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Wage Fixation Under Minimum Wages Act
Wage Fixation Under Minimum Wages Act
PROJECT REPORT ON: FIXATION OF WAGES UNDER MINIMUM WAGES ACT 1948
TABLE OF CONTENTS
ACKNOWLEDGEMENT .......3 RESEARCH METHODOLOGY....4 INTRODUCTION........................................................5 WAGE STRUCTURE AND ITS COMPONENTS.................................................6 FIXATION OF WAGES.............................................................................................10 FIXING AND REVISING OF MINIMUM WAGES............................................14 CONCLUSION....18 BIBLIOGRAPHY........19
RESEARCH METHODOLOGY
The Objective of this project is to examine the concept of Fixation of Wages under the Minimum Wages Act 1948. This Doctrinal research is descriptive and analytical in nature. Secondary and Electronic resources have been largely used to gather information and data about the topic. Books and other reference as guided by Faculty of Labour Law have been primarily helpful in giving this project a firm structure. Websites, dictionaries and articles have also been referred. Footnotes have been provided wherever needed, either to acknowledge the source or to point to a particular provision of law. Uniform citation has been followed.
INTRODUCTION
The minimum wages Act defines wages under Section 2 (h), which reads as under Wages means all remuneration, capable of being expressed in terms of money, which would be, in terms of contract of employment, express or implied were fulfilled, be payable to a person employed in respect of his employment or of work done in such employment and includes house rent allowance but does not include :-(i) the value of a) any house accommodation, supply of light, water, medical attendance ; or b) any other amenity or any service excluded by general or specific order of the appropriate government; (ii) any contribution paid by the employer to any pension funds or provident fund or any other scheme of social insurance; (iii) (iv) any travelling allowance or the value of any travelling concession; any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment; or (v) any gratuity payable on discharge.
The analysis of this section indicates that the following requirements are necessary for wages:-1) wages include all remuneration paid to an employee including house rent allowance; 2) wages must be capable of being expressed in terms of money; 3) wages become due when there is a contract between employer and employee. However, the contract may be expressed or implied; 4) the terms and conditions of the contract must be fulfilled, or he must have done work assigned to him under such employment.
The term wages has a composite meaning, which includes all remuneration and other payments payable to an employee, which are not expressly excluded by the provisions of the Act.
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AIR 1976 SC 1175 Hydro (Engineers) Pvt. Ltd. v. The Workmen 3 Ibid
necessary to fix them so as to neutralize at least partly the price rise in essential commodities. Components of a minimum wage.-- The concept of minimum wage does not mean a wage that enables the worker to cover his bare physical need and keep himself just above starvation. The capacity of the employer to pay is irrelevant in fixing minimum wage. Therefore, no addition shall be made to the components of the minimum wage, which would take the minimum wage near the lower level of the fair wage. In Unichay v. State of Kerala,4 it was held that the Act contemplates that minimum wage rates should be fixed in the scheduled industries with the dual object of providing subsistence and maintenance of the worker and his family and preserving his efficiency as a worker. The concept of the need based minimum wage was evolved by the 15th Indian Labour Conference, held in July, 1957. With regard to the minimum human needs of the industrial worker, irrespective of any other considerations. In order to calculate the minimum wage, the Tripartite Committee of the Indian Labour Conference held in New Delhi in 1957, accepted the following norms, and recommended that they should guide all wage-fixing authorities, including minimum wage committees, Wage Boards, adjudicators, etc. :-1) In calculating the minimum wage, the standard working class family should be taken to consist of three consumption units for one earner; the earnings of women, children and adolescents should be disregarded. 2) Minimum food requirements should be calculated on the basis of net intake of 2700 calories, as recommended by Dr. Aykroyd for an average Indian adult of moderate activity. 3) Clothing requirements should be estimated as per consumption of 18 yards per annum which would give for the average workers family of four, a total of 72 yards. 4) In respect of housing, the norm should be the minimum rent charged by Government in any area for houses provided under the Subsidised Industrial Housing Scheme for low income groups. 5) Fuel, lighting and other miscellaneous items of expenditure should constitute 20% of the total minimum wage.
