Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

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

The Committee notes the information contained in the Government's report as well as the comments from the Centre of Indian Trade Unions (CITU).

1. While the Government indicates that the Equal Remuneration Act of 1976 is being enforced with complete earnestness, the CITU maintains that the enforcement machinery is not functioning effectively and that neither the Convention nor the Equal Remuneration Act is being properly applied. Asserting that inequality of remuneration persists, the CITU points out that the Convention and the Act are applied to the industries in the public sector, but that they are not applied to all of the industries in the formal or informal sector, including the construction and beedi industries. The CITU also comments on the need to monitor the situation of the many women employed in the home-based industries, stating that neither the Convention nor the Act is being applied to women employed in export processing zones, particularly in the garment industry. Further, the CITU suggests that the Equal Remuneration Committee, to which it has submitted concerns in the past, is no longer operational. The Committee notes these indications. It has long emphasized the need to secure effective enforcement of the Convention and the Equal Remuneration Act of 1976, both at the central government level and throughout the states and union territories. In this respect, the Committee notes that, according to the figures contained in the Government's report, a large number of inspections have been carried out to detect violations of the Act. The report indicates that, in 1995, the states and union territories conducted 37,323 equal pay inspections and identified 5,543 violations. The central Government conducted 4,367 equal pay inspections in 1995, finding 4,359 violations. It carried out 4,468 inspections in 1996, detecting 4,373 equal pay violations. The Committee requests the Government to continue to provide detailed information, by sector, if possible, on the inspections carried out in enforcing India's equal pay legislation, and the manner in which violations of the Act are remedied. It also requests the Government to indicate the operational status and activities of the Equal Remuneration Committee.

2. For some years, the Committee has expressed its concerns regarding the narrow scope of section 4 of the Act, which requires employers to pay equal remuneration to men and women workers for the same work or work of a similar nature. The Committee has referred the Government to the language of the Convention, which calls for equal remuneration for men and women workers to be established "for work of equal value," thus going beyond a reference to the "same" or "similar" work, choosing instead the "value" of the work as the point of comparison. This basis of comparison is intended to reach discrimination which may arise out of the existence of occupational categories and jobs reserved for women and is aimed at eliminating inequality of remuneration in female-dominated sectors, where jobs traditionally considered as "feminine" may be undervalued due to sex stereotyping.

The Government indicates that the scope of section 4 of the Equal Remuneration Act has been sufficiently widened through judicial pronouncements, citing the Supreme Court's decision in Mackinnon Mackenzie & Co., Ltd. v. Audrey D'Costa and Another. The Committee notes, however, that the Mackinnon decision did not expand the scope of the Equal Remuneration Act to bring it into alignment with the Convention. While the MacKinnon decision makes reference to the Convention, the Supreme Court's decision was predicated solely on the language of the Act; the Supreme Court nonetheless held that a broad view should be taken in deciding whether the work is the same or broadly similar. The Court stated that the concept of similar work implies differences in details, but emphasized that these details should not defeat a claim for equality on trivial grounds. In this context, the Court proposed that job evaluations should be conducted and that the jobs performed by men and women should be compared, looking at the duties actually performed. In light of the Mackinnon decision, the Committee therefore again recommends that section 4 of the Equal Remuneration Act be modified to expand its scope, giving legislative expression to the principle of equal remuneration for men and women workers for work of equal value.

3. The Committee notes with interest the list of social welfare organizations recognized by the States of Andhra Pradesh, Maharashtra, Daman and Diu under section 12(2) of the Equal Remuneration (Amendment ) Act, 1987. The Government is asked to indicate what efforts are being made to encourage other state governments and union territories to authorize social welfare organizations to bring equal pay complaints under section 12(2). With respect to the organizations recognized by the central and state governments, please indicate the number of equal pay complaints brought by said organizations and the outcome of such complaints.

4. The Committee notes that the Government's report contains no data reflecting the average earnings of men and women workers in India. The Government is asked to provide the statistical information requested in the general observation on this Convention with its next report, in order to permit an evaluation of the progress made in the application of the Convention.

5. The Committee notes that the Government has indicated that it would like to receive an expert team from ILO headquarters in the near future with a view to continuing its dialogue with the Office and also to enrich its knowledge in connection with the Convention. The Committee is informed that the Office will respond positively to this request.