Equal Pay For Equal Work: The Unfair Gender Pay Gap – By Debalina Chatterjee

By | November 6, 2018
Equal Pay For Equal Work: - By Debalina Chatterjee

INTRODUCTION

The principle of equal pay for equal work is contained in clause (d) of Article 39 of the Indian Constitution which envisages that the state shall, in particular, direct its policy towards securing that there is equal pay for equal work for both men and women. This principle 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 the 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 posts held by them vary, such officers may not be heard to complain of dissimilar pay merely because the posts are of the same rank and the nomenclature is the same.

In Randhir Singh v. Union of India the supreme court held the principle of equal pay for equal work though not a fundamental right is certainly a constitutional goal and therefore capable of enforcing through constitutional remedies under article 32 of the constitution. The doctrine of equal pay for equal work is applicable to persons employed on a daily wager are entitled to the same wages as other permanent employees in the department employed to do the identical work.

Equal pay for equal work finds it’s placed in the directive principles of state policy and it is an accompaniment of equality cause enshrined in article 14 and 16 of the constitution of India. Nevertheless, the abstract doctrine of equal pay for equal work cannot be read in article 14. reasonable classification based on intelligible criteria, having a nexus to the object sought to be achieved, is permissible.

Accordingly, it has been held in the State of A.P. and others v. G.Sreenivasa Rao and others, that “Equal pay for equal work” does not mean that all the members of the cadre must receive the same pay packet, irrespective of their seniority, source of recruitment, educational qualifications and various others incidents  of service. It was further held that ordinary grant of higher pay to a junior would ex-facie be arbitrary, but the equality doctrine cannot be invoked where there is the justifiable ground of doing so.

For example when persons recruited  from different sources are given pay protection,  when a promotee from a lower cadre or a transferee from another cadre is given pay protection, when a senior is stopped at efficiency bar, when advance increments are given for experience, passing a test, acquiring higher qualification or an incentive for efficiency are some of the eventualities when a junior is drawn higher pay than his senior without violating the mandate of equal pay for equal work.

DISCUSSION OF THE EQUAL REMUNERATION ACT, 1976

With a view to give effect to the goal of equal pay for equal work set out in clause (d) of Article 39 of the Constitution the President of India promulgated on 26th September, 1975, the Equal Remuneration Ordinance, 1975 so that the above Directive Principle could be implemented in the year which was being celebrated  as the International Women’s year. the ordinance was later converted into an Act No. 25 of 1976. The Equal Remuneration Act,1976 provides for the equal remuneration to men and women workers and for prevention of discrimination, on the ground of sex, against women in the matter of employment and for matters connected therewith or incidental thereto.

Section 2 (h) of this Act states that ‘same work or work of a similar nature’ means work in respect of which their skill, effort, and responsibility required 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.

LEGAL OBLIGATIONS OF ORGANISATIONS TO CURB PAYMENT GAP:

According to section 4 of this Act, no employer shall pay to any worker, employed by him in an establishment or employment, remuneration, whether payable in cash or kind , at rates less favorable 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  similar nature. No employer shall for the purpose of complying with the provisions of this section reduce the rate of remuneration of any worker.

Where, is 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 similar nature are different only on the ground of sex then the higher(in care there are more than 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.

In M/s. Mackinson Mackenzie and Co. Ltd. v. Andrey D’ Costa and another (1987) a female confidential stenographer after her termination of her services filed a petition under sub-section(1) of section 7 of the Equal Remuneration Act, 1976 complaining that during the period of her service she was paid remuneration at lesser rates than those of male stenographers who were also performing same or similar work. It was held that in order to get relief  under section 4 of the Act the employee should establish that the remuneration paid by the employer, whether payable in cash or kind, is being paid at rate less favorable than those at which remuneration is paid by him  to the employees of the opposite sex in such establishment for performing same work or work of a similar nature.

According to section 5 of the Equal Remuneration Act, on and form the commencement of this act, no employer shall, while making recruitment for the same work or work of the same work of similar nature, or in any condition of service subsequent or recruitment such as promotions, training or transfer make any discrimination except where the employment of women in such work is prohibited or restricted by or under any law for the time being in force.

