Equal Remuneration For Men And Women.

EQUAL REMUNERATION TO MEN AND WOMEN

ARMY INSTITUTЕ OF LAW, MOHALI

PROJЕCT ON “EQUAL REMUNERATION TO MEN AND WOMEN”

Project Submission in the Partial Fulfillment of Periodic Еvaluation of Labour Law

SubmissionTo:

Submittеd By:

Ms. KIRANDEEP KAUR

RUHUL AMIN

FACULTY: LABOUR LAW

VI SЕMЕSTЕR B.A. LL.B. ROLL NO:- 1737

Pagе | 1 ARMY INSTTUTЕ OF LAW, MOHALI

EQUAL REMUNERATION TO MEN AND WOMEN

ACKNOWLЕDGЕMЕNT

I take this opportunity to еxprеss my humblе gratitudе and pеrsonal rеgards to Dr. Kirandeep Kaur for inspiring mе and guiding mе during thе coursе of this projеct work and also for hеr coopеration and guidancе from time to timе during thе course of this projеct work on thе topic EQUAL REMUNERATION TO MEN AND WOMEN. I would also likе to thank thе ARMY INSTITUЕ OF LAW to lеt mе havе this golden opportunity to explore and learn more about such an intriguing topic.

Mohali

24th February 2020

Ruhul Amin

3rd Year BA.LLB

EQUAL REMUNERATION TO MEN AND WOMEN

INDEX 1. Introduction 2. The Equal Remuneration Act, 1976 

Prohibition of discrimination during recruitment



Prohibition of discrimination during wage fixing

3. Constitutional Validity 4. The Provisions of the Equal Remuneration Act, 1976 5. The Salient Features of the Equal Remuneration Act, 1976 6. The Duties of the Employer under the Act 

Section 4: The duty of the employer to pay equal remuneration to both men and women workers for same work or work of similar nature



Section 5: No discrimination to be made while recruiting men and women workers



Section 8: Maintaining a Register

7. Relevant Case Laws 

Class or category of employee



Meaning of same work or work of similar nature



Relevance of conditions to employment



Constitutional Relevance

8. Conclusion

EQUAL REMUNERATION TO MEN AND WOMEN

Introduction In India, the Vedic period gave equal status to men and women, but this ideology had a tectonic shift over a period. The men have overshadowed the position of women in the society. At the time of Independence, the inequality was apparent, and the constitutional framers had to address this as it chose a democratic republic as a form of governance. Systems have to be put in place for the operation of the democratic forces to ensure equality. The constitutional provisions and various legislations have been enacted which became a bedrock towards ensuring equal opportunities to men and women. When equal opportunities are put in place, the next line of action needed is equal remuneration for the same work done without reference to the gender. To make this legislation a success, the onus is on the employer for effective implementation. The employment of women has been increasing gradually over the years. Moreover, the works which were considered gender specific underwent a sea of change. Women were usually seen as less productive than their male counterparts. The general perspective of women was that they weren’t as serious as men in their work as family and home are their main priority. Economic dependency is the major cause for the women to have a weak bargaining power. This usually makes the employer take them for granted, and the wage rate would be unequal. In the modern times, the women are no longer restricted to minimal jobs or the traditional works. They are employed at par with men and to protect their interests and ensure they get a fair chance, statutory recognition is given through different legislations, enacted both at center and state levels. The Workmen Compensation Act, Payment of Wages Act, Factories Act, Minimum Wages Act, The Equal Remuneration Act, Maternity Benefits Act, ESI Act, etc. are some of the legislations aimed at ensuring equal wages without gender bias.

