The Equal Remuneration Act, 1976 | Labour and Industrial Law - CLAT PG PDF Download

Background

The principle of equal pay for equal work is enshrined in clause (d) of Article 39 of the Indian Constitution. This principle means that when all relevant factors are the same, individuals holding identical positions should not be treated differently in terms of pay simply because they belong to different departments.

Indian Constitution

• Equal pay for equal work is part of the Directive Principles of State Policy and is linked to the equality clauses in Articles 14 and 16 of the Indian Constitution.
• Article 39 (d) specifically directs the state to ensure equal pay for equal work for both men and women.
• In the case of Randhir Singh V. Union of India, the Supreme Court recognized equal pay for equal work as a constitutional goal, enforceable through Article 32 of the Constitution.
• The court emphasized that this principle is not abstract but substantial, deriving from Articles 14 and 16. The term "socialist" in the Preamble implies equal pay for equal work.

State of A.P V. Sreenivasa Rao

• The principle of equal pay for equal work does not imply that all members of a cadre must receive the same pay regardless of seniority, recruitment source, or educational qualifications.
• Paying a junior employee more than a senior solely based on their cadre would be arbitrary, but the equality doctrine can be invoked when there are justifiable grounds for such a decision.

Object of the Act

The Equal Remuneration Act, 1976 aims to ensure equal remuneration for men and women workers and prevent discrimination against women in employment based on sex.

Features of the Act

• The Act prohibits discrimination in the recruitment and promotion of men and women.
• It mandates equal remuneration for work of similar nature performed by men and women.
• It prevents discrimination based on sex in recruitment of women.
• The Act establishes an advisory committee to promote employment opportunities for women.
• It provides for the appointment of officers to hear complaints and inspectors for investigation and administration of the Act.
• While the primary objective is gender equality, the Supreme Court has extended its applicability to Articles 14 and 16 of the Indian Constitution.

Dharwad District P.W.D Literate Daily Wage Employees Association V. State of Karnataka

• The Equal Remuneration Act aims to provide equal pay for equal work between men and women, which is part of the principle of equal pay for equal work.
• Daily rated and monthly rated employees in the state of Karnataka are entitled to pay like regular employees.
• The government is required to pay salaries to such workers at rates equivalent to the minimum pay in the pay scale of regularly employed workers.

Definitions

Sec 2 (g)"Remuneration"

• "Remuneration" refers to the basic wage or salary, along with any additional emoluments, payable to a person employed in respect of their employment or work done, as long as the terms of the contract of employment are fulfilled.

Sec 2 (h) "same work or work of a similar nature"

• This refers to work that requires the same skill, effort, and responsibility when performed under similar working conditions by both men and women. Any differences in skill, effort, and responsibility between men and women should not be of practical significance in relation to the terms and conditions of employment.

Essential conditions

• Skill, effort, and responsibility required for the work must be the same for both men and women.
• Work should be performed under similar working conditions.
• Any differences in skill, effort, and responsibility between men and women should not be practically significant in relation to the terms and conditions of employment.

State of MP V. Pramod Bhartiya

• Conditions of service for lecturers in Higher Secondary Schools in Madhya Pradesh are governed by specific rules.
• Technical schools in Madhya Pradesh have different rules for categorizing lecturers into technical and non-technical roles.
• Qualifications alone are not sufficient; the similarity of duties, functions, and responsibilities is crucial for determining equal pay.
• Although the Equal Remuneration Act targets discrimination against workmen, its relevance in defining similar work for teachers cannot be overlooked.
• The Act aims to establish statutory backing for the principle of equal pay for equal work for both genders.

M.P. Rural Agricultural Extension Officers Association V. State of M.P. and Another

• Rural agricultural extension officers who were only matriculated complained about unequal pay compared to graduates.
• The Supreme Court noted that the state policy required Extension officer posts to be filled by graduates only.
• The different pay scales for non-graduates aimed to prevent discrimination among new recruits and existing employees with graduate qualifications.
• The state’s decision to grant a higher pay scale for degree holders was not illegal.

Act to have overriding effect

• The provisions of the Equal Remuneration Act shall prevail over any inconsistent provisions in other laws, awards, agreements, or contracts of service.
• Special treatment for women in connection with childbirth, retirement, marriage, or death will not be affected by this Act.
• The Act applies universally, regardless of financial constraints of the management.

In Ws Mackinon Mackenzie & Co Ltd V. andrey D 'Costa

• The management argued that the difference in remuneration between male and female stenographers was due to a settlement reached after proper negotiation.
• Section 3 of the Act states that its provisions take precedence over any inconsistent terms in other laws, awards, or agreements.
• Therefore, the settlement must comply with the provisions of the Act.

Payment of Remuneration at Equal Rates to men and women workers
Duty of employer to pay equal remuneration to men and women workers for same work or work of a similar nature.