AIR 1962 SC 12
6) Childrens education, medical requirements, minimum recreation including festivals/ceremonies and provision for old age marriages, etc. should further constitute 25% of the total minimum wage.5 It was further held in the above case that the wage structures which approximately answers the above six components is nothing more than a minimum wage at subsistence level. The employees are entitled to minimum wage at all times and under all circumstances. An employer who cant pay minimum wages has no right to engage labour and no justification to run the industry. In Peoples Union for Democratic Rights v. Union of India,6 it was held by the Supreme Court that where children below the age of 14 years are employed in violation of the Employment of Childrens Act, 1938 and minimum wages are denied to such children or to other persons who by reason of poverty or socially or economically disadvantageous position are unable to approach the Court, legal redress may be sought on their behalf by any member of the public. FAIR WAGES: There is a difference between minimum wages and fair wages. In case of fair wage, besides the principle of industry-cum-region, the companys capacity to bear the financial burden must receive due consideration. But mere hopeful observations made in the directors annual report cant be basis for awarding increased wages because such observations are sometimes made to inspire hope and confidence in shareholders and they cant be a substitute for actual audited figures.7 It was held in Transport Corp. of India Ltd. v. State of Maharashtra & Others, 8 that it is not for the Labour Court or Tribunal to fix the minimum rates of wage. While fixing fair rates of wages the courts or tribunals take into consideration the minimum rates of wages and where the Government has not fixed the minimum rates of wages then the courts or tribunals ascertain for themselves what would be the minimum rate of wages. In fact minimum rate of wages are fixed by the Government. Courts or tribunals merely ascertain what are the minimum rates of wages for the purpose of deciding fair wages.
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Added by the Supreme Court in view of socio-economic aspect of the wage structure operating in our society today, while deciding Workmen v. Reptakos Brett & Co Ltd., 1992 SCC 271 6 (1992) 2 LJ 545 (SC) 7 Sangam Press v. Workmen, AIR 1975 SC 2035 8 (1993) II LLJ (Bom)
LIVING WAGE: The Fair Wage Committee in its report published by Government of India, Ministry of labour in 1949 defined the living wage as under: The living wage should enable the male earner to provide for himself and his family not merely the bare essentials of food, clothing and shelter but a measure of frugal comfort including education for children, protection against ill health, requirements of essential social needs, and a measure of insurance against the more important misfortunes including old age.
rescind the wages once fixed without any expressed provision is that regard in Section 3(1-A) can well be inferred with reference to Section 21 of the General Clauses Act. Sub-section (2) provides that the government may fix a) a minimum rate of wages for time work (i.e., a minimum time rate); b) a minimum rate of wages for piece work (i.e., a minimum piece rate); When a piece rate is fixed, every worker will not earn the same amount for the day. If the difference is due to reasons which are purely personal to the worker, no grievance can be made, but if the difference is brought about by furnishing one with an appreciable example providing one with a machinery and the other with a hand mallet, there may be a possibility of injustice and an attempt must be made for arriving at a result which may really be reasonable and just in the circumstances. 10 c) a minimum of remuneration to apply in the case of employees employed in a piece work for the purpose of securing to such employees a minimum rate of wages on a time work basis which is known as a guaranteed time rate, Clause (c) of section 3(2) is intended to meet a situation where operation of minimum rate fixed by the Government may result in worker earning less than minimum wage.11 d) a minimum rate ( whether a time rate or a piece rate ) to apply to apply in substitution for the minimum rate which would otherwise be applicable, in respect of overtime work done by the employees, which is known as overtime. The minimum rates of wages shall not apply in the following cases during the period in which the proceeding is pending and the award made therein is the operation or where the notification is issued during the period of operation of an award during that period: (i) where in respect of an industrial dispute relating to the rates of wages payable to any of the employees employed in a scheduled employment any proceeding is pending before a Tribunal or a National Tribunal under the Industrial Disputes Act 1947, or before any like authority; or (ii) (iii) where an award made by any such authority as aforesaid in its operation; and a notification fixing or revising the minimum rates of wages in respect of the scheduled employment is issued during the pendency of such proceeding or the operation of the award.
