This article has been written by Shruthi Nair pursuing the Diploma in Labour, Employment and Industrial Laws (including POSH) for HR Managers from LawSikho. This article has been edited by Aatima Bhatia (Associate, Lawsikho), and Ruchika Mohapatra (Associate, Lawsikho).
Table of Contents
Introduction
India has been witnessing slow, but significant changes since the liberation of the economy in the 1900s. The country opened up to self-reliance and welcomed more opportunities, taking long strides in untested waters to keep pace with the ever-changing world. Along with the change in the country, women and women’s rights with respect to the work environment have experienced a significant change from an archaic and traditional point of view to a more modern and equitable approach. Through this article, we will discuss this change in general and the feasibility of women working night shifts in particular via exploration of the pertinent laws.
Gender equality and the law
Women have become equal participants in many aspects of society. Women are equal to men under the Constitution, and certain measures are made for their advancement. Women have diversified not only into the primary and secondary fields of work, but also in the sectors that were deemed of utmost importance and considered to be jobs fit only for men.
The point of view or perspective that the society had when spoken to about a woman has taken several steps forward to a more civilised society with gender equality being the norm. Women over time, from all parts of the country, be it rural or urban areas, have contributed to the growth of the country in many ways.
As we move towards a more gender equalised society, the government of India allowed for an amendment in the Factories Act 1948, allowing women employees to work night shifts (10pm-6am).
60% of the women workforce is already employed by the garment’s unit. This amendment aims to benefit those working in the SEZ’s, handicrafts, IT sectors, call centres etc. The steady and promising growth in the garment’s industry indicates a growth in the women’s workforce as well. This lets India be at par in competition with other Asian countries with respect to women’s workforce.
The amendment proposes that women be allowed to work night shifts only if their employer ensures their safety, adequate safeguards in the factory in terms of occupational safety and health, adequate protection of their dignity and honour, equal opportunity for women workers, and transportation from the factory to their home.
Labour laws are included in the concurrent list of the Indian Constitution. The Indian Parliament and State legislatures both have the authority to enact regulations. As a result, we have the Factories Act of 1948 and various State Shops and Establishments Acts with respect to labour legislation.
There were various arguments made by individual states that led to several amendments. This in all, has caused diversity in perspectives of states on this specific Act.
According to me, the Madras High Court has the most inclusive and considerate take on this act. With the various arguments against lifting the ban on women working the night shifts in mind, the Madras High Court made multiple safeguards for women’s safety and security, including the preservation of their dignity and honour, before declaring Section 66 (1) (b) of the Factories Act 1948 unconstitutional.
The Central Government, keeping in view the suggestions of all relevant scenarios and organisations, especially the ILO Protocol of 1990 was satisfied by amending the Factories Act 1948, including Section 66, to allow women to work night shifts in factories between the hours of 7 p.m. and 6 a.m. The Union Government introduced the Factories (Amendment) Bill, 2005 in Lok Sabha on August 10, 2005, with the goal of amending the Factories Act, 1948 to allow women to work night shifts.
Scope of the law
To summarise the legal framework, the Union Government’s efforts to expand women’s employment prospects by allowing women to work night shifts is a brave step that deserves to be applauded. Studies on the physical, psychological, and physiological impacts of night employment, on the other hand, largely agree that night shift work, if conducted on a regular basis, has detrimental effects on workers’ health and family lives, whether male or female. Gender does not appear to play a role, hence there appears to be no reason for just protecting women in terms of their reproductive function. The effects, however, differ from one person to the next. According to studies, pregnant and nursing women, as well as those involved in vigorous activities, should not work the night shift because of their reproductive function.
Women nowadays are significantly more educated than in the past, have higher ambitions, and are better prepared to face complex concerns in order to achieve their goals and compete for higher positions within an organization and enterprises on an equal footing with males. This demonstrates that women are progressing upwards in regard to education and work. Housewives have gradually replaced the traditional position of a housewife with that of a working woman. Women are now pursuing professional careers in order to find significance in their lives. The following are the primary variables that have contributed to this shift: –
- Better education;
- Changes in socio-cultural values;
- Supplementary income.
Issues plaguing working women
Undoubtedly “better education” is the reason behind this progressive change in society. The significant rise in the literacy rate of women has really had an impact on working women in the corporate industry. But as per the information collected based on the survey conducted by the Associated Chambers of Commerce & Industry of India (ASSOCHAM), it is obvious that there is a high sense of insecurity that prevails amongst the working women regardless of the shift they work in.
Despite the fact that most organisations have a women’s cell or a grievance redressal system, especially for sexual harassment issues, more and more organisations should be proactive in making their workplaces more woman-friendly, taking preventive measures against sexual exploitation, and having effective written laws and codes in place to combat it. This would undoubtedly create a more welcoming and comfortable environment for female employees.
Objective and challenges
This gap in between the perspectives of the female employees and the employers is a lack of proper communication between the two said parties. Direct feedback or two-way communication between the employers and workers can significantly help the employees towards creating an apt environment acknowledged by both parties and hence they can move towards closing the communication gap.
According to the survey, the mushrooming of the service sector has resulted in the emergence of a slew of small and micro businesses managed by women. In all of the firms/industries surveyed, women from low-skilled strata have the most issues, according to the report. They are so reliant on their immediate supervisors and employers that it provides fertile ground for problems to develop, whereas skilled workers face fewer issues. Insecurity is more prevalent among low-skilled women who work in unorganized/informal sectors such as textile manufacturers, handicrafts, garment factories, shoemakers, and so on.
Nightshift for women has been disputed for over a century on a global scale. The European working class was the first to call for a ban on women working at night. In the early twentieth century, some industrialised countries in Europe established legislation barring women from working at night. In June 1990, the International Labour Organization’s General Conference accepted the Protocol of 1990. The competent authority in a country may amend the duration of night shifts or create exemptions from the ban on night work for women in particular fields of activity or occupations under the rules of this convention, which are governed by national laws and regulations.
The Government of India approved an amendment to the Factories Act that allows women to work late-night shifts if the employer ensures safety, adequate safeguards in the factory in terms of occupational safety and health, equal opportunities for women workers, adequate protection of their dignity, honour, and transportation from exploitation. Women were formerly employed in the IT sector and SEZs for late-night work hours, but there was no legal obligation to provide these safety precautions. State governments can now set their own rules for granting such approvals under the new law.
Women working night shifts have advantageous working conditions in terms of security, financial compensation, and the supply of fringe benefits, according to a survey. Employees felt that, with the effective implementation of mandated benefits, sacrifices to social life should be rewarded by greater additional benefits. Working women believed that mandated benefits such as premium pay and holiday pay should be granted instead of holiday swaps or compensatory days off. As per the survey, 28.9% of female employees are insecure during night shift employment, while the remaining 71.1 percent are not. Despite the high occurrence of crime in metropolitan areas, night shift women employees report a low level of insecurity.
Conclusion
In my opinion, a conscious effort by the employers as well as the employees must be made to establish favourable working conditions taking into consideration all the different issues faced by both the parties such as health issues, social issues, mental health issues and so on. Women should be educated about their constitutional and legal rights in the work environment and in society. Women are encouraged to engage in various activities and voice their opinions through seminars, conferences, and workshops. Seminars on how women can attain a satisfying work/social balance and cope with challenges that may arise in the workplace should be organised. We propose that night workers’ work hours be limited to 8 hours a day, with the provision of a rest day firmly enforced. Night workers ought to have regular medical check-ups to determine their fitness for night employment.
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