THE CODE ON WAGES, 2019 – PART III

[Mr. M. GOVINDARAJAN]

Advisory Board

The Code provides for the establishment of Central Advisory Board and State Advisory Board.

Central Advisory Board

The Central Government shall constitute the Central Advise Board.  The said Board shall consist of the following persons to be nominated by the Central Government-

• representing employers;
• representing employees – equal to number of members representing employers;
• independent persons – not exceeding one third of the total members of the Board – A member in the category specified by the Central Government shall be appointed as the Chairperson of the Board;
• 5 representatives of such State Governments as may be nominated by the Central Government.

One third of members shall be women.  The Central Advisory shall regulate its own procedures.  The terms of the office of the Central Advisory Board shall be as prescribed  by the Central Government.

Functions of the Central Advisory Board

The Central Advisory Board, from time to time, shall advise the Central Government on reference of issues  relating to-

• fixation or revision of minimum wages and other connected matters;
• providing increasing employment opportunities for women;
• the extent to which women may be employed in such establishments or employments  as the Central Government may specify;
• any other matter relating to the Code.

On the advice of the Central Advisory Board, the Central Government may issue to the State Governments as it deems fit.

State Advisory Board

The State Government shall constitute a State Advisory Board.  The State Advisory Board may constitute one or more committees or sub committees to look into the issues pertaining to this Code.  The State Advisory Board and each of the committee and sub committees shall consist of persons-

• representing employers;
• representing employees – equal to number of members representing employers;
• independent persons – not exceeding one third of the total members of the Board – A member in the category specified by the State Government shall be appointed as the Chairperson of the Board;  one member appointed by the Advisory Board shall be appointed as the Chairperson of the committee or subcommittee;

One third of members of the State Advisory Board, committee and subcommittee shall be women.  The State Government shall regulate its own procedure for the State Advisory Board, the committee and sub committees.  The terms of the office of the State Advisory Board, the committee and sub committees shall be as prescribed by the respective State Government.

Functions of the State Advisory Board

The State Advisory Board shall advise the State Government-

• in fixation or revision of minimum wages and other connected matters;
• for the purpose of providing increasing employment opportunities for women;
• the extent to which women may be employed in such establishments or employments  as the State Government may specify;
• any other matter relating to the Code, which the State Government may refer from time to time to the Board.

While tendering the advice on increasing employment opportunities for women, the State Advisory Board shall have regard to-

• the number of women employed in the concerned establishment or employment;
• the nature of work;
• the hours of work;
• the need for increasing employment opportunities including part time employment

and such other relevant factors as the Board may think fit.

The State Government, on receipt of the Advise from the State Advisory Board, shall invite the representations from the establishment or employees or any other person which the Government thinks fit.  On the advice and the representations received, the State Government shall issue directions as may be deemed necessary.

Payment of dues

Every employer shall pay all the amount required to be paid by him to every employee employed by him.  If such employer fails to pay the same, then the company or the firm or association or any other person who is the proprietor of the establishment, shall be responsible for such payment.

Payment on death of an employee

The employer, in case of death of an employee, shall pay the dues of the deceased employee to the person nominated by the employee.  If there is no nomination then the employer shall deposit the dues with the respective authority, which in turn, enquire, decide and disburse the amount to the eligible persons.

Procedure to claim the dues

The procedure to claim the dues under the Code is as detailed below-

• The appropriate Government may appoint an authority, not below the rank of a Gazetted Officer, to hear and determine the claims which arise under this Code.
• The application for the claim may be filed by-

• the employee concerned;
• any trade union in which the employee is a member;
• the Inspector-cum-Facilitator.

• A single application may be filed in respect of number of employees employed in an establishment.
• The application may be filed within 3 years from the date on which the claim arises.
• The application, filed 3 years, may be allowed by the Authority if sufficient cause was shown which prevents him from filing the application.

• The said authority while decide the claim is to consider the circumstances under the claim arises.
• The authority may award compensation to the claimant in addition to the claim.
• Such compensation shall be up to ten times of the claim made to the authority.
• The authority shall decide the claim within 3 months from the date of receipt of the claim.
• The employer is to pay the claim amount and compensation, if any, as directed by the Authority.
• If the employer fails to pay the same the authority shall issue a certificate of recovery to the Collector or District Magistrate of the District where the establishment is located.
• The Collector or District Magistrate, on receipt of the said recovery certificate, shall recover the same as arrears of land revenue and remit the same to the authority for payment to the concerned employee.

Appeal

The Code provides for the appointment of Appellate Authority.  The Appellate Authority shall be appointed from the officers of the appropriate Government holding the post one rank higher than the authority.

Any person aggrieved by an order passed by the Authority may prefer an appeal to the Appellate Authority within 90 days from the date of such order, in such form and in such manner as may be prescribed.   The Appellate Authority may entertain an appeal after 90 days if it is satisfied that the delay in filing the appeal has occurred due to sufficient cause.  The Appellate Authority shall dispose the appeal after hearing the parties to the appeal.  The appeal shall be disposed within 3 months from the date of filing the appeal. 

The employer shall pay the amount as ordered by the Appellate Authority.  If the employee fails to pay the same, then the same may be recovered as arrears of land as discussed above.

