Standards for Women in Labour Law

 

Yashaswini Prasad, Jindal Global Law School

Editor’s note:

Gender equality and protection of women’s interests in labour law has become crucial in recent times. This paper deals with international as well as municipal laws which focus on the promotion of women’s interests in labour law. In India, the percentage of women employed is low, due to various reasons, some of them being safey and lack of workplace rules in place in he unorganised sector (domestic work). Thus they require special protection – promotion of equality in a manner of positive enforcement. This involves equal pay, implementation of laws preventing sexual harassment, maternity benefits, etc. For the welfare of women workers, there are a variety of legislations with special provisions, such as The Factories Act, 1948, The Mines Act, 1952, The Plantation Labour Act, 1951, and so on. These provisions include provisions for separate washrooms, prohibition of hazardous work, crèches, upper cap on working hours, upper cap on load which may be lifted by women, prohibition of night work, etc. There has been a movement towards women empowerment in labour law, the only thing it requires is awareness of rights and effective implementation.

Introduction

Social justice is essential to maintaining a sustainable peace as well as encouraging sustainable economic growth. Ensuring gender equality, and protection of women’s interests in labour law is a key ingredient to improving social justice. This paper will discuss the various standards set by International treaties and conventions as well as domestic law for the promotion and protection of women’s interests in labour law, focusing specifically in the issues of equal employment opportunities, wage disparity, sexual harassment at the workplace, and maternity benefit.

Women and labour law – Need for special treatment

While women constitute a substantial chunk of the available workforce in India, they are still lacking in work participation (the percentage of women employed is still low) as well as quality of employment.[i] One of the reasons for this lack of this female labour participation is the lack of suitable jobs on offer, i.e. the disparity between what they can do and what is available to them.[ii] Another reason for the low female turnout in the field of employment is the issue of safety. Better governance and policing is a must if there is any intention of increasing the sense of security among women and thus encouraging more women to take up jobs. Another problem is that the sectors that women are employed in such as “domestic work” falls under the “unorganized sector” and this is problematic in the sense that there is no strong set of workplace rules in place; this again is a factor that leads to the lack of women in the active workforce, as it is incredibly hard to simply maintain a job let alone build a career.[iii] This vulnerable position of women in terms of adverse conditions is only worsened by any possible sudden negative impact upon the industry as they are already dealing with unequal intrinsic situations.[iv] They have to cope with childbirth and related issues, they have also to deal with domestic responsibility, which in a patriarchal society is not much of a concern to men, [v] etc. Thus in order to bring women up to par with their male counterparts, it is important that they are not only given equal rights in labour law, but also special protection.[vi]

Employment opportunities and wage disparity

Equality of employment and occupation is not possible without equal opportunities and equal treatment. While equal opportunity refers to having an equal chance of applying for a particular job – equal access to employment, which includes, equal chance to acquire training in the field, eligibility for promotions, and eligibility to attain certain qualifications/ enter certain cadres; equal treatment refers to being entitled to equal pay, working conditions, social security, and social protection and quality of family life (in terms of the opposite sex). Promotion of equality in employment is a positive enforcement, unlike prevention of discrimination, which is a sort of negative right or negative equality. This involves breaking down both horizontal and vertical occupational segregation.^[vii]

The principle of equal pay, the antithesis of wage disparity, is based on the recognition of an objective evaluation of work in order to determine pay; and elimination of “discriminatory structural gender bias in labour markets.” A woman’s income, on average, worldwide, per hour is 75% that of a man. One of the reasons this practice is still so prevalent even today is because of the popular view that the costs of employing women is higher than employing men, because due to the various positive discriminations provided for in statutes women work fewer overtime hours, women must be given maternity leave, etc. Wage disparity is so hard to combat because it is often very hard to detect. It operates through access to promotions and other similar indirect means, as such qualifications affect not only pay, but also perquisites. The ILO Constitution of 1919, and the ILO Convention on Equal Remuneration 1951, both recognise the principle of “equal pay for work of equal value.” This is also enshrined in the Constitution of India under Articles 14 and 15, as well as the Equal Remuneration Act of 1976.  Despite such recognition often the issue of equal pay for women workers goes un-championed, even by trade unions, as they often do not view this to be a problem that affects the workers as a whole.^[viii]

One of the most basic reasons as to why there is an inequality in the employment opportunities available to women and the disparity in wages is that women are view as supplementary earners and men are viewed as primary breadwinners.^[ix] This operates as a vicious cycle, as the low wages offered to women further entrenches them in lower cadres of employment and continues to perpetuate disparity. Additionally women accept jobs with lower pay in order to avoid sitting idle, and this differential wages works as a discouraging factor against enhanced performance and thus reduces an opportunity for career advancement.^[x] Another cause for disparity in income is that a majority of the active female workforce is involved in the informal sector, such as agriculture and domestic work, which have very few regulations in terms of remuneration and social security.^[xi]

