Labour Law 2 Original.docx

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY VISAKHAPATNAM, A.P., India

PROJECT TITLE EQUALITY UNDER EQUAL REMUNERATION ACT

SUBJECT LABOUR LAW - II

NAME OF THE FACULTY C. h. Lakshmi mam.

Name of the Candidate Roll No. & Semester

SV. Ruthvik 2016089 SIXTH SEMESTER

ACKNOWLEDGEMENT

The project consumed huge amount of work, research and dedication. Still, implementation would not have been possible without support of my lecturer. I take this opportunity to express my profound gratitude and deep regards to my lecturer for his exemplary support, monitoring and constant encouragement throughout the course of thesis.

CERTIFICATE OF DECLARATION I hereby declare that this project titled “EQUALITY UNDER EQUAL REMUNERATION ACT” undertaken by me is an original work and have duly acknowledged all the sources of statistics and other relevant information. The project is free from any kind of plagiarism.

Date: Place:

Signature of the Student

ABSTRACT PROJECT TITLE - Equality applicability under Equal remuneration act. DESCRIPTION - The Equal Remuneration Act, 1976 provides for the payment of “Equal remuneration to men and women workers for the same work and prevents discrimination, on the ground of sex, against women in the matter of employment, recruitment and for matters connected therewith.” This Act applies to every kind of establishment. 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. In today’s globalized era, women form an integral part of the Indian workforce. In such an environment, the quality of women’s employment is very important and depends upon several factors. The foremost being equals access to education and other opportunities for skill development. This requires empowerment of women as well as creation of awareness among them about their legal rights and duties. In order to ensure this, the Government of India has taken several steps for creating a congenial work environment for women workers. A number of protective provisions have been incorporated in the various Labour Laws. CONSTITUTION PROVISIONS - Article 39 of Indian constitution envisages that the State shall direct its policy, among other things, towards securing that there is equal pay of equal work for both men and women. To give effect to this Constitutional provisions and also to ensure the enforcement of ILO Convention the Equal Remuneration Act, 1976 was enacted by the Parliament. For the applicability of equality in the field of workers “The Equal Remuneration Act, 1976” provides 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. Same work of a similar nature means work in respect of which the skill, efforts and responsibilities required are the same, when performed under similar working conditions, by a man or a woman and the differences, any, between the skill, effort and responsibility required

of a man and those required of a woman are not of practical importance in relation to the terms and conditions of employment. In my project I would discuss about the equal remuneration act and the applicability of equality concept in the legislation, and related case laws in a brief manner.

TABLE OF CONTENTS 

Introduction

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Recent Legislative Changes and Policy Initiatives

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Constitutional Validity

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Recent legislative changes and policy initiatives

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Duties of the employer under the act

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ERA – working method

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Authority for Redressal of Complaints under the Act:

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Relevant case laws

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Recommendations & suggestions

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Conclusion

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Bibliography

INTRODUCTION

Inequality to women has been a perpetual feature in our socio-culture since long. The exact reason for the same has been the male domination. It has even entered into the wage structure. Women have been oppressed economically. The contributory factors sociological, physiological, moral and mental accelerated the gravity of the problem. In the post-independence era a new chapter of social recognition and upliftment of women was opened. The State has taken considerable pains to relieve the oppressed class by providing appropriate safeguards by way of protective legislations. The object of these legislations is not only to protect the weaker section of the society but also to provide preferential treatment in matters of employment and other fields to uplift the women up to the level of economically self-sufficient. The consciousness and general awareness as a result of women education has been proved an effective measure. Despite the general awareness on the part of women and active and effective steps through the instrumentality of law, women continued to the victim of unequal treatment and exploitation. The concept of equal pay for equal work is one of the Directive Principles of State Policy enshrined under Article 39 (d) of the Constitution of the India which envisages that the State shall, in particular, direct it’s policy towards securing that “there is equal pay for equal work for both men and women”. The principal implies that where all things are equal, that is, where all relevant considerations are the same, persons holding identical posts may not be treated differently in matter of their pay merely because they belong to different departments. Of course, if officers of the same rank perform dissimilar functions and the powers, duties and responsibilities of the 2 posts held by them vary, such officers may not be heard to complaint of dissimilar pay merely because the posts are of the same rank and the nomenclature is the same. It was held in Randhir Singh case by the Supreme Court that, “It is true that the Principle of ‘equal pay for equal work’ is not expressly declared by our Constitution to be a fundamental right. But it certainly is a constitutional goal. Article 39(d) of the constitution proclaims ‘equal pay for equal work for both men and women’ as a Directive Principle of State Policy. ‘Equal pay for equal work for both men and women’ means equal pay for equal work for everyone and as between the genders. Directive Principles, as has been pointed out in some of the judgments of the Supreme Court have to be read into the fundamental rights as a matter of interpretation.

