Punjab University,Chandigarh

UNIVERSITY OF LEGAL STUDIES

SERVICE LAW PROJECT

Equal Pay for Equal Work

SUBMITTED TO: Ms. Mahima

SUBMITTED BY: Siddharth Singh (355/19) BCom .LL.B. SECTION F
TABLE OF CONTENTS

ACKNOWLEDGEMENT .........................................................................................................2

INTRODUCTION ..................................................................................................................... 3

MEANING OF ‘EQUAL PAY FOR EQUAL WORK’ ........................................................... 3

OBJECTIVE OF THE PRINCIPLE ..........................................................................................4

INTERNATIONAL ASPECT OF THE PRINCIPLE ...............................................................5

CONSTITUTIONAL ASPECT OF THE PRINCIPLE .............................................................5

Relevant Case Laws ...............................................................................................................6

LEGISLATIVE ASPECTS OF THE PRINCIPLE ................................................................... 8

EXCEPTIONS TO THE PRINCIPLE .......................................................................................9

BURDEN OF PROOF- JUDICIAL REVIEW ........................................................................ 10

REMEDIES FOR REDUCING GENDER PAY INEQUALITIES ........................................ 11

Effective Actions ................................................................................................................. 11

Promising Actions ............................................................................................................... 12

REFERENCES ........................................................................................................................ 13
ACKNOWLEDGEMENT

The success and outcome of this project required a lot of guidance, assistance, and supervision
and I am extremely privileged to have got all this along the completion of my project. All I
have done is due to such direction and assistance.

I respect and thank Ms. Mahima for giving me all guidance and motivation which made me
complete it duly. I am thankful to her for providing the necessary information and supportand
guidance till the completion of my presentation.
INTRODUCTION

Our society, like any other, had not been a utopian one when centuries ago, it came into
existence. It has been a home to various evils, malpractices, and injustices right since its
inception. The issues like those of inequality, discrimination, etc. were not quite seen as being
problematic. But as a natural course of action, the societies evolve with the passage of time
under a given set of circumstances. While passage of time is a natural event and is inevitable,
the existence of a particular set of circumstances under which a society can evolve is not quite
so, thus requiring an external facilitation. The Constitution of India takes on itself this task and
thence, provides various rights and guiding principles to facilitate the rooting away of these
scourges prevalent in Indian society.

Part IV of the Indian Constitution lays down various principles which are fundamental to the
governance of our society and act as guiding points for the governments to base their laws and
policies on. One such principle is that of Equal Pay for Equal Work as enshrined in Article
39(d) of the Constitution. As the name itself suggests, its purpose is to ensure that individuals
who are doing an equal amount of work shall be entitled to equal remuneration. But this right
being only a Directive Principle was not enforceable in the court of law. They are crucial to the
governance of the country and the State is duty bound to consider them while enacting laws
Thus, it was only through interpretation of Articles 14,15 and 16 of the constitution through
various judgements of the court that equal pay for equal work became a fundamental right.

MEANING OF ‘EQUAL PAY FOR EQUAL WORK’

In Mackinnon Mackenzie & Co. Ltd. v. Audrey D' Costa & Another,1 the Supreme Court
observed that the term "same work" or "work of similar nature as another work" can be
determined on the three considerations. In deciding whether the work is same or broadly
similar, the authority should take a broad view; next in ascertaining whether any differences
are of practical importance, the authority should take an equally broad approach for the very
concept of similar work implies differences in detail, but these should not defeat a claim for
equality on trivial grounds. It should look at the duties performed, not those theoretically
possible. Equal pay for equal work means work that is substantially the same, requiring the

1 (1987) 2 SCC 469

same skill, effort and responsibility and performed under similar working conditions in the
same establishment. Substantially the same work means that the work is similar enough that it
could reasonably be considered to fall within the same job classification e.g. 'A' and 'B' both
work on a production line. 'A' packs plastic spoons into small boxes and 'B' packs the small
boxes into bigger boxes. There is not anything about either of these jobs that requires more
skill, effort, or responsibility. 'A' and 'B' are doing substantially the same work, and they must
be paid the same wages.

