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EQUAL PAY FOR EQUAL WORK

ABSTRACT

The topic of my research paper is Equal Pay for Equal Work-Constitutional and Labor legislation perspective. In this research paper we have tried to elaborate the concept of equal pay and work from the view point of constitutional basis and understanding the roots of the concept from the constitution, understanding how the concept emerged from the fundamental rights and thereon trying to understand the inclusion of the concept in various acts, example Equal Remuneration Act, Contract Labor, Factories Act etc. The preamble of the Constitution of India is an introduction to the Constitution and lays down in brief the aims and objectives of the policy framers of the Union of India[1]. It enunciates the socio-economic goals and ends which are to be achieved by the Indian Constitution. These goals are multitudinous in nature and secure for the citizens of India (in some cases for foreigners as well) a variety of rights and ensure justice, liberty, equality, and fraternity to all. Part IV of the Constitution lays down the Directive Principle of State Policy. This novel feature, envisaged by our Constitution, was borrowed from the Constitution of Ireland, which itself had borrowed it from the Spanish Constitution. These Directive Principles lay down the basic aims and objectives of the States, to be followed in the governance of the country. They are more or less the guidelines, directing the government as to what is to be kept in contemplation while framing the policies. They can also be tremendous a distinct set of moral duties, to be implemented by the state, while giving shape to legislations and provisions of the State. In other words, Directive Principles act as a device for making the Government conforms the ideals, which the Constitution lays, for the attainment of democracy in its true sense i.e., Political as well as economic. This can be done only when the Government complies with these stated objectives and makes an attempt to make India welfare state in real as well as practical terms. They are however non-justifiable rights on the people, which set out the economic, social and political goals of the Indian Constitutional system, and place the government under a moral obligation to achieve and maximize social welfare and basic social values like education, employment, health etc. The reason for their non-enforceability is that they impose a positive obligation upon the state and it is while taking actions for implementing the obligations that there arise several limitations to the Government, one such constraint being the availability of resources. The purpose for enunciating the extent of enforceability of EQUAL PAY FOR EQUAL WORK 5 directive principles of state policy is of relevance in the present topic because the concept of equality of pay i.e., “equal pay for equal work” being a part of these Directive Principles is to hold the same fate as other Directive Principles. However, the Courts in India and the Supreme Court in particular have constantly and consistently regarded the principle of equal pay for equal work as a constitutional goal, much higher than being a mere Directive Principle, and have subsequently enforced it in-tandem with the fundamental rights, enshrined under Right to Equality (Art. 14).

KEYWORDS

Equal pay for equal work

Gender

Constitutional

Data

Remuneration

INTRODUCTION

Women are severely underrepresented in the global labor market: around 50% of women work or actively seek work for income, compared to 80% for men. The gender differences in participation are fundamentally driven by variation in women’s participation rates – men’s participation rates are broadly constant across time and countries. The participation gaps between men and women are particularly large in South Asia, the Middle East, and North Africa, where they sometimes exceed 50 percentage points.

Equal participation does not, however, imply gender equality, as gender gaps exist in many other dimensions of the labor market. When women work, they earn less: across the OECD, for example, women earn on average 13% less than men.2 Moreover, women tend to work in jobs with less room for promotion and are severely underrepresented on corporate boards or as CEOs. Gender gaps in earnings and the “glass ceiling” in promotions are worldwide phenomena[2].

Equal pay for equal work is the concept of Labor rights that individuals in the same workplace be given equal pay. It is most commonly used in the context of sexual discrimination, in relation to the gender pay gap. Equal pay relates to the full range of payments and benefits, including basic pay, non-salary payments, bonuses and allowances. Some countries have moved faster than others in addressing equal pay.                                                             Why are labor market gender gaps so pervasive around the world today? What explains the variation in the size of these gaps over time and across countries? Is the extent of gender equality primarily a reflection of economic development? Why do gender earnings gaps remain in high-

income countries, despite, for example, women being more educated and the adoption of equal pay legislation?

But measuring (let alone explaining) long-run trends in labor market gender gaps is challenging due to a lack of historical employment records, especially for women. Moreover, even if data do exist, women may be systematically undercounted. For instance, historically women’s occupation was often listed as “wife” in the US censuses. A crucial first step to fully appreciating and explaining the economic advancements of women is to reliably measure women’s outcomes in the labor market.

RESEARCH METHODOLOGY

Research Approach: Our research methodology employs a “descriptive design” approach, which focuses on providing a comprehensive study. we aim to present a detailed overview of the collected data. The descriptive design is observational, allowing us to closely examine and describe the subject matter without manipulating variables.

Data Analysis Method: The data of this research of this research is mostly qualitative in nature. The data is gathered in-depth.

Research Design: The purpose of this study is to know the implementation of the concept called “equal pay for equal work” and making laws for the concept. Suppose in accompany there are two employees working one is male and second is female. The male employee is getting 100 p/m and female employee is having 50p/m. This type of problem we are facing.

