The curious case of C190
The women in participation shared case studies, issues that need immediate attention, modules that worked in their context and the battles yet to be won.
By Kannalmozhi Kabilan
CHENNAI: 50 women leaders from 20 countries recently came together under the banner of the Asia Pacific Forum on Women, Law and Development (APWLD) to discuss the perils of being a woman in the workplace, especially the informal sector of it all. The women in participation shared case studies, issues that need immediate attention, modules that worked in their context and the battles yet to be won.
Beyond all this, they ended the session with a unanimous call to ratify the C190 Violence and Harassment Convention — of the International Labour Organisation as a definitive means to address gender-based and workplace harassment and violence. In a country where the majority of the workforce is in the informal sector, such a ratification still seems like a distant dream.
While India boasts of many laws and regulations that address workplace harassment, violence against women and gender-based discrimination, its implementation has been questionable on several counts. While the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act of 2013 aka PoSH Act is quite comprehensive in addressing the issue, it has little bearing in the informal sector, which registers over 90 per cent of the entire female workforce.
Even in the formal sector, the worker’s contract status could make them ineligible for some of the provisions under the Act. “Given our legal history, it has attempted to look at violence against women in a piecemeal fashion. And if you look at all the labour laws and protective legislation for the informal sector, domestic workers do not even count as workers. In that context, it becomes very important to challenge the existing framework,” suggests Sujata Mody of Penn Thozhilalar Sangam, adding that this is why the C190 is extremely pertinent for our country.
A world of difference
So why C190? It is the first international law to establish the right of everyone to a world of work free of violence and harassment, including genderbased violence and harassment. Working off of this premise, it extends its protection to all workers, no matter the status of the contract be it a freelancer or one hired through a third-party platform or volunteers or interns. It then goes on to offer a much wider definition of ‘workplace’. It takes into account not just the place of work, or place of work-related events, but also includes places where the worker is paid, takes a break or uses sanitary facilities, work-related communication, employer-provided accommodation and the way to and from work.
The other important aspect, established through Recommendation 206, is the protection of workers’ right to unionise. While the Constitution and The Trade Unions Act, 1926, already offer this right, the recent Industrial Relations Code, 2020 pushed through the levels of the Parliament with much haste and amid widespread criticism during the pandemic has only diluted its provisions, among many others.
In this context, that C190 combines this right with the provision to address workplace harassment is seen as nothing short of radical. S Thivya Rakini of Tamilnadu Textile and Common Labour Union (TTCU), who spoke at the APWLD conference, shares her enthusiasm for this instrument of law. “C190 is a huge victory for the trade union movement because it has been pushing for years for an international instrument to eradicate genderbased violence.
Its ratification will definitely give a new momentum to the trade unions. All labour laws were brought in only after a long battle by trade unions. But these laws have been diluted by the Labour Code. Even if we take the closure of mills, for example, there is nothing the workers can do under the Code. We only have the National Company Law Tribunal but none of the vulnerable, poor labourers are familiar with these courts to fight for their rights be it salary dues, closure settlements, gratuity pay,” she explains.
Recommendation 206 (which provides guidance on the implementation of C190 at the national level) also brings attention to vulnerable groups and suggests that such vulnerability should be interpreted in accordance with the appropriate international laws and conventions. This would include “indigenous peoples, disabled persons, lesbian, gay and transgender persons, persons discriminated against on the grounds of race, colour, descent, national or ethnic origin and migrant workers.”
“This is very important for migrant fishworkers living in a vulnerable situation, especially during a pandemic,” begins Venugopal, programme head of International Collective in Support of Fishworkers (ICSF) Trust. “This applies to the informal sector at large too. Our world is one of harmful masculinities, no? In that way, there is restricted mobility for informal workers. So, this convention offers better social protection schemes for migrant workers, especially women.
Most of the ILO conventions are landmark instruments where the synergies of the world are put into. So, these conventions are very good for countries for India to ratify and also look at the recommendation applicable,” he elaborates. Besides these provisions that offer better redressal for the informal sector, it has much to offer women and transwomen of the formal sector as well. As much as our country’s laws already make it mandatory for employers to put in place an Internal Complaints Committee (ICC), reality is far from ideal.
Even companies that do have the committee make it difficult for the workers to actually come forward with complaints, given that it’s often staffed with the employers themselves and NGO representatives who have a donor relationship with the company, points out Thivya. The C190, on the other hand, digs deeper and provides for workers to take part in the design and implementation of the workplace policy; it builds in provisions for monetary compensation, reinstatement/resignation with compensation, etc. It also asks more of the resolution mechanism, insisting that courts have the expertise of handling gender-based violence and harassment cases. It asks for guides and resources to be available to the workers in the languages that are widely spoken.
Starting from scratch
Even as there is much need to bring this comprehensive convention home, there is much left to be done before we can go down that road in a country where even the Minimum Wages Act has not been implemented, says Maitreyi Krishnan of Alternative Law Forum. “And workers can’t complain about it because if they do, they will lose even what they are getting. We have a large workforce in forced labour today and nothing has been done about it.
The system that we have in place perpetuates it. The new Labour Code encourages contractualisation (as opposed to permanent worker status). This pushes more people into the unorganised workforce. The Code makes it all the more difficult to unionise; it brings in all kinds of penalties for collective action. If you can’t unionise, if you don’t have j o b security, how will anything (law) be enforced? Unless we tackle this foundational issue, anything that we bring for protection will not work out,” she offers. Yet, this will be a good start, suggests advocate Sudha Ramalingam.
“Such international conventions, though not a panacea, will go a long way towards welfare legislations and welfare measures being taken by ratifying nations. CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women) was adopted in 1979 yet discrimination against women has not become a myth. But, definitely, many progressive welfare legislations, including the Protection of Women from Domestic Violence Act, the PoSH Act came to be passed. Budgetary provisions have been provided for implementing the objects,” she points out.
While the ILO calls for unions to campaign for the ratification of the C190 and R206, there’s much that we can do to make that happen, says Sujata. “Every time a law is brought in, we start very effectively and then reach a dead end. I believe the Tamil Nadu government should review all laws related to violence against women — be it sexual harassment at the workplace or domestic violence. It’s important for them to create a commission to see how these laws have devalued and become ineffective. We need to build a very strong case to ratify C190 and we should be able to lead that process from Tamil Nadu,” she says. It can begin with the formation of a separate ministry for women’s welfare, suggests Evidence Kathir, a human rights activist.
“When we have separate ministries for minorities welfare and backward classes welfare, we can have one for women’s welfare. Within this, we can have systems that monitor harassment cases, keep a tab on the investigation and procedure, take care of reservation and representation and handle the schemes for women,” he says, adding that gender sensitivity training should be made mandatory across sectors.
Even as trade unions are expected to lead the fight, Sudha questions the feasibility of such an operation in a country where they are fast disappearing. “Where are the labour unions now? Capitalism has broken all effective labour unions. There seem to be no collective bargaining. India has not even ratified the refugee convention or the protocol for right to life etc. Ideally, this must be ratified but in a non-welfare state like ours it seems to be a distant dream,” she concludes.
Courtesy : TNIE