Legal & Management Consultant.
The views in this article are author’s point of view. This article is not intended to substitute legal advice.
An Area of Concern to be addressed by the Central as well as State Governments and also by all professionals.
Now, we are very familiar with the provisions of Occupational Safety, Health & Working Conditions Code 2020.
The draft rules based on the Central Draft Rules, also have been published by most of the State Governments.
It is appropriate now to deeply analyze various implications arising out of the Code.
The Code has repealed the existing legislations under the scope of the Code, mainly Centrally enacted with State Rules for implementations.
The Code has not touched upon any State Legislations like, Shops & Commercial Establishments Act, Labour Welfare Fund Act, National Festival Holidays Act etc.
Arising out of this, we need examine the enforceability of Shops & Commercial Establishments Act with Rules and the controversies while deeply examining the Code.
Are there are any overlapping or the extent of repugnancy?
Hence, I have made an attempt to analyze and present to all Legal Practitioners, HR Fraternity and no exceptions to State / Central Authorities.
Does it mean that Shops & Commercial Establishments Act, is applicable to those employing less than 10 workers only?
In case the Establishments employing more than 10 workers, then the OSH & WC Code is applicable as well as State Shops Act ??
In such an event, the Establishments is covered under both the State Shops Act as well as Code??
Under the Code, there is no provision for Registration of Commercial Establishments, unlike under State Shops Act.
Here, it is overlapping. When Code comes into effect, should the Establishments comply with State Shops Act ?
Here, Code being a Central Act, does it override the State Shops Act ??
All the above are overlapping and creates controversies.
In the Code, particularly, the chapter on “Contract Labour” and chapter on Penalties & Offences are applicable to any Shops and Commercial Establishments employing 10 or more workers.
Some provisions under State Shops Act are beneficial to employees and some provisions under the Code are not beneficial to workers and vice versa.
Hence, once the Code comes into effect, these controversies and varied opinions are bound to be in place.
At least now, before the Code comes into effect, effective interactive discussions must be held by all stake holders. It is high time; all the State Governments must consider the futuristic repercussions to find a way out.
Here, it is a matter of interest and debatable that if we consider Article 254 of the Constitution of India, then, it may be argued that the States Shops Act may be repugnant and void.
Article 254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States.
Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.
“Extent of laws made by Parliament and by the Legislatures of States-
According to Article 245(1), the Indian parliament can make laws for any part of India’s territory or the entire country, and the state legislature can make laws for any part of the state or the entire state. “A law made by parliament shall not be invalid for the reason that it has extraterritorial operations,” according to Article 245(2).
In view of the above points put forth, can we opine that ultimately, State Shops Acts renders itself void?
Legal & Management Consultant.
14th July, 2020
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