This article is written by Dipshi Swara, Senior Associate and Legal Editor, LawSikho.

Introduction

Equal work connotes the work of equal value. In an organization, where there are employees at the same position, doing the similar nature of work irrespective of their sex, colour, caste, or creed are entitled to the same remuneration. The principle has arisen from the basic concept of equality. At the same time, the preamble of the Indian Constitution secures equality of status and opportunity. The state has the duty “to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of national life”.

Although the principle is recognised as one of all the fundamentals for securing social justice, it is unfortunate how wage gaps still remain in our societies. The article will be based on how the socio-legal principle of wage equality has been developed in modern times especially with the help of legal precedents and enactments. It also focuses on the importance of the principle globally, and how it is important to not only incorporate it in our domestic legal systems (which India has) but also its proper implementation. Special emphasis has been laid on the existence of the gender pay gap in our society and how it can be checked.

Equal pay for equal work : a socio-legal imperative

Equal pay for equal work shoots out as one of the branches from the term ‘Equality’ wherein it is acknowledged that there must be equality in wage/ pay scale for similar position and nature of work in any organization irrespective of gender, colour, caste, creed or religion. This creates a balance and harmony in the society thereby providing justice to all. In spite of this provision, there have been several issues of discrimination at the workplace.

1. It is prevalent even today on the grounds of gender.
2. The issue of wage difference for equal work begins right from the recruitment stage and exists even at top organizational levels.
3. The inequality of wages for similar nature of work between men and women is more of a social issue than an organizational issue.

Equality with respect to work and income is one of the most important things that humans have desired for a decent standard of living. While every employee has a right to work and earn a wage, there comes a difficulty when there are unacceptable wage standards in a society. The most pertinent problem that arises is the payment of unequal wages for the same work in a particular industry. India has a long history of disparity in wage scales on the basis of gender, castes, and even class they belong to. The people in disadvantageous positions were made to believe that they deserve the wage being paid to them by virtue of belonging to a particular class, caste, or gender. And that was even if they did the same nature of work as their counter employees who were getting higher wages. This socio-economic standard was against the concept of justice and needed to be changed. The Supreme Court of India recognized this principle and established it through several of its judgments. The court has also established that a state which is committed to a socialist pattern of society cannot be permitted to take any action that discriminates against employees on the basis of irrational classification.

^{Special reference to the India wage report}

The India Wage Report published by the International Labour Organization in 2018 gives a picture of the wage policy in India. The report aims to achieve two important objectives through the use of wage policies: Decent work, and inclusive growth. The report highlights how “the Preamble to the ILO Constitution calls for the provision of an adequate living wage and the ILO Declaration on Social Justice for a Fair Globalization adopted by the International Labour Conference at its 97th Session in June 2008 calls for wage policies which ensure a just share of the fruits of progress to all, and a minimum living wage to all in need of such protection”. In 2016, India attended and became a member of the G20 which called for sustainable wage policies. The summit mainly focused on minimum wages and collective bargaining. Both these principles provide a healthy and sustainable workplace environment which is very much required for work productivity, security, and growth as well as professional progress.

Social and economic issues

It is important to understand that this wage disparity is not only against the concept of equality and individuality but also has social and economic repercussions. Pachanan Das (author of  Econometrics in Theory and Practice: Analysis of Cross Section) in his study of wage inequality determined that the privileged class who are more recognised socially usually are at higher ends of wages in professional services. Other than that, factors such as education, training, and experience also affect wage inequality. In India, there exists an evident wage inequality between the public sector and the private sector in spite of the similar nature of work. Another highly prevalent wage inequality is between men and women although working in the same work profile. Pachanan Das also found in his study that wage inequality with women exists more in public sector jobs than in the private sector. The increase in wage inequality interferes with the social and economic standards of a society. When discrimination rises, the important doctrines enshrined in the Preamble of the Constitution suffer, it becomes important for the Judiciary to intervene. Therefore, there have been several cases of wage disparity that have been decided by the Supreme Court of India in the context of achieving fundamental rights and equality in society. The Supreme Court recognised the right to equal pay for equal work to be a constitutional goal under Articles 14, 16, and 39 (d) of the Constitution of India. Article 39(d) of the Constitution of India for instance seeks to achieve social justice through the principle of equal pay for equal work. Social justice and equality go hand in hand and therefore it can be said that this principle has evolved as a socio-legal imperative.

