Women empowerment and provisions of Labour law

A Project Made By

Name- Vicky Kumar

Roll No- 1574

Class- B.A. LLB

Submitted to – Mrs. Pallavi Shankar

FINAL PROJECT SUBMITTED IN PARTIAL FULLFILLMENT OF

COURSE LABOUR LAW II DURING THE ACADEMIC SESSION 2018-
2019

5th, September, 2018

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

1
 ACKNOWLEDGEMENTS

I would specially like to thank my guide, mentor, Mrs Pallavi Shankar without whose
constant support and guidance this project would have been a distant reality.

This work is an outcome of an unparalleled infrastructural support that I have received from
Chankaya National Law University, Patna.
I owe my deepest gratitude to the library staff of the college.

It would never have been possible to complete this study without an untiring support from my
family, specially my parents.

This study bears testimony to the active encouragement and guidance of a host of friends and
well-wishers.

Name-Vicky Kumar
Roll - 1574

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 Table of contents

TOPIC ......................................................................................................................PAGE NO.

Declaration Page ......................................................................................................................2

Acknowledgement ....................................................................................................................3

Chapter 1:Introduction ...........................................................................................................4

Chapter 2: Concepts of Empowerment ..................................................................................7

Chapter 3: Women and Labour law: Need for special treatment .....................................12

Chapter 4: Sexual harassment of women in the workplace ...............................................14

Chapter 5: Maternity benefit Acts .......................................................................................17

Chapter 6: The factories Act………………………………….……………………………20

Chapter 7: Other provision related to women in labour statues in India……………….22

Bibliography ...........................................................................................................................25

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 INTRODUCTION

In the history of human race, women have contributed to development as much as man. In fact,
work performed by women in society is in a way is more important than men. Without the
participation of women in national activities, the social, economical or political progress of a
country bound to stagnate. Efforts have been made on a regular basis across nations to address
this issue and enhance the socio-economic status of women .This as an agenda has been on top of
the lists of most government plans and programs as well. Thus Women’s Empowerment has been
an issue of immense discussions and contemplation over the last few decades world-wide. It got
impetus from the current wave of globalization which has left women disadvantaged in many
areas of life, including education, employment, health, and civil rights. To help remedy the
situation steady steps were taken on the international level. The empowerment of women1 is
located within the discourse and agenda of gender equality and is increasingly being taken in the
agendas of international development organizations, perhaps more as a means to achieve gender
equality than as an end in itself. The Nairobi Forward-Looking Strategies for the Advancement of
Women in1985 started the process.At the Social Summit in Copenhagen in 1993 and the
International Conference on Population and Development in Cairo 1994 Governments committed
themselves to the empowerment of women.TheFourth World Conference on Women, held in
Beijing in 1995, issued the Beijing Platform for Action. It aimed to invigorate the world’s
commitment to women's empowerment. The UNMillennium Development Goals prioritize gender
equality and empowerment of women. In particular, Millennium Development Goal Three
purports to “promote gender inequality and empower women”.The women's empowerment has
become the “catchword today.” In India the concept of the empowerment of women as a goal of
development projects and programmes has been gaining wider acceptance in the 1990s.The Indian
Eighth Five Year Plan (1992-97) makes a shift from 'development' to 'empowerment' of women[
Khan (2001) and Sinha (2002)].

1
Kabeer, Naila. "Gender equality and women's empowerment: A critical analysis of the third millennium
development goal 1." Gender & Development

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Page - 5
AIMS AND OBJECTIVES
The Aims and Objectives of this project are:

1. To study about the provision to improve the condition of women

2. To study the concept of empoerment
3. How these provisions are achieved by the State through various statutes
4. To study the effect of various labour stautes to women

REVIEW OF LITERATURE
A comprehensive review of literature is an essential part of any scientific investigation. It is
necessary for the researcher to acquaint himself with the work done in the past which induces
insight into the problem for further work.

HYPOTHESIS
The researcher considers the following hypotheses:

1. Even after having various labour statues and constitutional provisions regarding Right
to all women in India the condition of women still after 70 years of independence not
improved at that level where they feel independent and equal to men.
2. The condtion of urban women is better than rural women. The women in rural areas
not aware of their rights and various labour statues related to them due to illiteracy
and lack of awarness by which they always supressed by men.
RESEARCH METHODOLOGY
For this study, primary and secondary sources was utilized. Various constitutional provisions,
articles, e-articles, reports and books from library were used extensively in framing all the
data and figures in appropriate form, essential for this study.