REVIEW OF LITRETURE

Equal pay for equal work is being a long-lasting process in our country. The literature review provides an overview of the key themes and concepts that form the basis of the proposed research on gender equality in wages paid in an organisation in India. It also highlights existing scope in this field, emphasizing historical perspectives, the legal framework, due diligence processes, challenges and recent developments.

Historical overview of ‘EQUAL PAY FOR EQUAL WORK’ world wide:

As wage labor became increasingly formalized during the Industrial revolution, women were often paid less than their male counterparts for the same labor, whether for the explicit reason that they were women or under another pretext. The principle of equal pay for equal work arose at the same part of first-wave feminism, with early efforts for equal pay being associated with

nineteenth-century Trade Union activism in industrialized countries: for example, a series of strikes by unionized women in the UK in the 1830s

 In 1895, she was quoted by the Chicago Tribune as having said, “When women are given the ballot, there will be equal pay for equal work.” However, following the Second World War, trade unions and the legislatures of industrialized countries gradually embraced the principle of equal pay for equal work; one example of this process is the UK’s introduction of the Equal Pay Act 1970[3] in response both to the Treaty of Rome and the Ford sewing machinists strike of 1968. In recent years European trade unions have generally exerted pressure on states and employers to progress in this direction.

European Era

Post-war Europe has seen a fairly consistent pattern in women’s participation in the labour market and legislation to promote equal pay for equal work across Eastern and Western countries.

Some countries now in the EU, including France, Germany, and Poland, had already enshrined the principle of equal pay for equal work in their constitutions before the foundation of the EU.  When the European Economic Community, later the European Union (EU), was founded in 1957, the principle of equal pay for equal work was named as a key principle. Article 141 of the Treaty of Rome says “each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.”

The main national legislation concerning pay equity between men and women for different European countries is as follows:

  • Austria The 1979 Act on Equal Treatment on Men and Women (as amended since)
  • Belgium          The 1999 Law on Equal Treatment for Men and Women (Articles 12 and 25) and the Royal Decree of 9 December 1975
  • Bulgaria          Equal pay for equal work included in the labour code
  • Latvia  Equal pay for equal work included in the labour code
  • Liechtenstein  Equal pay for equal work included in the civil code
  • Lithuania         Equal pay for equal work included in the labour code
  • Romania         Equal pay for equal work included in the constitution
  • Slovakia          Equal pay for equal work included in the constitution. Etc.

Overview of ‘EQUAL PAY FOR EQUAL WORK’ in India[4]:

As part of its Directive principles of state policy, the Constitution of India through Article 39 envisages that all states ideally direct their policy towards securing equal pay for equal work for both men and women, and also ensuring that men and women have the right to an adequate means of livelihood. While these Directive Principles are not enforceable by any court of law, they are crucial to the governance of the country and a state is duty bound to consider them while enacting laws.

While “equal pay for equal work” is not expressly a constitutional right, it has been read into the Constitution through the Interpretation of Articles 14, 15 and 16 – which guarantee equality before the law, protection against discrimination and equality of opportunity in matters of public employment. The Supreme court of India has also declared this to be a constitutional goal, available to every individual and capable of being attained through the enforcement of their fundamental rights set out in Articles 14 through 16. In a popular Supreme Court decision, the conditions of employment of the air-hostesses of Air India was challenged. The terms of employment required the mandatory retirement of females: (i) upon attaining the age of 33; (ii) if they were married within four years of service; or (iii) upon their first pregnancy. The court however struck down these provisions and held them to be arbitrary and discriminatory as it violated Articles 14, 15 and 16 of the Constitution.

Statutory Protection

In 1976, the Equal Remuneration Act was passed with the aim of providing equal remuneration to men and women workers and to prevent discrimination on the basis of gender in all matters relating to employment and employment opportunities. This legislation not only provides women with a right to demand equal pay, but any inequality with respect to recruitment processes, job training, promotions, and transfers within the organization can also be challenged under this Act. However, its scope does not extend to situations where: (i) a woman is attempting to comply with the requirements of laws giving women special treatment; and (ii) a woman is being accorded special treatment on account of the birth of a child, or the terms and conditions relating to retirement, marriage or death. Companies and individual employers can both be held accountable to maintain the standards prescribed under this Act. In various cases, the Supreme court of India has also held that discrimination on the basis of gender only arises when men and women perform the same work or work of a similar nature. However, it clarified that a flexible approach is required to be taken while deciding which kinds of work may be similar by considering the duties actually performed as a part of the job, and not the duties potentially capable of being performed.

The first case in India on EQUAL PAY FOR EQUAL WORK was Kishori Mohanlal Bakshi vs. Union of India (1962) in this case the Supreme Court declared that the principle of equal pay to equal work was declared incapable of being brought into force in the court of law. Though later in the case of Mackinnon Mackenzie Co. Ltd. vs. Audrey D’Costa and other [AIR1987 SCC (2)469] this case was about equal remuneration, The Supreme Court under this updated the lower court’s decision in regard with the respondent’s support and stated repulsion against the work of the female stenographers was different just because they worked in different places and worked confidentially. Whether the women work confidentially or not they are not deprived of their right to equal remuneration and hence the court was in favor of the respondent stating women are neither specially qualified to be confidential stenographer nor disqualified based on sex to do the work assigned to the male stenographers. And even though the women are appointed as confidential stenographers, they shall not be denied equal remuneration under the Equal Remuneration Act of 1976.