International prevalence of the doctrine

The article examines how various international conventions and treaties have recognized this equality and the right to work without any discrimination.

Equal pay for equal work promoted by International Human Rights

The term equality has been in use since the the15^th century. When Aristotle talked about equality, he focused on formal equality. This meant only equals to be treated equally. Aristotle’s definition excluded general equality thereby keeping a lot of groups including women outside the purview of standing equal with the society. Prof. A.V. Dicey introduced the term ‘rule of law’ and provided that everyone must stand equal in front of law irrespective of his status or position. The principle of equal pay for equal work fits best in this understanding. For a similar nature of work under an egalitarian society, should be similar wage and incentives irrespective of the birth, gender, colour, caste, creed of the employees.

The United Nations Charter which happened to be the first international treaty mentioned “the dignity and worth of human person” as well as “the equal rights of men and women” in its preamble. It ensures to eliminate all forms of discrimination “to promote social progress and better standards of life”. Right to work and equality of all sorts in workplaces is one of the essences towards maintaining a decent standard of life and progressing ahead in life. “Article 2 of the Universal Declaration of Human Rights (UDHR) states that every human being is entitled to all rights and freedoms without distinction of any kind, such as race, colour, sex, language, religion, political or opinion, national or social origin, property, birth or status. Article 23 of UDHR stipulates that everyone without discrimination has the right to equal pay for equal work. Article 2,3 and 26 of the International Covenant on Civil and Political Rights (ICCPR) and Article 6 to 8 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) require the respective States parties to guarantee the enjoyment of all rights without discrimination of any kind. Article 7 of the ICESCR not only guarantees equal remuneration for work of equal value but also goes on to be more restrictive by stipulating that the work conditions for women and men should be alike. Women should not be made to work in inferior work conditions. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, Articles 11e and 14), the International Convention on All Forms of Racial Discrimination (CERD, Article 5) and the Convention on the Rights of Persons with Disabilities (CRPD, Article 28) likewise enshrine a prohibition of discrimination in the enjoyment of the rights set out in each Convention, including the right to social security.”

The International Labour Organization (ILO) has come up with many conventions that talk about granting equality and diminishing discrimination at workplaces. ILO understands gender equality as a matter of human rights, social justice, and sustainable development. ILO affirms that the right to equal remuneration for women and men for work of equal value is incumbent and has been acknowledged by the ILO since its foundation in 1919. The opening lines of the ILO Constitution recognise the principle of equal pay for equal work as a key element of social justice. The ILO Declaration of Philadelphia of 1944, part of the ILO Constitution, talks about equal opportunity and economic security to be provided to all.

Recognition in domestic legal systems

The principle has been recognized and included stringently in the domestic systems of many countries. Many of the ILO conventions have been ratified by India. The I.L.O. convention No. 111 regarding discrimination in employment and occupation, 1958 has been ratified. The Equal Remuneration Convention, 1951 was adopted by ILO in its 100^th Convention and it got ratified by 173 countries. The same has also been incorporated in the constitution of India under the directive principle of state policy, Article 39(a) which states that the citizens, men, and women, equally, have the right to an adequate means of livelihood. This also finds mention under Article 16(2) emphasising the right to equality as it says that “no citizen shall on grounds only of sex be ineligible for, or discriminated against in respect of any employment or office under the state.” The Equal Remuneration Act, 1976 has been enacted in pursuance of Article 39(d) of the Constitution of India.

