Presentation Transcript

1. THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE(PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013

2. Convention on the Elimination of All form of Discrimination against Women (CEDAW), 1979 S. Venkatakrishnan The protection against sexual harassment and the right to work with dignity are universally recognised human right by various international conventions and instruments such as Convention on the Elimination of all Forms of Discrimination against Women. (CEDAW). The said convention was adopted in General Assembly of UN by votes of 130 to none with 10 abstentions. 64 states adopted the said convention and two states submitted their instruments of ratification immediately. After 20 states ratified this on 3 September, 1981 the Convention entered into force – faster than any other any other previous human rights convention. The United Nation’s efforts to codify a comprehensive international legal standards for women fructified in 1981. Government of India ratified this convention on 25 June, 1993. One of the requirements of the convention is for the states to have a legislation to protect the interests of the working women.
3. Visakha & Others Vs State of Rajasthan & ors. – Supreme Court 1997 S. Venkatakrishnan This decision of the Supreme Court on 13 August, 1997 and India being part of the CEDAW convention, happened to be the basis for the SHAW Act, 2013. The Supreme Court prescribed in its decision as to how Women at Workplace needs to be treated and what would be construed as Sexual Harassment. The societal aberration, assisting in finding suitable methods for realisation of the true concept of Gender Equality and to prevent sexual harassment of working women in all work places through judicial process was the basis for this case.

4. SHAW Act, 2013

   An Act aimed to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto. (Government Gazette dated 23 April, 2013 /Vaisakha 3, 1935 - Saka) Sexual Harassment results in violation of the fundamental rights of a woman to equality under Article 14 and 15 of the Constitution of India and her right to life and live with dignity under Article 21 of the Constitution and right to practice any profession or to carry on any occupation, trade or business which includes a right to a safe environment free from sexual harassment.
5. (Continued) S. Venkatakrishnan Important definitions Aggrieved woman : Workplace / Dwelling place or house: A woman of any age, in relation who alleges to have been subjected to any act of sexual harassment by the respondent and includes a women whether employed or not. Women of any age who is employed in such dwelling place or house. Domestic Worker: A woman who is employed to do the household work in any household for remuneration whether in cash or kind, either directly or through any agencyon a temporary, permanent,part time or full time basis, but does not include any member of the family of the employer. Employee :a person employed at a workplace for any work on regular, temporary ad hoc or daily wage basis, either directly or through an agent, including a contractor with or without the knowledge of the principal employer, whether for remuneration or not, or working on a voluntary basis or otherwise whether the terms of employment are express or implied and includes a co-worker, contract worker, probationer, trainee, apprentice or called by any other such name.
6. (Continued) S. Venkatakrishnan Employer :In Relation to Government : Head of the Department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit or such other officer as the appropriate Government or authority may by an order specify in this behalf. Any other workplace : Any person responsible for the management, supervision and control of the workplace. In relation to dwelling place or house a person who employs or benefits from the employment of domestic worker, irrespective of the number, time period or type of such worker employed or the nature of the employment or activities performed.
7. (Continued) S. Venkatakrishnan Internal Committee : Means an internal complaints Committee constituted under Section 4 of the Act and a Member means a member of such Committee. Respondent : Means any person against whom the aggrieved woman has made a complaint. Sexual Harassment : includes such unwelcome sexually determined behaviour (whether directly or by implication) as – physical contact and advances; or a demand or request for sexual favours; or sexually coloured remarks; or showing pornography; or any other unwelcome physical, verbal or non-verbal conduct of sexual nature; Workplace : Amongst other parts of the definition, this includes any place visited by the employee arising out of or during the course of employment including transportation provided by the employer for undertaking such journey.
8. (Continued) S. Venkatakrishnan Section 3 : No woman shall be subjected to sexual harassment at any work place which may include, but is not limited to – implied or overt promise of preferential treatment in her employment; or implied or overt threat of detrimental treatment in her employment; or implied or overt threat about her present or future employment status; or conduct of any person which interferes with her work or creates an intimidating or offensive or hostile work environment for her; or humiliating conduct constituting health and safety problems for her.
9. (Continued) S. Venkatakrishnan Section 4 : Internal Complaints Committee should consist of : A Presiding Officer – who shall be a woman employed at a senior level at workplace from amongst the employees. Not less than two members from amongst employees preferably committed to cause of women or who have experience in social work or have legal knowledge. One member from NGO or association committed to the cause of women or a person familiar with the issues relating to sexual harassment. Provided that at least one-half of the total members so nominated shall be women. The said Committee shall hold office for a period not exceeding 3 years. The member appointed from NGO or other association shall be paid such fees or allowances for holding the proceedings of the Internal Committee, by the employer as may be prescribed. Can vacate office under such circumstances as explained in Sec. 4 (5).
