Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

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

Follow-up to the conclusions of the Conference Committee on the Application of Standards (International Labour Conference, 99th Session, June 2010). The Committee notes the discussion that took place in the Conference Committee on the Application of Standards in June 2010 and the resulting conclusions of the Conference Committee, as well as the Government’s report. The Conference Committee noted the various measures taken by the Government aimed at women’s empowerment, the meeting with the provincial labour ministers in January 2010 to discuss the implementation of the Equal Remuneration Act, 1976, (ERA) and the compilation of data that was being prepared on trends in earnings of men and women in selected sectors. The Conference Committee asked the Government to take measures in several areas, including research on the gender remuneration gap, awareness raising and enforcement of the ERA and the Equal Remuneration Regulations, and objective job evaluation with a view to effectively applying the principle of the Convention. The Conference Committee also called on the Government to avail itself of ILO technical assistance in order to bring its law and practice into full conformity with the Convention.

The Committee notes that a tripartite national workshop on strengthening the implementation of the ERA was organized in New Delhi in February 2012, with the assistance of the Office. The main objective was to identify action to be taken by the labour institutions and other relevant stakeholders towards strengthening the effectiveness of the ERA, in line with the principles of the Convention. At the conclusion of the workshop, recommendations were proposed in the areas of research and data collection, proactive measures and legislation, which were to be presented to the Inter-ministerial Task Force for Gender Equality for follow-up. The Committee asks the Government to provide information on the follow-up given to the recommendations proposed by the tripartite workshop on the ERA.

Article 1 of the Convention. Equal remuneration for work of equal value. Legislation. In its General Survey of 2012 on the fundamental Conventions, the Committee has called on countries that retain legal provisions that are narrower than the principle laid down in the Convention, to amend their legislation. It has done so because narrower provisions that do not give expression to the concept of “work of equal value” hinder progress in eradicating gender-based pay discrimination (see General Survey, 2012, paragraph 679). The Committee recalls that section 39(d) of the Constitution of India only provides for equal pay for equal work for men and women and that section 4 of the ERA requires employers to pay equal remuneration to men and women for the same work or work of a similar nature; section 2(h) of the ERA defines “same work or work of a similar nature” to mean “work in respect of which the skill, effort and responsibility required are the same, when performed under similar conditions, by a man and a woman and the differences, if any, between the skill, effort and responsibility required of a man and those required of a woman are not of practical importance in relation to the terms and conditions of employment”. In its previous comments, the Committee noted that these provisions were more restrictive than is required to give effect to the principle of equal remuneration for men and women for work of equal value, as set out in the Convention, and that limiting the scope of the legislation to “work of a similar nature” unduly restricts the scope of comparison of remuneration received by men and women.

The Committee recalls that the Government had previously taken the view that amending the ERA was not necessary and that the legal provisions had to be read in conjunction with judicial interpretations. The Committee notes the three decisions of the Supreme Court of India on the application of article 39(d) of the Constitution and the ERA, which, however, continue to define the principle of equal pay in a restrictive manner that does not give full expression to the principle of the Convention. The Committee urges the Government to take concrete measures to ensure that the legislation clearly establishes the right to equal remuneration for men and women for work of equal value, and asks the Government to provide detailed information on the measures taken and progress achieved in this regard.

