Women are effectively second-class citizens of Nepal. This is a cruel reality that needs to be accepted first before approaching any subject matter in concern with women in Nepal in general. Due to age-old practices, in the patriarchal Nepali society, laws are built and implemented to suppress and control women, and not to protect or provide women with their individual rights and identities. In today’s generation where the world is seeing the evolution and development of various innovative ideas, that have made a significant impact in making the world a better place or at least trying to make it big impact, women’s independent identity is still in question. As a society, we often celebrate and congratulate women successfully managing to make it big. However, it is equally important to raise issues of women that remain unrecognized and struggle to earn their independent identity. Women always get called out for trying to undertake what is called a “man’s job”. The basic norm of society isthat technical work and expertise are not the domain of women, and this view has remained consistent through our social values and norms.
Therefore, this blog is dedicated to the women masons working in Nepal, who are breaking all the stereotypes and earning towards becoming self-sufficient and independent women in their own capacities.
Scope for Transformations and Organising for Change
First, as a society, there needs to be a huge transformation in thinking with regard to the man’s and woman’s jobs. As a society, we need to develop our thinking and give women the choice of their preferred job. Women are capable enough to make decisions for themselves and we should rather focus on their training to successfully achieve such objectives. One of such training initiatives to break stereotypes was undertaken bythe United States Agency for International Development (USAID) through the Tayar program which provided advanced masonry training to women workers, especially related to seismic retrofitting. Typically, these technical skills, including laying bricks, mixing concrete, and plastering were considered a male domain, however, this masonry training provided better qualifications to women workers for technically challenging jobs, who can now earn equal to their male counterparts.
With an increasing number of Nepali men leaving their home country to work abroad, every year a greater number of women join the construction industry as workers. According to the2017-18 Nepal Force Labor Survey, about 111,000 women have been employed in the industry, in comparison to 867,000 male workers. However, women labor workers are forced to work in problematic conditions, hardly ideal for anyone. As highlighted by a2-year research project, conducted by the University of London’s School of Oriental and African Studies (SOAS), titled “Precarity, Migration, and Agency: Women Construction Workers in Nepal”, safety regulations have been widely ignored in the industry, with many not having proper work contracts.
Thedevastating earthquake of 2015 in Nepal, which resulted in the destruction of around 8000 school buildings, resulted in massive construction opportunities, especially for women, in Nepal. Further, to prevent such situations from recurring, and to prevent such destruction from taking place due to natural calamities, which are quite often in Nepal, rethinking the construction industry was a priority, to rebuild the nation.
The blog was written on the online portal of Crown Agents, with the title“Breaking down Gender Stereotypes, One Brick at a Time”, has mentioned Dhansara Subedi, who became a laborer in her home district of Achham, where she works in the reconstruction of her daughter’s school. She contributes to all the same manual tasks expected of men working on the site. She has been employed under the United Kingdom Agency for International Development (UKAID) Safer Schools Programme (NSSP), which has been managed by the Crown Agents (a not-for-profit international development agency). She is just one among the 118 women that have been engaged in the program to reconstruct 200 school buildings in 4 major Nepal districts. She is engaged with the work related to the installation of preparedness systems, emergency school drills, and evacuation plans, so that destruction may be minimized during an earthquake, landslides, flooding, or other such natural disasters. This is one of the great examples where a woman is taking charge as a hero towards building Nepal in their capacity, one brick at a time.
However, the construction business was affected by the global pandemic of COVID-19, since the situation was unexpected and there was a lack of preparedness. Hence after the pandemic hit, in order to continue the work safely, NSSP rapidly procured personal protective equipment for the laborers as well as applied temperature checks and social distancing measures for all on-site staff. Extra toilet facilities and handwashing stations were built within building plans to promote hygiene practices and to reduce transmission risks when normal schooling resumes. New payment methods were also considered like bank transfers for safer transactions during the pandemic. The program claims that women are paid equal to men, despite the construction industry tending to pay men higher wages than women.
It’s not that, women were not working in the construction sector before. They have been working in this sector for a long time, but the problem here is they are not recognized but rather looked down upon. Most are still categorized as‘helpers’ and a much smaller number have begun to work as masons. Fighting for equal pay is one of the most relevant issues in this sector, as women are paid almost30% less than men for the same work. Although the pay gap is a central issue, the problem here is wider. Women in business seek decent housing, guaranteed work, childcare, and facilities so that they can send their children to school. All of these problems should be taken into consideration and state mechanisms, in particular, should come forward for protecting women’s interests in the businesses which are male-dominated and where rules are formed only from the man’s perspective.