EQUAL REMUNERATION TO MEN AND WOMEN

The Equal Remuneration Act, 1976 The Equal Remuneration Act in India was enacted to prevent discrimination between workers on grounds of gender. The preamble to the act describes it as: An Act to provide for the payment of equal remuneration to men and women workers and for the prevention of discrimination, on the ground of sex, against women in the matter of employment and for matters connected therewith or incidental thereto. The purpose of the act is to make sure that employers do not discriminate on the basis of gender, in matters of wage fixing, transfers, training and promotion. It provides for payment of equal remuneration to men and women workers, for same work or work of similar nature and for the prevention of discrimination against women in the matters of employment. Discrimination is nothing more than the expression of a preference. In this neutral sense, without assessing either the consequences of such behaviour, or the "social justice" aspect, the right to discriminate is a desirable feature of any free society. Individual acts of choice may sometimes result in a preference that might exclude or inconvenience a certain group. However, how valid or just is it to make such a choice illegal? Even more significant, how many profit-maximising, and efficiency--enhancing entrepreneurs would make such a choice? Except in rare circumstance, people’s preferences are not absolute, but vary depending on other factors, main among them being the cost, or benefit of making such a choice. Under normal circumstances, the higher the cost (the lower the benefit), the less likely the choice will be made. Discrimination has a price, and the existence of this price will limit the existence of discrimination prevalent in the market. Prohibition of discrimination during recruitment Section 5 of the Equal Remuneration Act specifically forbids employers from discriminating against women during recruitment. It states: On and from the commencement of this Act, no employer shall, while making recruitment for the same work or work of a similar nature, or in any condition of service subsequent to recruitment such as promotions, training or transfer, make any discrimination against women.

EQUAL REMUNERATION TO MEN AND WOMEN In a competitive world such legislation has no bearing at all. All discrimination in the market costs money, and any profit-maximising entrepreneur would realise the costs of discrimination and do his best to remove it. During recruitment, if employers discriminate against women, and refuse to hire them, they are doing this at their own detriment. An employer would only want to hire a woman if she can display herself to be amply able to perform the task at hand. If this is so, by judging applicants on grounds other than efficiency, an employer is hiring those who are potentially less productive, or less suited to the job. Such a policy would definitely cause profits to decrease. Profit seekers would begin employing women, and as such employment would increase. As demand for women workers increases, their wages also get bid up. An employer hiring on bases other than an employer’s ability to contribute to firm’s productivity wouldn’t be able to persist since his willingness to operate with discrimination would confer an advantage on his competitors. If all entrepreneurs aren’t actively practising discrimination, then one who is doing so is operating under a comparative disadvantage. He must either bear these losses, or change his hiring policy. Furthermore, during recruitment, in a world of incomplete information, employers must guess at employees’ productivity using some proxies, and gender might prove to be a possible proxy. Factors such as maternity leave, inability to work late hours, inability to work night shifts etc. are reflections of the worker’s productivity, and would go towards establishing gender as a proxy. Using such proxies economises in information, if employers later find that such proxies are wrong, they will find they are hiring workers with low productivity, and principles of profit maximisation would force them to choose new proxies. Prohibition of discrimination during wage fixing The Equal Remuneration Act also seeks to address the issue of payment of unequal wages to men and women. It makes it compulsory for employers to pay women wages equal to those paid to men for performance of the same work. Section 4(1) states: “No employer shall pay to any worker, employed by him in an establishment or employment, remuneration, whether payable in cash or in kind, at rates less favourable than those at which remuneration is paid by him to the workers of the opposite sex in such establishment or employment for performing the same work or work of a similar nature.”

EQUAL REMUNERATION TO MEN AND WOMEN This law also has no relevance in a competitive world, where the employer’s primary concern is to make a profit. Perhaps, earlier when Indian industry was protected and sheltered, employers could afford to follow such potentially profit reducing policies, and still stay afloat, however, this is no longer the case today. Productivity is defined in terms of profit statement; employers reward workers proportionate to the amount they add to revenues. When an employer estimates wages, he takes into account the following factors: 1. Intelligence 2. Efficiency 3. Initiative 4. Skill 5. Leadership ability 6. Communication Skills 7. Perseverance 8. Experience However, an equal pay legislation such as the Equal Remuneration Act in India, seeks to determine wages on the basis of a politically motivating or social justice related factor, in this case, gender. The mutual incompatibility of the two sets of factors is obvious. While the first set might generate an efficient labour force, the second set has absolutely no relation to productivity, and hence cannot work towards an efficient labour force. If a firm overpays, it would eventually have to close down since it would run out of money. At the same time, if a firm underpays, it is would still not be a profit yielding practise since it would lose employees to competitors. To add to it, it would suffer from over optimal quitrates, and have to invest additionally in hiring, firing, and other training expenses. While clearly, the search for profit would cause some entrepreneurs to set aside their taste for discrimination, it is nevertheless true that others would be willing to incur the cost. These employers would then be paying the price of discrimination in the form of decreased profits.

