The Lok Sabha (the Lower House of the Parliament) has, on 3 September 2012, passed the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2012 (Bill). The Bill now remains to be passed by the Rajya Sabha (Upper House of the Parliament) and notified by the government, to become binding law. The wide ambit of the Bill and the severe consequences of non compliance are expected to have a potentially serious impact on employers failing to adhere to the provisions of the Bill.
Currently, India does not have specific legislations dealing with sexual harassment. On account of this vacuum in law, the Supreme Court of India, in 1997, delivered its landmark judgment in the case of Vishaka and Ors. v State of Rajasthan1 and laid down guidelines dealing exhaustively with the definition of 'sexual harassment', the preventive measures required to be taken by an employer and the internal redressal mechanisms required to be put in place (SC Guidelines). These SC Guidelines were intended to be applicable to all employers until a statute was enacted for the same. The Bill, in its current form reiterates several aspects of the SC Guidelines and provides much needed clarity on the procedural requirements in dealing with complaints of sexual harassment at the work place.
Analysis of the Bill
As mentioned above, the Bill retains several aspects of the SC Guidelines, including the definition of the term 'sexual harassment'2, the requirement of constituting an internal complaints committee to deal with sexual harassment complaints and the need to have an external member on such a committee. The Bill also reiterates that the workplace is not merely limited to the premises of the employer, but includes any place that is visited by an employee during and in the course of her employment.
In addition to these aspects, the Bill imposes certain obligations on an employer, including the obligation to (a) provide a safe working environment; (b) constitute an Internal Complaints Committee (Committee) and conspicuously display the order constituting the Committee; (c) organize workshops and training programmes at regular intervals for sensitizing employees; (d) provide assistance during an inquiry; (e) promptly initiate action against the perpetrator; (f) provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code or any other law in force; (g) treat sexual harassment at the workplace as a misconduct in its service rules and take appropriate disciplinary action against the same; and (h) organize orientation programmes for members of the Committee.
Further and more importantly, the Bill sets out the procedure to be followed by the Committee. The Committee is required to (i) attempt to resolve the matter by mutual settlement if requested for by the woman. A copy of the settlement so reached should be sent to the employer, the woman and the accused; and (ii) where no mutually agreeable settlement is reached, proceed to hold an inquiry and complete the inquiry within 90 days. During the period of inquiry, the aggrieved woman may request, in writing, that (i) she or the respondent may be transferred to any other work place (if applicable); (ii) she be granted leave for three months or (iii) she be granted any other relief that may be appropriate in the circumstances. Upon receiving such a request, the Committee may recommend appropriate action to the employer. The Committee is equipped with the powers of a civil court under the Code of Civil Procedure, 1908 for summoning and enforcing attendance of persons and examining them on oath and requiring discovery of documents.
The employers may, on the recommendation of the Committee, take appropriate disciplinary action against the respondent employee. In addition to this, the respondent employee may also be required to way of a direct payment to the aggrieved person (where the employee is absent from duty or where his employment has been terminated and no deduction from pay can be made).
The Bill has also introduced several new provisions, such as the need for providing a Committee at all offices of a company if they are located at different places, the constitution of a Local Complaints Committee headed by a District Officer nominated by the government (a magistrate or a collector) who can receive complaints in situations where the employer has not constituted a Committee or where the complaint is against the employer itself, etc. The Bill continues to only deal with sexual harassment in situations where a woman is the aggrieved person, and is not gender neutral despite being criticized for the same earlier.
It is very important to note that non compliance with the provisions set out in the Bill (including the failure to constitute a Committee) is punishable with Rs 50,000 in the first instance. Repeated violations are likely to result in higher penalties and cancellation of licence or registration to do business.
Keeping in mind the severe penalties set out above, employers would now be required to ensure strict compliance with the provisions of the Bill. While the Bill is not law as yet, it would be useful for employers to structure their internal policies around the Bill since this may become binding law, eventually.
Amendment to definition of 'excluded employee' under the EPF Scheme 1952 (Scheme)
The Employees Provident Fund and Miscellaneous Provisions Act, 1952 (EPF Act) and the Employees Provident Fund Scheme, 1952 (Scheme) make special provisions in respect of International workers (i.e., employees holding passports of a country other than India). The Scheme requires an employer to make contributions in respect of an international worker in accordance with its provisions, unless such international worker is an 'excluded employee'. An excluded employee, under paragraph 83 of the Scheme included an employee who is an international worker, contributing to the social security scheme of his home country, as a detached worker, in accordance with the provisions of a social security agreement entered into between India and his home country.
By an amendment dated 24 May 2012, the Ministry of Labour and Employment has extended the definition of an excluded employee to include an international worker in respect of whom the following conditions hold good:
The home country of the international worker concerned has entered into a bilateral comprehensive economic agreement (Agreement) with India; The Agreement has been entered into prior to 1 October 2008; The Agreement contains a specific clause exempting natural persons from either country from contributing to the social security fund of the host country; and The international worker continues to make contributions to the social security fund of his home country in accordance with the specific exemption clause mentioned above. By virtue of this amendment, international workers from Singapore would be eligible to be considered as 'excluded employees' under the Scheme.
Withdrawal of power delegated to Regional Provident Fund Commissioners to grant relaxation under Paragraph 79 of the Employees Provident Fund Scheme, 1952
Section 17 of the EPF Act provides that an establishment (where 20 or more employees are employed) can obtain an exemption from the provisions of the EPF Act by making an application, if such an establishment has set up a private provident fund trust to implement a social security scheme which is as or more beneficial to its employees, than the EPF Act and the Scheme. During the pendency of such an application for exemption, regional PF commissioners, under paragraph 79 of the Scheme, may grant relaxation to such establishments from compliance with the provisions of the EPF Act and the Scheme. The Employees Provident Fund Organization (EPFO) has by a notification dated 24 July 2012 withdrawn this power delegated to Regional Provident Fund Commissioners (RPFCs) in-charge of Regional/Sub- Regional offices to grant a relaxation to establishments (which set up private provident fund trusts) under paragraph 79 of the Scheme. By virtue of this notification, an order of relaxation under paragraph 79 has become redundant. Further, all establishments which currently have a relaxation and are enjoying tax benefits under the Income Tax Act, 1961 are required to obtain an exemption under section 17 of the EPF Act before 31 March 2013 to continue enjoying these benefits.
AMENDMENT TO THE PUNJAB LABOUR WELFARE FUND, 1965
Section 9-A of the Punjab Labour Welfare Fund Act, 1965 (as applicable in Haryana) mandates that an employer and an employee would be required to make labour welfare contributions to the Punjab Labour Welfare Fund at specified rates. The Haryana Legislature, by a notification dated 11 April 2012, has revised the rates of contributions required to be made under section 9A. The rates of welfare contributions have now been increased for employers and employees from Rs 10 and Rs 5 to Rs 20 and Rs 10 respectively. Therefore, an employer would now be required to mandatorily contribute Rs 20 per employee per month on his own behalf and Rs 10 per employee per month on behalf of each employee, to the Punjab Labour Welfare Fund. Commercial establishments located in Gurgaon would be required to take specific note of this amendment and remit contributions at the increased rates.
1 AIR 1997 (SC), 3011
2 Sexual Harassment includes such unwelcome sexually determined behavior (whether directly or by implication) such as (i) physical contact and advances; (ii) demand or request for sexual favors; (iii) sexually colored remarks; (iv) showing pornography; and (iv) any other unwelcome physical, verbal or non-verbal conduct of sexual nature
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