Monday, 8 September 2014

Safer work places for Women. And How?

In December, 2013, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013  (“Act”) came into effect.

The Honorable Supreme Court of India in the case Vishaka vs. State of Rajasthan and others. (AIR 1997 SC 3011) had for the first time explicitly acknowledged, defined and expounded as to what constitutes sexual harassment in a workplace. While passing the judgment, the Honorable Apex Court propounded several guidelines to be adhered to and complied by organization and companies in India. The guidelines laid down in the said judgment are what came to be generically known as the Vishaka Guidelines.  

Albeit, the Vishaka Guidelines were in existence since 1997, yet time and again it was observed that the said guidelines were not implemented in form, substance and spirit.

As a consequence thereto, the legislature in the year 2013 enacted and brought into force a comprehensive legislation so as to ensure protection of women against sexual harassment at workplace by way of the Act. One might say that the Vishaka Guidelines is the genesis of the Act, however, a careful perusal of the Act would reveal that the Act in essence also broadens the scope, ambit and application of the said guidelines.

The definition of “sexual harassment” under the Act has been widened to include any direct or indirect instances which may be interpreted as sexual harassment. The Act now also provides for a mechanism to deal with every complaint with relation tosexual harassment at the work place. In terms of the Act, every employer of an organization employing 10 or more employees is mandated to constitute a Internal Complaints Committee (“ICC”) at the work place. Apart from the ICC, the Act also provides for Local Complaints Committee (“LCC”) at district and block levels, the constitution of which is entrusted upon the District Collector or Deputy Collector, as the case may be. Besides constituting an ICC and other obligations stipulated in the Act, it is also incumbent upon the Employer to provide a safe working environment at the workplace as well as create awareness within the organization of the existence of the ICC. Penalties include monetary penalty and cancellation of registration or refusal of approval required from local or Government Authority in order to carry on its businesses.

The Act r/w rules made thereunder mandates providing protection to women against sexual harassment at workplace and for the prevention and redressal of complaints of sexual harassment. The definition of the term “workplace” under the Act is wide enough to cover organized as well as unorganized sectors including government bodies, private and public sector organisations, non-governmental organisations, organisations carrying on commercial, vocational, educational, entertainment, industrial, financial activities, hospitals and nursing homes, educational institutes, sports institutions and stadiums used for training individuals. Accordingly, the corporate office and even branch offices/warehouses/units would be covered within the purview of a “workplace” under the Act.

The Act further mandates that all employers employing 10 or more employees are required to ensure certain compliances in order to implement the purposes of the Act. The term “employees” is also widely defined to mean any person employed at a workplace for any work on regular, temporary, ad hoc or daily wage basis, either directly or through an agent, including a contractor, with or, without the knowledge of the principal employer, whether for remuneration or not, or working on a voluntary basis or otherwise, whether the terms of employment are express or implied and includes a co-worker, a contract worker, probationer, trainee, apprentice or called by any other such name:

1.       Constitution of Internal Complaints Committee (ICC)

In terms of the Act, an organisation will be required to set up an ICC for each office/warehouse/unit to deal with instances of sexual harassment. The constitution of the ICC has to be broadly as follows:

a.    headed by a woman, employed at a senior level with the organisation from amongst the employees and one half of the total membership must be comprised of women.
b.   two members of ICC should be from amongst employees of the organisation who are committed to the cause of women or have experience in social work or have legal knowledge.
c.    one member of the ICC should be from an NGO or association committed to the cause of women or a person familiar with the issues relating to sexual harassment.

Apart from constitution of the ICC, the organisation must provide necessary facilities to the ICC for dealing with any complaints and conducting any inquiries such as providing assistance in securing the attendance of respondent and witnesses before the ICC, making available such information to the ICC as it may require having regard to the complaint. 

2.       Formulation of Internal Policy on Prohibition, Prevention and Redressal of Sexual Harassment

The organisation is required to formulate and widely disseminate an internal policy or charter for prohibition, prevention and redressal of sexual harassment at the workplace (the “Policy”) intended to promote gender sensitive safe spaces and remove underlying factors that contribute towards a hostile work environment against women. The Act also requires that an act of sexual harassment should be treated as a “misconduct” in the employee handbook of companies, if any.

3.       Notices

In terms of the Act, the organisation is required to display at any conspicuous place in all the organisation offices notices setting out (i) the penal consequences of indulging in acts of sexual harassment; (ii) the composition of the ICC of the organisation; and (iii) the grievance redressal mechanism available to aggrieved employees.

4.       Orientation and Awareness Programmes

The Act provides that every employer must undertake the following for effective implementation of the Policy:

(a)         carry out employee’s awareness programmes and create forum for dialogues;
(b)         conduct capacity building and skill building programmes for the members of the ICC;
(c)         carry out orientation programmes and seminars for the members of the ICC;
(d)         Declare and make the employees aware of the names and contact details of all the members of the ICC; and
(e)         Use modules developed by the State Governments to conduct workshops and awareness programmes for sensitising the employees with the provisions of the Act.

5.       Annual Reports

The ICC of the organisation will be required to prepare an annual report and submit the same to the organisation and to the District Officer.  

6.       Other Compliances:

In addition to the above, the organisation is required to comply with the following:

(a)     provide a safe working environment at all the organisation offices which shall include safety from the persons coming into contact at all the organisation offices;
(b)     provide assistance to the aggrieved woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code(45 of 1860) or any other law for the time being in force; and
(c)     cause to initiate action, under the Indian Penal Code or any other law for the time being in force, against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place.

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