EQUAL REMUNERATION TO MEN AND WOMEN The extent to which the most discriminatory employers can continue this practice would be largely determined by factors beyond their control, namely, by the competitive pressures exerted by other employers. An employer’s willingness to operate under the competitive disadvantage of discrimination would confer an advantage on his competitors. So, even if some employers were willing to pay the price of discrimination, failure to respond to the continuous challenge of the market would mean eventual displacement by a more costeffective firm. There are several other reasons that cause unequal pay between sexes that are unconnected to any bias or prejudice on the part of the employer, known as non-discriminatory reality. Women may receive different wages because they bear children, and are hence separated from the labour force for a period, which could range between a few months and a few years. Data in Canada and the USA have found a negative correlation between female-male wageratios and birth rates. To add to the problem, the Equal Remuneration Act does employers further injustice by forcing them to obliviate any difference in wages by increasing the wages of the woman. Section 4, sub-sections (2), and (3) state: (1) No employer shall, for the purpose of complying with the provisions of sub-section, (2) reduce the rate of remuneration of any worker. (3) Where, in an establishment or employment, the rates of remuneration payable before the commencement of this Act for men and women workers for the same work or work of a similar nature are different only on the ground of sex, then the higher (in cases where there are only two rates), or, as the case may be, the highest (in cases where there are more than two rates), of such rates shall be the rate at which remuneration shall be payable, on and from such commencement, to such men and women workers. Hence, not only must an employer make sure that he pays the workers equal wage, he may not decrease wages to this purpose.

EQUAL REMUNERATION TO MEN AND WOMEN

Constitutional Validity Gender Justice is an important ingredient of every civilized society. It’s no longer the popular mindset that the female is a weaker sex. To imbibe this principle in the society, various steps were taken at the international level: 

The International Labour Organization held in 1951 a Convention concerning Equal Remuneration for Men and Women Workers for the Work of Equal Value.



The Universal Declaration of Human Rights, under Article 23 ensures thateveryone without any discrimination has the right to equal pay for equal work.



The Convention on Elimination of all form of Discrimination, 1979 has it’s the main objective to prevent discrimination especially in the case of women.

At the national level, certain legislations were enacted by the British India. But it’s the national leaders, freedom fighters and intellectuals and the democratic movements sweeping the world over brought about positive changes in the position of women and in achieving equality. 

The Preamble of the Constitution provides for Justice and Equality to all.



Article 14 equality before law



Article 15 guarantees a right against discrimination



Article 15(3) recognizes ‘protective discrimination’ to bring women at par with men in all possible respects.



Article 16 provides right to equal opportunity regarding publicemployment irrespective of the sex of the person.



Article 39 (a) states that the citizens, men, and women, equally, have the right to an adequate means of livelihood.



Article 39 (d) “that there is equal pay for equal work for both men and women.”



Article 42 requires the state to make provision for securing humane conditionsof work and maternity relief.

EQUAL REMUNERATION TO MEN AND WOMEN The Doctrine of ‘equal pay for equal work’ is not a fundamental right but a Constitutional right. Equal remuneration for men and women is the right of an employee without any qualification. The Act of Equal Remuneration, 1976 was enacted to comply with the provisions of Directive Principle of State Policy (DPDP) under Article 39. The Act, being a beneficial legislation, ensures adequate payment or remuneration to be made irrespective of the physical strength of employee and removing the scope of social and economic injustice merely on the ground of sex, thereby working to establish a just society in the country.