Article 14 of the constitution in this regard provides all persons are equal before the law or the equal protection of the laws and Article 16 declares that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the state. These equality clauses of the constitution something to everyone. To the vast majority of the people the equality clauses of the constitution would mean nothing if they are unconcerned with the work they do and the pay they get. To them equality clauses have some substance if equal work means equal pay. The preamble to the constitution declares the solemn resolution of the people of India to constitute India into Sovereign Socialist Democratic Republic. Again, the world ‘Socialist’ must mean something. Even if it does not mean ‘to each according to his need.’ It must atleast mean ‘equal pay for equal work.” There is always a tendency to pay low wages to women workers as compared to men for the same kind of work. Women are, by nature, not so efficient to do physical work as men can do. They cannot work for very long hours. Women, for the same reasons, do not organize themselves into trade unions and secure higher wage for themselves by joint action. The employer has also to pay many kinds of benefits and provide facilities for them, and cannot treat them in the same way as he can treat men workers. The supply of women is also greater in the occupations in which they can be employed which leads to payment of the low wages for the women working in the organisation. However, with the modern advancement and greater education among women, there has always been a demand for equal pay for men and women workers, as women do not consider themselves inferior to men. Equal pay for men and women for work of equal value is one of the Directive Principles of the Indian Constitution and the ILO has also adopted a convention on this subject which has been ratified by India. But this principle may not be a very right step in practice. On account of the factors mentioned above, the employer is always at a disadvantage in engaging workers, and therefore it is natural that he pays lower wage to them. In the social life, of course, men and women are to be treated on the same footing, but to some extent, this principle in the case of industrial wages would only mean a fall in the employment of women workers. This has been the actual case since the principle of equal pay for men and women has been enforced. In many industries, women workers have been replaced by men workers and no fresh recruitment takes place in their case as there is sufficient supply of male workers. Hence, even under the Minimum Wages Act, we find that differential rates have been fixed in many industries and the Government has also

realized to fix equal wages for men and women in a job in which women are less efficient the same would lead to their gradual elimination from employment.

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.

Recent Legislative Changes and Policy Initiatives Recently, two laws have been enacted that support the promotion of gender equality within the workplace in India: (1) The Companies Act, 2013: This Act stipulates that every publicly listed company has to appoint a women director on its Board. Spencer Stuart India Board Index 2014 found that women accounted for only 8 percent of directors on the Bombay Stock Exchange (BSE) 100 companies in 2012’. (2) The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013: Since December 2013, the Sexual Harassment Act is aimed to “provided protection against sexual harassment and for the prevention and redressal of complaints of sexual harassment”. This Act superseded the Vishakha Guidelines for the prevention of sexual harassment that was laid down by the Supreme Court of India. The Act also expanded the definition of the workplace to cover different kinds of work. In spite of progressive laws, organizations find it challenging to address gender equality in the workplace. For instance, the Sexual Harassment Act requires organizations to define their sexual harassment policies, prevention systems, procedures and service establish internal rules complaints and hold sensitization and awareness activities. Lack of committees; regular gender compliance can result in the cancellation of an organization’s license to operate. To date, however, it appears that most organizations have not defined their sexual harassment policies; others have not communicated their policies adequately to their employees and the culture of most organizations remains gender unequal. There is very little data publicly available on

