Theme: Labour & Employment

Filing a Complaint against Sexual Harassment

The law has provided a detailed mechanism for filing complaints related to sexual harassment at the workplace. If you have been sexually harassed at the workplace, follow the steps given below to file a complaint for sexual harassment against your harasser.

 

In Writing(( Section 7(1), Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013; Section 9, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.))

  1. Draft a complaint
  2. Make six copies of the complaint
  3. Submit any supporting documents with the complaint
  4. Submit the names and addresses of any witnesses who are supporting your complaint
  5. Submit your complaint to the Internal Committee* within three months(( Section 9(1), Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.)) of the sexual harassment.

 

If you cannot write the complaint on your own, the Committee can help you. A complaint can be filed by someone else on your behalf, such as:3(( Section 6, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013.))

  1. Your relative or friend
  2. Your co-worker
  3. An officer of the National Commission for Women or State Women’s Commission
  4. Any person who has knowledge of the incident, with the written consent of the victim

If you do not want to file a formal complaint they can try to work out the situation with the other person. This is called “conciliation”(( Section 10, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.))

 

*If your workplace does not have an Internal Committee, you can go to the Local Committee that is closest to you(( Section 6(1), Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.)).

Online

You can also complain on the website of the Ministry of Women and Child Development through the SHe-Box.

SheBox

 

Research while applying for jobs

The terms of your employment contract will capture facts, rights, duties, and obligations that relate to you and your employer. These terms are based on your calibre, your expectations, your employer’s expectations, and industry standards. The terms are described with heavy legal terminology such as “non-compete”, “dispute resolution” etc.

It is important for you to conduct some research to understand what expectations you can have of your employer, if the expectations of your employer are fair, and if your contract is at par with industry standards.

Evaluate the Industry

When you are applying for a job or accepting a job offer, it is important to know industry standards of salaries, pay scales, and work practices. By understanding market trends and having knowledge of best practices, you have higher chances of getting what you rightly deserve from your employer.

Evaluate the Organization

Also, it is advisable to check the prospective organisation’s practices, work environment, treatment of employees, pay scales etc. Conducting such research will help you negotiate your contract better. You can find out such details from networking groups, ex-employees of that workplace, your batchmates from college who work there, colleagues of batchmates, etc.

Evaluate Yourself

Assess your skills and capacity, as it will help you negotiate the terms of your contract better. Your work experience, educational qualifications, relevant degrees/courses/certificate programs etc. will all add value to the position you can ask for as well as your salary.

Employing adolescents between 14-18 years

Adolescents are allowed to work in places that do non-hazardous work. These establishments that do non-hazardous work are notified by the government. They are also allowed to work:

  1. In a family business. For example, working in your family jewellery business.
  2. As a child artist. For example, acting in Bollywood movies or in an advertisement.

Adolescents between the age of 14 to 18 are not allowed to work in:

  • Mines or places which use inflammable substances or explosives. For example, a factory which manufactures firecrackers.
  • Industries which use hazardous processes which are provided in another law called the Factories Act, 1948. They include coal, power generation, paper, fertilizer, iron and steel industries, asbestos, etc.

What are Wages?

Wages refer to all monetary payments in the form of salaries, allowances, etc. that an employer pays to a person for their work or employment, including:

  • Basic Pay
  • Dearness Allowance
  • Retaining Allowance (if any)

There are some monetary payments that are not included in wages:

  • Any legally required bonus not included under the employment agreement. For example, the annual bonus an employer is required to give employees in addition to wages.
  • Amenities like house accommodation, electricity, water, medical attendance, etc. which the Government has excluded from wages
  • Employer’s contributions paid to pension or provident fund, and the resulting interest
  • Conveyance allowance or travelling concession
  • House rent allowance
  • Overtime allowance
  • Commission
  • Payment for special expenses depending upon the nature of the employment. For example, if a glassworker requires a specific tool to carry out their work, this could be a special expense paid for by the employer.
  • Gratuity, retrenchment compensation, or other retirement benefits.

Payment of a legal award or settlement made between parties by the order of the court(( Section 2(y), Code on Wages, 2019.)).

An Advocate’s Duties towards the Court

An Advocate has to maintain certain standards of professional conduct and etiquette in Courts.

Duties in Court

Some of the duties an advocate has in Court include:

