A Global/country study and report On “Comparison of Labour Laws of India and South Korea” Submitted to Institute Code: 705 Institute Name: C.K. Shah Vijapurwala Institute of Management Under the Guidance of Ms. Ranjita Banerjee (Asst. Professor) In partial Fulfilment of the Requirement of the award of the degree of Master of Business Administration (MBA) Offered By Gujarat Technological University Ahmedabad Prepared by: Anand Solanki (127050592103) ChintanSoni (127050592104) ShreejalSoni (127050592106) Sonia Rahee (127050592107) Srishti Gupta (127050592108) MiteshSuthar (127050592109) Students of MBA Sem.-III-IV (Batch-4 2012-2014) C K Shah Vijapurwala Institute of Management M.B.A PROGRAMME Affiliated to Gujarat Technological University Ahmedabad 2013-2014
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STUDENT’S DECLARATION
We, following students, hereby declare that the global/ country study report titled “Comparison of Labour Laws of India and South Korea” is a result of our work and our indebtedness to other work publications, references, if any, have been duly acknowledged. If we are found guilty of copying any other report or published information and showing as our original work, or extended plagiarism limit, I understand that we shall be liable and punishable by GTU, which may include ‘fail’ in examination, ‘ repeat study and re-submission of the report’ or any other punishment that GTU may decide. Enrollment No.
Name
127050592103
Anand Solanki
127050592104
Chintan Soni
127050592106
Shreejal Soni
127050592107
Sonia Rathee
127050592108
Srishti Gupta
127050592109
Mitesh Suthar
Signature
Place: - Vadodara
Date: - 02-04-14
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INSTITUTE CERTIFICATE
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PLAGIARISM REPORT
The Plagiarism is being check by online service provider i.e. www.oaps.eu.in The Plagiarism report that has being generated is attached separately
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PREFACE
As a part of the curriculum of the second Year of MBA Programme of Gujarat Technological University, the students are required to undergo project work in addition to their theoretical study, so as to enable them to have the knowledge of the practical aspect of the Business Administration. As students of management it is learning experience to analysis an industry. It is the most essentials tools for us to expose our skills as a future responsible managerial post. So, we decided to study “Comparison of Labour Laws of India and South Korea”. It helps us to develop our skill & confidence to do better in all respect in management fields. The project work is required to be undertaken where we get the opportunity to know about the real information of the area we have selected, which is altogether different from theory.
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ACKNOWLEDGEMENT
This report has been submitted in partial fulfilment of the requirement of the award of MBA (Full Time Programme) from C.K.ShahVijapurwala Institute of Management.
It is the universal fact that for study of a project in depth, we need the support of many people right from the stage of conceiving the idea to completion of report. It is tough for a single person to do the job efficiently without interaction and involvement of team.
Firstly we would like to thank our Institute’s Director Dr. Rajesh Khajuria who is also our assigned faculty guide for allowing us to explore details on the topic that we decided to choose for our Global / Country Project. Because of the fact that we were allowed to study the topic that we chose, we got a wonderful opportunity of learning new concepts about the global giants India and South Korea and also we are now clear about our concepts regarding the global economy. We thank him for providing us with this opportunity which has been fruitful throughout the Project.
We are also thankful to Ms. Ranjeeta Banarjee
(Asst.Professor) for giving us valuable guidance and
providing facilities to successfully complete our project.
We are also grateful to other faculty members of C.K.Shah Vijapurwala Institute of Management for their support whenever required. Discussions with friends also have served to provide sought after information. We are thankful to all our batch mates.
Finally we are thankful to our parents and Lord Almighty without whose blessings tasks are incomplete.
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SUBJECT INDEX Sr. No
PARTICULARS
PAGE NOS.
SUMMARY OF PART-I REPORT (MBA SEMESTER-III)
1
SUMMARY OF PART-II REPORT (MBA SEMESTER-IV)
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PART II:- MICRO ANALYSIS ON LABOUR LAW INDIA AND SOUTH KOREA 1.
Laws related to Industrial Relations in India and South Korea 1) Trade Union in India
23
2) Trade Union in South Korea
25
Collective Bargaining and Labour Dispute Resolution
2.
29
1) The Industrial Disputes Act in India
29
2) The Industrial Disputes Act in South Korea
30
Law Related to Wages of India
30
1) Minimum Wage Act
32
2) Fixation and revision of minimum wages
35
3) Minimum wages for specific groups
36
Laws related to Wages of South Korea
3.
21
40
1) Wage and Severance Pay
40
2) Minimum Wage System
41
3) Remedy of Late Payment of Wages
41
Laws related to Working Hours, Working conditions ,
42
Laws related to Working Hours, Working conditions ,Health and Safety
50
in India 4.
Laws Related to Equality and Empowerment of Women in India
54
Laws related to Equality and Empowerment of Women in South Korea 62 5.
Laws Related to Deprived and Disadvantaged Sections of the Society
69
in India 1) Child Labour (Prohibition & Regulation) Act, 1986 2) The Children (Pledging of Labour) Act, 1933 7
69 74
Laws Related to Deprived and Disadvantaged Sections of the Society
77
in South Korea 6.
7.
8.
Laws related to Social Security in India
79
Laws related to Social Security in South Korea
87
Related to Lay off and Dismissal in India
88
Related to Lay off and Dismissal in South Korea
93
SWOT Analysis
99
1) Trade Unions Act.
101
2) Industrial Disputes Act
102
3) Minimum wage act
103
4) Laws Related to Equality and Empowerment of Women
105
5) Lay Off / Dismissal
107
6) Working Hours, Working conditions ,Health and Safety
109
7) Social Security Law
111
8) Work ethics, salaries and holidays
112
9
Suggestions
112
10
Bibliography
113
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EXECUTIVE SUMMARY (Part-I) Labour law is the body of laws, administrative rulings, and precedents which address the legal rights of, and restrictions on, working people and their organizations. As such, it mediates many aspects of the relationship between employers, employees and trade unions. In other words, Labour law defines the rights and obligations as employers, union members and workers at the workplace.
Generally, labour law covers:
Industrial relations – certification of unions, labour-management relations, unfair labour practices and collective bargaining
Workplace safety and health;
Employment standards, including general holidays, working hours, annual leave, minimum wage, severance pay, unfair Dismissals and layoff procedures.
In the GCSR Part-1 project, the students have tried to do a comparative study of the labour laws prevalent in South Korea and India, with the following objectives: 1. To do a detailed study of the labour laws of South Korea and India. 2. To analyse the Social, Technological, Economical, Environmental, Political, Legal, Ethical and Demographic (STEEPLED) study of the labour legislations in India. 3. To gain knowledge about South Korea as a leading nation. South Korea is a country which has a high growth rate in world economy. This report helps understand structure of South Korea labour law as compared to the Indian Government. In this report, various parts of South Korea like labour law practices, administration divisions, foreign relations, trade relations, territorial disputes, relations with developing world, socio-political issues and reforms, Demographic, Ethical etc. are included. It will help in understanding various aspects of South Korea labour laws. South Korea has a centralised government system. At the end of World War II, Korea was divided into Soviet and U.S. zones. An election was held in the U.S. zone in 1948 which led to the creation of the Republic of Korea. Although the U.N. passed a resolution declaring the Republic to be the only lawful government in Korea, the Soviets set up a rival government in the North.
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South Korea has modest natural resources. Government policies and directions on environmental development have lead to the formation of national eco parks and environmentally-friendly technology. The government has adopted several control measures in urban areas and is promoting environmental education in schools and business communities. However, South Korea’s high emission levels are a cause for concern. The South Korean judiciary is based on the US and German court systems and juries are not present during trials. The country also has an exclusive constitutional court, which keeps a check on government decisions and law making. Very few students pass the tough law examinations in South Korea and, consequently, the country is facing a shortage of judges. After becoming a member of the OECD, South Korea gained the status of a developed country and it provides one of the most attractive regulatory incentives for industrial development among the OECD nations. The country earns a very large income from exports, which makes it an attractive destination for FDI. However, procedural delays and hostility towards foreign investors act as a discouragement.
The Labour Standards Act 1997 (LSA) automatically applies to all workplaces in South Korea, whether the employees are Korean or foreign nationals. Different provisions of the LSA apply depending on the number of employees at the workplace. An employment contract may be made orally, but an employee is entitled to a written employment contract clearly stating particulars under the Labor Standard Act (“LSA”), such as, wages, work place & hours, description of work, dismissal, leave, etc. Employee may be dismissed based on Justifiable Causes (lack of qualifications, misconducts, etc.).
A comparative analysis of STEEPLED has been done between South Korea and India, trying to emphasize on the labour aspects of the two nations. The exhaustive analysis is mentioned in the report; however, a snap-shot of the same is shown in Table-1.
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Table 1: STEEPLED of South Korea and India, with special emphasis on Labour laws
INDIA
SOUTH KOREA
FLAG
Social analysis Literacy Rate
61%
97.9% (literacy rate is highest in the world)
Urbanization rate
87.9%
fertility rates (children per
2.82
1.31
woman) unemployment
5%
rate
(In 2007)
Current
strengths and technological
Low
skill
&
technical The wages are normally higher
competency of labour
than
Low wages calling for Union &
countries and the labour is well
labour dissatisfaction
technically
Rapid urbanization
educated.
Majority of youth population Highly educated worker
challenges
other
leading to demanding changes High wages 11
neighbouring
qualified
and
Rapid urbanization
in work-places.
Low fertility rates aged society calling in need for various social welfare and employment welfare and other benefits for aged population & retirement benefits Low spending on social welfare
Technological analysis R&D centres
1031
900
25%
15%
26
11
Contribution of technological product export in GDP Rank in merchandise export Major technological
IT & ITES industry, Transportation,
IT, automobile, and chemical
chemical, engineering and machinery
sectors Current
Presence of large global and
Robust telecom sector Presence of large global and
strengths and
domestic players as well as
technological
unorganized sector, calling in for
domestic players, requiring hi-
challenges
varied technological needs
end technical needs. Labour laws thus needs to be at par with the
Labour law requirements are very
techno-savvy sector.
varied and has to be according to Rising R&D costs the Unorganized sector as well as the micro, small and medium and large enterprises’ requirements. 12
Rising R&D costs
Economic analysis Won
Rupee Monetary unit GDP
6.1% (2011-12)
4% (2010)
Rank in per
140th
15th
129th
12th
capita income PPP ranking
(world’s 12th largest economy) Minimum Wages
$ 689
$8974
7.5%
2.3%
(annual) Economic growth rate Current
Powerful export sector
Powerful export sector
strengths and
Lots of ambiguity in economic
Successful economic reforms Low level of imports. The import
economic
reforms due to political instability
challenges
and other reasons.
tariffs, duties and restrictions are
Low level of imports
highly regulated and as a result,
Increasing level of FDIs and FIIs as
the country’s import volume is
well as FPIs, thus requiring
considerably lower compared to
amendments in legislations and
other Asian neighbours Declining level of FDIs
various provisions. Low intensity of competitiveness
Low intensity of competitiveness, but much higher as compared to India.
Environmental analysis
Agriculture
Rice, wheat, mangoes, sugar cane, 13
Rice, root, barley, vegetables, fruits,
cow milk, fish, eggs, beans, okra Natural resources
cattle, pigs, chickens, milk, eggs, fish
Coal, oil, zinc, natural gas, copper, granite, iron ore, marble
Coal, tungsten, graphite, molybdenum, lead, hydropower, potential
Environment Performance
125th
43th
Tiger, dhole, fishing cat, Himalayan
Tiger, bear, lynx
Index Large Mammals
wolf National Park
98
20
Forest area
23.81%
30%
Current
Governmental intervention to
Strong governmental
strengths and
protect environment needs
intervention to protect
environmental
more improvement. The legal
environment
challenges
provisions have loopholes and
Limited natural resources. In
centralization of many activities
South Korea, 80% of the land
leads to delays for permissions,
is high mountains cover,
thus affecting employment, and
making it unusable for
other employment provisions.
farming and agriculture.
Unexplored natural resources.
The legal provisions related
The legal provisions related to
to various urban and hi-tech
various rural & agri industry
industry needs more
needs more emphasis.
emphasis.
Soil erosion
Political analysis Authority
Centralized
Centralized
President
Pranab Mukherjee (2012)
Park Geun-hye (2013)
Prime Minister
Manmohan Singh (2004)
Chung Hong Won (2013)
Government
United progressive alliances
Grand National Party
Chief Justice 14
P. Sathasivam
Yang Sung-tae
Indian national congress
Saenuri party
Leading party
Leading Bharatiya Janta Party (BJP)
Democratic United party
opposition party
Bharatiya Janta Party (BJP)
Democratic United party
No. of Strikes
226 (2005)
No. of Lockouts
228(2005)
opposition party Leading
Decentralization as well as
Centralization of power
strengths and
Centralization of the power,
Political will for economic
political
changing frequently due to
challenges
political changes. Thus, labour
Strong foreign relationships
laws cannot be amended in that
Military influence in South
Current
reforms
frequency, leading to many
Korean politics
hindrances.
Political violence
Political will for economic reforms
South Korea has been a
but lacks implementation.
member of the United
Political violence and instability.
Nations since 1991 and has
Good foreign relationships in
diplomatic relations with
general
almost 170 countries. Thus, its labour laws are in line with the global standards. Legal analysis
Constitution formed
1950
1949
Supreme legal
Common law system, constitution of
Civil law system, constitution of the
documents
India
republic of Korea
Law Based on
British legal system
Similar to Germany and U.S.A.
Judicial system
Supreme court, high court, district
Supreme court, constitutional court,
15
composed of
court
municipal court, district court
Numbers of high
24
6
court Strong judicial system but too
Regulatory incentives
strengths and
much staggering time to solve
Favorable tax policies
legal challenges
unsolved cases related to labour
An exclusive constitutional
Current
and the like.
court
Weak IPR enforcement. Laws need
Absence of juries
to be enforced in these areas, India
Inefficient customs operations
being a major IT hub.
Weak IPR enforcement
Ethical analysis Employees’ provident Fund and miscellaneous provision Act, 1952 Employees’ state Insurance Payment of Gratuity Act, 1972 schemes
Health insurance system,( Medical Aid programme,1977)
Act,1948 Social welfare
National Pension Fund
Medical insurance Industrial accident
Maternity benefit Act, 1961 Employee’s Compensation Act, 1923
compensation insurance Case benefits are nominally provided in case of nursing care maternity and death.
Working hours
48 (6 working day)
(hours a week)
40 (5 working day) Demographic analysis
Land area
1,147,949 sq. mi (2,973,190 sq. km)
37,421 sq. mi (96,920 sq. km)
Total area
1,269,338 sq. mi (3,287,590 sq. km)
38,691 sq. mi (100,210 km2)
Population
1,205,073,612
48,860,500 (growth rate: 0.204%)
(2011 est.)
(2012 est.)
20.6/1000
8.42/1000
Birth rate
16
Infant mortality
46.07/1000
4.08/1000
67.14
79.3
rate Life expectancy Capital
Largest cities
New Delhi, 21.72 million (2009 est.)
Mumbai 19.695 million; Kolkata 15.294 million; Chennai 7.416 million;
Seoul, 9.778 million (2009 est.)
Pusan, 3.439 million; Inchon, 2.572; Taegu, 2.458 million; Taejon 1.497 million.
Bangalore 7.079 million (2009)
(Source: Compiled by students)
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EXECUTIVE SUMMARY (Part-II) After the basic study of labour laws of South Korea and India, in Part-II a detailed analysis has been done related to the labour laws prevalent in the two countries. As laws differ from country to country, according to the needs of the labour and the system prevalent in the country, some major differences in the laws have been found out in the two countries. Objectives of the Part-II study are: 1. To understand each part of the labour laws, prevalent in India and South Korea. 2. To know about the SWOT of labour laws in India & South Korea. As per GTU guidelines we have included Micro analysis and SWOT analysis of labour law of South Korea and India, conclusion and suggestion in our report. Table 2 displays the summary of the major laws prevalent in South Korea and India under different categories: Table 2: Summary of South Korean and Indian laws under different category Sr.no
Topics
India
1
Laws related
Trade Union Act 1926
Act on the establishment,
to industrial
Trade unions are formed
operation, etc., of trade unions.
relation
South Korea
to primary function is to
protect and promote the
over 300 employees are
interests of workers against discrimination
unionised
and unfair labor
White collar union in the service industry has also
practices.
62.9% of large firms with
rising.
Out of the total of 27,137 registered unions in the 13 states , as many as 27,063 unions (99.73 percent) were Workers Unions and remaining 74 18
There are two national trade union centres in South Korea: the Korean Confederation of Trade Unions (KCTU) and the
(0.27 per cent) were
Federation of Korean Trade
Employer Unions.
Unions (FKTU). In 2007, the FKTU had 7,39,408 members (43.91% of trade unionists in Korea), the KCTU had 6,82,518 members (40.41%), and 265,156 workers were members of independent trade unions affiliated to neither national centre.
2
Laws related to wages
Minimum wages
Minimum wages-
Annual $ 689 & present
minimum wages is
1.45 per hour
Rs.115 per day Bonus
For blue-collar workers us $
Annual $8974
BonusMinimum 8.33% of salary
Paid bonuses six times a year
and wages or one
each time in the amount
hundred rupees
equivalent to 100% or 150%
whichever is higher
of the standard monthly
Employee who has not
wages
completed 15 years of
In larger Korean companies,
age at beginning of the
ranging from 400% to 800%
accounting year, the
of the monthly basic pay,
minimum bonus payable
typically paid in installments
is 8.33% or sixty rupees
on the two major Korean
whichever is higher.
holidays (Korean Thanksgiving and the Lunar New Year).
19
3
Laws related to Working Hours, working
Working hours
45 hours a week
9 hours a day if a worker
safety in India
40 hours and 5 working days per week
works 5 days or less a
Conditions, health and
Working hours-
week
8 hours a day if a worker works 6 days a week
Holidays
Holidays
Employees do not miss a day
A worker can take up to
of work in full year are
21 continuous days
entitled to 15 days paid
annual leave or by
vacation and additional day
agreement, 1 day for
for each two years
every 17 days worked or
There are 16 national holidays.
