Observation (CEACR) - adoptée 2020, publiée 109ème session CIT (2021)

Convention (n° 100) sur l'égalité de rémunération, 1951 - Inde (Ratification: 1958)

Article 1(a) of the Convention. Definition of remuneration. The Committee notes, from the Government’s report, that the Code on Wages was adopted and enacted in 2019, and replaced the Equal Remuneration Act (ERA), 1976, the Payment of Wages Act, 1936, the Minimum Wages Act, 1948 and the Payment of Bonus Act, 1965. The Committee notes that under section 2(y) of the Code, the term “wages” is defined as “all remuneration whether by way of salaries, allowances or otherwise, expressed in terms of money or capable of being so expressed which would be, if the terms of employment, express or implied, were fulfilled, payable to a person employed in respect of his employment or of work done in such employment, and includes his basic pay, dearness allowances, and retaining allowance, if any”. The Committee further notes that for the application of the principle of equal wages between men and women contained in section 3 of the Code, the term “wages” also includes: the conveyance allowances or the value of any travelling concession, house rent allowance, remuneration payable under any award or settlement between the parties or order of a court or Tribunal, and any overtime allowance (section 2(y) subsection (d), (f), (g) and (h)). However, the Code explicitly excludes from the definition of “wages” other emoluments such as bonuses, contribution paid by the employer to any pension fund, or any gratuity payable on the termination of employment. The Committee recalls that Article 1(a) of the Convention sets out a very broad definition of “remuneration” which includes not only “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”. “Remuneration” under the Convention includes wage differentials or increments, cost-of-living allowances, dependency allowances, travel allowances or expenses, housing and residential allowances. It also includes benefits in kind such as the provision of accommodation or food, and it includes all allowances paid under social security schemes financed by the undertaking or industry concerned (see General Survey of 2012 on the fundamental Conventions, paragraphs 686–692). The Committee therefore asks the Government to consider amending the definition of “wages” contained in section 2(y) of the Code on Wages, in order to allow for a broad definition, including any additional emoluments whatsoever, as provided for in Article 1(a) of the Convention.

Article 1(b). Equal remuneration for work of equal value. Legislation.  For a number of years, the Committee has been pointing out the more limited nature of the provisions of the Constitution of India (Article 39(d)) and the ERA (sections 2(h) and 4), when compared to the principle of equal remuneration for men and women for work of equal value as set out in the Convention. In particular, under the above legislative provisions, the principle of equal remuneration is applied to “work of a similar nature” rather than “work of equal value”. In its previous comment, the Committee noted that the Government was in the process of consolidating its labour legislation in four codes, including a Wages Code, which would cover some of the matters addressed in the ERA, and it asked the Government to make use of this opportunity to ensure that the principle of the Convention was fully reflected in the legislation. The Committee notes that section 3(1) of the Code on Wages prohibits “discrimination in an establishment or any unit thereof among employees on the ground of gender in matters relating to wages by the same employer, in respect of the same work or work of a similar nature done by any employee”. Under section 4, any dispute as to whether a work is of the same or a similar nature will be decided by such authority as the Government designates. The Committee notes, with concern, that section 2(v) defines “same work or work of a similar nature”, in the same limited wording as the ERA did, as “work in respect of which the skill, effort, experience and responsibility required are the same, when performed under similar working conditions by employees and the difference if any, between the skill, effort, experience and responsibility required for employees of any gender, are not of practical importance in relation to the terms and conditions of employment”. It notes that the Government considers this definition to be equivalent to the concept of “work of equal value”. However, the Committee is of the view that this definition is more limited than the concept of “work of equal value” enshrined in the Convention. Indeed, when determining whether two jobs are of equal value, the overall value of the jobs is to be considered. In this regard, the Committee recalls that the definition should permit a broad scope of comparison, including, but going beyond equal remuneration for “equal”, “the same” or “similar” work, and also encompassing work that is of an entirely different nature, which is nevertheless of equal value. Comparing the relative value of jobs in occupations which may involve different types of skills, responsibilities or working conditions, but which are nevertheless of equal value overall, is essential in order to eliminate pay discrimination resulting from the failure to recognize the value of work performed by women and men free from gender bias (see the General Survey of 2012, paragraphs 673–675). The Committee also draws the Government’s attention to the fact that the Convention includes, but does not limit application of the principle of equal remuneration for work of equal value to men and women “in the same workplace”, and provides that this principle should be applied across different enterprises to allow for a much broader comparison to be made between jobs performed by women and men. The Convention thus calls for the reach of comparison between jobs performed by men and women to be as wide as possible in the context of the level at which wage policies, systems and structures are coordinated (General Survey of 2012, paragraphs 697 and 698). Recalling that it has been raising this issue since 2002, the Committee urges the Government to take the necessary steps to ensure that: (i) the Code on Wages is amended to give full expression to the principle of equal remuneration for men and women for work of equal value as enshrined in the Convention; and (ii) it is not restricted to workers within the same workplace but applies across different enterprises and sectors. It also asks the Government to provide information on the application in practice of section 3 of the Code on Wages and to indicate the authority which is competent to handle disputes under section 4.

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