Women and Labour laws Part -2

This post will allow the reader to comprehend the gendered analysis of existing legislation applicable to women in unorganised and organised sectors.

Content

Introduction
Laws relating to Maternity Benefit
Night work for women
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
Equal Pay for Equal Work

Introduction

This blog describes the special regulations that apply to women and analyses them through the lens of gender. The focus is on the origins of the laws, how they define women's work, and how they influence women workers in organised and unorganised sectors. It discusses the obstacles women experience in the workplace, such as harassment and violence, as well as the effectiveness of some regulations and recourse systems. This post provides detailed explanations of these laws so that readers can comprehend the gendered features of each.

Learning Outcomes

Understand the laws that are specifically available for women in India
Be able to locate gender differences and gender inequalities that are present in the laws
Understand how women’s work is defined within the law and their limitations for women in unorganized sector
Understand the laws which address sexual harassment and violence against women in workplaces

Laws relating to Maternity Benefit

Protective legislation for working women has always been perceived as double-edged; regulations designed to provide women with better working conditions in response to their special requirements have frequently been used against them and at times acted as an impediment to their employment prospects. The introduction of maternity benefits and the ban on night work for women in particular are frequently cited as a reason of women's layoffs and recruitment restrictions in industry.

In 1919, the ILO established in the Maternity Protection Convention various maternity-related rights for women workers: 12 weeks of leave with cash benefits to ensure that the mother can support herself and her child during leave; protection against dismissal during this leave period; daily breaks for breastfeeding the child upon return to work; and protection of the health of pregnant and breastfeeding women and their children from workplace hazards. India did not initially ratify this treaty on the grounds that Indian conditions were unique and the issue was not yet ready for legislation.

The first Maternity Benefit Act was passed in 1929 by the then Bombay Legislative Assembly...a natural location for this, given that Bombay was the birthplace of Indian industry at the time. The legislative debates on this bill are instructive. Despite their good intentions, labour representatives and other backers of the Maternity Benefit law were unable to get beyond the protectionist language. They maintained that maternity benefits were necessary so that the working woman, the producer of future industrial labourers, might fulfil her "holy vocation of motherhood" and reduce the high infant mortality rates prevalent at the period. Only as a mother, and hence a national symbol, did the woman have a claim. Her interests, desires, and rights were meaningless because she existed solely as the progenitor of the next generation of workers; her function as a working woman was destroyed or weakened by reports of her ill health, inefficiency, and overall oppression. There was never any mention of maternity benefits as a right for working women during the debate. The bill was intended to be a concession for women's unique limitations rather than a right. This was despite the fact that women textile workers in Bombay had a distinct feeling of injustice and consequently a violation of their rights, as they organised in the mills, engaged in strikes, and were the first to protest against industry-wide rationalisation initiatives.

On the other side, mill-owners and opponents of the law portrayed working-class women as crafty and cunning; she would fabricate fraudulent credentials, work elsewhere during her maternity leave, and return to the hamlet to waste the money on meaningless items. They feared that the measure would lead to promiscuity and overpopulation since, in their perspective, working-class men were alcoholics who lacked understanding of birth control and self-discipline.

Some of the debates centred on the question of who should cover the expense of social reproduction: the husband, the government, or the employer. Supporters of the law argued against the duty of the husband since a component of the philosophy of protectionism was to shield these ladies from their working-class husbands who squandered their money on alcohol to alleviate their anger at their harsh exploitation. The labour advocates, however, contended that it was impractical to make the husband pay, given that the wife had to work in the first place because the man's income was insufficient to support the family.

Given the number of women workers, the construction of a supervision apparatus, the employment of women doctors, etc., the mill owners asserted that the programme would be prohibitively expensive, and that the textile sector in particular was in a financial crisis and hence unable to pay. In their view, these restrictions served the interests of British industry and were part of a premeditated strategy to erode Indian industry's competitive edge. They argued that this action will devastate Indian industry. Some advocates of the Bill, such as Dr. B.R. Ambedkar, claimed that the government should shoulder the majority of this cost...since the preservation of the people's welfare is the government's primary responsibility. Others claimed that the cost should be shared by the state and the employers, proposing that a maternity benefit fund be created by an industry-wide tax and managed by the local government.

