Section 66(1)(b) of Factories Act, 1948 prohibits women from being engaged in a factory from 7 PM till 6 AM. State Government through a notification in the Official Gazette may allow employees to work till 10 PM at night and begin work at 5 AM in the morning.
Women working at fish curring and fish canning industries are exempted from these provisions. There are similar provisions in the Shops & Establishments Act prohibiting engagement of female employees during night time.
Section 66(1)(b) of the Factories Act, 1948 has been declared as unconstitutional by the Madras & Gujarat High Court, as the same has been considered discriminatory and against Fundamental Right of equality enshrined under Article 15 of the Constitution. However, Kerala High Court has upheld the constitutionality. The Madras High Court laid down certain conditions for protection of women incase they are required to work beyond 10 PM, which includes protection against sexual harassment, separate transportation facility, separate canteen facility/restrooms, women to work in groups etc. However, Section 66 is valid in other states as on date preventing female employees from working after 7 PM in the evening till 6 AM in the morning.
In case of commercial establishments the State Governments have been granting exemption to specific establishments or group of establishments, such as IT companies, Hotels, Media Companies etc., allowing them to engage female employees beyond permissible hours at night. These exemptions are conditional and employer needs to follows certain measures such as;
Special arrangements should be made for protection of female employees working before 6 AM and after 8.30 PM including transport.
Female employees should be provided job jointly or in group.
Arrangement of rest rooms and lockers should be made for all women employees.
No women employee shall be asked to come for night shift for more than 15 days.For both factories and commercial establishments maximum permissible working hours in day is capped at 9 hours and in a week is capped at 48 hours. Any work beyond these periods is classified as overtime for which an employee is entitled to be paid at twice the ordinary rates of wages. Any deviation from this would require prior intimation and confirmation of the relevant regulatory authority. Under no scenario in factories can the total number of hours of work in a week, including overtime, exceed sixty and in a quarter total number of overtime hours exceed 50. Each State Govt. has prescribed similar limits on overtime hours in commercial establishments.
Similarly the spread-over of an employee in day whether in a factory or commercial establishment cannot be beyond 12 hours including intervals of rest in day under normal circumstances. Spread-over basically means the time period between commencement and termination of work. On certain days in year such as; year-end closing; financial year closing etc. spread over hours can be extended by taking prior permission of regulating authorities.
1. No woman worker shall be allowed to work in any Establishment between 9.30 pm to 7.00 am. Sec. 13.
However, woman worker with her consent shall be allowed to work during 9.30 pm to 7.00 am, provided, Employer provides her adequate protection of their dignity, honor and safety, protection from sexual harassment and their transportation from establishment to residence.
However State Govt. reserves its rights by notification in official gazette, in the public interest, prohibit or regulate the employment of woman worker during 9.30 pm to 7.00 am.
HENCE NO NEED TO SEEK EXEMPTION UNLESS AND UNTIL GOVT. HAS PROHIBITED EMPLOYMENT OF WOMAN WORKER DURING 9.30 PM TO 7.00 AM
2. Yes Female employee can deny for the night shift if there consent is not taken.
Thanks a ton for ur response.
Do anyone have the amended bill of Maharashtra factory act 2015 (not the drafted copy) ?
If it is clearly mentioned in the offer/appointment letter of doing rotational shifts which includes night shifts and accepted by the candidate then i dont think an additional consent letter is needed.
However offer/appointment letter should clearly mention rotational shifts which includes night shifts
Pl. to inform you that, one of the unit in Pune area has got the stay (interim relief) on section 66(i)(b) of Factories Act, from Bombay High Court. If you want to know more pl. share your contact no.
Employers have to give an undertaking about provisions as prescribed in conditions are made.
# Consent of female employees has to be obtained.
# Transportation to & fro with security is to be arranged.
# Seprate rest rooms to be arranged.
# Crech facility is ensured.
Section 66(1)(b) proviso (Further restrictions on employment of women) Section 66(1) amongst others restricted women employees to work in any factory except between the hours of 6 A.M. to 7 P.M.However, the State Government may, by a notification in the Official Gazette, vary these limits to the extent that no woman shall be employed in factory between the hours of 10 a.m. to 5 p.m.
But with the amendment of 2015 in Maharashtra Rules, the postion has gone undergone change. The women workers are now allowed to work even between 7:00 p.m. and 6:00 a.m. in any factory in which prescribed adequate safety and security measures or safeguards are provided. Women workers are now allowed to work in night shift provided the prescribed rules as to their safety and safeguards is adequately provided.
Note: At present the rules for adequate safety and safeguard of women employees have not been provided in the Maharashtra Factories Rules 1963.
You may verify the position from the office of local factory inspector. As the position is understood, in Maharashtra there is no requirement of consent of women employees for night shift. Rest depends on the applicable provision of Standing Orders and Notice of change requirements highlighted already.