  • Behaving in a dignified manner before the Court. Further, whenever there is a proper reason for a serious complaint against a judicial officer, the advocate has a right and duty to submit their grievance to proper authorities.(( Rule 1, Chapter II, Part VI, Bar Council of India Rules, 1975)) For instance, grievances relating to Advocates, the Bar Council of India, Bar Councils of States, and Notary/Government Counsels need to be sent to the Department of Legal Affairs.(( Guidelines of Grievances Received in the Department of Justice, https://doj.gov.in/sites/default/files/GUIDELINES.pdf))
  • Showing respect towards the Court.(( Rule 2, Chapter II, Part VI, Bar Council of India Rules, 1975))
  • Not communicating in private to a judge about any case pending before the judge or any other judge. Advocates should not try to influence the Court’s decision about a matter using any illegal or improper means.(( Rule 3, Chapter II, Part VI, Bar Council of India Rules, 1975))
  • Appearing in a presentable manner in Court. While in Court, an advocate has to wear appropriate clothing that has been specified to be worn in Court.(( Rule 5, Chapter II, Part VI, Bar Council of India Rules, 1975))
  • Not appearing/arguing before a judge, if the judge is related to the advocate(( Rule 6, Chapter II, Part VI, Bar Council of India Rules, 1975)) as:
    • Father/mother
    • Grandfather
    • Son/daughter
    • Grandson
    • Uncle/aunt
    • Brother/sister
    • Nephew/niece
    • First cousin
    • Husband/wife
    • Father-in-law/mother-in-law
    • Son-in-law/daughter-in-law
    • Brother-in-law/sister-in-law
  • Not wearing the advocate’s gown/band in public places other than Courts. Advocates can wear this in public only for ceremonial occasions, and at such places prescribed by the Bar Council of India or the Court.1
  • Not standing as surety for a client.(( Rule 10, Chapter II, Part VI, Bar Council of India Rules, 1975))

Duties while taking on new cases

Some of the duties an advocate has include:

  • Not appearing for or against any establishment if the advocate is a member of the Executive Committee which manages the general affairs of that establishment.(( Rule 8, Chapter II, Part VI, Bar Council of India Rules, 1975)) For example, if an advocate is the Director of a company, they cannot appear for that company in a dispute.
  • Not taking up a case in a matter where the advocate has any financial interest.(( Rule 9, Chapter II, Part VI, Bar Council of India Rules, 1975))

Duties to other lawyers or other clients

An advocate has a duty to the opposing lawyer and clients. An advocate should not directly negotiate with the opposite party, except through the advocate who is representing the opposite party.(( Rule 34, Chapter II, Part VI, Bar Council of India Rules, 1975)) Further, advocates should try their best to carry out the legitimate promises made to the opposite party(( Rule 35, Chapter II, Part VI, Bar Council of India Rules, 1975)) such as appearing on the Court date, drafting petitions on time etc.

Some of the other duties include:

  • Not behaving in an  illegal or improper manner towards the opposing lawyers and parties. Advocates have to also restrict their clients from doing the same.(( Rule 4, Chapter II, Part VI, Bar Council of India Rules, 1975))
  • Preventing a client from resorting to unfair practices. Advocates should not allow their client to do anything in relation to the Court or opposing party which the advocates themselves should not do. An advocate has to refuse to represent a client who persists in improper conduct. Advocates have to be dignified in use of their language in correspondence and during arguments in Court. They should not use any improper language during arguments in the Court.(( Rule 4, Chapter II, Part VI, Bar Council of India Rules, 1975))
  • When an advocate has accepted the case of a client, another advocate should not appear for the same party. However, the latter can take consent from the former for appearing. If such consent is not obtained, the advocate will have to ask the Court before being allowed to appear for the client.(( Rule 39, Chapter II, Part VI, Bar Council of India Rules, 1975))
  1. Rule 7, Chapter II, Part VI, Bar Council of India Rules, 1975 [↩]

Is building an Insanitary Latrine unlawful?

It is unlawful and an offence under the Manual Scavengers and Their Rehabilitation Act, 2013 for any person, municipality, panchayat or agency to build an insanitary latrine that requires human waste to be removed manually by a person before the waste has properly decomposed.

Local authorities must carry out a survey of insanitary latrines in their area and publish a list of all the identified latrines. The local authorities are responsible for the building and maintenance of these community sanitary latrines and must make sure that they are functional and hygienic.

The punishment for first-time offenders constructing or engaging or employing someone to construct an insanitary latrine is jail time up to one year as well as a fine for up to Rs. 50,000. Second-time offenders can face jail time up to two years and a fine of up to Rs. 1,00,000.

Who can seek Maternity Benefits?

You can seek maternity benefits if you are a woman and if you are:

  • Pregnant for the first time
  • Pregnant with one child or 2 children already
  • Adopting a child below the age of 3 months (( Section 5(4), The Maternity Benefit (Amendment) Act, 2017.))
  • Having a child through a surrogate (( Section5(4), The Maternity Benefit (Amendment) Act, 2017.))
  • Recovering from a miscarriage, abortion or tubectomy operation

You can enjoy maternity benefits such as taking a period of leave and getting paid during this period. However, you can only enjoy such benefits if you have worked for an employer for a minimum of 80 days in the last 12 months before your delivery. (( Section 5(2), The Maternity Benefit Act, 1961.)) This applies to all women who are pregnant, irrespective of age or marital status. However, this shall not apply to a woman who has immigrated into the State of Assam and was pregnant at the time of the immigration. (( Proviso, Section 5(2), The Maternity Benefit Act, 1961))

Currently, under the law, only women can seek maternity benefits. Men or persons who identify with other genders do not have an option to seek the benefits. However, you can check with the internal policy of your organization as it may provide for gender-neutral pregnancy leaves or paternity leaves.

