Women, who earlier stayed at home fulfilling domestic duties, are now considered as the backbone of any economy. She is participating in the process of economic development on an equal footing with men, simultaneously managing both home and work. Women have moved away from their traditional roles of homemaker and child rearing to social and business solutions. Still, they have always been treated differently, discriminated in all aspects throughout the world.
The Government of India, meeting a longstanding demand for gender parity in workforce, has approved an amendment in the Factories Act, 1948, allowing women employees to work in nightshifts. But the amendment would only be applicable if the employer ensures safety, adequate measures to ensure health, equal opportunity to women workers, transportation, etc. Section 66 of the Factories Act, 1948 prohibits women employees from working at night. They could only work between 6 a.m. and 7 p.m.
This move came after the judgment of Madras High Court in the case of Smt. R. Vasantha v. Union of India, where it had struck down the provisions of the Act, stating it to be unconstitutional on the ground of the same being in violation of Articles 14, 15 and 16, which had banned women from doing night shift. The Madras High Court observed that there should not be any discrimination in sex among the workers. It could also not be held that it is a protective legislation for women to save them from exploitation. It offends Article 15(1) of the Constitution of India, resulting in denial of livelihood, improvement in status of women as well as economic freedom. The court also observed that it would expose female workers to unforeseen factors if there is no specific regulatory measure by way of rules or enactment.
In development that could create more employment opportunities and improving working conditions for women in factories, in line with the order of the Madras High Court, various states allowed women to work at night in Factories between 7 p.m. to 6 a.m. On 1st December’ 2015, President Pranab Mukherjee approved the Factories Amendment bill, 2015, allowing women to work night shifts in factories in Maharashtra. Given the rise of educated women ready to join the workforce, there was a need to create employment opportunities for them and tap into this talent pool. This amendment made Maharashtra join other states like Haryana, Rajasthan, Punjab, Madhya Pradesh and Andhra Pradesh who are in the process of allowing women to work night shifts. This transition was made to improve working conditions as well as generate more employment opportunities for women.
The most recent notification on the same was issued by the Karnataka Government on 20th November’ 2019, enabling women employees in factories to work during night hours, from 7 p.m. until 6 a.m. The employer while providing employment at night needs to comply with certain health, safety and security conditions. No specific permission is required to engage women employees at night. However, a written consent needs to be given by these women employees who wish to work at night. The Chief Inspector may by an order withdraw the permission issued by the notification to any factory, if any or all the conditions laid down in the notification are not followed, in the interest of safety and security of the women workers who come forward to work in night shifts. While IT/ITEs workers were exempted from this, this order gives blanket permission to employ women 24/7 in all industries.
The Notification states that an employer of a factory may engage women workers during night hours, subject to the employer complying with the conditions set out in the Notification. The Notification inter alia lists down the following health, safety and security measures:
- Transportation facility from residence accompanied by security guards in vehicles with CCTV cameras.
- Healthy and hygienic working conditions.
- Women workers shall be engaged in a batch of not less than 10 women. The total number of women workers in night shift shall not be less than 2/3 of the total strength.
- During night shift, not less than 1/3of the supervisor shift in charge or other supervisory staff shall be women.
- The employer shall appoint not less than two female wardens per night shift who shall work as Special Welfare Assistants. Sufficient women security shall be provided both at the entry and exit.
- Boarding and Lodging, if made any, the same shall be kept exclusively for women.
- Proper lighting and CCTV coverage to be ensured not just inside the factory but also surrounding the factory. CCTV footage shall be maintained for a period of at least 45 days.
- In the event that more than 100 women workers have been engaged in a shift, a separate vehicle shall be kept ready in case of emergency situations such as an injury, incidental act of sexual harassment etc.
- If a women is rotated from a day shift to night shift, or vice-versa, that women should at least be given 12-hours of the rest between the switch.
- Appropriate medical facilities shall be made available such as necessary telephone connections.
- Sufficient number of rest rooms to be provided. Separate canteen facility to be provided for women workers.
While this can be seen as a welcome move, it entails many hardships on employers as well as costs for providing night shift. This would work in workshops where there is predominantly female work force and for most other industries this would still be difficult to comply with. Numerical thersholds as high as 2/3rds of the total shift etc make compliance next to impossible.
On one hand where the rights of women are extended and several obligations imposed on employers, in some areas the notification falls short. For instance, CCTV footage is to be maintained for only 45 days whereas the cool off period for a complaint under POSH Act, is 3 months. In addition 12 hours of shift break should be uniform for all employees and why specific to women.
–Archana Balasubramanian (Partner) assisted by Sakshi Modi (Trainee)
(2001) 2 LLJ 843 (Mad).