Are sales promotion employees also covered under the said act, if they are more than 2500 in number all over India.
From India, Kanpur
From India, Kanpur
1534
Dear Mr.KK!HR,
By definition of employment relationship with their employers, Sales Promotion Employees are a specific class of employees engaged in the exclusive work of sales promotion. As per Sec.6 of the SPE(CS) Act,1976, the ID Act,1947 is, inter alia, made applicable to SPEs treating them on par with "workman" as defined under the latter. Moreover, the establishment/organization they are employed can be a composite one having factories, registered offices, administrative branches coming thus under the definition of the term " Industrial establishment" u/s 2(e) of the IE(SO)Act,1946 by virtue of the meaning assigned to it. Therefore, if the IE(SO)Act,1946 could not be applicable to SPEs, it must be due to the reason that the establishment wherein they are employed must be the one to which the Act of 1946 does not have application at all or they should simply escape the ambit of the definition of "workman" under the Act. I request your clarification in this regard substantiating your above remarks. My request is based on the controversy that remains unsettled till to-date about the rights of SPEs and I shall be much obliged if you can cite some case laws in this regard.
From India, Salem
By definition of employment relationship with their employers, Sales Promotion Employees are a specific class of employees engaged in the exclusive work of sales promotion. As per Sec.6 of the SPE(CS) Act,1976, the ID Act,1947 is, inter alia, made applicable to SPEs treating them on par with "workman" as defined under the latter. Moreover, the establishment/organization they are employed can be a composite one having factories, registered offices, administrative branches coming thus under the definition of the term " Industrial establishment" u/s 2(e) of the IE(SO)Act,1946 by virtue of the meaning assigned to it. Therefore, if the IE(SO)Act,1946 could not be applicable to SPEs, it must be due to the reason that the establishment wherein they are employed must be the one to which the Act of 1946 does not have application at all or they should simply escape the ambit of the definition of "workman" under the Act. I request your clarification in this regard substantiating your above remarks. My request is based on the controversy that remains unsettled till to-date about the rights of SPEs and I shall be much obliged if you can cite some case laws in this regard.
From India, Salem
Standing Order Act is applicable to establishments covered by Payment of Wages Act. Many state governments have extended the application of Payment of Wages Act to commercial establishments coming under their respective Shops and Commercial Establishments Act. In Maharashtra even otherwise the Standing Order Act is applicable to commercial establishments covered under their State's Shops and Commercial Establishments Act. Similar is the case in Karnataka though IT companies have been exempted for the time being. Kerala has extended the application of Payment of Wages Act to commercial establishments and thereby covering such establishments under the Industrial Employment (Standing Orders) Act. As such sales promotion employees being employees of any commercial establishment within the meaning of Payment of Wages Act per se shall be covered by the Standing Orders of that establishment.
However, the confusion is whether an establishment not being an industrial establishment within the meaning of section 2(e) of the Act, having branches all over India, should have standing order? If yes, should it be one standing order at its head office level and as applicable to all employees across India? I support the views expressed by Umakanthan Sir that an establishment they are employed can be a composite one having factories, registered offices, administrative branches coming thus under the definition of the term " Industrial establishment" u/s 2(e) of the IE(SO)Act,1946. In the ruling of Western India Match Co. Ltd vs Their Workmen ( 1964 AIR 472, 1964) the supreme Court has observed that " The functional integrality, interdependence or community of financial control and management; community of manpower and of its control, recruitment and discipline; the manner in which the employer has organised the different activities; whether he has treated them as independent of one another or as interconnected and interdependent, are some of the tests to find out whether the two units are part of one and the same establishment. The Court further held that the difference in the rules and practice in connection with their recruitment, control and discipline, in the standing orders applicable to them, and in the maintenance of their muster rolls made no difference to the situation." Accordingly, if we see that different activities and operations are for a sole objective all employees who contribute towards that objective shall be covered by the rules set to attain it. Therefore, I don't find anything wrong in including sales promotion employees under standing orders of the company.