10. (Continued) S. Venkatakrishnan Local Complaints Committee The Act envisages forming such Committee to address grievances of women when : 1. Internal Complaints Committee has not been constituted if the establishment has less than 10 workers. 2. If the Complaint is itself against the said employer himself. The District Officer shall designate one Nodal Officer in every block, taluka and tehsil in rural or tribal area and ward or municipality in the urban area, to receive complaints and forward the same to the concerned Local Complaints Committee within a period of seven days. The said Committee will consist of One eminent Women in the field of social work, one women from the block, tehsil or ward etc. two members of whom atleast one women to be nominated from NGO.
11. (Contd.) S. Venkatakrishnan Section 9 : An aggrieved women can make a complaint in writing on sexual harassment to the Local Committee if an internal Committee is not constituted within a period of 3 months from the date of the incident and in case of series of incidents within 3 months from the date of last incident. Where the aggrieved woman is unable to make a complaint on account of her physical or mental incapacity or death or otherwise her legal heir or such other person as may be prescribed may make a complaint under this section.
12. (Contd.) S. Venkatakrishnan Section 10 : Conciliation :The Committees may at the request of the aggrieved women take steps to settle the matter between her and the respondent through conciliation. Monetary settlement shall not be made the basis for such conciliation. If the settlement has been arrived the Committee concerned will forward the settlement to the employer or the District Officer to take action as specified in its recommendation. The Committee shall provide copies of the settlement as recorded to the aggrieved women and the respondent as well. Where settlement has been arrived at, no further inquiry shall be conducted by the concerned Committee.
13. (Continued) S. Venkatakrishnan Section 11 : The Internal or Local Committee, may proceed with the inquiry into the complaint in accordance with the service rules or in such as manner as may be prescribed. If prima facie case exist, forward the complaint to the police, within seven days for registering the case under Section 509 of the IPC. The internal Committee shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 for : summoning and enforcing the attendance of any person and examining him on oath: requiring the discovery and production of documents; and any other matter which may be prescribed. The inquiry to be completed within a period of 90 Days
14. (Continued) S. Venkatakrishnan Action during pendency of inquiry Transfer the aggrieved woman or the respondent to any other workplace ; or Grant leave to the aggrieved woman; or Grant such other relief to the aggrieved women as may be prescribed (The leave granted to aggrieved woman shall be in addition to the leave she would otherwise be entitled). The inquiry Report on completion can be submitted to the employer. (MD / Audit Committee) If the allegations are not proved no action would be taken against the respondent.
15. Punishment for False or Malicious Complaint and False evidence S. Venkatakrishnan If the allegations are proved, the Committee shall recommend - to take action for sexual harassment as a misconduct in accordance with the service rules applicable or where no such service rule is available in such manner as may be prescribed. - to deduct not withstanding anything in the services rules applicable to the respondent, from the salary or wages of the respondent such sum of compensation to be paid to the aggrieved woman or to legal heirs, as it may determine.
16. S. Venkatakrishnan Provided, that in case an employer is unable to make deduction from the salary of the respondent due to his being absent from duty or cessation of employment, it may direct to the respondent to pay such sum to the aggrieved woman. Provided, further that in case the respondent fails to pay the sum referred to by the Committee, it may forward the order for recovery of the sum as an arrears of land revenue to the concerned District Officer. The employer or the District Officer shall act upon the recommendation within 60 days of its receipt.
17. (Contd.) S. Venkatakrishnan Section 14 : False or Malicious Complaint Where the Committee arrives at a conclusion that the allegation against the respondent is false or malicious or the woman has produced any forged or misleading document it may recommend to the employer or to the District Officer as the case may be, to take action against the woman in accordance with the service rule or such other action as it may deem fit. Provided that a mere inability to substantiate a complaint or provide adequate proof need not attract action against the complainant under this section. Provided further that the malicious intent on part of the complainant shall be established after an enquiry in accordance with the procedure prescribed, before any action is recommended.