The method used in writing this research is doctrinaire.

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 Sources of Data

The researcher will rely upon both primary and secondary sources of data. The primary
sources include cases while the secondary sources include books.

i. Primary Sources- Maternity Benefit Act, The Factories Act, The sexual harassment of
women at workplace act

ii Secondary Sources- Books, articles and cases.

STYLE OF WRITING

The researcher will be using both analytical and descriptive styles of writing.

MODE OF CITATION

The researcher will be using a uniform mode of citation throughout this paper.

METHOD OF DATA COLLECTION

The researcher will make use of doctrinal methods that includes within its ambit the library
work.

LIMITATION OF RESEARCH

The researcher has undergone time and monetary limitation.

The scope of research

This piece of study would be very helpful for the lawmakers as it would explicitly state about
its utility in the present context. If found of not much relevance there is an urgent need to
either amend or repeal it. Law exists to sub serve social needs and therefore it is desirable
that it should change with the changing needs of society and life otherwise its results would
be contrary to the general belief ‘Law Is Dynamic’

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Concept of Empowerment

The origins of the concept of empowerment go back to the civil rights movement in the USA in
the 1960. It has since then been interpreted differently and used in such different sectors as
business, social work, development discourse and advocacies. It is filled with new meanings by
advocates of very different political agendas. The different definitions of empowerment range
between defining it as a largely individual process of taking control of and responsibility for
one’s life and situation, and defining it as a political process of granting human rights and social
justice to disadvantaged groups of people. In line with most theorists on empowerment the one
has to view empowerment as taking place on three different levels -- individual level, the group
and societal level.2 The different levels are seen as interconnected and mutually reinforcing.
Empowerment on individual level will have effect on the group and societal level; and similarly
the group and societal empowerment.

Empowerment is generally treated as a multi-dimensional process which helps people to gain

control of their lives through raising awareness, taking action and working in order to
exercisegreater control. Empowerment is the feeling thatactivates the psychological energy to
accomplish one’s goals (Indiresan, 1999). It enables a powerless group, as of women, to realize
their full identity and power in all spheres of life (Surekharao and Rajamanamma, 1999). It
consists of greater access to knowledge and resources, greater autonomy in decision making to
enable them to have greater ability to plan their lives, or to have greater control over the
circumstances that influence their lives and free from shocks imposed on them by custom, belief
and practice. Empowerment is multidimensional: there are three dimensions of empowerment,
namely social, economic and political.

WOMEN’S EMPOWERMENT:
In context of women, the concept has been dynamic3. The concept of women's empowerment
appears to be the outcome of several important critiques and debates generated by the women's
movement throughout the world, and particularly by Third World feminists. Its source can be
traced to the interaction between feminism and the concept of "popular education" developed in
Latin America in the 1970s. Empowerment demands come from Women’s groups who seek to

2
Mosedale, Sarah (2005-03-01). "Assessing women's empowerment: towards a conceptual framework". Journal of
International Development.
3
Oxfam (Forthcoming), "Women's Economic Empowerment Conceptual Framework

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empower themselves through greater self-reliance. They demand right to determine their own
choices in life. They also seek to gain control and access to resources. Empowerment is treated
as a process of developing a sense of self respect, self confidence and self efficacy. Thus
empowerment essentially refers to a feeling of awareness of one’s own situation backed up with
the knowledge, skills and information which could enable women to gain higher self esteem and
facilitate their role as decision makers in the current patriarchal society of general subordination
of women.Empowerment is considered as a multi-dimensional process, which is to enable
women to realise their full potential in all spheres of life. The focus is on power which
essentially means control over material assets, intellectual resources and ideology. In the last
three decades women-empowerment praxis world over, according to Gutierrez,4 has stressed
developing critical awareness, increasing feelings of collective and self-efficacy, and developing
skills for personal, interpersonal and social change. “In short, (women) empowerment is a
process of awareness and capacity building leading to greater participation, to greater decision
making power and control, and to transformative action”(Sahay,1998,p.22 )

Different Levels of Empowerment

As one has to view empowerment as taking place on different levels, change on all levels is
necessary if the empowerment of women is really to occur. We have to relate empowerment at
three levels: empowerment on the individual, group, and societal/ community- level and the
interaction between these. The individual level deals with individual women’s abilities to take
control over their lives, their perceptions about their own value and abilities, their abilities to
identify a goal and work towards thisgoal. The group level deals with the collective action and
sense of agency that woman experience together, in a group. The societal level deals with the
permissiveness of the political and social climate, the societal norms and the public discourse on
what is possible and impossible for women to do, how women should behave etc.

