Women Workers under India’s New Labour Codes: Continuity or Dilution of Statutory Protection?

This shift is kind of double-edged sword, because of which it results in the dilution of enforceable protections. Many safeguards will now depend on employer consent, future government schemes, or delegated rules, which at some level weakens certainty and access at the ground level.

The imperative for reform and the gendered lens

India’s pre-2020 labour regime was characterised by a paternalistic approach towards women; laws such as the Factories Act, 1948 and the Mines Act, 1952 explicitly prohibited the employment of women workers during night hours and in hazardous processes. These laws, although aimed at preventing exploitation and ensuring safety, put restrictions and effectively curtailed women’s economic agency. They had no option except to choose low-paying day jobs and excluding them from continuous process industries. The Madras High Court in R. Vasantha v. Union of India¹ struck down Section 66(1)(b), Factories Act, 1948, which prohibits women workers from working night shifts and held that the provided protection under the Act is a form of discrimination, it is violative of Articles 14, 15 and 16 of the Constitution, and laid down the guidelines and welfare measures for women workers who come forward to work the night shifts. In 2002, this judgment, along with the Second National Commission on Labour recommended that we should move from protectionist approach to a more enablement approach,² a philosophy that ostensibly underpins the new Labour Codes.

The Wages Code, 2019 — equity, remuneration, and disciplinary mechanisms

The Wages Code, 2019 extends minimum wage provisions to all workers by universalising them and also prohibits gender discrimination, which was limited under the previous regime, and shows signs of progress, but at the same time it misses the opportunities to achieve real gender parity. A highlighting provision of Wages Code is that the wages are defined uniformly across all Labour Codes. The proviso to Section 2(y), Wages Code provides that if the excluded components exceed 50 per cent of the total remuneration, then the excess amount shall be deemed as wages. So, from now, employers would not be able to escape their contribution liabilities toward the employees, but if we see this from other side then we would see that women workers often receive compensation packages structured with high allowances to minimise the employer’s retiral liability. By capping exclusions at 50 per cent, the Wages Code ensures a higher baseline for the calculation of gratuity, provident fund (PF), and maternity benefits (which are based on wages). This effectively enhances the long-term social security and maternity payouts for women, addressing the issue of take-home pay versus social security. However, immediate take-home pay may decrease due to higher PF deductions, but the long-term financial security is strengthened through a larger retirement corpus, which will ensure dignity in post-retirement years.

Further, Section 3, Wages Code prohibits discrimination on the grounds of gender in matters relating to wages by the employer, in respect of the same work or work of a similar nature. This phrasing is a direct borrowing from Section 4 of the repealed Equal Remuneration Act, 1976 (ERA), while the International Labour Organization (ILO) recommends equal pay for work of equal value³ which is a broader standard for comapring dissimilar role and will help in reducing inequality and increase in reputation. In contrast, the Wages Code standard of same work or work of a similar nature remains restrictive in its approach, in assessing the same work or similar nature of work, experience, skill, effort, and responsibility under Section 2(v), Wages Code would also be considered, but the standard still falls flat as it requires a direct comparison between a woman and man performing an identical or nearly identical work.

In Mackinnon Mackenzie & Co. Ltd. v. Audrey D’Costa⁴, the Supreme Court of India interpreted Section 4 ERA concerning of same work or work of a similar nature, ruling that the burden of proof is on the employer to show that the work is not similar. The Wages Code retention of the ERA‘s language implies that the Mackinnon Mackenzie precedent remains valid. However, without explicit legislative adoption of “equal value”, the judiciary remains the sole avenue for expanding the scope of equal pay, a route often inaccessible to low wage women workers.

