Kaveri Chauhan
The author is a 3rd-year law student at Banasthali Vidyapith Rajasthan.
ABSTRACT
Social justice is very crucial to maintaining sustainable peace as well as encouraging sustainable economic growth. Ensuring gender equality, and protection of women’s interests in labour law is the main improvement to improving social justice. The labour laws, in general, pave the way for good conditions of service, and it includes welfare benefits such as retrenchment benefits, employees’ provident fund scheme, medical benefits and compensation etc. Further, the legal provisions that apply to women workers are: a) the abolition of night work except in some occupations, b) provisions that prohibit work involving lifting heavy weights c) prohibition or restriction of underground work for women in the mines, d) maternity benefits, e) provisions for crèches, f) equal remuneration for equal work, etc. There are various laws to protect the rights of labourers in India. Some of them relate specifically to women like the Equal Remuneration Act and Maternity Benefit Act, whereas some others contain specific provisions for women. These laws will definitely give us an idea about their position on women’s welfare and safeguarding their rights. But not all laws deal specifically with the welfare of women, a brief glance at the major ones would reveal the provisions that they have for women workers under some act.
WOMEN LABOUR AND THE LAW
In ancient times women were considered the most superior and respectful place in society. In the post-Vedic period, the women were restricted and kept inside the house and their role remained confined to the household work, maintenance of the home, cooking and bringing up and care of a child. They were not allowed to do work and gainful employment outside society. This prevents economic development and reduced their social problems in society.
Due to industrialization and urbanization new social norms and values have appeared (Job opportunities for women, hardships and favourable social and economic situations which encouraged women to do work outside the house.) After independent India, women’s status has been surely upgraded. The social and cultural changes in India have brought so many opportunities for women in the field of employment, job opportunities, education and politics and the number of women to come out of their houses work ultimately such changes lead to the reduction in the exploitation of women as they are allowed to give the equal status as men.
Due to ignorance and illiteracy, many difficulties have been increased due to their peculiar social, biological and psychological condition. To accomplish the discrimination and exploitation, they need to provide security and protection for the women through law i.e., the Constitution of India under Articles 14, 15, 16, 23, 39, 43 and 46 which provides protection and security to women workers.
The International Labour Organisation (ILO) has stressed that the interests of women as workers are generally alike to those of men and it has gone further it indicates that women workers should be given attention as they have particular difficulties which manage from their functions in the society and social attitudes and customs.
In urban areas, the organised sector of the employment of women in March 2000 and it constitutes 17.6% of the total organised sector. The situation regarding enforcement of the provisions of this law is observed by the Central Ministry of Labour and the Central Advisory Committee. In respect of an occupational hazard concerning the safety of women at workplaces, in 1997 the Supreme Court has announced that sexual harassment of working women amounts to a violation of rights of gender equality. As a consequence, it also amounts to a violation of the right to practice any profession, occupation, and trade.
PROVISION RELATED TO WOMEN IN INDIAN LABOUR LAW
Labour law apply to that area where workers are working under a contract of employment. In society, the working women form a major thick peak and thus, the women workers need equal treatment and special protection under the law.
Today, women have come out of houses and established an identity of their own in different areas of employment. Due to this, most Indian adult women make an economic contribution including housework, working in family land etc., much of their work is not documented. This is because most of the women workforce is employed in the unorganized sector and working for their family is considered a responsibility and duty which should not be included.
Cultural restrictions and the family responsibility, women participation in the formal economy is narrow. Some other concerns that affect working women that is related to gender discrimination, the quantum of payment, safety at the workplace, hours of work and overtime and conditions of employment that are sensitive to cultural and religious bondages as well as their family responsibilities.
The government has been focused on issues relating to women through the creation of an independent Ministry of Women and Child Development, initiation of legislation that has taken the country closer to legal equality for women, gender budgeting and initiation of programs for greater involvement of women in all walks of life. Further, many legislative provisions have been provided in all labour statutes which improve the problem of women labourers in their employment situations to protect the women.
