Equal Pay for Equal Work – Statutory Provisions and Judicial Pronouncements

In a society striving for gender equality, one of the key pillars is to ensure equal pay for equal work. Despite the continuous advancements towards it, the issue of pay disparity among men and women has plagued societies all across the globe. India, being a developing nation and the most populous country, has a huge labor force that makes the labor price cheap. People are ready to work even for less than the minimum prescribed wages by the government. This has formed asymmetries in India’s labor market. Apart from working for less than the minimum wage, the workforce even has to face discrimination on the grounds of caste, religion, marital status, sex, etc. which widens the existing gender pay gap in India. As per the World Inequality Report 2022, the gender inequalities in India are very high. The share of total labour income accruing to women in 2020 is close to 18% which is the lowest value in the world.¹ For the overall economic growth of the nation and to ensure social justice for working groups, we need to address the issue of pay disparities in the workplace and allow disadvantaged groups to earn a fair standard of living to fulfill their necessities.

The doctrine of “equal pay for equal work”, in simplest terms, can be defined as a concept of paying fairly to people based on the work provided to them irrespective of their gender, caste, religion, sex, marital status, etc.

Statutory Provisions

The legal principle “Equal Pay for Equal Work” is a recognized concept in the Constitution of India not explicitly as a fundamental right but as a constitutional goal. It is provided under Part IV Directive Principles of State Policy under Article 39(d)² which states that “there is equal pay for equal work for both men and women.” This doctrine cannot be put in a straight jacket but if read with Article 14, 15, and 16 of the Constitution of India, it will certainly hold a great constitutional significance.³ In the case of Randhir Singh v. Union of India,⁴ it was held that “Equal pay for equal work is not an abstract doctrine but one of substance, and Directive principles have to be read into the fundamental rights as a matter of interpretation.”

Besides the Constitution of India, some other legislations emphasize pay parity which is discussed below in brief:

• The Workmen’s Compensation Act, of 1923⁵ was enacted to provide financial relief to the dependants of the deceased/injured if any accident or injury happened to the workmen as a result of the negligence of the employer.
• The Minimum Wages Act, of 1948⁶ was enacted with the aim of the welfare of laborers. The Act secured a minimum wage for the laborers in certain employments to protect them from exploitation by the capitalists and earn a respectable standard of living.
• The Equal Remuneration Act of 1976⁷ was enacted to bring pay parity among men and women. The main objective of the Act was to eliminate discrimination in the workplace based on gender and provide equal remuneration for equal work to employees irrespective of their gender. The notable point of this Act is that if the rate of remuneration before this Act were high, then the employer cannot reduce the rate of remuneration to comply with the provisions of this Act and the highest of the rates are payable.⁸
• Code on Wages, 2019⁹ replaced the Equal Remuneration Act (ERA). It has made huge progress by extending the application of the principle of equal pay for equal work beyond the binary of men and women. Thus, the people of the LGBTQI+ community are also extended the benefit of equal remuneration for work of equal value. The Code has also done away with S.16 of ERA which empowered the government to differ in the remuneration of men and women solely based on gender. Though, the code has tried to make a huge progress but again has failed to describe the phrase “work of equal value” and left with the courts to interpret it. However, the Courts have given a narrower interpretation to this phrase.¹⁰

Judicial Pronouncements

The judiciary has applied and interpreted the doctrine of “equal pay for equal work” in a series of decisions from the year 1980s. The court has initially given a wider interpretation to the phrase “same work or work of similar nature”. In the landmark judgment of Mackinnon Mackenzie,¹¹ the Supreme Court held that the principle of equal remuneration presupposed that the same level of pay is guaranteed not only to persons performing identical jobs but also to persons performing work that was different but was considered to be of equal value. In another case of State of Madhya Pradesh v Pramod Bhartiya and others,¹² the Supreme Court held that Equal pay for equal work is implicit in the doctrine of equality enshrined in Article 14¹³ because Article 39(d)¹⁴ did not cease to be a part of Article 14.

However, in recent years the Indian Courts have pulled themselves out from interfering in executive actions. The Supreme Court has also held that unless there complete and wholesale identity between the two groups, there is no claim for equal pay.¹⁵ In the case of Union of India v. Indian Navy Civilian Design Officers Association and Anr.,¹⁶ it was held by the Supreme Court that the equation of posts and determination of pay scales is the primary function of the Executive and not of the Judiciary. The Indian Courts have certainly fallen short in interpreting the legal principle of equal pay for equal work. Thus, now the legislature should initiate in describing the phrase “same work/work of similar nature/work of equal value” to ensure gender justice in the workplace.

Challenges in Bringing Pay Parity

India is a patriarchal society, and gender discrimination is deeply rooted in India. Women, transgender people, and other disadvantaged groups have to bear the burden of such deep-rooted patriarchal notions. Besides such stereotypical beliefs, inadequate implementation of legislation and lack of transparency in the job evaluation system and pay structure also widen the gender pay gap in India. Furthermore, women have done their domestic and household chores unpaid for ages, and thus cultural attitude that women are primarily the caregivers has kept their work undervalued. Additionally, the lack of education in women and the concentration of women’s roles mainly in low-paying jobs have also perpetuated the idea of a gender pay gap in India. While the legislation has been proactive in ensuring gender justice at the workplace by enacting legislation but has fallen short in addressing the core issues of the pay gap in India. Similarly, the Indian Courts have also taken a safer path by not interfering in Executive action and kept the constitutional goal of “equal pay for equal work” a distant dream.

Conclusion

The implementation of the doctrine of equal pay for equal work has been a significant step to ensure gender justice in the workplace. However, there are still certain disparities in the labor market, and achieving gender equality in the labor market seems a long way to go. This widened gender pay gap over the years suggests that there is more need to be done. Therefore, Organizations and businesses should promote a transparent pay system and fair practices as it sends a positive message to all the employees that their work is valued and showcases good management practices which overall help them to attain their business objectives effectively by maximizing their workforce’s productivity.¹⁷ To genuinely address the issue of the gender pay gap, it is vital to address discrimination in promotion, training, or other aspects along with unequal pay for equal work. The gap between the advantaged and disadvantaged groups concerning the pay gap can only be abridged when discrimination in the workplace is adequately addressed.

Moreover, the interpretation of the term “equal work” in the right to equal pay for equal work shall not be confined to work of the same/similar nature rather it should be given wider interpretation to include “work of equal value.” The inspiration to define this term exhaustively can be taken from the Korean Equal Employment Act which provides that the criteria for work of equal value shall be the skills, efforts, responsibility, working conditions, etc. required to perform the work.¹⁸ A similar stance was taken in the UK Equality Act, of 2010.¹⁹ Thus, the legislature should elaborate on the elements of what constitutes equal work and frame a transparent gender-neutral job evaluation system. Though the major focus of the legislature is reducing the gender pay gap between men and women, other disadvantaged groups go often unnoticed. Moreover, other grounds of discrimination in the workplace such as – caste, marital status, etc need to be addressed to bring the gender pay parity. Overall, for the success of equal pay legislation, a comprehensive approach including legal framework and societal attitudes needs to be adopted.

This article is authored by Uniqua Singh, a Ph.D. Student from IIULER, Goa.