India: Night Shift For Women In Haryana

Last Updated: 6 November 2017
Article by S.S. Rana & Co. Advocates

Introduction:

Recently, the Haryana Government, vide its notification dated August 17, 2017 has provided a long list of compliances and statutory obligations which are to be adhered to by employers, if they wish to employ women for night shifts.

"It is of the very nature of a free society to advance in its standards of what is deemed reasonable and right. Representing as it does a living principle, due process is not confined within a permanent catalogue of what may at a given time be deemed the limits or the essentials of fundamental rights."1

Law and Social Dynamism:

Whether or not women should be allowed to work through night shifts is more of a social question, and in India, with a touch of morality – a moral one too. But with various High Courts such as those of Madras2, Andhra Pradesh3, Gujrat4, Karnataka5, all giving an approval nod to employment of women in night shifts, we take it upon ourselves to analyse the aspect from a legal-standpoint.

It happens more than often, the law works as an excellent tool towards removing the ambiguity induced by social 'ethics' and moral 'values' in society. It harnesses the subjectivity caused due to the two sides of moral view points! A successful legislation is the one where the laws are modified to keep them in pace and at par with the social dynamism of the society. A law behind the societal standards can only diminish to redundancy. Considering the year (1948) that suffixes the Factories Act, it is clear that such an important social legislation should undergo metamorphosis according to the needs of the society. We believe the Haryana Government's notification could not have come at a more appropriate time, when women are taking non-discriminatory treatment at workplaces with utmost seriousness.

ILO and night shifts:

During 1919, the ILO conventions completely prohibited women workers and employees from working on night shifts except in case of unforeseeable force majeure events. However, according to the International Labour Organizations' 89th Convention, Article 5-16 state that

5.1 "The prohibition of night work for women may be suspended by the Government, after consultation with the employers' and workers' organisations concerned, when in case of serious emergency, the national interest demands it:

5.2. Such suspension shall be notified by the Government concerned to the Director-General of the International Labour Office in its annual report on the application of the convention."

As of now, there are less than 20 countries that do not prohibit women from working at night shifts. In some countries this is not a new situation, in others, such as Barbados, Canada, Guyana, Ireland, Israel, New Zealand, Spain and Surinam, laws prohibiting night work by women workers have been repealed, mostly over the last ten years.

Unconstitutionality:

Upon collective perusal of the various cases of the various High Courts7, it is clear that the constitutionality of Section 66 of the Factories Act, 1948 has been challenged owing to the perceptions that there is no intelligible differentia for the classification of women, as provided under the Section and prohibition mandated thereof and that there is no rational nexus between such classification and object the law seeks to achieve.

In all the above referred High Court judgements, the validity of Section 66 of the Factories Act, 1948 was challenged for being violative of the fundamental rights enumerated under Articles 14, 15, 19 and 21 of the Constitution of India. Basing its orders upon the detailed observations made by the Hon'ble Madras High Court in Case No. W.P.4604-06 of 1999 and in other matters, the Haryana Government, playing the role of a solemn executor of the Court's mandate, released a notification allowing women to work in night shifts.

Notification by the State Government of Haryana:

Vide this notification the State Government of Haryana has allowed the employment of women workers in the factories during night shifts i.e. from 07.00 P.M. to 06.00 A.M. The Notification stated that the Hon'ble High Court in this judgment has also laid down certain conditions for employing women in night shift in respect of their security and safety, now the said provision will not create any obstruction to the working of women in the factories during night shifts.

Any factory in the State, registered under the Factories Act, 1948 may apply for this exemption, which would be valid for a year from the date of its publication.

Conditions for exemption: Out of the 25 different compliances required to be adhered by the employer, under the notification, the major ones are discussed below:

  1. Mechanism to Curb Sexual Harassment:

    1. Employer's obligation to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, statement or prosecution of acts of sexual harassment by taking all steps required.
    2. Steps such as prohibition of sexually unwelcome behaviors, creating code of conduct to employees, penalizing offenders to prevent sexual harassment, are to be taken by employers and management.
    3. Employer to initiate appropriate action in accordance with the penal law and ensure that witnesses are not victimized while dealing with the complaints of sexual harassment.
    4. Employer to maintain/ appoint a complaint redressal mechanism by way of a Complaint Committee (preferably headed by a woman and members of NGOs dealing with cases of sexual harassment) or a special counselor in the factory and ensure time-bound treatment of complaints.
    5. Women workers are to be employed in batches having atleast 10 women and the total of the women workers employed in a night shift shall not be less than 2/3rd of the total strength.
  2. Infrastructural compliances:

    The employer shall provide:

    • proper lighting,
    • sufficient women security,
    • work sheds to arrive in advance,
    • separate canteen facilities,
    • transportation facility with CCTV installed in all vehicles,
    • medical facilities which would include ambulance at their disposal in appropriate cases,
    • lodging arrangements to have women wardens, etc.
  3. Security

    During night shift not less than 1/3rdof strength of the supervisors or shift-in-charge or foreman or other supervisory staff shall be women.
  4. Welfare:

    There shall be not less than twelve consecutive hours of rest or gap between the last shifts and the night shift wherever a women worker is changed from day shift to night shift and so also from night shift to day shift.

    Apart from the facilities, which are permissible under the Factories Act, an additional holiday shall be permitted for the women workers during their menstruation period, which shall be a paid holiday for the night shifts.

    The female workers who work in night shifts and regular shifts shall have a monthly meeting through their representatives with principal employer once in eight weeks as grievance day and the employer shall try to comply all just and reasonable grievances.
  5. Report to the Inspector of factories:

    The employer shall send a fortnightly report to the Inspector of Factories about the details of employees engaged during night shifts and shall also send express report whenever there is some untoward incident to the Inspector of Factories and local Police Station as well.

Conclusion:

One would observe that the compliances under the said notification are extremely detailed and a commendable effort on the part of the legislature to balance gender equality vis a vis women's safety. "Corporately speaking", even though the country is putting up an aggressive effort to ensure the men and women are equal in all walks of life, for factories and corporations where production targets govern every rupee spent, to achieve such infrastructural standards seems a little difficult.

Morally wondering, if so many number of compliances are required just to ensure that women can work at night shifts, then a very dark question stands in our faces- Is women's safety at work places a matter of statutory obligation of industries or a genuine moral duty of each citizen?

Footnotes

1 JUSTICE FRANKFURTER, in Wolf v. Colorado

2 Madras High Court in Case No. W.P.4604-06 of 1999

32002 (5) ALT 223, (2002) IIILLJ 320 AP

4 C/SCA/2984/2012

5 ILR 2008 KAR 2221, 2007 (3) KarLJ 286

6 International Convention on Night Work of Women employed in Industry (Revised 1948) Convention No. 89

7 First given by the Madras High Court in Case No. W.P.4604-06 of 1999

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
S.S. Rana & Co. Advocates
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.