Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
The Prohibition of Sexual Harassment of Women at Workplace Act, 2013
Procedural Requirements for Employers
The act provides an outline about employer’s requirements to develop a complaint mechanism.
Section 4 lays down the establishment of an Internal Complaints Committee (ICC).
The ICC must consist of atleast-
Four members under the Chairperson ship of a senior woman employee,
Two members from amongst the employees preferably a women with experience in social work or legal knowledge and
A third party member preferably affiliated with a non- governmental organization.
If a workplace has less than 10 employees it is difficult to set up ICC. In that case complaints may be filed at local complaints committee (LOC) established at the district level.
Section 19 requires employers to organize an orientation, workshops and awareness programs for sensitizing employees to the harms of sexual harassment and to provide assistance to the complainant should she choose to file a police complaint.
Further, employers are required to display at the workplace details of the penal consequences of indulging in acts of sexual harassment, the composition of the ICC, and the grievance redressal mechanism available to aggrieved employees.
The Complaint Process
Assuming an ICC has been established in a workplace, a woman alleging sexual harassment must act quickly to preserve her complaint.
Section 9 requires that a complaint of sexual harassment be filed within three months of the date of the incident.
This may be extended to another three months if the woman can prove that grave circumstances prevented her from filing at an earlier time although “grave” is not defined within the act.
The ICC is required to complete the inquiry within 90 days of receipt of a complaint. While the complaint investigation is ongoing, upon written request of the complainant, the woman may be transferred to another workplace or granted leave for a period of up to three months.
On completion of the inquiry, a report will be sent to the employer or the District Officer (for workplaces with few than 10 employees) who is then obliged to take action on the report within 60 days.
Employers are required to ensure timely submission of reports to the District Officer.
Section 15 provides various factors to be considered if compensation for the aggrieved woman is deemed appropriate by the ICC which include the level of mental trauma, pain, suffering, emotional distress, medical expenses incurred, financial status of the respondent, loss in career opportunity due to the incident, and the feasibility of such payment in lump sum or in installments.
As a result, the accused person faces a potentially significant financial loss if found liable by the ICC.
The Act provides that the deductions may be made from the respondent’s salary or wages. 10. If a complaint is not proven, the ICC can instruct the employer or appropriate District Officer that no further action is required.
Women and The Labour Laws
The Maternity Benefit Act, 1961
Motherhood is a very special experience in a woman’s life. A woman needs to be able to give a quality time to her child without having to worry about her job and her source of income.
Article 42 of the Constitution of India imposes obligation upon the state to make provisions for securing just and human conditions of work and for maternity relief.
The maternity benefit is a payment to a woman worker at the rate of average daily wages for the period of her actual absence immediately preceding and including the day of her delivery and for six weeks immediately following that day.
In the matters relating to maternity leave, economic benefits during absence of work, leave for bringing up children and non- termination of service during pregnancy and immediately after delivery were deliberated upon and a resolution passed.
In the sixth session of International labor organization held in 1975, emphasis was laid down on the need to make maternity protections more adequate in the following spheres:
Extension of maternity protection to new categories of women workers,
Extension of the period of statutory or prescribed maternity leave,
More liberal provisions for extended or extra leave during child’s infancy,
Higher rates of maternity benefits,
More effective protection against dismissal during pregnancy and after confinement,
Greater encouragement of breastfeeding and wider provisions of nursing breaks,
More adequate attention to the safety and health of woman during pregnancy and
Establishment by social security schemes or public bodies of day nurseries to care for infants and children of working parents.
Maternity Benefits: A woman can get maternity Benefits,
After Pregnancy (during the early months of motherhood).
Government employed women are entitled for maternity leave with full pay.
Other working women are entitled for 16 weeks maternity benefits.
Even unmarried women are entitled for maternity benefits.
Only those Government employees can avail these benefits, which have less than two surviving children.
If a woman wants she can avail few days before the delivery and the remaining leave after the delivery, or she can avail the entire leave at the same time.
