Hours of Work, Holidays and Overtime

The first proviso, mines. Subject to clause (a):

• (i) persons employed below ground in a mine shall not work more than such hours as the Central Government notifies in any day;
• (ii) no work shall be carried on below ground except by a system of shifts so arranged that the period of work for each shift is not spread over more than that daily maximum;
• (iii) no person shall be allowed to be present in any part of a mine below ground except during the periods of work shown for him in the register maintained under section 33(a).

Clause (iii) is a safety provision disguised as an hours provision. In a mine, knowing exactly who is underground and when is the difference between a rescue and a search.

The second proviso, motor transport workers. Hours of work include:

• (i) time spent in work done during the running time of the vehicle;
• (ii) time spent in subsidiary work; and
• (iii) periods of mere attendance at terminals of less than fifteen minutes.

The Explanation defines all three. Running time is from the moment the vehicle starts functioning at the beginning of the working day until it ceases at the end, excluding interruptions longer than a prescribed duration during which the crew are free to dispose of their time or are doing subsidiary work. Subsidiary work is work connected with the vehicle, its passengers or its load done outside running time, including accounts, paying cash, signing registers, handing over service sheets and checking tickets; taking over and garaging the vehicle; travelling from the signing on place to the vehicle and back; upkeep and repair; and loading and unloading. Period of mere attendance is the period during which a person remains at his post solely to reply to possible calls or to resume action at the time fixed in the duty schedule.

This is the most detailed thing in the Chapter and it exists for a reason worth stating. A bus crew's day is mostly not driving. If only driving counted, a twelve hour day would show as six. The Code therefore counts the whole shape of the day and adds back short waits of under fifteen minutes.

Section 25(2) and (3): journalists and sales promotion employees

Section 25(2), working journalists. Notwithstanding sub-section (1), their hours are as the Central Government prescribes, subject to:

• a maximum of one hundred and forty-four hours of work in any period of four consecutive weeks; and
• a period of not less than twenty-four consecutive hours of rest in any period of seven consecutive days.

One hundred and forty-four hours over four weeks averages thirty-six hours a week, which is less than a six day eight hour week. The trade is regulated by an averaging limit rather than a daily one, because news does not arrive on a schedule.

Section 25(3), leave for sales promotion employees and working journalists. In addition to prescribed holidays, casual leave and other leave, such a person:

• (i) if he asks, shall be granted earned leave on full wages for not less than one-eleventh of the period spent on duty, and leave on medical certificate at one-half wages for not less than one-eighteenth of the period of service;
• (ii) may accumulate earned leave up to a prescribed maximum;
• (iii) is entitled to the prescribed limit up to which earned leave may be encashed or availed at a time, and the reasons for exceeding that limit;
• (iv) on voluntarily relinquishing his post or retiring, or on termination for any reason not being termination as punishment, is entitled to cash compensation for earned leave not availed, subject to prescribed conditions;
• (v) if he dies in service, his heirs are entitled to that cash compensation, which is an amount equal to the wages due for the period.

Note clause (iv): cash compensation is lost where the termination is by way of punishment.

Section 25(4), adolescents. Notwithstanding anything in the section, the working hours of an adolescent worker are regulated by the Child and Adolescent Labour (Prohibition and Regulation) Act 1986.

Section 26: weekly and compensatory holidays

Section 26(1). No worker shall be allowed to work in an establishment for more than six days in any one week.

The proviso, motor transport. In a motor transport undertaking, an employer may, to prevent dislocation of the service, require a worker to work on a weekly holiday, so arranged that he does not work more than ten days consecutively without a holiday for a whole day intervening.

Section 26(2). The appropriate Government may by notification exempt such workers as it thinks fit from sub-section (1), subject to prescribed conditions.

Section 26(3), the compensatory holiday. Where by an order or rule exempting an establishment or its workers a worker is deprived of any weekly holiday, he shall be allowed compensatory holidays of equal number to those lost, within the month in which they were due or within the two months immediately following.

Three months in all, and the number must be equal. The employer cannot substitute money for the holiday under this section.

Section 27: extra wages for overtime

Wages shall be paid at the rate of twice the rate of wages in respect of overtime work, where a worker works for more than such hours of work in any day or in any week as the appropriate Government prescribes; and the period of overtime shall be calculated on a daily basis or a weekly basis, whichever is more favourable to the worker.

The first proviso, consent. A worker shall be required to work overtime by the employer subject to the consent of such worker for such work.

The second proviso. The appropriate Government may prescribe the total number of hours of overtime.

Three things, and all three get asked.

The rate is twice, not one and a half.

The calculation is whichever is more favourable to the worker. An employer cannot choose the basis that produces the smaller figure; the worker gets the better of the daily and weekly computations.

Overtime requires consent. The first proviso is the provision that makes overtime voluntary, and it is the answer to a problem in which a worker refuses to stay late.

A worked example

Vandana works in an electronics factory. The appropriate Government has prescribed overtime beyond eight hours a day and forty-eight hours a week.

Her normal day? Not more than eight hours, with intervals and spread over as notified: section 25(1).

She is asked to work eleven hours on Tuesday. The three extra hours are overtime, payable at twice the rate of wages: section 27. And she cannot be required to work them without her consent: the first proviso.

Over the week she works forty-six hours but does eleven hours on two days. The overtime is calculated on a daily basis or a weekly basis, whichever is more favourable to her. On a weekly basis she is under forty-eight and would get nothing; on a daily basis she has six hours of overtime. She gets the daily computation.

She is asked to come in on all seven days. Not permitted. Section 26(1) forbids work on more than six days in any one week.