1 hour for every 17 hours worked.
There are 3 national holidays.
Health and safety-
Health and safety-
Under Factories Act 1948-
Occupational Safety and Health Act-
Provisions regarding
environment monitoring.
health of the worker sec
11 to 20.
Article no. 6 duties of worker.
to 40A, B and 41.
Article no. 4 duties of government.
Provisions regarding safety of workers sec 21
Article no. 42 work
Provision regarding
safety and health marks.
welfare of worker sec 42
to 50. 20
Article no. 12 attachment of
Article no. 19 to 29
Rules regarding
occupational safety and
employment of adults
health committee.
sec 57 to 63. 4
Laws related
Indian constitution guarantees
to Equality
equal right to both the sexes and
prevention and relief act,
and
does not discriminate on the
1999
Empowermen
basis of age, colour and creed.
Article no.6 expressly
t of Women
Empowerment of women –
1. Gender discrimination
prohibits discrimination based on
-
Factories Act 1948 sec 12
-
Gender
-
Employees State
-
Nationality
Insurance Act 1948,
-
Religion
about claim and
-
Social status
maternity benefit sec 13
-
Age
and sec 50.
2. Equal Employment Act,1987
Plantation Labour Act 1951, - This act is on equal
about crèches (sec 48
employment and support for
Factories act 1948)
work-family reorganization. -
-
The Maternity Benefit
- Maternity right
Act 1988 amended
- Paternity rights
The Equal Remuneration
- Women’s rights and welfare
Act 1976
- Parental rights - Career’s right - Protection from harassment
5
Laws related to deprived and disadvantage
Child Labour Act 1986
1. Gender discrimination
Employment of children below 14 & 15 years in certain prohibited 21
prevention and relief act, 1999 Article no.6 expressly
d sections
employments
prohibits discrimination
Procedure and conditions
based on
for employment
Penalties for violation of
-
Gender
act.
-
Nationality
-
Religion
-
Social status
-
Age
2. Disabled Person Act 2007
Prohibits discrimination
against hiring, promotion and job transfer.
Provision regarding
accommodation and facilities for disabled and female employees. 6
Laws related
1. Social security benefits
Protection for harassment.
1. National Pension Scheme
to Social
are covered by Factories
2. National Health Insurance
Security
Act 1948, Shops
Act
Commercial
3. Employment Insurance
Establishment Act and
4. Many social security
Industrial Employment
schemes are under
Standing Order Act 1946.
-
2. Employees State
Different laws and health
programme.
Insurance Act 1948
-
Contract with company
- Medical care to the
-
Or through private insurance
employees and their family member. - Payment in case of death and disablement. 22
coverage
3. Employees Provident Fund And Miscellaneous Provisions Act 1952 - Benefits to employee’s provident fund and super animation and pension and family pension in case of death during service. 4. Employees Compensation Act 1923 -
Compensation to workmen in case of employment related and his family in case of injury, death and disability
5. Maternity Benefit Act 1961 - Wages during maternity and paid leave in other related contingencies. 6. Payment Of Gratuity Act 1972 - Provide 15 days wages for each year of service worked for 5 years or more in having minimum 10 workers. 23
7
Related to lay
Under Industrial Dispute Act
off and
1947
dismissal
-
-
Under Labour Act 19 - Regarding misconduct, poor
Different committees and
performance, lay off for economic
other provisions regarding
reason, protection against
discharge, dismisses,
dismissal, procedural requirement
retrenches and other
for layoff.
terminates the service.
- As no committees are there so
Final Decisions taken by
Decisions are taken by district
Supreme Court.
court and Supreme Court.
(Source: Compiled by students)
24
Labour law arose due to the demands of workers for better conditions, the right to organize, and the simultaneous demands of employers to control the powers of workers in many organizations and to keep labour costs low. So according to the need of the labours there are many laws in both the countries like for Safety, Wages, Deprived sections etc. Table 3 shows the Classification of the major laws for South Korea and India. Table 3: Classification of South Korea and Indian laws related to labour and industry Sr.no.
Topic
1
Laws related to
1. Trade Unions Act, 1926
1. Labour standard act
Industrial
2. Industrial Employment
2. Labour relations
Relations
India
South Korea
Standing Order Act, 1946. 3. Industrial Disputes Act, 1947.
commission act 3. Act on the establishment, operation, etc., of trade unions.
2
Laws related to Wages
1. Payment of Wages Act, 1936
1. Enforcement decree the wage claim guarantee act
2. Minimum Wages Act, 1948
2. Wage claim guarantee act
3. Payment of Bonus Act,
3. Minimum wage act
1965.
4. Act on the collection, etc.
4. Working Journalists (Fixation of Rates of Wages
Of premiums for employment.
Act, 1958 3
Laws related to
1. Factories Act, 1948.
Working Hours,
2. Merchant Shipping Act,
Conditions of Service and Employment
1958.
1. Act on the protection, etc. Of fixed-term and parttime
3. Motor Transport Workers Act, 1961. 28
2. Certified labour affairs consultant act
4. Contract Labour (Regulation & Abolition) Act, 1970. 5. Sales Promotion Employees 25
3. Framework act on employment policy 4. Enforcement decree of the
Act, 1976.
act on employment
6. Inter-State Migrant Workmen (Regulation of
promotion 5. Act on employment
Employment and Conditions
promotion and vocational
of
rehabilitation
7. Service) Act, 1979. 8. Dock Workers (Safety, Health & Welfare) Act, 1986. 9. Building & Other Construction Workers (Regulation of Employment & Conditions of Service) Act,1996 10. Building and Other Construction Workers Welfare Cess Act, 1996 11. Dangerous Machines (Regulation) Act, 1983 12. Dock Workers (Regulation of Employment) Act, 1948 13. Industrial Employment (Standing Orders) Act, 1946
26
4
Laws related to
1. Maternity Benefit Act, 1961
Equality and
2. Equal Remuneration Act,
Empowerment of
1976.
3. Gender discrimination prevention and relief act, 1999
Women
4. Equal employment act,1987 5. Act on equal employment and support for workfamily reorganization
5
Laws related to deprived and
1. Child Labour (Prohibition & Regulation) Act, 1986
Disadvantaged
2. Children (Pledging of
Sections of the
Labour) Act, 1933
Society
27
1. Act on prohibition of age discrimination in employment.
6
Laws related to Social Security
1. Workmen’s Compensation Act, 1923.
1. Employment security act 2. Employee retirement
2. Employees’ State Insurance Act, 1948.
benefit act 3. Certified labour affairs
3. Employees’ Provident Fund & Miscellaneous Provisions Act, 1952.
consultant act 4. Industrial accident compensation insurance
4. Payment of Gratuity Act, 1972.
act 5. Act on the promotion of
5. Employers’ Liability Act, 1938
worker participation and cooperation
6. Personal Injuries (Compensation Insurance) Act, 1963
6. Occupational safety and health act 7. Enforcement decree of
7. Unorganised Workers’ Social Security Act, 2008
the industrial accident compensation 8. Enforcement decree of the framework act on labour welfare 9. Framework act on labour welfare 10.
Act on
employment promotion and vocational rehabilitation 11.
Enforcement
decree of the act on employment promotion (Source: Compiled by students)
28
Laws related to Industrial Relations in India Trade Unions Act "Trade Union" means any grouping, whether short-term or permanent, formed primarily for the purpose of regulating the relations between employers and workmen or between employers and employers, or between workmen and workmen, or for imposing restrictive situations on the conduct of any trade or business Trade unions are made to promote and protect the interests of their members. Their main function is to protect the interests of workers against discrimination and unfair labor practices. Functions of Trade unions (i) Militant functions (a) To achieve higher wages and better working conditions (b) To raise the status of workers as a part of industry (c) To protect labors against victimization and injustice (ii) Fraternal functions To take up welfare measures for improving the morale of workers To generate self confidence among workers To encourage sincerity and discipline among workers To provide opportunities for promotion and growth To protect women workers against discrimination Importance Of Trade Unions Trade unions help in accelerated pace of economic development in many ways as follows: by helping in the recruitment and selection of workers. by inculcating discipline among the workforce 29
by enabling settlement of industrial disputes in a rational manner by helping social adjustments. Workers have to adjust themselves to the new working conditions, the new rules and policies. Workers coming from different backgrounds may become disorganized, unsatisfied and frustrated. Unions help them in such adjustment.
Social responsibilities of trade unions include: promoting and maintaining national integration by reducing the number of industrial disputes incorporating a sense of corporate social responsibility in workers achieving industrial peace Reasons for Joining Trade Unions Greater Bargaining Power Minimize Discrimination Sense of Security Sense of Participation Sense of Belongingness Platform for self-expression Betterment of relationships
30
Trade Union In India Development of modern industry, especially in the Western countries, can be traced back to the 18th century. Industrial development in India on Western lines, however commenced from the middle of the 19th century. The first organised Trade Union in India named as the Madras Labour Union was formed in the year 1918. Since then a large number of unions sprang up in almost all the industrial centres of the country. Similarly, entrepreneurs also formed their organisations to protect their interests. In 1926, the Trade Unions Act was passed by the Indian Government. The Act gave legal status to the Registered Trade Unions. The Administrators of Trade Unions in different states were empowered to record the Trade Unions in their particular states. These registered Trade Unions (Workers & Employers) are required to submit annual statutory return to the Registrar regarding their membership, General Funds, Sources of Income and Items of Expenditure and details of their assets and liabilities, which in turn submit consolidated return of their state in the prescribed proformae to Labour Bureau.
The Labour Bureau on receiving the annual returns from different States/Union Territories, consolidates the all India statistics and disseminates them through its publication entitled the Trade Unions in India and its other regular publications.
Trade Unions Act, 1926 provides for the registration of the Trade Unions with the Registrars of Trade Unions of their territory. Any seven or more persons of a trade union by submitting their names to the registrar of trade unions and or else complying with the provisions of the Act with respect to registration may apply for the registration of the Trade Union under the Trade Unions Act. The Act gives protection to registered trade unions in certain cases against civil and criminal action.
The Statistics presented in this review are based on the returns/reports received from the States/Union Territories in the format provided for in the Act and the figures cover only the registered trade unions. However the response rate from the States/Union Territories is not very encouraging. During 2002, only 31
21.0 percent of the registered trade unions from 17 States/Union Territories submitted the prescribed returns to the concerned authority; who in turn have furnished the consolidated returns to the Bureau Objective :To confer a legal and corporate status on registered trade unions Scope and Coverage: Applicable to unions of workers as well as associations of employers in the whole of India A central legislation but administered and enforced by the State Government Main Provisions: Defines trade union Registration of a trade union by any seven or nine workers of an establishment on applying with a copy of the rules of the union, the name and address, and the list of office bearers Obligations & rights of registered trade unions
Industrial Relation Policy Prior to 1991, the industrial relations system in India sought to control conflicts and disputes through excessive labor legislations. With the coming of globalization, the 40 year old policy of protectionism proved inadequate for Indian industry to remain competitive as the lack of flexibility posed a serious threat to manufacturers because they had to compete in the international market. With the advent of liberalization in1992, the industrial relations policy began to change. Now, the policy was tilted towards employers. Employers opted for workforce reduction, introduced policies of voluntary retirement schemes and flexibility in workplace also increased. Thus, globalization brought major changes in industrial relations policy in India.
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Trade Unionism In South Korea Evolution of employment relations in Korea •
Up until the early 1960s, Korea was an agricultural economy with 63% of the labour force employed in the primary sector.
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Transformation to export-oriented industrialisation over the next three decades was led by the state.
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The ‘Korean model’ of government-led economic development included the following: – goals and policies for economic development were set by the authoritarian government – the government dominated the allocation of capital and industrial technology – the government assisted the growth of chaebols – business conglomerates which are still dominant in Korea’s economic structure today
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From 1962-1987, employment relations were controlled by government interventionist policy aimed at securing cheap and strike-free labour.
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Collective action by employees to form labour unions and strike was prohibited and employers unilaterally set wages and conditions.
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Trade unions were weak, but membership steadily grew in the 1960s and 70s.
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Until 1987, employment relations were dominated by state authority and employers’ interests.
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There was huge change and growth in the union movement in the late 1980s.
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62.9% of large firms with over 300 employees are unionised, even though union density is very low at 10%.
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The most heavily unionised industrial sector was the textile sector. This shifted to the metal and chemical industries as Korea’s economic structure changed. 33
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Since 1987, male-dominated unions in heavy industries have led the union movement.
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Membership in white-collar unions in the service industry has also risen.
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In the 1980s, new unions espousing ‘democratic unionism’ formed federations separate from the Federation of Korean Trade Unions (FKTU), and were recognised as the KCTU in 1995.
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Today the labour movement is divided between the FKTU and KCTU; the KCTU pursues militant activism and the FKTU is more conciliatory with the government and employers.
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The majority of unions are enterprise-based and bargain at the firm level, but since the late 1990s unions have tried to return their structure from enterprise to industrial unionism in order to establish a centralised bargaining system and strengthen their socio-political power.
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The Korea Health and Medical Workers Union, the Korea Finance Industry Union, the Korea Metal Workers Union and other unions transformed in this way from 1998 onwards.
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Recently, non-standard workers have attempted to organise community-based general unions.
Trade union developments from the 1980s •
The Great Labour Struggle in 1987 broke out following democratisation. It saw the end of the state-controlled industrial relations system, and the government officially recognised the autonomy of unions and management in dealing with workplace issues.
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The labour movement experienced enormous growth in the late 1980s as a result: the number of trade unions tripled and membership and density soared.
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Unions in many large firms took control of the shop floor and management was forced to improve wages and working conditions and establish corporate welfare programs.
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Union membership and density began dropping in early 1990s due to the economic slump, government neo-interventionist labour policies, better wages and working conditions, and declining public support for militant unionism after the collapse of the communist bloc.
Korean employers and employer associations •
Until 1987, employers imposed authoritarian supervision over workers. 34
•
After the expansion of labour power in 1987, management control was eroded and shop-floor control was taken over by labour unions in many firms.
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From the 1990s, employers began to take a hard-line stance and launched ‘new management strategies’ (new personnel policies, flexible working systems and union suppression strategies).
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With the 1996-97 economic crisis, many public and finance sector organisations as well as large private firms undertook major restructuring including downsizing, increased employment of nonstandard labour and outsourcing.
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This was a clear break from previous employment practices that relied on internal labour markets (similar to the Japanese model).
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There are three important employer bodies: 1) the Korea Employers Federation (the official voice of employers at the national level) 2) the Korean Chamber of Commerce and Industry 3) the Federation of Korean Industries
Government •
The government is the biggest employer in Korea and exerts influence over private sector employment relations through the results of its own collective bargaining with unions in the public sector.
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The government was an authoritarian regulator of employment relations until 1987, suppressing collectivism and stimulating economic activity and jobs.
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It adopted a social dialogue paradigm after 1987, hoping to promote peaceful and cooperative relations between unions and employers through the adoption of this tripartite model involving various wage negotiations, policy consultations and most recently an expansion of consultation agenda in 2007.
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But social dialogue has l.ittle legitimacy amongst unions who see it as a continuation of government dominance and ineffectual in solving labour market polarisation problems.
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The Ministry of Labour covers labour standards, IR, employment insurance and equality, vocational training and occupational safety.
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Regional labour inspectors police and supervise working conditions in accordance with the Labour Standards Act, and take action to prevent and deal with labour disputes.
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The Labour Commission adjudicates unfair labour practices, dismissal, discrimination and mediates labour disputes.
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The Minimum Wage Commission determines minimum wages yearly.
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Unions are also critical of the Ministry of Labour for prioritising economic growth over improving industrial relations.
The Korean Ministry of Labour (MOL) publicized on 18 September 2008 that as of December 2007, 10.81% of workers in South Korea were in trade unions, a 0.51% increase from 10.32% in 2006. Korea’s unionization rate peaked in 1989 at 19.82% and fell to 10.1% 2004. There are two national trade union centres in South Korea: the Federation of Korean Trade Unions (FKTU) and the Korean Confederation of Trade Unions (KCTU). In 2007, the FKTU had 7,40,408 members (43.92% of trade unionists in Korea), the KCTU had 6,82,518 members (40.4%), and 265,156 workers were members of independent trade unions affiliated to neither national centre.
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Collective bargaining and labour dispute resolution The Industrial Disputes Act in India In India, according to the Industrial Disputes Act (1947), industrial dispute means any incongruity or difference between employers and workers, between employers and employers, or between workers and workers, which is linked or with the conditions of labour, with the employment or non-employment or the terms of employment of any person. Where some employer dismisses, discharges, retrenches or otherwise terminates the services of an individual worker, any difference or dispute between that worker and the employer connected with or arising out of such dismissal, discharge, retrenchment or termination is treated as an industrial dispute, notwithstanding that no other worker or any union of workers is a party to the dispute. IDA - is an Act to make provision and settlement of Industrial Disputes with the objective to maintain industrial peace and economic justice. IDA categories employees into workman and non-workman. Section 2 (s) of IDA defines workman. “Workman” means any person employed in any industry to carry out manual, skilled and unskilled, technical, operational, clerical or supervisory work for hire or reward. The definition specifically excludes – persons employed in managerial or administrative capacity and also those persons (otherwise falling within the definition of workman) Causes of Industrial Disputes The causes of industrial disputes can be broadly classified into two categories: economic causes The economic causes will include issues relating to compensation like wages, bonus, allowances, and conditions for work, working hours, leave and holidays without pay, unjust layoffs and retrenchments. non-economic causes
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The non economic factors will include victimization of workers, ill treatment by staff members, sympathetic strikes, political factors, indiscipline etc.