The Constitution of Brazil prohibits any difference in wage, in performance of duties, and in hiring criteria on the ground of sex, age, colour, or marital status. Brazil has employment laws under which a person is deemed to be an employee unless he is proven to be an independent contractor. It also states that contingent workers must receive equivalent salaries as the employees of the organization working in the same category.

The U.K. has specific provisions for determining equal pay claims between men and women. Any sort of discrimination in pay arrangements on grounds of race, disability, and sexual orientation is unlawful. The U.K. also passed the Equality Act, 2010 that gives a right of equal pay between men and women for equal work. This includes basic pay, any bonus, allowances, sick leaves, and any other benefits.

The discussion of these international conventions and the recognition of equal pay for equal work in the domestic legal systems of many countries have been done to relate the development of the principle in the era of globalisation. Although the doctrine is internationally accepted, the dispute arises while assessing the meaning of ‘equal value.’ The concept of value is not defined in the ICESCR. But it says that objective criteria must be followed to assess the value. It means that while determining the ‘value of work’, evaluation factors should include skills, responsibilities, and effort required by the worker as well as the working conditions. In a practical scenario, the prevalent rates of remuneration for the nature of work in question must be seen across organisations and companies.

Indian context

The rule of equality under Article 14 of the Indian Constitution in the first instance prohibits any special treatment or privilege and ensures that equal people are treated alike in equal circumstances. However, equal protection of laws creates a positive duty on the state in order to ensure necessary social and economic changes in the society so that no one can be denied equal protection of laws. Sometimes, for meeting the best interests of all the sections of the society different laws are enacted or applied in order to meet the specific objective. So, although the principle of equal pay for equal work has stemmed out of the equality clause of Articles 14 and 16, if reasonable classification is done, the nexus test must be followed before reaching the decision whether the principle has been infringed or not. The classification however must not be arbitrary or artificial or even evasive. In the case of Triloki Nath, a distinction was made between the degree holders and the diploma holders for promotion and increment. Diploma holders had to fulfil an additional requirement of seven years’ work experience in order to fit in the above-mentioned criteria. This classification was held to be just and reasonable as it was done on the basis of educational qualification. “This doctrine comes in an application for those who are equally placed in all respects.” The Supreme Court has identified several grounds which were held proper for creating wage differences.

1. Educational qualification was held to be a valid ground for wage difference.
2. Even for similar posts, if there is a difference in nature of work done and extension of reliability and responsibility of one more than the other person.
3. A rational basis to give a higher wage to a junior is also identified under the test of reasonable classification.
4. If duties and responsibilities are not the same, even though functions are similar.

“In order to examine whether the work in question is of similar nature to a particular work or not, there are three considerations:

• The Authority would need to take a broad view;
• And examine the differences on the basis of practical importance since the concept of similar work implies differences in detail and equality cannot be undermined on any inconsequential grounds.
• It is important to look at the duties which are actually performed rather than just the theoretical ones which are on paper.”

Gender pay gap

It would be appropriate to begin this topic with a precise quote from C.W. Jenks, “It has been said that equality of any civilization may be judged by the Statute which it accords to women. Equality between the sexes, like racial equality, has become one of the seminal principles of contemporary social thought. In such a situation it is not unnatural that the claim for equal remuneration for men and women workers for the work of equal value should have become almost a symbol of the general equality between the sexes.”

Equal wages and status of women

For years, women have been victims of gender discrimination and patriarchy. In recent years of globalization though, women belonging to different classes of society have tried to break all the barriers to get into the professional world. However, we are not alien to the fact that in spite of being talented and worthy, a lot many women have suffered in workplaces, be it sexual harassment, discrimination in promotions, or being paid lower than their male counterparts for similar nature of work. In the absence of any legislative or social welfare enactments, the factories used to appoint a large number of women and they were made to work in inhuman conditions. There were no promotional or job securities available for them. Even with the coming of modern ages, while women were employed with a better status, there have always been certain stigmas that the companies have attached with them:

1. A preconceived notion that their productivity and knowledge would be less than their men counterparts.
2. A presumption that married women cannot perform their tasks well and therefore preferring unmarried women as employees.
3. Avoiding the appointment of female employees on the ground that they would have to be given maternity leaves or in a more recent era, menstruation leaves.

