Did you know that each state in India has its own law governing shops and other commercial establishments? In 1948 Maharashtra Shops and Establishment Act was successfully replaced by the Maharashtra shops commercial establishments’ act of 2017. This also included amendments regarding details of persons occupying position of confidential character.
In response to Maharashtra, several states have submitted legislation to implement new rules in their respective areas. This article offers to you a guide to Form U. Following are the topics covered:
Maharashtra Shops Commercial Establishments Act
All shops and other commercial businesses in the entire state of Maharashtra are subject to the Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Act, 2017 & Rules, 2018 ("S & E Laws"). The Act was passed in order to safeguard employees' rights.
The Act sets forth rules for the payment of salaries, terms of services, working hours, breaks, overtime pay, closed days and holidays, leaves, maternity leave and benefits, working conditions, guidelines for hiring children, record-keeping, etc.
However, keep in mind that by exempting businesses with fewer than 10 employees from its regulations, the Maharashtra retail commercial establishments act offers significant compliance relief for small and medium-sized enterprises (MSMEs).
Finally, the Maharashtra state government recommended various working hours for each business sector in response to the Maharashtra shops and commercial establishments legislation. The most likely winners from this change would be malls, dining establishments, movie theatres, and other leisure facilities.
A "shop" is defined by the Maharashtra shops business establishments act as a location where clients are served and products or services are offered, either wholesale or retail. A shop cannot be a factory, business establishment, hotel, restaurant, cafeteria, theatre, or any other public space, but it must have a store/warehouse or a godown.
The Maharashtra shops commercial establishments act defines a "commercial establishment" as a place of business engaged in a trade or profession, or as a side business, secondary employment. This definition includes the establishment of medical professionals, architects, engineers, accountants, and other technical or professional advisors who are registered under the Societies Registration Act of 1866. (XXI of 1860).
Does not include industries, stores, residential hotels, restaurants, theaters, or other places used for public enjoyment. However, it does include charities and other foundations, as well as work connected to or associated to them.
Registration with the Maharashtra Commercial Establishments Act
In accordance with the Maharashtra Shops Commercial Establishments Act, the following are some important details.
1. Within 60 days of the business's launch, each owner must file a "A" form application to register the facility.
2. A conspicuous location in the office should showcase the registration certificate. The registration certificate has a ten-year expiration date. Before the deadline, stores and other businesses should request an extension for the following time.
3. Within 30 days after the change date, the facilitator must be notified electronically of any changes to the registration certificate using Form "I." The law is added to the schedule's "D" section.
4. The owner must deliver a registration certificate to the registration office after the facility is no longer in use. The advantages of registering
5. The facility is authorized by law to conduct business in the region.
6. The facility is able to file claims for income under several government programs and keeps a business bank account.
Health, Safety and Welfare of the Workers
Regarding the workers' health and safety, the current rules have resulted in numerous adjustments. The previous one had suffered greatly from not focusing on these qualities of the personnel.
A Health, Safety and Welfare Committee must now be established in any organization with 100 or more employees. There must be an equal number of employers and employees on such a committee, according to its constitution.
The Rules detail the responsibilities of the Committee, including surveying the property, identifying accident-prone areas, having those areas fixed, holding health and wellness events, raising awareness of infectious diseases, organizing sporting, cultural, and recreational events, and spreading social and educational awareness.
The introduction of a Committee can be seen as being similar to many other labour and employment Acts, such as the Industrial Dispute Act of 1947, where a Works Committee is formed to promote goodwill between employer and employee, or the Factories Act of 1987, where a Safety Committee is to be established in factories where hazardous processes are conducted for the safety of the workers.
Furthermore, it is noted that the Canteen facility, which was included in the Contract Labor (Regulation and Abolition) Act, 1970 ("CLRA Act, 1970"), has not been incorporated in the Current Act or Rules.
The organization must supply canteens based on the size of the business. These canteens offer food to the labor force for a fair price.
