The Karnataka Government circulated a notification dated November 20, 2019, outlining conditions for the employment of women in factories registered under the Factories Act, 1948, who are employed in the night shifts (i.e. between 7 PM to 6 AM). The said notification has been published in light of the judgment of the Madras High Court, wherein it was declared that Section 66(1)(b) of the Factories Act, 1948, which permitted women factory workers to only work in the factory between 6 AM to 7 PM, was unconstitutional and violative of Articles 14, 15 and 16 of the Constitution. Additionally, the Madras High Court laid down certain conditions for ensuring the safety and interests of women working during the night shift.

In light of the above decision by the Madras High Court, the Government of Karnataka has allowed the employment of women workers during the night shift, in factories registered under the Factories Act, 1948, subject to the following conditions to be met by the employer, or persons in charge of the factory, namely, inter alia :

- To expressly prohibit any acts of sexual harassment in any form, and to lay down the mechanisms for solving such disputes in the form of rules and regulations framed prohibiting such acts, and provide appropriate procedures for the resolution, statement or prosecutions of acts of sexual harassment and prescribe penalties for the same, as well as introducing necessary amendments in the standing orders to reflect the same and providing a safe working environment for women employed in factories.

- To frame rules and regulations by the factory management relating to conduct and prohibition of sexual harassment and providing for appropriate penalties in such rules against the offenders. Female employers should be made aware of their rights, by prominently displaying and notifying the guidelines on the subject.

- To provide appropriate working conditions with respect to works, leisure, health and hygiene to further ensure that there is no hostile environment for women at the workplace and so that no woman feels disadvantaged in connection to her employment.

- In case of any criminal case, the employer shall initiate appropriate actions in accordance with applicable law and also ensure that the victims or witnesses are not victimised or discriminated against while dealing with the complaints of sexual harassment and wherever necessary, at the request of the affected workers, shift or transfer the perpetrator, if the circumstances so warrant. The employer shall also take appropriate disciplinary action if such conduct amounts to misconduct in employment.

- To maintain a complaint redressal mechanism to ensure time bound treatment of complaints in the factory itself. This complaint redressal mechanism shall provide, wherever necessary, a complaint committee, a special counsellor or other support services. The complaint committee shall preferably be headed by a woman and not less than half of its members should be women, besides a non-government organization's representative who is familiar with the issues of sexual harassment.

- To allow female workers to raise issues of sexual harassment in workers' meetings and other appropriate forums.

- In the event of an act of sexual harassment in the factory either by act or omission, to take all necessary steps to provide to assist the affected person in terms of support and preventative action.

- To provide proper lighting surrounding the factory and ensuring that the CCTV coverage is for inside the factory premises, and to all places where the female workers may move out of necessity in the course of such shift. Further, CCTV footage to be stored for not less than 45 days.

- To ensure that women workers are employed in a batch and not less than 10 and the total strength of women workers shall not be less than 2/3rd of the total work force.

- To provide sufficient security at night at the entry and exit points, and sufficient number of rest rooms for female workers to arrive in advance and leave after working hours.

- To provide separate canteen for female workers.

- To provide safe transportation to the female workers for their safe passage from their residence (if working during the night shift) and security guards (including female security guards), and equipping transportation vehicles with CCTV cameras.

- To provide proper medical and lodging services for the convenience of the female workers, including providing necessary telephone connections, and where more than 100 women workers are employed in a shift, provide a separate vehicle to meet emergent situations such as hospitalisation, in the event of injury, or incidental acts of harassment.

- In the event lodging arrangements are provided for women workers, the same should be maintained exclusively for women and shall be supervised by a female staff.

- During the night shift, not less than 1/3rd of the strength of the supervisor shift-in-charge or foreman, or other supervisory staff shall be women.

- To provide a minimum 12 consecutive hours of rest or gap should be there between last shift and night shift, wherever a woman worker is changed from the day shift to the night shift and also vice versa.

- The other provisions of the Factories Act, 1948, and rules and statutory provisions regarding the number of hours of work shall be followed by the employer.

- To appoint not less than two female wardens per night shift who shall work as special welfare assistants.

- Female workers who work the night shift and the regular shifts to have a monthly meeting through their representative with the principal employer once in eight weeks as a grievance day, and the employer shall try to comply with all just and reasonable grievances.

- To send a fortnightly report to the Inspector of Factories about the number of employees engaged in night shifts and send an express report in the event of any untoward incident to the Inspector of Factories and the local police station.

- It is not compulsory for any woman worker to work in the night shift. Written consent is to be obtained from women workers who are interested in working in the night shift. The employer is at liberty to employ women workers as a whole or in part, provided that the said directions laid down by the Karnataka Government have been complied with.

The Chief Inspector may, at any time, withdraw the permission issued to any factory, for night shift if the employer contravenes any of the provision mentioned above, in the interest of safety and security of women workers who are interested in working in the night shift.

DSK Legal's Observation : The notification provides for an elaborate list of criteria to be met by factory owners or managers, to ensure the safety of women workers in factories. The Karnataka Government's decision to allow women workers to work the night shift, is a positive step towards the growing shift in the mindsets of lawmakers, who had resisted earlier attempts to introduce such norms, over concerns of safety of women and exploitation. It should be noted that this notification comes at a time when the Karnataka Government is trying to draft new laws as part of its efforts to improve the ease of doing business in the state, update itself to suit the requirements of startups, aggregators and others, who are now dominant in the industry, that will help both the industry and to protect workers. Additionally, it also places the onus on the employer to ensure that the workplaces prevent acts of sexual harassment and provides the procedures for resolution statement, or prosecutions of acts of sexual harassment by taking all the necessary steps.

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