The Wages Code does, however, expand protection beyond wages to recruitment. Section 3 prohibits discrimination on the grounds of sex in recruitment and conditions of employment which ensures continuity with Section 5 ERA. While the proviso permitting exceptions where employment is “prohibited or restricted by or under any law” remains, while its practical scope should theoretically narrow as the Occupational Safety, Health and Working Conditions Code, 2020 (OSH&WC Code) replaces blanket prohibitions with regulated safety guarantees. Further, the Wages Code adds a new protection for women workers provided under Section 29(d), which provides that the employee who is dismissed after being convicted of sexual harassment will not get the statutory bonus benefit.

The OSH&WC Code: Mobility versus vulnerability

The OSH&WC Code consolidates laws related to factories, mines, plantations, and contract labour, and fundamentally changed the regulatory landscape for women’s safety and working hours. Historically, Section 66(1)(b), Factories Act, 1948, had imposed a blanket ban on women working in factories between 7.00 p.m. and 6.00 a.m., this provision was challenged in the R. Vasantha case⁵, in which the Madras High Court held that Section 66(1)(b) was unconstitutional. The High Court further held that the protective discrimination cannot be turned into a denial of opportunity and livelihood, and hence, violating Articles 14, 15 and 16. In 2008, the Supreme Court in Anuj Garg v. Hotel Assn. of India⁶ reinforced the principle and struck down bans on women who were working in liquor bars, by stating that the State’s incapability to ensure safety cannot be a ground to restrict women’s freedom.

Section 43, OSH&WC Code codifies these judgments by explicitly permitting women workers to work in all establishments for all types of work, including night shifts, subject to the consent of woman, and also provided that it is a duty of the employer to provide adequate safety, working conditions, and safeguards for the women workers concerned. Generally, the labour market is seen as high unemployment with low bargaining power, in such market the concept of voluntary consent might be risky for women workers, as refusing night shifts might face implicit hiring discrimination or be bypassed for promotions which could hamper the interest for them.⁷ If we read Section 43, OSH&WC Code, with Rule 73, Draft Occupational Safety, Health and Working Conditions (Central) Rules, 2025 (Draft OSH Rules) then we found that it establishes a baseline for women’s safety during night shifts as it mandates that employers must obtain written consent from women employees and also has to provide adequate transportation facilities for pick-up and drop-off from their residence. The Draft OSH Rules explicitly mandate for closed-circuit television (CCTV) surveillance near workplace facilities such as washrooms and further mandates for dedicated emergency telephone numbers which must be displayed conspicuously not only at the workplace but also inside the transport vehicles. The Draft OSH Rules requires not less than three women employees to be on duty at any place for underground mining. These provisions are robust on paper, but they also add compliance costs which could disincentivise smaller firms from hiring women for night roles.⁸ The new law replaced old legal ban with a new financial barrier which could impact the interest of women workers.⁹

Section 2(w), OSH&WC Code raises the threshold for applicability of factories from 10 to 20 workers in factories with power and 20 to 40 workers without power in factories. This change particularly focuses on the growth of micro, small, and medium enterprises (MSMEs) by reducing compliance burden, but women workers who are largely concentrated in MSME sector, and particularly in the garment, textile, and food processing sectors.¹⁰ By raising the threshold, the OSH&WC Code effectively pushes thousands of small garment units out of the ambit of the factory definition. Women working in these deregulated units lost their statutory rights of safety committees which is mandatory only for 500+ workers, for canteens which is mandatory for 100+ workers, and for crèches too for which the threshold is 50+ workers. In industries such as garment manufacturing, where women face risks of byssinosis (lung disease from cotton dust)¹¹ and ergonomic injuries,¹² the removal of strict Operational safety oversight for units not falling under the ambit of factory definition under the will lead to significant dilution of health protection. will lead to significant dilution of health protection.

The Factories Act, 1948, mandated crèches for factories with more than 30 women workers. The OSH&WC Code modifies this to establishments with 50 or more workers. While the gender-neutral provision trigger is progressiveness and will acknowledge the male childcare responsibilities, the numeric threshold from 30 to 50 workers allows mid-sized firms to escape the obligation. Although, the OSH&WC Code introduces the concept of common crèche facilities for class of establishment, allowing firms to pool resources or use State/private facilities within a prescribed distance. But the problem could arise where the common crèche facility will be far from the establishment where the concerned women work.

