Clarification needed on workman definition

Author: | Published: 1 Oct 2011
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Labour laws continue to lag behind business developments say lawyers, resulting in uncertainty and ambiguity in the application of certain laws in the country. For example, the definition of 'workman’, and issues surrounding this discussion, has revealed that clarification is needed so as to protect the segments of workers intended by the laws.

The majority of labour laws in India, which were originally drafted between 1930 and 1970, were intended for manufacturing units. With the tremendous growth in the services sector in the last 20 years, the laws have failed to keep pace with developments resulting in some ambiguity on which employees are covered under which laws.

Most Indian labour laws would apply for employees defined as 'workmen’. A 'workman’ has been defined as any person employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work (if earning less than Rs.10,000 per month).

Sajai Singh of J Sagar Associates says: "In other words, any employee hired by an employer to do work of a clerical or repetitive nature without much application of the mind would be termed a workman. While many employees of an establishment may fall outside of this definition, such as the management and persons employed in a supervisory role, certain employees might fall under the definition depending upon the nature of the work carried out by them."

The designation of an employee is not of much importance either, says N Raja Sujith of Majmudar & Co. "The courts should look into the nature of duties being performed by the employee. The determinative factor is the main duties of the employee and not works incidentally done."

The Supreme Court has agreed that courts need to consider the facts and circumstances of cases and materials on record when deciding whether an employee is a workman or not. "It is not possible to lay down any strait-jacket formula that can decide the dispute as to the real nature of duties and functions being performed by an employee in all cases, and thus define the segments of employees who will be defined as workmen as far as the laws are concerned," says Sujith.

The Industrial Disputes Act (IDA) is one such piece of legislation for which the definition of a 'workman’ will have particular import. The IDA provides some protection from termination and change in service conditions etc., to employees defined as workmen. Nohid Nooreyezdan of AZB & Partners says: "The definition of a workman is very wide and could include even a very highly paid, highly educated employee who is not engaged in a managerial or a supervisory role. There is no general monetary salary threshold to determine who would fall within the definition of a 'workman’ and this generally results in protection being available to employees who may not have been intended to be protected by the statute."

Practitioners recommend caution and safety-first attitudes when it comes to the labour laws. While it is observed that legislation such as the IDA typically only applies to industrial businesses and only mandate termination-related procedures for defined workmen, there is some uncertainty on whether such procedures would need to be followed for managerial employees or supervisory employees falling outside the workman definition. Singh says: "Due to Indian courts being traditionally more sympathetic to the cause of employees rather than their employers, it is advisable to follow such [IDA mandated] procedures as far as possible even for the termination of managerial employees."