The employer cannot make a woman do any heavy work in the last working month of pregnancy. She can refuse to do work which is physically tiring and involved long standing hours, caring heavy loads or any work which can endanger the proper growth of child, etc.
A woman is entitled to 45 days leave full wages in case of miscarriage.
The National maternity Benefit scheme was modified and new scheme called Janani Sraksha Yojna was introduced.
Complaint: Section 17- Section 17 talks of complaint that can be made to the inspector appointed under the Act. Section 23 talks of complaint that may be lodged in a court of law after exhausting the remedies provided under the Act.
Procedure to Seek Remedy
Normally, for any grievance under the Act, the aggrieved woman may approach the Inspector appointed under the Act.
However, where she is dissatisfied with the orders passed by the Inspector or where a larger question of law is involved she may approach the Metropolitan Magistrate or a first class Judicial Magistrate of the competent jurisdiction. However, such a case must be filed within 1 year from the date of commission of offence.
Any office bearer of a registered Trade Union of which such a woman is a member or a Voluntary Organization registered under the Societies Registration Act, 1860 or any inspector may also file a case in a court of law on behalf of the aggrieved woman.
In some cases, the inspector may enter any place where women are working, in exercise of powers given to him under the Act and examine any registers, records or notices required to be maintained under the Act.
He may examine any employee of the establishment and require them to give him information regarding particulars of employees, payments made and application or notice received from them. If he finds any discrepancies in the matter or payment of maternity benefits, he may direct such payments to be made.
The woman should have put 80 days of work before in a delivery period of one year to be able to claim the benefits under the Act.
It is the duty of woman claiming maternity benefit to give notice in writing in the prescribed form to her employer claiming her benefit and the period of leave. Such a notice may be given immediately after delivery also.
Where she has failed to give such a notice, she may apply to the Inspector who shall make the necessary orders of payment under the Act.
Appeal against the orders of the Inspector lies to the appellate authority which must be made within 30 days from the date of the decision of the Inspector is communicated to her. The decision of the appellate authority is final.
If she is dissatisfied with the orders of the Inspector or the appellate authority or if a larger Question of law is involved, she may approach the court of the competent jurisdiction. The case will proceed according to the established procedure of law.
Where the employer is guilty of payment of maternity benefit or dismissing or discharging the employee on account of her absence in violation of the Act, he is punishable with imprisonment not less than 3 months to one year and with fine for not less than Rs. 2000 to Rs. 5000
There is appeal against the decision of the inspector. In a court of law, the normal procedure of filing appeals may be followed.
Alternative Remedies-/ Judicial; The Act itself has provided for an alternative judicial recourse by appointing Inspectors under the Act and for an appellant authority above him.
Only where the complainant is dissatisfied with their decisions that she has to approach a court of law for judicial remedies and for instituting penal action against her employer. Certain questions of law like the period to be included while calculating the amount of maternity benefit etc. are also decided by a court of law.
The aggrieved woman may also approach the registered trade union of which she is a member or a voluntarily social organization that may help fight her case.
The Factories Act, 1948
In India, The Factories Act, 1881 was primarily passed to protect children and to provide for a few measures for the health and safety of workers.
The subsequent act and finally the Act of 1948 aim to consolidate and amend the law and regulate labour in factories.
This Act is complete from all points of view and implements several provisions of International Conventions like the ILO’S code of Industrial Hygiene and Periodical Examination of Young Persons.
The major objectives of the Factories Act are-
To protect laborers from long hours of work.
Maintain healthy and sanitary conditions at the workplace.
Maintain safety of workers.
Maintain Industrial machines used by people so as to avoid unnecessary accidents.
Regular visit of Industrial sites by Industrial Inspectors to oversee health and safety regulations.
Executive provisions have been made for employment of women in factories.
Adequate facilities for washing, sitting, storing clothes when not worn during working hours.
If a worker has to work in standing position, sitting arrangement to take short rests should be provided.
Adequate First aid boxes should be provided and maintained.