Additionally, it is required that an establishment's premises be germ-free and hygienic. The facility should have adequate lighting, illumination, and ventilation. Additionally, the employer must take precautions to safeguard the workplace against fire. He must follow the safety precautions listed, advised, and proposed in the government's Fire and Safety Policy.
While the Previous Rules defined an appropriate approach for cleanliness, they had not done so in regards to fire hazards in the facility. As a result, these rules have significantly changed from the Previous Rules.
An establishment must also have urinals and latrines that are tidy and clean. The latrines should have the necessary amenities, such as an exhaust fan, a water supply, and antibacterial soap.
Given that it focuses on a worker's fundamental rights and needs, this clause has been greatly required. This clause has also undergone significant changes from earlier labor laws like the CLRA and the Factories Act of 1948 because the current law not only emphasizes the availability of latrines and urinals but also specifies how to keep them clean.
We do observe, however, that the Factories Act, 1948 does require separate latrines for men and women, as well as ventilated passages and sanitary conditions at such locations. Finally, the facility must keep the first-aid supplies and medications. The Current Rules specify a list of items that must be included in such first-aid equipment.
The workers' health and cleanliness, which were not given much consideration in the previous rules, have been taken into consideration with all of these modifications.
Important modifications brought about by the New Shops Act and the New Shops Rules
The main modifications made by the New Shops Act and the New Shops Rules are listed below, along with their effects:
- Applicability: Businesses with ten (10) or more employees are subject to the New Shops Act. The New Shops Act does not apply to employees who work in management, supervisory, or confidential positions inside the business or whose jobs are essentially sporadic.
This is a relief for startups and small businesses that employ fewer than ten (10) employees because they are no longer required to offer working conditions that are comparable to those offered by a large employer.
- Intimation by businesses with fewer than ten (10) employees: Businesses with fewer than ten (10) employees must submit an online intimation of the start of their operations to the facilitator appointed by the New Shops Act (the "Facilitator") within sixty (60) days of the start of the New Shops Act or the start of their operations, whichever comes first.
The documentation listed in Part C of the Schedule to the New Shops Rules must be submitted with this intimation in Form F. Establishments with fewer than ten (10) employees are not required to abide with the New Shops Act aside from this intimation requirement.
- Information regarding those discharging managerial functions: The facilitator must receive Form "T" information from each person performing managerial functions at least once a year and whenever there is a change. This information includes the person's name, title, and a brief description of their duties. In the Draft Rules, this clause was absent.
- Intimation of confidential or managerial position: Every employer is expected to notify the Facilitator of the names, titles, and a brief description of the types of duties performed by individuals holding managerial positions within the business.
Employers must additionally provide the Facilitator with the names of any employees who hold confidential positions, up to fifty (50), or one percent of the establishment's entire workforce, whichever is less. These notifications must be sent out annually or whenever there is a change throughout the year.
Although complying with this requirement may be burdensome for employers, it will guarantee that once an employee has been exempted from the New Shops Act's requirements, he or she will not be eligible to claim any benefits under it.
- Validity of registrations: Registrations' validity has been made clear by the New Shops Act, which states that registrations issued under the Old Shops Act are still in effect until the day they expire and that a new registration under the New Shops Act need only be requested when the old registration expires.
Instead of the three (3) years allowed by the Old Shops Act, the New Shops Act now allows registration renewal for up to ten (10) years. By extending their registration for ten (10) years, employers can save time and money.
The Facilitator must give the Employer a 10-day window to explain justifications for not cancelling the registration before the certificate registration can be cancelled. However, the Facilitator may revoke the registration if no notice is received within these 10 days.
However, if the employer provides a justification, the Facilitator may choose to keep or cancel the registration after taking the justification and any supporting documentation into account. The Previous Rules lacked a fair and just process for cancelling registration, so the Current Rules have made an effort to include it.
