Provisions of labour law to safeguard the interest of female workers to ensure equality in India

Introduction

A specific role has been given to female employees in the area of labour law because of their distinctive mental and physical traits. There are several sections in the Constitution of India, the country’s supreme legislation, that forbid gender-based discrimination and advance the rights of women.

The preamble expressly states that the major goals of the constitution are to provide equality of opportunity and position for all people as well as justice, whether it be economic, social, or political. Regardless of gender, this is true. The State was given a special directive, and as a result, several protective, advantageous, and health elements have been included in various laws for women’s benefit.

In Associate Banks Officers Association v. State Bank of India, the Supreme Court articulated the concept of “same pay for equal labour” which states that there shall be no salary discrimination between male and female employees in the same organisation who perform equivalent work.

Equal pay for male and female employees is a legal requirement in India, and it is intended to combat sexism towards female employees in the workplace.

Impact of socio-economic developments on gender

Over the years, women’s status in India has changed. The status of women in Indian society has advanced significantly. Nevertheless, there are still inconsistencies and inadequacies in the protection of certain of fundamental rights of women. The government has aggressively worked to advance women’s position via legislation and policy.

We make some broad generalisations about the significant socioeconomic advancements that have affected women in the nation while keeping in mind the regional variances, religion, caste, and class-based distinctions that have a clear influence on women in India.

Women’s causes and concerns were first advanced by the reformist movement in colonial India, then carried forward by the nationalist movement, and finally supported by the women’s movement. The enormous contribution of women to the agrarian economy was underappreciated by the economy since India had a predominately agricultural economy in the early years following independence.

Despite several protective laws, women in India still fight for fundamental rights like equal pay for equal work and property rights decades later. Women still work a “double shift” at home, cooking, cleaning, and caring for the young and old, which negatively affects their capacity to participate in a meaningful way in the job market. Their access to resources like land, credit, skill training, and education is particularly limited.

Women are becoming more and more marginalised in society and the economy, according to the “Committee on Status of Women in India” (CSWI) (1971–1974). The Committee took notice of the changing gender ratio, the widening gap between men’s and women’s life expectancies and mortality rates, and the differences in access to literacy, education, and employment.

It also discovered that the vast majority of marginalised women had stayed out of reach of the tools of political rights, legal equality, and education. The Committee’s conclusions inspired the women’s movement to highlight problems and demand more reforms and change. When the International Women’s Year was established in 1975, it received much-needed attention it sorely needed.

Numerous organisations have provided reports over the years on topics that are vital to women in the workplace.

• The Committee on the Status of Women in India (1971–1974) was the first organisation to address women’s issues, and its report inspired the Equal Remuneration Act of 1976, among other pieces of new legislation.
• A number of significant proposals for legal reforms are made in the Shramshakti report, which was published by the National Commission on Self-Employed Women and Women in the Informal Sector in 1987–88.
• The National Commission on Rural Labour (1991) issued a study that addressed concerns affecting women in rural areas and suggested increasing self-employment, wage employment, and diversification to address inequality. It demanded that technical skills be taught, patrilineal inheritance rules are changed, and house workers are given more legal protection.
• Important labour policy ideas were created in India between 1966 and 1969 by the National Commission on Labour, which also placed a focus on women.
• The second National Commission on Labour, which convened in 2002, reviewed the rationalisation of labour laws and regulations for unorganised or informal employees, as well as creating a Task Force on Women and Children.
• The National Commission on Rural Labour (1991) published a report that took into account how rural concerns impact women. The National Commission for Enterprises in the Unorganized Sector (NCEUS) (2007) recognised the necessity for specialised policy focus for women, particularly home-based employees, more recently.
• Despite numerous initiatives to improve the socioeconomic standing of women in the nation, issues still exist, including the declining sex ratio, the rise in female infanticide and foeticide in some regions, the rise in violence and oppression against women as a direct result of rising religious fundamentalism in the nation, and the increasing vulnerability and informalization of women workers as a result of liberalisation and globalization.