Thearticle published in the Kathmandu Post published on July 26, 2019, discussed several fronts of the problems faced by the women workers in the construction sector in Nepal. It states that the issues such as equal pay, safety at the workplace, harassment, better facilities, and insurance among other welfare schemes are still going unaddressed. Women construction workers continue to face gender discrimination, which is seen in their treatment in the workplace, along with the payment disparities.
The construction industry is still prey to the thinking that women should be paid less than men due to their working capacity. They believe men work more than women and that is the reason that men are paid more than women. It is bizarre that in today’s world of globalization and modernization the women in Nepal have to deal with such preconceived notions towards them. The women from their cradle are left to deal with the societal norms and values towards them and that is the major reason behind women in Nepal being left uneducated, poor, and suppressed. Similarly, the high number of women workers persists because the construction sector is always in need of more laborers, and in order to meet the ends they choose to work in the construction sector which leads to exploitation on several fronts. The article mentions the findings of a two-year research project, one beingthe SOAS project discussed before, that studied the conditions, experiences, and strategies for women workers. The research was conducted through interviews and over 100 women construction workers based in Kailali, Sapatari, Nuwakot, Myagdi, Kavre, Sindhupalchowk, Nuwakot, Kathmandu, and Lalitpur were interviewed in the process. The research gathers the experiences of women construction workers working under dangerous conditions, unequal and inadequate pay, gendered discrimination, time poverty, and sexual harassment in the sector and how these women are organizing themselves to improve in these conditions and make demands on government and employers. “Although women are entering the construction sector, which has been traditionally dominated by men, they are still seen viewed as mere helpers,” said Feyzi Ismail, one of the researchers on the Project. The research found out that for the purpose of fighting against discrimination, the research found that women workers have started uniting to protect their rights through formal channels, like forming labor unions. The research shows another revelation that women workers who were not affiliated with such groups had less chance of even getting work on construction sites.
Gender Justice Under Nepal’s Legal Framework
The Labor Act of 2017, applies to both the formal and informal sectors, but the maximum execution can only be seen in the formal sector. The reason for the informal sector lacking the implementation of the applicable laws of the nation is major because the relevant ministry, i.e.,The Ministry of Labor, Employment, and Social Security has failed miserably in effectively enforcing the laws. Not only enforcement but the regulatory mechanisms, in governing the informal sector, has also not been up to the mark. The Ministry should take responsibility for allocating an adequate number of inspectors to enforce the basic labor rights which have already been guaranteed by the existing labor laws.
However, precedents for gender-based equality have been established by the judiciary of Nepal wherein, remarkable decisions have been made by the Supreme Court, in favor of creating an equal environment for women specifically.
For example, in the case ofSarala Rani Rauniyar, the petitioner asked the court to declare Section 21(a) of the Income Tax Act 1974, as ultra vires. The section said that the woman’s income is to be calculated in her husband’s name, and she argued that this law was discriminatory and violated the right to equality. However, the petition was unsuccessful since the court made it clear that equality can’t be absolute in nature, and laws can be held discriminatory only when they deliver arbitrary categorizations, based on gender. Here, the court said that since there is no provision for lower tax rates on the husband’s income, in comparison to the wife, it is not discriminatory in nature.
However, a completely different approach than Sarala Rani Rauniyar was adopted by the court in the case ofRina Bajracharya. The petitioner, in this case, sought action against the discriminatory rules of the Royal Nepal Airlines Corporation (RNAC), also known as the Nepal Airlines Corporation, related to the division in the retirement age of the employees with distinctions between male and female. It was held that Rule 16(1)(3) was discriminatory in nature, as it violated the right to equality, and hence, the RNAC Service Regulations were held invalid by the court.
As can be seen, distinct approaches have been taken by the court in these cases, wherein the first makes justifications for some discriminatory laws since they do not result in unreasonable classifications, while the other entitles equal fundamental rights to both men and women. Therefore, the Supreme Court of Nepal has successfully promoted an equal playing field for working women, by combining a strict non-discrimination approach with minimum redistributive measures.