The different levels being interconnected and mutually reinforcing, women who are empowered
on an individual level will most likely go on and affect the other levels. Empowerment on a
group level like women organizing around a particular need is likely to have effect on the
individual empowerment of the women in the form of increased self esteem and sense of agency.

Three Dimensions of Women’s empowerment:

4
Deneulin, Séverine; Lila Shahani, eds. (2009). "An Introduction to the Human Development and Capability Approach:
Freedom and Agency"

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There are three dimensionsof women’s empowerment, namely social, economic and political.

Social Empowerment
According toSahay, social empowerment envisages access to knowledge, information and a
feeling of knowing from self-enquiry, strengthening her skills and capacities to mediate with the
external world on the part of a woman. It occurs at both individual as well as collective levels.
Mediation occurs relating with the outside world, with the markets, with financial institutions,
with competitors, with suppliers, with policy-makers like politicians, bureaucrats and officials,
etc. This would enhance their self-respect and self-esteem.5 From the social point of view it
looks at it from individual, group and community levels. At the group level, social
empowerment is assessed from opportunity to participate in decision making at various forums
and participation in discussions and decision making within them. And at the community level it
refers to their involvement and participation in common programmes organised by the local
community and its social action initiatives.

Economic Empowerment
Economic empowerment of women generally refers to economic independence and freedom
from poverty. It entails capacity to overcome economic hardship.

Political Empowerment
Women’s political empowerment is indicated in active participation in formal discussions,
democratic decision-making process, and conflict management on various levels of political
process. Some of the indicators for the politicalempowerment looked into were their membership
in other organizations, participation in Gram Sabha, contesting elections to Local Self
Governments and holding responsible positions in various committees at the three-tier Panchayat
system etc. Active participation in formal discussions, democratic decision-making process and
conflict management within the SHG level,6 and the efficient management of SHGs, etc also
enhance their political empowerment.

SHGs as Tools for Women Empowerment:

5
Gupta, Kamla; Yesudian, P. Princy (2006). "Evidence of women's empowerment in India: a study of socio-spatial
disparities"
6
"Contextualising the Economic Pathways of Women's Empowerment: Findings from a Multi-Country Research
Programme."

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Three experimental approaches to empowering women have been undertaken in South Asia.
They are “integrated development, economic empowerment and consciousness- raising”(Sahay,
1998, p.50).With economic empowerment stressed as the key strategyof women’sempowerment
in poor countries,Self Help Groups have emerged as one of the major tools for women’s
empowerment. Organising Self Help Groups (SHGs) for women has been popular with the Non
Governmental Organisations since 1980.7 As aptly defined by Katz and Bender (1976),"Self-
Help Groups are voluntary, small group structures for mutual aid and accomplishment of a
special purpose. They are usually formed by peers, who have come together for mutual
assistance in satisfying a common need, overcoming a common handicap or life-disrupting
problem, and bringing about desired social, and/or personal change”.SHGs are small voluntary
associations mainly women who come together to solve their problems basedupon mutual help
and self help. They have emerged as a vital tool to alleviate poverty and bring about
empowerment of women.Taking a look at the working and impact of SHGs across various
countries it can be held that SHG approach towards poverty alleviation and women
empowerment has been reasonably successful. The grameengroups ofBangladesh have emerged
as burning examples of the success story of SHGs. They often provide material assistance as well
as emotional support.8 They have also injected self confidence and security, economic
development, group solidarity and attitudinal change among the poor women ( Sahay, 1998, p.
82).

IMPORTANCE OF THE TOPIC

The Indian exploration of SHGs in assisting women financially and empowering them especially
economically began in 1991-92,when National Bank for Agriculture and Rural Development
(NABARD) launched 92 pilot projects on linking SHGs with Banks, in various parts of the
country. It aimed at providing credit to the informal SHGs of rural poor, through the banking
system, with minimal documentation. In recent times SHGs have emerged as one of the major
instruments for women’s empowerment.