Industrial dispute

Where any disputes arises between the employer and the employee with respect to-

• fixation of bonus or eligibility of bonus; or
• the application of the Code, in respect of bonus, to an establishment in public sector

then such dispute shall be deemed to industrial dispute under Industrial Disputes Act, 1947.

Accuracy of accounts

Where, during the course of proceedings before-

• the authority; or
• the appellate authority; or
• the tribunal; or
• an arbitrator

in respect of any dispute, the balance sheet and profit and loss account of the corporation or company duly audited by the auditor, then such authority shall presume the statements and the particulars contained in such balance sheet and profit and loss account to be accurate.  The corporation or the company need not required to prove the accuracy of the same.

If such authority finds that the balance sheet and the profit and loss account is not accurate, then such authority may take such steps as it thinks necessary to find out the accuracy of such statements and particulars.

If an application is made to such authority by the claimant or the union requires any clarification from such accounts, then such authority is satisfied that such clarification is necessary, such authority may, by order, direct the corporation or the company to furnish the employer or the trade union within such time as may be specified in the order.  The corporation or the company is bound to comply with the order of the authority.

In respect of the employer who is not a corporation or company, is required to submit the audited accounts of the employer before such authority.  If such accounts are not audited the authority may direct the employer to get his accounts audited within such time as may be specified and the employer shall comply with such directions.  If the employer fails to comply with the auditor, the authority may get the accounts audited by other auditors.  In such cases the expenses of the auditor shall bear by the employer.

Records and registers

Every employer of an establishment to which the Code applies shall maintain a register containing the details with regards to the persons employed, muster roll, wages and such other details in such manner as may be prescribed.

Abstract of the Code

Every employer shall display a notice on the notice board at a prominent place of the establishment containing the abstract of the Code, category wise wage rates of employees, wage period, day or date and time of payment of wages and the name and the address of Inspector-cum-Facilitator having jurisdiction.

Wage slip

Every employer shall issue a wage slip to the employees. 

Inspector-cum-facilitator

The appropriate Government may appoint Inspector-cum-facilitators.  The territorial jurisdiction may be fixed by the appropriate Government.  The appropriate Government may lay down the inspection schemes which may provide for generation of web based inspection and calling information relating to the inspection electronically.

Functions of Inspector-cum-facilitator

The Inspector-cum-facilitator may-

• advice to the employers and workers relating to compliance with this Code;
• inspect the establishments as assigned to him by the appropriate Government.

Powers of Inspector-cum-facilitator

The Inspector-cum-facilitator may-

• examine any person in an establishment who is a worker;
• require any person to give information with respect to the names and addresses of the persons;
• search, seize  or take copies of such register, record of wages or notices or portion thereof as may relevant in respect of an offence and he has reason to believe that the employer has committed such offence;
• bring to the notice of the appropriate Government defects of abuses not covered by any law for the time being in force; and
• exercise such other powers as may be prescribed.

Cognizance of offences

No Court shall take cognizance of any punishable under this Code unless on a complaint-

• made by or under the authority of the appropriate Government; or
• by an employee; or
• a registered trade union registered under Trade unions Act; or
• an Inspector-cum-facilitator.

No court inferior to that of a Metropolitan Magistrate or Judicial Magistrate of the First Class shall try the offences under the Code.

Penalties for offences

Any employee who-

• pays less than the amount due to the employee – fine up to ₹ 50,000/-;
• second and subsequent of the above offence within five years – imprisonment up to 3 months or with fine up to ₹ 1,00,000/- or with both;
• contravention of the provisions of the Code – fine up to ₹ 20,000/-; second and subsequent of this offence – imprisonment up to one month or fine up to ₹ 40,000/- or with both;
• for non maintenance of records and registers – fine up to ₹ 10,000/-

Offences by companies

If the offence is committed by a company, every person who, at the time the offence was committed was  in charge of and responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to guilty of the offence and shall be liable to be proceeded against and punished accordingly.

If such person proves that such offence was committed without his knowledge or he has exercised due diligence to prevent the commission of the said offence, then he is not liable to be punished.

If an offence is committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such person shall also be deemed to be guilty of that offence and shall be proceeded against and punished accordingly.

Composition of offences

Any offence punishable under this Code, not being an offence punishable with imprisonment only or with imprisonment and also with fine may be compounded.  Such offences may be compounded by a Gazetted Officer appointed by the appropriate Government.  Such offence may be compounded for a 50% of the maximum fine imposed on such offence.  If the offence is committed for second and subsequently the same cannot be compounded. 

Where any offence is compounded before the institution of any prosecution, no prosecution shall be initiated in relation to such offence, against the offender in relation to whom the offence is compounded.

Where any offence is compounded after the institution of any prosecution, such composition shall be brought by the officer in writing to the notice of the  Court in which prosecution is pending and on such notice of the composition of the offence being given, the person whom the offence is so compounded shall be discharged.

If any person fails to comply with the compounding order, such person shall be punished with a sum equivalent to 20% of the maximum fine provided for such offence, in addition to the fine.

Contracting out

A contract or agreement whereby an employee relinquishes the right to any amount or the right to bonus due to him under this Code shall be null and void in so far as it purports to remove or reduce the liability of any person to pay such amount under this Code.