EQUAL REMUNERATION TO MEN AND WOMEN

The Provisions of the Equal Remuneration Act, 1976 The main provisions of the Act are:

No employer shall pay to any worker, employed by him/ her in an establishment, a remuneration (whether payable in cash or in kind) at rates less favourable than those at which remuneration is paid by him/ her to the workers of the opposite sex in such establishment for performing the same work or work of a similar nature. Also, no employer shall, for the purpose of complying with the provisions of this Act, reduce the rate of remuneration of any worker. No employer shall, while making recruitment for the same work or work of a similar nature, or in any condition of service subsequent to recruitment such as promotions, training or transfer, make any discrimination against women except where the employment of women in such work is prohibited or restricted by or under any law for the time being in force. Every employer shall maintain such registers and other documents in relation to the workers employed by him/ her in the prescribed manner. If any employer:(i)

makes any recruitment in contravention of the provisions of this Act; or

(ii)

makes any payment of remuneration at unequal rates to men and women workers for the same work or work of a similar nature; or

(iii)

makes any discrimination between men and women workers in contravention of the provisions of this Act; or

(iv)

omits or fails to carry out any direction made by the appropriate Government, then he/ she shall be punishable with fine or with imprisonment or with both.

Where an offence under this Act has been committed by a company, every person who at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed, to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

EQUAL REMUNERATION TO MEN AND WOMEN

The Salient Features of the Equal Remuneration Act, 1976 1. The Act is a Central Legislation and applies to the whole of India. 2. The objective of the Act is to provide for protection against discrimination of women workers on the ground of sex, about the payment of equal remuneration in the matter of employment. 3. Restricting the employer to create terms and conditions in a contract of service or work of labour contrary to equal pay for equal work doctrine and the provisionsof Equal Remuneration Act. 4. The Act doesn’t make a distinction like employment or the period of employment and applies to all workers even if engaged only for a day or few days. 5. No overriding effect is given to any agreement, settlement or contract to the provisions of the Equal Remuneration Act. 6. Any settlement or any agreement with the employee that is detrimental to the employee isn’t allowed. 7. The Ministry of Labour and The Central Advisory Committee are responsiblefor enforcing this Act. 8. Meaning of equality of work: The equality of work is not based solely on the designation or the nature of work but also on factors like qualifications, responsibilities, reliabilities, experience, confidentiality, functional need and requirements commensurate with the position in the hierarchy are equally relevant. 9. When the employer doesn’t comply with the provisions of the act, he will be liable to pay fine, imprisonment, or both.

EQUAL REMUNERATION TO MEN AND WOMEN

The Duties of the Employer under the Act Section 4: The duty of the employer to pay equal remuneration to both men and women workers for same work or work of similar nature No employer shall pay to any worker, employed by him in an establishment or employment, remuneration, cash or in kind at rates less favorable than those at which he pays remuneration to the workers of the opposite sex for performing the same work or work of a similar nature. 

The rate of remuneration of any worker will not be reduced to avoid complying with Section 4(1).



In respect of any establishment, the rates of remuneration payable before the commencement of the Act for men and women for same or similar nature work is different only on the ground of sex, then the highest of the rates will be payable after the commencement of the Act.

Section 5: No discrimination to be made while recruiting men and women workers For any recruitment or any condition of service after recruitment like promotions, training or transfer, for the same or similar nature work, the employer will not make any discrimination against women except where the employment of women in such work is prohibited or restricted by or under any law for the time being in force. Proviso: the provisions of the Act will not affect the priority given or reservation for SC, STs, ex-service men, retrenched employees. Section 8: Maintaining a Register Rule 6 read with Section 8 provides that: The employer has to maintain proper registers and relevant documents of all the employees and workers as prescribed by law in Form D. The Form needs to have: 

Category of workers



Description of work



Number of men employed



Number of women employed

EQUAL REMUNERATION TO MEN AND WOMEN 

Rate of remuneration



Components of remuneration.

