR (1) 137
In that case Shri C.M. Pradhan and other respondents were employed as temporary caretakers at the Central Railway Workshop and Factory office in Parel, Bombay and were claiming overtime pay under section 59 of the Industrial Act first on the grounds that they were workers’ in terms of section 2 (1) of the Act and not on the basis of presumptuousness. According to the definition of section. 2 (1) of that Act, they were entitled to claim overtime pay under section 59 of the Factories Act read with section 70 of the Bombay Shops and Establishments Act, 1948.
CONCLUSION
Already wrapping up as a result of the epidemic, working classes in India face an additional burden, that of extending working days. There is no doubt that in some cases, but not all, long working hours will increase productivity and product growth. But it is a movement that carries the burden of inequality in workers. Unless wages increase equally, it will increase distribution by reducing the share of income. In addition, unless investment increases, and businesses decide to create more jobs, having employees to work longer hours can actually reduce job losses.
Although wages could rise in terms of productivity, a situation in which workers are expected to work long hours, the economic recovery involves only increased productivity and output, but not welfare. The human body is not a machine that can be repaired if broken. Working long hours will mean greater stress and a lower standard of living for workers.
True development includes a productive economy that produces a high level of productivity, thus generating higher wages for workers, and also ensures adequate rest periods. Policies that require an increase in working hours see employees as the means to end inflation and profits, not as endpoints themselves.
The idea that economic recovery can come by extending the working day is a disturbing idea that lowers working conditions across the board, where the task should be to improve standards everywhere. Business cannot be done as usual in other epidemics, and we certainly should not allow hard-won rights to be granted without compensation at the altar of product growth.
REFERENCES
Websites
(1) https://thewire.in/economy/covid-19-working-hours-economy
(2) https://www.india-briefing.com/news/introduction-overtime-in-india-12711.html/
(4) https://indiankanoon.org/doc/1390307/
(5) https://paycheck.in/labour-law-india/compensation
Articles
(1) https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6617405/
(2) https://www.epi.org/publication/irregular-work-scheduling-and-its-consequences/
(4) Working Time, Health, and Safety: a Research Synthesis Paper (2012), by Philip Tucker & Simon Folkard
(5) The influence of working time arrangements on work-life integration or ‘balance’: A review of the international evidence (2012), by Colette Fagan, Clare Lyonette, Mark Smith & Abril Saldaña-Tejeda
Cases
(1) Hind Art Press v. ESI Corporation 1990 (1) LLJ 195
(2) R Ananthan v. Avery India 1972(42) FJR 304 (Mad HC)
(3) Town Municipal Council, Athani vs. Presiding Officer, Labour Court, 20 March, 1969
(4) “Shri B. P. Hira, Works … vs Shri C. M. Pradhan Etc 1959 AIR 1226, 1960 SCR (1) 137
In-text Citation
[1] Katherine Barrett & Richard Greene (2009)- Few Payoffs for Overtime Pay- http://www.governing.com/columns/smart-mgmt/Few-Payoffsfor-Overtime.html
[2] HOURS OF WORK IMPROVEMENT GUIDE -2010-coca cola company -http://assets.cocacolacompany. com/78/f5/2e04a53e4d85a3511d3de8bdd1ba/Hours_of_Work_Improvement_Guide_May2011_external.pdf
[3] Philips India Ltd vs Labour Court, Madras & Ors on 26 March, 1985- 1985 AIR 1034, 1985 SCR (3) 491- http://indiankanoon.org/doc/1993683/
[4] CLOTHING FACTORY, NATIONAL WORKERS’ UNIONAVADI, MADRAS, Vs.UNION OF INDIA BY ITS SECRETARY, MINISTRY OFDEFENCE, NEW DEL-DATE OF JUDGMENT20/04/1990-1990 AIR 1383, 1990 SCR (2) 617-http://indiankanoon.org/doc/1704390/
Excellent Anjana vijay.
Well cited and researched.
Significantly relevant to modern day work culture.