Night shift (12AM-8AM) for women employees - does it require their written consent?

For the employment of women in night shift duties in factories, does it require their written consent? If at the time of appointment the corporation has not informed about shift duties, can they deny?

The following is for your information, but contact your factory inspector:

Section 66(1)(b) of the Factories Act, 1948 prohibits women from being engaged in a factory from 7 PM until 6 AM. The State Government, through a notification in the Official Gazette, may allow employees to work until 10 PM at night and begin work at 5 AM in the morning. Women working in fish curing and fish canning industries are exempted from these provisions. Similar provisions exist in the Shops & Establishments Act, prohibiting the engagement of female employees during nighttime.

Section 66(1)(b) of the Factories Act, 1948 has been declared unconstitutional by the Madras & Gujarat High Court, as it is considered discriminatory and against the Fundamental Right of equality enshrined under Article 15 of the Constitution. However, the Kerala High Court has upheld the constitutionality. The Madras High Court has laid down certain conditions for the protection of women if they are required to work beyond 10 PM, including protection against sexual harassment, separate transportation and canteen facilities, restrooms, and working in groups. Section 66 remains valid in other states, preventing female employees from working after 7 PM until 6 AM.

In the case of commercial establishments, State Governments have been granting exemptions to specific establishments or groups, such as IT companies, hotels, and media companies, allowing them to engage female employees beyond permissible nighttime hours. These exemptions are conditional, and employers need to follow certain measures:

- Special arrangements for the protection of female employees working before 6 AM and after 8:30 PM, including transport.
- Female employees should be provided jobs jointly or in a group.
- Arrangement of restrooms and lockers for all women employees.
- No female employee should be asked to work night shifts for more than 15 days.

For both factories and commercial establishments, the maximum permissible working hours in a day are capped at 9 hours and in a week 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 rate of wages. Any deviation from this would require prior intimation and confirmation from the relevant regulatory authority. In factories, the total number of work hours in a week, including overtime, cannot exceed sixty, and the total number of overtime hours in a quarter cannot exceed 50. Each State Government has prescribed similar limits on overtime hours in commercial establishments.

Similarly, the spread-over of an employee in a day, whether in a factory or commercial establishment, cannot be beyond 12 hours, including intervals of rest under normal circumstances. Spread-over refers to the time period between the commencement and termination of work. On certain days in a year, such as year-end closing or financial year closing, spread-over hours can be extended by obtaining prior permission from regulating authorities.

As per new Maharashtra S&E act
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.

Sir,

Thank you very much for your response. Does anyone have the amended bill of the Maharashtra Factory Act 2015 (not the drafted copy)?

Dear All,

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 don't think an additional consent letter is needed. However, the offer/appointment letter should clearly mention rotational shifts, which includes night shifts.

Thank you.

In this case, the appointment order does not mention night shift work. In such circumstances, it is crucial to provide a 21-day notice of the decision to implement night shifts as per section 9A of the Industrial Disputes Act. However, the most critical aspect is to obtain permission from the relevant authority, the Inspector of Factories and Boilers, to employ women during night shifts.

There are some general permissions for employing women during night shifts granted by the Labour Commissioner in accordance with the state's labor and IT policies. However, these permissions are not universally applicable but are specific directives relevant to certain industries such as hospitals, hotels, IT & ITES establishments, etc. There are valid reasons why women should be permitted to work at night in these industries.

In contrast, in a non-public utility service like a factory establishment, I doubt permission would be granted to employ women during the night. Therefore, before issuing a notice under section 9A or seeking consent from female workers, please ensure that you can legally engage them.

Dear Friend,

Please be informed that one of the units in the Pune area has obtained an interim stay under section 66(i)(b) of the Factories Act from the Bombay High Court. If you would like to learn more, please share your contact number.

Regards.

Dear All,

Please find the latest amendment on Section 122 of Tamil Nadu Factories Rules: "Insertion of clause 84B - Guidelines for the employment of women employees in night shift."

Kindly check with your state Factories Rules.

Thanks,
Ratikanta Rath

Most of the things that the occupier is required to ensure before women employees are engaged at night are also applicable when they are engaged during the daytime. Sexual harassment can occur at night as well. It is not acceptable for men and women to use a common toilet during day shifts. Separate restrooms, lunchrooms, etc., are basic requirements when engaging women during the daytime. Would you allow male workers to visit women's hostels at odd times? No. Would you have male wardens at women's lodging places? No, we will only have female wardens there. When we engage male workers at night, will we not provide adequate lighting inside and outside the factory? Is it the case that men have the vision of cats and can see in the dark? The regulations regarding two-thirds of the total workers and one-third of female supervisors seem to be ridiculous.

In the state of Gujarat, a special notification from the Director of Industrial Safety and Health provides conditional permission to engage female employees in night shifts. Employers have to give an undertaking regarding the prescribed conditions.
- Consent of female employees must be obtained.
- Transportation to and fro with security must be arranged.
- Separate restrooms should be provided.
- Childcare facilities must be ensured.