Positive Impact on the Protection of Women
An article titled ‘Labour Laws: Positive impact on the Protection of Women’ by Shivangi Dubey discusses the various labour laws in India, examining their evolution and implementation in present times, especially in the context of the protection of women. In this article, the author has also analyzed the extent of fulfilment of the core objectives of all enactments.
Application of Labour laws comes into the role in the case of workers who are working under a contract of employment. Workers are being discriminated against and exploited hence a need felt for enacting various labour laws for their protection and security. The Constitution of India provides mandatory provisions for women that ensure their protection and prohibit gender discrimination in every aspect, may be education, employment, skills development etc. It also contains provisions related to the reservation of seats for women in employment and educational institutions.
There are legislative enactments that ensure a safe environment for women in the workplace. Directive Principles of the Constitution enshrined under Article(s) 39, 42, 43 and 43A formulate the labour policy for workers in India. Article 39(d) postulates that there should be equal pay for equal work and there should be no discrimination. Further, Article 42 provides that there should be just and humane conditions in working place for women ensuring maternity benefits to them. In the research paper, the authors have analyzed the problems of women and their root causes.
Women and International Approach
Many international steps have been taken by various organizations to raise the status of women, Article 23 postulates that every individual has the right to work in a free and safe working environment while taking note of this provision, we can say that a hostile free environment at the workplace is a must for workers. Another approach was made by International Labour Organisation (ILO) that focuses on gender equality and equal opportunities for women. If we see at the aims and objectives of ILO then it can be concluded that it concentrates on the rights of workers to equal pay without any gender discrimination.
An International treaty, CEDAW, is being signed and ratified by India as well as deals with the issues related to sexual harassment in the workplace with women.
Labour Laws in India
If we see Indian history, then we shall analyse that there have been many legislative enactments for regulation of relations between labours and employers in India, since the time of the British Government. We may say that the objective behind these enactments is to protect labours from being exploited by employers. Change of directions in policy for regulation and improvement of employment with labour organizations with the establishment of (ILO).
In India, various legislative enactments ensure the rights of Labour Laws we can take an example of – The Factories Act, Mines Act, Workmen Compensation Act, Trade Union Act, Trade Dispute Act, and Sexual Harassment at Workplace etc. The Directive Principles of State Policy deals with various provisions of labour in India. We shall discuss these provisions one by one for better analysis and understanding.
Objectives of Labour Laws
To understand the implementation of these enactments, we must first understand the objective behind labour laws-
a) To give an overview of the safeguard measures enacted for women;
b) The primary objective is to protect women workers employed against industrial and occupational hazards;
c) Ensuring improvement of the working conditions of women and removing barriers to accessing and enjoying their rights;
d) These enactments provide protection to women employees by availing safeguards and protection enacted for them under various Acts;
The Factories Act
In a research paper titled, ‘Status of provisions of Factories Act’ authored by Keerthi Sriya A., and Dr Panatula Murali Krishna, the authors focused on the importance of the provisions of this Statute, the paper targets the awareness and favouring provisions for workers. While analyzing the need for the enactment of the Factories Act, it can be said that it is an important Act that deals with the regulation of the employment of labours in dangerous occupations/employments, restriction on the carriage of heavy loads provision of creches and other welfare facilities etc.
It is welfare legislation that is enacted with the primary motive of regulating working conditions in factories. The Act also ensures health, safety and welfare policies in support of workers. It deals with regulation of working hours, leave holidays, overtime, employment of children, women and young people etc. In order to promote the well-being of the workers’ class in India, the act was amended (1987) to safeguard workers against the use of hazardous substances in industries.
In B.N. Gamadia v. Emperor, (1925) 27 BOMLR 1405, Section 27 of the Factories Act, of 1948, was interpreted strictly; this provision prohibits employment of women and children near cotton opener. If there is a partition in a room by placing a door that was shut and opens at a particular time, or if it is not locked then some preventive action being taken to prevent it’s being opened by a woman or child who desires to get into the press room or prohibited area. This provision is strictly interpreted by the Courts.
It is relevant to note that Section 66(1)(b) of the Factories Act, was declared to be unconstitutional on the grounds of being discriminatory on a gender basis.[Triveni K.S. and Others v. Union of India and others, 2002 Lab IC 1714 (AP)]
The Mines Act
While analyzing the aims and objectives of the Act, we may say that it ensures safety and protection and provides special guidelines for mine workers focusing on women. The Act ensures that no woman shall be employed in mines that are underground; there should be separate toilets for women who cannot work at mines where there are chances of injury or any kind of risk etc.
Employees’ State Insurance Act
The legislation ensures employee benefits in matters related to sickness, injury at the workplace, maternity relief etc. It is applicable to all factories except seasonal factories and whereby 10 or more employees are there carrying the manufacturing process with aid or 20 or more employees are carrying the manufacturing process without aid and other establishments that are specified by the Government.