The Industrial Disputes Act in South Korea •
Collective bargaining is regulated by the Trade Union and Labour Adjustment Act (the Act) and is conducted primarily at the enterprise level.
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Collective bargaining for a wage contract is held every year in most firms and every two years for working conditions.
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The FKTU and KCTU and the employer association have substantial influence on enterprise-level bargaining.
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Industrial unions have demanded centralised bargaining and some unions have made progress in contracting national agreements with employer associations.
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The Act requires disputing parties to enter into mediation with the Labour Commission and abolishes compulsory arbitration and strike action.
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Previously, the government was able to arbitrate disputes involving public firms providing essential services.
Labour-management council •
The Labour-Management Council (LMC) is an institutionalised channel for promoting communication and cooperation between employees and management.
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The Labour-Management Council Act (1980) required all organisations with 50+ workers to establish a council, but only a limited number of firms established LMCs before 1987. After democratisation, the number of LMCs grew.
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The Act Concerning the Promotion of Worker Participation and Cooperation replaced the LabourManagement Council Act in 1997 and the number of firms with an LMC grew dramatically. 38
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An LMC is composed of equivalent numbers of employee and management councils.
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Many unions use LMC meetings as an extension of their collective bargaining while top management at many firms is indifferent to the feasibility of cooperation and communication promoted by the LMC.
Key issues: transformation of IR system •
The number of labour disputes surged after 1997 and, although it has dropped recently, IR is still unstable due to deep-seated mistrust amongst the parties. This instability has constrained economic competitiveness.
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Disputes are related to restructuring, non-standard employment and industrial bargaining.
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National labour centres have launched campaigns to organise non-standard workers, and workers themselves have attempted to organise unions and take collective action. This tends to be met with fierce resistance by employers.
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After laws to protect non-standard workers were introduced in 2006, many firms replaced nonstandard workers with subcontractors to avoid their legal obligations.
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Industrial unionisation has been successful but these unions are confronted by low organisational representation, limited resources, and opposition from employers.
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Further challenges to unions are posed by legislation prohibiting wage payments to union officials and permitting multiple unionisation at the enterprise level.
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Law Related to Wages of India A company must formulate its wage and salary policy in an integrated manner by taking into account the overall objectives of setting up the business. This is because a remunerative wage structure helps the organisation in obtaining and retaining a healthy, competent and devoted work force, which in turn affects its profitability as well as productivity. Such a wage policy acts as a dominating force in motivating the employees to contribute their maximum worth to the enterprise. Wages refers to all remuneration (whether by way of salary, allowances, or otherwise) expressed in terms of money which would (if the terms of employment, express or implied, are fulfilled) be payable to a person employed in respect of his employment or of work done in such employment. It includes:- (i) any remuneration payable under any award or settlement between the parties or order of a Court; (ii) any remuneration to which the person employed is entitled in respect of overtime work or holidays or any leave period; (iii) any sum which by reason of the termination of employment of the person employed is payable under any law, contract or instrument which provides for the payment of such sum, whether with or without deductions, but does not provide for the time within which the payment is to be made; (iv) any sum to which the person employed is entitled under any scheme framed under any law for the time being in force. There are three main legislations governing wages. The payment of wages may also include the provision of extra lump-sum income which is awarded by an organisation to its employees usually on an annual basis. Such income is known as bonus and may be provided to the employees on special occasions like festivals, New Year and other important celebrations. This enables an employee to buy goods and services which can improve his way of life. Some firms even distribute bonus to its employees as a token for their contribution in the high performance of the firm. All such gestures by an enterprise help in boosting the confidence of the employees in their efforts as well as in the organisation. As per the 'Committee on Fair wages', there are three distinct levels of wages:- (i) Living wage represents a standard of living which provides not merely for a bare physical subsistence, but for the maintenance of health and decency, a measure of frugal comfort including education for children, protection against ill-health, requirements of essential social needs and some insurance against the more important 40
misfortunes; (ii) Minimum wage ensures not merely the bare sustenance of life, but the preservation of the efficiency of the worker by providing some measure of education, medical requirements and amenities. Thus, the minimum wage prescribes the lower limit while the upper limit is set by the capacity of the industry to pay; (iii) Fair wage is the wage which is above the minimum wage but below the living wage. The laws and matters relating to wages and bonus come under the purview of the Ministry of Labour and Employment. Within the Ministry, Central Industrial Relations Machinery (CIRM) enforces all the labour legislations and the rules framed there under. CIRM is an attached office of the Ministry and is also known as the Chief Labour Commissioner (Central) [CLC(C)] Organisation. The CIRM is headed by the Chief Labour Commissioner (Central). Also, wage celland wage board have been set up for the purpose. Here, there are three wages act which are very important they are given below: Payment of wages act Minimum wages act 1948 Payment of bonus act Payment of wages act The Payment of Wages Act- 1936 is a dominant legislation which has been enacted to control the payment of wages to workers employed in definite specified industries and to ensure a speedy and effective remedy to them against illegal assumptions and/or unjustified delay caused in paying wages to them. It applies to the people employed in a factory, industrial or other founding or in a railway, whether directly or indirectly, through a sub-contractor. Further, the Act is applicable to employees drawing wages upto Rs. 1600/- a month. The Central Government is responsible for enforcement of the Act in railways, mines, oilfields and air transport services, while the State Governments are responsible for it in factories and other industrial establishments.
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The basic provisions of the Act are as follows:
The person responsible for payment of wages shall fix the wage period up to which wage payment is to be made. No wage-period shall go above one month
All payment of wages shall be made on a working day. In railways, factories or industrial establishments employing less than 1000 persons, wages must be paid before the expiry of the seventh day after the last date of the wage period. In all other cases, wages must be paid previously the expiry of the tenth day after the last day of the wage period. However, the wages of a worker whose services have been terminated shall be paid on the next day after such termination.
While the wages of an employed person will be paid to him without any deductions of any kind, the Act permits deductions from the wages of an employee on the account of the following:- (i) absence from duty; (ii) fines; (iii) housing accommodation and amenities providing by the employer; (iv) damage to or harm of goods expressly entrusted to the employee; (v) recovery of advances or alteration of over-payments of wages; (vi) retrieval of loans made from any fund constituted for the welfare of labour in accordance with the rules approved by the State Government, and the interest due in respect thereof; (vii) subscriptions to and for repayment of advances from any provident fund;(viii) income-tax; (ix) payments to co-operative societies accepted by the State Government or to a scheme of insurance preserved by the Indian Post Office; (x) deductions made with the written authorisation of the employee for payment of any premium on his life insurance policy or buying of securities.
The Act prescribes following rules for fines:
Fines shall be imposed for approved list of acts and omissions.
A notice stipulating such list shall be exhibited in the arranged manner on the premises in which the employment is approved on or at the prescribed places in case a person is employed in railways.
No fine will be imposed on any employed person until he has been given an chance of showing cause against the fine, or other-wise, than in agreement with such procedure as may be prescribed for the burden of fines.
No fine shall be imposed on any employed person who is under the age of fifteen years. 42
The entire amount of fine which may be imposed in some one wage period on any employed person shall not surpass an amount equal to three per cent of the wages payable to him in respect of that wage-period.
No fine imposed on any employed person shall be recovered from him by instalments or after the expiry of sixty days from the day on which it was imposed.
All charges and all realisations thereof will be recorded in a register to be kept by the person responsible for the payment of wages.
Hence, the main object of the Act is to eliminate all malpractices by laying down the time and mode of payment of wages as well as securing that the workers are paid their wages at regular intervals, without any unauthorised deductions. The Act was amended by the Payment of Wages (Amendment) Act, 2005Rs. in order to enlarge its scope and provide for more effective enforcement. The main amended provision is the enhancement of wage ceiling from 1600/-per month to Rs. 6500/-per month for the applicability of the Act as well as empowering the Government to enhance the ceiling by notification in future.
Minimum Wage Act The Minimum Wages Act, 1948 is an Indian legislation enacted by the Parliament of India for statutory fixing of minimum wages to be paid to skilled and unskilled labours. The Indian Constitution has defined a 'living wage' that is the level of income for a worker which will ensure a basic standard of living including good health, dignity, comfort, education and provide for any contingency. However, to keep in mind an industry's capacity to pay the constitution has defined a 'fair wage'. Fair wage is that level of wage that not just maintains a level of employment, but seeks to increase it keeping in perspective the industry’s capacity to pay. To achieve this in its first session during November 1948, the Central Advisory Council appointed a Tripartite Committee of Fair Wage came up with the concept of Minimum Wages. A minimum wage is such a wage that it not only guarantees bare subsistence and preserves efficiency but also provides for education, medical requirements and some level of comfort. India introduced the Minimum Wages Act in 1948.The act is legally non-binding, but statutory. Payment of wages below the minimum wage rate amounts to forced labour. Wage Boards are set up to review the industry’s capacity to pay and fix minimum wages such that they at least cover a family of four’s requirements of calories, shelter, clothing, medical assistance, medical assistance, and entertainment. Under the law, wage rates in scheduled employments differ across states, skills, sectors, regions and occupations owing to 43
difference in costs of living, regional industries’s capacity to pay, consumption patterns, etc. Hence, there is no single uniform minimum wage rate across the country and the structure has become overly complex.
Fixation and revision of minimum wages The Minimum Wages Act, 1948 generally specifies minimum wage rates which is on a per day basis and extends to the entire country and is revised within a period of not less than five years, however there is a provision to increase dearness allowance every two years. The norms in fixing and revision of minimum wages were first recommended by ILC, 1957. Revision of minimum wage rates is based on a 'cost of living index' and wages can be fixed for an entire state, part of the state, class or classes and employments pertaining to these categories. The fixation of wages is based on the norms mentioned and a wage board (different for different industry). Under the Minimum Wages Act, State and Central Governments have the power to fix and revise minimum wages. The act specifies that the "appropriate" government should fix the wages i.e. if the wages to be fixed are in relation to any authority of Central government or Railway administration then the Central government fixes it. However if the wage rate is to be fixed or revised for a scheduled employment, the respective state governments fix it. The Centre fixes the National floor level Minimum Wage that is lower than most states' respective minimum wages. The ambiguity and overlap in the jurisdiction of both these tiers of government have caused debates and controversies. One of such debates revolves around fixing wage rates of MGNREGA scheme, an employment guarantee initiative by the Central Government.
Minimum wages for specific groups The Minimum wage legislation or provision aims to provide all workers who enter the labour market with a legal minimum wage for their labour that is sufficient for subsistence. There are special provisions or acts enacted to protect the interests of certain types of labour, since they might not be working in the organised sector or may be excluded because of discriminatory nature of the labour market, because sometimes the employers have a taste for discrimination. Indian Minimum Wage Legislation states the specific minimum wage rates may be established for apprentices/trainees, youth, and piece-rate workers.
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Issues In India, 42% of all wage earners are receive wages below the national minimum wage floor rate. The data used for these statistics includes half of casual labourers and 1/4th of those salaried. Female workers and those in rural areas are more likely to be paid below a minimum wage. Those who are illiterate or have no mid-level education are most likely to be paid below a minimum wage. In sum, the implementation and enforcement of minimum wages is dismal and marginalised groups and communities suffer the most. The government has announced that many amendments are underway to improve enforcement such as penal action against violations and mandatory revision of minimum wages every 5 years. • Large Unemployment: Ensuring a payment at the minimum wage rate does not ensure employability to a willing worker. Many workers out of desperation then accept a wage below the minimum wage. Workers are too weak and vulnerable to demand their rights and after liberalisation, collective rights to have grown weaker with decreasing power of trade unions. These two factors combined give the employer the capacity to offer employment at wages below the minimum wage rate. There have also been cases where workers are paid wages below the minimum wage floor in government funded road and construction projects. • Exemptions from payment of Minimum Wages: Government projects have been known to resort to various channels for paying wages below the minimum wage rate. They use methods such as special notifications and exemption clause (26-2) of the Minimum Wages Act. The parliamentary subcommittee, 1987 noted that wages of government programs such as NREP and RLEGP were below the prescribed minimum wage rate. Many professions and industries do not fall under the coverage of the act, for the simple reason that no minimum wage has yet been prescribed, hence employers pay wages on their own discretion. • Less protection against inflation: Real least wage rates may decline in the face of accelerating inflation for three key details. Firstly, wages are not revised as frequently as prescribed in the norms i.e. not more than 5 years. In fact it is believed that revision every 3 years and even alternate years not only to help workers from increasing costs of living but also to improve supervision of the act. Secondly, many states do not provide for dearness allowance, a safeguard against inflation and finally minimum wages are not linked to a cost of living index.
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• Terminology: The government and its committees have define three types of wages, mainly 'living wage', 'minimum wage' and 'Fair wage'. These concepts are vague in definition and correspond to a utopia where the government and industry could afford them. • Lack of awareness: Several citizens are not alert of the existence of a statutory provision that ensures a minimum wage rate. "80% of workers earn less than INR 20/day or less than half of government stipulated minimum wage rate”. On certain instances of doubt among workers on existence of a minimum wage rate, officials have denied claims of any statutory act or legislation. • Delays and inaction: There are delays in appointment of committees for fixation, revision and implementation. A lot of industries and industries do not fall under the purview of the act as their specific minimum wage rates are yet to be fixed. Permanent Labour Inspectors have not been posted in many districts and those posted are known to not visit their districts regularly. Payments of bonus act The Payment of Bonus Act, 1965 was ratified to provide for the payment of bonus to persons employed in certain establishments on the basis of productivity or profits and for the matters connected therewith. The payment of bonus Act applies to:(i) Every other establishment in which twenty or more persons are employed on any day during an accounting year and (ii) every factory as defined under the Factories Act, 1948;. However, the Government may, after giving two months notification in the Official Gazette, make the Act applicable to any factory or establishment employing less than twenty but not less than ten persons. The key provisions of the Act are:
According to the Act, the term 'employee' means "any individual employed on a salary or wage not above three thousand and five hundred rupees per men in any industry to do any unskilled or skilled manual, supervisory, administrative, managerial, technical or clerical work for hire or reward, whether the terms of employment be express or implied".
An employee is enabled to be paid by his employer a bonus in an accounting year subjected to the disorder that he/she has worked for not less than 30 working days of that year.
An employer shall pay minimum bonus at the rate of 8.33% of the salary or wages earned by an employee in an year or one hundred rupees, whichever is higher or more. Here it is not 46
compulsory that the employer has any allocable surplus in the accounting year. However, where an employee has not completed fifteen years of age at the beginning of the accounting year, the minimum bonus payable is 8.33% or sixty rupees, whichever is higher or more.
In any accounting year, if the allocable surplus exceeds the amount of minimum bonus payable to the employees, the employer shall in lieu of such minimum bonus, be bound to pay bonus (maximum bonus) equivalent to the amount which shall not exceed 20% of the salary or wages earned by employees.
All amounts payable to an employee by way of bonus under this Act shall be paid in cash by his employer within a month from the date on which the award become enforceable or the settlement comes into operation, in respect of any dispute regarding payment of bonus. But, in any other case, it shall be paid within a period of eight months from the close of the accounting year.
.However, the Government may order, upon receiving application made to it by the employer and for sufficient reasons, to extend the staid period of eight months to such further period or periods as it thinks fit, such that that the total period so extended shall not, in any case, exceed two years.
Where in any accounting year, any amount has been carried forward and set off or set on, then in calculating bonus for the succeeding accounting year, the amount of set on or set off carried forward from the earliest accounting year shall first be taken into account.
An employee shall be disqualified from receiving bonus if he/ she is dismissed from service because of (i) fraud; or (ii) theft, misappropriation or sabotage of any property of the establishment. (iii) Riotous or violent behaviour on the premises of the establishment.
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Laws related to Wages of South Korea Wage and Severance Pay In principle, workers shall be paid their full wages on a specific day each month. If a worker demands wages in an emergency situation, like childbirth, sickness, accident, etc., the amounts of wages corresponding to the amount of work offered shall be paid even before payday.
If a worker has worked for more than one year in a workplace with 5 workers or more, than in this situation the worker shall be given severance pay in the amount of at least 30-day average wages for each year of service. Severance pay, in principle, should be paid after retirement.
An employer may take out retirement insurance to ensure that his/her workers can draw pensions form the insurance after their retirement. Daily construction workers could not receive statutory severance pay due to the unique nature of their employment such as frequent job transfer, difficult employment conditions, etc.
So, the government introduced the Mutual Retirement Aid System for Construction Workers with the enactment of the Act on the Employment Improvement, etc. of Construction Workers in January 1998. Under this system, construction workers are required to put one mutual retirement aid stamp for each of their working day on their welfare pocket books. If they collect more than 252 such stamps corresponding to one year of service, they will be given retirement pay after retirement.
since July 1, 1998, the government has implemented the Wage Claim Guarantee System that guarantees to pay workers who retire from a bankrupt company part of their unpaid wages. Because it is difficult for workers to claim their unpaid wages in the event of corporate bankruptcy, the government, on behalf of employers, guarantees to pay workers overdue wages, unpaid wages of final three months, shutdown allowance and severance pay of final three years.
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Minimum Wage System This Minimum Wage Act in South Korea was brought about in 1986 and passed in 1988. This act was passed to stabilize the lives of low-income workers. When passed, this act applied only to manufacturing companies employing 10 or more workers. The Minimum Wage Act, which aims to stabilize the livelihood of low-income workers and narrow wage gap, has been in force since 1988. In 1988, the Minimum Wage System applied only to manufacturing enterprises with ten or more regular employees. From 1989, the system began to cover manufacturing, construction, and mining enterprises with ten or more regular employees. Since 1990, the system has applied to all enterprises employing ten or more regular employees. The coverage of the Act was extended to workplaces with 5 employees or more in September 1999, and further extended to all workplaces on November 24, 2000. The government sets and announces the minimum wage no later than August 5 of every year, and the minimum wage applies from September 1 of each year to August 31 of the following year. The minimum wage applicable from September 1, 2003 to August 31, 2004 is 2,510 won per hour (20,080 won for a standard 8-hour work day). Workers under the age of 18 can receive 89% (hourly rate of 2,267 won) of the minimum wage for the first six months of their employment. Even workers under 18 become entitled to full minimum wage, if their employment period is more than 6 months. The minimum wage for all workers rose to 5,210 per hour as of 01 January 2014. Minimum wage workers will now receive 1.09 million won a month for 40 hours work a week.
