“Gender equality is not about women, and it is not about men- it is about making workplaces work for everyone. Together we can fix work, not women”
India has always found itself grappling with the issues of gender inequality, women safety and workplace inclusivity. The same was apparent this year when it slipped to 124th rank against 123rd position last year, amongst 190 countries, in the gender equality indexcompiled by the World Bank. Contrastingly, the country stands at an impressive6th position of the top-most economies of the world.
The data makes one wonder, why are Indian women still unable to reap the fiscal benefits in a country that packs a promise of a visionary future.
The construction sector, for example, has seen ascarcity of women in administrative and technical roles. Job Profiles including architecture, engineering (structural or electrical), supervisory or maintenance, only comprises of 1.4% of women in such are said to hold such positions.
In January 2022, the Indian construction industry wasestimated to be over 2.7 trillion INR. TheQ4 2021 Global Construction Survey has further predicted the growth of the construction industry to increase by 16.5%, and eventually reach 42,127 billion INR within 2022.
According to areport titled “Inclusive by Design: Cementing the Future for Informal Workers in India’s Construction Sector”, published by the real estate developer Godrej Properties along with the non-profit organisation- Dasra, female workers in the Indian informal construction sector earn 30%-40% less than their male colleagues, particularly in the urban areas.
Further, the report has highlighted that the sector currently engages 50 million workers and has the highest number of migrant and informal workers, in comparison to any other industry of the country. Not surprisingly, the sector has 10 times more men than women, and the demand for women workers has beenrestricted due to known gender norms and skill gap assumptions.
Owing to the glaring disparities in the sector, the government has launched various
initiatives and schemes, that focus on women and to help them live with social dignity and provide them with substantial means to make a living:
(i) The Government of India had introduced the “Working Women Hostel Scheme” to provide working women with safe environment and accommodation, along with day-care facilities for children. Under this scheme, government provides construction grant-in-aid, along with new hostel buildings and further extensions to existing rental premises. Further, the scheme has preferences for women belonging to the deprived sections of the society, which makes the lives of the women somewhat easier.
(ii) The government has come up with thee-Shram Portal, that is the first Indian portal representing the national database of over 92% of our workforce belonging to the unorganised sector. The portal was launched in August 2021, as a response to the migration crisis experienced in 2020, wherein many workers had to walk back to their homes due to the then ongoing COVID waves. The aim of the portal is to register 380 million workers of the unorganised sector, which is also the estimated number of unorganised workers of India according to theEconomic Survey (2019-20). However, the numbers have been criticised to be inaccurate, and a2021 report by Azim Premji University has projected 415 million as the actual size of our informal sector. It is interesting to note that since the launch of the portal, there has been an increasing trend of more female worker registrations than male workers. According to the March 2022figures provided by the Ministry of Labour and Employment, of the 270 million registered workers, 53% registrations are from female workers.
(iii) The Indian budget of 2022-23 included the gender budget, with an aim to address challenges and create new opportunities for women. To be exact, INR 1,71,006.47 has been allocated for women-centric schemes, which is a5% increase from the 2021-22 gender budget provided by the government.
It is important to note that there have also been attempts to also measure the intensity of work done by women labourers in the construction sector. Ms. Sujata Madhok, under the National Commission for Women, New Delhi, complied a “Report on the Status of Women Workers in the Construction Industry”, wherein she highlighted the following:
- Under concreting, it was calculated that in 15 minutes, around 55 bundles (with weight 7-8 kg) pass through the hands of a woman workers. If this is calculated according to their 8-hour shift, this results in about 32,000 kg of weight being passed through a single woman worker’s hand.
- Under masonry, it was estimated that 9-12 bricks, with each brick weighing about 2.5 kg, was carried on the head of a woman, through the platform.
- For earth work conducted by women, it was estimated that women walked 30 feet to deposit 15 kg of mud and then returned, with this process being repeated 180 times in a day. When calculated, this comes out to be 21000 kg mud with a walk of about 13 kms on an average.
- With a match of productivity provided by able-bodied men, when using crowbars to dig, it was highlighted that it was done 15 times in 1 minute.
- Under curing, women carried 8 kg of water pots 15 times per hour, so that the water can then be poured over the concrete structures.
- For Jalli breaking, an iron hammer was used 52 times in 1 minute by a woman in a 9-hour shift, under which there was a break of only 1-hour in the middle.
