Staffing & Recruiting Industry -Legal Updates

Human Resources » Industrial Law & Discipline

	Message From: rajanassociates	Total Posts: 112	Join Date: 22/11/2010
Rank: Leader	Post Date: 22/11/2010 22:34:44	Points: 560	Location: India

Dear All

We are specially creating this Post in CHRM for the Staffing & Recruiting Industry Professionals especially when the Industry has seen tremendous growth in the past 5 years. To keep pace Professionals need to keep themselves updated on the Legal compliance .

Many International players have come into the Indian Scene. But India consisting of Different States and Labour being on the Concurrent List the Legislation can be done both by the Centre and the States.That is why in India we find so many Labour Legislations.

In fact China has pioneered in enacting a "Contracting Law" which regulates the Industry.

The supporters of Globalization want to do away with a so many Legislation but they have not understood the Federal Nature of Our Constitution and the answer for that should not be " a cry without any result". Till that goal of Standardisation of Labour Laws is reached the Industry has to operate and function within the four corners of the existing Laws.This post is an begining in that direction. In fact there is another way of looking at the problem, the need to operate within the Legal framework taking the benefit of the existing laws.This is a win-win situation.

With Regards

V.Sounder Rajan Advocate
VS Rajan Associates,
Advocates & Notaries & Legal Consultants
No.27, Ist Floor, Singapore Plaza,
No.164, Linghi Chetty Street,
Chennai - 600 001.
E-mail : rajanassociates@eth,net,
Off : 044-42620864, 044-65874684,
Mobile : 9840142164-9025792684-9025792634

	Message From: rajanassociates	Total Posts: 112	Join Date: 22/11/2010
Rank: Leader	Post Date: 30/11/2010 11:35:39	Points: 560	Location: India

Dear All

Sub:Typical Arbitration Clause

In continuation to our earlier post Arbitration by itself means referring the dispute between the Client and the Agency to an Arbitral Panel instead of rushing to the Court.This saves time and money.The typical clause can be like this:

"In the event of any dispute, difference or question arising out of or in respect of this agreement or the commission of any breach of any terms thereof or of compensation payable thereof or claim made by either of the parties against the other in any manner whatsoever in connection with it, the same shall be referred to a Sole Arbitrator to be selected and appointed by mutual agreement for arbitration as provided in the Arbitration and Conciliation Act 1996 and Rules framed therein.. The decision or award so given by the Single Arbitrator shall be final and binding on the parties hereto.Initially the costs of the arbitration shall be borne equally by both parties and the award shall tax the costs of the Arbitration the party against whom the Award is passed."

Suitable modification can be made depending upon the need .The advantage of having a sole arbitrator is to reduce costs.Please see the Arbitration and Conciliation Act 1996 for more details on the process.

With Regards

VS Rajan Associates,
Advocates & Notaries & Legal Consultants for Recruiting & Staffing Industry
No.27, Ist Floor, Singapore Plaza,
No.164, Linghi Chetty Street,
Chennai - 600 001.
E-mail : rajanassociates@eth,net,
Off : 044-42620864, 044-65874684,
Mobile : 9840142164-9025792684-9025792634

	Message From: rajanassociates	Total Posts: 112	Join Date: 22/11/2010
Rank: Leader	Post Date: 01/12/2010 21:32:15	Points: 560	Location: India

Dear All

Tim Roth ,Chief Legal officer of Manpower Inc at Milwaukee a Fortune 500 Company in his Blog has reported that he conducted a survey of the finest Employment Lawyers in the USA to get their answers to the following question:

What are the top ten employment law issues most likely to wake you up screaming in the middle of the night?

Here are the answers . . .

1. Inadequate knowledge of employment law basics
2. Executive misconduct
3. Any form of discrimination
4. Wage and hour violations
5. Retaliation
6. Inadequate investigation
7. Failure to follow policies
8. Bad documentation/communication
9. Emotional rather than fact-based decisions
10. Inconsistency

This equally applies to the Indian Staffing and Recruiting Industry and thanks to Tim for waking us.

For more see :http://manpowerblogs.com/toth/tools-...en-violations/

With Regards

VS Rajan Associates,
Advocates & Notaries & Legal Consultants for Recruiting & Staffing Industry
No.27, Ist Floor, Singapore Plaza,
No.164, Linghi Chetty Street,
Chennai - 600 001.
E-mail : rajanassociates@eth,net,
Off : 044-42620864, 044-65874684,
Mobile : 9840142164-9025792684-9025792634

	Message From: rajanassociates	Total Posts: 112	Join Date: 22/11/2010
Rank: Leader	Post Date: 05/12/2010 20:32:38	Points: 560	Location: India

Sub: Misconduct Termination

Dear All

Many a times Staffing Industry Consultants and HR Managers are confronted with the following question.

