The Kerala High Court (“Court”), on 17th March, 2022, through the judgment of Women In Cinema Collective vs State Of Kerala, 2022 held that there did, for a fact, existed an employer-employee relationship between the actors and their respective production units, and that the film production units served as their “workplace” as defined under Section 2(o)(ii) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”).
Women in Cinema Collective (“WCC”/”Petitioner”) brought to the notice of the Court, through a catena of writ petitions, that the Association of Malayalam Movie Artists (“AMMA”/”Respondent”) had failed to set up a grievance redressal mechanism i.e., Internal Complaints Committee (“ICC”) as per Section 4 of the POSH Act to deal with cases of sexual harassment, and as such, wanted the court to direct them to set it up. While the Petitioner contended that the absence of the same was illegal, arbitrary and violative of their fundamental rights, the Respondent altogether denied being governed by the provisions of the POSH Act since they were neither a “workplace” nor their existed an employer-employee relationship between the members and the organisations.
Between the battle of arguments advanced from both the sides, the Court ruled in favour of the Petitioner, and upheld the requirement of setting up an ICC at each individual production unit.
- Whether the Respondent organisations falls within the definition of “workplace”?
- Whether there exists an employer-employee relationship between the actors/artists and the Respondent, and thus, arises the obligation to constitute an ICC?
The Petitioner contends that the failure on part of the Respondent organisations to set up an ICC renders the Petitioner helpless when faced with a case of sexual harassment. They reasoned their criticism by citing violation of the guidelines set by the Hon’ble Supreme Court in Vishaka v. State of Rajasthan, 1997 (“Vishakha Guidelines”) and the provisions of the POSH Act. To course correct, the Respondent organisation was required to set up an ICC to deal with cases of sexual harassment.
The Respondent argued that in a production set up, the “workplace” varies from place to place on the basis of different stages of production. They also mentioned that in case of film production, it is an association of various actors/artists and that the Respondent is not an “employer” and hence, there exists no employer-employee relationship between the Respondent and its members.
Although the Respondent had set up a Women Cell Grievance Forum to abide by the Vishakha Guidelines, it admitted to having no control over the members, collectively and entirely, since they were individually booked on a project to project basis, and were also a part of different associations.
The State Government, in adding to the same line of arguments, supported their claim and said that “employer” as defined under Section 2(g) of the POSH Act did not cover voluntary organisations like the Respondent organisations.
- While the Court did mention that the different organisations within the film industry were not the employers of the actors/artists, but the way these organisations were structured, they had their own employees. As such, if the head count of employees exceeded 10, then they will be required to establish an ICC as per Section 4 (Constitution of ICC) read with Section 6 (Constitution and jurisdiction of Local Complaints Committee/”LCC”) of the POSH Act.
- As far as the film industry is concerned, it was held that each individual production unit was the workplace of an individual film, and therefore, they would be mandated to constitute an ICC.
- The Court observed that the basic requirement to become an “employee” was to be employed at a workplace. Considering Section 2(o)(ii) of the POSH Act, since the Respondent organisation maintained a workforce for the establishments and engaged in activities as defined under the said section, they were individually required to establish an ICC.
- Further, the Court remarked that any and every establishment, private institution, or organisation employing workers and ticking off the boxes of “employer-employee relationship” and “workplace” are mandated to create an ICC.
Sum of all Observations
- Every production unit of a film industry, employing more than 10 workers/actors/artists are required to have an ICC in place.
- Women workers engaged with any of such Respondent organisations where the employee headcount is less than 10, they are well within their rights to file their complaints with the LCC as per Section 6 read with Section 9 (Complaint of sexual harassment) of the POSH Act.
- In response to one of the writ petitions involving allegations of sexual harassment against members of a political party, the Court held that parties which are not sharing an employer-employee relationship with its respective members and are not falling within the definition of “workplace,” are not required to constitute an ICC.
Vaishali Jain, Advocate & Associate – POSH at Work & Sampoorna Chatterjee