Remedy of Late Payment of Wages If a worker retires or dies an employer will pay the wages, compensations, and other money or valuables within 14 days after the cause for such payment has happened; however, the period, under special circumstances, may be protracted by the mutual agreement between the parties worried A person who has dishonoured the said provisions will be punished by imprisonment of up to three years or a fine up to 21 million won (article 112 of the Labour Standards Act). 49
Laws Related to Working Hours, Working Conditions, Health and Safety in India The Act applies to all workers and employers except members of the National Defence Force, National Intelligence Agency and unpaid volunteers working for charities. Working Time This section does not apply to senior managers (those who can hire, discipline and fire), sales staff who travel and workers who work less than 24 hours a month. Ordinary Hours of Work A worker must not work more than:
45 hours in any week.
Nine hours a day if a worker works five days or less a week.
Eight hours a day if a worker works more than 6 days a week.
Overtime If overtime is needed, workers must agree to do it. They may not work for more than three hours overtime a day or ten hours overtime a week. Overtime must be paid at 1.5 times the workers' normal pay or, by agreement, get paid time off. More flexibility of working time can be negotiated if there is a collective agreement with a registered trade union.
Compressed work week: We may agree to work up to 12 hours in a day and work fewer days in a week. This can help working mothers and migrant workers by having a longer weekend.
Averaging: A collective agreement may permit the hours of work to be averaged over a period of up to four months. A worker who is bound by such an agreement cannot work more than an average of 45 ordinary hours a week and an average of five hours of overtime a week over the agreed period. A collective agreement for averaging has to be re-negotiated each year.
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Meal Breaks and Rest Periods A worker must have a meal break of 60 minutes after five hour work. But a written agreement may lower this to 30 minutes and do away with the meal break if the worker works less than six hours a day. A worker must have a daily rest period of 12 continuous hours and a weekly rest period of 36 continuous hours, which, unless otherwise agreed, must include Sunday. Sunday Work A worker who sometimes works on a Sunday must get double pay. A worker who normally works on a Sunday must be paid at 1.5 times compared to the normal wage. There may be an agreement for paid time off instead of overtime pay. Night Work Night work is unhealthy and can lead to accidents. That is, workers working between 18:00 at night and 06:00 in the morning must get extra pay or be able to work fewer hours for the same amount of money. Transport must be available but not necessarily provided by the employer. Workers who usually work between 23:00 at night and 06:00 in the morning must be told of the health and safety risks. They are entitled to regular medical check-ups, paid for by the employer. They must be moved to a day shift if night work develops into a health problem. All medical inspections must be kept intimate. Public Holidays Workers necessity to paid for any public holiday that falls on a working day. Work on a public holiday is by agreement and paid at double the rate. A public holiday is exchangeable by agreement.
Leave Annual Leave A employee can take up to 21 continuous days annual leave or by contract, one day for every 17 days worked or one hour for every 18 hours worked. Leave must be taken not more than six months after the end of the leave cycle. An employer can only pay a worker instead of giving leave if that worker leaves the job. 51
Sick Leave A worker can take up to six weeks' paid sick leave during a 36-month cycle. Through the first six months, a employee can take one day's paid sick leave for every 26 days worked. An employer may want a medical certificate before paying a worker who is sick for more than two days at a time or more than twice in eight weeks.
Factories Act 1948 (Safety and Health) Provision Regarding the Health of Workers Sections 11 to 20 of the Act contain certain provisions intended to ensure that the conditions under .which work is carried on in factories do not affect the health of the workers injuriously. The summary of the provisions are explained below :
1. Cleanliness. Every factory shall be kept clean and free from dirt, and the outflow of drains etc. The floors must be cleaned. Drainage shall be provided. Inside walls, partitions and ceilings must be repainted at least once in five years. When washable water paint is used they must be painted once every three years and washed at least every period of six months.-Sec. 11,' as amended in 1976. 2. Disposal of wastes and effluents. The waste materials produced from the manufacturing process must be effectively disposed off-Sec. 12. 3. Ventilation 'and Temperature. There must be provision for adequate ventilation by the circulation of fresh air: The temperature must be kept at a comfortable level. Hot parts of machines must be separated and insulated.-Sec. 13. 4. Dust and Fume. If the manufacturing process used gives off injurious or offensive dust and fume steps must be taken so that they are not inhaled or accumulated. The exhaust fumes of internal combustion engines must be conducted outside the factory.--Sec. 14. 5. Artificial humidification. The water used for this purpose must be pure. It must be. taken from some source of drinking water supply. The State Government can frame rules regarding the process of humidification etc.-8ec. 15.
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6. Overcrowding. There must be no overcrowding in a factory. In factories existing before the commencement of the Act there must be at least 350 c.ft. (~r 55 cubic metres) of space per worker. 52
For factories built afterwards, there must be at least 500 c.ft. (or 75 cubic metres) of space. In calculating the space, an account is to be taken of space above 14 ft. (or 5 metres) from the floor.-Sec. 16. 7. Lighting. Factories must be well lighted. Effective measures must be adopted to prevent glare or formation of shadows which might cause eyestrain.-sec. 17. 8. Drinking water. Arrangements must be made to deliver a adequate supply of wholesome drinking water. All supply' points of such water must be marked "drinking water". No such points shall be within 20 ft. (or 7.5 metres) of any latrine, washing place etc. Factories employing more than 250 workers must cool the water during the hot weather.-Sec. 18.
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9. Latrines and Urinals. Every factory must provide' sufficient number of latrines and urinals. There must be separate provision for male and female workers. Latrine and urinals must be kept in a clean and sanitary condition. In factories employing more than 250 workers, they shall be of prescribed sanitary types.sec. 19.
Provision Regarding the safety of workers Sections 21 to 40A, 40B and 41 of the Act lay down rules for the purpose of securing the safety of workers. Summary of the provisions of the Factories Act regarding the safety of the workers are stated below: (Sections 2l to 41) . 1. Fencing of machinery. All dangerous machinery must be securely fenced e.g., moving parts- of prime movers and flywheels connected to every prime mover electric generators etc.-Sec. 2l. 2. Work on or near machinery in motion. Work on or near machinery in motion must be carried out only by specially trained adult male workers wearing tightly fitting clothes.-Sec. 22. 3. Employment of young persons on dangerous machines. No young person shall work at any dangerous machine' unless he has been specially instructed as to the dangers and the precautions to be observed has received sufficient training about the work and is under the supervision of some person having thorough knowledge and experience of the machine.-Sec. 23. 4. Striking gear and devices for cutting off power.In every factory suitable devices for cutting off power in emergencies from running machinery shall be provided and maintained in every workroom Sec. 24. 5. Self-acting machines. Moving parts of a self-acting machine must not be allowed to come within 45 cms. of any fixed structure which is not part of the machine.-Sec. 25. 53
6. Casing of new machinery. In all machinery installed after the commencement of the Act. certain parts must be sunk, encased or otherwise effectively guarded e.g.. set screw. bolt.toothed gearing etc. sec. 26. 7. Women and children near cotton Openers. Women and children must not be allowable to work near cot/On openers, but In certain cases.-Sec. 27 8. Hoists, lifts, chains etc, Every hoist and lift must be so constructed as to be safe. There are detailed rules as to how such safety is to be secured. There are similar provisions regarding lifting machines. chains, ropes and lifting tackle Sec. 28. 29. 9. Revolving machinery. Where grinding is carried on the maximum safe working speed of every revolving machinery connected therewith must be notified. Steps must be occupied to see that the safe speed is not surpassed.-Sec. 30. 10. Pressure plant. Where any operation is carried on at a pressure higher than the atmospheric pressure, steps must be taken to ensure that the safe working pressure is not exceed-sec. 31. 11. Floors, stairs and means of access. All floors, stairs, steps, passage and gangways will be of sound building and properly maintained. Handrails will be provided where needed. Safe means of access shall be provided to the place where the worker will carry on any work.-Sec. 32. 12. Pits, dumps openings in floors etc. Pits. Sumps openings in floors etc. must be securely covered or fenced.-Sec. 33. 13. Excessive weights. No worker shall be made to carry a load so heavy as to cause him injury.-Sec. 34. 14. Protection of eyes. Effective screen or suitable goggles shall be provided to protect the eyes of the worker from fragments thrown off in course of any manufacturing process and from excessive light if any.-Sec. 35. 15. Precautions against dangerous fumes. No person shall be allowed to enter any chamber tank etc. where dangerous fumes are likely to be present unless it is equipped with a manhole or other means of going out. In such space no portable electric light of more than 24 volts shall be used. Only a lamp or light of flame proof construction can be used in such space. For people entering such space suitable breathing apparatus, reviving apparatus etc. shall be provided. Such places shall be cooled by ventilation before any person is allowed to enter.-Sec. 36 and 36A. 16. Explosive or inflammable gas etc. where a manufacturing process produces inflammable gas, Dust, fume, etc. steps must be taken to enclose the machine concerned, prevent the accumulation of substances and exclude all possible sources of ignition. Additional precautionary methods are to be 54
taken where such substances are worked at better than the atmospheric Pressure.-Sec. 37. 17. Precaution in case of fire. Fire escapes shall be provided. Windows and doors shall be constructed to open outwards. The means of exit in case of the fire shall be clearly marked in red letters. Arrangements must be made to give warning in case or fire -sec. 38 18. Specifications of defectives etc. and safety of buildings and machinery. If any building or machine is in a defective or dangerous condition, the inspector of factories can ask for the holding of tests to determine how they can be made safe. He can also direct the adoption of the measure necessary to make them safe. In case of immediate danger, the use of the building or machine can be prohibited.Secs. 39. 40. 19. Maintenance of Buildings. If the Inspector of Factories thinks that any building in a factory or any part of it is in such a state of disrepair that it is likely to affect the health and welfare of the workers. he may serve on the occupier or manager or both in writing specifying the measures to be done before the specified date. Sec. 4OA. 20. Safety Officers. The State Government may notify to the occupier to employ a number of Safety Officers in a factory (i) wherein one thousand or more workers are ordinarily employed. or(ii) wherein any manufacturing process or operation which involves the risk of bodily injury, poisoning. disease or any other hazard to health of the persons employed in the factory .-Sec. 40B. 21. Rules. The State Government may make rules providing for the use of such further devices for safety as may be necessary. Sec. 41.
Provision Regarding the Welfare of Workers Summary of the provisions of the Factories Act regarding the welfare of workers are stated below: 1. Washing. In every factory adequate and suitable facilities for washing shall be provided and maintained. They shall be conveniently accessible and shall be kept clean. There must be separate provisions for male and female workers.-Sec. 42. 2. Storing and drying. The State Government may make rules requiring the provision of suitable facilities for storing and drying clothing.-Sec. 43. 3. Sitting. Sitting facilities must be provided for workers who have to work in a standing position. so that they may take rest when possible. When work can be done in a sitting position efficiently the Chief Inspector may direct the provision of sitting arrangements. Sec. 44. 55
4. First aid. Every factory must provide first aid boxes or cupboard. They must contain the prescribed materials and they must be in charge of persons trained in first aid treatment. Factories employing more than 500 persons must maintain an ambulance roam containing the prescribed equipment and in charge of the prescribed medical and nursing staff-Sec. 45. 5. Canteens. Where more than 250 workers are employed. the state Government may require the opening of canteen or canteens for workers. Rules may be framed regarding the food served. its management etc.,..-Sec. 46. 6. Shelters. In every factory where more than 150 workers are employed there must be provided adequate and suitable shelters or rest. rooms and a lunch room (with drinking water supply) where workers may eat meals brought by them. Such rooms must be sufficiently lighted and ventilated and must be maintained in a cool and clean condition~. The standards may be fixed by the State Government. -Sec. 47, 7. Crèches. In every factory where more than 30 women a employed, a room shall be provided for the use of the children (below 6 years) of such women. The room shall be adequate size. Well lighted and ventilated, maintained in a clean and sanitary condition and shall be in charge of a woman trained in the care of children and infants. The standards shall be laid down by the State Government. Sec. 48. 8. Welfare officers. Welfare officers must be appointed in every factory where 500 or more workers are employed. The State Government may prescribe the duties, qualifications etc. of such officers. Sec. 49. 9. Rules The State Government may make rules regarding the welfare of workers.-Sec. 50.
Rules Regarding Employment Night Shifts. Where a worker in a factory works on a shift which extends beyond midnight, (a) his weekly holiday and compensatory holiday means a period of holiday for 24 consecutive hours beginning when his shift ends, and (b) the following day for him shall be deemed to be the period of 24 hours beginning when such shift ends and the hours he has worked after midnight shall be counted in the previous day.sec. 57 Overlapping Shifts. Work shall not be carried on in any factory by means of a system of shifts so arranged. that more than one relay of workers is engaged in work of the same kind at the same time. The State Government or the Chief Inspector may grant exemption from this rule.-See. 58. Double Employment. No adult worker will be obligatory or allowed to work in any factory on any day 56
on which he has previously been working in any other factory, save In such conditions as may be prescribed.-Sec. 60. Notice of Periods of Work. There must be displayed in every factory a notice showing periods of work of adults, classification of workers in groups according to nature of their work, shifts and relays etc. Change made in the system of work must be notified to the Inspector before change. The manager of every factory must maintain a Register of Adult Workers showing the name of each worker, the nature of his work, the group in which he is included, the relay in which he is allotted etc. The hours of work of an adult worker- must correspond with the notice referred to above and the Register.- Sections 61, 62, 63. No adult worker will be mandatory or allowed to work in any factory except his name and other particulars have been entered' in the record of adult workers.-Sec. 62 (1A) added by the Factories (Amendment) Act, 1976. Exemptions. By sections 64 and 65, the State Government has been given power to exempt for limited periods certain factories from compliance with some of the provisions relating to hours of work and employment. Such exemptions are necessary in special cases, for example in the case of workers engaged in urgent repairs or in preparatory and complementary work. In some industries work if of an intermittent character and the enforcement of all the rules stated above will create hardship. The nature of the work in certain industries requires exceptional treatment, e.g., workers. engaged in engine rooms and boilers or in the printing of newspapers. The State Government may exempt persons holding positions of supervision and management or in confidential positions in a factory from the operation of the rules regarding working hours (except the rule against the employment of women at night).
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Laws related to Working Hours, Working conditions Health and Safety in South Korea Working hours Korean people are known for their intelligence and work ethic. It is no wonder why the country has one of the highest average annual work hours. If we’re planning to find employment in South Korea, we better be prepared to put in a lot of hours and effort. Bonuses are sometimes given, depending on the company. Luckily, law changes have dropped the maximum workweek down to 40 hours and adopted a 5-day workweek system. Unless we are planning to work for a smaller company, the new law applies to us as well. Although some contracts do allow for minor adjustments in hours, the average workweek in any 2week period is not to exceed the maximum 40 hours. Likewise, workers cannot be requiring working more than 12 hours in any day. Unluckily, however, little attention seems to be paid to the 40-hour workweek legislation. Most people still work late, with the end of working day often reaching the late evening hours. According to numbers on Koliaf.net “53.5% of the total workforce work 5 days a week. In addition, about 21.8% suffered from unlawfully long working hours, exceeding 52 hours per week last year”. Minors under the age of 18 are not allowable to work unless they have written permission from their guardians or parents. In any case, minors are prohibited from working night shifts except with permission from the Labour Ministry. The law changes actually created more job opportunities. The limit on the amount of hours means that there is work left to be done after employees finish their 40-hour workweek. Thus, more people are required to get the job done. 58
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Holidays The Ministry of Labour in Korea has implemented a system in which all workers who do not miss a day of work in one week receive one paid holiday. Employees who do not miss a day of work in a full year are entitled to a 15-day paid vacation and an additional day for each two years of service. Those who do miss days of work should expect a reduction in paid leave time. Koreans use both Solar and Lunar calendars which results in a number of holidays. There are 16 national holidays and most of them are observed by the majority of offices and businesses. Occupational safety and health Act Article 1 (Purpose) The purpose of this Act is to retain and promote the health and safety of workers by preventing industrial accidents and making comfortable working environment through founding standards on occupational safety and health and clarifying where the responsibility lies. Article 3 (Scope of Application) (1) This Act will apply to all workplaces or businesses (hereinafter referred to as “businesses”): Provided that this Act may not apply wholly or partially to businesses as prescribed by the Presidential Decree taking into consideration the degree of harm and hazard, the kinds and scale of business, the location of business, etc. (2) This Act and any order issued under this Act shall apply to the State and local governments, and public institutions under Article 5 of the Act on the Management of Public Institutions. Article 42 (Work Environment Monitoring, etc.) (1) An employer shall have a person with the qualifications prescribed by the Ordinance of the Ministry of Labor monitor and evaluate the work environment of the workplaces prescribed by the Ordinance of the Ministry of Labor, where work harmful to workers’ health is carried out, record and keep the results and report them to the Minister of Labor under the conditions prescribed by the Ordinance of the 60
Ministry of Labor. In this case, at his/her request, the workers' representative shall be allowed to be present during the work environment monitoring. (2) The method and frequency of the work environment monitoring referred to in paragraph (1) and other necessary matters shall be prescribed by the Ordinance of the Ministry of Labor. (3) An employer shall inform workers in the workplace about the results of the work environment monitoring referred to in paragraph (1), and take proper measures, such as the installation, improvement, etc., of the facilities and equipment concerned, in accordance with the results, to protect the workers’ health. (4) An employer may entrust the work environment monitoring referred to in paragraph (1) and the accompanying analysis of samples to a monitoring institution designated by the Minister of Labor (hereinafter referred to as “designated monitoring institution”). (5) A designated monitoring institution entrusted by an employer to conduct work environment monitoring pursuant to paragraph (4), after conducting the work environment. Article 6 (Duties of Worker) A worker shall observe the standards for the prevention of industrial accidents as prescribed by this Act and any order issued under this Act, and are subject to measures for the prevention of industrial accidents taken by the employer or other related organizations. Article 4 (Duty of Government) (1) In order to accomplish the goals of Article 1, the Government shall fulfil faithfully the following responsibilities: 1. Establishment, execution, coordination and control of occupational safety and health policy; 2. Support and guidance for the prevention of accidents and diseases for workplaces where accidents and diseases occur frequently;
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3. Safety assessment and improvement of harmful and dangerous machines, instruments, and equipment, protective devices, personal protective equipment, etc.; 4. Preparation of criteria for safety and health measures and guidance and inspection on harmful or dangerous machines, instruments, equipment, materials, etc.; 5. Provision for the establishment of autonomous health and safety management system by workplaces; 6. Promotion of safety culture through public relations activities, education, accident-free campaigns, etc., to raise awareness about safety and health; 7. Research and development of technology and installation and operation of facilities for safety and health; 8. Maintenance and management of investigations and statistics on industrial accidents; 9. Support, guidance and inspection of organizations related to safety and health; and 10. Other matters concerning the protection and promotion of workers' safety and health. (2) The Government shall come up with policies to carry out effectively the matters referred to in each subparagraph of paragraph (1), and if it is deemed necessary, may provide the Korea Occupational Safety &Health Agency (hereinafter referred to as the “Agency”) under the Korea Occupational Safety and Health Agency Act and other related organizations and research institutes with administrative and financial support.