gender and diversity issues within companies and other formal organizations, although there appears to be an increasing demand for more information on implementation issues and on how to address workplace inclusion and gender equality. At the same time, there are only a few national level support organizations in this field. There is also growing evidence to suggest that organizations which promote gender equality and diversity perform better than organizations that don’t (Norton and Fox, 1997). Companies with a higher number of women on their boards have better corporate governance and ethical behavior. Moreover, data suggest that investing in women leaders improves a country’s GDP and the welfare of future generations. 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 centre 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.

Constitutional validity Gender Justice is an important ingredient of every civilized society. The mindset that the female is a weaker gender is no longer prevalent. 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.

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

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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.

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

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Article 14 equality before law

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Article 15 guarantees a right against discrimination

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

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

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

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

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

Equal Remuneration Act, 1976 - NOTE 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 country1.

Equal pay for men and women for the equal work is a vital subject of great concern to society in general and employees in particular, a disparity in wage payment leads to unrest and discontent. Though labour welfare enactments have provided various protections, safeguards and benefits to working women in our country. There was an emergent need to give more protection to female workers who are discriminated as regards employment and wages. The wages of women have traditionally tended to lag behind those of men except in few cases. Moreover, the net earnings of the women have traditionally tended to lag behind those of men except in few cases. Moreover, the net earnings of the women invariably happen to be lower than those of men. Women all over the world, had till recently been very much inarticulate and 1

Suresh C. Srivastava, “Equal Remuneration for Men and Women”, JILI, (1990)

were prepared to accept lower wages even when they were employed on the same jobs as men159. Even in the economically and socially advanced countries while remarkable progress has been made, discrimination still exist. The principle of equal value has not been always fully implemented. In India, in the initial stages when legislation for the protection of workers was hardly thought of, factory owner taking advantage of the backwardness and social handicaps of the poor classes, recruited women on a large scale at lower wages and made them work under inhuman condition. With the gradual decay of the joint family concept, the unfortunate widows, the dependent and uneducated women began to seek employment in the agriculture and allied industries. Plantations, Mining, Building and construction industries also provided employment to such women. Women were employed in large numbers on lesser wages and exploited by the employers because they were aware of the circumstance under which they had come to seek employment. The women accepted these low wages to keep their body and soul together. There was a clear discrimination in the wages paid to women. They were taken on labour jobs carrying lesser wages and there was no avenue of promotion to them nor protection or security of employment. The legislative provisions of Minimum Wags Act, 1948, do not permit differentiation in minimum rates of wages on the ground of sex. However, in almost all the industries, such as, weeding, transplanting agricultural operations, coal mining industry, plantation, etc. there is discrimination in wages. There are no ready-made solutions to the problem. Even the providing facilities for training and guidance vocations and careers, by implementation and effective enforcement of labour laws and industrial awards, by undertaking job evaluation or job appraisal programmes and by discarding traditional attitudes, the women can be assured of justice. There is a need to fight against discrimination regarding equal pay, equal employment opportunities, for promotions, for occupying higher positions and for leadership to society as was visualize by Mahatma Gandhi. A National Committee, with the prime Minister as its Chairman was set up to ensure more effective implementation of the programmes for a better deal for women in the country. Similar state levels Committee are to be headed by the Chief Ministers. Prof. N. Hasan, who was winding up the discussion on the report of the Committee on the status of women in India also said, the Equal Remuneration Act in favour women and the Minimum wages Act would be extended to other area in a phased manner. The Equal Remuneration Ordinance was promulgated in 1975 to give effect to the constitutional provisions and I.L.O. Convention, 1951. The ordinance was replaced by the

