Draft Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Rules, 2018 Notified

Introduction

On 2 February 2018, the Government of Maharashtra (Government) notified draft Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Rules, 2018 (Draft Rules) under the Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Act, 2017 (2017 Act) for public comments. The Draft Rules, once made effective, will repeal the Maharashtra Shops and Establishments Rules, 1961 (1961 Rules).

Key Highlights

Key highlights of the Draft Rules are:

Ø Applicability: In line with the applicability of the 2017 Act, the Draft Rules apply only to establishments employing 10 (ten) or more workers.
Ø Registration Process: Under the Draft Rules, the employer of an establishment has to submit an online application for registration, which will be assigned to the local Facilitator. If the Facilitator approves the application, the employer is required to digitally sign the application within 7 (seven) working days. Similarly, an application for renewal of registration must be made online. Under the 2017 Act, the deadline for applying for renewal is 30 (thirty) days prior to the expiry of the registration certificate.
Ø Online intimation of commencement of business: An employer of an establishment with less than 10 (ten) employees is required to submit an online intimation (reporting) of commencement of business to the local Facilitator in Form F.
Ø Opening and Closing timings of establishments: The Draft Rules empower the Government, in public interest, to fix opening and closing timings of any or all classes of establishments after obtaining views of the jurisdictional Municipal Commissioner and Police Commissioner (if necessary).
Ø Obligations of employer employing women night shift workers: The Draft Rules bar employers from requiring women workers to work from 9:30 pm to 7:00 am without obtaining their consent in the prescribed manner. The Draft Rules have also created multi-fold obligations for employers in respect of women night shift workers. Employers are required to strictly implement and enforce the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. Additionally, employers are obligated to provide proper lighting and illumination, separate toilets with safety lock facility, sanitary napkins and separate pick and drop facilities for women workers. The 1961 Rules only provide that no woman would be allowed to work after 9:30 pm, irrespective of her consent.
Ø Maternity leave for women night shift workers: The Draft Rules provide that women workers cannot work in the night shift during a period of 24 (twenty-four) weeks before and after child birth, of which at least 12 (twelve) weeks must be before child birth, and any further period that may be necessary for her health or that of her child, as may be specified in her medical certificate.
Ø Conditions of employment with respect to workers in shifts: The Draft Rules introduce new provisions which prohibit overlapping shifts, and mandate at least 12 (twelve) consecutive hours of rest or gap between the last shift and night shift whenever a worker is changed from day shift to night shift and also from night shift to day shift. The employer is also required to display well in advance, on their website and at a conspicuous place of the premises, a shift schedule, showing the names and designation of all persons working in that shift, so that each worker is aware of the shift during which he/she has to work.
Ø Emergency contact: There is an additional provision in the Draft Rules for the inclusion of emergency contact number in the worker’s identity card, which is not prescribed under the 1961 Rules.
Ø Notice of accumulated leave and Leave Book: Under the Draft Rules, the employer or manager will be required to, in the first quarter of each calendar year, notify the names of all workers who have accumulated earned leave up to the maximum limit of 45 (forty-five) days. Further, the entries for both earned leaves sanctioned, and those which were applied for and refused, will be made in the same Leave Book.
Ø Constitution of Health, Safety and Welfare Committee: A Health, Safety and Welfare Committee (Committee) is required to be constituted in every establishment wherein 100 (one hundred) or more workers are employed. The Committee will be composed of the employer’s and the workers’ representatives in the manner prescribed under the Draft Rules. The Committee is responsible for surveying and identifying accident prone or hazardous objects or spots in the premises, rectifying such spots, conducting health and wellness camps once a year, creating awareness about epidemics or natural calamities, conducting recreational and cultural activities and programmes for employees’ social and educational awareness.
Ø Provision of Latrines and Urinals: This is a new provision in the Draft Rules obligating employers to provide a clean urinal and latrines facility with supply of anti-bacterial liquid soap, with separate provisions for men and women. The latrine or urinal is required to be well ventilated with exhaust fan and lighted, and safe for the use of women workers in particular. It should also have proper provisions for water supply and flushing of waste. Such detailed specifications were not present in the 1961 Rules.
Ø Maintenance of Registers and Records: The multiplicity of forms and the requirement of maintaining a ‘visit book’ as prescribed in the 1961 Rules has been done away with. The employer must maintain a Muster-Roll cum Wages Register in a uniform format. The Facilitator has the power of inspection in place of the Inspector and every employer or manager is required to preserve the Facilitator’s inspection records for a period of 5 (five) years and produce them on the Facilitator’s demand. The time limit prescribed for preservation of registers and records is 2 (two) years under the 1961 Rules.
Ø Compounding of Offences: In accordance with the 2017 Act, the Draft Rules prescribe the procedure for compounding of offences. The Compounding Officer, which the Government by notification may specify, must pass a detailed order within 7 (seven) working days from receipt of the application. The order must then be forwarded to the concerned local Facilitator for serving the same to the defaulting employer within working seven days. The maximum compounding fees cannot be less than 75 (seventy-five) per cent of the maximum fine specified for such offence under the 2017 Act. The 1961 Rules did not have any provision for the compounding of offences.
Ø Persons discharging Managerial Functions: The Draft Rules provide for the definition of ‘managerial provisions’ as meaning ‘all such functions which are inherently supervisory in nature and are bestowed with powers and authority to take all policy and administrative decision in an organisation, e.g. power to sanction leave, award increment, take disciplinary action, to terminate, suspend or dismiss a worker or indulge in policy making decision regarding any aspect of the business or service conditions of workers and such other similar powers.’ Every employer registered under the 2017 Act is required to inform the Facilitator the names and designation and brief nature of duties of such persons, who are discharging managerial function. There was no such provision in the 1961 Rules.

Comment

Like the 2017 Act, the Draft Rules represent major reforms. The process for registration and maintenance of records has been digitised, which allows ease of compliance. In accordance with market demand, the Draft Rules allow flexibility in fixing different opening and closing hours for different classes of establishments such as malls and shopping complexes. The Draft Rules also provide for relief to non-compliant employers by giving them the option of compounding of offences.

Most importantly, the Draft Rules provide for considerably widened welfare provisions as compared to the 1961 Rules, especially for women workers, in order to ensure their dignity and safety. The Constitution of a ‘Health, Safety and Welfare Committee’, for ensuring safer premises and provision of recreational programs and social awareness to employees, is another step towards ensuring a healthy working environment. However, no provision for exemption of employer and manager from criminal liability if they prove that they used due diligence or that another person committed the offence in question without their knowledge, consent or connivance has been included in the Draft Rules.

While the Draft Rules are aimed to facilitate ease of doing business and safety issues, we will have to wait till final rules are notified to further analyse their impact.

–      Anshul Prakash (Partner) and Parag Bhide (Senior Associate)

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