The threat of state interference eventually persuaded the mill owners to shoulder the entire cost of maternity benefits rather than permit the government to oversee their relations with labour. In the end, the Act gave the government the authority not only to establish the regulations controlling the programme, but also to examine for infractions. Following the passage of the Maternity Benefit Act by the Bombay Provincial Legislature in 1929, twelve additional provinces passed similar legislation. The Mines Maternity Act was passed by the Central Legislature in 1941, the Employees State Insurance Act (ESI Act) was passed in 1948, and the Plantation Labour Act was passed in 1951. In 1961, all provincial Acts were combined into the Central Maternity Benefit Act, which is still in effect today.

Brief Overview of the provisions under the law

The Maternity Benefit Act of 1961 is applicable throughout all of India and to mines, plantations, factories, retail stores, and other notified establishments with at least 10 employees. The Maternity Benefit Act of 1961, which covers all women working in establishments that qualify, has no wage cap for coverage. It does not apply to workers who are protected by the ESI Act of 1948, such as those who are employed in factories and other establishments. It is interesting that a woman employee is not required to be married in order to receive these advantages under the MB Act. Employees in the central government who are pregnant are entitled to a maternity leave of 180 days (six months), which has now been increased to 26 weeks thanks to a 2016 change to the Act.

It is noteworthy that under this rule, pregnant women are eligible to get maternity benefits even though they have made no contributions at all, so long as they have worked at least 80 days in the company in the 12 months prior to the estimated delivery date. Miscarriages and medically assisted pregnancy termination are likewise covered by the MB Act. Up until the age of fifteen months, new mothers who are returning to work are permitted two daily nursing breaks. According to this Act, female employees who have a tubectomy procedure are entitled to a two-week absence with pay at the rate of maternity benefit.

The MB Act adopts an employer-liability model, which implies that the employer alone is entirely responsible for providing maternity protection to pregnant employees and that the employees are not compelled to contribute in any way in order to take use of the maternity benefits.

Workers in factories with 10 or more employees are covered by the Employees State Insurance Scheme (ESIS), which was created under the Employees State Insurance Act of 1948. ESIS offers cash benefits in the event of sickness, maternity, and employment injury as well as medical benefits to workers earning less than Rs 21,000 per month. According to this Act, all three parties who contribute to the ESIS—the government, the employers, and the employees—are responsible for covering the costs of reproduction. The Directive Principles of State Policy under Part IV of the Constitution, including Articles 41, 42, and 43, and the goal of socio-economic justice are both aimed at by the Act. The ESI includes stores and businesses as well as the organised private sector of various sizes and production capacity.

Maternity Benefits are paid to female employees for 12 weeks at the time of confinement and, in the event of a miscarriage, for 6 weeks following the miscarriage date. The sum is generally equal to the worker's average weekly income. Additionally, female employees are entitled to a one-month sickness benefit if they become ill or experience difficulties from pregnancy, confinement, or an early birth.

Unfortunately, the aforementioned two social security laws only apply to employees in the organised sector; the 96% of working women who labour in the unorganised sector are not eligible for any benefits. There are a few state government programmes for women working in agriculture (Andhra Pradesh, Karnataka, and Gujarat), and the Bidi and Cigar Employees Act of 1966 gives benefits to home-based workers, but the coverage is still modest. Only 34% of the women employees who are covered by these Acts received maternity leave, according to a recent research! In practise, rather than taking into account the size of the unit or employment at the formal sector, the execution of the maternity benefit provisions of these Acts—as with any other provisions as well—will depend on the existence or lack of a union in the institution in question. The infamous "marriage clause" required women employed in the pharmaceutical sectors in and around Mumbai City to "voluntarily" resign from their positions as soon as they got married. This clause was in place throughout the 1960s and a portion of the 1970s. This was undoubtedly caused by the businesses' reluctance to offer maternity benefits to the women who made up a sizable portion of their workforce. In 1975, this anti-woman language in their employment contract was only overturned by the courts as a result of a walkout by the female employees of all the negligent pharmaceutical businesses. Even if the expenses of doing this are minimal, employers in the organised sector still view maternity benefits as a burden and prefer to hire single or widowed women instead.

Night work for women

Women were forced to labour long hours in India's early industrial era, but this had a negative impact on their capacity and health. It was therefore demanded that their working hours be reduced and that they not be obliged to work nights. The protectionist justification for this was that working women needed to be freed up to fulfil their familial responsibilities as wives and mothers. However, nurses working in hospitals and women working in the telecom sector were exempt from this ban on night shift employment for women.

