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Labour Law _ Equal Remuneration Act_ Assignment.pptx

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Labour Law _ Equal Remuneration Act_ Assignment.pptx

  2. 2. Equal Remuneration Act 4 – 6 3 Landmark Judgements 7 4 Case 1: Jagjit Singh vs State of Punjab 8 - 9 5 Case 2: Merkendeya vs State of Andhra Pradesh10 - 11 6 Case 3: Mackinnon Mackenzie & Co. Ltd vs Audrey D'Costa 12 7 Conclusion 13 8 Reference 14
  3. 3. Firstly, We would like to praise and thank the Almighty God for giving us strength and because of His blessings, we finally managed to accomplish this assignment. It gives us immense pleasure to be part of this project.
  4. 4. for providing us with guidance to complete our assignment. He always gives us support and guides us on how to do our assignments to produce a good outcome. He has been the vital source of the encouragement for us through the working on this assignment. We also thank him for teaching us this course.
  5. 5. for giving us the opportunity to conduct this assignment. Lastly, . We would also like extend our thanks to each member of this group. Without their effort and cooperation, the project would not have been possible.
  6. 6. • Introduction Equal Remuneration Act
  7. 7. salary, etc. at par with his peers for doing similar work. In this article, however, it is argued that the understanding of discrimination has deepened over time and thus we have to also reflect upon our traditional ideas, and expand our aims that were previously set. Hence, it is suggested that the idea of ‘equal pay for equal work’ still remains a distant dream. • The constitutional commitment to socio-economic justice
  8. 8. The Preamble reflects the concept of justice in all aspects of an individual’s life, be it social, cultural, political, or economical. This reflection gets reaffirmed in Part III of the Constitution of India, dealing with Fundamental Rights and Part IV dealing with the Directive Principle of State Policy.
  9. 9. citizens. When we look at these provisions from a formalist point of view, the special treatment given to women, children, and socially and educationally backward classes of citizens, has been interpreted as an exception to the concept of equality. But another perspective is of substantive equality which embraces the special treatment as an essential dimension of the concept of equality. This is to suggest that the substantive equality approach, ideologically acknowledges the ‘disadvantage’ that is perpetuated in different aspects of the lives of members from the aforementioned categories.
  10. 10. religion, sex, place of birth, or any of them. This is to say that our Constitution makers were very well aware of the existing social hierarchies, and its adverse impact on the economic dimension of multitudes of lives. In fact, under Article 39(d), as a directive principle to the State, the Constitution explicitly, secures the right of equal pay for equal work for both men and women. Hence, it can satisfactorily be said that the themes of socio- economic justice found a prominent place in our Constitution, and thus becomes one of the main aims of the Indian society to achieve.
  11. 11. these categories affect an individual in an intersectional way. For instance, in a simplistic understanding, a lower caste woman is relatively more disadvantaged than an upper-caste woman, and hence more exposed to unequal income and differential treatment by employers, or an inter- state migrant may also face such treatment because he was born in some other state as well as he belongs to a lower caste. This idea, however, could not sufficiently surface itself in our Constitution. Arguably, one can say
  12. 12. of them’ in Article 15 or 16(2), as against the use of ‘only’ before. However, it cannot be denied that this aspect has not been emphasized enough in legislative actions by the governments. Hence, the problem deepens in terms of equal remuneration for these groups. • India and remuneration disparity
  13. 13. the people of this category other than the two dominant genders, that are, male and female? Similarly, how much do we know about the remuneration disparity between interstate migrant workers and native workers? Intersectionality, in this sense, has been relatively less emphasized in the context of wage gaps. In further sections, we attempt to explore some of the aspects of these claims. • Gender discrimination and wage inequality
  14. 14. commitments. There are multiple reasons for such exclusion of women in employment and wage discrimination including unequal access to education, patriarchal social norms, conception such as work being ‘suitable’ for women or not, etc. Amidst these prominent reasons, however, the less emphasized reasons such as race, colour, class, caste, age, etc., also play their role in intensifying this kind of discrimination against women.