Skill refers to the degree or amount of knowledge, physical, or motor capability needed by the
employee performing the job. Effort is the physical or mental exertion needed to perform a job.
Responsibility is measured by the number and nature of an employee's job obligations, the
degree of accountability, and the degree of authority exercised by an employee in the
performance of the job and Similar Working Conditions Working conditions refer to such
things as exposure to the elements, health and safety hazards, workplace environment, hours
of work, etc.

OBJECTIVE OF THE PRINCIPLE

The object behind the principle “Equal pay for equal work” is to bring about socio-economic
equality so as to secure the ultimate ideal of Economic Democracy. Explaining the contents
of the principle in Randhir Singh v. Union of India,2 the Supreme Court observed:

“To the vast majority of the people the equality clauses of the Constitution would mean nothing
if they are unconcerned with the work they do and the pay they get. To them the equality clauses
will have some substance if equal work means equal pay. Questions concerning wages and the
like, mundane they may be, are yet matters of vital concern to them and it is there, if at all that
the equality clauses of the Constitution have any significance to them. The Preamble of the
Constitution declares the solemn resolution of the people of India to constitute India into a
Sovereign, Socialist, Secular, Democratic, Republic. Again, the word ‘Socialist’ must mean
something. Even if it does not mean ‘to each according to his need,’ it must at least mean
‘equal pay for equal work.’

The concept of equal pay for equal work is one of the steps taken to wipe out any scope of
unreasonable discrimination which may occur or maybe followed in any form of society when
it comes to payment of remuneration. The concept of equality of pay was incorporated under

2
AIR 1982 SC 879.
the Directive Principles of State Policy by the framers of the Constitution so as to follow the
principles of Equality and make India a welfare State.

INTERNATIONAL ASPECT OF THE PRINCIPLE

This doctrine has also been recognized internationally. Article 23(2) of the Universal
Declaration of Human Rights declares everyone without any discrimination has the right to
equal pay for equal work. Article 2 of the Convention Concerning Equal Remuneration for
Men and Women Workers for Work of Equal Value, 1951 provides that each Member shall,
by means appropriate to the methods in operation for determining rates of remuneration,
promote and, in so far as is consistent with such methods, ensure the application to all workers
of the principle of equal remuneration for men and women workers for work of equal value.
Article 7(a)(1) of the International Covenant on Economics, Social and Cultural Rights
(ICESCR), 1976 recognizes the right to fair wages and equal remuneration of work of equal
value without distinction of any kind, in particular women being guaranteed conditions of work
not inferior to those enjoyed by men, with equal pay for equal value of work. Article 11(1) (d)
of the Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW) provides for the right to equal remuneration, including benefits, and to equal
treatment in respect of work of equal value, as well as equality of treatment in the evaluation
of the quality of work.

The doctrine of equal pay for equal work is equally applicable to persons employed on daily
wage basis. They are entitled to the same wages as other permanent employees in the
department employed to do the identical work.

CONSTITUTIONAL ASPECT OF THE PRINCIPLE

“Equal pay for equal work” as a phrase is not expressly mentioned in the chapter on
Fundamental rights of Indian Constitution yet there can be no second thought on the point
whether it is fundamental right or not. There are a number of provisions in the Constitution of
India that ensure that there is equal pay for equal work in India. Following are the Articles
substantiating the point:

Article 14: Men & women to have equal rights & opportunities in the political, economic &
social spheres.
Article 15(1): Prohibits discrimination against any citizen on the grounds of religion, race,
caste, sex etc.

Article 15(3): Special provision enabling the State to make affirmative discriminations in
favour of women.

Article 16: Equality of opportunities in matter of public appointments for all citizens.

