Work Hours and Overtime under Indian Labour/Employment Laws
In this article, we discuss the Indian labour and employment laws regulating work hours and overtime
India has two major laws concerning working hours of workers i.e., the Factories Act, 1948 and Shops & Establishment Act. The Ministry of Law and Justice has enacted the Occupational Safety, Health and Working Conditions Code (OSH), 2020 to consolidate and amend the laws relating to occupational safety, health and working conditions of the persons in an establishment and to regulate the working hours of the workers and employees.
The regulations related to the working hours can be separated into four broad categories that help demarcate the dimensions of the discussion.
Working Hours for Workers
I. Employment of Adults
An adult workershall not be employed for more than 48 (forty-eight) hours in a week and not more than 9 (nine) hours in a day. A compulsory rest of at least half an hour (30 minutes) between each period of work and such period of work shall not exceed five hours. Total period of work inclusive of rest interval cannot be more than 10.5 (ten and a half) hours.
The Chief Inspector may by giving a reason in writing increase the workday time up to twelve hours. However, the total number of hours of work in a week, including overtime, shall not exceed sixty and the total number of hours of overtime shall not exceed fifty for any one quarter. The employer has to make sure that no worker works more than 10 (ten) days without a rest day of 24 (twenty-four) hours.
Therefore, if the worker is asked to work on weekly holiday, he should have full holiday on one of three days immediately or after the normal day of holiday.
It must be highlighted that the OSH prescribes the maximum working hours for any worker working in any establishment to be 8 (eight) hours in a day. The working day of a worker shall be so arranged that inclusive of the interval of rest it shall not exceed 12 (twelve) hours on any day. The Factories Act puts restriction on double employment and overlapping of shifts.
Similar restrictions are also provided for in the OSH as no worker is allowed to work in any factory on any day if he has already been working in any other factory within the preceding 12 (twelve) hours.. If a worker’s shift extends beyond midnight, a holiday of a whole day means 24 (twenty four) consecutive hours beginning when his shift ends must be provided to him.
Weekly holiday is compulsory as per the Factories Act. First day of the week i.e. Sunday shall be a weekly holiday. Under the OSH, no worker shall be allowed to work for more than 6 (six) days in any week but the motor transport worker can be required to work even on a weekly holiday, arranging that he does not work for more than 10 (ten) consecutive days without a holiday.
Compensatory holiday in lieu of weekly holidays deprived and such compensatory holiday must be given within the same month or two months following the month when the weekly holiday was missed.
II. Employment of Women
Under the present laws, women workers are not allowed to be employed beyond the hours 6 am to 7 pm. State Government may grant exemption to any factory or group or class of factories, but no woman can be permitted to work during 10 pm to 5 am. Shift change can be only after weekly or other holiday and not in between. However, the OSH allows the women to be employed beyond the hours 6 am to 7 pm upon their consent and subject to adherence of any prescribed safety and other conditions. If the Government considers that the employment of women is dangerous in any establishment, then it may require the employer to provide adequate safeguards prior to the employment of woman.
III. Employment of Young Persons
Child below the age of 14 (fourteen) years is not allowed to be employed in a Factory. Young person above 14 (fourteen) but below 18 (eighteen) years of age can be employed only for 4.5 (four and a half) hours per day and that too subject to a doctor's permission by way of certification of fitness for work. A person over 14 (fourteen) but below 18 (eighteen) years of age is termed as ‘adolescent’.
He can be employed as an adult if he has a certificate of fitness for a full day's work from certifying surgeon. There are more restrictions on employment of female adolescent.
According to the newly enacted OSH, the working hours of an adolescent shall be regulated in accordance with the provisions of the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986. An adolescent worker shall be entitled for one day leave for every 15 (fifteen) days of his work.
If workers work overtime, extra wages for such overtime should be given at twice the ordinary rate. The OSH further mandates that such overtime work shall be calculated on a daily basis or weekly basis, whichever is more favourable to such worker.
Total working hours including overtime should not exceed 60 (sixty) hours in a week and total overtime hours in a quarter should not exceed 50 (fifty). Register of overtime should be maintained. An employee working outside the factory premises like field workers etc. on tour outside headquarters are not entitled to overtime. According to the OSH, the appropriate Government shall fix the total number of hours for overtime.
Working Hours for Non-Factory Workers
The Shops and Establishment Act (SEA), which is a state legislation and each state has framed its own act and rules for the act, regulates the working hours of non-factory workers i.e., shops and establishments. SEA is applicable to all the employees (including managerial and non-managerial workers) of any shop or establishment covered under it. SEA also fixes the maximum number of work hours to 9 (nine) hours a day and 48 (forty eight) hours a week.
The work hours may be increased up to 54 (fifty four) hours a week with prior notice to the local labour inspector subject to the condition that overtime work hours do not exceed 150 (one hundred fifty) in one year.