The study of empowerment of poor women assumes great importance in the contemporary post
globalisation period mainly because of India’s worsening Gender Gap scenario. The sorry state
of the affairs can be known from the review of World Economic Forum in 2009. While it
hasoccupied 98th position in 2006, India ranks 114 among 134 countries in the world, even

7
Duflo, Esther . "Women Empowerment and Economic Development". Journal of Economic Literature.
8
Geleta, Esayas Bekele. "Microfinance and the politics of empowerment: a critical cultural perspective." Journal of
Asian and African Studies

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behind Bangladesh, Sri Lanka and Nepal, according to World Economic Forum ranking which
released India Gender Gap Review 2009.9 It placed the country at the bottom of the table on
health and survival issues reflecting the huge gender gap. It made strong remarks against the
wide inequalities between health facilities extended to males and females. According to World
Economic Forum’s The Global Gender Gap Index 2009, India ranks 114 while last year it was
113 (Panda2010, pp.171-172).

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.

Social justice10 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

9
Ellis, Amanda. Gender and economic growth in Kenya: Unleashing the power of women. World Bank Publications, 2007.
10
Nussbaum, Martha C. (2000). "Introduction". Women and Human Development: The Capabilities to Approach

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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.11One 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.12 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.13 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.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, 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.

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.

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

11
L. Bhasin, Labour and Employment Laws of India, 10-11 (2007)
12
A. Rathi, India’s Urban Work Boom Is Leaving Women Behind, The Hindu, (12/02/2014)
13
Trade and Gender Opportunities and Challenges for Developing Countries, U.N. Sales

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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.14

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.15 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. 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.

Sexual harassment of women in the workplace

14
M. Gupta, Women’s Rights Under Indian Labour Laws: A Socio-Legal Study of Aligarh and Agra 174 (11/11/
2013)
15
L. Walter, M. Desai & C. Caron, The Greenwood Encyclopedia of Women’s Issues Worldwide: Asia and
Oceania 160

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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.”16

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 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..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. There should be an adequate complaint mechanism, disciplinary rules, sexual
harassment awareness, defence training, and communication strategy. The 71st 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

16 nd
2 National Labour Commission Report, Report of The National Commission on Labour 155 (2002)

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prospects. Policies for the advancement of equality should therefore include measures to combat
and prevent sexual harassment.”17 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.18

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.19

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 9th of December 2013.

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.

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
17
R. Blanpain et al., The Global Workplace 321, 371, 423
18
R. Mukherjee, Legal Status And Remedies For Women In India
19
Law Against Sexual Harassment At Workplace Comes Into Effect, Times of India

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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.20

Maternity Benefits Acts

20
The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013

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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.21 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).22

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

21
Section 5 of Maternity Benefit ActRight to payment of maternity benefits
22
Section 3 of Maternity Benefit Act 1961

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Maternity Protection Convention in Article 823 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.24

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.

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.

23
Section 8 of Maternity Benefit Act, Payment of Medical Bonus
24
Labour Ministry to frame rules on creche soon - Times of India

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The FACTORIES ACT

The Factories Act, 1948 has been enacted to consolidate and amend the law regulating the
workers working in the factories. It extends to whole of India and applies to every factory
wherein 20 or more workers are ordinary employed. Since the aim and object of the Act is to
safeguard the interest of workers and protect them from exploitation, the Act prescribes certain
standards with regard to safety, welfare and working hours of workers, apart from other
provisions.

Factory

Means any premises including the precincts thereof where ten or more persons are working in
any manufacturing process being carried on with aid of power and where twenty or more
workers are working without the aid of power.25

Health

Every factory should be kept dean and free from effluvia arising from any drain, privy or other
nuisance. {Section 11}

Effective arrangements should be made in every factory for the treatment and effluents due to
the manufacturing process carried on therein, so as to render them innocuous, and for their
disposal. {Section12}

Effective and suitable provisions should be made in every factory for securing and maintaining
in every workroom; adequate ventilation by the circulation of fresh air; and such a temperatures
will secure to workers therein reasonable conditions of comfort and prevent injury to health.
{Section 13}

Effective measures should be taken to prevent inhalation of dust to prevent inhalation of dust
and fume that may produce in the course of manufacturing process. {Section 14}

In any factory where the humidity of air is artificially increased, the State Government may
make rules prescribing standards of humidification; regulating the methods used for artificially
increasing humidity of the air; and directing prescribed test for determining the humidity of the
air to be correctly carried out and recorded; and prescribing methods to be adopted for securing
adequate ventilation and cooling of the air in the workrooms. {Section 1S}

No room in any factory should lie overcrowded to an extent injurious to the health of the
workers employed therein. {Section 16}