The right of equal pay for equal work was earlier available only through Directive Principles
of State Policy under Article 39 of the constitution. While these Directive Principles are not
enforceable by any court of law, they are crucial to the governance of the country and the State
is duty bound to consider them while enacting laws. However, now without a doubt it is a
fundamental right under Right to Equality under Articles 14,15 and 16 as mentioned above.
The right to equal pay for equal work has taken the shape of a fundamental right through
various court judgements.

Relevant Case Laws

The principle of Equal Pay for Equal Work was first considered in Kishori Mohanlal Bakshi
v. Union of India3 in the year 1962 where the Supreme Court declared it incapable of being
enforced in the court of law.

However, it received due recognition only in 1987 through Mackinnon Mackenzie and Co.
Ltd. vs. Audrey D'Costa and Others.4 Here the issue of concern was a claim for equal
remuneration for women stenographers and men stenographers. This was ruled in favour of
lady stenographers as the Court was in favour of equal pay.

3 AIR 1962 SC 1179

4
Supra Note 1
LEGISLATIVE ASPECTS OF THE PRINCIPLE

A major government step or legislation towards ‘equal pay for equal work’ has been the
enactment of Equal Remuneration Act, 1976. Under the Constitution of India, an ordinance
was promulgated on 26th September 1975 which is known as the Equal Remuneration
Ordinance, 1975. It was converted into an Act in 1976, the Equal remuneration Act. Before
this Act, struggles for equal rights and wages were faced by women. This Act provides
provisions against discrimination in the recruitment and promotion of men and women.

This Act was passed with the aim of providing equal remuneration to men and women workers
and to prevent discrimination based on 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. The Equal
Remuneration Act aims to provide for the payment of equal remuneration to men and women
workers and for the prevention of discrimination, on the ground of sex, against women in the
matter of employment and for matters connected therewith or incidental thereto. According to
the Act, the term 'remuneration' means "the basic wage or salary and any additional
emoluments whatsoever payable, either in cash or in kind, to a person employed in respect
of employment or work done in such employment, if the terms of the contract of employment,
express or implied, were fulfilled".

The main provisions of the Act are as follows: -

 No employer shall pay to any worker, employed by him/ her in an establishment, a

remuneration (whether payable in cash or in kind) at rates less favourable than those at
which remuneration is paid by him/ her to the workers of the opposite sex in such
establishment for performing the same work or work of a similar nature. Also, no
employer shall, for the purpose of complying with the provisions of this Act, reduce the
rate of remuneration of any worker.
 No employer shall, while making recruitment for the same work or work of a similar
nature, or in any condition of service subsequent to recruitment such as promotions,
training or transfer, make any discrimination against women except where the
employment of women in such work is prohibited or restricted by or under any law for
the time being in force.
  Every employer shall maintain such registers and other documents in relation to the
workers employed by him/ her in the prescribed manner.
 If any employer:- (i) makes any recruitment in contravention of the provisions of this
Act; or (ii) makes any payment of remuneration at unequal rates to men and women
workers for the same work or work of a similar nature; or (iii) makes any discrimination
between men and women workers in contravention of the provisions of this Act; or (iv)
omits or fails to carry out any direction made by the appropriate Government, then he/
she shall be punishable with fine or with imprisonment or with both.
 Where an offence under this Act has been committed by a company, every person who
at the time the offence was committed, was in charge of, and was responsible to the
company for the conduct of the business of the company, as well as the company, shall
be deemed, to be guilty of the offence and shall be liable to be proceeded against and
punished accordingly.

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.
 EXCEPTIONS TO THE PRINCIPLE

Equal pay for equal work is a fundamental right now. However, it is not an absolute right. It
has some exceptions. These exceptions are not expressly listed anywhere and they too have
developed through a series of cases. According to some these are not actually exceptions but
just instances where the principle of equal pay for equal work does not apply.

The Apex Court in Randhir Singh v. Union of India, 10

held that before entertaining and
accepting the claim based on the principle of equal pay for equal work, the Court must
consider the factors- “like the source and mode of recruitment/appointment, the qualifications;
the nature of work; the value-judgment; responsibilities; reliability; experience;
confidentiality; functional need, etc.”

