Labour laws have undergone a major ideological shift in recent times, from imposing a legal ban on employing women during night shifts in factories to legally requiring consent from women to employ them for the night shift. 

For years, the Factories Act of 1948 had banned the employment of women in factories in India between 7 PM and 6 AM, the only exception being the seafood processing industry. With the advent of the new Occupational Safety, Health and Working Conditions Code 2020 (OSH Code), the erstwhile Factories Act has been repealed, thus lifting the ban on employing women during night shifts. The labour laws, being a state subject, require the state governments to draft rules for implementation of the Code. Thus, the rules may vary from state to state. So far, 24 states/union territories have pre-published the draft rules under the OSH Code. 

The Rules include a set of conditions the employer is expected to satisfy as a prerequisite for employing women during the night shift. These conditions are primarily focused on ensuring the safety and welfare of women workers. 

In Kerala, the aforementioned conditions are prescribed under Rule 44 of the Kerala Draft Rules 2021. It lists down protective measures such as maintaining well-lit areas where women employees work, providing separate mess rooms, washrooms and drinking facilities near the workplace, providing transportation facilities to the doorstep of the residence of the employee, and ensuring sufficient women security, among others. Although these conditions are necessary to ensure women’s safety, they also lead to high compliance costs and increased risk of inspection and scrutiny regarding female employee-specific regulations. These factors could be perceived as barriers to the employment of women by employers, consequently tilting them in favour of recruiting men. 

Furthermore, Section 43 of the OSH Code requires employers to obtain consent from women employees to engage them in the night shift. This provision is vital since working late at night is not a regular practice for women workers in the manufacturing sector and hence, they should be given the right to decide if they want to work during night hours. However, neither the Code nor the Rules specify when exactly the consent has to be taken and under what circumstances it can be revoked. 

While the provision of consent empowers women, it is discriminatory against men as there is no legal mandate to take their consent for engaging them in the night shift. It should also be noted that if a woman employee refuses to give her consent to work during night hours, it may have a direct impact on her chances of getting employed or in getting promoted. As employees are allotted night shifts on a rotational basis, if women employees do not give their consent for night work, the male employees will be forced to continue working that shift. In the absence of this choice given to men, employment in the sector again becomes more inclined towards male employees as compared to women, making the law counterproductive. The law lacks clarity as to how such situations should be dealt with.

The OSH Code has brought a major progressive change in the manufacturing sector by removing many of the erstwhile legal restrictions on the employment of women in factories. However, the corresponding State Rules require a more refined set of rules that would enable a higher female labour force participation rate. While framing the rules, the Government must consider how employers could be incentivized to hire more women employees rather than imposing safety conditions that act as hurdles in disguise. Further, the responsibility of providing safety, security and transportation services should not be placed solely on the employers. It is also the duty of the state to provide the services necessary to facilitate the smooth functioning of economic activities in the state and the role of law should be to enable more employment opportunities for women.

This was first published on Friday, 13th January 2023, in ‘ Southlive.in’ Read it here…

Views expressed by the author are personal and need not reflect or represent the views of the Centre for Public Policy Research.

April Suzanna Varkey

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April Suzanna Varkey is an Associate, Research at CPPR. She is a CA finalist and a B.Com. graduate with majors in Accountancy and Finance. As part of the chartered accountancy course, she did her three years of articleship from Sankar and Moorthy Chartered Accountants, Trivandrum. Her association with CPPR began with a two months’ internship as Research Intern. April is interested in engaging in activities that create a social impact. She has volunteered in the audio recording of books for The Kerala Federation of the Blind, edited a book on creating awareness among teachers and parents on online abuse of children and cyber security laws, for the Kerala Police Academy and has participated in the International Conference for Gender Equality – II as a rapporteur.

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