In every part of a factory where workers are working or passing, there should be provided and
maintained sufficient and suitable lighting, natural or artificial, or both. {Section 17}

25
The factories Act 1948

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 Safety
The machinery in every factory should be properly fenced. {Section 21Only the trained adult
male worker, wearing tight fitting clothing which should be supplied by the Occupier, should be
allowed to work near the machinery in motion. {Section 22}

 No young person shall be employed on dangerous machinery, unless he is fully instructed as

to the danger arising in connection with the machine and the precautions to be observed and he
has received sufficient training in work at the machine. {Section 23}

Suitable arrangements should be made to provide striking gear and devices for cutting off power
in case of emergencies. {Section 24}

Sufficient precautions should be taken with regard to self-acting machines to avoid accidents.
{Section 25}

To prevent danger, all machinery driven by power should be encased and effectively guarded.
{Section 26}

Woman worker and children should not be employed in any part of the factory for pressing
cotton in which a cotton-opener is at work. {Section 27}

Welfare

 Adequate and suitable ‘washing facilities’ should be provided in every factory. {Section 42}

Provision should be made to provide suitable places for keeping clothing not worn during
working hours and for the drying of wet clothing.{Section 43}

In every factory, suitable arrangements for sitting should be provided and maintained for all
workers obliged to work in a standing position, in order that they may take advantage of any
opportunities for rest which may occur in the course of their work.{Section 44}

First-Aid Boxes with the prescribed contents should be provided and maintained so as to be
readily accessible during all working hours at the rate of at least one Box for every 150
workmen. {Section 45}

In every factory wherein more than 500 workers are employed there should be provided and
maintained an Ambulance Room of the prescribed size, containing the prescribed equipment and
in the charge of such medical and nursing staff. {Section 45(4)}

The Occupier should provide a canteen for the use of workers in every factory, where the
number of workmen employed is more than 250.{Section 46}

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 In every factory wherein more than 150 workers are employed adequate and suitable shelters or
rest rooms and a suitable lunch room, with provision for drinking water, where workers can eat
meals brought by them, should be provided and maintained for the use of the workers. {Section
47}

In every factory wherein more than 30 women workers are ordinarily employed there should be
provided and maintained a suitable room for the use of children under the age of six years of
such women. {Section 48}

In every factory wherein more than 500 or more workers are employed, the Occupier should
employ in the factory such number of Welfare Officers as may be prescribed. {Section 49}

Working Hours of Adult Workers

Ordinarily, a worker should not be allowed to work in a factory for more than 48 hours in any
week. {Section 51}

The workman should have one holiday for a whole day in a week. Where he was asked to work
on his scheduled weekly holiday, he should be given compensatory holiday within three days of
his scheduled weekly holiday. {Section 52}

After obtaining approval from the Inspector of Factories, the workman shall be allowed to avail
the compensatory holidays unavailed by him, within that month during which the compensatory
holidays are due or within two months immediately following that month. {Section 53}

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Other Special Provisions Related to Women in Labour Statutes in India

While there are multiple legislations aimed only at women, such as the Sexual harassment at
Workplace Act, Maternity Benefits Act, etc., a number of other statutes that are aimed at the
general working populace have special provisions for the welfare of women workers,
namely[xxvi]:

 The Mines Act, 1952

 The Plantation Labour Act, 1951
 The Beedi and Cigar Workers (Conditions of Employment) Act, 1966,

 The Contract Labour (Regulation and Abolition) Act, 1970

 The Inter-state Migrant Workmen (Regulation of Employment and Conditions of

Service) Act, 1979

 Building and Other Construction Workers’ (Regulation of Employment and Conditions

of Service) Act, 1996

 Minimum Wages Act, 1948 (ix) Payment of Wages Act, 1936

 The Employees’ State Insurance Act, 1948

 The Workmen Compensation Act, 1923
 The Employees Provident Funds and Miscellaneous Provisions Act, 1952

 Payment of Gratuity Act, 1972

Special provisions regarding the health, safety and welfare for women, social security measures
and wage protection are contained in the above-mentioned statutes. The provisions relating to the
welfare of women in all of these acts are as follows

1. Provisions for separate Latrine and Urinal Facilities – This has been provided for under
the Factories Act, 1948; the Mines Act, 1952; the Plantation Labour Act, 1951; the
Building and Other Construction Workers’ (Regulation of Employment and Conditions
of Service) Act, 1996; the Beedi and Cigar Workers (Conditions of Employment) Act,
1966; the Contract Labour (Regulation and Abolition) Act, 1970;