Challenges and Gender Disparity Prevalent in the Industry
For gender-based violence and harassment (GBVH), construction is a high-risk environment, since it affects workers, community members, and even service users GBVH risks can further be intensified with an influx of more male workers from outside areas. This is considering that such outside workers often have large disposable incomes in comparison to the workers of the local community, and hence, there are more risks of violence, unequal transactional associations, and sexual harassment. Even during the construction phase, women are prone to numerous forms of harassment, including but not limited to abuse and exploitation. Among the female workers surveyed in astudy, 74% reported to have experienced sexual harassment at their construction sites. Such acts were committed mostly by supervisors and co-workers, especially due to the notion of the sexual availability of female construction workers. According toresearch conducted in Bhilai, India, it was found that 1 in every 3 construction workers was a female who regularly experienced exploitation and sexual harassment from their male counterparts. Such acts may also be the result of the mentality of working women being “impure” or “sexually available”, that is further reinforced in the society with the various caste and class discriminations included.
Some of thecommon problems faced by women construction workers are:
A. Gender Prejudice in Construction Sector
In India, even though women constitute almost half of the total number of construction workers present, , they are mostly employed asunskilled labourers. Their main tasks include carrying bricks, cleaning sites, mortar, gravel, and watering up the other available skilled masons and carpenters. Regardless of the time and experience women have gained in the industry, upgradation of their working levels is a very rare occurrence. This has further led to situations of gender discrimination in the sector, along with unequal wage distribution and work allocation opportunities. Eventually, women are forced to go through such inequalities in their social status, and they are not able to receive the social justice they deserve.
B. Wage Discrimination
Even though government has fixed the wage rates for skilled and unskilled labour for both public and private sector based on the hourly work performed, the industry practice is to have the job done in the form of contracts. This results in a cost saving mechanism for the government, and also provides contractors with the opportunity to negotiate lower wage rates. As a result, males who are skilled negotiators, but unskilled labourers end up with higher wage rates in comparison to female workers.
Further, even if women have the same skills as their male counterparts, they are not provided with equal opportunities in the work. The Thekedars, – the head of the workers, end up handing down the amount, which is good only for daily commuting and expenses, which further results in this disparity.
C. Sexual Harassment at Workplace
One of the main issues faced by women workers is sexual harassment. As highlighted before, almost 74% of women workers have accepted being sexually harassed at their workplace. Further, a vicious trap gets created for women since they have to please their contractors to get more work, considering that they belong to the vulnerable workforce. Evidently, most of the women working in the industry are between16-40 years. According to asurvey conducted in Punjab, almost 55% of the female respondents were between the age gap of 21-30 years, and another 37.5% women were between 31-40 years. Further, most of the women workers are married and have a hard time balancing between their home and their job. It is seen that employers prefer having younger women workers as well. This leads to further cases of sexual exploitation, resulting in their exploitation, desertion of their spouses, and the loss of their job as well on the whims and fancies of their employers.
Surprisingly, even though such hostile situations are noticed by all women, they continue with their job, often preferring to work at these evidently unkind construction sites.
There can be several factors affecting their decisions in such cases. Some of the most common factors include social forces, family income, season, etc. About 46% of women workers have reported that that they have been abandoned by their husbands or are widows, or if the husband is present, he is either unemployed or a drunkard, hence, they are forced to work to support the family and fund the education of their children. About 4% are forced to work in such conditions due to poverty, and about 10% prefer working to help their working family members or to increase their economic status. It is only about 4% women who do not have any such explanations and have joined the industry with their own choice.
D. Health Hazards
Construction is often seen as a major source of air pollution and is often banned whenever an increase in pollution level is detected. As has beensaid by Polash Mukerjee, who is associated with the Natural Resourced Defence Council (US-based non-profit international environmental advocacy group), “Essentially, pollution in a construction site is different from others, as the process includes construction, renovation, demolition, transport and the material from dust such as metals and other material emit toxic fumes”. He further highlighted, “Women, especially in India’s construction sector, are largely employed as daily wagers… They stay in informal settlements in and around the construction sites and have high exposure to particulate dust and gaseous matter”.
To add to the trouble, women are also impacted by the solid fuels, often used for domestic cooking with charcoal, cow dung cakes, and wood. Female construction workers, considering they are often employed as unskilled labour, majorly deal with raw materials, leading to greater exposure to air pollution risks combined with lower wages.
