Introduction
The transition from a “daylight only” to a 24/7 economy is not just about business growth but about gender equality and creating a workplace that works for everyone. For decades, women have been held back in their careers because of outdated provisions in the Factories Act of 1948. However, India is witnessing a historic shift. Women have the legal right, as per the OSH Code, 2020 (“OSH”), under Section 43, to be employed in all establishments for all types of work, including night shifts between 7:00 PM and 6:00 AM. This new labour environment replaces outdated prohibitions with a robust and informed system that provides for the implementation of the safety, health, and welfare provisions. In this article, we will see how the new labour environment, from the use of GPS technology in transport and CCTV surveillance to the provision of crèche facilities and fair representation in grievance redressal mechanisms, is making the night shift a safe and viable opportunity for women in India.
Legal Background
Earlier, the traditional labor laws have been restrictive for women to work at night. The concern was based on safety issues. But with the change in economic conditions and the need for gender equality in employment opportunities, these restrictions have been relaxed. The current regulatory framework allows women to work at night, but within a framework of strict compliance with safety and welfare issues:
- The Occupational Safety, Health, and Working Conditions (OSH) Code, 2020: This is the most critical code because it specifically deals with night work. Section 43 of the code has the legal provision to enable women to work in all establishments and for all types of work, including night work. The provision requires voluntary written consent from the employee.
- The Sexual Harassment of Women at Workplace (POSH) Act, 2013: This is the non-negotiable backbone of providing security in the workplace. The Act provides for the formation of an Internal Committee (“IC”) under which every employer with more than 10 employees is required to have an effective committee in place to deal with sexual harassment cases. The Act assumes that safety is not just confined to the office boundaries and that transport-related sexual harassment is included under the “workplace.”
- Code on Wages, 2019 (“COW”): This act acts as a protective measure against exploitation and lack of representation. The provisions of the act concerning the Gender-Neutral Pay are as follows: “It is now a strict legal mandate that equal pay for equal work is a must.” Section 3 of the act explicitly prohibits any kind of gender-based discrimination in the matter of employment and wages for similar job roles. The employers are required to pay at least twice the normal wage for any overtime work under Section 14 of the act. The act mandates that at least one-third of the members of Central and State Advisory Boards must be women under Section 42 of the act.
- Industrial Relations Code, 2020: This code is intended to modernize the system of handling disputes in the workplace and representation of employees. It places particular emphasis on the participation of women in these processes. It has mandated, under Section 4 of the code, the formation of the Grievance Redressal Committee (“GRC”). Every industrial establishment with 20 or more workers has to form one or more GRCs. It has been mandated that the representation of women in the GRC shall not be less than the proportion of the total female workforce in that establishment. However, the total members of the GRC shall not exceed ten. It has been mandated that the chairmanship shall rotate between employers and employees on an annual basis. Every grievance has to be filed within one year of the grievance rising. It has to be settled within 30 days.
Conditions For Allowing Women To Work Night Shifts
For the purpose of employing women for night shifts, the employer must obtain their voluntary written consent, as no employee can be coerced into working the night shifts against her will. The other requirements include the provision of an extensive security system, such as door-to-door GPS transportation, the provision of security personnel, and the provision of high-standard lighting and CCTV surveillance. The physical environment must also be conducive for the employees, such as the provision of strictly separate toilets, the provision of emergency response systems, and access to medical facilities and the provision of adequate rest breaks. The key requirement in the provision of night shifts for women is the provision of zero tolerance for harassment, for which the employer must adhere strictly to the requirements of the POSH Act and provide an IC that is functional at all times.
Judicial Precedents Supporting the Nightshifts For Women
The Supreme Court, in a landmark case of arising out of the RG Kar incident, set aside a state government West Bengal Night Shift Directive (2024) that barred women doctors from working the night shift. The Supreme Court was very categorical in its pronouncement, saying, “You cannot tell women not to work at night. Women do not ask for concessions. Women ask for equal opportunities.” Furthermore, in the case of Sushma Devi v. State of Himachal Pradesh (Himachal Pradesh High Court, 2021), The court held that the gender ban was set aside by this court, saying that it was based on “male chauvinism” and denied women economic freedom. The court held that a ban on women working the night shift based on gender was discriminatory.
Significance of the Provision
The importance of these provisions in the New Labour Codes represents a paradigm shift from “protection through restriction” to “empowerment through mandated safety.” With the operationalization of the OSH Code, the government has removed the glass ceiling that has denied women entry into high-growth, 24/7 sectors such as manufacturing, logistics, and tech-driven exports. It fosters gender equality by allowing women to draw night shift allowance and double overtime payment through the COW act, while at the same time mandating the “digital safety net,” including GPS-tracking of transport and CCTV surveillance, as a non-negotiable prerequisite for employment. Moreover, the IRC act ensures that this shift is not merely about physical safety but also about institutional representation. Taken together, these codes provide a supportive ecosystem in which women have the opportunity to engage in round-the-clock career opportunities while at the same time protecting their safety and dignity.
AMLEGALS Remarks
The evolution of labour laws in India can be seen as a shift from a protective approach to a more empowering approach. By moving from the blanket approach of prohibition to the informed approach of consent and compliance, the new Labour Codes ensure that safety and growth are no longer conflicting ideas. For the employer, compliance is not just the law; it is the assurance of a diverse and 24/7 available workforce. For the women employees of the nation, these changes are the institutional and physical security needed to reclaim the night shift as a place of excellence in their careers. And as the judicial system continues to strike down gender-based restrictions, the message is clear: the night shift is no longer a “risk” to be managed by prohibition, but an “opportunity” to be secured by compliance.
For any queries or feedback, feel free to connect with Hiteashi.desai@amlegals.com or Khilansha.mukhija@amlegals.com