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M.G.A. Pai & Sons v. State, AIR 1971 Mys. 46. Hydro (Engineers) Pvt. Ltd. v. Workmen, AIR 1969 SC 182
Where such proceedings or award relates to the rates of wages payable to all the employees in the employment no minimum rates shall be fixed or revised in respect of that employment during the said period. In fixing or revising minimum rates of wages under Section 3: a) different minimum rates of wages may be fixed for --i. ii. iii. iv. different scheduled employments; different classes of work in the same scheduled employment; adults, adolescents, children and apprentices; different localities;
b) minimum rates of wages can be fixed by one or more of the following wage periods, namely:-i.) ii.) iii.) iv.) by the hour, by the day, by the month, or by such other longer wage-period as may be prescribed.
Where such rates are fixed by the day or the month, the manner of calculating wages for a month or for a day, as the case may be, may be indicated. Where any wage-period have been fixed under Section 4 of the Payment of Wages Act, 1936, minimum wages shall be fixed in accordance therewith. In S.F.A.L. Works v. State Industrial Court, Nagpur,12 it was held that in fixing the minimum rates of wages, the Act also makes provisions for the special allowances to be paid along with the basic rate of wages. The allowance is fixed by the Government to accord as nearly as practicable with the variation in the cost of living index number applicable to such workers. So far as the provisions of the act relating to the minimum wages and special allowances are concerned they are fixed without any reference to the paying capacity of the employer, but when a dearness allowance is fixed as a part of the fair wage, it will have to depend upon the
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paying capacity of the employer. It has been held though the dearness allowance is given to compensate for the rise of the cost of living, cent per cent neutralisation is not given as it may tend to inflation. In Jyothi Home Industries v. State of Karnataka,13 the question for consideration was whether the appropriate government can fix guaranteed remuneration under this Act, for the day on which the employer in unable to give the work. It was held that the appropriate government under Section 3 can fix minimum wages for hours actually worked by the employee and if he is not in the position to fulfil his part of the contracts on account of the facts that the employer does not offer him necessary raw materials required for his job, he would be entitled to remuneration under Section 3(2)(c). This view is supported by the other provisions like section 13 and 20 of the Act also. Thus the Government can fix guaranteed remuneration.
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scheduled employment, which shall come into force after the expiry of three months unless otherwise provided in the notification. When the appropriate Government proposes to revise the minimum rates of wages, by the mode specified in section 5(1) (b), the appropriate government shall consult the advisory board also. If the advisory board approves the notification, regarding revision of wages without discussing the objections made, the action of the board would be arbitrary because it amounts to non-application of mind in granting approval.18 The exercise of power to fix or revise the minimum wages under sub-section (2) of section 5 is limited to employment specified in the schedule. Under Section 27 of the Act, the appropriate government may add any employment to the schedule. The nature and extent of the power of the appropriate Government under Section 27 and Section 5 (2) is separate and distinct and what can be done by the appropriate government in exercise of its power under Section 27 cannot be done by it in exercise of its powers under Section 5 (2) of the Act.19 The power conferred upon the appropriate Government under Section 5(1) is neither arbitrary nor unguided. Therefore, sub-section (1) does not offend Article of the Constitution.20 In the matter of fixing minimum wages, the economic capacity of the trade or industry is irrelevant, for, what alone is germane, is, the wage required by the employees to survive.21 The fixation of wages depend upon the prevailing economic conditions, the cost of living in a place, the nature of the work to be performed and the conditions in which the work is performed. Where a notification is issued by the Government authorising the employer to deduct the sum mentioned in the notification towards the cost of free meals supplied to the workers by him, it was held that the notification gives only an option to the employer and does not impose an obligation upon him.22 In Muruga Home Industries v. Government of Tamil Nadu & Anr. 23 minimum wages of beedi-workers were revised by the State Government revised by the State Government by a notification issued after consultation with the Advisory Board. It was the notification fixing
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H B Verma v. Union of India, (1993) 1 LLJ 39 Del Madhya Pradesh Mineral Industrial Association v. The Regional Labour Commissioner , AIR 1950 SC 1068 20 Chandra Bhavan Boarding and Lodging, Bangalore v. State of Mysore, AIR 1970 SC 2042. 21 Arbunda Bhuvan Tea Shop & Ors. v. State of Maharashtra & Ors ., 1992 I LLJ 807 (Bom) 22 Supra 20 23 (1996) I LLJ 598 (Madras)