U.P. Rajya Sahakari Bhoomi Vikas bank ltd. Vs Workmen: In this case in the bank some employees were promoted before time while other employees were promoted later but there were both senior and junior employees were working together the same type of work. The higher remuneration was inly given to senior employees from the back date. The court held that promoters of another group could not be deny that. The court also held that if both senior and junior are doing same work at same level then there should not be any difference between remuneration paid to them. Thus, court made an attempt to regularize conduct and also highlighted the fact that different schemes to evade the provision of Equal pay for equal work will not be allowed and whenever there was a hint of woe, the court would come to rescue of the aggrieved workers.

Surinder Singh vs. Engineer in chief: The prime contention of the petitioner was that they were employed by the central public works department on daily wages basis and their wages were less than those who were employed by the Department on the permanent basis but did the same work. In reply, respondents stated that the doctrine of Equality of pay was an abstract concept and could not be applied. The court held that it could not be held that the doctrine of ‘EQUAL PAY FOR EQUAL WORK’ was a mere abstract doctrine and that it was not capable of being enforced in court of law. The court specially referring to the government stated that the state and central governments in all public sector undertakings were expected to function like model and enlightened employers.

There are many more cases like HarbansLal vs. state of Himachal Pradesh, Grihkalyan kendra workers vs. union of India etc.

METHOD

In this research paper we have used descriptive design and data analysis method. These methods give us a in depth knowledge to understand my topic what I am writing for. This made me able to create an overview on what basis I have to research and on what grounds I have to work to make my paper more creative in quality wise and in quantity wise. In my research paper I have used some of previous cases from SCC online which made me very comfortable and more relatable with topic ‘EQUAL PAY FOR EQUAL WORK’. For qualitative collection of data, I had used Wikipedia and some other legal websites. While writing paper I had used past data of many countries in comparison to our country which shows a comparative approach of paper and mindset that we are approaching.

In this paper we have thoroughly review the existing relevant literature and explain how our study will fill gaps, correct errors, or resolve controversies. Highlight the practical applicability and importance of our research and explicitly state the specific aims or hypotheses of the study.

SUGGESTIONS

The Equal Remuneration Act should not exclusively concentrate on addressing gender-based discrimination.

  • The standards for defining equal work need to be explicitly stated.
  • Equal pay for equal work should be implemented in every organization as a primary goal.
  • Some of the important factors which have to be considered to fix the remuneration are degree of work, risk in work, mental and physical requirements. Minimum educational and technical requirements prescribed for the post, were also some of the relevant factors.
  • There is need to have Equal pay policies with strict rules and regulations.

CONCLUSIONS

There are many evidence which shows that ‘EQUAL PAY FOR EQUAL WORK’ is adopted by many of the countries or we can say globally.  It has also been mentioned that recognizing this principle is of utmost importance for social justice and economic stability of individuals and eventually a whole group or class of people. the concept behind the principle and the international conventions related to the principle and has specifically talked about the status of women and the dire need to implement the principle in order to achieve equality between men and women. The principle of ‘equal pay for equal work’ is a socio-legal imperative. International Instruments like UDHR, ICCPR, ICESCR, and ILO Conventions have been used to deduce the essentiality of the principle in a globalized world[5]. It is important to maintain the mandate of equality and humanity as per international human rights and other recognized instruments.

Courts in India, notably the Supreme Court, have consistently elevated this principle, viewing it not just as a directive but as a constitutional imperative aligned with the fundamental right to equality (Article 14). The non-justiciable nature of Directive Principles poses challenges in enforcement, considering constraints such as resource availability.

Simply stating that everyone is equal is not sufficient; concrete actions are necessary to create a classless society. Implementing the concept of equal pay for equal work is one such crucial step. This ensures the elimination of unjust discrimination in any society, especially concerning the payment of wages.

Name: Aniruddha Bansal

College Name: Lloyd law college


[1] Find and share research, ResearchGate, https://www.researchgate.net/ (last visited Nov 13, 2023).

[2] Scientific background to the Sveriges Riksbank Prize in economic …, https://www.nobelprize.org/uploads/2023/10/advanced-economicsciencesprize2023.pdf (last visited Nov 13, 2023).

[3] Equal pay act 1970, Wikipedia (2023), https://en.wikipedia.org/wiki/Equal_Pay_Act_1970 (last visited Nov 13, 2023).

[4] History of Indian law, Wikipedia (2023), https://en.wikipedia.org/wiki/History_of_Indian_law (last visited Nov 13, 2023).

[5] Abanti Bose, Equal pay for equal work in India and the Globalising World iPleaders (2021), https://blog.ipleaders.in/equal-pay-for-equal-work-in-india-and-the-globalising-world/ (last visited Nov 13, 2023).

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