- Inspection powers: The Facilitator and Chief Facilitator designated by the State government under the New Shops Act will have the authority to inspect an establishment to confirm that the working conditions comply with the New Shops Act. The State government also has the authority to create a web-based inspection schedule and implement a plan to randomize inspections.
Even though this plan hasn't yet been announced, in our opinion, it will guarantee that all businesses are handled fairly and undergo routine inspections. On the other hand, it may also result in maintaining the inspector raj.
- Weekly holidays: Every business would have to be closed at least one (1) day a week in accordance with the Old Shops Act. Under the New Shops Act, businesses may remain open every day of the week as long as each employee receives a weekly holiday.
The restaurant industry and information technology services, which often need to be operational seven days a week, would gain from this shift that encourages a business-friendly environment.
- Working conditions for women: The New Shops Act eliminated the protection discrimination against women by allowing female employees to work night shifts between 9:30pm and 7:00am as long as they meet the requirements listed below:
The following conditions must be met:
(i) the employer has obtained the consent of the concerned woman worker;
(ii) the employer offers sufficient protection for the woman worker's safety, dignity, and honor;
(iii) the employer ensures that sexual harassment is prohibited;
(iv) the employer provides transportation for the woman worker from the establishment to the doorstep of her residence; and
(v) at least three (3) women are employed in the establishment during each night shift.
Additionally, every woman who works the night shift is now qualified for six (6) additional paid holidays, or one (1) extra holiday for every two (2) months of the year. In our opinion, the relaxation allowing women to work night shifts is a good thing. In order to allow women to work night shifts in the past, companies had to apply for exemptions from the Old Shops Act's rules.
However, the requirements that must be met by the employer are fairly onerous and may be challenging for small and mid-sized businesses to meet. Additionally, the employer must certify to the facilitator that it has complied with the law and will use appropriate caution and diligence to protect the safety, honor, and dignity of women employees generally, but especially during the night shift.
Women who work in organizations like business process outsourcing (BPO), knowledge process outsourcing (KPO), and legal process outsourcing are the primary focus of sections of the current act and rules that deal with women's safety (LPO). No matter whether she agrees to it or not, a woman is not permitted to work after 9:30 PM according to the previous rules.
Additionally, a number of precautions must be taken when a woman works the night shift, including lighting up the office space in any area where she works or uses it, providing separate restrooms for her, and giving her sanitary products. Additionally, she must be given paid time off during menstruation. It is also important to remember that, for their protection, a minimum of three women must be working in the establishment at the same time during the night.
On a more general note, it is now required for establishments to keep a complaint box and to post the phone numbers for the control room, women's support line, and local police stations. Additionally, where there are more than 10 female employees, it is necessary to hire a suitable number of female security guards who have undergone a police background check.
Night shift workers' maternity leave: The Rules provide that women workers are prohibited from working night shifts for a total of 24 weeks, of which at least 12 weeks must pass before to childbirth, as well as for any additional time that may be stipulated in her medical certificate.
- Welfare Provisions: The New Shops Act lays out more comprehensive welfare provisions for employees, including
(i) a sufficient supply of clean drinking water,
(ii) child care facilities for employees' children, and
(iii) the upkeep of a canteen in a place where more than one hundred (100) employees are employed or typically employed. Additionally, organizations with more than one hundred (100) employees must form a committee for health, safety, and welfare, which must include both employer and employee representatives.
- Health, Safety and Welfare Committee: According to the rules' regulations relating to the Health, Safety and Welfare Body, it has been mandated that the above mentioned committee must have an equal number of representatives from the employer and the workforce. Additionally, when there are female employees, the aforementioned committee must have a suitable number of female delegates. In the Draft Rules, this clause was absent.
Fire safety precautions: According to the Fire and Safety Policy, which is periodically announced by the government, every employer is required to adopt and put into practice all the safety measures listed, indicated, and recommended in it. In the Draft Rules, this clause was absent.
