December 04, 2019
Graveyard Shift in India: Employers in Bangalore / Karnataka Permitted to Engage Women Employees at Night in Factories
Similar to IT/ITeS establishments in the state of Karnataka, employers are now permitted to engage women employees in their factories during night hours, from 7 pm until 6 am.
The Government of Karnataka has issued a notification dated November 20th, 2019 (“Notification”), enabling women employees in factories to work during night hours, subject to the employer complying with certain health, safety and security conditions. Unlike IT/ITeS establishments that need to apply for a specific permission as per the Karnataka Shops and Commercial Establishments Act, 1961 in order to engage women employees at night, all factory employers have been allowed to engage women workers at night. The permission may however be withdrawn by the Chief Inspector for any specific factory in case of a failure on the part of the employer to adopt the necessary health, safety and security measures.
The Notification however clarifies that it is not compulsory or obligatory for any woman worker to work in night shifts. Only women workers who are desirous of doing so may be required to work at night and in this respect, a written consent shall be procured from each one of them.
Section 66(1)(b) of the Factories Act, 1948 (“Factories Act”) prohibits women employees from working at night. Time and again, it has been argued that such a restriction is an impediment on women employees and restricts them from carrying out a lawful employment. Such a restriction would not just come in the way of liberation of women’s rights both socio and economic but is also a major hindrance to their emancipation. In view of the same, the Madras High Court1 observed that when there is no difference in respect of the work or hours of work or work load between an adult male or woman worker in a factory, there is no reason at all to discriminate between the two, on the ground of sex alone. Neither is there a reasonable classification nor is there any nexus with respect to the objects sought to be achieved by the said provision. Accordingly, Section 66(1)(b) was held to be violative of the fundamental rights enshrined under the Constitution of India.
Having said that, the court in that case also observed that in the absence of any specific regulation or regulatory measures by way of rules or enactments, it would amount to exposing the female workers to unforeseen factors. Therefore, until such time that the Central and State governments come up with appropriate provisions and rules, it would be important for the court to lay down certain guidelines and welfare measures to be followed by employers in engaging women employees at night.
The Karnataka Government has issued the Notification in pursuance of the Madras High Court order.
Night Shift in Factories - Terms and Conditions
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:
1. Prohibition of Sexual Harassment:
2. Transportation: The employer shall provide transportation facility to the women workers from their residence and back accompanied by security guards including female security guard. The transportation vehicle shall also be equipped with CCTV cameras.
3. Other Health, Safety & Security measures:
4. Amenities and Facilities:
5. Other Terms and Conditions:
Post the Madras High Court decision, there was uncertainty as to whether the decision of the court would apply consistently across the country or would it be applicable only in the state of Tamil Nadu. Accordingly, the validity of Section 66(1)(b) of the Factories Act was questioned again before various other High Courts including the Andhra Pradesh and Karnataka High Courts. However, in the case of Natural Textiles Private Ltd. v. Union of India2, the Karnataka High Court clarified that when a High Court has already struck down a provision of a central legislation as unconstitutional, the submission that it would be applicable only to the particular state is without any basis, unless and until the said order is set aside by a higher court or by a larger bench.
Although the Madras High Court had listed down certain guidelines to be followed by employers in ensuring the safety and security of women workers and was envisaging the central and state governments to come up with appropriate rules and regulations in this respect, there were no clear-cut rules and regulations listed out by the state governments. The Karnataka State government is one of the first Indian states to come up with an exhaustive list of conditions in this respect. However, the conditions listed out in the Notification appear to be a reiteration of what was originally set out in the Madras High Court judgment in 2000, which to a certain extent may seem irrelevant and unnecessary in the current scenario. For example, in 2000, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) was not yet enacted and to that extent, the Madras High Court considered it necessary to set out detailed terms and conditions with respect to protecting women employees from workplace sexual harassment. However, given that the POSH Act has been enacted in 2013 which already outlines employer obligations in terms of preventing such incidents, the Notification did not need to contain such a reference or in terms of abundant caution, could have simply cross referenced the POSH Act in order to ensure consistency with the current legal requirements.
While on the one hand, the striking down of the night shift restriction under the Factories Act can be seen as a step ahead to ensure equality and prohibit discrimination on the basis of gender, placing onerous conditions upon employers could continue deterring employers from hiring and retaining women workers. For example, the requirement to ensure that the total number of women workers engaged in night shift shall not be less than two-third of the total strength etc. while in the best interest, may not be practically possible to comply with. Further, the Notification states that a woman employee cannot be mandated to work at night and that she may be engaged only with her consent. There is no clarity as to whether this should be a one-time consent or does the woman employee have the flexibility to withdraw her consent at any point in time (after taking up employment) or refuse to take up a night shift as and when she so chooses. Similarly, what if the woman employee is employed specifically for night shift and withdraws her consent subsequently?
While these terms and conditions are primarily meant to promote more opportunities for women while ensuring that their safety is not compromised, placing some of these onerous conditions could place the employer in a difficult situation. Other Indian States are however likely to follow a similar protocol in due course.
1 Smt. R. Vasantha v. Union of India; W.P. Nos. 4604 to 4606/1999
2 Writ Petition No. 50913 of 2003; Decided On: 12.03.2007