Employment of Women under the OSH Code

The section is one sentence and carries four separate propositions. Take them one at a time, because an examiner will.

1. All establishments. No establishment is closed to women. That includes a mine, and it includes work below ground, which the Mines Act 1952 prohibited outright.

2. All types of work. No category of work is closed to her either, subject only to section 44 and to the general hazardous process provisions.

3. Night work is permitted, but only with her consent. The hours named are before 6 a.m. and beyond 7 p.m., which are the old statutory limits. The consent requirement is the safeguard which replaces the prohibition, and it is individual: it is her consent, not her union's and not a term in a standing order.

4. Subject to prescribed conditions. The appropriate Government may prescribe conditions relating to safety, holidays and working hours, and any other condition to be observed by the employer.

Two points that get answered wrongly.

The consent requirement attaches only to the night work. The entitlement to be employed in all establishments for all types of work is not expressed to depend on consent; consent is the condition of working before 6 a.m. and beyond 7 p.m.

The conditions are on the employer. The closing words say "any other condition to be observed by the employer". The burden of the safeguards is his, not hers.

Section 44: dangerous operations

Where the appropriate Government considers that the employment of women is dangerous for their health and safety in an establishment or class of establishments, or in any particular hazardous or dangerous process in such an establishment, due to the operation carried out therein, that Government may, in the prescribed manner, require the employer to provide adequate safeguards prior to the employment of women for such operation.

Read section 44 against what it replaced and the change is plain. The old law's answer to a dangerous operation was to prohibit the employment of women in it. This section's answer is to require safeguards first. The employment is not forbidden; it is conditioned.

Four elements:

• the appropriate Government forms the view;
• the danger must be to their health and safety, arising due to the operation carried out;
• it may attach to an establishment, a class of establishments, or a particular hazardous or dangerous process within one;
• the requirement is adequate safeguards prior to the employment of women for that operation, in the prescribed manner.

Note that section 44 does not empower a prohibition. The Government may require safeguards; it is not given power to close the operation to women.

The benefit follows the work, not the label

Chapter X is about access to work. The corresponding question on the benefit side is whether a woman in irregular employment gets the protections the law gives, and the leading authority answers it.

Municipal Corporation of Delhi v. Female Workers (Muster Roll), AIR 2000 SC 1274.

Facts. Women engaged by the Municipal Corporation of Delhi on the muster roll, on daily wages, did heavy work on construction and road maintenance, including digging trenches. Maternity leave was granted to regular female employees and refused to them because their services had not been regularised. Their union took up their case and the question whether muster roll women should be given maternity benefit was referred to the Industrial Tribunal, which decided in their favour. The Corporation challenged that award.

Held. The Special Leave Petition was dismissed and the award upheld. There is nothing in the Maternity Benefit Act which entitles only regular women employees to the benefit and denies it to those engaged on a casual basis or on muster roll on daily wages. Article 42 of the Constitution, which speaks of just and humane conditions of work and of maternity relief, though not enforceable at law, is available for determining the legal efficacy of the action complained of. The principles in Article 11 of the Convention on the Elimination of All Forms of Discrimination against Women are to be read into the contract of service, and so read those women become entitled to all the benefits of the Act.

Why it matters here. Because section 43's entitlement to be employed in all establishments for all types of work is worth much less if the woman who takes up that work is then treated as outside the protective legislation because of how she is engaged. The two propositions belong together: she may do the work, and the protections follow her into it whatever the form of the engagement. Note the statute: the case was decided under the Maternity Benefit Act 1961, repealed by item 5 of section 164(1) of the Code on Social Security 2020, whose Chapter VI re-enacts the scheme.

A worked example

Deepa applies for a job as a machine operator at an automobile plant which runs three shifts, including a night shift from 10 p.m. to 6 a.m.

May the plant refuse her because the job has always been done by men? No. Section 43 provides that women shall be entitled to be employed in all establishments for all types of work under the Code.

May it employ her only on the day shifts? Not as a matter of law. Section 43 permits her employment before 6 a.m. and beyond 7 p.m., so the night shift is open to her.

Must she work nights? No. The night work is permitted with their consent, so it is her decision.

What must the employer do if she consents? Observe the conditions the appropriate Government prescribes relating to safety, holidays and working hours, and any other condition to be observed by the employer.

The plant says it will employ her at night if she signs a general consent in her appointment letter. The section requires her consent to the night work. A blanket clause signed at appointment is a weak basis for saying she consented to a particular night shift, and the safer reading, and the one an examiner is looking for, is that consent is real and specific.

Now a mine. Deepa applies to work below ground.

Is she barred? No. Section 43 opens all establishments and all types of work, and a mine is an establishment under section 2(1)(v)(iv). The Mines Act 1952, which prohibited the employment of women below ground, stands repealed by section 143(1)(c).

The process involves a dangerous operation. The appropriate Government, if it considers the employment of women dangerous for their health and safety in that establishment or in that particular hazardous or dangerous process due to the operation carried out, may require the employer to provide adequate safeguards prior to the employment of women for it: section 44.

Can it simply forbid her employment there? Section 44 does not give that power. It permits a requirement of adequate safeguards prior to the employment, not a prohibition.

