Kerala government recently published an ordinance amending certain provisions in the Kerala Shops and Commercial Establishments Act, 1960. There have been multiple amendment acts to the original said act, but this ordinance (which will hopefully be adopted as an amendment act by the next sitting of Kerala Legislative Assembly) comes with a purpose of easing the operations of Shops and Establishments while making it safer and humane for the employees. Let’s look at what are changing.
Definition of employee
The original act defines employee as ‘a person wholly or principally employed in, and in connection with, any establishment and includes an apprentices’. The new amendment extends this definition by suffixing ‘any class of persons as the Government may, by notification in the gazette, declare to be an employee for the purpose of this act.
Round the week functioning
The old act demanded that the shop/establishment should remain closed for at least one day per week, and such a day should be permanently displayed as a notice by the employer at a conspicuous location at the work place. Such a closed-day could not be altered by the employer for more than once in a period of three months, too.
With the amendment, the ‘shop/establishment must be closed for a day per week’ is removed, and it shrinks to allowing every employee to be entitled to one full day holiday per week, provided s/he has worked for at least 6 days in that week including all authorised leaves. This, in turn, allows the employer to function the shop/establishment round the week, with making the weekly holidays of employees rotate.
Curfew relaxed for women employees
The original acts mandated that no woman or any person who has not attained the age of seventeen shall be required or allowed to work whether as an employee or otherwise in any establishment before 6 A. M. or after 7 P. M.
The amendment relaxes the time limit from 7 PM to 9 PM. Here comes the historic change: the employer can now employ women employees between 9 PM and 6 AM (which was prohibited earlier) after getting the consent of such women employees. Further, such women employees must be working in a group of at least 5 employees wherein at least 2 are women.
Further, adequate security measures to ensure safety, honour, dignity, and protection from Sexual Harassment of women employees working during these hours should be ensured by the employer. Moreover, transportation from the workplace to the residence of such women employees should be arranged for by the employer (though the amendment does not provide that a security personnel accompany the women employees during this travel, it is implicit since the act talks about ‘safety’ measures—hence it would be wise to have the security measures as well taken care of during this travel).
Kerala’s IT Policy, earlier, gave relaxations to the above effects, but the amendment now extends this to all the sections of Shops and Establishments.
There have been a lot of protests, especially from the textiles industry, regarding inhumane treatments by employers, where employees were not allowed to sit during work hours. Kerala Human Rights Commission had intervened in the issue long ago, and Kerala Government sympathised with the employees thus treated. With an insertion of a provision in the original act, 21B, the amendment officially and legally puts an end to such inhumane treatments
The amendment says that all the shops/establishments must provide suitable seating arrangements for their workers to avoid on-the-toe situations throughout the duty time. This will call for a drastic change in many of the industries coming under the definition of Shops/Commercial Establishments.
The violation of various provisions in the act may now attract a fine of Rs. 1 lakh and 2 lakh respectively, which was as mere as Rs. 5000/- and Rs. 10000/- earlier. There are some changes to the calculation of such fine and fine for wilful obstruction of inspectors/labour/govt officers from carrying out their official duties, which are available in the PDF below.
Last but not the least – electronic age!
Earlier, employers needed to take special permission from the labour authorities before keeping employee data (muster rolls, payrolls, etc.) in digital format. This has been a point of debate by many, and the government is now forced to accept that things have really changed and people have started to migrate to the digital world, the condition of prior approval has been lifted in the amendment. Employers can now keep the data in digital formats as well, without any sort of permission/approvals.
Let me know your thoughts in comments! Below is the Amendment Ordinance. You can find the original act here.Kerala-Shops-Commercial-Establishments-Amendment-Ordinance-2018
Arunanand T A
Also published on Medium.