The Namesake Equality - Advisory on Women Workforce Participation

Advisory for Employers to

Promote Women Workforce Participation:

The Namesake Equality

• Shilpa Prasad

Advertising Bald Initiatives

The BJP Union Government’s Ministry of Labour and Employment in January 2024 issued an Advisory, ostensible for the promotion of workforce equality, called the “Advisory for Employers to Promote Women Workforce Participation (Gender Equality & Promoting Women’s Economic Empowerment)” (“Advisory”). While titled with the stated goal of women’s equality, its contents display the true intentions of the Bharatiya Janata Party (BJP) government, to advertise bald initiatives and promote the new labour codes as being progressive and central to women’s empowerment.

In the introduction to the Advisory, the union government credits itself with the marginal increase in women’s workforce participation to 35.9% in 2022-23, without noting the increasing informalisation of female labour. While more women are participating in the workforce, more so than ever since independence, their work is insecure and informal. The Periodic Labour Force Survey 2022-23 (PLFS), which the ministry relies on, to boast of a 35.9% female workforce participation, also notes in statement 6, that 27.8% of women are working on their own account, 37.5% are helpers in domestic enterprises, and 65.5% are the self-employed. A mere 15.9% of women are regular wage or salaried workers, and even then, 18.8% among them are casual labour. The data is even more stark for rural women, of whom only 8% are regular / salaried workers.¹

The intersectionality of the discrimination faced by women in the workforce is also evident by the social stratification of women’s workforce participation - only 28.9% of Scheduled Caste (SC) community women, 43.5% of Scheduled Tribes (ST) community women and a mere 28.5% of Other Backward Classes (OBC) women participate in the workforce (statement 17 PLFS).

The PLFS also notes that 64.3% of women are working in the agricultural sector, which is an increase from the 62.9% in 2021-22 and 62.2% in 2020-21. The same is true for percentage of women in informal sector enterprises as well, with 60.8% women in informal sectors in 2022-23, as compared to 58.4% in 2021-22 and 56.7% in 2020-21.

The “Economic Survey of Karnataka 2020-21” issued by the Planning, Programme Monitoring and Statistics Department – the Government of Karnataka in March 2021, notes that out of 25.5 million labour force in Karnataka, informal workers are 22.2 million, constituting 86.9% of the total workforce in Karnataka, with the highest number of persons being self-employed, constituting 45.6% of the workforce. The Worker Participation Ratio (WPR) for women in rural Karnataka is also a mere 24.2%.² In 2022-23, the female worker population ratio was 37.2%. In fact, in the Standing Committee on Labour’s 25^th Report on "The Impact of COVID-19 on Rising Unemployment”, it is noted that due to the COVID-19 pandemic, the number of persons below the proposed national minimum wage increased by 230 million.

Misleading Statistics and Welfare-ist Claims

Thus, at the very outset, the BJP Government has cherry-picked data to appear to have helped the empowerment of the female workforce in India. However, in reality, more women are working only in informal sectors, self-employment, agriculture, or domestic employment. The percentage of women in formal sectors or with formal wages is shockingly abysmal, which is evident from the fact that although more women are in the workforce, the quality of their work and working conditions has depleted. This increasing informalisation of employment also deprives women of social security benefits and restricts their mobility.

Even this labour force participation is low when compared against the global average. There are several factors playing into this, such as lack of employment opportunities.³

Then, the Advisory goes on to list various welfare provisions for women in the existing labour laws, including the Factories Act, 1948, the Building and other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996, Beedi and Cigar Workers (Conditions of Employment) Act, 1966, the Maternity Benefit Act, 1961 and the Inter State Migrant Worker Central Rules, 1980. The irony of the same should not be lost on the public, with the memory of the Union Government’s attempts to exempt the applicability of several labour laws during the pandemic.

The Advisory’s appreciation of the extant welfare provisions of the existing labour laws for women ignored key facts. First, it ignores the continued attempts of the same union government to dilute labour laws in the country. During the pandemic, the government attempted to halt the implementation of the Factories Act, 1948 on the ground of the pandemic, attempted to increase the hard won 8-hour workday to 12 hours in various states, increased the threshold for prior permission for retrenchment / closure from 100 to 300 (in the Industrial Disputes Act, 1947) in various states. The government also introduced the concept of fixed term employment through executive feat. All in all, the government ensured that labour laws were diluted. Enabling a “business-friendly environment”, which is another name for strengthening corporate rule.⁴

Introducing the Labour Codes by Stealth

Second, the Advisory enumerates new provisions under various labour codes, while deceptively referring to these as provisions under the existing labour laws. The labour codes not only seriously dilute existing labour law protections, but weaken the implementation machinery and also undo decades of hard-won rights. The Advisory looks to promote the new provisions even before they came into force.