18. Determination of Compensation S. Venkatakrishnan The mental trauma, pain, suffering and emotional distress caused to the aggrieved woman. The loss in the career opportunity due to the incident of sexual harassment; Medical expenses incurred by the victim for physical or psychiatric treatment; The income and financial status of the respondent; Feasibility of such payment in lump sum or in installments Section 16: Provides details on non-publication of details pertaining to the identity and address of the aggrieved woman, respondent and the witness or any other information relating to conciliation and inquiry proceedings, recommendations of the Committee and action taken by employer to the public, press and media in any manner. (Specific ref to Right to Information Act)
19. Duties of Employer S. Venkatakrishnan Every Employer shall Provide a safe working environment at the workplace which shall include safety from the persons coming into contact at the workplace. display at any conspicuous place in the workplace, the order constituting, the internal committee. Organise workshops and training programmes at regular intervals for sensitising the employees regarding the provisions of the Act. provide necessary facility to the Internal Committee or the Local Committee, as the case may be for dealing with the complaint and conducting inquiry. assist in securing the attendance of respondent and witnesses before the committee. make available such information to the committee.
20. Duties of Employer (Contd.) S. Venkatakrishnan provide assistance to the women if she chooses to file a complaint in relation to the offence under the Indian Penal Code or any other law for the time being in force. initiate action, under the Indian Penal Code or any other law for the time being in force, against the perpetrator after the conclusion of the inquiry, or without waiting for the inquiry where the perpetrator is not an employee in the workplace at which the incident of sexual harassment took place. treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct. Monitor the timely submission of reports by the Internal committee.
21. Annual Report S. Venkatakrishnan The Internal or Local Committee shall in each calendar year prepare in such form and at such time as may be prescribed an annual report and submit the same to the employer and the District Officer. The District Officer shall forward the brief report on the annual reports received under sub-section (1) to the State Government. The employer shall include in its report the number of cases filed, if any, and their disposal under this Act in the Annual report of his organisation or where no such report is required to be prepared, intimate number of such cases to the District Officer.
22. Power to call information and inspection of records S. Venkatakrishnan The appropriate Government on being satisfied that it is necessary in public interest may by order Call upon any employer or District Officer to furnish in writing such information relating to sexual harassment as it may require. Authorise any officer to make inspection of the records and workplace in relation to sexual harassment, who shall submit a report of such inspection to it within such period as may be specified in the order. Every employer and Dist. Officer shall produce on demand before the officer making the inspection all information, records and other documents in his custody having a bearing on the subject matter of such inspection.
23. Duties of an Employer – Penal Clause S. Venkatakrishnan Where an employer fails to : constitute an internal committee take action against the respondent contravenes or attempts to contravene or abets contravention of other provisions of this Act or any rules made thereunder shall be punishable with fine which may extent to 1. Fifty thousand rupees.
24. S. Venkatakrishnan In case of second or continuing offence, 2. Twice the punishment which may be imposed the first time. Provided that in case a higher punishment is prescribed under any other law for the time being in force, for the offence for which the accused is being prosecuted the court shall take due cognizance of the same while awarding the punishment; Cancellation of licence or withdrawal or cancellation of registration required for carrying on the business or activity.
25. COGNIZANCE OF OFFENCE BY COURTS S. Venkatakrishnan No Court shall take cognizance of any offence punishable under this Act, unless a complaint is made by the aggrieved women or any person authorised by the Internal Committee or Local Committee in this behalf. No Court inferior to that of Metropolitan Magistrate or Judicial Magistrate of first class shall try any offence punishable under this Act. The Provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.
26. SUGGESTED POLICY UNDER SHAW – NOTICE TO BE PUT UP S. Venkatakrishnan THE SEXUAL HARASSMENT OF WOMEN AT WORK PLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013 The following Acts would be construed as offence under the said Act. Physical Contact and advances. Or A demand or request for sexual favours; or Making sexual coloured remarks; or Showing pornography; or Any other unwelcome physical, verbal or non-verbal conduct of sexual nature. Implied or explicit promise or preference treatment in your employment Implied or explicit threat of detrimental treatment in your employment Implied or explicit threat about your present or future employment status Interference with you work or creating an intimidating or offensive or hostile work environment for you; or Humiliating treatment likely to affect your health or safety.
27. Send in your Complaints, if any, to the Internal Committee : S. Venkatakrishnan Ms. KalaiSelvi – Chief Information Officer – Presiding Officer Email Id : Mobile : Mr M Myilvaganan – VP – HR – Member Email Id : Mobile : Mr S Venkatakrishnan – GM – Legal & Secretary – Member Email Id : Mobile : A Lady representative from a Non-Government Organisation (NGO) Email Id : Mobile :
28. S. Venkatakrishnan Thank You
29. S. Venkatakrishnan THANK YOU