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Amendment of Haryana Laws Permitting Engagement of Female Employees at Night in Certain Commercial Establishments

New Legislation Enacted

Authors: Vikram Shroff, Partner and Head of Employment, and Sayantani Saha, Associate – Nishith Desai Associates

The Haryana state government has issued a notification dated May 17, 2022, amending the Punjab Shops and Commercial Establishments Rules, 1958 (in its application to the state of Haryana) permitting engagement of female employees in logistics and warehousing establishments (which have obtained discretionary exemption from labor authorities to operate on a 24x7 basis) at night, between 7 p.m. and 6 a.m., subject to compliance with certain conditions. The provision permitting engagement of female employees at night, subject to certain conditions and with appropriate discretionary exemption from state labor authorities to operate on a 24x7 basis, is also applicable to commercial establishments in Haryana which are IT/ITeS establishments, banking establishments, three (or more) star hotels and 100% export-oriented establishments. Application for grant of such exemption is required to be made at least a month before the date of commencement of such an exemption and shall be granted with validity for one year.

The Haryana state government has also issued a notification dated June 7, 2022, providing additional compliance requirements for engaging female employees at night (between 7 p.m. and 6 a.m.) in IT/ITeS establishments, banking establishments, three (or more) star hotels and 100% export-oriented establishments and logistics and warehousing establishments. These inter alia include a requirement to submit to the Haryana Labor Commissioner (i) a copy of the annual return that is required to be submitted to the local district authorities as per the PoSH Act, (ii) a copy of the written declaration/consent obtained from each female employee who is required to work in any exempted commercial establishment in Haryana between 7 p.m. and 6 a.m., accepting such engagement, and (iii) half-yearly report (or immediate report, based on intimation) about details of female employees engaged at night in the establishment, besides ensuring compliance with Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH Act), and other health and safety-related requirements.

Exemption to All Shops and Establishments in Tamil Nadu to Operate on a 24x7 Basis on All Days of the Year

New Legislation Enacted

Authors: Vikram Shroff, Partner and Head of Employment, and Sayantani Saha, Associate – Nishith Desai Associates

The Tamil Nadu state government has issued a notification dated June 2, 2022, permitting all shops and establishments in the state of Tamil Nadu (Chennai) to operate on a 24x7 basis on all days of the year for three years with effect from June 5, 2022, subject to certain conditions. The applicable conditions include provision of one week off for all employees in a specified manner, payment of wages including overtime wages to employees’ bank accounts and limiting working hours of employees including overtime work to 10.5 hours in a day and 57 hours in a week (eight hours a day and 48 hours a week without overtime).

Engagement of female employees between 8 p.m. and 6 a.m. subject to provision of adequate protection and provision of transport arrangement with notification to such provided at the entrance of the establishment and constitution of internal complaints committee as per the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 of India. Violation of such conditions for operation on a 24x7 basis will lead to penal action against the employer as per Tamil Nadu Shops and Establishments Act, 1948 which provides for monetary penalties of up to INR 10,000 (approx. US$ 140).

Conditions for Exempting Factories in Haryana and Uttar Pradesh States to Allow Engagement of Female Employees at Night

New Legislation Enacted

Authors: Vikram Shroff, Partner and Head of Employment, and Sayantani Saha, Associate – Nishith Desai Associates

The Uttar Pradesh state government has issued a notification dated May 27, 2022, permitting all factories in Uttar Pradesh to engage female employees in night shifts (between 7 p.m. and 6 a.m.) subject to certain conditions. The Haryana state government has also issued a notification dated June 17, 2022, providing for similar conditions for permitting discretionary exemption to factories in Haryana which seek to engage female employees in night shifts (between 7 p.m. and 6 a.m.). Such conditions include ensuring compliance with the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 of India (PoSH Act).

Besides complying with PoSH Act, there are additional requirements for engaging female employees at night such as obtaining declaration/consent from each female employee engaged in night shift; ensuring female employees are engaged during night shifts maintaining a minimum prescribed strength of female employees; provision of transportation facility (complying with applicable requirements thereto) to female employees working in night shifts from their residence to factory and back; and compliance with other health and safety-related requirements. There are also requirements for employers to submit to the prescribed local labor authorities certain monthly/annual reports as specified in the aforesaid notifications. In Uttar Pradesh, the employment of a female employee cannot be terminated for her refusal to work at night in a factory between 7 p.m. and 6 a.m.

Implementation of Labor Codes Further Delayed

Proposed Bill or Initiative

Authors: Vikram Shroff, Partner and Head of Employment, and Sayantani Saha, Associate – Nishith Desai Associates

There was speculation about the Indian Ministry of Labor and Employment implementing the four new Indian labor codes - Code on Wages, 2019, Code on Social Security, 2020, Industrial Relations Code, 2020 and Occupational Safety, Health and Working Conditions Code, 2020 from July 1, 2022. However, the implementation of the labor codes has been further delayed. Reportedly, 90% of the Indian states have notified draft rules to at least one of the labor codes for public review, although none of the states, nor the central government has notified any of such rules. While some procedural provisions of the Code on Wages, 2019 and Code on Social Security, 2020 have been notified by the Indian Ministry of Labor and Employment, we await notification of the substantive provisions of the four labor codes and rules thereto.

Karnataka Notification on Resuming Creche Facilities in Factories

Important Action by Regulatory Agency

Authors: Vikram Shroff, Partner and Head of Employment, and Sayantani Saha, Associate – Nishith Desai Associates

The Karnataka government has issued a notification dated April 13, 2022, stating that all COVID-19-related protocols/restrictions applicable to factories in Karnataka have been withdrawn. Accordingly, the Karnataka government has directed the resumption of creche facilities in Karnataka factories, with COVID appropriate measures.