In line with the Factories Act, the SEA also requires payment of wages at twice the rate of regular wages. Similarly, the rest and substitute holiday provisions under the SEA are in line with the provisions of the Factories Act unless state governments have made changes to their respective SEAs.
State specific SEA must be checked carefully to determine whether or not the applicable law differentiates between managerial and non-managerial workers relating to working hours.
The OSH also differentiates a worker from those employed in managerial/ administrative capacity and those employed in supervisory capacity drawing wages above a prescribed limit.
The Factories Act provides for penal consequences for contravention of provisions of the act; any violation of overtime regulations under the Factories Act is punishable with imprisonment for a term which may extend to two years or with fine which may extend to Rupees 100,000 (one hundred thousand) or with both, and if the contravention is continued after conviction, with a further fine which may extend to Rupees 1,000 (one thousand) for each day on which the contravention is so continued.
The penalties under the SEA depend on the specific laws of the states but in general are very low (as low as Rupees 100 (one hundred) in case of some states) in comparison with the penalties under the Factories Act. However, offences involving non-payment or withholding of wages may be subject to heavy penalties in certain states e.g. in State of Punjab/Haryana, an employer may need to pay compensation of up to 8 (eight) times the wages withheld.
The OSH provides for a variety of penalties classified for various types of prescribed contraventions. A contravention relating to the subject matter at hand subjects an employer to a penalty which shall not less than Rupees 200,000 (two hundred thousand) which may extend up to Rupees 300,000 (three hundred thousand).
If the contravention continues, further penalty may be imposed which may extend up to Rupees 2,000 (two thousand) each day till the date contravention continues.
Pankaj Singla, Partner
Disclaimer- This Article is for information purposes only, and the views stated herein are personal to the author, and shall not be rendered as any legal advice or opinion to any person, and accordingly, no legal opinion shall be rendered by implication.
The Article does not intend to induce any person to omit, commit or act in any particular manner, and that you should seek legal advise before you act on any information or view expressed herein. We expressly disclaim any financial or other responsibility arising due to any action taken by any person on the basis of this Article.
 Note: The enacted law has not yet been notified (as on January 04, 2021).
 Note: "adult" has been defined in the Factories Act, 1948 as “a person who has completed his eighteenth” year of age;
 The Factories Act, 1948, Chapter VI, “Working hours of adults” Section 51
 "week" has been defined in the Factories Act, 1948 as “a period of seven days beginning at midnight on Saturday night or such other night as may be approved in writing for a particular area by the Chief Inspector of Factories;”
 The Factories Act, 1948, Chapter VI, “Working hours of adults” Section 54. The OSH Code, Chapter VII, “Hours of Work and Annual Leave with Wages”, at Section 25.
Ibid, at Section 55.
 The Factories Act, 1948, Chapter VI, “Working hours of adults” Section 54, at Section 64(4) (iii).
 Ibid, at Section 64(4) (iv); “Quarter” has been defined as a period of three consecutive months beginning on the 1st January, 1st April, 1st July, or the 1st October.
 Draft Rules of OSH, Chapter V, Section 28(2)
 The Factories Act, 1948, Chapter VI, “Working hours of adults” at Section 60. The OSH, section 29.
Ibid, at Section 58, and The OSH, section 29.
 The OSH, Section 30.
 The Factories Act, 1948, Chapter VI, “Working hours of adults” at Section 57, The OSH Code, 2020, at section 27.
 Note: "day" has been defined in the Factories Act, 1948 as “a period of twenty-four hours beginning at midnight”
 The Factories Act, 1948, Section 52.
 The OSH, Section 26.
 The Factories Act, 1948, Section 53 and the OSH, Section 26.
 The Factories Act, 1948, Section 66.
 The Factories Act, 1948, Section 66.
 The OSH, Chapter X “Special provisions relating to employment of women”, at section 43.
 The OSH, Section 44.
 The Factories Act, 1948, Section 67.
Ibid, at Section 71.
Ibid, at Section 69.
 The OSH, Section 25(4).
 Ibid, at Section 32.
The Factories Act, 1948, at Section 59; similarly, Section 33 of the Minimum Wages Act, 1948 reaffirms this requirement of payment of overtime wages at twice the rate of ordinary wages of the worker., Section 27 of OSH Code, 2020.
 Note: Draft Rules of OSH Code, 2020 recommends it to be 125 hours in a quarter, Proviso to Section 56.
 The OSH, Section 33(a).
R Ananthan v. Avery India 1972(42) FJR 304 (Mad HC) * Director of Stores v. P S Dube 1978 Lab IC 390 = 52 FJR 299 = 1978 I LLN 464 = FLR
 The OSH, at Proviso to Section 27.
 The OSH, at Section 2(1)(zzl).
 The Punjab Shops and Commercial Establishments Act, 1958, Section 18.
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