Legal rights of Women at Workplace
Last year, we had blogged about the various initiatives taken by the Government to ensure equal opportunities for a woman to work, by assuring them safety and security at workplace. Similarly, this year we have analysed the amendments to a number of legislations that have been drafted with an aim to blend them with our constitutional paradigms of the right of gender equality.
The highlights discussed below bear proof of the positive changes which have addressed key issues such as inequality, harassment, safety and security concerns, gender bias, discriminatory treatment, etc., against women at work.
Towards encouraging woman’s participation in the workforce
- Recently, certain State Governments have come up with notifications / new legislations granting women the right to work in night shifts. Some of them are listed below.
The Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Act, 2017, which is effective since 19th December, 2017, does not discriminate against women in the matter of recruitment, training, transfers or promotion or wages. Under this Act, Women employees will be allowed to work in night shift subject to certain conditions.
Haryana Labour Department, (“Department”) issued a notification on 17th August, 2017, allowing women workers to be employed in factories during night shifts i.e. from 07.00 P.M. to 06.00 A.M. Such factories in Haryana are required to obtain exemption from the Department to employ women workers in night shifts. The exemption will be valid for a period of 1 year from the date of its publication in the Official Gazette.
The exemption will be subject to certain conditions. Some of the key conditions are:
- Employer / person responsible at the workplace must prevent / deter commission of sexual harassment acts and provide procedures for the resolution, statement or prosecution of acts of sexual harassment by:
- Prohibiting sexual harassment in any form such as unwelcome sexually determined behavior, or advances to gain contact, or demanding sexual favours etc.
- Framing rules or regulations relating to conduct and discipline prohibiting sexual harassment and providing appropriate penalties against offenders.
- Introducing necessary amendments in the existing Standing Orders, if required.
- Employer must provide transportation facility to the women workers from their residence and back (for the night shift) and security guards (including female security guard). Further, each transportation vehicle should be equipped with CCTV cameras.
- Employer must provide proper lighting not only inside the factory, but also in areas surrounding the factory, and in all places where the female workers may move out of necessity in the course of such shift.
- Employers must ensure that at least 10 women workers are employed in a batch. Further, the total of the women workers employed in night shift should not be less than 2/3rd of the total strength.
- Employers must provide sufficient women security during night shift at the entry as well as exit points
- Employers must provide appropriate working conditions in respect of work, leisure, health and hygiene to ensure that there is no hostile environment towards women at workplaces.
- Employers should initiate appropriate action in accordance with penal law in case of any criminal case.
- Employers to maintain a complaint redressal mechanism in the factory itself to ensure time-bound treatment of complaints.
- The Mechanism must provide for a Complaint Committee, preferably headed by a woman, a special counsellor or other support services including the maintenance of confidentiality.
- Employer must provide an additional paid holiday for the women workers during their menstruation period in the night shifts.
- Employer must appoint at least 2 female wardens per night shift who will work as Special Welfare Assistants.
- Himachal Pradesh
The Department of Labour and Employment, Himachal Pradesh issued a notification permitting factories to employ women workers in three shifts provided certain conditions are fulfilled. Some of these conditions are as follows:
- The unit should be registered under the Factories Act, 1948.
- Prior consent needs to be obtained from women workers who will be engaged in the night shift which should be submitted to the Labour Officer of the concerned area.
- Management will have to take measure to prevent sexual harassment of woman workers at the workplace.
- No woman worker should be engaged alone to work in night shift and lady supervisor should also be deployed in each shift and each floor.
- Transport facilities should be provided for plying woman workers to and from office to work and back.
- Lady escort should be provided in the vehicle with women workers during their transportation from the workplace to their residences and back.
- Arrangement of meals should be made within the factory premises during night shifts.
- Do not employ women worker/s in any hazardous process during night shifts.
- Working hours will be regulated in accordance with the Factories Act, 1948.
- Welfare facilities must be provided by the management.
- Provision regarding prohibition of employment of women worker near cotton openers shall be followed by the management.
- Management will have to furnish necessary details regarding number of women workers engaged in different shifts to the Labour Officer of their area.
- Management to comply with provisions relating to health and safety.
- Management to ensure health check-up of women workers before engaging them in night shift and subsequently on quarterly basis.
If the unit deviates from the above conditions at any stage, then such unit will not be allowed to engage women workers in night shift/s.
Towards ensuring woman’s safety and security at the workplace
- The Ministry of Women and Child Development (“Ministry”) had introduced an online complaint management system — ‘SHe-box’ (sexual harassment electronic box) in July, 2017, with an aim to ensure the effective implementation of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“Act”) in the Central Government offices (Central Ministries, Departments, Public Sector Undertakings, Autonomous Bodies and Institutions etc.)).
Subsequently, in November 2017, the Ministry extended this facility to women working in both public and private organizations to lodge complaints of sexual harassment at workplace. The Ministry clarified that those who have already filed a written complaint with the concerned Internal Complaint Committee (ICC) or Local Complaint Committee (LCC) constituted under the Act are also eligible to file their complaint through this portal.
The Ministry has also published a Handbook and Training Module on the Act to provide information about the provisions of the Act in easy to use practical manner. The private organizations are encouraged to customize the Training Module as per their existing service rules and disciplinary procedures.
- Pursuant to the issuance of Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Act, 2017 (“Amendment Act”), which have become effective since 19th December, 2017, the Government of Maharashtra (“Government”) has issued draft Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Rules, 2018 (“draft rules”) vide a notification dated February 2, 2018.
