Do RWAs need to conduct sexual harassment trainings in India as per the POSH Act?

Living in a Resident Welfare Association (RWA) should offer a sense of community and shared responsibility—this includes ensuring a safe and respectful environment for all residents and employees. However, much like formal workplaces, residential spaces can face issues related to sexual harassment.

A significant concern lies in the vulnerability of RWA employees, particularly blue-collar workers like security guards, housekeeping staff, and maintenance personnel. Many are unaware of their rights under the Prevention of Sexual Harassment (POSH) Act, 2013, which mandates safe workplaces. Even when aware, fear of retaliation or job loss can deter them from speaking up.

But does the POSH Act, which primarily governs workplace harassment, apply to RWAs and their residents? Do RWAs have a legal obligation to conduct POSH training?

Let’s break it down.

RWAs as Employers: A clear obligation

The POSH Act's direct applicability to RWAs hinges on whether the RWA acts as an "employer."

1. If your RWA employs 10 or more people, such as security guards, maintenance staff, administrative personnel, etc., then the POSH Act absolutely applies.

   
   

2. In this scenario, the RWA is legally obligated to:

   
   

   1. Constitute an Internal Committee (IC) to address sexual harassment complaints raised by its employees. The IC must include one external member.

      
      

      👉 For guidance on selecting the right external member, check out our blog: Choosing the Right External Member for POSH Compliance: Key Judicial Precedents and Best Practices

      
      

   2. Organise regular workshops and awareness programs to educate employees about:

      • The provisions of the POSH Act

      • What constitutes sexual harassment

      • The internal complaint redressal mechanism

What about residents? A grey area, but important

The POSH Act primarily defines a "workplace" within the context of an employer-employee relationship. Notably, the definition of "employee" under the Act is very broad—it includes not just full-time staff, but also:

• Contractual workers

• Interns

• Volunteers

• Individuals engaged without remuneration

Given that most RWAs rely heavily on a workforce comprising contractual staff for essential services like security, cleaning, and maintenance, the applicability of POSH becomes immediately relevant.

Furthermore, the legal landscape surrounding the classification of workers is not always clear-cut.

👉 For example, in a recent Bombay High Court decision, IIT Bombay was held liable to pay gratuity to long-service contract workers. This case underscores how obligations towards contractual workers can shift onto the principal entity. 🔗 Read more

👉 Further, the distinction between employees and independent contractors is fluid and context-dependent. Courts often evaluate multiple factors when determining the true nature of the relationship. 🔗 Read our blog – Distinguishing Employees and Independent Contractors: Factors Considered by Courts in India

These legal interpretations underscore that RWAs cannot simply overlook their responsibilities towards the contractual workforce operating within their premises.

Crucially, the POSH Act does not explicitly mandate formal POSH training and complaint mechanisms for all residents who are not directly employed by the RWA. This creates a perceived "grey area."

However, to consider the issue of sexual harassment within a residential community as irrelevant or unworthy of attention simply because residents might not fall under the strict employer-employee definition of the POSH Act would be a significant oversight. Several compelling reasons necessitate a broader understanding and proactive approach by RWAs:

1. The expansive definition of "employee" inherently includes a significant portion of the workforce within most RWAs. Contractual workers, who form the backbone of daily operations, are entitled to a safe working environment free from sexual harassment under the POSH Act.

   
   

2. The legal distinction between a contractual worker and a direct employee is often fluid and subject to judicial interpretation. RWAs risk potential legal liabilities by neglecting their responsibilities towards the contractual workforce operating under their authority and within their premises.

   
   

3. Harassment is not confined by professional roles; it can occur anywhere. Unfortunately, incidents of sexual harassment can and do happen between individuals residing within the shared spaces of a residential society, impacting the sense of security and well-being of residents.

   
   

4. RWAs bear a fundamental responsibility for fostering a safe and harmonious living environment for all members of their community. This responsibility transcends the strict legal definitions of the POSH Act and calls for a proactive stance against all forms of harassment. Addressing and raising awareness about sexual harassment is an integral part of fulfilling this duty of care.

   
   

5. Cultivating a Respectful Community is a shared goal. Conducting awareness sessions and establishing clear guidelines for respectful conduct among all residents, even if not explicitly mandated by POSH for non-employees, is a vital step towards building a more secure, inclusive, and harmonious living environment for everyone. Such initiatives send a clear message that harassment in any form will not be tolerated.

   
   

In Conclusion

• RWAs with 10 or more employees are legally mandated under the POSH Act to constitute an Internal Committee and conduct regular training.

• Contractual and temporary workers are covered under the Act, and liability can extend to RWAs in many cases.

• Residents are not directly covered under POSH, but harassment within residential spaces is real—and should not be ignored.

  
  

A responsible and forward-thinking RWA should take proactive steps to:

• Educate all stakeholders on appropriate behaviour

• Establish clear reporting and redressal mechanisms

• Promote a culture of safety, respect, and accountability