September 17, 2021

Equal Pay : A Step Towards Equality

law

When we pay women less than men we’re telling women their work isn’t as valuable. We’re all equally valuable. And we should be paid equally.” [1]

-Maria Shriver

Introduction

The concept of “equal pay for equal work” denotes that individuals, regardless of the gender, caste or religion, should be awarded equal remuneration provided the work is alike. This ensures that there is no space for prejudice among the individuals. Gender pay gap is a serious concern when it comes to Labour Rights. The Constitution of India under its Article 39, when read with Article 14, provides for the legislation acknowledging the doctrine of equal pay for equal work.

The Equal Remuneration Act, 1976 administers for the payment of equal pay to men and women workers and to refrain any kind of discrimination on the basis of sex. The International Forum also recognise the need to remove discrimination in remuneration on the basis of gender. International Convention on Economic, Social and Cultural Rights, The European Social Charter African Charter on Human and Peoples’ Rights, The Constitution of the International Labour Organization also aims on the same policy. This principle is beneficial as it removes all barriers and manifests women to choose their role in the society and evolve their capabilities setting aside the stereotypes or rigid gender roles. The jurisprudence of industrialization has exhibited the fundamental role of labour laws as an instrument of social justice. Social justice means the fulfillment of socioeconomic goals laid down by the planners. The Industrial Law acquires a position of pride when it comes to the laws which are vital to a nation’s life, which signifies a nation’s spirit, which bestow revolutionary and dynamic values to jurisprudence and lift it from conservative to progressive strata.

According to the Human Development Report, 1995, women’s participation in the labour force had climbed only by 4 per cent points in 20 years from 36 percent in 1970 to 40 percent in 1999 women normally receive a much lower average wage than men, all religions record a higher rate of unemployment among women than men; women work for longer hours than men in nearly in every country the deeply unequal sharing of the burden of adversities between women and men is still persisting. Various studies have shown that economic dependence of women is a predominant cause of their subordination. Thus, a reform in the structure of the economy whereby women are assigned a major productive role would be a way to improve their status. Economic independence is the foundation on which any structure of equality for women can be built.[2]

Constitutional Perspective

The Preamble of the Indian Constitution seeks to attain and administer social, economic and political justice to all the persons of the country.

Article 39 of the Constitution anticipates that the state shall address its policy, among other things, towards assuring that there is equal pay for equal work for both men and women. To give effect to this constitutional provision, the President, on 26th September 1975 promulgated  the Equal Remuneration Ordinance, 1975 so that the provisions of Article 39 of the Constitution may be implemented in the year which is being celebrated as International Women’s Year. The ordinance provides for payment of equal remuneration to men and women workers for the same work or work of similar nature and for the prevention of the discrimination on the grounds of sex.

Article 39(d), Part IV of the Constitution of India affirms that the State should direct its policy towards attaining the objective of equal remuneration for both men and women. It expresses that where the work is the same, all the circumstances and considerations are similar then the people holding identical posts or ranks shall not be treated in a different way on the basis of their gender.

In case of Jitendra Prasad Singh v. TELCO[1]The court held that the principles of equality are virtually present in the nature of natural law and the denial of equality would be against Article 14 of the Constitution of India. Article 15 prohibits discrimination on the grounds of sex, religion, caste etc. Hence the Constitution treats each and every citizen equal and further provides them with equal rights.

Equal Remuneration Act, 1976

The Equal Remuneration Act, 1976 was enacted to prevent discrimination on the ground of sex and to administer equal remuneration to men and women workers. In Dharwad District PWD literate Daily Wage Employees Assn v. State of Karnataka[2] it was held that the act provides for payment of equal remuneration to men and women workers for the same work or work of similar nature and for the prevention of prejudice on grounds of sex.

Section 2(g) of the Equal Remuneration Act defines remuneration as ‘the basic wage or salary and any additional emoluments, either in cash or in kind, payable to a person in respect of employment or work done in such employment.’ Section 2(h) of the Act defines such work as work in respect of which skill, effort and responsibility required of a man and those required for a woman are not of practical importance in relation to the terms and conditions of employment.

The deciding element in cases of equal wages is the “same or similar work” principle. However, this principle leads to adoption of indirect means for fixing lower wages for women like dividing the jobs into Grade 1 and Grade 2 and then employing women in the lesser grade, thus prevailing the equal Remuneration provision.

In the matter of Air India vs. Nergesh Meerza[3]Air India air hostesses claimed that they were being discriminated against by assistant flight pursers who did essentially the same work on flights but had better service conditions, a later retirement date, and other benefits. To dispel any worries about possible violations of the Equal Remuneration Act of 1976, the government published a notification that stated unambiguously that “inequalities in regard to pay, etc. of various groups of employees are based on different conditions of service, not on sex differences”. The Supreme Court gave the petitioners some minor concessions, such as raising the retirement age and finding the section requiring the termination of air hostesses’ duties due to pregnancy as unconstitutional. However, it upheld the discriminatory working conditions.[3] At the same time, the court acknowledged that “the two functions, albeit manifestly different, overlap on certain areas,” but that “the distinction, if any, is one of degree rather than kind.”[4]

The principle of Equal Pay for Equal Work was first discussed in the case of Kishore Mohanlal Bakshi vs. Union of India[4], in which the Supreme Court ruled that the principle is unfit to be used in a Court of law.