“According to the Monster Salary Index (MSI) on gender for 2016, women in India earn 25% less than men.” Companies create farce grounds of “labour forces being higher in case of men, industry slotting of men and women into different roles and more women taking life stage-related breaks (marriage and maternity)” in order to continue such discrimination. The issue of gender discrimination has given rise to the gender pay gap and the same has been addressed by the apex court of India in several cases. Any rule/ regulation that discriminated on the ground of gender has been struck off by the court.  The Supreme Court of India held a provision in the service rules guided towards female employees that they needed to seek the permission of the Government before they enter into the marriage of alliance as discriminatory and unconstitutional. In the famous Air hostess case, where the rules of retirement consisted of marriage within four years of service and first pregnancy as the grounds for retirement, the provision was held to be arbitrary and violative of Articles 14 and 16 of the Indian Constitution. 

This gender pay gap does not only exist in India but exists even in developed countries. In 2018, the World Economic Forum gave its report saying that the gender pay gap will take 202 years to close. Women globally are paid 63% of what men get. Yemen, Syria, and Iraq showed the biggest pay gaps while the UK ranked 50^th out of 149 countries on the gender pay gap.

There are several environmental and socio-economic factors that have also contributed to wage inequalities between men and women. Low female birth ratio, low investment in girls’ education, restricted mobility, choosing careers that involve less interaction with male employees, control over career choices by families, more involvement in domestic chores are a few of them. A 2019 study shows that India’s female labour force participation is 27 % while that of men is 96%. The study also cited some major factors for this low rate:

1. Patriarchy, still prevalent in the society that interferes with the choices of women, their mobility and freedom to work,
2. Discrimination and harassment at workplaces with women.
3. Lack of quality jobs as per the skills of women

Therefore, it is important to understand that while legislation has been brought and we are thriving to achieve equal pay for equal work irrespective of gender, wage justice is still not achieved. It will be achieved only when the social, economic, and environmental standards along with the personal choices of women develop and broaden.

Equal Remuneration Convention, 1951 : a gender explicit instrument

The Convention seeks to address the issue of discrimination in remuneration between men and women. Article 1 (b) of the Convention states: “the term equal remuneration for men and women workers for work of equal value refers to rates of remuneration established without discrimination based on sex.” It puts an obligation on the states to adopt legislation that would prevent such discrimination. States must make laws keeping the following provisions as backbone:

1. There is a duty on the states to prevent discrimination in remuneration on basis of gender in the public sector.
2. The state must promote the same in private sectors and any unreasonable discrimination by organisations or corporations must be penalised.
3. Collective Bargaining agreements should be promoted between employers and employees and any clause that goes against the principle of equal pay for equal work should be declared null and void (just like in European Union Laws). Collective Bargaining helps to achieve equality in working societies. The gender pay gap, therefore, reduces substantially.
4. Remuneration or Wages must be defined accurately. The inclusion of other emoluments, allowances, and benefits (cash or kind) along with salary must be defined. Article 1(a) of the Convention, states remuneration as “the ordinary, basic or minimum wage or salary” but also “any additional emoluments whatsoever payable directly or indirectly, whether in cash or in kind, by the employer to the worker and arising out of the worker’s employment”.
5. The extension of the right to equal pay for equal work is given to both similar works as well as work of equal value under the Convention. The concept of value is not defined under the convention. States can keep knowledge, skills, volume, responsibilities in mind while determining the ‘value’ of work. Providing equal opportunities, fixing a similar set of skills for similar work for both men and women, providing similar working conditions to both genders should be some of the core requirements in order to achieve equal pay for equal work.
6. The rules must be applied to all workers irrespective of them being men or women, in the public or private sector and an effective remedy must be provided in case of any inequality.