Equal Remuneration Act, 1976 seeking 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 other matter connected with. The employer is under duty to pay equal remuneration to men and women workers for the same work or work of a similar nature as well 166. Supra Note 158 at. p. 865 167. Id. at pp. 865-866. 95 as he shall not discriminate while making recruitment, promotion, training or transfer. It would be just and proper that this Act may be extended to maximum possible establishments and employments with a view to provide fair and just treatment to women worker. Thus, the Act embraces the philosophy of equal pay for equal work without discrimination on the basis of sex.

The salient features of the Equal Remuneration Act, 1976 

The Act is a Central Legislation and applies to the whole of India.

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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.

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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 provisions of Equal Remuneration Act.

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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.

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No overriding effect is given to any agreement, settlement or contract to the provisions of the Equal Remuneration Act.

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Any settlement or any agreement with the employee that is detrimental to the employee isn’t allowed.

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The Ministry of Labour and The Central Advisory Committee are responsible for enforcing this Act.

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The Act casts a duty on the employer to pay equal remuneration to men and women workers for same work or work of similar nature (S. 4) as also maintain registers in relation to the workers employed by him (S. 8).

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It further mandates that no discrimination shall be made while recruiting men and women workers for the same work or work of similar nature or in any condition of service subsequent to recruitment such as promotions, training or transfer (S. 5)

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The expression “same work or work of a similar nature” has been defined under the Act [S. 2(h)] to mean work in respect of which the skill, effort and responsibility are the same, when performed under similar working conditions, by a man or a woman and the differences, if any, between the skill, effort and responsibility required of a man and those required of a woman are not of practical importance in relation to the terms and conditions of employment.

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It provides for constitution of an Advisory Committee for the purpose of providing increasing employment opportunities for women (S. 6)

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It grants power to the appropriate Government to appoint authorities for hearing and deciding claims and complaints (S. 7) and also appoint Inspectors (S.9) for the purpose, inter alia, of making an investigation as to whether the provision of the Act are being complied with by employers

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S. 10 of the Act provides for penalties, including imprisonment, for the contraventions of the provisions of the Act and S. 11 provides for Offences by Companies.

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The cognizance and trial of offences is provided under S. 12 of the Act which mandates that no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under the Act and no Court shall take cognizance of such offence except upon its own knowledge or upon a complaint made by the appropriate Government or by the person aggrieved by the offence or by any recognized welfare institution or organization.

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The benefit conferred to women under the Act is not absolute and unconditional but subject to S.16 of the Act which authorizes restriction regarding remuneration to be paid by the employer if a declaration under it is made by the appropriate Government on it being satisfied that the differences in regard to the remuneration of men and women workers in any establishment, or employment is based on a factor other than gender.

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The Equal Remuneration Rules, 1976 lays down the procedure for making complaints regarding contravention of the Act as also for claims regarding non-payment of wages.

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

Any employer would not pay to any worker, employed by him in an establishment or employment, remuneration, cash or in kind at rates less than those at which he pays remuneration to the workers of the opposite gender 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).

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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 In an establishment for any recruitment or any condition of service after recruitment like promotions, training or transfer, for the same or similar nature work, the employer should not make any type of the 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 Registrar Rule 6 read with Section 8 provides that: In an Establishment the employers should 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

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Description of work

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No, if men employer

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Number of women employed

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Rate of remuneration

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Components of remuneration.