• 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.
• No employer shall, for the purpose of paying equal wages to both men and women, reduce the rate of remuneration of any worker.
• 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 similar nature are different only on the ground of sex, then the highest 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 Mackinon Mackenzie & Co Ltd V. andrey D'Costa

• A female confidential stenographer filed a petition under the Equal Remuneration Act after her service was terminated, claiming she was paid less than male stenographers for similar work.
• To obtain relief under Section 4 of the Act, the employee must establish:
• The remuneration paid by the employer, whether in cash or kind.
• Discrimination based on sex in wage payment.
• Performance of the same work or work of a similar nature.

Whether the work is similar in nature as another work can be determined on three considerations

• A broad view should be taken in determining whether any differences are practically significant.
• Actual duties performed should be considered, not theoretical possibilities.
• There is no requirement for equal basic rates for all employees working inconvenient hours.

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

• The Act mandates non-discrimination in the recruitment of personnel based on sex.
• No discrimination in remuneration is allowed from the commencement of the Act.
• Exceptions for hazardous employment of women and children are provided.
• The provisions do not affect priority or reservation for certain categories in recruitment.

Advisory Committee

• Section 6(1) of the Act mandates the formation of an Advisory Committee by the appropriate government to enhance employment opportunities and revise employer remuneration policies.
• The committee should have at least 10 members, with 50% women, to ensure policies reflect the needs of all stakeholders.

Considerations for the Advisory Committee

• Number of women at work
• Nature of work
• Hours of work
• Suitability of women
• Need to provide opportunities

The committee can set its own procedures and the government may adopt its recommendations.

Authorities for Hearing and Deciding Claims and Complaints

Power of the appropriate Government to appoint authorities for hearing and deciding claims and complaints- Section 7 of the Act states that the complaints and claims regarding the infringement of this Act shall be addressed to the appointed officer for the purpose of hearing and deciding

1. complaints with regard to the contravention of any provision of this Act;
2. claims arising out of non-payment of wages at equal rates to men and women workers for the same work or work of a similar nature;

and may, by the same or subsequent notification, define the local limits within which each such authority shall exercise its jurisdiction.

If any question arises as to whether two or more works are of the same nature or of a similar nature, it shall be decided by the authority appointed under the Act.

If any claim or complaint made to the authority, a due inquiry must be made by the appointed officer, wherein both the parties in the matter must be given an opportunity to be heard and after such inquiry, as it may consider necessary, direct-

1. In the case of a claim arising out of non-payment of wage at equal rates to men and women workers for the same work or work of a similar nature, the balance amount should be paid.
2. In the case of a complaint, that adequate steps be taken by the employer so as to ensure that there is no contravention of any provision of this Act.

Appeal

• The situation where any of the parties is dissatisfied with the decision given by the authority.
• The aggrieved party must prefer an appeal before such an authority which is specified by the appropriate government, within thirty days from the date of the order.
• Section 33C of the Industrial Disputes Act shall apply for the recovery of monies due from an employer arising out of the decision of an authority appointed under this section.

Duty of Employers to Maintain Registers
Section 8 of the Act specifies a duty of Employers to maintain a record of the employees, which must contain detailed information regarding the remuneration.

Administration of the Act

Inspectors

• The appropriate Government may appoint Inspectors for the purpose of making an investigation as to whether the provisions of this Act, or the rules made thereunder, are being complied with by employers, and may define the local limits within which an Inspector may make such investigation.
• The inspectors have the following powers while the investigation
• enter, at any reasonable time, with such assistance as he thinks fit, any building, factory, premises or vessel;
• require any employer to produce any register, muster-roll or other documents relating to the employment of workers, and examine such documents.
• take the evidence of any person for the purpose of ascertaining whether the provisions of this Act are being, or have been, complied with
• examining the employer, his agent or servant or any other person found in charge of the establishment or any premises.
• make copies, or take extracts from, any register or other document maintained in relation to the establishment under this Act.

Penalties

• Penalties are charged in case, any employer fails to comply with the norms provided in the Act.
• Section 10 of the Act specifies that if an employer fails to:
• Fails to maintain a register;
• Fails to produce the register when required;
• Refuses or omits to give evidence as per requisitions;
• Refuses to give any information;
• Makes any recruitment in contravention of the provisions of this Act;
• Makes payments at unequal rates;
• Makes any discrimination on the basis of sex;
• Fails to carry out any direction as mentioned in the Act;
• shall be punishable with at least a fine of 10,000, which may extend till 20,000 or imprisonment, not less than 3 months, which may extend to one year. In case of more than one offence, the punishment will increase, accordingly.

Exclusion of Certain Cases

• Section 15 of the Act was amended by Equal Remuneration (Amendment) Act, 1987 which states,
• Nothing in this Act shall apply-
• to cases affecting the terms and conditions of a woman's employment in complying with the requirements of any law giving special treatment to women, or
• 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 Act provided for all possible exclusions, which helps with the protection of interests of women who require special treatment. This emanates the idea of equity and the spirit of protection of all kinds of rights.