Is it possible to fire a Temporary Employee sent to the Client for working without giving notice period due to misbehavior or if he is found drunk during working ours do we still have to pay the notice period?

Section 13 of the Delhi Shops Act lists the Acts and omission constituting misconduct

for the purpose of Section 30,misconduct shall include the following acts and omission on the part of an employee:
(a) willful insubordination or disobedience, whether or no not in combination with another, of any lawful and reasonable order of superior;
(b) going on an illegal strike or inciting, abetting or instigation or acting in furtherance thereof;
(c) willful slowing down in performance of work, or abetment, or instigation thereof;
(d) theft, fraud, misappropriation or dishonesty in connection with the employer's business or property;
(e) habitual absence without leave, overstaying the sanctioned leave without sufficient grounds, or proper and satisfactory explanation, or habitual late attendance;
(f) commission of any act subversive of discipline or good behaviour on the premises of establishment, such as. drunkenness, riotous, disorderly or indecent behaviour, gambling or holding meeting without previous permission of the employer or taking or giving bribes or any illegal gratification whatsoever;
(g) habitual neglect of work or gross or habitual negligence;
(h) willful damage to work in process or to any property if the establishment;
(i) disclosing to any unauthorised person any information in regard to the processes of the establishment which may come into the possession of the employee in the course if his work.

Therefore drunkenness will come within (f) above.

Section 30: Notice of dismissal

(1) No employer shall dispense with the services of an employee who has been in his continuous employment for not less than three months, without giving such person at least one months' notice in writing or wages in lieu of such notice :

Provided that such notice shall not be necessary where services of such employee are dispensed with for misconduct, after giving him an opportunity to explain the charge or charges against him in writing.

Therefore you will have to follow the procedure of first getting a report from the Client on the misconduct and then issue Show cause Notice and conduct an Enquiry by appointing an Enquiry Officers report and act based on the Enquiry officers report.This is a safe and secure process .But many of the Temporary Employees considering their future will opt to resign facilitating the exit process.

The reference to the Delhi Act is for illustration and each report of "Misconduct" has to be tackled in accordance with the Shops and Establishments Act applicable to that State where the Temporary Employee is working.

Expert Legal advice on specific needs is advised at every step in the above process.

With Regards

VS Rajan Associates,
Advocates & Notaries -Legal Consultants-HR
No.27, Ist Floor, Singapore Plaza,
No.164, Linghi Chetty Street,
Chennai - 600 001.
E-mail : rajanassociates@eth,net,
Off : 044-42620864, 044-65874684,
Mobile : 9025792684

	Message From: rajanassociates	Total Posts: 112	Join Date: 22/11/2010
Rank: Leader	Post Date: 08/12/2010 00:43:26	Points: 560	Location: India

IMMEDIATE LEGAL QUESTIONS HAUNTING INDIAN STAFFING COMPANIES

Having been focused on the Staffing Industry in India which is at its crucial stage and our long standing experience of 30 years in the direct Litigation Support and acting for PSU‘s and Corporate and present counseling in Staffing Business for important Staffing Industry players we have always been focused on the analysis of proactive and preventive steps Staffing Companies can and should take to avoid claims and liability.

Despite these efforts it seems the Lawyers and Consultants end up doing more damage control in Courts and Tribunals. Through this damage control many lessons are learned. This is a continuing effort and cannot be viewed on a short term basis.

With each matter the Staffing Companies legal Team have always made an effort and during the course of the case and certainly at the end to talk about lessons learned. While they are numerous, and each perspective could be the subject of a book on the topic, the following are a few amongst the many key questions of which this is the first part:

1. Many a times the Contract signed with the employee is styled as Fixed Term Contract with a stipulation for termination, why is that there is litigation on termination ?

The Law is not clear since there is no positive provision in the Industrial Disputes Act as the action for termination in a Fixed Term Contract hinges on exclusion provided under Sec 2 (oo) of the Industrial Disputes Act. Therefore application of the exclusion by the Employer is subject to the Redressal Mechanism provided in the Act and there being different layers of redressal the damages that it could cause to the Staffing Company on an order of re-instatement could be onerous.Clients may insist termination without Notice pay but the best bet is to have a secure termination process based on sound legal advice.

With Regards

VS Rajan Associates,
Advocates & Notaries -Legal Consultants-HR
No.27, Ist Floor, Singapore Plaza,
No.164, Linghi Chetty Street,
Chennai - 600 001.
E-mail : rajanassociates@eth,net,
Off : 044-42620864, 044-65874684,
Mobile : 9025792684-9025792634