There are many laws for women which deals with health, safety and welfare to women workers which are as follows:
- The Factories Act, 1948:
This act was amended in 1987 It is the principal legislation for regulating various aspects relating to the safety, health and welfare of workers employed in factories. The central Act aims to protect the workers employed in factories from industrial and occupational hazards. This Act lays down specific provisions for women workers. For the safety of women, the employers of the factories are prohibited to employ women for cleaning, lubricating or adjusting any part of a prime mover or any transmission machinery when it is in motion. Other legal provisions for women workers include non-employment of women in any part of the factory for pressing cotton in which a cotton opener is at work. Section 34(2) the state government of the Act is authorised to make rules prescribing the maximum weight, which may be carried by women employed in the factory (Raizada 1996). Provisions for crèches (It is a nursery and a place where babies of working women are taken care of babies while the mothers are at work) this provides in every factory there shall be a suitable room for the use of a child under the age of 6 years of such women and it should be perfectly clean, ventilated, accommodation and sanitary condition, Hours of work of women which provides that the daily hours of work of adult workers have been fixed at 9 (Section 54 of the Factories Act, 1948) but most of the time men can work for more time but it does not permit women workers to go beyond the limit, maximum permissible load, prohibition of night work and may other safety measures.
Richard Thomas and Baldwins Ltd. V Cummings (1955) 1 AII ER 285: – The court held that there would be no breach of statutory duty if an injury occurs while the machinery is unobstructed. Therefore, the power is cut off and the machine is under repairing and the parts are not working but are moved by hand for purposes of repairs.
- Mines Act, 1952
This Act has been enacted for the protection and safety of mineworkers. It provides special guidelines for women workers. Mines defines any excavation where any operation for the aim of checking out or obtaining minerals has been or is been carried on and it included all opencast workings, railways, tramways and sidings belonging to a mine, all levels and inclined planes, all shafts belong to a mine. Further, it includes the prohibition of night work which provides that women should be allowed to do work between the hours 6 a.m. and 7 p.m. and there should be an interval of not less than eleven hours between the termination of employment on any one day and the commencement of the next period of employed workers, prohibition of work in a hazardous occupation, creches, latrine and urinal facilities.
This law makes special provisions for separate toilets and washing facilities for women workers. Both the Factories and Mines Acts authorize the appropriate government to fix the maximum load that can be lifted, carried or moved by women. Under this act, the state government also may prohibit or restrict women’s employment in any other operation which exposes them to a serious risk of bodily injury or disease.
- The Plantation Labour Act, 1951:
This Act has been enacted to amend the regulates the condition of work of plantation workers and provides for their welfare (Plantations means nay plantation to which this Act applies and it includes offices, hospitals, dispensaries, schools etc used for any purpose connected with such plantation but does not include factory).
No woman workers shall be used by the employer in any plantation before 6 a.m. and after 7 p.m. except with the permission of the state government. Section 21 of the plantation labour Act provides that the duration of work on each day shall be fixed that no period shall exceed five hours before a woman has had an interval of rest for half an hour. This law makes it essential to possess crèches in every plantation wherein fifty or more women workers (including women workers which are used by any contractor) are employed or where the number of children of women workers employed by any contractor is twenty or more than this under this act.
- The Equal Remuneration Act, 1976
The Equal Remuneration Act, of 1976 is landmark legislation for women workers. This act gives women equal work and men is a vital subject of great concern to society in general and employees in particular. In India, in the initial stages when legislation for the protection of women workers was hardly thought of, factory owners taking support of the backwardness and poverty, recruited women on a large scale at lower wages and made them work under inhuman conditions. International Labour Organization (ILO) has evolved several conventions which provides protection to employed women. In Article 39, The principle of ILO has been integrated with the constitution of India, which directs the states to secure equal wages for equal work for both men and women. To give effect to this constitutional provision the parliament enacted the Equal Remuneration Act, 1975. Under this act, there is no discrimination is permissible in recruitment and service conditions except where employment of women is illegal or restricted by the law. The situation regarding enforcement of the provisions of this law is regularly supervised by the Central Ministry of Labour and the Central Advisory Committee.
This Act makes provision for the appointment of the Adjudicating Authority whenever a dispute arises between the management and the employees as well as an appellate authority empowered to hear an appeal against the decision of the adjudicating authority.