Facilities in case of large factories:
Creches are to be provided if 30 or more women workers are employed.
Overtime wages are double the rate of wages payable.
Overtime should not exceed 60 hours in a week and total overtime hours in a quarter should not exceed 50. Register of overtime should be maintained.
Rights of Working Women in Factories
Women must have separate toilets and washrooms with doors.
If a factory has more than 30 women workers the employer must provide a creche for the workers children.
Women cannot be made to lift more than the prescribed weight.
Women cannot be made to clean or oil any moving machine.
Women cannot be made to work more than 48 hours in a week.
Women must get one day off in a week.
Women cannot be made to work for more than 5 hours at a stretch.
Women cannot be made to work only between 6 in the morning and 7 in the evening.
State government can grant exemption to nay factory or group or class of factories, but no woman can be permitted to work during 10 PM to 5 AM.
Shift can change only after weekly or other holiday and not in between.
Night shift for women
Factories Act has been proposed to be amended to allow night shift for women workers.
The government has decided to amend section 66 of the Factories Act, 1948 to allow employment of women workers between 7:00 pm and 6:00 am.
The employer has to ensure occupational safety and adequate protection to the women workers.
For contravention of the provisions of the Act or Rules- imprisonment up to 2 years or fine up to Rs. 1,00,000 or both.
Contravention causing death or serious bodily injury- fine not less than Rs. 25,000 in case of death and not less than Rs. 5000 in case of serious injuries.
Continuation of Contravention – imprisonment up to 3 years or fine not less than Rs. 10,000 which may extend to Rs. 2, 00,000.
On contravention of chapter IV pertaining to safety or dangerous operation.
Factories Act works with a primary object to protect workers employed in the factories against industrial and occupational hazards.
For that purpose, it seeks to impose upon the owners or the occupiers certain obligations to protect works unwary as well as negligent and to secure for them, employment in conditions conductive to their health and safety from accidents.
The Equal Remuneration Act, 1976
Parity in wages is one of the major components of Service Law Jurisprudence which has evolved over the years.
If two workers are doing the same work, they should be paid equal wages.
Even Article 39 of the Constitution envisages that the state shall direct its policy, among other things, towards securing that there is equal pay for equal work for both men and women.
To give effect to this Constitutional provision The Equal Remuneration Act, 1976 was passed to provide for the payment of equal remuneration to men and women workers and for the prevention of discrimination, on the grounds of sex, against women in the matter of employment.
People’s Union for Democratic Rights v. union of India
Duty of Employer to pay equal remuneration to men and women workers for same work or work of a similar nature.
No employer shall pay to any worker, at rates less favourable than those at which remuneration is paid by him to the workers of the opposite sex for the same work or work of a similar nature.
An employer cannot claim exemption on the grounds of financial incapability from The Equal Remuneration Act, 1976.
No discrimination to be made while recruiting men and women workers.
No employer shall, while making recruitment of the same work or work of a similar nature, or in recruitment such as promotions, training or transfer, make any discrimination against women in such work is prohibited or restricted by or under any law for the time being in force.
The provisions of this section shall not affect any priority or reservation for scheduled castes or scheduled tribes, ex-servicemen, retrenched employees of any other class or category of persons in the matter of recruitment to the posts in an establishment or employment.
The appropriate government shall constitute one or more advisory committees to advice.
Every advisory committee shall consist of not less than ten persons of which one-half shall be women.
The advisory committee shall have regard to the number of women employed in the concerned establishment or employment, the nature of work, hours of work, suitability of women for employment.
The advisory committee shall regulate its own procedure.
Power of appropriate government to appoint authorities for hearing and deciding claims and complaints:
A labour officer is to be appointed for the purpose of hearing and deciding;
Complaints with regard to the contravention of any provision of this Act.
Claims arising out of non- payment of wages at equal rates to men and women and
In the case of complaint, that adequate steps to be taken by the employer so as to ensure that there is no contravention of any provision of this Act.