Sexual harassment of women in the workplace

Close to half the population of the country is female and based on that approximately half the hypothetical potential workforce would then be female. Therefore as rightly put by the National Commission on Labour in 2002, “any social, economic or industrial system that ignores the potentials, talents and special attitudes of this half will be flawed on many counts. It is, therefore, necessary to ensure equal opportunities and protection from indignities.”^[xii]

Sexual Harassment in the workplace refers to any unwanted sexual advances, be it verbal or physical, as long as it is of sexual nature and is either used as leverage for favourable treatment at work or is interfering with an individual’s performance at work by creating a hostile work environment. Sexual harassment is inclusive[xiii] of:

• Inappropriate remarks, jokes, or insinuations of a lewd or sexual nature
• Unwanted physical contact, including assault
• Lewd gestures and lecherous looks
• Compromising invitations.
• Requests or demands for sexual favours – including implicit or explicit threats of dismissal or other unfavourable treatment if such favours are refuse; also incentive of favourable treatment in return for such favours.

Sexual harassment is not only viewed as a discrimination problem related to safety and health, but also as a violation of fundamental rights and human rights. It is offensive at a very personal level and in a way undermines the right to equal opportunity and equal treatment of women at the workplace. The first and foremost effort ought to be to prevent the occurrence of such harassment in the first place, but in the event that such harassment does occur, it ought to be punished and the victims protected. Women are often unaware of their rights and also many a time keep things quiet in fear of losing their jobs. Employers need to be more proactive about spreading awareness and fighting against sexual harassment at the workplace. Contrary to popular belief sexual harassment at the workplace does not only have an impact on the victim alone, but affects the productivity of the industry/company as a whole. It can also ruin the reputation of a company, leading to a tarnished public image, which may in turn affect sales and profits. Employers and trade unions ought to take more active steps towards the prevention and punishment of such activities. This can be done through policies and procedures adopted within the industry itself. There should be an adequate complaint mechanism, disciplinary rules, sexual harassment awareness, defence training, and communication strategy. The 71^st session of the ILO Conference 1985 adopted a resolution on the matter, which states, “sexual harassment at the workplace is detrimental to employee’s working conditions and to employment and promotion prospects. Policies for the advancement of equality should therefore include measures to combat and prevent sexual harassment.”^[xiv] Multiple countries have penal provisions to deal with sexual harassment in the workplace, for example the UK’s Employment Equality Regulations 2005, the EU Equal Treatment Directive 2002, Germany’s Employees Protect Act 1995, etc.^[xv]

Women because of their second-class citizen treatment at workplaces are often vulnerable and targets of sexual harassment and sexual violence. This is the harsh reality regardless of whether they are domestic workers in the unorganized sector or highly paid executives in an urban setting.[xvi]

In India no legislation regarding this existed until the case of Vishaka v the State of Rajasthan. In the Vishaka case the Supreme Court laid down guidelines regarding sexual harassment at the workplace. Post the Vishaka case a Bill for the prevention of sexual harassment at the workplace developed over the years – Protection of Women against Sexual Harassment at Workplace Bill; from the year 2000 to 2010 there have been 9 different attempts by different drafting committees.^[xvii] In 2012, the final Bill on the subject, The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill drafted by the Women and Child Development (WCD) Ministry was proposed and was passed by both houses in 2013. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act came into force on the 9^th of December 2013.[xviii]

In the Indian context the position on sexual harassment at the workplace as introduced through the multiple Bills on the matter, and finally the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, post the Vishaka case is about the same as mentioned above keeping with the ILO guidelines; in fact touching and extreme behaviour amounts to attempted rape or rape.^[xix]

The current position in India with regards to sexual harassment at the workplace as under the Act of 2013 is a more improved version of the guidelines laid down in the Vishaka case. The Act defines sexual harassment, and not only provides a mechanism for redressal of complaints, but also allows for safeguards against malicious complaints. It defines “aggrieved woman” to include all women, regardless of their age or area/ sector of employment. It includes public servants to domestic workers. Unlike the guidelines set up in Vishaka it also includes workers that are not employed under a traditional office set up where the lines between employer and employee are not very clearly drawn. It includes any place that an employee may visit in the course of her employment, inclusive of transportation. It makes a mandatory provision for an Internal Complaints Committee, where there are any more than 10 workers at an office or branch. This committee is required to complete any inquiry regarding a sexual harassment complaint within 90 days and send a report regarding the same to the employer as well as the District Officer, who on receipt of the report are to take requisite action within 60 days. The District Officer if he deems appropriate can make provision for a Local Complaints committee at district as well as block level. These Committees have the powers of a Civil Court in terms of evidence gathering, and are also required to provide conciliatory assistance before inquiry proceedings if so requested by the complainant. The Act also has penal provisions in terms of the employer. A failure to comply with the provisions of the Act will result in a fine up to Rs.50000, which can be increased in the case of repeat offences. Also repeat offences can result in termination of licence or registration to conduct business.^[xx]