According to the Factories Act of 1948, no woman must be required or permitted to work in any factory other than between the hours of 6 am and 7 pm, with the caveat that the State government may vary the hours as long as no woman is allowed to work between 10 pm and 5 am. However, the law itself outlines procedures by which employers can request an exemption from this prohibition for their factories and shops, claiming specific circumstances, to the state government. The state government may then opt to approve the exemption based on the requirements it sees fit. For instance, if the employment of women during the night is required to prevent damage to or degradation of any raw materials, the state government may exempt women from the prohibition on night work in fish curing or fish canning plants.

Several industries, including electronics, information technology, food processing, the agro industry, and textiles are now pushing for the lifting of this ban on women working at night in this era of liberalisation. These industries either involve back-office outsourcing businesses that use information and communications technology to increase the number of jobs available to both men and women, or they require continuous processing to prevent the deterioration of raw materials (as in the case of the food processing industry).

In order to ensure "gender equality," the government is making major efforts to make it simple for businesses to obtain an exemption from the law prohibiting forcing women to perform night hours. Women workers, in contrast to the majority of male workers, are forced to work what is known as a "double shift," in which they must complete all of the domestic chores before attending to their children. Women workers were deemed exempt from working the night shift during the welfare state era in order to preserve their health and wellbeing as well as the welfare of their families. The lifting of the ban on women working nights shifts will have catastrophic effects on their health and welfare.

The safety of women working night shifts is another major concern. For example, in the IT industry, there have been numerous reports of women working night shifts being physically assaulted, raped, and murdered while travelling to and from work—often by the very men who are supposed to be escorting them. In this case, it is vital to consider the high rates of violence women encounter when walking to work, the inadequate state of the public transportation system, and the likelihood that workplace sexual harassment will rise if night work is legalised.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

Before the gangrape of Bhanwari Devi, there was no law in India protecting women from sexual harassment at work. Bhanwari Devi, a dalit woman from the Rajasthani village of Bhateri, served as a saathin, or community social worker, for the state of Rajasthan's Women's Development Project. She was gang raped on September 23, 1992, by upper caste men who were enraged by her attempts to stop a child marriage in their family, which she had done as part of her duty as a saathin. This caused a stir among women's groups across the nation and focused attention on the issue of preventing sexual harassment and assault against women at the workplace. After then, an organisation by the name of Vishakha launched a Public Interest Litigation in the Supreme Court on this matter, which ended in 1997 in the well-known decision known as Vishakha v. Union of India. In order to ensure the effective enforcement of the fundamental human rights to gender equality and to guarantee against sexual harassment and abuse of women at work, this judgement set forth certain criteria that employers and managements in the private and public sectors must adhere to.

Because it interferes with a woman's right to equality and equal protection at work and because it constitutes to discriminatory behaviour, sexual harassment of female employees must be regarded seriously. She also experiences stress, which may have an impact on how well she performs and fulfils her obligations as well as on her physical and emotional health.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act of 2013 contains the guidelines from this judgement. This Act is applicable to all establishments in the private and public sectors, as well as to all employees, including temporary, casual, contract, probationary, trainee, ad hoc, and volunteer workers. However, it does not apply to domestic workers who are employed in their own homes.

Sexual harassment is defined as "any such undesirable sexually determined behaviour (whether directly or by implication)" in the Vishaka guidelines.

Physical contact and approaches, demands or requests for sexual favours, remarks with sexual overtones, the showing of pornography, or any other unwanted physical, verbal, or nonverbal activity of a sexual character are all examples of inappropriate sexual behaviour. The following scenarios fall under the heading of harassment:
(i) implied or overt promises of preferential treatment in the workplace;
(ii) implied or overt threats of adverse treatment in the workplace;
(iii) implied or overt threats about the woman's present or future employment status;
(iv) conduct of any person interfering with her work or creating a hostile, intimidating, or offensive work environment for her; and
(v) humiliating behaviour constituting health and safety violations.

The Act stipulates that businesses with more than ten employees must establish an internal complaints committee (ICC), one for each office or branch, while businesses with fewer than ten employees must take their complaints to a local complaints committee (LCC), which must be established in each district. These LCCs are required to look into sexual harassment claims made against employers or at places of business when the ICC has not been established because there are fewer than 10 employees. The complaints committee should have a Presiding Officer who is a senior female employee (or, in the absence of one, the District Officer will propose a member of the LLC), two employee nominees, and one representative from an NGO (who must be a Social Worker of 5 years standing, or a person well versed in law). This committee must have at least 50% female members, and its three-year term is mandatory.

