Observation (CEACR) - adoptée 1995, publiée 82ème session CIT (1995)

The Committee notes the information contained in the Government's report.

1. In previous comments, the Committee had observed that the scope of the principle of equal pay under section 4 of the Equal Remuneration Act 1976 was limited to men and women performing the same work or work of a similar nature for the same employer. The Committee recalls the Government's statement that the introduction of the concept of equal pay for work of equal value may not be possible at the present stage of development and that priority should be given instead to the full implementation of the provisions of the Equal Remuneration Act. In its present report, the Government states that the Act ensures equal remuneration to men and women for work which is of equal value to the same employer and that "it is neither possible nor necessary for legislation alone to meet the principles of the Convention". It also states that other options identified in the Convention itself may be expected to play the complementary role. In this regard, the Committee notes the Supreme Court decision in the case of D'Costa v. MacKinnon MacKenzie and Company which indicates that the scope of the Equal Remuneration Act is indeed more limited than that of the principle of the Convention (Supreme Court Cases (1987) 2 SCC pp. 469-482). The Supreme Court stated that discrimination arose only where men and women doing the same or a similar kind of work were paid differently. The Court distinguished this situation from that where men and women carried out different kinds of work, by stating that, in respect of the work done by men which women may not be able to undertake such as loading, unloading, carrying and lifting heavier things, there cannot be any discrimination on the ground of sex (page 478).

2. The Committee considers that, where equal pay legislation exists, it must be consistent with the principle set out in the Convention. Apart from seeking to determine whether national legislation provides a framework sufficient to ensure the application of the principle of equal pay, as enunciated in the Convention, the Committee also regularly requests information from ratifying States concerning the ways in which the principle of equal pay for work of equal value is ensured and promoted in practice, according to the provisions of the Convention. In the present case, the Committee requests the Government to provide full information in its next report on the effect given, in practice, to the provisions of the Convention in the hope that the Government is considering measures to ensure the application of the principle of the Convention which go beyond a reference to "the same" or "similar" work, and make the point of comparison the "value" of the work.

3. In the comments it has made for a number of years, the Committee has also sought to encourage the Government to improve the enforcement of the Equal Remuneration Act 1976, as there appeared to be numerous cases in which women received lower wages than men for equal work or for work of equal value. The Committee had noted that, according to the Centre of Indian Trade Unions (CITU), there were many shortcomings in the implementation of the Act; and that, in certain industries, employers used a piece-rate system to avoid paying equal wages for women or they claimed that the work performed by women was of a different nature to that performed by men, whereas the nature of the work was the same or similar. The Committee had also referred to a number of studies undertaken by the Labour Bureau of the Ministry of Labour in the late 1980s on the socio-economic conditions of women workers in various industries, which confirmed that the Act was circumvented frequently by employers.

4. The Committee notes the Government's explanation in its present report concerning the fixing of wage rates for piece-work, including the fact that the system is limited to certain types of employment or to particular processes where it is feasible and is needed to provide flexibility in view of the nature of the job and to enhance productivity. The Committee hopes that the Government will provide, in its next report, some indication (even by way of a representative statistical sample) of the proportion of men and women in the particular industries or jobs for which piece-rates are fixed, together with information on the average wages (differentiated by sex) received by those workers, as compared to time-rate workers. As concerns this question, the Committee wishes to determine the extent to which the wage rates of women workers are fixed according to their productivity. The Committee also hopes that the Government's next report will contain information on the action taken by the relevant state governments to rectify the instances of wage discrimination identified in the above-mentioned studies of the Labour Bureau.

5. Also in relation to its previous observations, the Committee notes that a scheme for strengthening the enforcement machinery for legislation relating to women and children was transferred to state governments under the 8th Five-Year Plan (1992-97). In addition, a process of active consultation has been initiated with both the workers' and employers' organizations at the central level to secure their support for better implementation of the legislation. The Committee again requests the Government to supply specific information on the way these initiatives have furthered the implementation of equal pay.

6. The Committee notes that, following the Central Government's recognition of four social welfare organizations as having competence to file complaints under the Equal Remuneration Act, all state governments have been requested to extend recognition to appropriate organizations for the same purpose. The Committee would be grateful if the Government would indicate the names of the organizations that have been so recognized by the states. It also requests the Government to indicate the measures taken to educate and inform representatives of these organizations about the concept of equal pay, including information on the requirements of the Convention. The Committee takes this opportunity to remind the Government that technical assistance, including the provision of material designed to explain the provisions of ILO standards, is available from the International Labour Office.

7. The Committee is addressing a request directly to the Government on other points.