Assessment of the gender pay gap. The Committee recalls the significant earnings differentials between men and women, even where they are engaged in the same occupations or where they have the same level of skills or education. The Committee notes from the most recent statistical data provided by the Government that significant differentials remain with respect to the average daily earnings between men and women in the manufacturing sector, the mining sector, the plantation sector, and the service sector (Labour Bureau Occupational Wage Survey). The Committee notes that the Conference Committee had asked the Government to ensure that research undertaken by the Centre for Gender and Labour of the National Labour Institute encompassed an in-depth study into the reasons for the wide gender remuneration gap and the effectiveness and implementation of the ERA with respect to promoting the principle of the Convention. The Government was urged to follow up actively on such research, with the cooperation of employers’ and workers’ organizations. The Committee notes the Government’s indication that the Centre for Gender and Labour has been entrusted with the responsibility of undertaking research regarding the effectiveness and implementation of the ERA. The Committee asks the Government to indicate the progress made with respect to research undertaken by the Centre for Gender and Labour into the reasons for the wide gender pay gap, the effectiveness and implementation of the legislation and the impact of the minimum wage legislation on equal remuneration for men and women, as well as the compilation of statistics on wage differentials in the public and private sectors, and in the unorganized sector, and to provide the results of such research. Please also indicate how workers’ and employers’ organizations are being involved in any such research. The Committee also asks the Government to continue to provide detailed statistical information on the earnings of men and women in the public and the private sectors, and the unorganized sector.

Enforcement. The Committee notes that the Conference Committee shared its concern that only very few violations of the ERA have been detected at the level of state governments, particularly when compared to violations detected in the context of inspections undertaken by the central authorities. The Conference Committee had asked the Government to reinforce awareness raising among workers, employers and their organizations and enforcement authorities throughout the country in respect of the principle of equal remuneration for work of equal value in compliance with the provisions of the Convention, the relevant legal provisions and the avenues of dispute resolution. The Committee notes from the Government’s report that the number of inspections undertaken by the authorities at the central level decreased from 3,224 in 2007–08 to 2,779 in 2008–09. In the large majority of cases, violations were identified (2,715), and in 600 cases prosecutions were launched, leading to 320 convictions. It also notes the Government’s indication that during 2009–10, 68,700 women benefited from awareness-raising activities on the ERA through the scheme providing “grant-in aid” to voluntary organizations and that the Central Board for Workers’ Education under the Ministry for Labour and Employment also organizes training programmes for informal economy workers, particularly rural workers and women workers, with a view to developing awareness on labour protection available under the labour laws. The Committee further notes that the Central Advisory Committee on the ERA was reconstituted in December 2010 and that the first meeting was held in February 2011. Noting the Government’s statement that strengthening the enforcement of the equal remuneration legislation at the state level will be taken up with the state government and union territory administrations, the Committee urges the Government to take swift action in this respect, and to report on the progress made. The Committee also asks the Government to take more vigorous steps, in cooperation with the workers’ and employers’ organizations, to disseminate information widely and raise awareness among workers and employers at the central and state levels, including in the unorganized sector, on the relevant national legislation and the avenues for dispute resolution, through the “grant-in aid” scheme for voluntary organizations, the Central Board for Workers’ Education, or otherwise. The Committee also asks the Government to provide information on the following:

• (i) the steps taken or envisaged to undertake an in-depth analysis of the violations detected and research regarding the obstacles encountered and ways and means of improving enforcement by the state authorities of the equal remuneration legislation, including in the unorganized sector;
• (ii) detailed information on the extent to which the institutions competent to bring complaints under section 12 of the ERA have made use of this possibility, and the outcome of such complaints; and
• (iii) the activities of the Central Advisory Committee to improve the effective implementation of the ERA.

Article 3. Objective job evaluation. The Committee notes that the Conference Committee urged the Government, in cooperation with workers’ and employers’ organizations, to take the necessary measures to promote, develop and implement practical approaches and methods for the objective evaluation of jobs with a view to effectively applying the principle of the Convention in the public and private sectors. The Committee notes the Government’s statement that the issue was to be discussed during the tripartite workshop on the ERA. The Committee notes that the importance of objective job evaluation to the implementation of the principle of equal remuneration for work of equal value was reaffirmed at the tripartite workshop, including the need to develop technical tools for undertaking objective job evaluation and implementing the principle of equal remuneration for men and women work of equal value. The Committee trusts that the Government will take the measures necessary to give effect to Article 3 of the Convention, in the public and private sectors, with a view to promoting the use of objective job evaluation methods as a means of ensuring full application of the principle of the Convention in practice, and to provide information on any further developments in this regard.

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