Legal Framework and Precedents
The informal economy of India is majorly gender-biased, considering that almost95% of the female workforce has been a part of the unorganised sector, implementation of laws and their effective use by the female population requires further deliberation.
The importance of the sexual harassment at workplace laws had been highlighted by theJustice J.S. Verma Committee Report of 2013, wherein it had been proposed that the law should have wide scope and include “every female member of the national workforce”. It was majorly highlighted in the report that informal sector must not be exempted from such legislation, considering it includes a major part of the women workforce.
The United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was ratified by India in 1993, and this convention has covered sexual harassment at workplace within the ambit of human rights violation. Further, India is a party to theInternational Covenant on Economic, Social and Cultural Rights, that has expressly highlighted that all workers are eligible for “safe and healthy working conditions”, and further envisaged that states have the duty to make appropriate laws for the prohibition of sexual harassment at workplace, along with ensuring that adequate mechanisms and procedures exist to establish criminal sanctions for the offenders.
The landmark treaty ofViolence and Harassment Convention was recently adopted by the International Labour Organisation (ILO) in 2019, that underlined the concept of “world of work”. Under this convention, for the first time, an international legal instrument setglobal standards on how to respond to violence and harassment at workplaces. With a wide scope of covering for informal and formal economies, the convention along with including employees, also includes “persons working irrespective of their contractual status, persons in training, including interns and apprentices, workers whose employment has been terminated, volunteers, job seekers and job applicants, and individuals exercising the authority, duties or responsibilities of an employer”. India too voted in favour of this Convention, at the time of its adoption.
As has been provided under theIndian Representation of Women (Prohibition) Act, 1987, if harassment is faced by an individual through photographs, pamphlets, books, packages, films, etc., which also contain the “indecent representation of women”, then they are liable for at least 2 years of imprisonment.Section 7 of the Act further states that if there has been any “indecent representation of women” on the company premises, then the offenders shall be liable for at least 2 years of imprisonment.
The industrial activities of the construction sector do not fall within the scope of “manufacturing” as defined in theFactories Act, 1948. However, the Building and Other Construction Workers (Regulation of Employment and Condition of Services) Act, 1996 (BOCW), enacted in August 1996, safeguards workers against the risks faced by construction workers, including but not limited to, repair, alteration, demolition work, maintenance, and others. It is imperative to note that, the said Act has only been made applicable to those companies having ten or more workers in a building, or if the construction workers have been employed for a time period not preceding twelve months.
While social security and welfare scheme implementation for construction workers, including female construction workers, for their maternity and health cover, disability cover, financial assistance in education of the children of registered works, skills development, pensions, transit housing, etc.,have been provided for in the Act, it still fails to emphasise on the problems related to GBVH at workplace.The Maternity Benefit Act, 1961, has also been made applicable to informal sector businesses that employees ten or more workers, resulting in other businesses not being covered under the ambit of the Act.
Vishaka Guidelines and POSH Act
In the infamous case of Rajasthan, the honourable Supreme Court observed inter alia that, “Gender equality includes protection from sexual harassment and right to work with dignity, which is a universally recognised basic human right”.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act (POSH) was enacted by the legislature in 2013, with an objective to protect and prevent the female working cohort, of both the formal and informal sectors from being exposed to workplace harassment, and stipulate an effective redressal mechanism to address such concerns in a time bound manner.
It is pertinent to note that, the Act provides protection to female employees in the private and public sectors, including but not limited to education, health, sports, government institutions, transportation, and any other place visited by the employee within and during the course of employment. Hence, the Act envisages to extend legislative protection to every woman within the premises of a workplace, irrespective of her employment status with the concerned organization.
Section 2(p) of the Act defines the unorganised sector as a site where the business is owned by self-employed workers or individuals, and where the workers have been engaged in the production and manufacture of goods and services, and the enterprise engages less than ten workers. Section 2(e) of the Act separately defines domestic workers, as 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 agency on a temporary, permanent, part time or ful1 time basis, but does not include any member of the family of the employer. The Local Committee must separately refer complaints of such domestic workers to the police officers within 7 days of the offence, under Section 509 (“word, gesture or act intended to insult the modesty of a woman”) of the Indian Penal Code, 1860.
For complaints of sexual harassment at workplace within the unorganised sector, the resolution mechanism has been provided under Section 7 of the Act, where the Local Committees are expected to discuss the terms and conditions to address such complaints. Further, the proper implementation of the POSH Act, monitoring by the relevant government authorities under Section 23 of the Act, wherein they also need to maintain proper records of the complaints and their status has been envisaged. While the written laws look good, theissue in their proper implementation is an entirely different discussion.