Maternity Benefits

Women with infants and young children, often have to pick between their job and their responsibility towards their children, due to that lack of facilities at their workplaces, in order to accommodate both. This problem stems from the idea that a woman’s primary or natural responsibility is keeping of the home and raising children. Though crèches have to be mandatorily provided, such provisions are only possible in the formal workplace. The informal sector, where a majority of the active female populace is employed rarely provides such facilities. Thus resulting in, child bearing and rearing becoming deterrents for women’s employment.[xxi] Therefore it is essential that maternity benefits be provided mandatorily to women at the workplace in order to encourage more women to actively be part of the workforce.

The provision of maternity protection is essential in furthering the idea of equal opportunity in employment. The idea of providing for such benefits is to prevent childbirth from working as a deterrent to women, and to ensure that women do not have to pick between their “reproductive and productive roles.” As provided under the ILO Maternity Protection Convention and Recommendations of 2000, maternity leave is a mother’s right to a period of leave for the purpose of rest and recuperation from childbirth and its consequences thereof. The convention provides for cash and medical benefits (article 6(3)) and also a right to breast feed her child after returning to work (article 3).[xxii]

The ILO Maternity Protection Convention (2000) extends the provisions of ILO Maternity Protection Convention (Revised) 1952, providing that maternity leave (which is defined as leave from work granted to a woman for a continuous period before and after giving birth) ought to be provided to all employed women for a period of at least 14 weeks (Article 4.1). This refers not only to those women employed in the formal sector, but also those women employed in the informal sector. It further provides that unless otherwise provided by the national government, at least 6 weeks of maternity leave must be taken after the birth of the child (Article 4.4). The ILO convention also makes a provision for leave to be provided even after the maternity leave period either before or after childbirth in the case of medical complications or illness, if an appropriate medical certificate is provided (Article 5). The ILO Maternity Protection Recommendations 1981 also endorse an extension of the maternity leave period to 18 weeks, and to provide for protection against dismissal for a certain period after return from maternity leave. The ILO Maternity Protection Convention in Article 8 awards the right to return to the same work or a position with the same pay, after maternity leave. It also makes it unlawful to dismiss such an employee, except on grounds unrelated to pregnancy or the consequences thereof, with the burden of proof being the employer’s to relieve. Many EU countries and other first world countries in order to alleviate the position of these new mothers provide for cash benefits to reduce the burden of having lost income for the period of maternity leave. They also have legislations in place to grant “parental leave” to either parent, in extension to the maternity leave provided.[xxiii]

Further in 2004, the International Labour Conference adopted a Resolution on Gender Equality, Pay Equity and Maternity Protection to the effect that maternity protection is equivalent to non-discrimination and asking all governments to ratify and apply the ILO Equal Remuneration Convention of 1951, in order to eliminate gender based discrimination in the workplace.[xxiv]

In the Indian context under the Maternity Benefit Act 1961, maternity leave is given to any pregnant employee for a period of 6 weeks prior delivery and 6 weeks after. If however the employee wishes, she can claim the leave continuously after birth so long as the period claimed does not exceed 12 weeks, as per the Amendment of 1989 (section 6). In accordance to Section 5(1) of the Act the employer must pay the pregnant employee a cash maternity benefit at the rate of average daily wages, for the period she was actually absent preceding and during the time of her delivery as well as 6 weeks immediately after her delivery.  Also in accordance to section 6(5) the employee is entitled to this benefit in advance i.e. preceding the date of delivery. Also similar to the provisions of the ILO conventions, a woman employee who has absented herself from work due to pregnancy, cannot be dismissed (except due to reasons unrelated to pregnancy) as under section 12(1). Also under section 9, she is entitled to leave in case of a miscarriage and under section 9A for illness in relation to pregnancy. Similar to the ILO conventions, a woman is allowed nursing breaks under section 11, and in accordance section 4(3) no pay may be deducted in lieu of these breaks or for the light nature of work assigned to her. [xxv]