Working of the Act -The Equal Remuneration

The Act was passed about thirty two years ago but number of violations detected, prosecution launched, and convictions obtained have been extremely small. In fact, almost all the cases have been in the central sector, though most of the employments covered area in the state sectors. Very few state governments, Uttar Pradesh, Orissa, M.P and H.P have for reported cases of violation under the Equal Remuneration Act. One of the reasons appears to be the inadequacy of the inspecting staff. The enforcement staff in the field is burdened with the last of implementing a very large number of Acts, and laws relating to women and children are generally considered to be of low priority. In order to implement effectively the different Acts pertaining to welfare of women workers, state governments and Union territories were requested to set-up women’s cell in their respective states. The State Governments of Andhra Pradesh, Bihar, Gujarat, Madhya Pradesh, Orissa, Karnataka, West Bengal, Uttar Pradesh and Delhi have set-up such cells. In the state of Assam, the functions of the women cell are being looked after by the research cell. In Arunachal Pradesh a women’s cell exist under the Directorate of Public instructions. The women’s cell set-up in the Ministry of Labour has also been instrumental in implementation of the Equal Remuneration Act, i.e. its extension to various employments industries and examination of the difficulties, point out by the units, industries, and setting up of an advisory committee for the promotion of employment of women under the Equal Remuneration Act and providing secretarial assistance to the committee. There is not even a single piece of legislation in India guaranteeing a citizen equal pay for equal work. No state machinery is there to protect the workers right to get equal pay for equal work. Of course, there is Equal Remuneration Act of 1976, which prohibits discrimination on the ground of sex in wages recruitment. Section 4 of E.R.Act, 1976 it is the duty of the employer to pay equal remuneration to men and women workers for the same work or work of a similar nature. other matters related to or incidental to employment. But the Act is insufficient and ineffective. Firstly, it seeks to provide for payment of equal remuneration to male and female workers, but it does not guarantee equal pay for equal work among men. The absence of this specification led to judicial controversy. Secondly, it provides for equal wages for men and women for same or similar work. Similar work is defined as one in which the skill, effort and responsibility are same. But the Government on subjective satisfaction has the power to declare that difference in remuneration between men and women in a specific establishment is based on a factor other than sex. Moreover, establishing that the work is same or similar is a tough task.

For instance, in the construction industry women helper carrying bricks are paid less than male helpers who carry cement bags. There is no logic in the argument that carrying 50 kg of bricks is less strenuous than carrying 50 kg of the cement. But a claim for equal pay could be easily defeated by saying that it is not same or similar work. Though legislation on labour abound, a vast majority of the workers are still outside their place. This is because of the bulk of the workforce is concentrated in the unorganized sector or the informal sector and laws by and large cater only to the organized sector. Generally, workers do not invoke the justice to redress their right to get equal pay for equal work due to fear of victimization and poverty. It is submitted that the existence of this pathetic condition is due to lack of effective law and also due to ineffective implementation of existing law. Efficacy of the Equal Remuneration Act - Equal Remuneration Act has had at best a limited impact both in terms of ensuring parity in wages in the various sub-sectors of the labour market as well as in terms of successful prosecutions. At the macro-level, empirical evidence suggests that the extent of gender wage gap varies across sectors. A study based on a random sample of 60 households with both the husband and wife working as agricultural laborers in Nettapakkam village in the Pondicherry region suggests that the female laborers were paid half of what the male laborers were paid. Moreover, a look at gender wage gap over time does not suggest that there has been a distinct trend towards gender equality in wages. While the years 1977-83 was marked by a decline in the male-female earnings gap across most of the states in India, the male- female earnings disparity increased in the period 1983- 88 in 14 out of the 17 states (or 82 percent of the states) of India2. In the non-agricultural sector, men working as casual workers in the informal sector earn on an average Rs. 51.3 per day compared to Rs. 32.4 by women, difference of Rs. 18.90 per day. In the formal sector, the difference is strikingly more. The men earn Rs. 73.0 per day compared to women who earn Rs. 47.4 per day. For every formal sector worker there are more than 6 workers in the informal sector and this rises to more than 10 for women2. The average wage rate for regular wage/salaried employees, in rural areas, was Rs. 138.74 for males and Rs. 87.71 for females – the difference was of the order of nearly Rs. 50.

1.