Gender and labour market

The national statistics on women and labour that is currently accessible must first be provided because it effectively depicts the level of women’s employment engagement. The inability to characterise women’s labour has negative effects on any authoritative body, in addition to undercounting a description of Indian women’s employment.

Specifically, polls have been unable to properly assess and quantify the labour done for domestic purposes and in the home, consumption is primarily practised by women in this nation.

The poor economic involvement of women in the labour market is a result of the general gender discrimination existent in the workplace in terms of occupational sex segregation. The level of employment of women has, however, grown over time in industries including manufacturing, financial services, and personal services, partly as a result of better access to education, technical advancements, and more work options for women.

Women are more prevalent in several industries because they are perceived as less “problematic” and less expensive than men.

Common forms of gender discrimination in workplace

The following broad categories include few kinds of gender-based discrimination:

• “Work” is defined as: The gender bias in the definition of “work” and in the listing and highlighting of women’s labour, as previously noted, remains the main problem. The main problem is accounting for women’s labour in the labour force and accurately valuing women’s contributions, both paid and unpaid; a gendered definition of “work” is long required.
• Taking housework into account: Women work in the labour market and at home. Domestic and care jobs are rarely given the credit they deserve for their impact on the labour market.
• Discrimination at work: Women are compensated differently for the same work than males. They also have poor access to knowledge and developing skills, restricted control over resources, and limited access to resources. Women’s capacity to solidify their status as employees is further marginalised since they are frequently seen as supplemental or extra workers. In addition to this, there is a pervasive gender prejudice in the hiring and advancement of female employees.
• Work Environment: Women are typically employed in repetitive, labor-intensive, low-skill jobs.
• Access to amenities: Women have less of an opportunity to use amenities and receive advantages. Welfare facilities and services, such as restrooms, places to drink, eat, and relax, as well as access to first aid, medical treatment, and transportation, occasionally do not take gender into consideration. It is accepted that women are given transportation and protection when working at night.
• Deliberate discrimination: Women employees frequently experience indirect forms of discrimination, such as bad working conditions, low evaluations of women’s performance, and lack of access to resources like skill development. The so-called “glass ceiling” places immovable impediments in the way of women obtaining higher positions, hindering career development.
• In terms of occupational health and safety, most workplaces do not take measures to safeguard the reproductive health of female employees, despite the unique demands of this group of workers, prioritization still has to be given to reducing exposure to biological pollutants, radiation, chemicals, radioactive materials, bad posture while working, and stressful working situations.
• Sexual harassment: Women frequently experience sexual harassment at work. Despite being required by the Supreme Court’s ruling, it has been observed that the custom of seeking redress and justice for sexual harassment accusations through a separate procedure is rarely followed.
• Women are not adequately represented in trade unions, employers’ organisations, social dialogue forums, and other relevant groups that might address and improve working conditions. The organised sector’s (public and commercial sectors) underrepresentation in positions of power has broader effects on workers’ capacity to demand and modify their working circumstances.
• Despite protective and preventative legislation, exclusion of women from marginalised populations including Dalits, Muslims, and tribals continues. Women employed in these places face double discrimination and labour in the lowest paying, least protected, and most exploitative professions.
• Untouchability and other heinous practises continue to have an influence on rural Indian labourers’ livelihoods. While the affirmative action programme enabled their admission into the official sector in small numbers, the rising informalization of the labour market has only served to marginalise them even more. Due to their incapacity to unionise, they are even more marginalised because they cannot express their demands.
• Again, very few women work in the organised sector, which provides them with employment protection and other essential statutory advantages like maternity benefits and childcare options. Women employees are rarely reported to be involved in unions, even in the formal sector, and they have little to no representation in the unions that are predominately male (Hensman, 2002).