Maternity Benefit Act
In the paper titled, ‘Implementation of Maternity Act’ written by Shahi Bala, she focuses on the benefits and protection ensured by the Act. It throws light on various ambiguities, loopholes and reasons behind the lack of implementation of the Act, along with certain suggestions. After pregnancy, women workers were adversely affected, and hence the need for enactment was felt in private sectors as well to encourage the female labour force.
The Act contains various provisions for women who have conceived. They are entitled to a medical bonus from their employers. If there is a case of miscarriage, then she is entitled to leave for up to 6 weeks. The Act was amended time and again to meet the needs of changing society in 1973, 1975, 1989 and 1996.
In Municipal Corporation of Delhi v. Female Workers, AIR 2000 SC 1275, It was clarified that the Act is applicable to casual workers/ daily wage labourers and on-muster roll employees. This increased the ambit and scope of the Act that shall provide protection to a pregnant woman.
Payment of Gratuity Act
The legislation is applicable to establishments that contain 10 or more employees. Section 4 of this Act provides that a worker who has completed his tenure of 5 9five) years are entitled to gratuity benefit on termination of his employment. The Act further provides that workers should be paid the gratuity amount at the rate of 15 days’ wages for each completed year of service up to Rs. 3,50,000.
Equal Remuneration Act Safeguard Women’s Rights
The research paper titled, ‘A study of women’s rights under labour laws in India’ talks about various legislative enactments that put mandate the State to adhere to its policies and employers are bound to follow the laws that are enacted to raise the status of women for eg.- equal pay for equal work.
Every employer is legally obliged to follow the provisions and pays equal to men and women labour without any discrimination. However, the Act is a mere piece of paper and is not being strictly enforced due to improper supervision. Court of law has time and again passed judgments whereby they stress over raising the status of women in the workplace and giving them equal opportunities without any discrimination.
In Dattatreya Motiram v. State of Bombay, AIR 1953 Bom. 311, it was observed that the State has the power to create positive discrimination between men and women to raise/upgrade the status of women. An employer is restricted to discriminate on the ground of gender while recruiting workers unless the Act prohibits the employment of women in a particular sector.
Sexual Harassment at Work Place (Prevention, Prohibition and Redressal) Act
This is a special Legislation that is enacted with the aim of safeguarding women against the hostile environment at the workplace. If the Act is effectively implemented, then it will contribute to gender equality, life and liberty, and equality in working conditions for men and women. The Act aims to improve woman’s participation in the workplace which would result in economic empowerment. However, the implementation of the Act is still a big question.
Women and labour laws: The existing discrimination
In spite of several legal enactments favouring women, restrictions on women remained entrenched. The study discovers cross-country patterns and links between economic growth with adverse gender parity. It also highlights the value of conceptualizing the legal rights of workers in a multi-dimensional way.
Based on the studies of the International Labour Organisation and National Commission on Labour, the organizations had rejected any sort of link between the retrenchment of women, the execution of laws and the participation level of employers. Further, the argument that bans on night working hours had adversely affected women had also been dismissed. According to the report of the National Commission on Labour, a ban on hazardous work such as the lifting of weights, and working near cotton machines is not permitted. Even after so many provisions, there are hardly any crèches and sanitary facilities for women at working place.
Lopsided Enforcement of laws
In ‘Discrimination Against Women: Theory and Evidence’ written by Blau F.D., the author analyzed the rapid growth of women’s labour force in the workplace. Trends were accompanied by an increase in the labour force attachment of women which is suggested by the marked rise in labour force participation.
There are laws favouring women, but some are not being enforced sincerely. Having laws and their application are two different connotations; laws are being enforced by Labour Commissioner. Most of the women are working in the unorganized sector, and this is a major problem. If the laws are violated, then non-compliance is the major issue, and labour inspectors find it difficult to resolve the problem due to lack of evidence.
The Act does not contain provisions related to the protection of working women and they are given minimal rights. The act has restricted provisions related to contract labour employment for work of perennial nature, and if labour would complain about it then they are being fired, hence it protects them from making any complaints.
Under the Equal Remuneration Act is not being enforced properly, employers say that women labours do not work equally to men as they can’t lift heavy weights, and hence they cannot be paid equally to men.
Improper Security Blanket
There are a number of legislative provisions even though the informal sector is excluded, if we take the example of the Factories Act then it deals with the working conditions of labours, deals with their health and safety-related issues, working hours and other related provisions which are not applicable to informal workers. Another example we can take of Employees’ State Insurance Act, of 1948 which deals with the provisions related to accident compensation, maternity benefits and other benefits that are applicable at the workplace but same is not applicable to informal labourers.
Non-conducive Work Environment
While taking a look towards informal workers and their hostile working conditions, the reason behind exploitation is that employers tend to impose hazardous working conditions on the workers. The construction industry engages most of the labourers in India, approximately 35 million informal workers are engaged in construction sites and their working conditions are deteriorating continuously. The exceeding number of fatal accidents is also high among informal labourers and they are not being compensated for the same.