  15. 15. (hereafter, LGBTQ+). And consequently, it affects the economic dimension of their lives significantly. The most important reason for such exclusion and discrimination is stigmatization. The community is discriminated against in employment opportunities, wages, salaries, etc. The high rate of poverty in these communities forces them to engage in further criminalized activities.
  16. 16. discrimination against such communities. It is, however, not to undermine the continuing wage disparity against women, rather it is argued that the concerns of wage gaps are way more problematic than they seem to be, thus need to be dealt more actively. • Inter-state migrant workmen and wage inequality
  17. 17. communities are vulnerable to many social and economic issues involving the risks associated with low-paying, hazardous, and informal market jobs. Multiple studies have concluded that the migrant workers are generally remunerated substantially lower than the local labour, their working conditions such as security of a job, shelter, medical facilities, insurance, and provident fund, etc. are near to non-existent in some areas. In this respect, we can’t ignore the exacerbation of their situation because of the
  18. 18. other factors like caste, language, gender, etc. Hence, the dimension of the apparent violation of a Constitutional guarantee also becomes part of the problem.
  19. 19. at all to demoralize the attempts of major government actions and the works of multiple national as well as international non- governmental organizations. Rather, the idea is to point to the complexity of the issue and demand a change in perspective of the common populace in the country. • The legislative response to the issue
  20. 20. Article 39(d), the Equal Remuneration Act of 1976 (ERAAct) was passed, which sought to provide for payment of equal wages and salaries to ‘male’ and ‘female’ workers and prevent discrimination based on sex against women in matters of employment.
  21. 21. kind, to a person employed. In Section 5, it specifically prohibits employers from discriminating against women. Further, in the case of People’s Union for Democratic Rights v. Union of India, the Supreme Court observed that the principle of equality embodied in Article 14 of the Constitution of India, finds its expression in the provision of the ERAAct.
  22. 22. Society, which identifies several links in the chain where the implementation of the ERAAct could break down leading to the non-enforcement of the act, for instance, the flaws in the periodicity and thoroughness of the inspection by labour inspectors.
  23. 23. necessary to update these laws. Secondly, the earlier Acts only covered 40% of the total employment workforce, since the Act provided for only certain salary groups and specific schedules. The new Code will cover all employees and workers in its purview. Thirdly, different legislations provided different definitions of the same words, hence leading to a difficulty for courts to decide the cases, thus, a single code provides for single definitions. Lastly, due to multiple statutes, compliance was difficult at administrative levels as well. Hence, the government introduced the Code of Wages Bill.
  24. 24. • Landmark Judgments
  25. 25. Some of the landmark judgments in the context of equal pay for equal work include:
  26. 26. Hence, the classification must be grounded on two rationals, firstly, on an intelligible differentia which distinguishes people of one group from other groups, secondly, such differentia must have a rational relation to the object sought to be achieved. Although, the facts of the case itself did not deal with the idea of ‘equal pay for equal work’, however, the principles laid down have been significantly relied on by the courts in the cases involving such issues.
  27. 27. Co. ltd. v. Andrey D’Costa, which involved a claim for equal remuneration for female Stenographers and male stenographers. The Supreme Court held that such kind of differentiation is not maintainable, further, the management could not arrive at a settlement, by flouting the express provision of the statute.
  28. 28. principle of ‘equal pay for equal work’ did not find an explicit place in the fundamental rights, it certainly constitutes a constitutional goal, therefore, it is capable of being enforced through constitutional remedies under Article 32 of the Constitution.
  29. 29. supervisors having a degree in engineering and non- graduate supervisors having diploma and license. The Court upheld such difference and stated that the basis of difference being educational qualifications is reasonable for the difference in pay scales, thus would not go against Article 14 and 16.
  30. 30. performing similar duties and functions as discharged by permanent employees are to be given wages at par with permanent employees similarly placed. It also stated that this principle must be applied in the cases where the same work is being performed, irrespective of the class of the employee.
