The Maharashtra Shops & Establishments (Regulation of Employment and Conditions of Service) Act, 2017 has repealed the Maharashtra Shops and Establishments Act, 1948. The revamping of the provisions is in line with the Central and State Governments’ vision of promoting trade and commerce in the country whilst simultaneously balancing its social welfare obligations to workers and other stakeholders.
In a significant simplification of the definition of “establishments” for the purposes of applicability of the 2017 Act, the distinct treatment afforded to a “commercial establishment” under the 1948 Act has been substituted by a singular, wide and common definition of “establishment”.
Exemptions from the application of provisions of the 2017 Act have also been specifically restricted to 13 categories of establishments and individuals and include government establishments, High Court and other Court law libraries and intermittent workers, among others.
The 2017 Act has also broadened the definition of “employer” to expressly include partners of firms, directors of companies and persons appointed by the Government to manage affairs of a Government establishment in case of corresponding categories of industries.
The Act does not apply to establishments employing less than 10 employees; however, establishments employing less than 10 employees are required to intimate the Facilitator or the Chief Facilitator of commencement of business within 60 days (double of the erstwhile 30-days period).
Maharashtra is the first State to remove restrictions on opening and closing hours of establishments under Section 11 of the 2017 Act, subject as of date, merely to the exceptions of permit rooms, beer bars, dance bars, hookah parlors, discotheques, shops selling or establishments serving wine or any other kind of liquor, theatres and cinema exhibition houses.
Protection to adult and women workers of shops and establishments has also been ensured in that the Act prohibits discrimination against women workers and disallows them from being required or allowed to work either before 7:00 a.m. or after 9:30 p.m. on any working day. Generally, any worker of an establishment cannot be allowed or required to work for more than 10.5 hours per day reduced from the erstwhile 11 hours per day or 12 hours per day in case of intermittent or urgent nature of work. Any worker working beyond 9 hours a day or 48 hours a week is eligible for double the ordinary rate of payment, while capping the maximum overtime work hours at 125 hours for every 3 months.
The 2017 Act has also hiked the number of paid casual leaves to be allowed to every worker of an establishment to a total of 8 days per calendar year. As for the workers who have worked at the establishment for any more than 240 days in a given calendar year, such workers are entitled to a paid leave each for every 20 days of work done in the previous calendar year.
The 2017 Act requires employers to ensure provision of first-aid facilities, wholesome drinking water supply, latrine and urinal facilities, a creche facility (for establishments employing 50 or more workers) and a canteen (for establishments employing 100 or more workers).
Contravention penalty under the 2017 Act has been significantly increased to a minimum of INR 1,00,000 (Indian National Rupees One Lakh) over the erstwhile minimum amount of INR 1,000 (Indian National Rupees One Thousand).
Further provisions to ensure compliance and tracking have been included in the form of a Labour Identification Number (LIN) to be issued by the Facilitator to the employer upon registration, and the provisions of an option to employers to maintain electronic records.
Solomon & Co.
Aayush has a Bachelor’s Degree in Legal Science from the Government Law College, Mumbai University and is a part of the Litigation and Dispute Resolution team of the firm. He has worked and assisted on a variety of matters concerning Competition Law, Constitutional Law, Testamentary Law, Contract Law and also Arbitration, Tenancy and Administrative matters and regularly assisted in proceedings at the Bombay High Court, the Bombay City Civil Court and the Court of Small Causes, Mumbai. He has also represented India at the Jean Pictet Competition, 2017 on International Humanitarian Law and has actively participated in moot courts and various other competitions and activities while in law school.