2

Ghosh and Bharadwaj, 1992, pp 150-154

Authority for Redressal of Complaints under the Act: The Central Industrial Relations Machinery (“CIRM”) in the Ministry of Labour is responsible for enforcing the Act. Central industrial relations machinery 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). Presently there are 18 regions each headed by a Regional Labour Commissioner (C) with Headquarters at Ajmer , Ahmedabad, Asansol, Bangalore, Bombay, Bhubaneshwar, Chandigarh, Cochin, Calcutta, Guwahati, Hyderabad, Jabalpur, Madras, New Delhi, Patna, Nagpur, Dhanbad and Kanpur. The Assistant Labour Commissioner (C) is the ‘appointed authority’ and the Regional Labour Commissioner (C) is the Appellate Authority under the Act. (S. 7). No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under the Act. Complaints can be filed by a worker, a group of workers, a legal practitioner or an official of a registered Trade Union; in addition the Central Advisory Committee members are empowered to file complaints. The following social welfare organizations have been recognized, under the Equal Remuneration Act, 1976, for the purpose of filing complaints in courts against employers for violation of the provisions of the Act3: 

The Centre for Women’ s Development Studies, New Delhi.

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The Self-Employed Women’ s Association, Ahmedabad.

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The Working Women’ s Forum (India), Chennai.

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The Institute of Social Studies Trust, New Delhi.

Penalties under the Act can include imprisonment up to one year, or two for a second offense or a fine up to twenty thousand rupees, or both.

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

Shorter Constitution of India, 13th edition, by former Chief Justice Y .B. Chandrachud in collaboration with V.R. Manohar and Justice Bhagwati 3

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).

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.

R.H. Bhatt Vs. Principal Chief Conservator of Forests and Anr. Where the action of respondents in re-fixing pay scale of petitioner was challenged, it was held that the differentiation made was not violative of Articles 14 and 16 and does not violates doctrine of 'equal pay for equal work' since the following were observed in both the employments: i.

educational qualifications prescribed for both posts different

ii.

nature of duties and responsibilities to be performed different

iii.

recruitment rules different

iv.

other posts have promotional avenue whereas petitioner's posts does not have promotional avenue

v.

petitioner's post lower than other posts

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 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, 19874

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.

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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.

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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.

Irene Fernandes Vs. Neo Pharma (Pvt.) Ltd. Once the requirements of the ERA are satisfied the applicant has to be paid the same basic wage or salary. The entitlement under the provisions of the ERA is totally independent of any settlement. The proceedings before the authority under ERA are clearly quasi-judicial in nature. It has to record evidence, hear the parties and give final directions which are executable. The authority is expressly given all powers of a civil court. As such whenever any application Relevance of conditions to employment:

4

(1987) 2 SCC 469

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.

Sita Devi & Others v. State of Haryana & Others, 19965 While considering a case on the principle of equal pay for equal work, education qualifications as a basis for classification is relevant. Person claiming parity in employment should establish similarity in qualifications, duties and functions.- 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.

People’s Union for Democratic Rights Vs. Union of India6 Worker temporarily employed by contractors in connection with construction works are entitled to the benefits of relevant labour laws like the ERA and to seek implementation thereof under Article 32 of the Constitution before the Supreme Court Directions given by the Supreme Court to the Government and the concerned authorities for enforcing observance of the provision of the ERA, inter alia by the contractors engaged in the construction work connected with the Asian Games in Delhi

