Analysis of dual employment laws in India

Analysis of dual employment laws in India

Date : 04 Mar, 2020

Post By Adv. Rashmi Kumari

With the onset of globalization and industrialization, a large number of people were engaged as labourers in different industries at different levels. Due to the availability of cheap labour, the workmen and labourers in these industries were constantly exploited and abused by the factory owners or the respective industries in which they were employed.

Further, a large number of people employed in the private sector are usually subjected to long and arbitrary working hours without fair pay in exchange for such long shifts. 

Due to such unreasoned working conditions of both the skilled employees as well as the oppressed conditions of the unskilled and skilled labourers regulatory laws pertaining to the employment of people in different sectors have been implemented. 

The labour regulations in India can be said to broadly regulate the following dimensions of employment;

  1. Working conditions 

  2. Industrial relations 

  3. Wage 

  4. Welfare 

  5. Social security 

While duly complying with the provision of the Indian contract act, the employment agreements and contracts must duly adhere to the applicable labour laws and regulations containing in the standing orders of such establishment.

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The arbitrary working conditions and the menial wages and salaries in the times of fluctuating economy have forced many people to take up dual/ double employment as the means to earn additional incomes. Dual or double employment means when a person who is one hundred percent employed in one establishment ( principle employment) also extends his/her services to a similar establishment or department as an employee. The concept of dual or double employment still ambiguous within our Indian legal system. 

The Factories Act, 1948 under section 60 puts a bar on dual employment, which states that no adult worker is allowed to work in a factory when he/she is already employed in another factory. It becomes important to keep in mind that not all establishments shall fall under the meaning and definition of “factory” under the said Act. Institutions and establishments which fall outside the scope of “factory” within the Act should expressly lay down a clause in the employment contract expressly and unambiguously barring dual/double employment. 

The scope and the meaning of double employment within the Shops and Establishment Act differ from that of the factories Act since it is a state legislature the scope may slightly differ from one state to other however following a general interpretation it can be concluded that The Shops and Establishment Act expressly lays down a bar on employment in the same institution or establishment after the working hours. 

Section 8 of Schedule I-B of the Industrial Employment (standing orders) Central Rules, 1946 states that a workman cannot work against the interests of an industrial establishment by taking up dual employment in another establishment while principally being employed in one establishment. 

Indian courts in many cases have also reinstated that termination on the grounds of dual employment is valid as it affects the efficiency of the workman and in the extension of the principal establishment, he was employed at.

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The Indian labour laws are silent with respect to the consequences of dual employment, however, termination on the grounds of dual employment has been considered to be a valid ground by the Indian courts as such dual employment negatively impacts the efficiency of the establishment. To combat the issue of dual employment many institutions and establishments incorporate a moonlighting clause in their employment agreements.

A moonlighting clause is a negative indenture or a covenant that an establishment includes in its agreement expressly barring dual employment of the employee while being employed in that establishment. Moonlighting in simple terms means holding another job during the working hours of the principal employment. The employer has to make sure that it is expressly laid down in the employment agreement that dual employment shall result in immediate termination of the employee.

It is also crucial for the establishment to lay down an HR framework highlighting the establishment’s stand on dual employment.

The author of this blog is Adv. Rashmi Kumari having an experience of 16 years in handling employment related matters from her experience she wants to share this beneficial information for the individuals having any issues with respect to employment related matters.

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