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| 11 | Can employees be hired through employment agencies (leased employees)? * Is there any limitation regarding the period of employment for agency employees? * Is there any limitation as to function and duties that agency employees can perform? * How are a corporates interests best protected from claims by agency employees? Yes, employees can be hired through employment agencies. Employment agencies can either: a) Introduce staff who will then become employees of the hirer and be paid directly by the hirer b) Supply staff who are employees of the agency for a fee to the agency Staff in category (a) will be in the same position as any other employee of the hirer once introduced by the agency Staff in category (b) (leased employees) are not under any limitation on terms of period of employment and functions and duties. However, under the Contract Labor (Regulation and Abolition) Act, 1970, in case of notification by the appropriate government, certain areas of work have to necessarily be performed by permanent employees of the company and cannot be outsourced. If the corporate does not wish to take on the person as its employee, it is recommended that: a) The contract with the agency should clearly elucidate that the relationship exists with the agency only and not with any individual b) All payments should be made to the agency and not to the individual c) Correspondence should be addressed to the agency and not directly to the individual d) The individual should be employed by the agency. The corporate should acquire proof of this on it's files e) The contract should only mention the nature and volume of service provided and not state details of the kind and number of employees performing the service. f) The employees of the agency should not on record, be under the supervision and control of the hirers employees e.g. bills, vouchers, etc. should not be signed off. Ideally, a supervisor provided by the agency under indirect control of the hirer should be part of the contract. It is also recommended that the corporate ensures that the agency meets all statutory labor law requirements with regard to the individuals supplied as in case of non-compliance, the corporate is likely to be held liable equally with the agency. |
| 12 | Can employees be hired through employment agencies (leased employees)?
* Is there any limitation regarding the period of employment for agency employees? * Is there any limitation as to function and duties that agency employees can perform? * How are a corporates interests best protected from claims by agency employees? Yes, employees can be hired through employment agencies. Employment agencies can either: a) Introduce staff who will then become employees of the hirer and be paid directly by the hirer b) Supply staff who are employees of the agency for a fee to the agency Staff in category (a) will be in the same position as any other employee of the hirer once introduced by the agency Staff in category (b) (leased employees) are not under any limitation on terms of period of employment and functions and duties. However, under the Contract Labor (Regulation and Abolition) Act, 1970, in case of notification by the appropriate government, certain areas of work have to necessarily be performed by permanent employees of the company and cannot be outsourced. If the corporate does not wish to take on the person as its employee, it is recommended that: a) The contract with the agency should clearly elucidate that the relationship exists with the agency only and not with any individual b) All payments should be made to the agency and not to the individual c) Correspondence should be addressed to the agency and not directly to the individual d) The individual should be employed by the agency. The corporate should acquire proof of this on it's files e) The contract should only mention the nature and volume of service provided and not state details of the kind and number of employees performing the service. f) The employees of the agency should not on record, be under the supervision and control of the hirers employees e.g. bills, vouchers, etc. should not be signed off. Ideally, a supervisor provided by the agency under indirect control of the hirer should be part of the contract. It is also recommended that the corporate ensures that the agency meets all statutory labor law requirements with regard to the individuals supplied as in case of non-compliance, the corporate is likely to be held liable equally with the agency. |
| 13 | What legal requirements must be met in drafting the employment agreement (job description, wages, notice period, employee obligations, etc.)?
The contract of employment does not have to be in writing under Indian Law. However, it is preferable to lay down in writing the terms of employment for although these are not conclusive evidence of the terms of employment, they are a strong indicator of the same. The particulars of employment which should be set out in a contract of employment are: 1)The name of the employer 2) The name of the employee 3) Date of beginning of employment 4) The scale or rate of remuneration 5) The intervals at which remuneration is paid 6) Terms and conditions relating to the hours of work 7) The employee's job title or a brief description of work for which the employee is employed 8) The place of work 9) The length of notice both parties are required to give for termination of contract 10) The term of employment (if fixed term) and statement of age of superannuation 11) Mention of any collective agreements which affect the terms and conditions of employment 12) Terms of leave and other benefits which the employees in that cadre are normally entitled 13) Liability of the employee to transfer of a permanent or temporary nature to any of the company's branches or subsidiaries in India or overseas 14) Any disciplinary rules and reference to a code of conduct, lapse of which will render an employee liable to disciplinary action 15) Probationary period if any 16) Confidentiality clauses |
| 14 | What legal requirements must be met in drafting the employment agreement (job description, wages, notice period, employee obligations, etc.)?