5

(1996) 10 SCC 1

6

(1982) 2 SCC 494

Judicial Activism The absence of effective legislation on equal pay for equal work has forced the working class to fight in court to get equal pay for equal work, the development of the doctrine of equal pay for equal work has depended upon the various of judicial interpretation. The psychology and social values of the judges play an important role in the judicial interpretation and judicial making law. Equal pay for equal work is one of the Directive Principle of State policy envisaged under Article 39(d) of the Constitution. According to Article 37, the Directive Principle can’t be enforceable by any court, they shall be fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws.7 Judiciary has played an active role in enforcing and strengthening the constitutional goal of “equal pay for equal work”. A milestone in the area of implementation of the Equal Remuneration Act was reached with the pronouncement of the Supreme Court decision8. The court ruled that it “is the principle of equality embodied in Article 14 of the Constitution which finds expression in the provision of the Equal Remuneration Act, 1976.” In Randhir Singh v. Union of India9 the articles 14 and 16 of the preamble and article 39(d), the Supreme Court held that the principle of “equal pay for equal work” is deducible from them and may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though those drawing different scales of pay do identical work under the same employer. In Bhagwan Dass v. State of Haryana10 the Supreme Court was of the view that, (i)

persons doing similar work cannot be denied equal pay on the ground that mode of recruitment was different

(ii)

A temporary or causal employee performing the same or similar duties and functions is entitled to the same pay as that of a regular or permanent employee.

(iii)

A survey of the aforesaid decisions reveals the creative role of judiciary in securing equal pay for equal work to both sexes. Further the court has brought equal remuneration within contours of the fundamental right of equality.

Miss Y. Vishnupriya, “Equal pay for Equal work in India: Myth and Reality”, S.C.J.I. Vol.I, Jan-April, (1991) People’s Union for Democratic Rights v. Union of India - (1982) 2 LLJ 454 (SC) 9 AIR 1987 SC 2049 10 AIR 1988 SC 1504. 7 8

However till 1987, it did not lay down the test for determining “same and similar work”.

RECCOMENDATIONS OR SUGGESTIONS 1. Legal experts along with trade union leaders can work towards a clearer and a concise definition of the term “same work or work of a similar nature”. The definition adopted by ILO of “equal pay for work of equal value” as per The Equal Remuneration Convention (No. 100) could proof useful in this respect. 2. Changes in the law that would enhance its efficacy in the unorganized sector, for example, through a broader definition of the term “employer” would also be helpful. 3. Harsher penalties could help towards discouraging violations of prosecutions under the Act. 4. If the implementation of the Act could be prioritized, for example, by making it a jobresponsibility of a particular Labour Inspector (as opposed to it being a responsibility of all Inspectors in the Labour Ministry), the chances of prosecutions could be improved as well. 5. A wider dissemination of the Act among workers, particularly in the informal sector, is required. Such dissemination should also have contact information of officers that workers could report to in case of violations of the Act. Additionally, a provision for ensuring that the identity of the complainant is not disclosed could be useful. 6. A comparative study of ERA with NREGA which seems to have had a greater success in ensuring gender parity in wages could also give useful pointers on a more effective legislation. 7. The focus should also be on policies that promote sharing of family responsibilities amongst men and women. In this context, the ILO's mandate on gender equality is of particular importance. Its mandate is to promote equality between all women and men in the world of work. This mandate is grounded in International Labour Conventions of particular relevance to gender equality - especially the four key equality Conventions. These are the Discrimination (Employment and Occupation) Convention, 1958. 8. There is also a need for a policy measure such as Equal Employment Opportunities Commission Bill suggested by the Sachar Committee. Perhaps we can draw from the