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2. Prohibition of work in Hazardous Occupations – This has been provided for under the
Factories Act, 1948; the Mines Act, 1952;

3. Washing and Bathing Facilities – This has been provided for under the Factories Act,
1948; the Building and Other Construction Workers’ (Regulation of Employment and
Conditions of Service) Act, 1996; the Contract Labour (Regulation and Abolition) Act,
1970;

4. Crèches – This has been provided for under the Factories Act, 1948; the Mines Act,
1952; the Plantation Labour Act, 1951; the Building and Other Construction Workers’
(Regulation of Employment and Conditions of Service) Act, 1996; the Beedi and Cigar
Workers (Conditions of Employment) Act, 1966; the Contract Labour (Regulation and
Abolition) Act, 1970; the Inter-State Migrant Workmen (Regulation of Employment and
Conditions of Service) Act, 1979;

5. Limiting hours of work to 9 hours per day and additional regulations with regards to
shifts – This has been provided for under the Factories Act, 1948;

6. Limiting the maximum permissible load to be lifted by women taking into consideration
biological factors – This has been provided for under the Factories Act, 1948;

7. Prohibition of Night work – This has been provided for under the Factories Act, 1948; the
Mines Act, 1952; the Plantation Labour Act, 1951; the Beedi and Cigar Workers
(Conditions of Employment) Act, 1966; the Inter-State Migrant Workmen (Regulation of
Employment and Conditions of Service) Act, 1979;

8. Separate Restrooms and Canteens – the Contract Labour (Regulation and Abolition) Act,
1970; the Inter-State Migrant Workmen (Regulation of Employment and Conditions of
Service) Act, 1979;

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Conclusion

It can be seen from the multiple special provisions made for the welfare of women that both at
the national and international levels, there has been a movement towards the empowerment of
women in labour law. There has been a clear move towards making equal pay, equal access to
opportunity, prevention and redressal of sexual harassment and provision of maternity benefits a
reality in India. In fact a majority of laws in relation to the special provisions for women have
been modelled after the ILO conventions.

India being a founding member of the ILO has tried very hard to stick to the standards provided
by the ILO in theory at least. The special rights provided to women in various labour laws (i.e.
The Factories Act, 1948, The Mines Act, 1952, The Plantation Labour Act, 1951, The Building
and Other Construction Workers’ (Regulation of Employment and Conditions of Service) Act,
1996, The Beedi and Cigar Workers (Conditions of Employment) Act, 1966, The Contract
Labour (Regulation and Abolition) Act, 1970, The Inter- State Migrant Workmen (Regulation of
Employment and Conditions of Service) Act, 1979, The Maternity Benefit Act, 1961, The
Employees’ State Insurance Act, 1948, The Employees’ Provident Funds and Miscellaneous
Provisions Act, 1952, The Payment of Gratuity Act, 1972, and The Workmen’s Compensation
Act, 1923, Minimum Wages Act, 1948, Payment of Wages Act, 1936 and Equal Remuneration
Act, 1976) are proof of this.[xxviii]

However it is important to note that some of these protective legislations have backfired and
proved to be counterproductive in nature. For instance the prohibition of night work by many
legislations has deprived women labourers of the agency of deciding for themselves whether or
not they would like to work at a certain time or not. In many instances women workers who are
willing to and want to work overtime or night shifts are unable to do so because of these
regulations leading to a gross denial of the right equal opportunity of employment to women.
The only way to solve such issues in socially rather than legally, i.e. by making the work
environment safer through social intervention, legal rules that are paternalistic in nature can be
relaxed.

The next level of effort that Indian needs to make is to develop effective implementation and
redressal mechanisms. The best way to ensure effective implementation of these provisions and

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redressal of any complaints is to begin implementation at a grassroots level, i.e. at the level of
individual enterprises, and employers. This will ensure that the actions are more specific in
nature and will bring about more concrete outcomes.

BIBLIOGRAPHY

Statutes
Maternity Benefit Act 1961
The sexual Harassment of women at workplace Act 2013
The Factories Act 1948

Books Referred
Anamitra Roychowdhury, Labour law reform in India
P.K Padhi, Labour and Industrial Law
Gillian Morris and Simon Deakin, Labour Law, 3rd edition

Website Referred
http://www.indiankanoon.org/doc/1649627/
http://www.e-lawresources.com/sec8-5-.php

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