This approach has further been taken by the court in cases related to quotas and public employment access for women. Inthe case of Pradhosh Chetri, the issue of reservations was adjudicated by the Supreme Court of Nepal, wherein the issue was related to women and other marginalized groups, and their enrollments in academic institutions. Eventually, the government was instructed to uplift the weaker sections of the society and provide them with equal rights by enacting the required legislation. Further, inthe case of Pro-Public (2062), to support and advance women in the public sector, the government was ordered to simplify and probation period length for female civil service employees, by the Supreme Court of Nepal. The Supreme Court of Nepal inthe case of Mira Dhungana (2064), struck down Rule 10 of the Royal Nepal Army Rules. This rule asked for discontinuation of services for daughters of servicemen after their marriage, where the court held this rule to go against the right to equality. Taking this case as a precedent, the Supreme Court of Nepal inthe case of Sapana Pradhan Malla, annulled one of the provisions of the Military and Police Regulations, which highlighted women must be unmarried to join the force. Here, the rule was only applicable to women and not to men.
Therefore, the Supreme Court of Nepal has unambiguously, unequivocally, and consistently declared that women working in the labor market have the constitutional right to equality, they must not be subjected to any discrimination based ontheir gender and that equal treatment must be provided to both men and women.
In a published compendium titled “Compendium of Landmark Judgments of the Supreme Court of Nepal on Gender Justice and Equality (2020)”, the Nepal Judicial Academy has incorporated some important decisions and their ratio decidendi related to issues of women’s property rights, self-respect, self-determination, reproductive health employment, identity, marriage, family relationship, special protection for the women in cases of gender and sexual violence and being victimized due to unequal treatment in various walks, and other issues relating to gender justice and equality as well.
A few remarkable decisions documented in the publication as mentioned above are listed as follows.
The case was adjudicated on provisions related to childcare and breastfeeding, wherein it was held that such provisions and their applicability are important rights for women workers. Women have a right to motherhood, the children of women workers have the right to have access to health and nutrition, and mothers have a right to work. The court highlighted that Section 42 of the Labor Act, 1992 BS already relates to the health and rights of children, and His Majesty’s Government must take the responsibility to properly implement such provisions, and not leave them passive. Therefore, the court issued an order to His Majesty’s Government for the proper implementation of Section 42.
The concerns of the petitioners in this case related to child health and maternal protection matters. It was highlighted by the court that when a worker wants to leave work, a verbal or written request must be submitted to the employer, and the employer has the power to accept or reject the request by considering the circumstances. Since such a right is not a constitutional right, it is not for the state to interfere in such matters. Further, the court held that matters related to maternity leave cannot be counted to come under Article 11 of the Constitution of the Kingdom of Nepal, 1990, dealing with the right to equality. This is mainly because services and their conditions are contractual in nature, and not a statutory right as enacted by the Parliament. However, since women need a safe working environment during pregnancy, the State is responsible to make and provide women workers with special arrangements, keeping their protection, nutrition, and health in mind.
Further, since a minimum of 14 weeks of maternity leave is mandatory to be provided to all women under the International Labor Organization’s Convention on Maternity Protection, 2000, the court had issued a directive order to His Majesty’s Government and had asked them to prescribe fixed minimum maternity leave provisions, by keeping the appropriate standards in mind.
The Supreme Court of Nepal, therefore, must exercise its power conspicuously to render the Government to frame laws in accordance with international human rights, norms especiallyCEDAW (Convention on the Elimination of All Forms of Discrimination against women).
In conclusion, to eliminate the perpetuating gender-based classification of work and profession, women and men must be made aware of the rights available in the current legal regime. More importantly, women must be made aware of their right to participate and their potential to bring about changes in their lives and the nation as a whole. Until the current system of male dominating society exists women cannot gain the confidence to step out of the house or voice their opinion and if the personality of women is suppressed, they cannot excel in any profession. Therefore, henceforth, every woman must be appreciated, educated, and groomed in such a way that they are not limited as mothers of a child but also will be looked up to as working individuals and so on so forth.
About the Authors
Ms. Ashma Rajopadhyaya is an Advocate and Associate at Gandhi and Associate.
Ms. Muskaan Aggarwal is a 3rd Year law student from Jindal Global University (JGU), NCR, and an Associate Editor at IJPIEL.
Managing Editor: Naman Anand
Editors-in-Chief: Jhalak Srivastav and Muskaan Singh
Senior Editor: Gaurang Mandavkar
Associate Editor: Muskaan Aggarwal
Junior Editor: Tisa Padhy
Preferred Method of Citation
Ashma Rajopadhyaya and Muskaan Aggarwal, “How Nepal’s Women Masons thrive in the Construction Sector – Breaking Gender Stereotypes and Organizing for Change” (IJPIEL, 3 June 2022)