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Laws Related to Equality and Empowerment of Women in India Social change 'is an inevitable phenomenon of every society because social conditions never remain static. Social change whether it comes through legislation or through judicial interpretation indicates the change in accepted modes of life, or perhaps a better life. The changing pattern does have an impact on the laws and the life of a given society and law must keep pace with the changing socio-economic trends and political movements of the society, while at the same time preserving necessary balance between individual rights and duties. Thus law and justice provide a potential force for the attainment of a progressive social change.
The exalted status of Indian women in ancient days suffered a setback in the medieval period. Social economic and political factors played a major role in their suppression. Social inhibitions and discriminatory practices against them continued to exist during the 'enlightened' and 'civilised' imperial rule. The leadership of independent movement was, however, committed to accord an equal status to women and give them a place of honour, and dignity in the society. Accordingly the constitution - the fundamental law- as emerged out of the constituent assembly, treated both men and women equally and also provided for protective discrimination for women in view of their peculiar position in the human society.
Though the constitution has provided equality of both the sexes man and women but biological condition of the female and developed sense of subordination demand extra protection for them. The reason is that "women's physical structure and the performance of certain functions place her at a disadvantage in the struggle for subsistence and her physical well-being becomes an object of public interest and care in order to preserve the vigour and strength of the race. Thus the law and justice demands additional privileges and safeguards for maintaining proper socio-legal status of women in the society.
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Empowerment of Women Physical structure is different than men. Due to this intention they cannot fight for their rights directly against the human and society. Owing to this reason they are exploited and harassed by the family members and indoor and outdoor society. Every day we hear in radio and T.V. where the property rights of women are encroached upon and several crimes are being committed against them. Crimes against women can be described as under:(i) Crimes in relation to women's property which includes criminal breach of trust, misappropriation, robbery and murder etc. (ii) Crimes involving sex for economic gain such as wrongful confinement, dowry death, prostitution, outraging the modesty of women, use of criminal force, abduction, rape and adultery etc. We also read about the crimes committed against women in newspapers of all types every day.
The following statistics reveal that the crimes against women have gone up by 25 per cent since 1982:-
Revered by traditions, women in India are now facing more atrocities with the number of crime committed against them going up by 25.2 per cent since 1989. The reported crime against the weaker sex, including rape, dowry death, torture and eve-teasing, shot up from 67.072 in 1989to nearly 84,000 in 1993, according to the National Crime Record Bureau. While cases related to only torture on women registered an increase of 90 per cent over 1989, those related to dowry deaths say a growth of 38% and rape 22.9 per cent. There was only a marginal increase of 1.41%in cases regarding kidnapping and abduction. Out of the total crime reported against women in 1993, 26.3%
Empowerment of Women : Its Necessity and Meaning: The Preamble of the Constitution of India says that justice ... social, economic and political shall be aim of Indian republic. The Constitution uses the word sex in Art. 15(1), 16(2) or 325 which prohibits Discrimination on inscriptive grounds. The empowerment of women is an input which is intended to eliminate their subordination and establish equality. Empowerment is a positive concept.
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Apart from the legislations enacted by the Central and State Governments, the apex court of the country and several High Court of the States have protected women by their judicial decisions giving special preference from men.
Constitution of India and Women With the birth of republic came a grand document vibrant with new ideas, new philosophies and new rights namely the Constitution. I brought about a sweep change and a social revolution beyond imagination. Indian Constitution is prominently a social document. It is goal oriented. This document puts women completely at par with &n and fulfils the cherished goal of equality in matters of civil, political and economic rights. The political rights of franchise has also been given to Indian women under the provisions of the constitution. Besides, they have been given right to vote and stand in election for any post. Article 14 guarantees to all persons the equal protection of the laws. Article 15 prohibits sex based discrimination and Article 16 confers economic equality by ensuring equal opportunity in matters of public employment. Under Article 15 (3) the State has been empowered to make special provisions for women. Article 14 and 15(3) providing a touch-stone for tying the validity of all other laws play pivotal role in attaining equal rights for women along with a better protection as in other branches of law.
Labour Welfare Legislation and Women: Independent India, wedded as she is, to the goal of economic growth coupled with social justice has made a steady progress in social security measures. The Indian constitution guarantees equal rights to both the sexes and does not discriminate on the basis of age, colour and creed. The concept of social security is essentially related to the high ideals of human dignity and social justice. The social security and welfare Acts passed by the Government are the benefit and empowerment of women are numerous.
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Empowerment of Women
The Factories Act, 1948: This Act does not allow women from clearing or lubricating oradjusting any part of a prime mover or transmission machinery when it is in motion because there is a risk of injury. The Act also prohibits Employment of women in any part of a factory for pressing cotton in which a cotton opener is at work provided that if the feed-end the cotton opener is in a room separate from the delivery end. And also each factory should provide in it where 50 or more women workers are employed a suitable room for the use of children under the age of 6 years of such women and such rooms should provide adequate accommodation with lighting and ventilation and also clean sanitary conditions. These crèches should be under the charge of women trained in the care of children and infants all women are also exempted from night duties in any industrial premises Sec.12
The Employees State Insurance Act, 1948: This Act provides for the periodical payment to insured women in case of confinement or miscarriage or sickness arising out of pregnancy, confinement, premature birth of child or miscarriage.13 According to section 50 of this Act an insured woman shall be qualified to claim maternity benefit for confinement, if the confinement occurred during the corresponding contribution period, weekly contributions in respect of her were payable for not less than thirteen weeks.
The Plantation Labour Act, 1951: The Act provides for crèches where fifty or more women are employed for the use of children below six years. The same facilities are there that are provided under section 48 of the factories Act, 1948.14 Night work for women should be prohibited. The Act also provides sickness and maternity benefits.
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The Mines Act, 1952:
The Maternity Benefit Act, 1961: The Maternity Benefit Act, 1961 (M.B. Act), which provides for 80 days holidays and 12 weeks wages during maternity as well as paid leave in certain other related contingencies. Maternity benefit schemes are primarily meant to provide security of wages and employment to women workers immediately before and after confinement. This Act was enacted to regulate the employment of 66
women in certain establishments for certain periods before and after child birth and to provide for maternity benefit and certain other benefits. This Act is intended to achieve the object of doing social and economic justice to women workers. Therefore in interpreting the provisions of this Act beneficent rule 4 construction which would enable the worker not only to subsist but also to make up her dissipated energy, nurse her child, preserve her efficiency as a worker and maintain the level of her previous efficiency and out-put has to be adopted by the Court.
The Maternity Benefit Act, 1961 was further amended by the Maternity Benefit (Amendment) Act, 1988 which provides that women workers who have put in not less than 80 days of work can claim the following benefits from the employees-
(1) Maternity benefit at the rate of the average daily wage for the period of her actual absence, that is to say, the period immediately preceding the day of her delivery and any period immediately following that day.
(2) In case of miscarriage, a woman shall be entitled to leave with wages at the rate of maternity benefit, for a period of six weeks immediately following the day of her Miscarriage. (3) In case of illness arising out of pregnancy delivery, premature birth of a child or miscarriage, in addition to the period of absence specified in (i) and (ii) above, as the case may be, to leave with wages at the rate of maternity benefit for a maximum period of one month. The aforesaid benefits are available to women workers inspective of the number of births. For nursing mothers the Act provides two nursing breaks of prescribed duration, in addition to the rest internal for nursing the child until he attains the age of 15 months. In order to safeguard the interest of pregnant workers, the Act provides that a woman worker shall not be dismissed, discharged during the period of maternity leave. Apart from the benefits provided under the Maternity benefit Act, some State Acts provide additional benefits such as free medical aid, bonus, provision of crèches, additional rest intervals, etc. however, the Act has an extremely limited application and rarely applied in the agricultural sector.
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The Contract Labour Regulation Act, 1971:
Separate rest rooms shall be pro idea for women employees in every factory. The Act provides a se rate portion of dining hall and service counter. This Act also provides or separate washing place for women which are screened for security. This Act also provide for separate and secured latrines at least one latrine for every 25 females.
The Equal Remuneration Act, 1976: The equal Remuneration Act, 1976 was enacted to provide equal remuneration to male and female employees for the same work, or work of the similar nature. It prevents discrimination on the ground of sex against in the matter of employment of women and for matters connected therewith except where the employment of women in such works is prohibited or restricted by or under any law for the time being in force. Indeed this Act is a milestone in establishing economic equalities and social justice between men and women. Now the time has come when equal pay for equal work for both man and women should be fully implemented without discrimination on the basis of sex in order to provide fair and just treatment to women workers.
The Act was amended in 1987 to provide for more detail on punishment and to prohibit discrimination not only at initial recruitment but also in any condition of service subsequent to recruitment such as promotion, training or transfer. The apex court of the country through its judicial decisions has also approved the principle of equal pay for men and women for the work of similar nature. In People's Union for democratic Rights v. Union of India the court held that "it is the principle of equality embodied in Art.14 of the constitution which finds expression in the provisions of the Equal Remuneration Act. 1971."
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Suggestions
(A) Labour Laws (1) Labour laws pertaining to women should be properly implemented and a time bound mechanism should be set up for the follow up action, otherwise all the provisions will remain on the paper and there can be no proper social justice to the section of the society which is suffering on account of sex bias. There is a need that the provisions of Maternity benefits Act should be extended to the women working in the agricultural sector. There must be a provision in the Act for free medical aid before, during and after confinement. Welfare and safety measures provided for the protection of women should be extended as per present scientific development. (2) Equal Remuneration Act should be fully implemented without discrimination on the basis of sex, in order to provide fair and just treatment to women workers. (3) There is also a need to harmonise work and family responsibilities for women. There should be action to change to traditional sharing of family responsibilities. Workplaces should be made family-friendly, including more flexible working time arrangements. (4) Social support services and infrastructure shouldbe provided to enable women (and men) to harmonise work and family responsibilities more effectively. (5) There is also a need that the women should be encouraged to become literate. There must be good training arrangements. There is also need to women to operate more effectively in factories and workshop.
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Conclusion:
Thus, today our country is in need of gender legislation of womenlaying down her rights irrespective of religion and region. The legislative measures are in favour of women, but their success depends on effective implementation. The proper implementation, Co-ordination of the three branches is absolutely essential. The Lack of implementation due to absence of commitment to the policy of the constitution has led to either non-implementation or to watering down by the judiciary and the executive of the beneficial effects. From the above view one question which is confronting us is whether social change and gender justice can be brought about merely by passing stricter laws and implementing them? On the contrary the existing laws, the amendments and the new laws add to the confusion. Thus until there is empowerment of women, dissemination of legal awareness amongst them, economic status raised with the family and in the society, law will remain in effect on paper only.
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Laws related to Equality and Empowerment of Women in South Korea Introduction Back in 2003 South Korea noted the rapid transformation of gender relations in South Korea. In its report published that year, the non-governmental Korean Institute for Women and Politics acknowledged the vast strides taken by Korean women in education and employment over the past 20 years as a result of the country’s economic growth. South Korea also has a law that requires the government to support women entrepreneurs and extend financial subsidies to career-interrupted women who want to engage in economic activities. Complementing these legislative efforts was the setting up in 2001 of the Ministry of Gender Equality that later became the Ministry of Gender Equality and Family, which was mandated to promote women empowerment. Experts say the South Korean women’s movement is deeply rooted in the country’s democratic process and national development in which the government, beginning in the 1980s, had supported policies promoting a highly literate population, including women. “The women’s movement in South Korea is intertwined with long years of grassroots activism for democracy as well as the strong public sentiment, particularly in the ‘80s and ‘90s, when the national goal focused on developing South Korea into a rich and powerful nation,” says Professor Yang Chin Jya, an expert on Korean language at Hitotsubashi University in Tokyo. She adds that South Korean women played active roles alongside men in various powerful citizens’ movements against military rule in the early 1960s, thus making women’s inroads into Korea’s public domain less difficult compared to Japan, where women, until the past decade, had been traditionally viewed as homemakers. In 2008 South Korea’s global ranking in women’s rights fell four points to 68th from its 2007 ranking of 64th, based on the 2008 Gender Empowerment Measure (GEM) released in 2009. GEM is produced by the United Nations Development Programme to measure the extent of women’s participation in political and economic decision making in over 100 countries.
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Such fall in ranking may have had to do with the decline in female labour force participation in the East Asian country in the aftermath of the global economic crisis. The Job Korea web portal reveals that 90% of workers who lost their jobs due to downsizing resulting from the crisis were women. Of the workers that have been declared redundant since November 2008, 98 percent are also women, says the Korea Labour Institute. Even labour statistics show there is still much to do to advance the cause of women’s rights in South Korea. Just over 45% of working-age South Korean women are employed compared with 70%of men. Moreover, women get only 66 percent of what men earn, according to the Korean Employment Information Service. Many women are hired as part-timers or on a contractual basis, which makes them more vulnerable to losing their jobs unlike men. A report released by the Organization for Economic Cooperation and Development in March says South Korea’s gender pay gap, which stands at 38 percent, is the largest among its 30 member states. Political Participation of Women in South Korea The participation of women in the political arena is a growing trend in the twenty-first century. Until the second decade of the twentieth century, only New Zealand and Australia had extended suffrage to women in national elections. By the final quarter of the twentieth century, only a handful of countries, such as Saudi Arabia legally excluded women from political processes open to men. Traditionally, politics has been a male-dominated occupation and women have been underrepresented. This holds true for South Korea, as only a few women hold leadership positions within South Korean politics. Women in the country are viewed as apolitical, mainly due to gender role socialization through socialization agents such as family, school and mass media. With the promulgation of the July 17, 1948 South Korean Constitution, women’s rights to employment and education were highlighted in an attempt to prohibit discrimination. Article 9, Paragraph 1 of the 1948 Constitution states: All citizens shall be equal before the law and there shall be no discrimination in political, economic, social, or cultural life on account of sex, religion or social status. Be that as it may, women’s underrepresentation in Korean politics had yet to improve. The average number of women representatives in past legislatures in the Republic of Korea has been around a mere 72
two percent. In the political history of South Korea, women elected in the parliament constitute a very small percentage of representation. From 1948 to 2004 the average percentage of women in the South Korean National Assembly averaged 2.9 percent. Except in the years 1973, 2000, and 2004, women were noticeably elected to less than 5 percent of the National Assembly seats. Women’s Rights and Welfare As is common in cultures, women’s participation in Korean society was mainly confined to the domesticity. The transitional regime under Roh Tae-woo (1988-1992) reaffirmed the old practice that families would be primarily responsible for individual welfare, and that the state would provide support only when families failed to do so. Women were directly affected by this practice, as the burden of work in the families was placed in their hands as wives, mothers, and grandmothers. Thus, women’s rights and welfare were limited within the bounds of the family and not in politics or society as a whole. The welfare of women underwent remarkable changes through President Kim Dae-jung’s direction. The government expanded welfare policy which included the following: 1) a divorced female is now eligible to receive a portion of her husband’s pension if they are married for more than five years; 2) families can now apply for health insurance to pay the hospital expenses for child birth; 3) the public childcare system has been improved with expanded childcare facilities and better salaries for childcare providers and 4) paid maternity leave is now twelve weeks, in line with the International Labor Organization (ILO).
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Maternity rights Employers must grant pregnant female employees a total of 90 days' paid maternity leave, which can be used before or after childbirth. Compensation for 60 days is paid by the employer, while the remaining 30 days is paid from the Employment Insurance Fund, a state-run fund established by the Ministry of Employment and Labour under the Employment Insurance Act 1993. Employers must also provide 30 minutes of paid nursing periods twice per day for female employees with children under the age of one. The statutory 90 days' maternity leave includes holidays and Sundays. In addition, at least 45 days must be used after childbirth (but where more than 45 days were spent before childbirth, an employer must allow 45 days of maternity leave after childbirth). Any period in excess of the statutorily prescribed 90 days need not be considered paid leave. Although certain limitations exist, maternity leave must be allowed for premature births, miscarriages and stillbirths. With effect from 2 August 2012, the Gender Equality Employment and Work-Family Balance Support Act 1987 (GEEA) requires an employer to allow an employee who is eligible for maternity leave to use the "work hour reduction system" in lieu of maternity leave, with certain exceptions (for example, where it is impossible to find a replacement for the employee). Under this system, on agreement between the employer and employee, the employee must work for over 15 hours per week, but will not be obligated to work beyond 30 hours per week. The employer cannot dismiss or take any disadvantageous measures against an employee based on their reduced working hours for childcare. After the period of reduced working hours for childcare ends, the employer must restore the employee to the same work as before the reduction, or any other work paying the same level of wages. The extension of work hours over the prescribed 30 hours is strictly prohibited unless the employee clearly requests additional work hours, which in any event cannot exceed 12 additional hours per week. Paternity rights With effect from 2 August 2012 under the GEEA, male employees are entitled to three days' paid leave, with two additional days of unpaid leave, which can be taken at the employer's discretion within 30 days of the child's birth.