For the purpose of providing increasing employment opportunities for women, the appropriate Government shall constitute one or more Advisory Committee to advise it with regard to the extent to which women may be employed in such establishments or employments as the Central Government may, by notification, specify in this behalf.

According to section 8, it is the duty of the employers to maintain registers and other documents in relation to the workers employed by him as may be prescribed.

According to section 10, if after the commencement of this act, any employer  omits or fails  to maintain any register  or another document in relation  to workers employed by him or omits or refuses to give any information, he shall be punishable with simple imprisonment for a term which may extend to one month or with fine which may extend to ten thousand rupees or with both.

if, after the commencement of this Act, any employer, makes any recruitment in contravention of the provisions of this Act or makes any payment of remuneration at unequal rates to men and women workers, for the same work or work of similar nature he shall be punishable with fine which shall not be less than ten thousand rupees but which may extend to twenty thousand rupees or with imprisonment which shall not be less than three months  but which may extend to one year or with both for the first offense.

INTERNATIONAL SCENARIO

Equal Pay Act of 1963 (EPA), is a landmark U.S. legislation mandating equal pay for equal work, in a measure to end gender-based disparity. The National War Labor Board first advocated equal pay for equal work in 1942, and an equal pay act was proposed in 1945.  On June 10, 1963, President Kennedy signed the Equal Pay Act into law. It was enacted as an amendment to the Fair Labour Standards Act of 1938, which regulates matters relating to minimum wages, overtime and child labor.

Among the reasons given to justify unequal pay were these: working women had a higher turnover rate because of family obligations; some state laws prohibited women from working at night, and other laws limited the actual number of hours women could work and the number of weight women could lift. The laws reflected the historical bias in the system of compensation in the USA during that period; in the 1950s two-thirds of families had a bread winning husband and a stay-at-home wife. A woman’s income was not considered vital to the survival of the household.

The EPA requires,  that men and women who work in jobs that are substantively equal in terms of skill, effort, responsibility, and working conditions shall receive the same pay. The original bill that was proposed required equal pay for comparable work. However, this stipulation was changed before the passage of the bill to “equal work.” The EPA permits differences in wages based on seniority, merit, quality, or quantity of production, or other differentials not based on gender. In EPA cases, plaintiffs have the burden of proof to show that women were paid less than men and that the work involved was “substantively equal.”

From 1963 until the passage of the Educational amendments in 1972, those employed in executive, administrative, or professional capacities were excluded from the protection of the EPA because of its incorporation with the Fair Labor Standards Act, which included those exemptions. As a result of the Reorganization Act of 1977, the enforcement of the EPA shifted to the Equal Employment Opportunity Commission in 1979, where it remains.

The Equal Pay Act 1970 is an Act of the Parliament of the United Kingdom that prohibits any less favorable treatment between men and women in terms of payment and conditions of employment. It was based on the Equal Pay Act, 1963  of the United States.

For an employee to claim under this Act they must prove one of the following:

  • That the work done by the claimant is the same, or broadly the same, as the other employee.
  • That the work done by the claimant is of equal value (in terms of effort, skill, decision, and similar demands) to that of the other employee.
  • That the work done by the claimant is rated (by a job evaluation study) the same as that of the other employee.

Once the employee has established that they are employed on ‘equal work’ with their comparator then they are entitled to ‘equal pay’ unless the employer proves that the difference in pay is genuinely due to a material factor which is not the difference in gender.

Thus, it is clear that all countries have legislation relating to granting of equal remuneration to both the genders and close the gap between wages for similar work. However, in spite of all these laws women workers especially in unorganized sectors are given fewer wages compared to their counterparts.

CONCLUSION

In order to fulfill the objective of equal pay for equal work legislation is not enough, women in unorganized sectors should raise their voice against this unequal treatment. equal remuneration is an important factor to propagate women empowerment. If women are denied equal treatment in respect of wages, it will amount to a violation of the right to equality. So, organizations should take the required steps to eradicate the gap in wages of employees.


By – Debalina Chatterjee

(Jogesh Chandra Chaudhuri Law College)


SOURCES:

  1. S.N Mishra, ‘Labour and Industrial Laws’, Central Law Publications, 2018
  2. https://www.britannica.com/topic/Equal-Pay-Act
  3. https://www.closethegap.org.uk/content/gap-law-1970/

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