recommendations of the Expert Group set up by the Ministry of Minority Affairs in this respect. For example, among other things, it suggests that ERA has not been successful because it is not victim-driven in contrast to constitutional protection against discrimination by the state, which gives agency to the victim of discrimination to take up the matter directly with the Supreme Court and High Courts. The victim is accorded a secondary role in ERA and the proof required is beyond reasonable doubt. So, successful prosecutions are rare, and immediate benefits to the victim are limited. Therefore, in order to ensure successful implementation, agency must be placed in the hands of those who are most likely to benefit from it9. 9. Finally , continued efforts through advocacy and public debate to bring about a stronger social commitment for equality are needed. Equal Remuneration Act (Amendment) Bill 1987 The Equal Remuneration Amendment Bill was first passed in the Rajya Sabha and later in the Lok Sabha. The bill was presented in the Rajya Sabha by Shri Ajit Panja former minister of Information and Broadcasting11. The bill was presented in the Lok Sabha by the minister for Labour Mr. P.A. Sangma. The amendments were brought to section 5, and section 10 of the original Act. The amendment to section 5 would prevent discrimination to women during the course of employment. Changes to section 10 prescribed an increase in the penalty for not following the provisions of the Act. While presenting the bill in the Lok Sabha the Minister for Labour Mr . P . A. Sangma called the Equal Remuneration Act (ERA) as one of the ‘most important Acts relating to women’. He also specifically stated the act covers all categories of employments in the organized and the unorganized sector. Explaining the need for the amendment to the act the minister stated that the amendment was intended to rectify certain lacunae and omissions in the ERA12. “The Principal Omission in the existing act is that while the Act prohibits discrimination against women in recruitment there is no specific clause prohibiting such discrimination during

Rajya Sabha Debates, November 23,1987 ‘The Equal Remuneration (Amendt.) Bill’, P.no 220-274. November 24, 1987 p.no236-249. 11

12

Lok Sabha Debates, December 7, 1987, ‘The Equal Remuneration (Amendt.) Bill’, P.no 384-426.December 9, 1987,P.no 284-308.

their employment. Under the existing Act, therefore, any discrimination against women in matters of promotion, increments, etc does not amount to an offence under Equal Remuneration Act”. “One of the reasons the Act has not been as effective as it should have been is that the penalties provided in the Act are comparatively light. It is proposed to make these penalties far more stringent”. “ To make prosecution easier , it is also proposed to permit individuals and recognized welfare institutions or organisations to file complaints in court”. The discussion in this bill along with a focus on the unorganized sector also brought out issues of the violation of the act in organized sector including public sector undertakings some of the issues raised in the ERA main bill were again raised in the amendment bill.

CONCLUSION If we look at the gender perspective in terms of equality of pay, it is almost everybody’s case that women are underpaid both in the formal and informal sector. While contesting a case for equal pay for equal work, the applicability of either of the Acts depends on the chances of success in the use of these Acts. The concept of equal pay for equal work is one of the Directive Principles of State Policy enshrined under Article 39 (d) of the Constitution of the India which envisages that the State shall, in particular, direct it’s policy towards securing that there is equal pay for equal work for both men and women. The principal implies that where all things are equal, that is, where all relevant considerations are the same, persons holding identical posts may not be treated differently in matter of their pay merely because they belong to different departments. Of course, if officers of the same rank perform dissimilar functions and the powers, duties and responsibilities of the 2 posts held by them vary, such officers may not be heard to complaint of dissimilar pay merely because the posts are of the same rank and the nomenclature is the same. It was held in Randhir Singh case by the Supreme Court that, “It is true that the Principle of ‘equal pay for equal work’ is not expressly declared by our Constitution to be a fundamental right. But it certainly is a constitutional goal. Article 39(d) of the constitution proclaims ‘equal pay for equal work for both men and women’ as a Directive Principle of State Policy. ‘Equal pay for equal work for both men and women’ means equal pay for equal work for everyone and as between the sexes. Directive Principles, as has been pointed out in some of the judgments of the Supreme Court have to be read into the fundamental rights as a matter of interpretation. Article 14 of the constitution enjoins the state not to deny any person equality before the law or the equal protection of the laws and Article 16 declares that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the state. These equality clauses of the constitution must mean something to everyone. To the vast majority of the people the equality clauses of the constitution would mean nothing if they are unconcerned with the work they do and the pay they get. To them equality clauses have some substance if equal work means equal pay

BIBILIOGRAPHY 

SHODGANGA

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EQUAL REMUNERATION ACT, 1976

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MANUPATRA

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INDIAN KANOON

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SUPREME COURT LIVE CASES