The contract of employment does not have to be in writing under Indian Law. However, it is preferable to lay down in writing the terms of employment for although these are not conclusive evidence of the terms of employment, they are a strong indicator of the same. The particulars of employment which should be set out in a contract of employment are: 1)The name of the employer 2) The name of the employee 3) Date of beginning of employment 4) The scale or rate of remuneration 5) The intervals at which remuneration is paid 6) Terms and conditions relating to the hours of work 7) The employee's job title or a brief description of work for which the employee is employed 8) The place of work 9) The length of notice both parties are required to give for termination of contract 10) The term of employment (if fixed term) and statement of age of superannuation 11) Mention of any collective agreements which affect the terms and conditions of employment 12) Terms of leave and other benefits which the employees in that cadre are normally entitled 13) Liability of the employee to transfer of a permanent or temporary nature to any of the company's branches or subsidiaries in India or overseas 14) Any disciplinary rules and reference to a code of conduct, lapse of which will render an employee liable to disciplinary action 15) Probationary period if any 16) Confidentiality clauses |
| 15 | Are there any other agreements between the employer and employee which govern the employment relationship besides the employment agreement (e.g. company regulations/rules or union contracts) ?
The employer may lay down reasonable rules for conduct at work. In case of an industrial establishment employing 100 or more workmen on any day of the preceding twelve months, as per The Industrial Employment (Standing Orders) Act, the employer is required to define with sufficient precision, the conditions of employment and to make the said conditions known to workmen employed with them. These standing orders have to be registered with the appropriate authorities. Agreements between an employer and a trade union will also influence the employment relationship by incorporation in the terms of employment or laying down of a procedural agreement e.g. disciplinary procedure etc. |
| 16 | Are there any other agreements between the employer and employee which govern the employment relationship besides the employment agreement (e.g. company regulations/rules or union contracts) ?
The employer may lay down reasonable rules for conduct at work. In case of an industrial establishment employing 100 or more workmen on any day of the preceding twelve months, as per The Industrial Employment (Standing Orders) Act, the employer is required to define with sufficient precision, the conditions of employment and to make the said conditions known to workmen employed with them. These standing orders have to be registered with the appropriate authorities. Agreements between an employer and a trade union will also influence the employment relationship by incorporation in the terms of employment or laying down of a procedural agreement e.g. disciplinary procedure etc. |
| 17 | Are there any categories of discrimination that are prohibited? How are the anti-discrimination bans enforced?
Discrimination in employment in relation to terms of employment in India is restricted to the principle of equal pay for equal work under the Equal Remuneration Act, 1976 which requires equal pay and contractual benefits for men and women doing work rated as equivalent or work of equal value. There are as yet, no employment statutes prohibiting discrimination on grounds of race, religion, etc although these are fundamental principles in the constitution. |
| 18 | Are there any categories of discrimination that are prohibited? How are the anti-discrimination bans enforced?
Discrimination in employment in relation to terms of employment in India is restricted to the principle of equal pay for equal work under the Equal Remuneration Act, 1976 which requires equal pay and contractual benefits for men and women doing work rated as equivalent or work of equal value. There are as yet, no employment statutes prohibiting discrimination on grounds of race, religion, etc although these are fundamental principles in the constitution. |
| 19 | If the applicant is not a citizen, what requirements must be met before the person can be employed?
If the applicant is not a citizen, the employer is required to make an application to the Ministry of Home Affairs with a copy of the appointment letter for the issue of a work permit. He is then to register with the Foreigner’s Regional Registration Office and obtain an endorsement on his passport. |
| 20 | If the applicant is not a citizen, what requirements must be met before the person can be employed?
If the applicant is not a citizen, the employer is required to make an application to the Ministry of Home Affairs with a copy of the appointment letter for the issue of a work permit. He is then to register with the Foreigner’s Regional Registration Office and obtain an endorsement on his passport. |
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