The draft rules propose that Woman workers must be assigned work only between the hours of 7 a.m. and 9-30 p.m. However, a woman worker can be assigned work between 9-30 p.m. and 7-00 a.m. in any establishment by obtaining her consent and by taking measures for the protection of their dignity, honour and safety by adopting the following measures:
- Provision must be made to provide an extra paid holiday if the menstruation period starts during her duty in the night shift.
- Separate urinals and latrines with provision for with sanitary napkins must be provided for women workers and such latrines must be enabled with safety locking facility only from inside.
- In case women employees are required to work in night shifts, the number of women workers should not be less than three.
- Proper illumination inside the establishment and in the areas surrounding the establishment.
- Providing safe and secure separate transportation facility from the establishment to the doorstep of the women worker’s residence and vice-versa. Further, it is the responsibility of the employer to maintain the details and carry out police verification of staff, whether engaged by themselves or through any agency or contractor.
- Protection from sexual harassment- Employer has been mandated to implement and enforce all the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
- The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 Act is enacted with a view to ensure that women are protected against any form of sexual harassment conduct at all the work places, be it in public or private. This will contribute to realisation of their right to gender equality, life and liberty and equality in working conditions everywhere. The sense of security at the workplace will improve women’s participation in work, resulting in their economic empowerment and inclusive growth. Towards achieving the objects of this Act the employer is vested with the following obligations:
- Preparation and implementation of an Internal Policy for Prohibition of Sexual Harassment.
- Constitution of an Internal Complaints Committees for each administrative unit or office that employs at least 10 employees.
- Display notice/s informing employees about the Internal Complaints Committee and penal consequences of indulging in sexual harassment acts.
- Conduct periodic workshops and awareness programs for your employees
- Extend necessary facilities to the Internal Complaints Committee to deal with the complaint/conduct inquiry.
- Extend necessary assistance to a woman employee in instances of sexual harassment
- Specify acts of sexual harassment as a form of misconduct under the service rules of your organization.
- Police Order/s
In exercise of powers under section 144 Cr.P.C. 1973, the Delhi Police from time to time issues orders to organizations like BPOs, Corporate and Media Houses, having the system of picking up and dropping their employees to ensure the following:
- They should keep a dedicated Command Center/Control Room that should have an emergency number manned 24 hours, so that employees can call, in case of any untoward incident.
- Transporters should pick up the women employees from their house door steps and should wait till she confirms that she is safely inside her house through a phone call.
- They should ensure that the driver and guards have proper ID cards.
- GPS should be fitted in all vehicles to keep track over movements of cabs.
- They should ensure that cabs do not have black film/tinted glass.
- Security guard must accompany the woman employee to her houses if residence is not motorable. (If the cab cannot reach to her residence).
- The above measures should be adopted by every employer who wants to employ women in their factory in nightshifts.
- Women should be employed only in batches, of not less than ten or not less than two thirds of the total nightshifts strength; separate work sheds, canteen facilities, all women transport facility should be provided.
- The women employees may be advised to drop at their homes, especially between sunset and sunrise.
- The BPO should take the list of those drivers from the transporters who have been working with them for more than one year and only these drivers should be sent with the cabs that carry women employees.
Towards striking a good work-life balance
- The Ministry of Labour And Employment notified the Maternity Benefit (Amendment) Act, 2017 (“Amendment Act”), which is effective since April 1, 2017.
Key Highlights of the Amendment Act:
- Increase in the duration of maternity leave to 26 weeks:
The amendment increases the maternity leave benefit to a period of 26 weeks. The maternity benefit should not be availed before eight weeks from the date of expected delivery.
Prior to this, women were entitled to maternity leave benefit of 12 weeks only of which not more than six weeks should precede the date of her expected delivery
- Maternity leave of 12 weeks for mother/s who are adopting or commissioning mothers
In terms of the amendment even a woman who legally adopts a child below the age of 3 months or a commissioning mother will be entitled to maternity benefit for a period of 12 weeks. The 12-week period of maternity benefit will be calculated from the date the child is handed over to the adopting or commissioning mother.
This benefit has been introduced for the first time for adopting and commissioning mother/s.
- Option to work from home:
After availing the maternity leave benefit, an employer may allow a woman to work from home, if the nature of work assigned to her is such that she may work from home. The terms, conditions and duration for the work from home arrangement would be as per the mutual agreement between the employer and the woman.
- Crèche facility:
Upon having 50 or more employees, every establishment is required to have the facility of crèche within such distance as may be prescribed, either separately or along with common facilities. The employer is required to allow four visits a day to the crèche by the woman, which will also include the interval for rest allowed to her.
This is a new requirement. Under the provisions of the Act there was no requirement to provide for a crèche facility on the part of the employer.
- Awareness about maternity benefits:
Every establishment is required to intimate in writing and electronically to every woman at the time of her initial appointment regarding every benefit available under the Act.
The Act was earlier silent on these aspects.
- For the first time, the role of a “commissioning mother” has been recognized and defined. A commissioning mother means “a biological mother who uses her egg to create an embryo implanted in any other woman”. Prior to this, the Act did not recognize the role of a commissioning mother.
vii. For woman who have two or more surviving children, the maternity benefit will continue to be 12 weeks, which cannot be availed before six weeks from the date of the expected delivery.