From India, Kannur
However, the confusion is whether an establishment not being an industrial establishment within the meaning of section 2(e) of the Act, having branches all over India, should have standing order? If yes, should it be one standing order at its head office level and as applicable to all employees across India? I support the views expressed by Umakanthan Sir that an establishment they are employed can be a composite one having factories, registered offices, administrative branches coming thus under the definition of the term " Industrial establishment" u/s 2(e) of the IE(SO)Act,1946. In the ruling of Western India Match Co. Ltd vs Their Workmen ( 1964 AIR 472, 1964) the supreme Court has observed that " The functional integrality, interdependence or community of financial control and management; community of manpower and of its control, recruitment and discipline; the manner in which the employer has organised the different activities; whether he has treated them as independent of one another or as interconnected and interdependent, are some of the tests to find out whether the two units are part of one and the same establishment. The Court further held that the difference in the rules and practice in connection with their recruitment, control and discipline, in the standing orders applicable to them, and in the maintenance of their muster rolls made no difference to the situation." Accordingly, if we see that different activities and operations are for a sole objective all employees who contribute towards that objective shall be covered by the rules set to attain it. Therefore, I don't find anything wrong in including sales promotion employees under standing orders of the company.
From India, Kannur
If a company has not not made certified its Standing Orders now it transfers its employee (SPE) out of the State. In that condition Model Standing Order of that particular State in which the particular SPE was working is applicable. How to get benefited through standing order where it is clearly mentioned "If an establishment has its units out of the State, No workman can be transferred out of the State with out his prior consent" as per I.D. act.
From India, Kanpur
From India, Kanpur
Unfortunately we are still groping in the dark even though we are nearing a month since start of the discussions on this subject loop, on the nature of the establishment, is it limited to only marketing of goods made by some other establishment or it is a part of the manufacturing as well as sales included unit. My comments were reckoning the former position. Again we need clarity whether the unit is a part of any of the notified industry as per the SPE Act 1976. The provisions of the Act provide for leave, appointment letter and applicability of the Acts like ID Act, MB Act, EC Act etc, significantly no mention of SO Act. But the premise that 'No workman can be transferred out of the State with out his prior consent' as per I.D. act' is not the real position. ID Act does not have any provision regarding transfer.
As regards transfer the accepted legal provision is that transfer is a necessary condition of service and the courts will interfere only if it violates statutory rules or conditions of service of the employee or is out of bias, malice & prejudice. Pl specify whether there was any clause in the offer of appointment made to you regarding transfer, also whether the transfer adversely affects salary & other earnings, promotion prospects, status in the organisation etc.
Once the position is made clear, we will be able to give better advice on the options
From India, Mumbai
As regards transfer the accepted legal provision is that transfer is a necessary condition of service and the courts will interfere only if it violates statutory rules or conditions of service of the employee or is out of bias, malice & prejudice. Pl specify whether there was any clause in the offer of appointment made to you regarding transfer, also whether the transfer adversely affects salary & other earnings, promotion prospects, status in the organisation etc.
Once the position is made clear, we will be able to give better advice on the options
From India, Mumbai
It is a part o0f the manufacturing as well as the sales including unit (Pharmaceutical industry). The court has to decide whether it is malafide, malice, prejudice or bias. it was indicated in the appointment letter but immediately after serving the transfer letter stoppage of salary, not providing sufficient time to join and than conducting enquiry on 'not obeying reasonable orders of the superiors' closing the enquiry without any decision for the last 3 years, no salary neither during enquiry nor after completion of enquiry. How will you rate? Enquiry finished in 2 months only. Before transfer no permission from the court was sought as 4 cases under 33c2 were pending in the court.
From India, Kanpur
From India, Kanpur
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The-Sales-Promo tion-Employees- Act-1976.pdf
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