“Employer” under the PoSH Act
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 lays down the responsibility of effective implementation of the provisions of the Act on the Employer. The duties of employer are clearly elaborated in the Act. Therefore, it becomes important to understand who is considered as “Employer” under the PoSH law in respect of any workplace and therefore responsible for its enforcement in that workplace.
There are three different workplace situations considered in Section 2(g) of the Act to explain who is an Employer in the respective situation – the government offices, private / non-government offices and dwelling houses.
In case of any government department, organization, office or branch or any enterprise controlled by government, the head of office of such department, organization, undertaking, establishment, enterprise, institution, office or branch is considered as Employer.
In every other workplace, which can be categorized as non-government or private workplace, a person responsible for management, supervision and control of the workplace is considered as Employer.
For purposes of government offices as well as private workplaces, any person discharging contractual obligations with respect to their employees is also considered as Employer. Management includes the person as well as board or committee responsible for formulation and administration of organizational policies.
As far as dwelling house or dwelling place is concerned, any person who employs the domestic worker or benefits from the employment of domestic worker is considered as the Employer.
It is not necessary that the that the employer is the owner of the workplace. It is also not necessary that the employes is responsible for the payment of wages of the employees. The main test or criterion is who is in actual control of the workplace. Such person controlling the workplace shall be considered as Employer for the purposes of this Act.
The scope of term “Employer” is wide in case of this legislation so as to ensure that it shall cover as many kinds of workplaces as possible. It covers every person responsible for running of such workplaces irrespective of their title, post or position on paper. The test for assessment of Employer is always a practical one. Courts look at who is in charge of the workplace on ground rather than on paper. Every such person responsible has the duty to ensure that the workplace they control is a safe and secure place to work.
Adv. Sayali Ganu Dabake
Founder Partner
LexonomiX
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