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Parental rights The GEEA requires employers to provide a one-year leave of absence for childcare (not including the days of paid maternity leave used after childbirth in the case of a female employee) for any male or female employee with a child under the age of six (or under the age of three for a child born or adopted before 1 January 2008). That leave must be included when taking into account the employee's period of continuous service. In determining how to utilise childcare leave (or the work hour reduction), an employee can choose any one of the following methods:
A one-time use of childcare leave.
A one-time use of work hour reduction.
A multiple-time use of childcare leave.
A multiple-time use of work hour reduction.
A one-time use of childcare leave and a one-time use of work hour reduction.
Whichever method is used, the overall period cannot exceed one year. Careers' rights With effect from 2 August 2012, the GEEA requires employers to provide up to 90 days' (and at least 30 days') family care leave per year for employees whose family members are sick, injured or old and need the employee's care, with certain exceptions (for example, it is impossible to find a replacement for that employee).
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Protection from discrimination Article 6 expressly prohibits discrimination based on:
Gender.
Nationality.
Religion.
Social status.
The Gender Equality Employment and Work-Family Balance Support Act 1987 (GEEA) likewise prohibits employment discrimination based on gender, focusing in particular on discrimination against women. The Employment Promotion and Vocational Rehabilitation for Disabled Persons Act 1990 provides rehabilitation opportunities and job stability for disabled employees. This Act prohibits discrimination against any employee based solely on an employee's disability for all work-related employer actions including hiring, promotion and job transfer. In addition, under the Anti-discrimination Against Disabled Persons Act 2007, employers employing 100 or more regular employees must provide to their disabled employees reasonable accommodation to allow them to work under equitable working conditions with other non-disabled employees. With effect from 11 April 2013, this obligation will apply to employers employing 30 or more regular employees. This Act also requires the provision of reasonable accommodation to disabled female employees with respect to the use of day care facilities at the workplace, and the necessary means, such as sign language or raised letters, for hearing-impaired or vision-impaired employees to understand information produced or distributed by the employers and trade unions. Under the Age Discrimination Prohibition in Employment and Aged Employment Promotion Act 1991, all forms of age discrimination in the workplace, whether direct or indirect, are prohibited. This Act prohibits age discrimination in recruiting and hiring, as well as discrimination in other aspects of employment, including hiring, benefits, training, assignment and termination. The Employment of Foreign Workers Act 2003 (otherwise known as the Employment Permit System Act 2003) prohibits discrimination against foreign employees by employers and is designed to provide workers who are foreign nationals with legal employment status.
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Protection from harassment The GEEA strictly prohibits sexual harassment in the workplace. As defined by the GEEA, sexual harassment in the workplace refers to a situation where an employer, a manager or an employee, by using their position at work or in relation to work, makes another employee feel sexually humiliated or offended by using sexual language or behaviour, or disadvantages an employee at work as a result of his/her refusal to accept sexual advances. Employers, managers and employees are prohibited from engaging in sexual harassment in the workplace. Whether sexual harassment exists in any particular case will be determined based on the viewpoint of the complaining party, regardless of the intent or perception of the alleged harasser.
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Laws related to Deprived and Disadvantaged Sections of the Society in India 1. Child Labour (Prohibition & Regulation) Act, 1986 2. Children (Pledging of Labour) Act, 1933 The deprived and disadvantaged sections of the society constitutes that portion of the population which is denied the opportunity to fully explore and utilise its abilities and thus enjoy a quality life. These people are left behind in today's advancing economy and need special attention and care. They should be empowered by providing basic education and health care services to improve their social and economic conditions. In this regard, the most important problem still posing a challenge to the nation is that of child labour. Government has been taking various pro-active measures to tackle this problem. Even our Constitution contains provisions which aim at protecting children:-
Child Labour (Prohibition & Regulation) Act, 1986 Introduction Employment of children below 14 and 15 years in certain prohibited employments have been prohibited by various Acts but there is no procedure laid down in any law for deciding in which employments, occupations or processes the employment of children should be banned. There is also no law to regulate the working conditions of children in most of the employments where they are not prohibited from working and are working under exploitative conditions. Accordingly it was decided to enact a comprehensive law on the subject. To achieve this objective the Child Labour (Prohibition and Regulation) Bill was introduced in the Parliament.
78
Statement of Objects and Reasons There are a number of Acts which prohibit the employment of children below 14 years and 15 years in certain specified employments. However, there is no procedure laid down in any law for deciding in which employments, occupations or processes the employment of children should be banned. There is also no law to regulate the working conditions of children in most of the employments where they are not prohibited from working and are working under exploitative conditions. This Bill intends to(i) Ban the employment of children, i.e., those who have not completed their fourteenth year, in specified occupations and processes; (ii) lay down a procedure to decide modifications to the Schedule of banned occupations or processes; (iii) Regulate the conditions of work of children in employments where they are not, prohibited from working; (iv) lay down enhanced penalties for employment of children in violation of the provisions of this Act, and other Acts which forbid the employment of children; Definition (i) "appropriate Government" means, in relation to an establishment under the control of the Central Government or a railway administration or a major port or a mine or oilfield, the Central Government, and in all other cases, the State Government; (ii) "child" means a person who has not completed his fourteenth year of age; (iii) "day" means a period of twenty-four hours beginning at mid-night; (iv) "establishment" includes a shop, commercial establishment, workshop, farm; residential restaurant, eating house, theatre or other place of public amusement or entertainment; (v) "family", in relation to an occupier, means the individual, the wife or husband, as the case may be, of such individual, and their children, brother or sister of such individual; 79
(vi) "occupier", in relation to an establishment or a workshop, means the person who has the ultimate control over the affairs of the establishment or workshop; (vii) "port authority" means any authority administering a port; (viii) "prescribed" means prescribed by rules made under section 18; (ix) "week" means a period of seven days beginning at midnight on Saturday night or such other night as may be approved in writing for a particular area by the Inspector;
Prohibition of employment of children in certain occupations and processes. -No child shall be employed or permitted to work in any of the occupations set forth in Part A of the Schedule or in any workshop wherein any of the processes set forth in Part B of the Schedule is carried on: Provided that nothing in this section shall apply to any workshop wherein any process is carried on by the occupier with the aid of his family or to any school established by, or receiving assistance or recognition from, Government. Comments The prohibition of employment of children is not applicable to any workshop wherein any process is carried on by the occupier with the aid of his family, or to any school established by, or receiving assistance or recognition from, Government. Power to amend the Schedule.The Central Government, after giving by notification in the Official Gazette, not less than three months’ notice of its intention so to do, may, by like notification, add any occupation or process to the Schedule and thereupon the Schedule shall be deemed to have been amended accordingly.
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Child Labour Technical Advisory Committee.(1) The Central Government may, by notification in the Official Gazette, constitute an advisory committee to be called the Child Labour Technical Advisory Committee (hereafter in this section referred to as the Committee) to advise the Central Government for the purpose of addition of occupations and processes to the Schedule. (2) The Committee shall consist of a Chairman and such other members not exceeding ten, as may be appointed by the Central Government. (3) The Committee shall meet as often as it may consider necessary and shall have power to regulate its own procedure. (4) The Committee may; if it deems it necessary so to do, constitute one or more sub-committees and may appoint to any such sub-committee, whether generally or for the consideration of any particular matter, any person who is not a member of the Committee. (5) The term of office of, the manner of filling casual vacancies in the office of, and the allowance, if any, payable to, the Chairman and other members of the Committee, and the conditions and restrictions subject to which the Committee may appoint any person who is not a member of the Committee as a member of any of its sub-committees shall be such as may be prescribed.
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REGULATION OF CONDITIONS OF WORK OF CHILDREN Hours and period of work.(1) No child shall be required or permitted to work in any establishment in excess of such number of hours as may be prescribed for such establishment or class of establishments. (2) The period of work on each day shall be so fixed that no period shall exceed three hours and that no child shall work for more than three hours before he has had an interval for rest for at least one hour. (3) The period of work of a child shall be so arranged that inclusive of his interval for rest, under subsection (2), it shall not be spread over more than six hours, including the time spent in waiting for work on any day. (4) No child shall be permitted or required to work between 7 p.m. and 8 a.m. (5) No child shall be required or permitted to work overtime. (6) 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. Comments This section stipulates that no child shall work for more than 3 hours before he has had an interval for rest for at least one hour. The double employment of a child is banned. Weekly holidays. Every child employed in an establishment shall be all each week, a holiday of one whole day, which day shall be specified by the occupier in a notice permanently exhibited in a conspicuous place in the establishment and so specified shall not be altered by the occupier more than once in 3 months
Comments The child employed in an establishment is entitled for a holiday of one whole day in each week. 82
Disputes as to age. If any question arises between an Inspector and an occupier as to the age of any child who is employed or is permitted to work by him in an establishment, the question shall, in the absence of a certificate as to the age of such child granted by the prescribed medical authority, be referred by the Inspector for decision to the prescribed medical authority. Maintenance of register. There shall be maintained by every occupier in respect of children employed or permitted to work in any establishment, a register to be available for inspection by an Inspector at all times during working hours or when work is being carried on in any such establishment, showing(a) The name and date of birth of every child so employed or permitted to work; (b) Hours and periods of work of any such child and the intervals of rest to which he is entitled; (c) The nature of. work of any such child; and (d) Such other particulars as may be prescribed.
The Children (Pledging of Labour) Act, 1933 Introduction A practice of pledging children by their parents or guardians for the sake of getting advance money was found prevalent in some parts of the country. The children were pledged on agreement, written or oral whereby the parents or guardians, in return for any payment or benefit received or to be received, undertook to allow the services of their children to be utilized in any employment. The children so pledged were subjected to unsatisfactory conditions, and were being exploited by their employers. The Royal Commission of Labour had investigated the matter and recommended that the State would be justified in adopting strong measures to eradicate the evil. To prohibit the making of agreements to pledge the labour of children, and the employment of children whose labour has been pledged, the Children
(Pledging
of
Labour)
Bill
was
83
introduced
in
the
Legislature.
Definition -In this Act, unless there is anything repugnant in the subject or context,"an agreement to pledge the labour of a child" means an agreement, written or oral, express or implied, whereby the parent or guardian of a child, in return for any payment or benefit received or to be received by him, undertakes to cause or allow the services of the child to be utilised in any employment: Provided that an agreement made without detriment to a child, and not made in consideration of any benefit other than reasonable wages to be paid for the child's services, and terminable at not more than a week's notice, is not an agreement within the meaning of this definition; "child" means a person who is under the age of fifteen years; and "guardian" includes any person having legal custody of or control over a child. Statement of Objects and Reasons The Royal Commission of Labour found evidence in such widely separated areas as Amritsar, Ahmedabad and Madras of the practice of pledging child labour, that is, the taking of advances by parents or guardians on agreements, written or oral, pledging the labour of their children. In some cases, the children so pledged were subjected to particularly unsatisfactory working conditions. The Commission considered that the State would be justified in adopting strong measures to eradicate the evil, and the Bill seeks to do so by imposing penalties on parents by agreements pledging the labour of children and on person knowingly employing children whose labour has been pledged. Penalty for parent or guardian making agreement to pledge the labour of a child.-Whoever, being the parent or guardian of a child, makes an agreement to pledge the labour of that child, shall be punished with fine which may extend to fifty rupees. Comments Penalty for parent or guardian making agreement to pledge the labour of a child is a fine up to Rs.50.
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Penalty for making with a parent or guardian an agreement to pledge the labour of a child. Whoever makes with the parent or guardian of a child an agreement whereby such parent or guardian pledges the labour of the child shall be punished with fine which may extend to two hundred rupees. Comments Penalty for making with a parent or guardian an agreement to pledge the labour of a child is a fine up to Rs. 200. Penalty for employing a child whose labour has been pledged. Whoever, knowing or having, reason to believe that an agreement has been made to pledge the labour of a child, in furtherance of such agreement employs such child, or permits such child to be employed in any premises or place under his control, shall be punished with fine which may extend to two hundred rupees.
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Laws related to Deprived and Disadvantaged Sections of the Society in South Korea Protection from discrimination Article 6 of the LSA expressly prohibits discrimination based on:
Gender.
Nationality.
Religion.
Social status.
The Gender Equality Employment and Work-Family Balance Support Act 1987 (GEEA) likewise prohibits employment discrimination based on gender, focusing in particular on discrimination against women. The Employment Promotion and Vocational Rehabilitation for Disabled Persons Act 1990provides rehabilitation opportunities and job stability for disabled employees. This Act prohibits discrimination against any employee based solely on an employee's disability for all work-related employer actions including hiring, promotion and job transfer. In addition, under the Anti-discrimination Against Disabled Persons Act 2007, employers employing 100 or more regular employees must provide to their disabled employees reasonable accommodation to allow them to work under equitable working conditions with other non-disabled employees. With effect from 11 April 2013, this obligation will apply to employers employing 30 or more regular employees. This Act also requires the provision of reasonable accommodation to disabled female employees with respect to the use of day care facilities at the workplace, and the necessary means, such as sign language or raised letters, for hearing-impaired or vision-impaired employees to understand information produced or distributed by the employers and trade unions. Under the Age Discrimination Prohibition in Employment and Aged Employment Promotion Act 1991, all forms of age discrimination in the workplace, whether direct or indirect, are prohibited. This Act prohibits age discrimination in recruiting and hiring, as well as discrimination in other aspects of employment, including hiring, benefits, training, assignment and termination. The Employment of Foreign Workers Act 2003 (otherwise known as the Employment Permit System Act 2003) prohibits
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Discrimination against foreign employees by employers and is designed to provide workers who are foreign nationals with legal employment status.
Protection from harassment The GEEA strictly prohibits sexual harassment in the workplace. As defined by the GEEA, sexual harassment in the workplace refers to a situation where an employer, a manager or an employee, by using their position at work or in relation to work, makes another employee feel sexually humiliated or offended by using sexual language or behaviour, or disadvantages an employee at work as a result of his/her refusal to accept sexual advances. Employers, managers and employees are prohibited from engaging in sexual harassment in the workplace. Whether sexual harassment exists in any particular case will be determined based on the viewpoint of the complaining party, regardless of the intent or perception of the alleged harasser.
87
Laws Related to Social Security in India Why Do We Need Social Security Social Security protects not just the subscriber but also his/her entire family by giving benefit packages in financial security and health care. Social Security schemes are designed to guarantee at least long-term sustenance to families when the earning member retires, dies or suffers a disability. Thus the main strength of the Social Security system is that it acts as a facilitator - it helps people to plan their own future through insurance and assistance. The success of Social Security schemes however requires the active support and involvement of employees and employers. As a worker/employee, you are a source of Social Security protection for yourself and your family. As an employer you are responsible for providing adequate social security coverage to all your workers. Background information on Social Security India has always had a Joint Family system that took care of the social security needs of all the members provided it had access/ownership of material assets like land. In keeping with its cultural traditions, family members and relatives have always discharged a sense of shared responsibility towards one another. To the extent that the family has resources to draw upon, this is often the best relief for the special needs and care required by the aged and those in poor health. However with increasing migration, urbanization and demographic changes there has been a decrease in large family units. This is where the formal system of social security gains importance. However, information and awareness are the vital factors in widening the coverage of Social Security schemes. Social Security Benefits in India are Need-based i.e. the component of social assistance is more important in the publicly-managed schemes- In the Indian context, Social Security is a comprehensive approach designed to prevent deprivation, assure the individual of a basic minimum income for himself and his dependents and to protect the individual from any uncertainties. The State bears the primary responsibility for developing appropriate system for providing protection and assistance to its workforce. Social Security is increasingly viewed as an integral part of the development process. It helps to create a more positive attitude to the challenge of globalization and the consequent structural and technological changes. 88
Workforce in India The dimensions and complexities of the problem in India can be better appreciated by taking into consideration the extent of the labour force in the organized and unorganized sectors. The latest NSSO survey of 1999-2000 has brought out the vast dichotomy between these two sectors into sharp focus. While as per the 1991 census, the total workforce was about 314 million and the organized sector accounted for only 27 million out of this workforce, the NSSO’s survey of 1999-2000 has estimated that the workforce may have increased to about 397 million out of which only 28 million were in the organized sector. Thus, it can be concluded from these findings that there has been a growth of only about one million in the organized sector in comparison the growth of about 55 million in the unorganized sector. Organized and Unorganized Sectors The organized sector includes primarily those establishments which are covered by the Factories Act, 1948, the Shops and Commercial Establishments Acts of State Governments, the Industrial Employment Standing Orders Act, 1946 etc. This sector already has a structure through which social security benefits are extended to workers covered under these legislations.
The unorganized sector on the other hand, is characterized by the lack of labour law coverage, seasonal and temporary nature of occupations, high labour mobility, dispersed functioning of operations, casualization of labour, lack of organizational support, low bargaining power, etc. all of which make it vulnerable to socio-economic hardships. The nature of work in the unorganized sector varies between regions and also between the rural areas and the urban areas, which may include the remote rural areas as well as sometimes the most inhospitable urban concentrations. In the rural areas it comprises of landless agricultural labourers, small and marginal farmers, share croppers, persons engaged in animal husbandry, fishing, horticulture, bee-keeping, toddy tapping, forest workers, rural artisans, etc. where as in the urban areas, it comprises mainly of manual labourers in construction, carpentry, trade, transport, communication etc. and also includes street vendors, hawkers, head load workers, cobblers, tin smiths, garment makers, etc.