The principle of "equal pay for equal work" is not applicable where the employees are
discharging different kinds of duties and there being no comparison between the two.

10
Supra Note 2.
BURDEN OF PROOF- JUDICIAL REVIEW

It has been held that discrimination within the meaning of Article 14 is the condition precedent
for the application of the doctrine of "equal pay for equal work". It is further required that the
burden of proving such discrimination lies on the claimant. Unless the claimant places
sufficient material before it, to reach the conclusion to take definite decision, the Court cannot
decide the issue of entitlement of "equal pay for equal work". The claimants would have to
establish that they were rendering the same duties being performed by those getting
higher pay.15
REMEDIES FOR REDUCING GENDER PAY INEQUALITIES

Effective Actions
 Include multiple women in shortlists for recruitment and promotions: While
preparing a shortlist of qualified candidates, it is required to have more than one
woman. Shortlisting with only one woman will not increase the chance of a woman
being selected.
 Use skill-based assessment tasks in recruitment: Rather than relying only on
interviews, candidates should be asked to perform tasks in the role they are applying
for. Candidates should use their performance on those tasks to assess which are suitable
for their role. Standardize the tasks and how they are scored to ensure fairness across
candidates.
 Use Structured interviews for recruitment and promotion: Interviews that are
structured and unstructured have both strengths and weaknesses. There are unstructured
interviews that are more likely to allow unfair bias to creep in and influence decisions.
Use structured interviews are:
1) The same questions to all candidates in a predetermined format and order.
2) Responses are graded using pre-specified, standardized criteria because this makes
the responses comparable and reduces the impact of unconscious bias.
 Encourage salary negotiations by showing salary ranges: Women are less likely to
negotiate their pay. This is partly because women are discouraged, they are not sure
about what is a reasonable offer. The salary range should be clearly communicated on
offer for a role to encourage women to negotiate their salary. This helps the applicant
know what they can reasonably expect. In addition, if the salary for a role is negotiable,
employers should state this clearly as this can also encourage women to negotiate. If
women negotiate their salaries more, they will end up with salaries that more closely
match the salaries of men.
 Introduce transparency to promotion, pay and reward processed: Transparency
means being open about processes, policies, and criteria for decision-making. This

15
State of Punjab v. Surjit Singh, (2009) 9 SCC 514
 means employees are clear about what is involved, and that managers understand that
their decisions need to be objective and evidence-based because those decisions can be
reviewed by others. Introducing transparency to promotion, pay, and reward processes
can reduce pay inequalities.
 Appoint diversity managers and/or diversity task forces: Diversity managers and
task forces monitor talent management processes (such as recruitment or promotions)
and diversity within the organization. They can reduce biased decisions in recruitment
and promotion because people who make decisions know that their decision may be
reviewed. This accountability can improve the representation of women in your
organization.

Promising Actions
 Improve workplace flexibility for men and women: To advertise and offer jobs
having flexible working hours/options, such as part-time work, remote working, job
sharing, or compressed hours. People should be allowed to work flexibly whenever
possible.
 Encourage the uptake of Shared Parental Leave: The gender pay gap has
dramatically widened after women have their children, this can be reduced if both men
and women are equally able to share childcare. Pay and Shared Parental Leave enable
working parents to share up to 50 weeks of leave and up to 27 weeks of pay in their
child’s first year. Shared Parental offers to enhance Pay at the same level as enhanced
maternity pay. To encourage both men and women to take up Shared Parental Leave.
REFERENCES

1) Megha Sahni, Equal Pay for Equal Work in India, IJLMH, 2018, Volume 2 Issue 1.
2) https://blog.ipleaders.in/equal-pay-for-equal-work-in-india-and-the-globalising-
world/ accessed on April 04, 2023 at 12:47 AM.
3) Narendra Kumar, Service Law, Faridabad: Allahabad Law Agency, 2018, 4th edn.