Shortcomings and improper implementation of provisions for women
A journal article titled, ‘Women workers and labour standards: The problem of human rights’ focused on the global issues faced by women workers. Following are the various shortcomings that are being noticed time and again in the implementation of programs for women-
a. These provisions focus upon only welfare services for women,
b. There is an assumption that various benefits would automatically accrue,
c. Lack of knowledge and skills while making socio-economic activities,
d. Improper facilities for women that are compulsory under the Act include- child care, training, maternity benefits etc.
e. Treating women at a lower footing by treating them as lower than men.
Various Amendments in Legal Enactments
Legislative enactments related to women’s labour have been amended time and again, where certain provisions have been inserted and deleted. According to an amendment to the Factories Act, in 1957 clause (5) was inserted into Section 71 which provides that a female child can work only between 8 A.M. to 7 P.M. Chapter IVA of the Factories Act, 1948, contains special provisions based on hazardous processes. The provision was incorporated by the (Amendment) Act, 1987, which contains Sections 41 A to 41 H.
The Court held that the provisions of Section 66(1) (b) of the Factories Act, 1948, put restrictions on women from working in factories between the hours of 7:00 PM and 6:00 AM. This provision was held ultra vires of Articles 14, 15, 16, 19(1) (g) and 21 of the Constitution of India. [Mahila Utkarsh Trust v. Union of India, Special Civil Application Nos. 2984 of 2012]
Need of Amendment
We can take the example of the Act, 1979, under the said Act there is a need for an amendment to bring the contractors and migrant labours directly under the principal employer and also a provision that would enable the third parties to move complaints.
According to Shramshakti Report, 1988, the Maternity Benefit Act, should emphasise maternity benefits of women that should be met through tax irrespective of the fact whether or not they employ women. The provisions should be extended to all industries and provisions of maternity relief related to women and agricultural labours should also be covered under this Act. The Employees’ State Insurance Scheme should cover all sectors under its’ ambit and it should contain provisions for the workplace and social security.
Practical Case Scenario No. 1
Sangeeta lives in Nagpur and works in a food packaging factory situated at Saoner for the last two years. It takes her more than one hour to reach the factory to her home. She is a hard-working employee and handles the packaging department in the factory. On Diwali, the owner of the factory got a big contract and all the workers including Sangeeta were asked to work in the factory in the double shift which ends at midnight at 12 AM. Sangeeta refuses to work till 12 AM, but the owner insisted to work or else she is directed to leave the job.
Section 66(1) (b) of the Act, 1948 provides that women are allowed to work in any factory between the hours of 6 AM. To 7 PM. So Sangeeta is not supposed to work after the permitted time which is 7 PM and the owner cannot force any women employee to work beyond the permitted time.
Practical Case Scenario No. 2
Sangeeta is a female worker in a factory that is situated in a small village near Pune and there were more than 300 male workers. There were only three tin-shaded common urinals/latrines for male and female workers. Sangeeta is not comfortable using the same as there was no separate toilet and the doors were also defective (unable to shut) she asked her employer to provide proper urinals/ Latrines. But the owner of the factories refused to do so. Sangeeta is seeking legal advice for the same.
Proper urinals and Latrines are the basic needs of an employee, especially women. Section 19 of the Factories Act, states that separate and enclosed sanitation facilities are a must for workers. It is the responsibility of the owner of the Factory to provide proper facilities to the employees as prescribed under the Factories Act, of 1948.
Practical Case Scenario No. 3
‘Seema’ is working in an LPO as a team leader. She stayed back at work till late evening with her colleague ‘Manish’ to complete an urgent office task. ‘Manish’ offers ‘Seema’ for dinner with him. After dinner, ‘Manish’ asked ‘Seema’ for spending a night together. ‘Seema’ refused Manish’s proposal and she went home. The next evening, Manish again asked ‘Seema’ to spend the night and he also threatened her that if she would not agree then he would spread rumours that she made a pass at him. Seema is worried and needs advice.
Manish’s threat to ‘Seema’ that if she will not spend the night with him then he will smear her character at the workplace is unwelcome and wrong behaviour. He has a wrong intention as he is asking for sexual favours from ‘Seema’ and this constitutes a quid pro quo form of sexual harassment.
Working women form a major thick piece of society, they need special protection. There are various Acts in India which deals with the laws related to labour in India concentrating on women’s rights specifically. The Constitution of India is a unique legal document that provides various fundamental principles, procedures, practices, rights, powers and duties of the Government. It guarantees the fundamental rights that are contained under Articles 12 to 35 of Part III, applicable to the citizens of India irrespective of gender. It also guarantees the right to equality, freedom of religion, cultural and educational rights and the right to constitutional remedies etc.
The primary and most vital objectives which have been provided under the Preamble are socio-economic-political “justice” and “equality” of status and opportunity. The State has to ensure that no discrimination of any kind is done between people and that the rights of every citizen are safeguarded.