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Synopsis of Social Security Laws The principal social security laws enacted in India are the following: 1. The Employees’ State Insurance Act, 1948 (ESI Act) which covers factories and establishments with 10 or more employees and provides for comprehensive medical care to the employees and their families as well as cash benefits during sickness and maternity, and monthly payments in case of death or disablement. 2. The Employees’ Provident Funds & Miscellaneous Provisions Act, 1952 (EPF & MP Act) which applies to specific scheduled factories and establishments employing 20 or more employees and ensures terminal benefits to provident fund, superannuation pension, and family pension in case of death during service. Separate laws exist for similar benefits for the workers in the coal mines and tea plantations. 3. The Employees' Compensation Act, 1923 (WC Act), which requires payment of compensation to the workman or his family in cases of employment related injuries resulting in death or disability. 4. The Maternity Benefit Act, 1961 (M.B. Act), which provides for 12 weeks wages during maternity as well as paid leave in certain other related contingencies. 5. The Payment of Gratuity Act, 1972 (P.G. Act), which provides 15 days wages for each year of service to employees who have worked for five years or more in establishments having a minimum of 10 workers. Separate Provident fund legislation exists for workers employed in Coal Mines and Tea Plantations in the State of Assam and for seamen.
New Initiatives
The various Central Acts on Social Security are being examined in the light of the recommendations of the 2nd National Commission on Labour. Relevant amendments are proposed in the EPF and MP Act as also the ESI Act. The consultation process is on with reference to the amendment suggestions received in case of the Maternity Benefit Act and the Workmen’s Compensation Act.
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Innovative measures are proposed in the running of the Social Security Schemes of EPFO and ESIC. This includes flexible benefit schemes tailored to the specific requirements of different segments of the population.
Summary Of Present Initiatives In Working Of EPFO & ESIC The profiles of the Employees’ Provident Fund Organization and the Employees’ State Insurance Corporation
are
being
changed
towards
greater
accessibility
and
client
satisfaction.
The EPFO extends to the entire country covering over 393824 establishments. At present, over 3.9 crore EPF Members and their families get benefits under the social security schemes administered by the EPFO. The total corpus of the EPF Scheme 1952, EDLI Scheme, 1976 and Employees’ Pension Scheme 1995 together amounts to about Rs.1,39,000 crores. Over the years, the volume of service rendered to subscribers as well as investments made, etc. by EPFO have grown manifold. With a view to provide better services to subscribers and employers, the organization has launched the Project RE-INVENTING EPF, INDIA since June, 2001. The prime objectives of this Project are to provide the subscribers better and efficient services, to help the employers by reducing the cost of compliance and to benefit the organization to register geometric growth in all fields. An important part of this Project is the allotment of the UNIQUE IDENTIFICATION NUMBER-the SOCIAL SECURITY NUMBER to the EPF subscribers, issuing of
BUSINESS
NUMBERS
to
the
employers
and
Business
Process
Re-engineering.
The strategy for implementation has been evolved and the allotment of the Social Security Number has begun with the entire activity being carried out in smaller phases for effective data collection. The criteria considered for the allotment of SSN include the centralized control of Uniqueness, ensuring the least manual intervention during allotment and near 100% Uniqueness accuracy levels. The Social Security Number in a nutshell is a big effort towards solving the problem of providing social protection to migrant labour and to make the data base of EPFO adaptable to the present trend of high job mobility among workers. Social security is essential for the well-being of people and society. It is the basic human right and its fulfilment will contribute to achieving various developmental goals of nation. Social Security measures have far reaching benefits in the form of improving and bringing sense of pride and self-respect amongst the citizens. Such measures also help in providing the minimal level of providing protection against 91
health and life hazards in work situations. It can progressively pay standard to social security welfare measures involving provisions of better Health Care, Maternity Care, and Old Age Pension etc. Social Security to the workers in the organized sector is provided through five Central Acts namely :1. Employees’ Provident Fund and Miscellaneous Provisions Act, 1952. 2. Employees’ State Insurance Act, 1948. 3. Payment of Gratuity Act, 1972. 4. Maternity Benefit Act, 1961. 5. Employee’s Compensation Act, 1923. Social Security of the formal sector workers is provided through the instrumentality of Employees’ Provident Fund Organisation and Employees’ State Insurance Corporation. Employees’ Provident Fund Organisation (EPFO) The EPFO expends to the entire country covering over 7 lacs establishments. At present, over 6.16 crores EPF members and their families get benefits under Social Security Schemes administered by EPFO. The total investment corpus as on 31st March, 2011 amounts to Rs. 466370 crores. Over the years, the volume of service rendered to subscribers as well as investments made etc. by EPFO have grown many folds. EPFO has focused its effort on automation of the work processes to achieve better efficiency and improved service delivery to its members. The work done in this direction by EPFO is given below:
All offices of EPFO barring one at Keonjhar in Odisha have been computerized.
With effect from the financial Year 2012-2013 a facility for electronic submission of statutory EPF returns has been introduced.
Employers can also remit their EPF dues electronically if they have a corporate internet bank account with the State Bank of India.
Employers not having a corporate internet bank account with SBI shall have to pay EPF dues through cheque/DD
Once the above returns are received electronically and payment is confirmed member accounts are being updated on monthly basis.
Establishments can also view and print the annual PF account slips of its employees. 92
Provisions are underway to enable the individual employees to register and view his/her EPF account online.
For facilitating the employers to comply with statutory provisions of EPF and file necessary returns, an E-Return Tool has been made available.
The members can now get their PF balances on their mobile phones after registering on www.epfindia.gov.in
Members can also track their claims and payment status online as well as receive sms s for same.
EPF amounts are being remitted electronically through NEFT to beneficiaries bank accounts.
A proposal for comprehensive amendment of EPF & MP Act, 1952 is under examination in Ministry of Labour and Employment under consultation with EPFO for improving scale of benefits to the beneficiaries. During 2011-12, special emphasis was laid on issue of Annual Accounts Slips. 16.62 crores Annual Accounts was updated during the year against the corresponding figure of 6.06 crores during 201011. 96 per cent of the Annual Accounts slips upto five years from 2011-2012, have been issued. The Annual Accounts for the year 2011-2012 are likely to be liquidated by 30th September, 2012. During 2011-12, 90.5 lacs EPF claims were settled, this been 24.84 per cent more than the corresponding figure last year. During 2011-12 Rs. 60648 crores were received as contribution, Whereas Rs. 28271 crores were paid out as benefits to members. More than 36 lacs pensioners are being paid monthly pensions by EPFO.
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Employees’ State Insurance Corporation (ESIC) The Employees’ State Insurance Scheme provides need based social security benefits to insured workers in the organized sector. As in the case of the EPFO, the ESIC has also taken up the daunting task of tailoring different benefit schemes for the needs of different groups. The scheme, which was first introduced at two centers in 1952 with an initial coverage of 1.20 lakh workers, today covers 1.55 crore workers in about 790 centers in the country. It benefits about 6.02 crore beneficiaries including the family workers of the insured persons, across the country. The scheme is being gradually to cover new centers and steps are being taken for creation of requisite infrastructure for providing medical care to a larger number of insured persons and their families. While the cash benefits under the scheme are administered through a network of about 799 Branch offices and pay offices, medical care is provided through 150 ESI Hospitals, 42 ESI Annexes, 1403/93 ESI Dispensaries / ISM Units and 1447 Clinics of Insurance Medical Practitioners. The total number of medical officers under the Scheme is about 6536. There have been a number of developments in the ESIS during the past three years. Each year, it is extended to new areas to cover additional employees. The new employees covered in 2009-10, 2010-11 and 2011-12 are 1.23 lakh, 1.14 lakhs and 1.58 lakh respectively. Low paid workers in receipt of daily wages up to Rs. 100/- have been exempted from payment of their share of contribution. Earlier this limit was Rs. 70/- . This measure has benefited about eight lakh insured workers across the country. In order to provide relief to insured persons suffering from chronic and long term diseases, the list of diseases for which Sickness Benefit is available for an extended period up to two years at an enhanced rate of 70% of daily wages, was enlarged by adding four new diseases, keeping in view the international classification of disease profiles and the quantum of malignancies of some diseases which had come to light over the last few years. In order to improve the standard of medical care in the States, the amount reimbursable to the State Governments for running the medical care scheme has been increased from Rs.1200/- to Rs. 1500/- Per IP family unit per annum w.e.f. 01.04.2012. The ESIC has formulated action plans for improving medical services under the ESI Scheme with focus on modernization of hospitals by upgrading their emergency and diagnostic facilities, development of departments as per disease profiles, waste management, provision of intensive care services, revamping of grievance handling services, continuing education programme, computerization and up-gradation of laboratories etc. The ESIC has also taken new 94
initiatives to promote and popularize AYUSH systems of treatment in ESIC Hospitals and Dispensaries in a phased manner. ESIC IT Project Panchdeep, one of the largest e-governance projects is under implementation at present. All ESI Institutions are being networked under this project for enabling IPs and their family members to avail ESI benefits anywhere anytime. Two smart cards christened as “Pehchan Cards”, one for insured person and other for the family are being issued. Also, the ESI Act, 1948 has been amended w.e.f. 01.06.2010 for enhancing the Social Security coverage, streamlining the procedure for assessment of dues and for better services to the beneficiaries. Social Security To The Workers In The Organized Sector Social Security to the workers in the Organized Sector is provided through five Central Acts, namely, the ESI Act, the EPF & MP Act, the Workmen’s’ Compensation Act, the Maternity Benefit Act, and the Payment of Gratuity Act. In addition, there are a large number of welfare funds for certain specified segments of workers such as beedi workers, cine workers, construction workers etc. Social Security Coverage In India Most social security systems in developed countries are linked to wage employment. In India our situation is entirely different from that obtaining in developed countries. The key differences are:
We do not have an existing universal social security system
We do not face the problem of exit rate from the workplace being higher than the replacement rate. Rather on the contrary lack of employment opportunities is the key concern,
92% of the workforce is in the informal sector which is largely unrecorded and the system of pay roll deduction is difficult to apply.
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Laws Related to Social Security in South Korea Social security contributions In addition to income tax, there are four types of social security taxes in Korea:
National Pension, to which the employer and employee both contribute 4.5% each.
National Health Insurance, the employer and employee both contribute 2.9%, plus an additional 6.55% of the national medical insurance premium, for Elderly Long-Term Care Insurance.
Employment Insurance, to which the employer contributes between 0.8% and 1.4% (depending on the industry and number of employees), and the employee contributes 0.55%.
Workers' Compensation Insurance, to which the employer contributes between 0.6% and 35.4% (depending on the industry). The employee does not make any contributions to this.
Any employer with one or more employees must subscribe to national health insurance under the National Health Insurance Act (NHIA). Since 1 January 2006 foreign nationals working in Korea are also required to subscribe to the national health insurance programme, which had previously been optional for foreign nationals. However, they can be exempted if they show that they are provided with health insurance coverage commensurate with Korea's either:
Under the laws or the health programme of their respective jurisdictions.
Under a contract with the company employing them.
Through private insurance coverage.
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Laws Related to Lay off and Dismissal in India Lay off ”Lay- off" (with its grammatical variations and cognate expressions) means the not a success, rejection or inability of an manager or employee on account of shortage of coal, power or raw materials or the accumulation of stocks or the stop working of machinery or natural calamity or for any other connected reason to give employment to a workman whose name is borne on the muster rolls of his industrial establishment and who has not been retrenched. Explanation.-- Every workman whose name is borne on the muster rolls of the industrial establishment and who presents himself for work at the establishment at the time selected for the purpose during normal working hours on any day and is not given employ by the employer within two hours of his so presenting himself shall be deemed to have been laid- off for that day within the meaning of this clause: Provided that if the workman, instead of being given employment at the commencement of any shift for any day is asked to present himself for the purpose during the second half of the shift for the day and is given employment then, he shall be deemed to have been laid- off only for one- half of that day: Provided further that if he is not given any such employment even after so presenting himself, he shall not be deemed to have been laid- off for the second half of the shift for the day and shall be entitled to full basic wages and dearness allowance for that part of the day.
Dismissal Dismissal of an individual workman to be deemed to be an industrial dispute.- Where any employer discharges, dismisses, retrenches, or otherwise terminates the services of an individual workman, any quarrel or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute.
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Works Committee In the case of any industrial establishment in which one hundred or more workmen are employed or have been employed on any day in the preceding twelve months, the appropriate Government may by general or special order require the employer to constitute in the prescribed manner a Works Committee consisting of representatives of employers and workmen engaged in the establishment so however that the number of representatives of workmen on the Committee shall not be less than the number of representatives of the employer. The representatives of the workmen shall be chosen in the prescribed manner from among the workmen engaged in the establishment and in consultation with their trade union, if any, registered under the Indian Trade Unions Act, 1926. To comment upon matters of their common interest or concern and endeavour to compose any material difference of opinion in respect of such matters it shall be the duty of the Works Committee to promote measures for securing and preserving amity and good relations between the employer and workmen and, to that end Conciliation officers The appropriate Government may, by notice in the Official Gazette, appoint such number of persons as it thinks fit, to be conciliation officers, charged with the duty of mediating in and
the settlement of
industrial disputes. A conciliation officer may be appointed for a particular area or for individual industries in a specified area or for one or more specified industries and either permanently or for a restricted period.
Boards of Conciliation The appropriate Government may as occasion arises by notification in the Official Gazette constitute a Board of Conciliation for promoting the settlement of an industrial dispute. A Board shall consist of a chairman and two or four other members, as the appropriate Government thinks fit. The other members shall be persons appointed in equal numbers to represent the parties to the dispute and any person appointed to represent a party shall be appointed on the recommendation of that party: 98
Provided that, if any party fails to make a recommendation as aforesaid within the prescribed time, the appropriate Government shall appoint such persons as it thinks fit to represent that party and the chairman shall be an independent person A Board, having the prescribed quorum, may act notwithstanding the absence of the chairman or any of its members or any vacancy in its number: Provided that if the appropriate Government notifies the Board that the services of the chairman or of any other member have ceased to be available, the Board shall not act until a new chairman or member, as the case may be, has been appointed.
Courts of Inquiry The appropriate Government may as occasion arises by notification in the Official Gazette constitute a Court of Inquiry for inquiring into any matter appearing to be connected with or relevant to an industrial dispute. A Court may consist of one independent person or of such number of independent persons as the appropriate Government may think fit and where a Court consists of two or more members, one of them shall be appointed as the chairman. A Court, having the prescribed quorum, may act notwithstanding the absence of the chairman or any of its members or any vacancy in its number: Provided that, if the appropriate Government notifies the Court that the services of the chairman have ceased to be available, the Court shall not act until a new chairman has been appointed.
Labour Courts The appropriate Government may, by notification in the Official Gazette, constitute one or more Labour Courts for the adjudication of industrial disputes relating to any matter specified in the Second Schedule and for performing such other functions as may be assigned to them under this Act. By the appropriate Government, a Labour Court shall consist of one person only to be appointed. As the presiding officer of a Labour Court a person shall not be qualified for appointment, unless-99
He is, or has been, a Judge of a High Court; or He has, for a period of not less than three years, Additional District Judge or an; been a District Judge or He has held any judicial office in India for not less than seven years; or He has been the presiding officer of a Labour Court constitute under any Provincial Act or State Act for not less than five years.
Tribunals Whether specified in the Second Schedule or the Third Schedule, the appropriate Government may, by notification in the Official Gazette, constitute one or more Industrial Tribunals for the adjudication of industrial disputes relating to any matter. By the appropriate Government, a Tribunal shall consist of one person only to be appointed. As the presiding officer of a Tribunal a person shall not be qualified for appointment. unless-He is, or has been, a Judge of a High Court; or He has, for a period of not less than three years, been additional District Judge or an a District Judge The appropriate Government may, if it so thinks fit, appoint two persons as assessors to advise the Tribunal in the proceeding before it.
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National Tribunals The Central Government may, by notification in the Official Gazette, constitute one or more National Industrial Tribunals for the arbitration of industrial disputes which, in the opinion of the Central Government, engage questions of national significance or are of such a nature that industrial establishments situated in more than one State are likely to be interested in, or affected by, such disputes. A National Tribunal shall consist of one person only to be appointed by the Central Government. As the presiding officer of a National Tribunal 3 a person shall not be qualified for appointment [ unless he is, or has been, a Judge of a High Court]. The Central Government may, if it so thinks fit, appoint two persons as assessors to advise the National Tribunal in the proceeding before it. Disqualifications for the presiding officers of Labour Courts, Tribunals and National Tribunals.- not an single person shall be appointed to, or carry on in, the office of the presiding officer of a Labour Court, Tribunal or National Tribunal, if-He is not an independent person; or He has attained the age of sixty- five years.
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Laws Related to Lay off and Dismissal in South Korea Termination of employment Notice periods If an employee is dismissed, the LSA requires that the company provide the employee with 30 days' prior notice or 30 days' ordinary wages in lieu of notice. The company can be exempted from this requirement if either:
It can establish that it is impossible to maintain its business due to a natural disaster or other unavoidable reason.
The employee intentionally causes substantial problems for the company or intentionally damages company property.
