Equal Remuneration and Non-Discrimination under the Code on Wages

Article 39(d) directs the State to secure equal pay for equal work for both men and women. The Equal Remuneration Act, 1976 gave effect to this for the sexes; the Code on Wages now does so through sections 3 and 4, framed in terms of gender rather than sex. This note explains the prohibition, the test of same or similar work, how disputes are decided, and the leading cases on equal pay and discrimination at work.

1. The Prohibition in Section 3

• Wages, s.3(1). No discrimination in an establishment or any unit among employees on the ground of gender in matters relating to wages paid by the same employer for the same work or work of a similar nature.
• No levelling down, s.3(2)(a). An employer may not reduce any employee's wages to comply.
• Recruitment and conditions, s.3(2)(b). No discrimination on the ground of sex in recruitment for the same or similar work, or in conditions of employment, except where the employment of women in that work is prohibited or restricted by law.
• All genders. The Code speaks of gender, and the definition of wages refers to equal wages to all genders, so the protection is not confined to men and women.

2. Same Work or Work of a Similar Nature

Figure 1: Applying the test

• Definition, s.2(v). Work requiring the same skill, effort, experience and responsibility, performed under similar working conditions, where any difference is not of practical importance in relation to the terms of employment.
• Disputes, s.4. Whether work is the same or of a similar nature is decided by the authority under section 45, which can also award the difference in wages with compensation.
• Burden of proof. Under s.59 the employer must prove that the dues were paid; the claimant must still show that the work is comparable.

3. Leading Cases

Figure 2: Equal pay and discrimination at work

• Mackinnon Mackenzie v Audrey D'Costa (1987). Lady stenographers doing the same work as male stenographers were entitled to equal remuneration; the employer's financial capacity and a settlement with the union were no defence.
• State of Haryana v Charanjit Singh (2006). Equal pay is not automatic: the claimant must establish that the work, responsibilities and qualifications are substantially the same.
• Article 39(d) and Articles 14 to 16. The courts read the directive with the equality guarantees to make equal pay enforceable against arbitrary distinctions (Topic 2)

4. Supporting Provisions

• Advisory Boards, s.42. One-third of the members must be women. The Boards advise on increasing employment opportunities for women, including part-time employment, and the extent to which women may be employed in particular work.
• Night work and other conditions. Women may work at night with their consent and safety conditions under the OSH Code (Topic 31)
• Maternity benefit. Protection during maternity is under the Social Security Code (Topic 23)

5. Frequently Asked Questions

Which law now governs equal remuneration?

The Equal Remuneration Act, 1976 has been repealed by section 69 of the Code on Wages, 2019. Sections 3 and 4 of the Code now prohibit gender discrimination in wages and sex discrimination in recruitment and conditions of employment for the same or similar work.

Can an employer equalise wages by reducing the higher wage?

No. Section 3(2)(a) forbids an employer from reducing the rate of wages of any employee in order to comply with the requirement of equal wages. Equality must be achieved by raising the lower wage.

6. Related Topics

• Topic 2: Constitutional Framework of Labour Law. Articles 14, 16 and 39(d)
• Topic 31: Women Employees, Night Work and Safety. Conditions of work for women.