India – Maharashtra Shops And Establishments Rules Notified!

9 April, 2018

 

The Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Rules, 2018 (the “Rules”) have been notified and brought into effect from March 23, 2018. The Rules have been framed under the Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Act, 2017 (the “Shops Act”).  The Shops Act was notified on December 19, 2017, to replace the erstwhile Maharashtra Shops and Establishments Act, 1948.

 

The Shops Act is a state specific legislation that regulates the terms and conditions of employment for employees (workers) employed in shops and commercial establishments in Maharashtra. The Rules provide, inter alia, the manner in which shops and establishments must procure registration, the conditions of employment of women workers, and relevant filings and registers that are to be filed and/or maintained by the employer.  We have set out the salient features of the Rules below:

 

1. Online application process for registration, renewal and amendment of registration: The Rules prescribe an online process for (a) registration of establishments with 10 or more workers; and (b) intimation of commencement of business for establishments with less than 10 workers.  The Rules prescribe a time bound mechanism for registration requiring the Facilitator (authority responsible for implementing the Shops Act) to either accept or reject an application within seven days.

 

2. Establishment timings:  The State Government has been vested with the power to fix or change the opening or closing timings of any or all classes of establishments in any area or premises.  Such changes, if at all, should be made in public interest and if necessary, after obtaining the views of the jurisdictional Municipal Commissioner, District Collector and the concerned Police Commissioner or Superintendent of Police, as the case may be.

 

3. Employment of part-time workers: The Rules allow employment of part-time workers so long as they are not allowed to work (a) for more than five hours in a day; or (b) overtime under any circumstances.  The Rules also prescribe the method for computing the wages payable to part-time workers.

 

4. General conditions for employment of women : As per the Rules, with respect to employment of women at the workplace, the employer is required to:

1. strictly implement the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and take all the measures and safeguards to prevent or deter the commission of acts of sexual harassment;
2. provide all necessary assistance and support to a women workers in case of sexual harassment by a third party.  An employer is also required to take reasonable steps to prevent such instances;
3. provide proper lighting and illumination inside the establishment and its surroundings and places that women may visit on account of their employment;
4. maintain a complaint box;
5. display prominently in the establishment the phone numbers of local police station, control room and women helpline numbers;
6. engage sufficient number of women security guards, duly verified by the police, if the establishment has ten or more women workers; and
7. provide separate and safe restrooms for women workers.

 

5. Conditions for employment of women in the night shift : The Shops Act allows establishments to employ women between 9:30 p.m. and 7:00 a.m. (“night shift”) only if:

1. they specifically consent to working in the night shift;
2. the establishment has adequate protection from sexual harassment;
3. the employer takes due care and diligence regarding the woman workers dignity, honour and safety; and
4. the employer provides for transportation.

 

The Rules prescribe additional conditions that establishments would have to adhere to in order to employ women workers in the night shift:

1. Consent form: The consent of women workers working in night shift is to be obtained in the prescribed form;
2. Minimum number: The number of women workers employed in the night shift should not be less than three at any point of time;
3. Transport facility: The employer must provide secure and separate transportation facilities for all women workers working in the night shift from and to their place of work and residence.  Further, employers are required to have all details of drivers, guards and all such workers engaged directly or through third party agencies.  Police verification of all such workers engaged for ensuring safe transportation of women workers in the night has been made mandatory;
4. Additional holiday: In addition to the holidays granted to employees under the Shops Act, women workers working in the night shifts are eligible for one additional paid holiday for every two months in a year;
5. Shift schedule: There should not be less than 12 consecutive hours of rest or gap between the previous shift and her night shift, whenever a woman worker is changed from the day shift to the night shift or vice versa.
6. Working during and after pregnancy: Establishments are prohibited from allowing women workers to work night shifts during the period of 24 weeks before and after childbirth, of which at least 12 weeks shall be before the expected child birth. This restriction may continue for a further period if it is necessary for the health of the woman worker or her child.  However, the restriction may be relaxed at the request of the women worker if a qualified medical practitioner provides a medical certificate stating that neither the health of the woman nor her child will be negatively impacted by the work.
7. Annual undertaking: Every employer employing women in the night shift is required to annually submit an undertaking, to the relevant Facilitator, that it is in compliance with the rules in relation to employing women in the night shifts and that it has taken due care and diligence regarding the safety, dignity and honour of women workers.

 

6. Health, Safety and Welfare Committee: Every establishment where 100 or more workers are ordinarily employed is required to have a Health, Safety and Welfare Committee, consisting of equal number of employer and worker representatives.

1. Composition:  The committee is to consist of:

1. Chairman – a senior official who by his position in the organization can contribute effectively to the function of the committee; and
2. Representatives – heads of all the departments or persons in-charge of sections of the establishment, if any.

2. The committee is to have a maximum of ten workers’ representatives nominated by the workers.  If the employer employs women in the establishment, the committee is to have representatives of women workers.
3. Duties: The duties and responsibilities of this committee include to survey the premises and to examine if areas are accident prone or have hazardous objects, rectify such defects, conduct health and wellness camps once in a year, create awareness of any contagious diseases, epidemics, etc., conduct recreational activities annually and organize social awareness programs.

 

7. Cleanliness, lighting and health and safety: The Rules prescribe minimum requirements with respect to cleanliness, lighting, ventilation, sanitation, fire and first aid.

 

8. Notices to be displayed on the website:

1. Notice of hours of work, rest intervals and weekly holidays:  Every employer is required to display a notice on its website and at a conspicuous place in the premises in the establishment showing the hours of work, rest interval and weekly holiday.
2. Notice of shift schedule and weekly holidays : In case of an establishment operating in shift, the employer is required to display, well in advance, a shift schedule showing the names and designation of all persons working in that shift.  A copy of this notice is also to be sent to the Facilitator, electronically or otherwise.

 

9. Managerial function defined: The Act specifically provides that it shall not apply to inter alia,  a worker occupying a position of confidential, managerial or supervisory character in an establishment (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 Rules now define ‘managerial functions’ to mean all such functions which are inherently supervisory in nature and have the power and authority to take all policy and administrative decisions in an organization such as the power to sanction leave, award increments, take disciplinary action, to terminate, suspend or dismiss a worker, etc.

 

10. Information on persons discharging managerial functions and persons in confidential capacity:  The Rules require employers to inform the Facilitator, in the prescribed format, the names, designations and brief nature of duties of persons discharging managerial functions. Employers are also required to inform the Facilitator of the names of persons who are occupying positions of a confidential nature in an establishment. The number of persons occupying positions of a confidential nature shall not be more than one per cent. of the total strength of workers of the establishment subject to a maximum of fifty persons. The aforementioned information is to be submitted annually and whenever there is any change in the details, during the year.

 

11. Compounding of offences:  The Rules prescribe a time-bound mechanism for compounding of offences under the Shops Act. 

  

In light of the Rules, it is imperative for organizations with establishments in Maharashtra to review their employment documents, policies and practices and ensure compliance with the new law.

 

 

For further information, please contact:

 

Nohid Nooreyezdan, Senior Partner, AZB & Partners

nohid.nooreyezdan@azbpartners.com

 

Veena Gopalakrishnan, AZB & Partners

veena.gopalakrishnan@azbpartners.com

 

Nishanth Ravindran, AZB & Partners

nishanth.ravindran@azbpartners.com