Due in part to their gender, the majority of women who work are nevertheless susceptible to the whims of the labour market. Patriarchy in the family prevents women from having equal access to education, training, and skills, which makes it more likely that they will work in lower-paying positions due to a lack of marketable abilities.

Legal framework dealing with equality and discrimination

The Indian Constitution guarantees equality to all citizens of India and forbids sexism on the part of the government. The equality guarantee is open to everyone in India (not just citizens), expanding its application to all immigrants and people of non-Indian heritage. However, constitutional protection against discrimination is typically only applicable in cases of state misuse.

The non-discrimination clause does not have a “horizontal impact,” which suggests that those working in the private (non-State) sector are not protected by the constitution against sex discrimination. Of course, legal recourse under labour laws is still open. For instance, the Equal Remuneration Act of 1976 guarantees protection against gender-based discrimination in hiring and promotions (ERA).

Since labour rules are only applicable to industries and sectors with a minimum number of employees, women working in the unorganised or informal sector frequently aren’t protected by them.

Discrimination against unorganised or informal employees is being practised in this way. The recently passed Unorganized Workers’ Social Security Act, 2008 seeks to offer such workers a minimal level of benefits.

The constitutional guarantee of equality goes beyond just outlawing discrimination; it also contains measures for achieving substantive equality by giving the state the authority to create additional protections for women and children. Job reservations for women and other special considerations for women are made feasible by clauses like these.

The constitutional clauses that ensure formal gender equality have been the focus of legal disputes. For instance, the Supreme Court ruled in a landmark decision that rules implemented by an Indian state-run aviation company that called for air hostesses to retire after their first pregnancy and that the managing director alone could extend their employment beyond the age of 35 and up to 45 were arbitrary and infringed on their right to equality.

However, the Court upheld the difference in retirement age between (male) flight pursers and air hostesses on the grounds that this was not sex-based discrimination because they belonged to different cadres and had different working conditions.

By allowing gender-specific (rather than merely gender-neutral) laws and policies that improve the educational profile, skill development, and job prospects for women in the workforce, substantive equality provisions seek to address the limitations of a formal equality approach in dealing with more systemic gender discrimination and indirect discrimination against women (as in occupational segregation).

In order to achieve substantive equality in employment, a quota-based reservation for women in government positions is viewed as a key component of the substantive equality plan. Other things being equal, thirty per cent of government positions in some states, like Andhra Pradesh, might be reserved for women.

According to the courts, the Constitution was amended to provide “special provisions” for women in order to end their socioeconomic disadvantage and achieve true parity with males.  The use of comparable quotas for women in government positions varies across India. The government is now debating the creation of an Equal Employment Opportunities Commission, which will be crucial in addressing discrimination in both the public and private spheres.

This commission has a wide scope and deals with prejudice in both the public and private sectors, not simply in the workplace. Therefore, it has a diverse membership made up of judges and elected representatives, with the need that some of them be women (Government of India, 2008).

Provisions

A number of measures in labour legislation have been passed into law and are in place for the advantage of female employees, including:

• Equal Pay for Equal Work
• Maternity Leave
• Employees’ State Insurance
• Sexual harassment of female employees at work
• Employment in factories
• Employment in mines.

Equal pay for men and women workers

• The Equal Remuneration Act of 1976: The Indian Constitution clearly instructs the States to adopt arrangements to ensure equal pay for equal labour for both male and female employees under Article 39 of the Directive Principles of State Policy. The Equal Remuneration Act of 1976 was passed with the aforementioned goal in mind.
• Goal: To promote worker equality between men and women by compensating them equally for similarly sized jobs done by both genders.
• Equal Task: A lot of elements, including talents, the nature of the work, and working conditions, go into determining the idea of equal work. Prior to logically allocating responsibilities and preventing discrimination, these issues should be taken into consideration.

In doing so, it is important to consider the tasks that are now and typically done by male and female employees but are not technically viable.