Nonetheless, it was only in 1987 that it received fair recognition in the Mackinnon Mackenzie case[5], in which the issue at hand was a plea for equal compensation for both male and female stenographers. The Supreme Court ruled in favour of female stenographers because it believed in the concept of equal compensation for equal work.

State of Punjab & Ors vs. Jagjit Singh & Ors[6], The Supreme Court of India ruled that the principle of equal pay for equal work must be applied to those who are connected or involved on a day-to-day basis, as well as casual and legally bound workers who carry out or execute similar duties as permanent workers.Terming or stating the forswearing of equivalent compensation for equivalent work as the exploitative subjugation or enslavement as well as  abusive, suppressive and coercive, the apex court held that in a welfare state like India, the rule must be extended to temporary and casual workers as well.

The New Law on Wages

Recently, the Code on Wages, 2019 of India (Code on Wages) has been notified and it received the Presidential consent on August 8, 2019. The Code of Wages amalgamated four national level labour laws on wages, being the Equal Remuneration Act, 1976; Minimum Wages Act, 1948; Payment of Wages Act, 1936 and Payment of Bonus Act, 1965. The primary set of provisions of the Code of Wages relates to forbidding discrimination against employees on the ground of gender in matters regarding to payment of wages. The Code on Wages also forbids discrimination in the recruitment of employees and in terms and circumstances of employment, except in the circumstances where employment of women in such work is forbidden or restricted under any law.

The main points of distinction between the Equal Remuneration Act and Code on Wages are that while the Equal Remuneration Act observed discrimination against women and between men & women workers, the Code on Wages forbiddiscrimination on the grounds of gender, thereby covering the LGBTIQ category similarly.

International Perspective

There are several international declarations, compact and conventions through which diverse organizations worldwide have identified the right of equal pay for equal work as an essential and primary right of the workers/employees. Article 23(2) of the Universal Declaration of Human Rights, administer and states that every person, without any discrimination made has the freedom to pay for equal work.[5] Article 7(a)(i) of the International Covenant on Economic, Social and Cultural Rights determines a right to fair wages and equal remuneration for work of equal value without any discrimination, also, women being endorsed conditions of work not less than that of men with equal pay for equal work.[6] Article 4(3) of European Social Charter which determines the right to fair remuneration and incorporates the recognition of the right to men and women workers to equal pay for equal work.[7] The preamble of the Constitution of International Labor Organization affirms the principle of equal remuneration for equal work value.[8]

The right to equal pay for work of equal value has been deemed as a good approach by recognizing the concept by organizations, including the United Nations. Thus, it is explicitly clear that the concept of equality is prevalent vividly and widely in the International Scenario and Indian Constitution keeps in conformity to them. Here, the conditions of the international society are all the more important as it is in conformity with these principles that the Supreme Court of India evaluates and adjudges the perception and broadens its scope according to the conditions prevalent in the International Scenario.

Conclusion

The stereotypical traditional notion that women’s role cannot exceed the private, domestic spheres, has hindered the consideration of women in paid spheres of the labor market. The status of women in the sphere of economic involvement can be improved by increasing the participation of women in the paid labor market.

Although, a mere increase in their participation will be inadequate and will not make any difference to the issue of gender inequality, unless it is backed by the nature of work undertaken. The nature of work should be decent as well as lucrative and also, more remunerative and secure. Participation where illiterate women are crowded into unskilled, manual labor, which rewards a little and is also hazardous to their health and safety is not appreciated.

If there is a demand for women’s labour and more women are being deployed, it is worthwhile to analyse the factors that led to this employment. The only explanation for this scenario could be increased desperation and poverty-induced compulsion, which would lead them to take a lower-paying job. At the other end of the scale, increased educational attainment may result in women being able to take on tasks that were previously unavailable to them.

The Equal Remuneration Act in India was executed to prevent discrimination among workers on grounds of gender. But its success in bringing an improvement to the labor market is quite doubtful. What’s needed is not just the law but also its implementation and alertness , alertness among both the workers and employers.

References

  1. Quote by Maria Shriver
  2. Dr M.K. Stivastava, “ Role of Enforcement Agencies in Protecting Women’s Rights” (2002) 15 C12Q
  3. Neeru Chadha , “Levelling the workplace for women workers: Equal Remuneration & Maternity Benefits” in Amita Dhanda and Archana Prashar (Eds) , Engendering Law: Essays in Honour of Lotika Sarkar (Eastern Book Co. 1999)
  4. Air-India vs. Nergesh Meerza, (1981) 4 SCC 335: 1981 SCC (L&S) 599
  5. Art. 23, cl 2, Universal Declaration of Human Rights, 1948.
  6. Art. 7, cl. (a), sub cl. (i), International Covenant on Economic, Social, and Cultural Rights, 1966.
  7. Art. 4, cl. 3, European Social Charter,https://rm.coe.int/168006b642.
  8. ILO, CONSTI, https://www.ilo.org/dyn/normlex/en/f?p=1000:62:0::NO:62:P62_LIST_ENTRIE_ID:2453907:NO#A10.

[1] 1998 SCC OnLine Pat 353:(1998) 3 PLJR 277

[2] (1990) 2 SCC 396

[3] (1981) 4 SCC 335: 1981 SCC (L&S) 599

[4] Kishore mohan lal bakshi AIR 1962 SC 1139.

[5] M/s Mackinnon Mackenzie & Co. Ltd. vs. Audrey D’Costa& Others, (1987) 2 SCC 469.

[6] (2017) 1 SCC 148.

Author- Vanshika Gupta, Maharaja Aggrasen Institute Of Management And Technology

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