- Registers and annual return: Employers are permitted to keep electronic registers and records under the New Shops Act. However, the hard copies of such records must be provided to the Facilitators upon request at the time of inspection and must be properly signed by the employer or its representatives.
Additionally, each establishment's employer will now need to submit an annual return in the required format. This yearly return may be submitted electronically. Because it allows for electronic document maintenance and online filing, the New Shops Act is advantageous for employers.
- No provision on notice periods: The Act makes no mention of any guidelines on notice periods for employment termination or resignation. As a result, employers are free to set whatever notice requirements they see fit in employment contracts. Having stated that, in the event of an arbitrary termination of employment, it might be necessary to abide by the retrenchment provisions of the Industrial Disputes Act, 1947.
This move is advantageous to companies since it allows them to tailor notice period clauses in employment contracts based on the position, level of seniority, and designation of the employee, rather of having to apply a blanket norm to all workers.
- Maximum Penalty: The maximum fine has been raised from INR15,000 (US$215) to INR500,000 (US$7,353) in order to ensure that employers take the New Shops Act's provisions seriously. In addition, the New Shops Act makes certain infractions punishable by up to six (6) months in prison. Due to these modifications, employers will have to make sure that the working conditions in their facilities comply with the New Shops Act.
However, the New Shops Act allows for compounding of offences, which means that the employer may submit a request for a reduction in the fine issued for any violation. Overall, this is a clear attempt by the Maharashtra government to modernize and competitively position its labor laws in accordance with international standards. Eliminating termination notice periods, allowing e-filing, and allowing women to work night shifts with the proper safety precautions are all positive changes that will increase industry competition.
The maximum compounding fees that the compounding officer may impose must equal at least 50% (fifty percent) of the maximum fine that is allowed for that particular offence under the 2017 Act. The maximum fine for compounding an offence was set at no less than 75% in the draught rules (seventy five percent).
- Fees: The fees that were outlined in the Draft Rules for applications for registration, certificate renewals, certificate modifications, etc., have been eliminated. However, in order to use e-services under the 2017 Act and the Rules, the employer may be required to pay electronic transaction or service fees that may be set by the government from time to time.
- Complaint box and display of numbers: The Rules now contain this as a requirement. Every employer is required to keep a complaint box on hand and post the control room, women's help line, and local police station's phone numbers clearly around the business. In the Draft Rules, this clause was absent.
- Security guard: It is now required that establishments with at least 10 (ten) female employees hire a suitable number of female security guards. Such female security guards must now undergo required police verification, according to regulations. In the Draft Rules, this clause was absent.
- Part time employment: The daily rate of "minimum wages" that applies to that category of employment is divided by eight hours plus a fifteen percent increase on it, or, if higher, by the standard daily wage rate for permanent employees performing similar types of work in that establishment is divided by eight hours plus a fifteen percent increase on it.
The Rules were put into effect quickly after the Government released the Draft Rules for consultation from stakeholders. The Rules, when viewed in conjunction with the 2017 Act, are intended to make conducting business easier, make compliance simpler, and represent significant changes to workplace safety laws and welfare programs, particularly for women employees.
It goes without saying that a proactive political structure working in collaboration with the establishments—which must also take steps to become aware of the new statutory framework—will be crucial to the overall implementation of the legislative intent of the 2017 Act and the Rules.
Rule 34 Intimation of persons doing confidential work
The names of those holding positions of a confidential nature in an establishment must be disclosed by every employer on Form "U." However, the percentage of such individuals must not exceed one percent of the establishment's entire workforce, up to a maximum of fifty. Annually and anytime there is a change throughout the year, Form "U" information must be filed. It appears that the goal of this adjustment is to bring the definition of "worker" into line with that found in the Industrial Disputes Act of 1947.
The Act states clearly that it shall not apply, among other things, to a worker holding a confidential, managerial, or supervisory position in an enterprise (a list of which is to be displayed on the website of the establishment or in a conspicuous place in the establishment and a copy should be sent to the Facilitator).