The issue of differential post-retirement benefits between air hostesses and assistant flight members—despite the fact that their employment is more or less similar—was raised in Air-India v. Nergesh Meerza, the Supreme Court ruled that even while both classes may serve as cabin crew during a flight if their fundamental criteria were fundamentally dissimilar, they would not merge into one class of service.

The requirement and conditions of service served as the basis for the disagreement, not the sex. Thus, there was no prejudice in this instance.

• Penalties: Under this article, an employer who engages in any of the below-listed acts is subject to a minimum fine of 10,000 rupees, a maximum fine of 20,000 rupees, a term of imprisonment ranging from three months to one year, or both, for a first offence. Employers who commit a second or subsequent offences face up to two years in jail.

The following actions are prohibited by this Act:

(a) Making any recruitments.

(b) Paying male and female employees differently for work that is of a similar kind.

(c) Discriminating in any way against male and female employees. Or

(d) In accordance with Section 6 of the Act, if the Employer fails to comply with any directives issued by the Appropriate Government.

Maternity leave

• Maternity Benefit Act of 1961 and Maternity Benefit (Amendment) Act of 2017 In accordance with the constitutional provision under Article 42, which directs the State to inculcate the norms for ensuring a fair and humane working environment and for maternity aid/relief/benefit, the parliament passed the Maternity Benefit Act in 1961.
• Object: Having the ability to have children makes females biologically distinct from males. They require particular care during this time without suffering financial loss, which is why the parliament passed this Act to offer maternity benefits and other benefits at a specific time (before and after childbirth).
• Maternity Benefit: This refers to the financial compensation she is entitled to under the terms of the Act, which can be computed as the average of her daily income throughout the period of her real absence. The maximum duration of the maternity benefit is 26 weeks, of which no more than 8 weeks may pass before the expected delivery date.

In a landmark decision in Municipal Corporation of Delhi v. Female Workers (Muster Roll), the Supreme Court rules that all female employees, including those on muster rolls who are paid daily or on a casual basis, are eligible for maternity benefits under the Maternity Benefit Act of 1961 and its 2017 Amendment.

• Additional Benefits: Leave for medically ending a pregnancy or having a miscarriage, payment of a medical bonus, leave with pay for having a tubectomy, leave for illnesses related to pregnancy, leave for childbirth, etc., nursing breaks, and no discrimination while pregnant.
• Penalties: Any organisation or business that fails to pay a woman receiving maternity benefits under this Act will be punished with a minimum 3-month sentence and a maximum 1-year sentence, as well as a fine.

Employers are guilty of an offence and may be punished if they prevent the Inspector or any other authority designated by the government under this Act from enforcing its provisions. Thus, so far as failing to put its provisions into practise is concerned, this Act creates special offenses.

Employees’ state insurance

• Act of 1948 relating to Employees’ State Insurance: The Employees’ State Insurance Act of 1948 gives them a security of income in case of any contingency by safeguarding their interests.

In the event of illness, maternity, or physical disability whether temporary or permanent, the employees are concerned about their source of income. The Act also ensures that employees and their immediate family members would get reasonable-quality medical care.

The Employees’ State Insurance Corporation was established by the Central Government to oversee the Employees’ State Insurance Scheme after the Employees’ State Insurance Act was published. At Deldi and Kanpur, this programme was put into effect on February 24th, 1952. The benefits offered to employees under the Act are also compliant with rules established by the International Labour Organization.

Employment in factories

• No woman or child should be engaged for pressing cotton in any area of a plant where a cotton opener is at operation, according to Section 27 of the Factories Act of 1948. The purpose of such a clause would appear to be to protect the life and physical integrity of the hired lady and her child.

According to S. 48 of the Factories Act, each workplace where more than thirty female employees are typically employed must provide appropriate rooms or other space for the daily care of the children of those workers who are under six years old. The employer’s responsibility is to select a qualified lady to look after the new borns and young children of the female workers in that factory.