The complainant must submit a written complaint, either directly or through another person (friend, colleague, family members, guardian, psychiatrist, National or State Commission for Women can do it for her). The ICC has the authority to move the complainant or respondent to any other place of employment or to provide her leave at her request during the investigation. The identities of those involved and the specifics of the case must remain private. The woman has a legal right to attend all proceedings in the case. Both the respondent and the complainant are able to provide witnesses, records, and other proof to support their respective claims. Following the rules of natural justice, all sides must have a chance to be heard and cross-examine the other's witnesses. Only if the lady asks it can there be a settlement or conciliation.

At the conclusion of the investigation, the committee must send the employer the findings and the report recommending action, which may include any of the following: a written apology, warning, reprimand or censure, withholding of promotion, withholding of pay rise or increments, terminating the respondent's employment, ordering the respondent to attend counselling or perform community service, or deducting such a sum of money from the respondent's salary.

According to service standards, this investigation must be handled as a disciplinary investigation, and sexual harassment of women in the workplace must be included to the list of misconducts in the establishment's standing orders.

The Committee may recommend to the Employer or the District Officer, as the case may be, to take action against the Complainant in accordance with the provisions of the service rules applicable to her if it determines that the allegation made by the aggrieved woman against the respondent is false or malicious or that the aggrieved woman has produced any forged or misleading document.

The following timelines have been included in this Act:

The Complaint must be filed within 3 months of the last incident (but can be extended by the Committee) ;
The Inquiry Report to be submitted within 10 days after completion of the inquiry;
The entire proceedings are to be completed within 90 days;
Action must be taken on the Committee’s Report by the Employer within 60 days of submission; and
Appeal is to be filed within 90 days..

Equal Pay for Equal Work

It is a well-known truth that despite doing the same or a similar type of work as men, women are typically paid less than males due to patriarchal rules of behaviour and employment. Employers who have made this argument have done so to support the idea that women's wages are a "supplementary salary" to those of their husbands and/or dads. Reliable statistics show that a significant number of households are only supported by the income of the woman of the house, and that in today's world of subsistence wages and precarious employment, both the husband and the wife must work to maintain the home. These facts render this argument invalid.

1975 was designated as International Women's Year by the UN, which also pushed its member nations to enact legislation to advance women's rights and gender equality. According to Article 39 of the Indian Constitution, the State must direct its policies toward ensuring that men and women receive equal compensation for doing the same amount of work. The Equal Remuneration Ordinance, 1975 was enacted by the President in September 1975 in order to give effect to this constitutional requirement and implement the terms of Article 39 in time for International Women's Year. Eventually, this Ordinance evolved into the Equal Remuneration Act of 1976.

According to this Act, an employer is prohibited from discriminating against the earnings of his female employees and is required to pay both genders of employees equally for work that is of a similar or related character. Additionally, the employer is prohibited from discriminating against men and women throughout the hiring process or in circumstances that arise after employment, such as promotion, training, or transfer.

However, this Act does not define precisely what "work of a comparable character" means. Due to historical undervaluation of women's labour and general perceptions that it is unskilled or requires less effort, women have historically received lower pay than males. For instance, superstitions and traditional traditions in agriculture restrict women from handling tools, thus males do the majority of the ploughing while women perform other labor-intensive and back-breaking chores like transplanting rice. Yet they receive lower pay than males do. This has led to calls for the phrase "work of equal value" to be used in place of the phrase "same and comparable." This would imply that various tasks, even if they differ from those carried out by another person, would need to be reviewed and appraised for the value they provide to the production process. It is required to conduct in-depth investigations in order to determine the comparative value of various jobs in order for this Act to be effective. so that wages for different jobs with equivalent value are distributed fairly.

Reference

Chhachhi, Amrita. 1998 Who Is Responsible for Maternity Benefit: State, Capital or Husband? Bombay Assembly Debates on Maternity Benefit Bill, 1929, Economic and Political Weekly, Vol. 33, No. 22, pp. L21-L29
Lingam, L. 2011. Reproductive Rights and Exclusionary Wrongs: Maternity Benefits, Economic and Political Weekly, Vol. XLVI, No. 43, October 22, pp 94-103
Dalmia A.J. (2012). Strong Women, Weak Bodies,Muted Voices Women Construction Workers in Delhi. Economic Political Weekly June 30, 2012 Vol XVII nos 26 & 27, pp 249-255, Sameeksha Trust, Mumbai, India
Gulati L& Gulati M. (1997) Female Labour in the Unorganised Sector, The Brick Worker Revisited. Economic Political Weekly May,3 1997 pp 968-971. Sameeksha Trust, Mumbai, India.