The term "managerial functions" is now used in the Rules to refer to all tasks that are inherently supervisory in nature and have the authority to make all organizational policy and administrative decisions, such as the right to grant leave, grant promotions, implement disciplinary measures, terminate, suspend, or dismiss a worker.
According to section 3(11), a worker who holds a position of confidentiality, management, or supervision in an establishment is exempt from the restrictions of the act.
Displaying a list of employees who are in management, supervision, or confidential roles on the employer's website or in a prominent location in the business. Within the parameters of the act, these employees will be protected. (See Section 3(11))
13 categories of establishments and workers are particularly mentioned in Section 3 of the New Act as being excluded from its provisions. No provision is made for any other establishment to request exemptions. It is important to notice the following two exemptions:
a. A worker holding a confidential, managerial, or supervisory role in an establishment is listed on the establishments' website or, in the absence of the website, in a prominent location inside the business. A copy of the list is also supplied to the facilitator.
b. A member of an employer's family, which is described as "the wife, husband, son, daughter, parent, parent, brother, or sister of an employer who resides with and is dependent upon such employer."
APPLICATION FOR RENEWAL OF REGISTRATION CERTIFICATE
REGISTER OF ESTABLISHMENT
( See rule 34)
DETAILS OF PERSONS OCCUPYING POSITION OF CONFIDENTIAL CHARACTER
Name of the Establishment / Organization:
E-mail ID /Website Address:
Name of Authorized person/manager:
The Management hereby declares the following persons to be the persons who will be engaged in and shall be responsible for discharging work of confidential Nature relating to the Business of the Establishment.
Signature of the Manager / Authorized Person with Seal
CC to Facilitator
List of documents to be uploaded for intimation
(1) Employer's Aadhar card (in case of legal statute such as company, etc. copy of Aadhar card of responsible person under the respective act.)
(2) An actual photograph of the business showing both the inside and the Name Board (Marathi) where it belongs.
Information on those performing managerial duties and those with confidential roles: According to the Rules, employers must provide the Facilitator with the names, titles, and a brief description of each employee performing managerial activities in the format specified. Employers must also give the Facilitator the names of any individuals holding confidential positions within their organization.
A maximum of fifty people can hold roles that are considered to be of a confidential nature, but no more than 1% of the establishment's overall workforce may do so. Every year and each time there are changes to the details, the aforementioned information must be submitted.
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- Every establishment's name board must be inscribed at the very beginning in Devnagari Script and in the Marathi language. In addition to Marathi in Devnagari Script, the employer is free to use any other language and script for the Name Board. The font size of the Marathi Name Board must match the font size of the Name Board in all other languages. A Name Board bearing the name of a fort or legend is prohibited in any institution that serves or sells alcohol.
- Each employer is required under the Maharashtra Shops Commercial Establishments Act to fill out the U form with the name of the individual who has the facility's secret status. However, the percentage of these individuals shouldn't be higher than 1%. Up to 50 people work for the company as a whole. Annually and if there are changes, Form "U" information must be filed.
- Shops may only be open from 7 am to 8:30 pm in accordance with the Maharashtra shops commercial establishments act addressing shops and commercial facilities. However, stores that sell goods like milk, vegetables, fruits, fish, meat, and bread might open earlier than seven in the morning.
- In Maharashtra, there is no place where young people can work. Young people and women have varied opening and closing hours. Women shouldn't be forced or allowed to work in the facility after 9:30 pm, and young people shouldn't be required or allowed to work there after 7 pm. A "child" is someone under the age of 15 according to the Maharashtra shops commercial establishments act.
- The Maharashtra shops commercial establishments act covers things like salary payments, working conditions, working hours, breaks, overtime, opening and closing hours, holidays, vacations, maternity leave, welfare, working conditions, laws for hiring kids, record-keeping, etc.