Hi, We are registered under the Shop act in Rajasthan with an employee strength of around 18. I wish to understand the difference between labor and workmen. Are there any separate laws for nonlabor employees under Shop act as we are an IT company and manpower is skilled? Can we apply workmen laws under the shop act? Looking for guidance on the same. The purpose is to aggregate educated manpower from the labor class in terms of following compliances. Our consultant is telling us to follow labor laws whereas our team is skilled. Thanks in advance
From India, New Delhi
From India, New Delhi
Dear Deepa,
Labor and workman are the nouns indicating the same person whose services are hired. But the slight difference is that a labor may be self-employed but a workman is employed by some one else regularly subject to his control and supervision. If you carefully go through the definition of the term " employee " u/s 2(5) of the Rajasthan Shops and Commercial Establishments Act,1958, you will find the qualifying phrase " a person wholly or principally employed in, or in connection with any establishment ". Every IT/ITES establishment comes under the respective State Shops and Establishments Act only where it functions. Therefore, whoever employed therein wholly or principally or in connection therewith the establishment is an employee only. Therefore, you are not expected to make your own classification of such employees such as educated, manual labor or unskilled. Please try to follow the guidelines of your consultant.
From India, Salem
6018Labor and workman are the nouns indicating the same person whose services are hired. But the slight difference is that a labor may be self-employed but a workman is employed by some one else regularly subject to his control and supervision. If you carefully go through the definition of the term " employee " u/s 2(5) of the Rajasthan Shops and Commercial Establishments Act,1958, you will find the qualifying phrase " a person wholly or principally employed in, or in connection with any establishment ". Every IT/ITES establishment comes under the respective State Shops and Establishments Act only where it functions. Therefore, whoever employed therein wholly or principally or in connection therewith the establishment is an employee only. Therefore, you are not expected to make your own classification of such employees such as educated, manual labor or unskilled. Please try to follow the guidelines of your consultant.
From India, Salem
But Labour court denies that sales promotion employee i.e. Medical Representative are workman since they are not engaged in any clerical, mannual or any other type of work and also as per latest judgement of Jabalpur Highcourt in 2018 that SPE are not workman.
From India, Kanpur
From India, Kanpur
Originally the sales promotion employees were not Workman as per the ID Act 1947 following the Supreme Court judgment in the case of May and Baker (India) Limited and their Workmen (1961-II-LLJ. p. 94), the persons engaged in sales promotion do not come within the purview of the definition of “workman” under the Industrial Disputes Act, 1947 . Hence as such they had no protection regarding security of employment and other benefits under that Act , so the Labour Court refused to give relief to them.
This led to the enactment of THE SALES PROMOTION EMPLOYEES (CONDITIONS OF SERVICE) ACT, 1976 (11 of
1976). The Act contained a provision to apply the ID Act to individual disputes as follows:
The provisions of the Industrial Disputes Act, 1947 (14 of 1947), as in force for the time being, shall apply to, or in relation to, sales promotion employees as they apply to, or in relation to, workmen within the meaning of that Act and for the purposes of any proceeding under that Act in relation to an industrial dispute, a sales promotion employee shall be deemed to include a sales promotion employee who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute or whose dismissal, discharge or retrenchment had led to that dispute.
So SPEs were invoking the jurisdiction of ID Act. But the Madhya Pradesh High Court in Novartis India Ltd. Vs. Vipin Shrivastava and others in WA No.75/2017, wherein by order dated 11.10.2018 the Division Bench has reiterated the earlier position that the medical representatives or sales representatives in a pharmaceutical company cannot be treated to be workman within the meaning of Section 2(s) of the ID Act. Recently in Vimal vs Abbott Healthcare Pvt. Ltd. decided on 4 March, 2020 has held that the Sales Promotion Employees won't be Workman as per the ID Act 1947 and upheld the order passed by the Labour Court. I hope you are referring to this judgement. But here the basic premise is that the ID Act excludes coverage to the persons employed in managerial and administrative work and drawing wages exceeding the wage limit. This is the case even under the ID Act. The High Court has held that the sales promotion work cannot be categorised as manual or clerical work as it requires knowledge of product, its uses and also persuasive skills. The SPEs may not be controlling any subordinate but he was master of the work assigned to him. The manner of performing the job was solely in the discretion of them. The interest of the management was that the Medical Representative should achieve the sales target. The supervisory capacity necessarily has to be examined keeping in view the manual, unskilled, skilled, clerical work and the person performing such work is a workman. May be, he does not supervise any person but he is the master of his own affairs reporting to management only in respect of quantification of sales, therefore, a Medical Representative cannot be treated to be a workman within the meaning of Section 2(s) of the ID Act. So even as per ID Act it is only those who are covered under the Act only get relief.
For those who are not covered by the ID Act, their only recourse is to avail the civil remedy as per the Specific Relief Act 1963.
From India, Mumbai
This led to the enactment of THE SALES PROMOTION EMPLOYEES (CONDITIONS OF SERVICE) ACT, 1976 (11 of
1976). The Act contained a provision to apply the ID Act to individual disputes as follows:
The provisions of the Industrial Disputes Act, 1947 (14 of 1947), as in force for the time being, shall apply to, or in relation to, sales promotion employees as they apply to, or in relation to, workmen within the meaning of that Act and for the purposes of any proceeding under that Act in relation to an industrial dispute, a sales promotion employee shall be deemed to include a sales promotion employee who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute or whose dismissal, discharge or retrenchment had led to that dispute.
So SPEs were invoking the jurisdiction of ID Act. But the Madhya Pradesh High Court in Novartis India Ltd. Vs. Vipin Shrivastava and others in WA No.75/2017, wherein by order dated 11.10.2018 the Division Bench has reiterated the earlier position that the medical representatives or sales representatives in a pharmaceutical company cannot be treated to be workman within the meaning of Section 2(s) of the ID Act. Recently in Vimal vs Abbott Healthcare Pvt. Ltd. decided on 4 March, 2020 has held that the Sales Promotion Employees won't be Workman as per the ID Act 1947 and upheld the order passed by the Labour Court. I hope you are referring to this judgement. But here the basic premise is that the ID Act excludes coverage to the persons employed in managerial and administrative work and drawing wages exceeding the wage limit. This is the case even under the ID Act. The High Court has held that the sales promotion work cannot be categorised as manual or clerical work as it requires knowledge of product, its uses and also persuasive skills. The SPEs may not be controlling any subordinate but he was master of the work assigned to him. The manner of performing the job was solely in the discretion of them. The interest of the management was that the Medical Representative should achieve the sales target. The supervisory capacity necessarily has to be examined keeping in view the manual, unskilled, skilled, clerical work and the person performing such work is a workman. May be, he does not supervise any person but he is the master of his own affairs reporting to management only in respect of quantification of sales, therefore, a Medical Representative cannot be treated to be a workman within the meaning of Section 2(s) of the ID Act. So even as per ID Act it is only those who are covered under the Act only get relief.
For those who are not covered by the ID Act, their only recourse is to avail the civil remedy as per the Specific Relief Act 1963.
From India, Mumbai
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