The Social Security Code, 2020 — inclusivity and its limits

The Social Security Code, 2020 consolidates nine laws, aiming to extend social security to the unorganised sector. Its treatment of maternity benefits and domestic workers offers a study in contrast. The Social Security Code retains the core provisions of the Maternity Benefit Act, 1961 (as amended in 2017), granting 26 weeks of paid leave for biological mothers. It formalises benefits for adoptive mothers adopting a child below three months and commissioning mothers for 12 weeks of leave. The recognition of commissioning mothers aligns with the Delhi High Court’s ruling in Rama Pandey v. Union of India¹³, which held that a commissioning mother is entitled to maternity leave to bond with the child. However, the statutory cap of 12 weeks compared to 26 weeks for biological mothers shows a hierarchy of motherhood. In the Rama Pandey case, the Court emphasised that the need for bonding and care is identical regardless of the biological method of birth. The 12-week limit in the Social Security Code arguably ignores this judicial reasoning, focusing solely on the physiological recovery of the birth-giving mother rather than the caregiving needs of the child.

Further, the Social Security Code creates a separate category for gig and platform workers, funded by a levy of 1-2 per cent capped at 5 per cent of the aggregator’s turnover. For women using platforms (for example, beauty services, caregiving apps) this is a significant step towards formalisation. However, these benefits are scheme-based not statutory rights such as gratuity or PF and solely depend on the government notifying specific schemes. Also, these benefits will depend on voluntary registration and based on opt-in model, but ILO reports on the informal sectors provides that the voluntary systems would lead to low coverage, unless it falls in mandatory coverage.¹⁴

The Industrial Relations Code, 2020 — representation and precarity

Notable progressive measure provided in the Industrial Relations Code, 2020 (IR Code), by mandating for gender equity in the Grievance Redressal Committee (hereinafter, “GRC”). Under Section 4, every establishment employing 20 or more workers must constitute a GRC, the explicit proviso of Section 4(4), that women’s representation therein must be “proportionate” to their strength in the workforce. This creates a critical separation of powers from the Internal Committee (IC) under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. While the IC is restricted solely to sexual harassment, Section 4(10), IR Code expressly excludes such matters from the GRC, thereby reserving the GRC for broader individual disputes such as wages, leave, promotions, discriminatory shift allocation, bias in performance appraisals, etc. which ensures that women’s rights at the workplace are recognised beyond the scope of safety. But the dichotomy remains in the IR Code as it provides the proportionate representation for the women workers in GRC yet remain silent on women’s representation in work committees. This dichotomy is nothing but the result for half-baked legislative intent, and path to cover for women workers still remains.

Conclusion and way forward

The new Labour Codes have marked a historical shift from a protection-based approach to an enablement-based approach towards women workers by removing blanket restrictions on women’s employment and also strengthen wage security through a uniform wage definition. New Codes also recognise categories such as commissioning mothers and platform workers which further align with the constitutional principles of equality and also with the judicial rulings that reject paternalistic barriers to women’s right to work. Although on paper, the Codes are promising greater mobility, formal inclusion, and long-term social security for women workers across sectors.

This shift is kind of double-edged sword, because of which it results in the dilution of enforceable protections. Many safeguards will now depend on employer consent, future government schemes, or delegated rules, which at some level weakens certainty and access at the ground level. Increased thresholds under the OSH&WC Code exclude a large number of women working in specifically MSMEs from safety, health, and childcare benefits.

In social security, maternity and platform worker benefits largely remain unequal and highly discretionary. Long story short, the Codes reflect a continuity in formal equality, they also represent a dilution in guaranteed protection and without strict enforcement, lower thresholds, and conversion of scheme-based benefits into clear statutory rights, the promise of gender justice under the new Labour Codes could only remain symbolic.