Anti-sexual harassment policies take centre stage
MUMBAI: There's one thing that Ramesh Shankar, executive VP-HR, Siemens India, does not forget to do when he travels across the multiple locations of the organization. He continuously takes feedback from women employees whether they consider the company as a safe place to work. Any suggestion from these employees on safety aspects, he said, is welcome.
While such actions may instill confidence in women employees, what is further reassuring is the fact that the new Anti-Sexual Harassment at the Workplace Act and Rules have come into force from December 9, this year, which every company would have to comply.
Non-compliance would subject a company to a fine of Rs 50,000. While this amount is a pittance compared to the kind of turnover some of the large companies generate, the question that is being asked is whether these norms are being followed not just in letter but in spirit as well.
Some companies, which may already have in place anti-sexual harassment policies, may still find that one or two steps are missing and are swiftly moving to tie up these loose ends. RPG Enterprises is in the process of appointing a sexual harassment committee in line with the new rules. "Till now, the committee was a part of the RPG corporate governance and ethics committee and will now hold a separate identity," said Arvind Agrawal, president-corporate development & HR, RPG Enterprises.
ome other companies have proactively gone beyond what is mandated by law in the constitution of committees. Siemens and Hindustan Unilever (HUL) have designated the external independent woman member as the chairperson of the committee. "We are hopeful that this will inspire further confidence to escalate complaints," said an HUL spokesperson. Deutsche Bank has what it calls 'first points of contact' or FPOCs, who are nominated women employees, making them more approachable by staff across levels. The responsibility of FPOCs is to immediately escalate any issue to the complaints committee.
"With the Act coming into place, we have intensified our employee communication and have devised various mandatory training programmes to sensitize colleagues about sexual harassment,'' said Makarand Khatavkar, head, HR, Deutsche Bank India, who believes the new rules do not really entail any significant change for the current Deutsche Bank policies, which have been compliant with the Vishakha guidelines since 2010.
However, Deutsche Bank India is aware of the fact that provisions of the new rules extend not just to employees but also to external stakeholders interacting with its employees, i.e. customers, vendors, visitors, interns. "The guidelines are not limited to the office premises alone - they also apply in any outside locations such as client meetings, offsites. These nuances have now been incorporated into our internal policy and vendor contracts,'' said Khatavkar.
Section 4 of the Act requires that the internal committee shall comprise a presiding officer, who shall be a senior woman employee. The internal complaints committee is also required to have not less than two members from among employees (preferably committed to the cause of women or who have had experience in social work or have legal knowledge), one external member from an NGO or association dealing with women causes or a person familiar with issues relating to sexual harassment. At least half of the composition of this committee is required to be women.
A Procter & Gamble India spokesperson said the company is fully supportive of the new regulations that will only help to further ensure that all workplace environments are conducive to the success of women in business. "We already have robust policies on appropriate business conduct where we also provide the necessary tools and forums," said the spokesperson. Even as companies introspect on these regulations, given the raised pitch against sexual harassment in the recent past, experts have picked on a few glaring holes in the new rules, some of which could have been filled.
For instance, a pertinent recommendation of the Justice Verma Committee, which had looked into issues relating to sexual harassment against women, has been ignored. "Instead of calling upon companies to set up internal committees an independent employment tribunal could have been set up to receive and address all complaints of sexual harassment," said Shwetasree Majumdar, co-founder of Fidus Law Chambers. "This tribunal would have ensured parity of decisions across companies," she said.
There is also wide amplitude and discretion in the hands of the internal complaints committee because a range of punishments (from written apology to termination of services) are prescribed under the rules for the offender, who has been held guilty by the complaint committee.
The rules, according to Vikram Shroff, head HR Law, Nishith Desai Associates, international legal counselors, do not provide clarity on whether an organization can have the flexibility to set up a complaints committee centrally (for example at its head office) in case it has multiple offices within a city or in the country. HUL, on its own, has constituted six committees that cover all its workplaces across India under this legislation.
Moreover, the fees payable to the external committee member for holding the proceedings, said Shroff, appear very low (Rs 250 per day plus reimbursement of transport cost). This may discourage NGOs from active participation on this important cause, he said.
Competition Act mum on liability
Nandini Sen Gupta, TNN | Dec 25, 2013, 01.51AM IST
CHENNAI: The Competition Act does not offer clear cut guidelines on personal liability of top officials in a company under investigation. According to senior lawyers, the act is "unclear" about whether the "personal" liability of top managers is included in the company liability or over and above that penalty. However, the new Companies Act 2013 does have more teeth in fixing responsibility on errant top management.
Amitabh Kumar, partner in law firm J Sagar Associates and former director general of theCompetition Commission of India between 2004 and 2009, said, "Under the new Companies Act, if a director of a company is found to be contravening it, under Section 48, the Competition Commission can fix responsibility and if Compat ( Competition Appellate Tribunal) agrees with that decision, that accused person loses eligibility to be director elsewhere as well. Increasingly, the CCI is asking the director general to find out which officials are responsible for contravention of the Competition Act. But
the law is not clear whether the personal liability is included in the company liability or is over and above it. The implications under the Company's Act are more severe."
The "personal responsibility" of top officials in a company under investigation has been a subject of discussion among corporate lawyers, particularly the extent of liability and whether it is "over and above" the penalties faced by the organization. That would include top managers who may have subsequently quit the organization.
CCI has, so far, fixed a combined penalty of over Rs 8,000 crore on 154 parties though the total amount recovered is a miniscule Rs 19.37 crore. "The actual recovery is less because the law allows appeals to Compat and there are instances where Compat reduces the penalty," said Kumar. "None of the appeals have been finally disposed of - by Compat or the higher courts. It has not reached default stage yet so we don't know what the recovery rate will be," he added.
The latest case involves Coal India where the CCI has fined the company Rs 1,773 crore for abuse of market dominance in an order issued in the first week of December. "In a case like Coal India, the penalty paid would, you can argue, go to the consolidated fund in any case, so why should the PSU oppose it?" said Kumar. "But being a penalty and not dividend, it has a stigma attached to it and therefore any company, private or public, will appeal against the decision," he added
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