Conclusion and suggestions

It is evident that the principle of ‘equal pay for equal work’ has been legally recognised 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 author has studied 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 globalised world. It is important to maintain the mandate of equality and humanity as per international human rights and other recognised instruments. In the Indian context, it has been seen as a constitutional goal, read with fundamental rights, and mentioned as directive principles of state policymaking it a legal imperative. The exceptions in the category of equal pay for equal work done on the basis of reasonable classification based on intelligible differentia have also been studied. The study also shows that the majority of states have adopted strict laws in order to achieve equal pay for equal work. They however need to be implemented stringently.

 A few suggestions to achieve ‘equal pay for equal work’ are discussed as follows:

1. There has been an effective legal acknowledgement of the principle of equal pay for equal work in India and across the globe. It is now important to bring awareness and bring transformations at the social level so that any sort of inequality between men and women can be curbed right from the initial levels.
2. There is a need to have transformative equal pay policies and collective bargaining agreements.
3. The principle of equal pay for equal work has devised a way for the concept of ‘Wage Justice.’ It can be done by raising the value of the oppressed class and getting rid of any wage hierarchy that is based on factors that include gender.
4. The laws mention that inequality in wages cannot be done on the basis of gender, caste, creed, religion, and others. It is important to identify, write in verbatim and highlight marital status and pregnancy as well when talking about workplaces. The Constitution of Brazil mentions ‘marital status’ as a ground that cannot be used for prohibition at workplaces. There are still a lot of places that if not directly, in other tactful ways cut out women employees who are about to get married or pregnant. These are inhuman grounds and must be made illegal at all costs.

References

^[1] INDIA CONST. art. 38 cl. 1.

^[2] DR. J.N. PANDEY, CONSTITUTIONAL LAW OF INDIA 457 (Central Law Agency, 2017)

^[3] India Wage Report, INTERNATIONAL LABOUR ORGANIZATION (Aug 24, 2019, 7:30 PM), https://www.ilo.org/wcmsp5/groups/public/—asia/—ro-bangkok/—sro-new_delhi/documents/publication/wcms_638305.pdf

^[4] India Wage Report, INTERNATIONAL LABOUR ORGANIZATION (Aug 24, 2019, 7:30 PM), https://www.ilo.org/wcmsp5/groups/public/—asia/—ro-bangkok/—sro-new_delhi/documents/publication/wcms_638305.pdf

^[5] 5 Reasons We Need to Worry about Inequality Now, ECONOMIC&POLITICALWEEKLY ENGAGE (Aug. 24, 2019, 8:00 PM), https://www.epw.in/engage/article/5-reasons-we-need-worry-about-inequality

^[6] 5 Reasons We Need to Worry about Inequality Now, ECONOMIC&POLITICALWEEKLY (Aug. 24, 2019, 8:00 PM), https://www.epw.in/engage/article/5-reasons-we-need-worry-about-inequality

^[7] Randhir Singh v. Union of India, (1982) S.C. 879

^[8] Equality and Non-discrimination, SOCIAL PROTECTION-HUMAN RIGHTS (Aug. 26, 2019, 8:50 PM), https://socialprotection-humanrights.org/framework/principles/equality-and-non-discrimination/

^[9] Preamble, ILO Constitution, INTERNATIONAL LABOUR ORGANIZATION (Feb. 16, 2020, 10:45 AM), https://www.ilo.org/dyn/normlex/en/f?p=1000:62:0::NO:62:P62_LIST_ENTRIE_ID:2453907:NO.

