India: Karnataka Government permits women employees working in shops and commercial establishments to work during night hours

As per the Karnataka Shops and Commercial Establishment (Amendment) Act, 2020 (“Amendment Act”), a woman employee who is willing to work during night hours, may be allowed to work in a shop or commercial establishment during such night hours, subject to compliance with the following conditions:

1. Section 7, 8, 9, 10 and 11 of the Karnataka Shops and Commercial Establishment Act, 1961 (“S&E Act”) shall continue to apply to the women employees working during the night shift (Section 7 pertains to daily and weekly hours of work; Section 8 pertains to payment of overtime wages for overtime work; Section 9 discusses the intervals of rest that should be allowed to an employee; Section 10 pertain to spread-over of work and Section 11 pertains to the opening and closing hours of the establishment).
2. Willingness of women employees to work during night hours shall be obtained in writing.
3. Employment of women employees shall be on rotation basis.
4. Adequate number of security guards shall be posted during such night shifts.
5. Sufficient electricity, rest rooms, lockers, dispensary and washing facilities with adequate supply of water shall be provided separately for women employees.
6. The establishment shall bear the cost of the creche facility obtained by such women employees from voluntary or other organizations.
7. Establishment shall provide to and fro transportation facilities to such women employees from their residences to their workplace, free of cost and with adequate security. Further, with respect to such transportation facility, the employer should also ensure that:
   • Vehicle is equipped with GPS for tracking and monitoring purposes.
   • It has collected the bio data of each driver and it has conducted a background check on such drivers, whether on its own or through third-party service providers. Further, if such drivers are on the payroll of a third party service provider, the employer should ensure that the service provider has collected the bio-data of the drivers and have also conducted a background check on them.
   • The schedule of pick up and drop routes shall be decided by the supervisory office of the organization. Only in certain emergency situations, change in the routes to be taken/ drivers and their shifts shall be allowed with the prior knowledge of the supervisory officers/employees of the organization.
   • Contact details of the women employees (including telephone number, mobile number, email id, address) shall not be disclosed to unauthorized person.
   • Careful selection of the routes shall be done in a manner that no women employees are picked up first or dropped last. If women employees are being picked up first and dropped off last, security guards are to be provided in such vehicles.
   • To the extent possible, random checks of vehicle on various routes shall be conducted.
   • A control room/travel desk for monitoring the movement of the vehicles is established.

The establishment may also develop and adopt a mobile application which will allow the women employees to contact the organization through the application in times of emergencies. Further, the employer may also need to adhere to any additional compliance, as may be prescribed by the government. If an establishment fails to comply with the abovementioned provisions, it shall lead to the cancellation of its registration certificate.

Prior to the amendment, Section 25 of the Karnataka S&E Act prohibited employers from requiring/allowing women and young person[1]to work at night[2], except for IT/ITES establishments, which had been exempted from the above provision, subject to certain terms and conditions. The amendment to the Karnataka S&E Act is much awaited welcome measure thereby granting equal employment opportunity to women employees and at the same time ensuring their interest and safety

[1]As per Section 2 (z) of the Karnataka S & E Act, the term “young person” has been defined to mean a person who is not a child and who has not completed 18 years of age.

[2] As per Section 2 (m) of the Karnataka S & E Act, term “night” has been defined as a period of at least 12 consecutive hours which shall include the interval between 8 PM and 6 AM.

For more information on these articles or any other issues involving labour and employment matters in India, please contact Avik Biswas (Partner) of IndusLaw at avik.biswas@induslaw.com or visit www.induslaw.com.