Author: Nandini Srivastava, III year of B.A.,LL.B(Hons) from Manipal University, Jaipur
Article 14 of the Constitution of India, 1949 clearly mentions that every person in the State shall be given equality before law and equal protection of laws. Article 15 of the same provides that no person shall be discriminated on the grounds of only sex, religion, caste, race and place of birth. Despite the fact that these two Articles are part of the fundamental rights which form the base of every other laws in the country, the law makers at times infringe it by making certain provision which gives additional benefits to the women and the children.
The Occupational Safety, Health and Working Conditions Code, 2020 and Code of Wages, 2019 is also not different in this context. They also provide additional safeguards to women and children. They are:
OCCUPATIONAL SAFETY, HEALTH AND WORKING CONDITIONS, 2020
Key terms:
Adult: It refers to the person who has completed the age of 18 years. It is defined under section 2 (b) of the code.
Adolescent: It means a person who has completed 15 years of age but has not completed the age of 18 years. It is mentioned under 2(a) of the code.
WOMEN
Section 43 stipulates that women have the right to be employed in all the establishments to do all or any kind of the work in it but if they are required by the employer to work before 6 AM or after 7 PM then their prior consent has to be taken keeping in mind the rules and regulations prescribed by the appropriate government in context of safety, holiday, working conditions along with working hours.
Section 44 prescribes that if the appropriate government is of the opinion that employment in an establishment or classes of establishments or in any of the process or processes of the establishment is likely to create disadvantage to the health and safety of the women then it can bound the employer to create additional safeguards apart from the regular safeguards. Only after arranging the prescribed safeguards can employer employee women. The regular safeguards being those mentioned in section 23 are arrangements for cleanliness, hygiene, ventilator, temperature, humidity, environment free from all kind of impurities, portable drinking water, urinal accommodation for all genders, adequate lighting, treatment of waste as well as effluents and adequate standards to ensure that overcrowding in the place of work does not takes place or any other as such central government deems fit.
The provision 24 mentioned in this code clearly asserts that any establishment where 50 or more than 50 workers are currently employed or were employed in any day of the preceding 12 months, the employer is strictly required to provide welfare facilities for all the employees. Among all the welfare facilities, the subsection (3) provides for the set- up of a crèche or, a room for the children of the employees who are below the age of 6 years. This facility shall be in the same location of the establishment or at a suitable location from there.
Subsection (b) of section 82 states that the state government where the manufacturing process or operation carried on has the potential to expose any person to serious bodily injury, poisoning or disease then it may prohibit the employer of such process or operation from recruiting pregnant women.
Only central government under section 136 consistent with the code can make provisions for prohibiting, restricting or regulating the employment of women in case of mines or classes of mines or any other establishments where there is danger to life, safety and health of such person or for limiting the weight of any single load carried by such person.
CHILD
Section 25(4) prescribes that in case of a child the working hours shall not be the one mentioned in the code rather it would be that which has been mentioned in the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986. The Child and Adolescent Labour (Prohibition and Regulation) Act, 1986 provides that work hours for ever day shall be fixed which shall not be less than 6 hours. Each child after 3 hours has to be given break of at least an hour only after which he can be made to work. The 6 hour time limit cannot be increased and has to inculcate in it the time given for break. No child shall be permitted to work between 7 PM to 8 AM. No child can do overtime and will not be allowed to work in any establishment if he has worked in any other establishment on that day notwithstanding whether it was owned by the same employer or not or whether he has worked for 6 hours or not. In other cases, the number of working hours fixed is 8 hours.
One of the provisions under this law that is section 32 expresses that in case an adolescent has completed 180 days of work in a year he shall be entitled to one leave for every further 15 days of work. In other cases, it is one leave for every 20 days.
Section 42 lays down that the appropriate government may prescribe that a medical practitioner be appointed in factories, mines, motor transport undertaking and in any other establishment who shall be the medical officer for ascertaining whether the adolescent is fit for work.
Section 70 postulates that no person below the age of 18 years will be allowed to work in any mine or any part thereof. But, along with it, it also mentions that no one can be employed yet people of the age group 16 – 18 can be trainees or apprentices in it. The trainees and apprentices can only be appointed with the prior approval of the Inspector cum Facilitator or Chief Inspector Facilitator.
They are required to work under the supervision of manager or occupier of the factory. In such case, the central government may also direct the employer to do medical examination of those people to be appointed as apprentices or trainees to make sure that they are not below the age of 16 years and are fit enough to work in the given establishment of process.
PUNISHMENT
Any person other than those who have been exempted under this code, if contravenes any of the provision regarding regulation, restriction or prohibition of women or any one below the age of 18 years shall be punished under section 97. The person will be liable to penalty of not less than Rupees 50,000 but which may be extended to Rupees 2, 00,000.
CODE OF WAGES, 2019
This code does not provide an extensive list of section as the previous one mentioned in this article provide.
Section 3 of the said code says that there should be no discrimination done by the employer on the basis of the gender of the employee. The employer cannot reduce the wages of an employee in respect of same work or work of similar nature. He shall also not make any discrimination while recruiting for work of same nature or similar work on in the working conditions except where employment of women is prohibited or restricted under this code or any other law for the time being in force.
CONCLUSION
Both the codes surely provides that additional arrangement be made in case of women or child employees and at places or restricts their employment but it cannot be held violative of the Constitution of India, 1949 articles 14 and 15. As article 14 permits for reasonable differentiation. It is based on the notion that like should be treated as like and alike should be treated as alike. We cannot say that it is violation of article 15 because even the sub clause (3) presents that the state can make special provisions for the benefit of the women and children. And, as a writer of this article, I assume this to be a positive discrimination done for the betterment of both the groups of people and not just because they are “women” or “children”.
After all, the aim of all the labour laws is to achieve what is mentioned under the Directive Principles of State Policies. Article 39 states that the state shall make policies which ensure that both men and women are given equal pay for equal work. Law makers while making the laws also ensures that the health and strength of workers whether of men, women and children are not abused because of their economic difficulties that is they by any chance are not compelled to enter a vocation not suitable for them.
Article 42 asserts that the state shall make provisions for maternity leave and just as well as humane conditions of work. Though, DPSP’s are non – enforceable and non – justifiable yet the law makers have to always keep it in mind while framing the laws because laws made are just a road to these goal that our Constitution makers wanted to achieve.