- The Workmen Compensation Act, 1923
In any society, the problem of labour management relations becomes so important that some sort of social insurance becomes necessary to provide fair protection from losses caused to the labourers by accidents. To enhance the condition of the workers some social insurance legislations have been enacted under this act. This act is one of the earliest labour legislation, adopted to benefit the labourers. It covers all cases of an accident ‘arising out of and in the course of employment and the rate of compensation to be paid, and it is determined by a schedule proportionate to the extent of the injury and the loss of earning capacity. The amount of compensation payable depends in case of death on the average monthly income of the deceased workman and in case of an injured workman both on the average monthly income and the nature of disablement. This Act intended to ensure the rehabilitation of the workman himself or of his dependent. The dependent can suit compensation in both cases i.e., death or injury. This law applies to the unorganised sectors and to those in the organised sectors who are not covered by the Employees State Insurance Act, 1948 which is considered to be most superior to the Workmen’s Compensation Act, 1923.
- The Minimum Wages Act, 1948
The minimum wages Act, of 1948 was enacted for the welfare of labours. This Act has been enacted to secure the welfare of the workers in a competitive market by providing for a minimum limit of income in certain employments. The Act provides for fixation by the central government of minimum wages for employments detailed in the schedule of the Act and carried on by or under the authority of the central government, by railway administrative or in relation to a mine, oilfield or any corporation established by a Central Act, and by the state government for other employments covered by the schedule of the Act.
National Rural Employment Guarantee Act, 2005
This Act provides the improvement in the livelihood security of the households in rural areas of the country by providing at least one hundred days of guaranteed income employment every year to every household whose adult members volunteer to do incompetent manual work. Priority is given to women in the allotment of work. Various gender-related objectives such as the provision of hygienic environments, safe drinking water, and childcare facilities at the worksite, a distance of workplace not exceeding two miles from home, health care and nutrition are emphasized. In this law, Women’s participation in the labour force with no wage discrimination and direct control of resources and assets can substantially improve their health, child welfare and socioeconomic status. This employment policy if properly performed can certainly bring momentous changes in the lives of women. The employment scheme definitely has a positive impact on gender equity and power equation within the household.
- The Contract Labour (Regulation and Abolition) Act
The Contract Labour Act, 1970 was enacted in 1970 in order to regulate the employment of contract labour and make way for its gradual abolition. Under this Act, it applies to every establishment employing 20 or more women workers. It is applicable to all establishments that offer work for 120 days in a year and 60 days in case of seasonal nature of work. This Act provides for the regulation of conditions of work, payment of wages and other amenities relating to welfare and health of workers. The provisions of this Act are a part of the Inter-state Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979.
Social Security Measures for Women workers: Social security is very important for us and the basic needs of all women regardless of employment in which they are working and lie. Women have to face various contingencies when they are involved in employment such as sickness, maternity, disablement, employment insecurities and risks. They contain the main step towards the goal of a welfare state by improving living and working conditions and affording women protection against the ambiguity of the future.
The various legislations measures acquired by the Government which provide protection to the women workers in certain contingencies are as follows: –
- The Maternity Benefit Act, 1961
The Maternity Benefit Act is major legislation for women workers. It was enacted to amend and promote the welfare of working women in this act. This Act applies to mines, plantations, circus industry, factories, and shops and all establishments being a factory employed more than ten persons.
This Act was enacted with a view to reduce disparities under the existing Maternity Benefit Act and bring uniformity with regard to rates, qualifying conditions and duration of maternity benefits. The Maternity benefit Act does not apply to factories or establishments to which the provisions of Employee’s State Insurance Act, 1948 applies except as variously provided in Section 5A and 5B under this Act. This Act explores to regulate the employment of women in certain establishments for certain periods before and after the pregnancy and to provide maternity benefits and certain other benefits given to women workers under this act.
However, It includes the restriction on employment for those women who are pregnant which provides that no employer should consciously employ women during the duration of 6 weeks instantly following the day of her delivery or miscarriage or medical termination of childbirth, Right to payment of Maternity Benefit which forms that they will be responsible for payment to them at the rate of average daily wages for the period of actual absence immediately preceding and including the day of her delivery and for six weeks instantly following that day.