^[10] Article II, ILO Declaration of Philadelphia (Feb.16, 2020, 10:48 AM), https://www.ilo.org/legacy/english/inwork/cb-policy-guide/declarationofPhiladelphia1944.pdf

^[11] INDIA CONST. art. 39A cl. 1.

^[12] INDIA CONST. art. 16 cl. 2.

^[13] Sandra Fredman, The Right to Equal Pay for Work of Equal Value, OHCHR (Aug. 26, 11:15 PM), https://webcache.googleusercontent.com/search?q=cache:BccTKb1CNq4J:https://www.ohchr.org/Documents/Issues/Women/WG/ESL/BackgroundPaper2.doc+&cd=16&hl=en&ct=clnk&gl=in

^[14] Equal pay for equal work: what the law says, EQUALITY HUMAN RIGHTS (Aug. 26, 2019, 10:30 PM), https://www.equalityhumanrights.com/en/advice-and-guidance/equal-pay-equal-work-what-law-says

^[15] CEDAW General Recommendation No. 25 Temporary measures 2016 (Feb. 20, 11:35 AM), https://www.un.org/womenwatch/daw/cedaw/recommendations/General%20recommendation%2025%20(English).pdf

^[16] State of J & K vs. Triloki Nath, (1974) I, S.C.J. 366.

^[17] Uttar Pradesh Sugar Corp. Ltd. v. Sant Raj Singh, (2006) S.C. 2296

^[18] Mewa Ram Kanojia vs. A.I.L.M.S, (1989) 2 S.C.C. 235.

^[19] State of U.P. vs. J.P. Chaurasia, (1989) S.C. 19.

^[20] State of A.P. vs. V.G. Sreenivasa Rao, (1989) 2 SCC 290.

^[21] State of Orissa v. Balaram Sahu, (2003) S.C. 33.

^[22] P.M. BAKSHI, THE CONSTITUTION OF INDIA 103 (Universal Law Publishing Co. Pvt. Ltd. 2013)

^[23] Sonal Nerukar, Building a Case for Equal Pay, LIVEMINT(Aug. 10, 2019, 10:30 PM), https://www.livemint.com/Leisure/6rtyVZVaAhpOYUNzmaLLfN/Building-a-case-for-equal-pay.html

^[24] C.B. Muthamma vs. Union of India, (1979) S.C. 1868.

^[25] Air India vs. Nargesh Mirza, (1981) S.C. 1829.

^[26] Rupert Neate, Global pay gap will take 202 years to close, says World Economic Forum, THE GUARDIAN (Feb. 20, 2020, 5:50 PM), https://www.theguardian.com/world/2018/dec/18/global-gender-pay-gap-will-take-202-years-to-close-says-world-economic-forum

^[27] Terri Chapman & Vidisha Mishra, Rewriting the rules: Women and work in India, OBSERVER RESEARCH FOUNDATION (Aug. 26, 2019, 9:10 PM), https://www.orfonline.org/research/rewriting-the-rules-women-and-work-in-india-47584/

^[28] Terri Chapman & Vidisha Mishra, Rewriting the rules: Women and work in India, OBSERVER RESEARCH FOUNDATION (Aug. 26, 2019, 9:10 PM), https://www.orfonline.org/research/rewriting-the-rules-women-and-work-in-india-47584/

^[29] Article 1, Equal Remuneration Convention, 1951 (Feb. 16, 2019, 1:20 PM), https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C100

^[30] Article 2, Equal Remuneration Convention, 1951 (Feb. 16, 2019, 1:20 PM), https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C100

^[31] Article 1(a), Equal Remuneration Convention, 1951 (Feb. 16, 2019, 1:20 PM), https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C100

^[32] Equal Pay-Wage Justice, PSI (Aug 27. 1:30 PM), http://www.world-psi.org/en/IWD2018.

^[33] Equal Pay-Wage Justice, PSI (Aug 27. 1:30 PM), http://www.world-psi.org/en/IWD2018.

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