EQUAL REMUNERATION TO MEN AND WOMEN

Relevant Case Laws The Indian Courts have played a major role in upholding the doctrine and ensuring proper enforcement of the social legislations for the benefit of the class of people the legislation was enacted for. A landmark case in the light of equal pay for equal work was the Judgment given by the Hon’ble Supreme Court in the case of Randhir Singh v. Union of India. Here, the Court adopted a sociological ideology and deviated from strict interpretation to liberal interpretation for the employees. The court, in this case, relied on ‘‘socialist’ as envisage in the Preamble to the Constitution in deciding the case, and it was held that the principle of equal pay for equal work was deducible from article 14 and 16 of the Constitution of India, may be properly applied to the cases of unequal scale of pay based on classification, though those drawing a different scale of pay do identical work under the same employer.” Here, the court observed that “equal pay for equal work” is deducible from Articles 14 &16, understood in the light of the Preamble and Art. 39(d). Class or category of employee M/s Mackinnon Mackenzie and Co. Ltd. v. Audrey D’Costa and other, 1987 In the given case, a woman employee was discriminated while payment of salary as the employer contended that the lady was working as a Confidential Stenographer and is part of a different class. The court rejected the plea of the employer that the woman was in a different class. It held, ‘If only women are working as Confidential Stenographers it is because the management wants them there. Women are neither specially qualified to be Confidential Stenographers nor disqualified on account of sex to do the work assigned to the male Stenographers. Even if there is a practice in the establishment to appoint women as Confidential Stenographer such practice cannot be relied on to deny them equal remuneration due to them under the Act.’ Therefore, the Court applied the Equal Remuneration Act to grant equal salary to female stenographers. Inder Singh & Others v. Vyas Muni Mishra & Others 1987 The court decided that when two groups of persons are in the same or similar posts performing the same kind of work, either in the same or in the different departments, equal

EQUAL REMUNERATION TO MEN AND WOMEN pay will be paid to them by removing unreasonable discrimination and treating the two groups that are similarly situated, equally. Meaning of same work or work of similar nature Mackinnon Mackenzie & Co. Ltd. v. Audrey D’Costa & Another, 1987 The court observed while determining the term ‘same work or work of similar nature’ under Section 2(h), the following are considered 

the authority should take a broad view



Ascertain if any differences are of practical importance, the authority should take an equally broad approach to the very concept of similar work implies differences in detail, but these should not defeat a claim for equality on trivial grounds.



It should look at the duties performed, not those theoretically possible. In making comparison, the authority should look at the duties performed by men and women.

Relevance of conditions to employment Bhagwan Dass & Others v. State of Haryana & Others, 1987 The Court held that when it’s proved that the nature of duties and functions discharged and worked done similar, then the mode of selection and period of appointment is irrelevant and immaterial for the applicability of equal pay for equal work. Constitutional relevance Sita Devi & Others v. State of Haryana & Others, 1996 The learned Judge held that the “doctrine of equal pay for equal work is recognized as a facet of the equality clause contained in Article 14 of the Constitution.” S. Nakara v. Union of India A Constitutional Bench affirmed the decision in the case of Randhir Singh, in the given case. The Court held that “having regard to the constitutional mandate of equality and inhibition against discrimination in Articles 14 and 16, in service jurisprudence, the doctrine of “equal pay for equal work” has assumed the status of a fundamental right.”

EQUAL REMUNERATION TO MEN AND WOMEN

Conclusion The Equal Remuneration Act, 1976 aims to provide for the payment of equal remuneration to men and women workers and for the prevention of discrimination, on the ground of sex, against women in the matter of employment and for matters connected therewith or incidental thereto. According to the Act, the term 'remuneration' means "the basic wage or salary and any additional emoluments whatsoever payable, either in cash or in kind, to a person employed in respect of employment or work done in such employment, if the terms of the contract of employment, express or implied, were fulfilled". Nothing in this Act shall apply:(i)

to cases affecting the terms and conditions of a woman's employment in complying with the requirements of any law giving special treatment towomen; or

(ii)

to any special treatment accorded to women in connection with the birth or expected birth of a child, or the terms and conditions relating to retirement, marriage or death or to any provision made in connection with the retirement, marriage or death.

The Central Industrial Relations Machinery (CIRM) in the Ministry of Labour is responsible for enforcing this Act. CIRM is an attached office of the Ministry and is also known as the Chief Labour Commissioner (Central) [CLC(C)] Organisation. The CIRM is headed by the Chief Labour Commissioner (Central).