  31. 31. Although the Judiciary has been proactive in its approach to settling the issues related to the principle of ‘equal pay for equal work’, it has been shown in this article that the aim still remains distant for us.
  32. 32. Case 1 : Jagjit Singh vs State of Punjab • Introduction of the Case:
  33. 33. appointed on casual basis, contractual employees and the like), are entitled to minimum of the regular pay-scale, along with dearness allowance (as revised from time to time) on account of their performing the same duties, which are discharged by those engaged on regular basis, against sanctioned posts.
  34. 34. were not entitled to the minimum of the regular pay-scale, merely for reason, that the activities carried on by daily-wagers and the regular employees were similar. However, it carved out two exceptions, and extended the minimum of the regular pay to such employees. The exceptions recorded by the full bench of the High Court in the impugned judgment are extracted here under :-
  35. 35. against the regular sanctioned posts, if appointed after undergoing a selection process based upon fairness and equality of opportunity to all other eligible candidates, shall be entitled to minimum of the regular pay scale from the date of engagement.
  36. 36. Government or its instrumentalities for a sufficient long period i.e. for 10 years, such daily wagers, ad hoc or contractual appointees shall be entitled to minimum of the regular pay scale without any allowances on the assumption that work of perennial nature is available and having worked for such long period of time, an equitable right is created in such category of persons.
  37. 37. scale after more than three years and two months of completion of 10 years of continuous working, a daily wager, ad hoc or contractual employee shall be entitled to arrears for a period of three years and two months.
  38. 38. • Analysis and Interpretation
  39. 39. In this case, the judgement stated that there were the following distortions within the ambit of case discussion-
  40. 40. Permanent vs Temporary Employees
  41. 41. Class of Employment
  42. 42. ➢The equal work equal pay concept or Law of Equal Remuneration was the principle that was being used and stated while addressing the issue mentioned in the case by the Supreme Court.
  43. 43. ➢In the premises of this case, contractual labourers or temporary labourers were being “exploited” and “enslaved” as quoted by the Supreme Court
  44. 44. ➢As per Article 145, Payment of Equal Wage for Equal work in contribution is an absolute necessity and violation of the same would lead to exploitation of the welfare state of the society.
  45. 45. ➢As per Article 397, law of equal wage can and ought to be claimed by the temporary workers inter alia.
  46. 46. ➢The Supreme Court on the note of this case stated that the “claim for equal wage” should be valid for equal delivery of work no matter the class or state of the employee in the work forum.
  47. 47. ➢Article 38 (2) states that even temporary employees are eligible to be subject to having the minimum wage towards an employee along with the additional dearness allowances and other benefits that s/he is subjected towards.
  48. 48. wage without any ambiguity or irregularity due to differentiation of class of employment, i.e, wage payment should be in direct terms with the amount and kind of work delivered and no hindrances due to the kind of employment would be entertained. This was mainly declared taking into consideration the exploitation of the workers by the hierarchy, which was quoted as “enslavement” by the Supreme Court, post delivery of tasks in the firm.
  49. 49. only the delivery of work that was being performed by them irrespective of their employment type. This promoted the “Law of Equal Remuneration” where every worker, irrespective of any other clauses, would be subject to equal payment of wages, eradicating the domineering position of the hierarchical authorities.
  50. 50. Case 2 : Markendeya vs State of Andhra Pradesh • Introduction of the Case:
  51. 51. Branch category 1 includes officers, namely, Supervisors, Overseers, Head Draftsmen, Civil Draftsmen, Artists Draftsmen, Tracers, Blue-Print Operators and Building Mistries. Supervisors are recruited by direct recruitment as well as by promotion from amongst the Overseers. The cadre of supervisors include degree holders in engineering and diploma or licence holders.
  52. 52. from amongst the post of supervisors, in accordance with the Andhra Pradesh Engineering Service Rules 1967. Graduate Overseers are given preference in the ratio of promotion to the post of Assist- ant Engineer inasmuch as the quota of promotion is four to one from amongst the graduate supervisors and non-graduate supervisors.