Primarily, the employer has a responsibility to maintain hygiene. As a result, S. 48 puts a legal need on the employers to provide a crèche facility for the children of female employees. According to Section 19(1), workers must have access to “specified type adequate toilet and urinal accommodations” throughout all industrial operating hours.

Employment in mines

• According to the Mines Act of 1952, female employees are only permitted to operate in underground mines between the hours of 6 am and 7 pm. Again, the provision states that if a woman works above ground in a mine, even with the restrictions on her working hours, there should be a gap of 11 hours between the end of one day of work and the beginning of the next. This will allow the female employee to have enough relaxation in between two working days.

Sexual harassment of female employees at work

• The 2013 Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redress) Act: Equal treatment at work means creating a setting that is secure for both male and female employees. It is totally forbidden to engage in any form of harassment, including sexual, physical, and mental.

This Act was passed by the legislature to protect the interests of female workers in the workplace. Sexual harassment at work is a violation of our constitutional rights to quality of life, to life, and to personal liberty, which are outlined in Articles 14, 15, and 21 of the Indian Constitution.

It produces an unsafe and unhealthful work environment for female employees that is full of stress, uncertainty, and depression, which has a negative impact on the health of the female employee and her overall development.

According to the Vishaka’s decision, “Sexual Harassment” is a broad term that encompasses nearly every type of unwanted behaviour, including physical contact, requests for sexual favours, sexually suggestive comments, the showing of pornographic material (video, audio, or both), and any other overt or covert behaviour.

• Punishment: If an employee engages in any of the aforementioned behaviours that fall under the definition of sexual harassment, he will be subject to the sanctions outlined in the Act.

The Act’s Section 13 lists a number of provisions, including the following:

• Any penalty specified in the organisational service rules;
• If there are no service regulations, the employer may nevertheless discipline the employee as necessary, such as by issuing a written request for an apology and issuing a warning.
• If there are no such service rules, the organisation may ask to stop the promotion.
• Discipline measures such as a written apology, warning, censure, condemnation, the denial of any financial benefit—including a pay raise—or the termination of his employment. In addition, the employer may suggest that he seek counselling; and, finally, the employer may pay the compensation given to the female employee who was wronged by his pay.

Recommendations

Even though India has made a number of provisions and amended so many acts with the intention to bring equality in the workplace and eradicate gender discrimination the laws and acts are still not used in full force and there are so many other areas such as education, exposure to legal knowledge, knowing one’s rights, deep-rooted gender discrimination in families, double standards, culture, male domination and so many other factors that need to be looked upon in order to completely bring these laws into action and make it effective.

Conclusion

The foundation of the Indian Constitution is equality. The parliament and state legislatures have the authority to enact laws and oversee their application for the protection of those. The legislature has passed a number of legislation, particularly in the area of labour regulations, to ensure that men and women enjoy financial equality by giving female employees additional privileges.

In addition to these unique advantages, female employees also receive standard benefits that apply to both male and female workers in the same industry. The elimination of the bonded labour system, the outlawing of child labour, worker insurance, provident funds, gratuities, weekly holidays, canteen amenities, restrooms, and medical benefits are only a few of them. This list is neither complete nor more than illustrative.

Their inherent disadvantages and the distinctive characteristics of motherhood justify the need for specific labour law measures, and the Indian Constitution’s Article 15(3) allows the State to enact such laws for women and children. The state has the authority to implement all of the aforementioned regulations as a result of the aforementioned basic rights.

References:

https://www.ijrte.org/wp-content/uploads/papers/v8i2S4/B11920782S419.pdf

http://oit.org/wcmsp5/groups/public/—dgreports/—gender/documents/publication/wcms_150428.pdf

https://blog.ipleaders.in/womens-rights-labour-law-statutes-india/

https://labour.gov.in/womenlabour/about-women-labour

This article has been authored by Raja Ishwarya. B, a student at Sastra Deemed University, Thanjavur.