The notice of dismissal must be given in writing, specifying the reason for dismissal and the effective date. Severance payments A company must pay statutory separation pay to any departing employee who has worked at a given company for at least one year, regardless of the circumstances under which the departure occurs (that is, whether it was a voluntary or involuntary departure). The legal minimum separation payment obligation for the employer is 30 days' average wage for each consecutive year of service. For the purposes of calculating separation payments, "average wage" includes all wages paid by the employer to the employee for the three-month period before the date of departure divided by the total number of days during the same period. The statutory separation pay must be paid within 14 days from the effective date of the employee's departure from the company, unless the time is extended by agreement. Procedural requirements for dismissal Korea is not an "employment at will" jurisdiction. As a general rule, under Article 23 of the LSA, an employer with five or more employees cannot dismiss, suspend, transfer or take any other adverse employment action without establishing "just cause" for its action. What constitutes just cause is not 102
expressly defined in the LSA. Therefore, if a dismissal is challenged by the artificial employee, the labour authorities and courts will consider all of the conditions to determine whether an employer has satisfied its burden of establishing just cause. As a matter of practice and interpretation, it is a highly severe and difficult standard to meet. In general, "just cause" to dismiss an employee can be based on the employee's own acts of serious or repeated misconduct or wrongdoing, or other poor performance issues, or on the employer's substantial business or economic reasons, generally termed "urgent business necessity". Misconduct /poor performance. If an employee challenges a dismissal for misconduct or poor performance, the courts will determine whether the dismissal was warranted by that particular misconduct or poor performance, considering the legislative intent behind the relevant case law and LSA. The key factors taken into consideration include:
The frequency and degree of the employee's misconduct or poor performance.
The impact on the company.
Whether the company gave the employee an opportunity to redeem themselves.
In general, it is more difficult for the employer to establish just cause in relation to a poorly performing employee than in the case of an employee who has committed serious misconduct. Layoffs for economic reasons: The LSA provides that an employer can dismiss workers if it can show that there is an "urgent business necessity" to do so. In practice, this reason for dismissal constitutes a redundancy/layoff situation. In addition, when dismissing employees the company must observe the procedures outlined in the Rules of Employment (ROE) or in other company regulations. In the absence of specific provisions concerning the procedures to be followed, a company is not legally obliged to provide any particular form of due process. However, from a practical standpoint, fair and appropriate due process procedures are strongly recommended by labour authorities when dismissal is involved. Typically, a disciplinary action committee (comprised of management members) will hold a meeting at which the employee can present a defence before the committee renders its decision to dismiss or carry out any disciplinary measures.
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What protection do employees have against dismissal? Are there any specific categories of protected employees? Protection against dismissal An employee dismissed for just cause who believes that there is no just cause for the dismissal can challenge the dismissal by bringing a claim before the relevant Regional Labour Relations Commission (RLRC). The RLRC will conduct a single hearing, and generally provides a decision within two to three months. If the RLRC decides that the employee was dismissed unfairly, it can order the employer to reinstate the employee with back pay. The RLRC's decision can be appealed by either the employee or the employer to the National Labour Relations Commission (NLRC). Subsequent appeals must be filed within the court system, starting with the administrative court, followed by the appellate court, and finally the Supreme Court. If the employer does not comply with the RLRC's order to reinstate the affected employee with back pay, the RLRC can impose an administrative penalty (which is not a criminal fine) of up to KRW20 million. If the employer still does not comply, the penalty can be imposed up to four times within a two-year period. An employee dismissed without just cause can also begin civil measures at the District Court. If the employer does not comply with a decision to restore the employee with back pay once the decision has become final (that is, after the appeals process has been completed), the Ministry of Employment and Labour (MOEL) can file a criminal grievance against the employer, with likely penalties of up to one year's imprisonment or a fine o f up to KRW10 million. This fine is often applied both to the company and the individual representative in charge of operations (usually the representative director). Protected employees Employees who are on maternity leave or sick leave are protected from dismissal. Redundancy/layoff Definition of redundancy/layoff The LSA provides that an employer can dismiss workers if it can show that there is an "urgent business necessity" to do so subject to certain procedural requirements. Where there is an "urgent business necessity" reason, the employer can make redundant or lay off employees.
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Procedural requirements The "urgent business necessity" standard has been interpreted to mean that a company must demonstrate losses over a considerable period of time (at least one or two years). The Supreme Court has held that this standard can be satisfied in the event of continuous losses which may trigger bankruptcy, but cannot be satisfied by temporary business losses. The performance of the company as a whole, not a particular division, will be examined unless a division is truly independent from the other divisions and acts as an autonomous business unit. While the winding-up of a business is per se a justifiable reason for dismissal of employees, the closure of a division would not constitute a justifiable reason, unless the division is independent from the rest of the company or another separate business justification exists. In addition, the Supreme Court has indicated that the restructuring or reorganisation of a company to improve productivity, strengthen competitiveness, change the business of the company, or change the organisational structure of the business or industry, may qualify as legal grounds for dismissal of employees. Therefore, a business line or division closure may also constitute an "urgent business necessity" if the purpose of the closure satisfies the Supreme Court's criteria. A company is required to make every effort to avoid layoffs. Court precedents indicate that these efforts should include the following:
Freezing of salary.
A freeze on new hiring.
Reducing work hours and eliminating overtime.
Rationalising the work system.
Implementing cost-cutting measures.
Transferring employees to other departments, or transferring them for education and training.
Temporary suspension.
Seeking voluntary resignations.
Who will be subject to layoffs, reasonable and fair criteria must be used to select the employees, and 50 days' befor notice must be given to the union or the representative of the majority of employees. The employer must engage in good faith consultation to examine possible measures to avoid dismissals and to identify the selection criteria for dismissals. If a certain threshold number of employees is to be laid 105
off (generally 10%), a layoff report must be filed with the MOEL at least 30 days before the effective date of the layoffs. If, within three years after a layoff, the employer decides to reinstate jobs from which employees were dismissed, the employer must first offer those jobs to the previously dismissed employees before hiring new employees. Layoff pay/redundancy A company must pay statutory separation pay to any departing employee who has worked at a given company for at least one year, regardless of the circumstances under which the departure occurs (that is, whether it was a voluntary or involuntary departure). The legal minimum separation payment obligation for the employer is 30 days' average wage for each consecutive year of service. For the purposes of calculating separation payments, "average wage" includes all wages paid by the employer to the employee for the three-month period before the date of departure divided by the total number of days during the same period. The statutory separation pay must be paid within 14 days from the effective date of the employee's departure from the company, unless the time is extended by agreement. Empl8oyers are not required to provide benefits for employers who are laid off, other than the employee's statutory separation pay entitlement. However, as a matter of practice, additional payments are often made in exchange for the employee's resignation, release and waiver.
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SWOT Analysis Every country is having laws according to their need and use but many of the changes have been done according to the economic and social changes. After a detail study of each country we have found out different Strength, Weakness, Opportunity, and Threat (SWOT) of India and South Korea. Below table (Table 3) explains the SWOT of both the countries:-
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Table 4: SWOT Analysis of South Korea and India Trade Unions Act. India
South Korea
Strength
Strength
In India there is a strong political backing for
the
trade
unions.
development
Trade unions are in a comfortable position & have a control over the
Goals and policies for economic were
set
by
the
authoritarian government.
management.
Establish a centralised bargaining system and strengthen their socio-
Employees in India have now realized the importance of collective bargaining in
political power.
trade union.
Promote peaceful and cooperative relations
Employees have still believe in trade union as they belief the trade union
between
unions
and
employers.
really works for their welfare
Regional labour inspectors police and supervise
working
conditions
in
accordance with the Labour Standards Act, and take action to prevent and deal with labour disputes.
Working conditions in accordance with the Labour Standards Act, and take action to prevent and deal with labour disputes.
Weakness
Weakness 108
In India it is always seen that the government does not frame proper policies & rules which should be in favour of trade union.
There is large corruption among the trade union in India.
Opportunities
Opportunities
In future because of good political back
Employment relations were controlled
up of trade union there is a good
by government interventionist policy
chances of getting support from the
aimed at securing cheap and strike-
government to the trade union.
free labour.
Many employees in India are un unionized
&
face
problem
The Ministry of Labour covers labour
from
standards, IR, employment insurance
the management, because of which they
and equality, vocational training and
are willing to form trade union.
occupational safety.
Improving industrial relations.
Threats
Threats
Privatization is perceived as a biggest threat by the trade union.
independent trade unions affiliated to
Due to globalization various MNC’s are
neither national centre.
entering into India which do not have the concept of trade union.
265,156 workers were members of
Anyone can start a trade union of themselves.
(Source: Compiled by students)
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Table 5 : Industrial Disputes Act
110
India
South Korea
Strength
Strength
To secure industrial peace
To ameliorate the condition of
efficiently as possible.
workmen in industry.
Resolve disputes as expeditiously and
Korea has established various Conciliation or Mediation Committees.
It was enacted to make provisions for settlement and investigation of industrial disputes and for providing certain safeguards to the workers.
Securing and preserving amity and good relations between the employer and workmen
Labour Courts for the adjudication of industrial disputes
Weakness
Weakness
Conciliation officers charged with the
There is a growing gap in overall
duty of mediating in and promoting
employment conditions between the
the settlement of industrial disputes.
primary sector for regular workers at large firms and secondary sectors for workers in small firms and nonstandard employees.
Opportunities
Opportunities
Providing certain safeguards to the workers.
Reduce strike and lockout
Threats
Threats
Increase lockout due to political and other intervention. 111
Increase strike and lockout
Table 6 : Minimum Wage Act India
South Korea
Strength
Strength
Minimum wage is that level of wage that not just maintains a level of employment,
the lives of low-income workers.
but seeks to increase it keeping in perspective the industry’s capacity to pay.
Minimum wage Act was passed to stabilize
Its aims to stabilize the livelihood of lowincome workers and narrow wage gap.
To protect interest of certain types of workers.
Weakness
Weakness
It is too difficult to calculate minimum
When passed, this act applied only to
wages act as per rules of fixation and
manufacturing companies employing 10 or
revision of this minimum wages act and
more workers.
there is lack of awareness about this act to
Bonus calculation is also difficult.
the workers.
Opportunities
Opportunities
Good support from the government to the
employee.
The minimum wage for all workers rose to 5,210 per hour as of 01 January 2014. Minimum wage workers will now receive 1.09 million won a month for 40 hours work a week.
Threats
Threats
Delays in wages in inflation time period.
That means less protection against inflation.
A person who has violated the said provisions shall be punished by imprisonment of up to three years or a fine up to 20 million won
(Source: Compiled by students)
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Table 7 : Laws Related to Equality and Empowerment of Women India
South Korea
Strength
Strength
constitution has provided equality of both the sexes man and women but biological
two of the South Korean laws.
condition of the female and developed
There are great provisions for women in
The participation of women in the political
sense of subordination demand extra
arena is a growing trend in the twenty-first
protection for them
century.
There are many laws and many sub sections
The Gender Equality Employment and
to support Women Equality and
Work-Family Balance Support Act 1987
empowerment.
(GEEA) likewise prohibits employment
All most every law contains a Section
discrimination based on gender, focusing in
related to women protection and safety.
particular on discrimination against women.
Weakness
Weakness
Lack of support from government. Laws are merely on paper only.
within the bounds of the family and not in
Laws are not properly implemented
jobs, politics or society as a whole.
in all sectors of the industry.
Women’s rights and welfare were limited
Decline in female labour force participation in south Korea.
Lack of in women knowledge about their rights in law.
Opportunities
Opportunities
Maternity benefits Act should be extended to the women working in the agricultural
positions within South Korean politics,
sector.
there is great scope for improvement.
Need to family responsibilities and
harmonise work for women
As only a few women hold leadership
Different laws can be formulated for women like India for different sector.
Women would be encouraged to become literate.
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Threats
Threats
The legislative measures are in favour of
In 2008 South Korea’s global ranking in
women, but their success depends on
women’s rights fell four points to 68th from
effective implementation.
its 2007 ranking of 64th, based on the 2008
Amendments and the new laws add to the
Gender Empowerment Measure (GEM)
confusion
released in 2009
(Source: Compiled by students)
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Table 8 : Lay Off / Dismissal India
South Korea
Strength
If
Strength the
employee
is
not
given
any
The company pays statutory separation pay
employment even after presenting himself
to the departing employee who has worked
in the second half of the day, he shall not
at least for one year regardless of the
be deemed to have been laid- off for the
reason for leaving.
second half of the shift for the day and shall be entitled to full basic wages and dearness
Reasonable and fair criteria is used to select employees to layoff.
allowance for that part of the day.
Weakness
Weakness
If an employee dismissed for just cause believes that there is no just cause for the dismissal can challenge the dismissal by bringing a claim before the relevant Regional Labour Relations Commission (RLRC).
The RLRC will conduct a single hearing, and generally provide a decision within two to three months.
Opportunities
Opportunities
The definition of lay off is very limited so we can extend it by adding extra provisions.
A company must pay statutory separation pay to any departing employee who has worked at a given company for at least one year, regardless of the circumstances under which the departure occurs.
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An employer with five or more employees
cannot dismiss, suspend, transfer or take any other adverse employment action without establishing "just cause" for its action.
Threats
Threats
If the appropriate Government notifies the
A practical standpoint, fair and appropriate
Court that the services of the chairman are
due process procedures are strongly
not available, the Court shall not act until a
recommended by labour authorities when
new chairman has been appointed.
dismissal is involved.
(Source: Compiled by students)
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Table 9 : Working Hours, Working conditions ,Health and Safety India
South Korea
Strength
Strength
A worker can take up to six weeks' paid sick leave during a 36-month cycle.
the qualifications prescribed by the Ordinance of the Ministry of Labour
A employee can take up to 21
monitor and evaluate the work
continuous days annual leave or by
environment of the workplaces
agreement, one day for every 17 days
prescribed by the Ordinance of the
worked or one hour for every 17 hours
Ministry of Labour, where work
worked.
harmful to workers’ health is carried
A worker must have a daily rest period
out, record and keep the results and
of 12 continuous hours and a weekly
report them to the Minister of Labour
rest period of 36 continuous hours,
under the conditions prescribed by the
which, unless otherwise agreed, must
Ordinance of the Ministry of Labour.
include Sunday.
An employer shall have a person with
Employees must be paid for any public holiday that falls on a working day.
Weakness
Weakness
If overtime is needed, workers must
Most people work late, with the end of
agree to do it.
working day often reaching the late
An employer may want a medical
evening hours.
certificate before paying a worker who is sick for more than two days at a time or more than twice in eight weeks.
Opportunities
Opportunities 117
They may not work for more than three hours overtime a day or ten hours
for the prevention of industrial
overtime a week.
accidents as prescribed by this Act and any order issued under this Act, and
A worker must have a meal break of 60
are subject to measures for the
minutes after five hour work.
A worker shall observe the standards
prevention of industrial accidents taken
A worker who sometimes works on a
by the employer or other related
Sunday must get double pay. A worker
organizations.
who usually works on a Sunday must be paid 1.5 times the normal wage.
For night workers, they must get extra pay or be able to work fewer hours for the same amount of money.
Threats
Threats
Leave must be taken not more than six
About 21.8% suffered from unlawfully
months after the end of the leave
long working hours, exceeding 52 hours
cycle.
per week last year”.
An employer can only pay a worker instead of giving leave if that worker leaves the job.
(Source: Compiled by students)
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India
South Korea
Table 10 : Social Security Law 119
trength
Strength
Social Security protects not just the
Workers' Compensation Insurance, to
subscriber but also his/her entire
which the employer contributes
family by giving benefit packages in
between 0.6% and 35.4% (depending
financial security and health care.
on the industry). The employee does
Social Security schemes are designed
not make any contributions to this.
to guarantee the long-term sustenance to families.
The main strength of the Social Security system is that it acts as a facilitator - it helps people to plan their own future through insurance and assistance.
Weakness
Weakness
There are no specific laws addressing
the special protocols on consent. In
India our situation is entirely different
programme, only those employees of
from that obtaining in developed
industrial firms with 10 or more
countries. The key differences are:
workers were insured.
India does not have universal social security system.
It does not face the problem of exit rate from the workplace being higher than the replacement rate but on the contrary lack of employment opportunities is the key concern.
Initially under the national pension
91.5% of the workforce is in the informal sector where records are not maintained and the system of pay roll deduction is difficult to apply.
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Opportunities
Opportunities
In this increasing migration, urbanization and demographic changes
personnel and private school teachers
there has been a decrease in large
are provided with either a government
family units. This gives the formal
pension or a lump sum payment at
system of social security the
retirement.
importance and opportunity for
Civil servants, regular military
In this programme by providing cash
widening the coverage of Social
benefits and medical benefits for short-
Security schemes.
term contingencies such as maternity
It helps to make a more positive
and sickness.
attitude to the challenge of globalization and the consequent structural and technological changes. Threats
Threats
Unawareness and lack of knowledge of
The basic old age pension requirement
social security plans to the employees.
is that the employee must have at least
Ignorance of social security schemes by
20 years of service.
the companies
(Source: Compiled by students)
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Table 11 : Work ethics, salaries and holidays
India
South Korea
Strengths
Strengths
The Longer working hours in India can
South Korea has the least working
result in higher pay .Overtime pay boosts
hours. The government has
income.
continuously increased public holidays to 16 days in 2013.
Weaknesses
Weaknesses
Increase in energy load on the grid during
Increased costs of running businesses.
peak hours.
When employees are forced to work
Forces employees to work overtime in
part-time jobs, they may need to
some situations.
acquire additional employment to maintain standard of living.
Opportunities
Opportunities
The Government shall take steps, by
Entrenching cooperative industrial
suitable legislation or in any other way, to
relations. Securing the dynamic and
secure the participation of employee in the
flexibility of the labour market. More
management of undertakings,
employment offerings.
establishments or other organizations engaged in any industry. Threats
Threats
An employer can only pay a worker instead of giving leave if that worker leaves the job.
Those who do miss days of work should expect a reduction in paid leave time.
(Source: Compiled by students)
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Suggestions 1. In both the countries laws are not properly implemented some of the laws are just on the pieces of paper. 2. Some of the articles are repeated in many laws /sections, leading to confusion in its interpretation by employers /employees as well as consultant/ lawyers. Thus laws needs to be well structured and be properly merged. 3. Labour, especially blue collared workers and women are not aware about their rights, which are present in laws of both countries. So the government of both the countries should take proper measures to provide knowledge about the laws, Specially to the employees. 4. All the labour law of both the country should be framed in easy and understandable language.
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