Under this act, It provides to the woman workers that they shall be entitled to maternity benefit for a maximum duration of 12 weeks of which not more than six weeks shall anticipate the date of her expected delivery, protection against gender discrimination, leave for miscarriage and illness (it should be entitled to leave the wages at the rate of maternity benefit for a period of 6 weeks immediately following the day of her miscarriage or medical termination of childbirth), leave for illness ( leave for a maximum duration of one month with income at the rate of maternity benefit are acceptable in case of illness out of pregnancy), It increases maternity leave to 6 months (The Sixth Commission has recommended enhancement of maternity leave up to six months.
- Employees’ State Insurance Act, 1948
Employees State Insurance act, 1948 is one of the most important social legislation in India. It has been executed to provide for varied benefits in different contingencies. The Act applies to all factories (It includes government factories but excluding seasonal factories) employing ten or more than 10 persons and carrying on a manufacturing process with the aid of power or employing 20 or more than 20 persons and carrying on a manufacturing process without the aid of power, and such other establishments as the government may specify under this act.
Under this Act, insured women workers get sickness benefit, disablement benefit, medical benefit, maternity benefit, injury, funeral expenses along with insured men workers. The maternity benefit act, 1948 is paid subject to the condition that the insured women do not work for reimbursement on the days in respect of which the benefit is paid. In the case of the death of the insured woman, the maternity benefit is payable to her legal personal representative for the whole period if the child survives or not, and if the child also dies until the death of the insured woman.
- Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013:
Sexual harassment within the workplace is the same as the definition for harassment everywhere. It is an unwelcome sexual advance, request for sexual favours or other unwelcome conduct of a sexual nature that a reasonable person would assume would cause a person to feel offended, humiliated or intimidated constitutes sexual harassment.
Sexual harassment is a broad term and it consists of:
- Unwelcome touching
- Sexually explicit pictures or posters
- Unwanted invitations to go out on dates
- Requests for sex
- Sexually explicit physical contact
- Unnecessary familiarity, such as deliberately brushing up against a person
- Sexually explicit emails, calls, SMS text messages
Sexual harassment is not only considering the discrimination problem related to safety and health but also includes as a violation of fundamental rights and human rights. It is offensive at a very high level and in a way undermines the right to give equal opportunity and equal treatment of women at the workplace.
Further, the 71st session of the ILO Conference 1985 accepts a resolution on the matter which states sexual harassment at the workplace is unfavourable to employees’ working conditions and to employment and promotion prospects. Policies regarding the advancement of equality should therefore include measures to combat and prevent sexual harassment at the workplace.
The Sexual Harassment at workplace Act of 2013 is an important Legislation aiming towards providing a safe, tense free and hostile environment at work to women. Effective implementation of the Act will contribute to the visual of their right to gender equality, discrimination, life and liberty, equality in working conditions everywhere. Perceive of security at the workplace will improve women’s participation in work, resulting in their economic empowerment and comprehensive growth. Till then, the guidelines that the Supreme Court stated that in the case of Vishaka vs. the State of Rajasthan are to proceed. These guidelines enclose a comprehensive definition of sexual harassment, directions for the establishment of a complaint mechanism and the duty under which employers are obliged to anticipate any such act.
CONCLUSION
The special provisions created for the welfare of women that both at the national and international levels, there has been a movement towards the empowerment of women in labour law. There has been a transparent move towards creating equal income, equal access to opportunity, bar, and redressal of harassment of women workers and provision of maternity benefits a reality in the Republic of India. In fact, a majority of laws in respect to the special provisions for women are designed after the International Labour Organization (ILO) conventions.
It represents half the world’s population and gender inequality exists in every nation on the earth. Until women are given the same opportunities as compared to men are, entire societies will be destined to perform below their true potentials. The huge need of the hour is a change of social attitude towards women. Women are generally incapable to give proper and quality time to households, kids and families. Working women generally face workplace sexual harassment, mental pressure and safety-related issues. Women face many problems that they leave their kids at home and go to the office early in the morning. People make particular perceptions or draw a conclusion about the characters of working women.
Undeniable, India is committed to the cause of empowerment of women. However, the journey towards progress is long and tough. India has alleged great change in the last two decades. Age-old prejudices and gender-based biases are giving way to gender equality and harmonious development. Policies to raise women’s age at marriage, enhance their education and for greater employment opportunities will also help to empower them, at least in some respects. Our goal is to cause policy, the changes between institutional and individual that will improve the lives of women and girls everywhere.
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