-by Prof.V.Nagarj, (Asst.Professor, National Law School of India University, Bangalore)
  and Mihir Desai,(Advocate, Human Rights Law Network)

Prof.V.Nagar: To realise the Constitutional mandate of equality for men and women, women must be actively associated with national development and there should be a policy for promoting women's employment and protecting women's rights at the workplace.

The Equal Remuneration Act of 1976 provides for payment of equal remuneration for men and women and if there is any memorandum of understanding signed between the management and workers, wherein the workers agree to the payment of lowerwages for women than men, such a contract will be invalid. If a woman agrees to take lower wages than that paid to a man, that agreement also will be void.

The difficult task is how to ensure that there is no discrimination while making appointments, especially at the entry level. When the interview is conducted and when the employer is selecting the employees, how do you ensure that he gives preference to merit alone and not to sex? It will be very difficult at this stage to determine that the employer does not contravene the provisions of the Act. The legislators have thought of constituting an Advisory Committee and this committee can be given the responsibility of  looking into the number of women employed in any organisation and the ways of increasing their number in that organisation. The problem here is that the power is totally within the control of the government. After creating the Advisory Committee, it will have to specify which industries this committee will have to make enquiries and their power will be limited to thsoe industries notified by the government, though in reality this is done very rarely.

I think here, the National Commission for Women should take up this issue and see that it is given the power to examine any of the public sector undertakings or the private sector as to the proportion of male and female employees.

The Minimum Wages Act says that irrespective of the employers's capacity to pay, the minimum wages have to be paid. Even if the employer is making losses, he has to pay or else he has no right to carry on that business or trade. Looking at the reality, we have not yet succeeded in ensuring minimum wages for all the workers and there is a lot of exploitation in the informal sector though
it prevails even in the private organised sector. The State has failed to ensure the payment of even the minimum wages. Equal remuneration is a dream, at least in the informal sector.

But in the formal sector, where trade unions exist and are powerful, there is no difficulty and they get all these benefits which are absent in the informal or the unorganised sector. They have to depend on the government machinery or the Labour Inspectorate which has been a total failure because there is no accountability on their part. There are hardly any prosecutions against any employers, particularly in the unorganised /informal sectors.

The Maternity Benefit Act, 1971, is not applicable to establishments with less than ten workers and to the factories and the industrial establishment covered by the Employees State Insurance Act, although it provides better facilities in  other respects. I think that with the increase in liberalisation and the increase in computerisation, many new and smaller units will come up and it will be grossly unfair to deprive the women employed here, of the benefits of this Act. It should also include mothers who have adopted chilren.

The implementation of this Act is very poor. Though the government has enacted these legislations, the government has itself issued circulars to its employees that this Act is restricted to two children only. Even the State Government has done the same and employers in public sector units have entered into agreements with their employees, restricting the benefits to two or three children only.

In factories employing 30 or more women, there is a provision for creche facilities to take care of their children, till they reach the age of six. But, you find no such facilities in the service sector. In hospitals and educational institutions, where more and more women are getting employment there is no law, providing for creche facilities. This creche facility must be extended to other service sectors also.

`Beedi' manufacturing is also an industry, and they have a special legislation for that, where a provision exists for establishments employing over 50 workers (women) whereas in the general category, it exists for factories employing 30 or more workers.

In the Mines and Cigar Workers Act, the employment of women in the night shift is prohibited. Between 7.00 p.m .to 6.00 a.m. women cannot be employed, but they can be employed upto 10.00 p.m. with special permission and from 5.00 a.m. in the morning, where the employergivers the assurance that he will provide transport facility. If we compare it to the service sector, the same facility does not exist for nurses or women doctors in the hospitals.

In the electronics industry, more and more skilled women workers can work. But if they employ women, they cannot be put to work in the night shift, so they prefer employing men. Therfore, these legislations have worked as a sort of detriment to the employment of women workers, although they have been made to help women workers. Working on night shifts and overtime should be left to the discretion of the women concerned.

Mihir Desai: The Constitution clearly states that the State shall not discriminate in matters of employment, but it does not say that non-state bodies shall not discriminate. As far as the private sector is concered, you have to Equal Remuneration Act, which includes no discrimination against women, in recruitment. So the law does provide an avenue of challenging such matters.

If you look at the implementation of any of these Acts, I think, it is a big zero, because it does not even come close to one percent. So the problem lies with the implementing machinery. I do not know of a single case, where an inspector has actually gone and checked, whether 30 women are employed in a factory, so that a creche can be provided.

So you have to talk of alternate strategies whereby these laws are actually implemented . In respect of violation of any laws with respect of womne, you should have:

• Special courts, dealing with those issues, headed and conducted only by women;
• Any person who is aware of such a violation should be entitled to raise the issue, before this special court; and
• If any benefits are not provided or there are any case sof harassment, that is pending before the said court, the concerned woman cannot be removed from service without the prior permission of this court.

Wages should be asked for doing housework: Both men and women go to work and women come back and attend to the housework for three to four hours without receiving anything extra for it. I feel that women should demand wages for doing housework.

There is tremendous apathy on the part of the trade unions towards the construction workers. This Ordinance, which came into force on November 3, 1996, and a Government Pension Scheme has been promulgated . The government is bound to rush through the Ordinance and Bills, but there has to be a larger public debate on the issue, focussing the attention of the public on what should be done for the construction workers.

You can have portable creches or a mobile hospital or a mobile kitchen. Licenses should be given to women's organisations for providing subsidised lunch during working hours or women's organisations could provide trained ayahs (maid servants) at construction sites.