Compliance issues in complying with POSH Act

POSH Act is referred as the Sexual-Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

While this Act is a good initiative by the Government there are some compliance issues which are not very clear in the Act. Listed herein are some common Questions asked for Compliance with this law:

1. Is this Act applicable to all companies?

As per section 6(1) every District Officer shall constitute in the district concerned, a committee to be known as the "Local Complaints Committee" to receive complaints of sexual harassment from establishments where the Internal Complaints Committee (referred as "ICC") has not been constituted due to having less than ten workers or if the complaint is against the employer himself.

Based on the interpretations of the above provisions, we can infer that every establishment having 10 or more employees the Act is applicable and such companies are required to constitute an ICC.

2. What is the purpose of this Act?

This Act was enacted to provide protection against sexual harassment of women at the workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto.

3. Is there a requirement to have a Policy for a company?

The provisions of section 19 of this act state that every employer shall:

a) formulate and widely disseminate an internal policy or charter or resolution or declaration for prohibition, prevention and redressal of sexual harassment at the workplace intended to promote gender sensitive safe spaces and remove underlying factors that contribute towards a hostile work environment against women.

b) carry out orientation programmes and seminars for the Members of the Internal Committee.

c) carry out employees awareness programmes and create forum for dialogues which may involve Panchayati Raj Institutions, Gram Sabha, women's groups, mothers' committee, adolescent groups, urban local bodies and any other body as may be considered necessary.

d) conduct capacity building and skill building programmes for the Members of the Internal Committee.

e) declare the names and contact details of all the Members of the Internal Committee.

f) use modules developed by the State Governments to conduct workshops and awareness programmes for sensitizing the employees with the provisions of the Act.

4. How many members should constitute an Internal Committee?

The Internal Committees shall consist of the following members to be nomination by the employer, namely: -

a) One Presiding Officer
b) not less than two Members from amongst employees
c) one member from amongst non-governmental organizations or associations.

Provided that at least one-half of the total Members so nominated shall be women.

5. Who is a presiding officer and an external member?

Presiding Officer means the Presiding Officer of the Internal Complaint Committee nominated under Section 4(2) of the Act.

As per section 4(2) of this act, a Presiding Officer shall be a woman employed at a senior level at the workplace from amongst the employees.

External Member means a member from amongst non-governmental organizations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment.

6. What is the difference between a Local Complaints Committee and an Internal Complaints Committee?

Note: As per the Repealing and Amendment Act, 2016, for the word "Local Complaints Committee", wherever they occur, the words "Local Committee" shall be substituted; and for the word "Internal Complaints Committee" wherever they occur, the words "Internal Committee" shall be substituted with the effect from May 6, 2016.

7. Should there be a meeting of the members of Internal Committee?

As per section 21(1), The Internal Committee or the Local Committee, as the case may be, shall in each calendar year prepare, in such form and at such time as may be prescribed, an annual report and submit the same to the employer and the District Officer.

Based on the interpretations of the above provisions, we can infer that the annual report shall be approved by the members of Internal Committee in the meeting of the members of Internal Committee.

8. Is there any reporting requirement with Labour Commissioner?

As per Section 21(1) of the Act, the Internal Committee or the Local Committee, as the case may be, shall in each Calendar Year prepare, in such form and at such time as may be prescribed, an Annual report and submit the same to the employer and the District Officer.

As there is no specific format prescribed, Rule 14 has provided the details to be included in the Annual Report which is as follows:

The Annual Report which the Complaints Committee shall prepare under Section 21, shall have the following details '

a) number of complaints of Sexual harassment received in the year
b) number of complaints disposed off during the year
c) number of cases pending for more than 90 days
d) number of workshops or awareness program against Sexual Harassment carried out
e) nature of action taken by the employer or District Officer

Section 26(1)(c) states that where the employer contravenes or attempts to contravene or abets contravention of other provisions of this Act and any rules made thereunder shall be punishable with fine which may extend to Fifty Thousand Rupees.

Therefore, an Annual report is required to be submitted in each Calendar Year in such format mentioning such details to the District Officer.

Section 5 states that the appropriate Government may notify a District Magistrate or Additional District Magistrate or the Collector or Deputy Collector as a District Officer for every District to exercise powers or discharge functions under this Act.

However, in general practice the same is submitted to the Labour Commissioner of the respective District.

9. Is there a requirement to conduct any awareness program for employees?

As per section 19(c), every employer shall organise workshops and awareness programmes at regular intervals for sensitising the employees with the provisions of the Act and orientation programmes for the members of the Internal Committee.

10. What is the requirement of reporting in the Boards' Report prepared under Companies Act, 2013every year?

As per section 21(1) of this act, the Internal Committee or the Local Committee, as the case may be, shall in each calendar year prepare, in such form and at such time as may be prescribed, an annual report and submit the same to the employer and the District Officer.

As per Section 22, the employer shall include in its report the number of cases filed, if any, and their disposal under this Act in the Annual Report of his organization or where no such report is required to be prepared, intimate such number of cases, if any, to the District Officer.

The phrase 'Annual Report of his organization' is interpreted to mean the Board' Report of the Company prepared as per Section 134(3) of the Companies Act, 2013.

Courtesy: Sundharesan Jayamoorthi