The Advisory fails to note that although the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 exists, most women work in informal sectors where internal complaints committees are not constituted. There is no publicly available information regarding the constitution of the committees, and women face loss of employment and threats if they do approach an existing committee for help. Domestic workers, for example, often face sexual harassment at their workplace, but they do not have an easy and accessible grievance redressal mechanism due to the highly informal nature of their work. According to a study of the International Labour Organisation, more than 1 in 5 persons in employment have faced at least one or other form of violence and harassment at work.⁵

The Advisory then talks about the new labour codes. It lists certain provisions of the Occupational Safety, Health, and Working Conditions Code, 2020 (e.g. mandatory health check-ups for women, and provision of transportation to female workers), the Code on Wages, 2019 (e.g. equal remuneration), Code on Social Security, 2020 (e.g. applicability of social security to gig workers), and the Industrial Relations Code, 2020 (e.g. such as representation of women in the Grievance Redressal Committee). The Advisory paints a rosy picture of the advancement of women’s work and employment through the labour codes, whereas the reality is the quite opposite.

In reality, both trade unions and experts have noted that women will face the brunt of the new labour codes.⁶ Under Section 6 and Rule 3 of the Code on Wages, 2019, the minimum wage will be fixed on the basis of the standard working-class family, which includes a spouse and 2 children apart from the earning worker, equivalent to 3 consumption units = 1+0.8+0.6+0.6. Essentially, women have been assigned a lower consumption unit, which is blatantly gender discriminatory.

Regarding Wages and Benefits

The Equal Remuneration Act, 1976, envisaged that all remuneration payable in cash or kind to men or women, for same or similar work, shall be equal. However, the new Code redefines the provision of equal pay for equal work, and excludes certain components of wages, such as bonus payable, house-accommodation values, PF contributions, commission payable to employee, retrenchment compensation or any ex-gratia payment and gratuity, from the wage calculation of equal wages. Thus, it is legally permissible for unequal pay for equal work under the above-mentioned heads. These exclusions would be applicable unless the pay exceeds 50% of the income of workers. The Code also introduces a new criterion of “experience” for assessing equal pay for “same work or work of similar nature”, in addition to the criteria of skill, effort, and responsibility. This will deprive justice to several women on the ground due to their various positions of disadvantage due to societal discrimination.⁷ The Code in fact ignores decades-long demand to revise the criteria from “work of similar nature” to “work of equal value” which would permit the remuneration for disparate jobs to be assessed fairly. Additionally, women’s representations on the Advisory Boards, which was hitherto 50%, has been reduced to 33%.

Section 60 of the Social Security Code, 2020, envisages payment of maternity benefit at the rate of average daily wage. However, wages as defined in Section 2(88) does not include bonus, house-accommodation, PF contribution, rent allowance, overtime allowance, etc. The new Occupational Safety Code also permits women to be employed in night shifts based on consent. However, it is apparent that due to unequal wage relations, that consent cannot be free and will be coerced through the threat of termination or disciplinary action. Hence, women would effectively be forced to consent to night shift work, which was until now prohibited by the existing laws. Maternity Benefits will be applicable, as per the First Schedule of the Code, to every factory, mine, oilfield etc. and to every shop or establishment in which at least 10 or more employees are employed. Thus, large parts of the informal sector, with a heavy presence of women workers, will find themselves excluded from maternity benefits.

The Industrial Relations Code, 2020, also increases the threshold of workers to seek prior government permission for lay-off, retrenchment, etc from 100 to 300, meaning several medium and small establishments, often employing large numbers of women, will be excluded from protection against arbitrary lay-offs and retrenchment.

In essence, the Advisory contains a false plain pretense of gender equality. It is a rhetorical advertisement for the new codes, without any actual concern for gender equality at the workplace. In the final portion of the Advisory, employers are advised to increase women’s participation in the workforce in various ways. The Advisory calls upon employers to “ensure the welfare of women workers”, provide first-aid, creche, latrines, maternity benefit etc. Finally, the Advisory lists the schemes of the Union Government and their achievements in providing benefits to women. The Advisory itself is bereft of any real analysis as to why women’s participation in the workforce is insecure, informal, and unprotected.

The Advisory is, in part, a restatement of existing laws, and in part a promotion of the new labour codes. It is a desperate attempt by the Union Government to make it appear to care for women’s rights and equality in the workforce.

1 https://www.mospi.gov.in/sites/default/files/publication_reports/AR_PLFS_2022_23N.pdf?download=1.