The labour reforms process and the formulation of new labour codes were initiated when the country was witnessing meagre participation of women in the labour force. The First National Commission on Labour (NCL), 1969, recognised women’s right to employment and recommended protective legislation prohibiting discrimination.
Similarly, the second NCL in 2002 reiterated the need to provide special attention to women workers. Women’s participation in the labour force in India was as low as 22% in 2017–18 but increased gradually to 31.7% during 2021–22, as reported by the Periodic Labour Force Survey. However, the increase is attributed to a rise in self-employment, which remains least protected by labour legislation.
In alignment with the recommendation of the second NCL, 29 Central acts were subsumed under four codes—(i) The Code on Wages, 2019 (ii) The Code on Social Security, 2020 (iii) The Industrial Relations Code, 2020, and (iv) The Occupational Safety, Health and Working Conditions (OSH) Code, 2020. The reforms are a significant step in India’s regulatory framework towards promoting employment while protecting workers’ rights and encouraging ease of doing business. Though the codification process would lead to several changes in labour and employment processes, it is important to reflect on its implications for women workers.
Gender gaps in labour market participation, women’s early exit from the labour market, and their excessive participation in unpaid and care duties are big challenges that need to be addressed from a larger policy perspective towards improving female labour force participation. But how far these issues are addressed in the new labour codes remains a larger question that requires serious attention.
Maternity protection, an important social security provision under Section 60 of the new Labour Code on Social Security, 2020, states that “every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit at the rate of the average daily wage for the period of her actual absence.” As per the Maternity Benefit Amendment Act, 2017 (now subsumed under the Social Security Code 2020), the woman is entitled to 26 weeks of maternity leave, provided she should have worked in an establishment for at least 80 days in twelve months. This provision is way ahead of the International Labour Organisation’s (ILO) Maternity Protection Convention, 2000, which stipulates a minimum of 14 weeks of maternity leave.
With the 2017 amendment, India has joined the ranks of countries providing generous maternity leave and has emerged as one of the top nations in the entire Asia Pacific region, faring better than countries like China, Pakistan, South Korea, Singapore, and developed regions like Germany and the United States. The new amendment also mandates crèche facilities for establishments with 50 or more employees, includes work from home and extends to surrogate and adoptive mothers.
Though the legislation intends to positively impact women’s health and well-being, thereby boosting female labour force participation, implementing the legislation in the informal sector has been challenging. Also, the legislation does not include a provision for parental or shared parental leave, something which is extremely important to address gender inequalities in households to encourage women to sustain themselves in the labour market. The issue of maternity financing is also significant, wherein the burden of responsibility is completely on the employer, unlike several other countries where the State and the employer share it. The ILO’s 2014 report, Maternity and Paternity at Work: Law and Practice Across the World, comparing 185 countries, highlighted that 58% of countries provided cash benefits through national social security schemes, in 16% of countries the cost was shared between the employers and social security systems, and only in 25% of countries the liability solely fell on the employer. It stated that employers’ liability schemes financially burden employers and work against the interests of women workers, thereby leading to discrimination against women. It is important to revisit the maternity legislation to promote a more inclusive approach by streamlining social security and sectoral funds towards maternity funding to provide access to women in the informal sector.
The OSH Code, 2020, comprising 13 laws, in Chapter 10, titled ‘Special Provisions Relating to Employment of Women’, has enabled night work for women, which was earlier prohibited under the Factories Act, 1948. Section 43 of the Code states that women shall be entitled to work before 6 am and beyond 7 pm with their consent. The Draft Central Rules (Section 67) have mentioned that adequate transportation facilities (pick and drop at residence) are to be arranged by employers, which may be challenging for employers of Micro, Small and Medium Enterprises (MSMEs) lacking the financial resources to implement this, thereby discouraging them from hiring women. The Standing Committee on Labour, in its fourth report on OSH Code, had pointed out that the provision of crèche facilities could be expensive for the MSME sector.
Hence, an enabling provision was included in Section 24(3) of the OSH Code for common crèche facilities, wherein it was stated that a cluster of small-scale industries could pool their resources to set up a common crèche. But this provision has not touched upon the implementation aspect.
Though the new labour codes are expected to improve women’s employment while promoting access to social security, several gaps must be addressed. While the state governments are formulating rules, state labour departments need to engage in inter-state dialogues for better implementation of the provisions for women workers enshrined in the codes.
Ellina Samantroy
Faculty and coordinator for Centre for Gender and Labour, V V Giri National Labour Institute, Noida
(ellinasamantroy@gmail.com)
(Views are personal)