One of the advantages of the POSH law is that it extends a non-adversarial intervention to such incidents. It is usually observed that the survivors of sexual harassment are often hesitant to approach the police or get tangled into the complexities of the courts, leaving them with no alternate means to seek redressal. Under POSH, the committees set up within the private company, or the local committees can conduct the necessary due diligence and investigation into such complaints, and recommend appropriate actions to be taken against the perpetrator. These actions can range from directing the perpetrator from issuing written apologies to the complainant to termination of their employment.
The NGO, Initiatives for Inclusion Foundation had filed aPIL in the Supreme Court of India in 2017, to seek the effective implementation of the rules and regulations mentioned under the POSH Act. The PIL is still pending before the Supreme Court. (Initiatives for Inclusion Foundation & Anr. v. Union of India & Ors. W.P. (C) 1224/2017).
Under the petition, it was provided that the requirement of the constitution of Local Committees, was fulfilled only by 5 states (Kerala, Chhattisgarh, Madhya Pradesh, Haryana, and Karnataka) and 2 Union Territories (Dadra and Nagar Haveli and Daman and Diu). Further, it was stated that no state was able to provide a record of the government initiatives and efforts to create awareness for the POSH Act. Mainly3 solutions were provided under the petition for the effective compliance of the POSH Act – (i) Through the proper constitution of Local Committees in all states and union territories; (ii) Nodal officer appointments in each district (tehsils, blocks, and talukas in rural areas and municipality or wards in urban areas); and (iii) Spreading more awareness and information related to the POSH Act.
There was another PIL filed before the Madras High Court in 2017 (R Karuppusamy v. State of Tamil Nadu & Ors. W.P. 106340/2017) seeking the proper implementation of POSH Act in Tamil Nadu. To be more particular, the petition focused on the bland implementation of POSH laws in factories and mills of the state. Eventually, it was ruled by the court that all collectors of all districts need to submit individual reports related to the status of the constitution of local committees and information related to the sexual harassment at workplace complaints.
Solution and Conclusion
Female unskilled workers often work as agricultural labourers in rural areas, and with a change in the season, shift towards the construction industry to meet their household expenditure. In addition to tolerating obstacles from their community and families, they also have to face sexual harassment, wage discrimination, injuries, etc at workplace. A change in this scenario can be observed only with proper government interventions, and through the strict implementation of the existing laws, especially at the local and ground levels. Further,stringent action must be taken against the proved offenders, which can further help in changing the mindset prevalent in the society.
Additionally, it is also essential to undertake awareness initiatives about remedies and legal provisions catering to workplace harassment, amongst men and women working in the unorganized sector since implementation of the law cannot be truly achieved without communicating its true impact to the community.
Further, extending amenities like toilets, safe drinking water, separate closures for men and women, resting places, shelters, etc can further help in providing a safe and secure workplace for the construction workers. Creche facilities must exist at every construction site, with women being in charge of the facilities.
It is also imperative to address wage disparity prevalent in the industry. Maternity leaves and breaks for women who are breastfeeding must also have a proper procedure in the unorganised sector. It is interesting to note that, majority of such mandates have been envisaged under the Factories Act, 1948, however the concerned provisions are inapplicable to the women working at construction sites.
True change will only be observed when the right to a safe working environment, equal employment opportunity and access to basic amenities shall be perceived as an important extension of human rights. The blurring of geographical and jurisdictional working boundaries and exponentially changing facets of employment law should prompt the concerned authorities to strengthen the current regime that shall enable the country to foster a capable workforce across all the sectors.
The information contained in this article is for general information purposes only. The views, thoughts, and opinions expressed in the article belong solely to the author, and not necessarily to their employers, organizations, committees, or other groups or individuals to which they are affiliated.
About the Authors
Ms. Kritika Bhatt is an Associate at Fox Mandal and Associates. Ms. Muskaan Aggarwal is a 4th year law student at Jindal Global Law School, Sonipat, 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: Sukrut Khandekar
Preferred Method of Citation
Kritika Bhatt and Muskaan Aggarwal, “Gender-Based Violence & Harassment in the Construction Sector: Addressing Gaps between Policy and Implementation” (IJPIEL, 23 June 2022)