  53. 53. supervisor is granted higher starting salary than non-graduate supervisors. Subsequently, a lower pay scale was prescribed for the non- graduate supervisors. Aggrieved the non-graduate supervisors filed two writ petitions in the High Court of Andhra Pradesh under Article 226 of the Constitution challenging validity of discrimination in prescribing two different scales of pay.
  54. 54. supervisors were entitled to the same scale of pay as prescribed for the graduate supervisors on the principle of equal pay for equal work as they constituted the same service and performed the same duties and functions as those performed by graduate supervisors.
  55. 55. were never fused into one service. The two class of employees discharged the same functions and carried out similar duties, but the State was justified in prescribing different pay scales for historical reasons, and also on the basis of difference in the educational qualifications. Plea of discrimination against non- graduate supervisors was denied.
  56. 56. O. Chinnappa Reddy (as he then was) by his judgment and order dated February 26, 1974 held that the State practised invidious discrimination without there being valid justification between the two categories of supervisors graduates and non- graduates • Analysis and Interpretation
  57. 57. same employer even though the two class of employees did not constitute the same service. The principle of equal pay for equal work was enforced on the premise that discrimination was practised between the two set of employees performing the same duties and functions, without there being any rational classification. The
  58. 58. educational qualifications. In the decisions reference to which have been made by the learned counsel for the appellants, this Court granted relief, after recording findings that the aggrieved employees were discriminated in violation of the equality clause under Articles 14 and 16 of the Constitution, without there being any rationale for the classification.
  59. 59. Case 3 : Mackinnon Mackenzie & Co. Ltd vs Audrey D'Costa • Introduction of the Case :
  60. 60. Under this landmark case,
  61. 61. business of rendering supporting services to water transport, like operation and maintenance of piers, docks, pilotage, light- houses, loading and discharging of vessels etc. referred to as Item No. 12 under the heading 'Water Transport' in the list of establishments and employments.
  62. 62. Respondent No. 1 Audrey D'Costa was one of the employees working under the petitioner till June 13, 1977 on which date her services were terminated.
  63. 63. appointed under sub-section (1) of section 7 of the Act complaining that during the period of her employment, she was being paid remuneration at the rates less favourable than those at which remuneration was being paid by the petitioner to the Stenographers of the male sex in its establishment for performing the same or similar work.
  64. 64. difference between the remuneration which she was being paid and the remuneration which was being paid to the male Stenographer who had put in the same length of service during the period of operation of the Act. The petitioner opposed the said petition.
  65. 65. was being carried on by it was not one of those businesses notified under sub-section (3) of section 1 of the Act; that there was no difference in the scales or grades of pay between lady Stenographers and other male Stenographers.
  66. 66. found that the male Stenographers and the lady Stenographers were doing the same kind of work, but it, however, rejected the complaint holding that in view of a settlement which had been arrived at in 1975 between the employees' Union and the management, the Respondent No. 1 was not entitled to any relief.
  67. 67. discrimination on the ground of sex had been made. It accordingly rejected the complaint of the Respondent No. 1 by its order dated March 30, 1982. Ag- grieved by the order of the Authority appointed under sub- section (1) of section 7 of the Act.
  68. 68. • Conclusion
  69. 69. In sum, it can be said that the issue of ‘equal remuneration for equal work’ stems from the idea of discrimination rooted in society.
  70. 70. impediment for its aim. When we look at the legislative actions, we realize, although the strong moves were taken by the government, still the initial aim of brig parity remains partially realized. This is to say that, not only do we have to achieve the aims actually set out in our statutes (to root out discrimination against women), but also expand our aims with more deep-seated problematic aspects in our society (for instance, the disparity in wages and opportunities for employment for LGBTQ+ community).
  71. 71. • References
  72. 72. https://indiankanoon.org
  73. 73. https://www.livelaw.in
  74. 74. https://www.casemine.com
  75. 75. https://lawtendo.com
  76. 76. https://lawrato.com