Types of employment

Regular employee

Maternity benefit does not differentiate between permanent, temporary and contractual employees, so denying the benefit to any type of worker is against the law. (( Indu Joshi Vs. State of Uttarakhand and Ors. 2013 (139) FLR 439; Rachna Chaurasiya Vs. State of U.P. and Ors. 2017 (6) ALJ 454))

Casual/ Muster Roll employee

Courts have held that even women engaged on a casual basis, or on a muster roll basis(( Swati and Ors. Vs. Government of NCT of Delhi and Ors. 2016 (1) SLJ 201 (CAT))) on daily wages, are entitled to get the benefit of maternity leave at par with regular employees. (( Anju Sharma Vs. Lt. Governor, NCT of Delhi and Ors. In The Central Administrative Tribunal Principal Bench At New Delhi O.A. No. 543/2011; Municipal Corporation of Delhi Vs Female Workers (Muster Roll) and Ors. AIR 2000 SC 1274; Geeta Sharma Vs. Union of India RLW2001(4) Raj 637.))

Contractual employee

Maternity leave benefits are also accorded to contractual employees. (( Priyanka Gujarkar Shrivastava Vs. Registrar General and Ors. 2017 Lab IC 1646; Shanti Mehra Vs. State of Uttarakhand and Ors. 2017(2) UC 1438; State of H.P. Vs. Sudesh Kumari 2015 (145) FLR 516.)) Further, contractual employees are also entitled to 26 weeks of maternity leave. (( Jeslin Jose Vs. Cochin Port Trust 2019 (2) KHC 797)) However, a woman cannot avail maternity benefits after the expiry of the contractual period. (( Bharti Gupta Vs. Respondent: Rail India Technical and Economical Services Ltd. (Rites) and Ors. 123 (2005) DLT 138; Kavita Yadav Vs. The Secretary, Ministry of Health and Family Welfare Department W.P. (C.) No. 8884/2019 DHC.))

Victims of Sexual Harassment at Workplace

If you are a working woman in any capacity as given under, you will be protected from being subjected to sexual harassment at the workplace no matter the terms or conditions of employment, where they are employed or if they are simply visiting a place of work1(( Section 2(a), Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.)).

The law currently only recognizes women as possible victims of sexual harassment1. Men who face sexual harassment at work by either a woman or a man, are not protected in the same way as women. However, this varies according to the policy of the organization, which may cover men as well.

Women have legal protection if they are facing sexual harassment and can be considered any of the following:

  • Employee
  • A full-time employee
  • A part-time employee
  • A contractual employee
  • Working for compensation
  • Any woman in relation to any kind of a workplace, like an office, a household, etc.

Important details in an Employment Contract

All contracts start with the description of who you are, your role in the organization and details of your job. This is an example of how the first term of your employment contract would look like:

“XYZ Future Ltd. (“XYZ”), is hiring Abhinav Chandra as “Lead Architect” for a period of 12 months with effect from 15 February, 2019.”

Your Name 

In an employment contract, your name has to be expressly written. The names of the parties involved will be the first and most important detail in your employment contract. In the example given above, it is clear that XYZ is hiring only Abhinav for the job.

Organization’s Name

The official and proper name of the organization has to be in the contract. It should be mentioned that you are being hired by such an organization. In the example given above, it is clearly given that XYZ Future Ltd (“XYZ”) is the organization hiring for the job.

Your Employer’s Name

If you are being hired by an organization, then the name of the party hiring you would be the organization itself. Either the head of the organization or the head of human resources department (HR) will sign your contract on behalf of the organization.

If you are being hired by an individual, your contract will specifically have your employer’s name and only your employer will sign your contract.

For example: “Dr. Raj Sharma, is hiring Abhinav Chandra as “Lead Architect” for a period of 12 months with effect from 15 February, 2019.”

Job Description

The employment contract will have the description of the position you are being hired for and what the terms of your employment are, i.e. what you are expected to do. In the example given above, the job description for Abhinav is “Lead Architect”. His contract will mention that he is being hired for that post and will also include what his work as a lead architect would entail.

Employment Period

Contracts are usually either for a specific period of time or for specific tasks. The employment contract will state the period of time you are being hired for. In the example given above, the period has been specified as 12 months with effect from 15 February, 2019.

In some cases, employers might even add a probation period. This means that once hired, you will be on probation for a specific period of time. After the probation period expires, your employer will assess your work and capabilities and decide whether to confirm your employment or not.

Salary and Other Allowances

The contract has to specify your salary amount in numerals as well as in words. If you do want to modify this amount, make sure you do this before signing the contract as you cannot negotiate your salary amount until the contract expires. Keep in mind that you can ask for a raise in your salary based on the competitive market rates for your job position, if you have previous work experience or if you hold any degrees or certificates in higher education.

Some other allowances that may be mentioned in the contract or in the HR policy are:

  • Relocation allowances, if you relocate to another city for the job provided by the employer.
  • Reimbursement for any work-related expenses.

Employing children under 14

It is illegal to employ or allow children under the age of 14 in any form of occupation. Employers, parents or any guardian in charge of a child who allows a child to work in any type of occupation will be punished.

However, there are two exceptions. The Government allows children to work:

If you know of any acts of child labour where the child is below the age of 14, please report the crime.