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minimum wages should not be interfered with in writ proceedings except on most substantial grounds. Advisory Board is well balanced since representation is given to employers and employees. Work in Beedi industry is unorganised sector and condition of work and wages of beedi workers are below subsistence level and minimum wages fixed is fair and just and not arbitrary. In North Bihar Chamber of Commerce and Industries, Muzzaffarpur and others v. State of Bihar and others,24 a notification was issued revising the minimum rates of wages on the advice of the Advisory Board. It was contended that the composition of the Advisory Board was defective. The revised rates of minimum wages were impugned in these petitions. Dismissing the petitions the High Court observed that the petitioner had neither pleaded nor advanced arguments that any prejudice was caused by an alleged defect in the composition of the Advisory Board would not per se vitiate the decision. In Andhra Pradesh Hotels Association v. Government of Andhra Pradesh & Anr 25 , the Government of Andhra Pradesh issued a Gazette notification on March 1999 proposing revision of minimum wages in Hotel industry under Section 5(2) of the Minimum Wages Act, 1948. On October 17, 2000 the Government of Andhra Pradesh in consultation with the State Advisory Board issued another G.O. revising the minimum wages in exercise of powers conferred by Sections 3(1) and 5(2) of the Act in Hotels and Restaurants etc. Being aggrieved by the said notification the petitioner association filed the present writ petition. Dismissing the appeal the High Court made following observations:-1) Fixation of minimum wages was an administrative act and the quantum fixed on humanitarian ground was not subject to judicial review, unless the fixation was ultra vires, the Minimum Wages Act, 1948. 2) Minimum wages must provide not merely for bare subsistence but for the preservation of workers efficiency also, and so the capacity of the employer to pay such wages was treated as irrelevant. 3) The High Court while reviewing a notification fixing minimum wages could not assume the role of an appellate authority and reappreciate each and every factor. 4) It could not be said that under no circumstances the rate of neutralisation of variable D.A. should not exceed 100%.
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5) The Minimum Wages Act, 1948 was a beneficial piece of social legislation and in fixing the wages under it, the consideration was that workmen should receive their proper share of the National income which they help to produce. 6) The appellant had not made out any permissible ground to quash the impugned Government order.
The further part of the Act talks about the authorities under the Act, their composition and process of working. The later Sections also enlist the penalties for different offences under the Act and also the power of the Government to make and validate rules under the Act.
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CONCLUSION
This Act provides the workers with a weapon to defend themselves in case undue advantage of their services is sought to be taken by the employers. It empowers the workmen to demand for special allowances in addition to the minimum wages. The fixation of minimum wages for every sort of work ensures that a basic standard of living is enjoyed by the workers and that they are properly rewarded for their labour. However, minimum wage provides not merely for the bare subsistence of life but for the preservation of the efficiency of the worker. Therefore, provisions for some measure of education, medical requirements and amenities are also enunciated in the Act. The idea of fixing such wages in the light of cost of living at a particular juncture of time and neutralising the rising prices of essential commodities by linking up scales of minimum wages with the cost of living index cant, therefore, be said to be alien to the concept of minimum wage. The concerned Act also provides for a fair procedure for determination of minimum wages as well as remedies that could be sought in case the workers are deprived of their much deserved minimum wages. This legislation specifically aims at securing livelihood for the unskilled workers who lack the ability to raise a demand for their services or labour. This project has brought to light the need for fixing of such minimum wages, the procedure for determination of minimum wages for different industries, the reasons which the appropriate government takes into account before determination of minimum wages as well as the remedies available to the workmen.
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BIBLIOGRAPHY
Books referred: Labour Law & Labour Relations (Cases & Materials), The Indian Law Institute Publications, 2002 Industrial Relations & Labour Laws, S.C. Srivastava, Vikas Publishing House, 2006 Labour & Industrial Law, S.N. Mishra, Central Law Publications, 2009
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