The appropriate Government exempts her establishment and she loses two weekly holidays. She must be allowed compensatory holidays equal in number, that is two, within the month they were due or within the two months immediately following: section 26(3).

Her supervisor earns twenty-two thousand rupees a month and works eleven hours a day. He is not a worker: section 2(1)(zzl)(iv) excludes a supervisor drawing more than eighteen thousand rupees a month. He has no eight hour day, no weekly holiday and no overtime rate under this Chapter, though he remains an employee to whom the Chapter III duties are owed.

Now a bus conductor, Salim. He signs on at six, walks twenty minutes to the depot, checks tickets and cash for half an hour, drives with a forty minute break at the terminus, waits ten minutes at another terminal, and garages the bus at the end.

What counts as his hours? The running time; the subsidiary work, which expressly includes checking tickets, paying cash, signing registers, travelling from the signing on place to the vehicle, garaging and loading; and periods of mere attendance at terminals of less than fifteen minutes, so the ten minute wait counts. The forty minute break is excluded from running time if it exceeds the prescribed duration and he was free to dispose of his time.

The service would be dislocated if he took his weekly holiday. The proviso to section 26(1) allows the employer to require him to work it, provided he does not work more than ten days consecutively without a whole day holiday intervening.

A journalist on the same group's newspaper. Her hours are prescribed, subject to a maximum of one hundred and forty-four hours in four consecutive weeks and at least twenty-four consecutive hours of rest in any seven days: section 25(2). She may ask for earned leave on full wages of not less than one-eleventh of the period spent on duty and medical leave at half wages of not less than one-eighteenth of her service: section 25(3)(i).

She resigns with unused earned leave. She is entitled to cash compensation for it, subject to prescribed conditions: section 25(3)(iv). Had she been dismissed as punishment, she would not.

What this does NOT mean

These rights are not owed to every employee. They attach to a worker under section 2(1)(zzl).

The eight hour limit is not only about orders. The employer must not require or allow a worker to exceed it.

The overtime basis is not the employer's choice. It is whichever is more favourable to the worker.

Overtime is not compulsory. The first proviso to section 27 makes it subject to the worker's consent.

A lost weekly holiday cannot be bought out. Section 26(3) requires compensatory holidays of equal number within three months.

Limits and criticism

The daily and weekly figures are not in the Code. Section 25(1)(b) leaves the hours, intervals and spread overs to notification, and section 27 leaves the overtime trigger to be prescribed, so the eight hour day is the only fixed number.

The exclusion of managers and higher paid supervisors means the people most likely to work very long hours have no statutory limit at all.

The motor transport proviso to section 26(1) permits ten consecutive working days, which is a long stretch for a driver.

Section 25(2)'s averaging limit allows a journalist to work far more than eight hours on a given day so long as the four week total holds.

Quick revision

• Section 25(1): eight hours a day, with notified intervals and spread overs; the employer must not require or allow more. Mines: below ground hours notified by the Central Government, work by a system of shifts, and no presence below ground except during the periods shown in the section 33(a) register. Motor transport: hours include running time, subsidiary work and mere attendance under fifteen minutes.
• Section 25(2): working journalists, maximum one hundred and forty-four hours in four consecutive weeks and twenty-four consecutive hours of rest in seven days.
• Section 25(3): for sales promotion employees and working journalists, earned leave of one-eleventh of duty on full wages, medical leave of one-eighteenth of service at half wages, accumulation, encashment, cash compensation on relinquishment, retirement or non-punitive termination, and to heirs on death.
• Section 25(4): adolescents are governed by the Child and Adolescent Labour (Prohibition and Regulation) Act 1986.
• Section 26(1): not more than six days in a week; motor transport proviso permits work on a weekly holiday if not more than ten consecutive days without a whole day holiday. Section 26(3): compensatory holidays of equal number within the month or the two following months.
• Section 27: twice the rate of wages for overtime; computed daily or weekly, whichever is more favourable to the worker; subject to the worker's consent; the total overtime hours may be prescribed.

Test yourself

1. State the daily hours limit and the weekly days limit. No worker shall be required or allowed to work more than eight hours in a day: section 25(1)(a). No worker shall be allowed to work for more than six days in any one week: section 26(1).

2. At what rate is overtime paid, and how is the period computed? At twice the rate of wages, and the period of overtime is calculated on a daily basis or a weekly basis, whichever is more favourable to the worker: section 27.

3. Can an employer compel a worker to work overtime? No. The first proviso to section 27 provides that a worker shall be required to work overtime subject to the consent of such worker for that work.

4. A worker loses three weekly holidays under an exemption. What is he entitled to? Compensatory holidays equal in number, that is three, allowed within the month in which the holidays were due or within the two months immediately following that month: section 26(3).

5. Does a manager have an eight hour day under this Code? No. Section 25 confers the right on a worker, and section 2(1)(zzl)(iii) excludes a person employed mainly in a managerial or administrative capacity from that definition. The same applies to a supervisor drawing more than eighteen thousand rupees a month.

6. What counts towards a motor transport worker's hours of work? Time spent in work done during the running time of the vehicle; time spent in subsidiary work, which includes accounts, cash, registers, service sheets, ticket checking, taking over and garaging, travelling between the signing on place and the vehicle, upkeep and repair, and loading and unloading; and periods of mere attendance at terminals of less than fifteen minutes: the second proviso to section 25(1).

7. What is the limit on a working journalist's hours? As prescribed by the Central Government, subject to a maximum of one hundred and forty-four hours of work in any period of four consecutive weeks and not less than twenty-four consecutive hours of rest in any period of seven consecutive days: section 25(2).