Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Equal Remuneration Convention, 1951 (No. 100) - India (Ratification: 1958)

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Observation

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Article 1(b) of the Convention. Equal remuneration for work of equal value. Legislation. In its General Survey of 2012, the Committee noted that legal provisions that do not give expression to the concept of “work of equal value” hinder progress in eradicating gender-based pay discrimination (General Survey on fundamental Conventions, 2012, paragraph 679). For a number of years, the Committee has been pointing out that the provisions of the Constitution of India (article 39(d)) and the Equal Remuneration Act (ERA) 1976 (sections 2(h) and 4) are more restrictive than the principle of equal remuneration for men and women for work of equal value, as set out in the Convention, as the scope of comparison is limited to “work of a similar nature” whereas it should be possible to compare work of an entirely different nature. The Committee had noted that, in spite of the existence of the ERA, significant earnings differentials between men and women persisted across all sectors, and had therefore urged the Government to bring its legislation into line with the Convention. The Committee notes from the latest statistics provided by the Government on the average daily earnings of women and men for the period 2009–10 that significant earnings differentials persist within states and across all industries.

The Committee notes, however, that the Government continues to take the view that amending the ERA is not necessary in the Indian context and that the legal provisions have to be read in conjunction with judicial interpretations. The Government refers in this respect to the Supreme Court Decision in Dharwad Distt PWD LWD Employees Association v. State of Karnataka (1990) and considers that this decision defined the ERA as legislation providing for “equality of pay for equal work between men and women”. The Committee notes nonetheless that this interpretation of the ERA does not give full expression to the principle of the Convention. It draws the Government’s attention to the essential role of the courts in interpreting equal remuneration provisions in accordance with the Convention, including recognizing the possibility in equal remuneration cases of comparing jobs of a different nature, involving different duties, skills and responsibilities with the view to determining if they are of equal value. The Committee draws the Government’s attention in this regard to its General Survey, including the examples of different jobs which were found to be of equal value (see General Survey of 2012, paragraphs 673–675). The Committee further notes that the Government reiterates that the Centre for Gender and Labour of the V.V. Giri National Labour Institute (VVGNLI) has been entrusted with undertaking research on the adequacy, effectiveness and implementation of the ERA, but no further information is provided with respect to the modalities and outcome of this research. Given the legal uncertainty and restrictive interpretations by the court of the equal remuneration provisions, the Committee urges the Government to take immediate and concrete measures to ensure that the legislation clearly establishes the right to equal remuneration for men and women for work of equal value. The Committee asks the Government to ensure that the research undertaken by VVGNLI to assess the impact of the ERA will cover situations in which men and women do entirely different work with different skills, effort and responsibilities, but which are nevertheless of equal value, and to provide detailed information on the results which the Committee hopes will be available in due course.

The Committee is raising other points in a request addressed directly to the Government.