What facilities must the plant provide for her? Under section 23(2)(viii), latrine and urinal accommodation for male, female and transgender employees separately, kept hygienic; under section 24(1)(i) and (ii), washing facilities for male and female employees separately and bathing places and locker rooms for male, female and transgender employees separately; and under section 24(2)(iii), separate rest rooms; and where more than fifty workers are ordinarily employed, rules may require a creche for children under six under section 24(3).

She later becomes pregnant. That is the other Code. Chapter VI of the Code on Social Security 2020 gives her twenty-six weeks of maternity benefit, protects her employment under section 68, and gives nursing breaks under section 66.

Suppose she had been engaged on a daily wage muster roll. Following Municipal Corporation of Delhi v. Female Workers (Muster Roll), the protective legislation is not confined to regular employees, and section 60(1) of the Code on Social Security speaks of "every woman".

What this does NOT mean

Section 43 does not compel night work. It is permitted with their consent.

It does not leave a woman unprotected. The employment is subject to prescribed conditions on safety, holidays and working hours, and to section 44 for dangerous operations.

Section 44 is not a power to prohibit. It permits a requirement of adequate safeguards prior to employment in the operation.

The old prohibitions are gone. The Factories Act 1948 and the Mines Act 1952, which contained them, are repealed by section 143(1)(a) and (c).

Section 43 is not about maternity. Maternity benefit, employment protection during pregnancy, nursing breaks and the creche entitlement are in Chapter VI of the Code on Social Security 2020.

Limits and criticism

The whole protection now rests on rules that may not exist. Section 43 opens all work to women subject to conditions as may be prescribed. Until those conditions are prescribed, the entitlement operates and the safeguards do not, which is a real objection and the strongest point available in an essay against the section.

"Consent" is undefined and easily manufactured. A worker who needs the job is not well placed to refuse a night shift, and the Code provides no mechanism, such as a written and revocable consent or a right to return to day work, to make the consent meaningful.

Section 44 requires safeguards but sets no standard. What is "adequate" is left to the prescribed manner, and no power is given to stop the operation if the safeguards prove insufficient.

Nothing in Chapter X addresses transport home after a night shift, which is the practical safety question night work raises, though it may be covered by conditions prescribed under section 43.

The Chapter is silent on discrimination in hiring. Section 43 confers an entitlement to be employed in all establishments for all types of work, but the Code creates no remedy for a woman refused a job because she is a woman.

Quick revision

• Section 43: women shall be entitled to be employed in all establishments for all types of work; and may be employed before 6 a.m. and beyond 7 p.m. with their consent, subject to conditions on safety, holidays and working hours and any other condition to be observed by the employer, as prescribed by the appropriate Government.
• The old bar on women working at night in factories, and below ground in mines, is gone with the repeal of the Factories Act 1948 and the Mines Act 1952 by section 143(1)(a) and (c).
• Section 44: where the appropriate Government considers the employment of women dangerous for their health and safety in an establishment, class of establishments, or a particular hazardous or dangerous process, due to the operation carried out, it may require the employer to provide adequate safeguards prior to the employment of women for that operation. It is not a power to prohibit.
• Related facilities: section 23(2)(viii) separate latrines for male, female and transgender employees; section 24(1)(i) and (ii) washing, bathing and lockers; section 24(2)(iii) rest rooms; section 24(3) creche.
• Maternity is the other Code: Chapter VI of the Code on Social Security 2020.

Test yourself

1. State section 43 in one sentence. Women shall be entitled to be employed in all establishments for all types of work under the Code, and may also be employed, with their consent, before 6 a.m. and beyond 7 p.m., subject to such conditions relating to safety, holidays and working hours, or any other condition to be observed by the employer, as the appropriate Government prescribes.

2. May a woman be employed below ground in a mine? Yes. Section 43 opens all establishments and all types of work to women, and the Mines Act 1952, which prohibited it, is repealed by section 143(1)(c).

3. Can an employer require a woman to work a night shift? No. The employment of women before 6 a.m. and beyond 7 p.m. is permitted with their consent.

4. What may the appropriate Government do about a dangerous operation? Where it considers the employment of women dangerous for their health and safety in an establishment, a class of establishments, or a particular hazardous or dangerous process, due to the operation carried out, it may in the prescribed manner require the employer to provide adequate safeguards prior to the employment of women for that operation: section 44. It is not given power to prohibit the employment.

5. What is the strongest criticism of section 43? That the protection it substitutes for the old prohibitions consists entirely of conditions "as may be prescribed", so that until those conditions are prescribed the entitlement operates while the safeguards do not; and that "consent" is undefined and hard to make real for a worker who needs the job.

6. How does Municipal Corporation of Delhi v. Female Workers (Muster Roll) bear on this Chapter? It holds that protective legislation for women is not confined to regular employees and reaches those engaged casually or on a muster roll on daily wages, reading Article 42 of the Constitution and Article 11 of CEDAW into the contract of service. Section 43's entitlement to work is worth little unless the protections follow the woman into that work whatever the form of her engagement. It was decided under the Maternity Benefit Act 1961, now repealed and re-enacted as Chapter VI of the Code on Social Security 2020.