Every authority appointed shall have all the powers of a civil code under the Code of Civil Procedure, 1908 (5 of 1908), for the purpose of taking evidence and of enforcing the attendance of witnesses and compelling the production of documents.
An appeal within 30 days but not thereafter is allowed.
It is the duty of employers to maintain the registers.
Powers of Inspectors:
To enter, at any reasonable time with such assistance as he thinks fit, any building, factory, premises or vessel;
To require any employer to produce any register, muster- roll or other documents relating to the employment of workers, and examine such documents;
To the provisions of this Act are being, or have been, complied with;
To examine the employer, his agents or servant or any other person found in charge of the establishment or any premises connected therewith;
To make copies, or take extracts from, any register or other document maintained in relation to the establishment under this Act.
Remedies under the Act:
A complaint may be made to the appropriate authority appointed by the government by
The worker or
A legal practitioner or
Any official of a registered trade union authorized for this purpose or
An inspector appointed under section 9 of the Act.
A Metropolitan Magistrate or a Judicial Magistrate of the first class is eligible to try offences under the Act. The Magistrate may take up the case on its own or on receiving a complaint either from-
The appropriate Government or
The aggrieved person or
Any recognized Welfare Institution or Organization and even Public Interest Litigation may be filed for discrimination in payment on grounds of gender.
How to file a Complaint?
The complaint to the authority appointed under the Act must be made in Triplicate, in Form A for contravention of the Provisions of the Act and in form b for nonpayment of equal wages. The Authority will listen to both the parties and after making the necessary inquiry, direct the payment of the difference in the amount actually paid and the amount payable under the Act or direct the employer to comply with the provisions of the Act.
Either of the parties may appeal to the appellate authority as notified by the Government under the Act within 30 days of the original order.
Alternatively, a Public Interest Litigation may be filed in the court of law or the Legal Services Authority may be approached for getting appropriate relief and legal aid.
Minimum Wages Act, 1948
Women must get wages because every person who works must be paid for his or her work.
A person must be paid at least a minimum wages which is fixed by the government under the Minimum Wages Act, 1948.
Every woman must be paid the same wage as a man for the same kind of work i.e., equal to the man and not less.
Women workers must be given to the person who work on temporary basis, piece rate basis, daily wages, who works for a contractor or who works in agriculture.
Even if a person agrees to work on less wages then prescribed by the government, the employer is bound to pay the minimum wages.
Minimum wages must be fixed on:
Hourly basis and
Remedy / Procedure Under The Minimum Wages Act, 1948
If the employer is not paying the Minimum Wages then the labour can complaint to the labour inspector.
The employer cannot make the labour work for more than 9 hours which includes the time for rest also.
If the labour works for more than 9 hours he/she will get the extra money which is doubled the wages.
Every day there should be one day paid rest.
Claims for payment of minimum rates of wages or remuneration for days of rest or wages at overtime rate or as per the rules and orders made by the appropriate government under this Act.
The Presiding Officers of the Labour court and Deputy Labour Commissioners hear and decide claims arising out of payment of less than the minimum rates of wages. The employee or any legal practitioner or any official of a regd. Trade Union or any Inspector or Any other authorized person may file a claim petition under this act.
How to file the Complaint?
Every application under this Act must be presented within 6 months from the date on which the minimum wages become payable.
A single application may be filed on behalf of any number of employees.
The Adjudicating authority will hear both the applicant and the employer and after due inquiries may direct.-
Payment of the difference between the minimum wages to be paid under the Act and the actual wages along with a compensation not exceeding 10 times such amount.
Payment of any amount due to the employees by the employer along with compensation. A Penalty of fifty rupees may be levied on the applicant if the authority feels that the application is either malicious or vexatious. The direction of the authority is final and he shall exercise all the powers of a civil court under the Code of Civil Procedure for taking evidence, enforcing attendance of witnesses and compelling the production of documents. Courts have been barred from entertaining suits under this Act.
No appeal shall lie against the decision of the authorities under the Act.