Name: Narisetty Hitesh
Academic Status: BBA.LLB(Hons.) (Second Year)-
Vignan Institute of Law, Guntur, Andhra Pradesh
Introduction
For instance, consider that you are a woman working
really hard to earn well, but you find that there is some other person who
worked half as hard as you but earned double the amount just because that
person was a male. The basic concept underlying, the very controversial
subject, Feminism, is “equity”. Equity refers to a treatment of equal with
equals and Unequal with unequals. The Equal Remuneration Act, 1976 (the Act) does just that. It
provides for Equal remuneration both men and women, but also understanding the
fact that it will not override any special treatment provided to women in the
country. There was a time in India when women used to face heavy discrimination
in pay. But, after the advent of this Act, women have been able to sue
malpractices prevailing in their workplace.
Act to
have overriding effect
The Central Industrial Machinery (also, Chief Labour
Commissioner) has given effect to this Act and it states that it will not
affect the terms and conditions of any law which provides special treatment to
women. The statement in Section 3 itself suggests that it will have effect
under all circumstances. However, it also provides that any special treatment
accorded to women in connection with the birth or expected birth of a child, or
the terms and conditions relating to retirement, marriage or death or any of
them will not be affected by the present Act. .
Payment
of Remuneration at Equal Rates to Men and Women Workers and Other Matters
Chapter 2 of the Act, provides for payment of
remuneration at Equal Rates to Men and Women workers and other matters.
Duty of employer to pay
equal remuneration to men and women workers for the same work or work of similar
nature
The employer must not discriminate on grounds of sex,
when it comes to remuneration provided for the same amount and nature of work.
This Act was placed because there were numerous cases of women getting paid at
a lower rate than their male counterparts.
In the case of People’s
Union of Democratic Republic v. Union of India 1982, women were only
paid 7 per day as opposed to 9.25 per day for male workers. After hearing both
sides, Justice P.N. Bhagwati held that the authorities need to make sure that
the men and women both are paid at par to each other for similar amount of
work.
No discrimination to be
made while recruiting men and women workers
The Act suggests that there must not be discrimination
in recruitment of personnel on the basis of ground of sex. The section states
that there must be no discrimination in remuneration from the commencement of
the Act and provides an exception regarding employment of women is prohibited. There
are certain places which are hazardous for employment of women and children,
the section provides immunity from employment at those places.
Advisory Committee
Section 6(1) of the Act states that an Advisory
committee must be created which will aid the purposes increasing employment
opportunities. The government is taking all possible steps in making a change
in the remuneration policies of the employers in India.
Section 6(2) states, the definition of appropriate
government is given in 2(a)(1) here means, the part of the Central Government
which is responsible for the administration of that area of work. The areas of
work, which are administered by a Central authority or a Central Act, for
example, Banking companies, oil fields etc. will be addressed to the Central
Government. The rest of the areas which come under the state government’s
authority, will be governed by the State government.
The advisory committee must consist of at least 10
people, which will be nominated by the appropriate government. Women must
consist of one-half of this committee because that will help in formulation of
policies with the help of people who are the real stakeholders.
Section 6(3) states, the factors which make a
difference in the decision are:
1.
Number
of women at work
2.
Nature
of work
3.
Hours
of work
4.
Suitability
of women
5.
Need
to provide opportunities
After consideration of all these factors, the committee
must decide in bringing the appropriate norms in effect. The advisory committee
will work towards bringing reforms by understanding the requirements of the
employees. The committee is free to regulate its own procedures. The
appropriate government will implement the policy as suggested by the committee.
Power
of appropriate Government to appoint authorities for hearing and deciding
claims and complaints
Section 7 of the Act states, the complaints and
claims regarding the infringement of this Act shall be addressed to the
appointed officer. The applicants have to make sure that they have accurate
proof of the commitment of the offence. The offenders will certainly be sued
for any inequality in payment. In cases where the discrimination is made in two
or more works, the consequences will be decided by the appointed officer.
Section 7(4) of the Act, suggests that due
inquiry must be made by the appointed officer, wherein both the parties in the
matter, must be given an opportunity to be heard. The appointed officer shall
have all the powers of a Civil Court, as mentioned under Section 195,
Code of Civil Procedure 1908 and Chapter XXVI of the Code of
Criminal Procedure.
Section 7(6) mentions the situation where any of
the parties is dissatisfied with the decision given by the authority. The
aggrieved party must prefer an appeal before such an authority which is
specified by the appropriate government, within thirty days from the date of
the order.
Miscellaneous
There are several miscellaneous duties and powers
provided in Chapter III of the Act.
Duty of employers to
maintain registers
Section 8 of the Act specifies a duty of Employers to
maintain a record of the employees, which must contain detailed information
regarding the remuneration. This is done in order to gauge, if there is an
discrimination in pay on the basis of sex. The ascertainment of offence is
important in order to impose the correct amount of liability.
Inspectors
In order to ascertain the offence, the appropriate
government is given a task to appoint an Inspector, who will be responsible for
carrying out the investigations.
Section 8(2) states that the inspector must
be a public servant. Section 21 of the IPC, provides 12 broad categories of a
public servant, where the post of the Inspector must lie, otherwise his or her
appointment will be considered unauthorised.
The Inspector is bestowed with certain powers which
help him in carrying the investigations, smoothly.
The inspectors have the following powers while
investigation, which are provided in Section 8 of the Act:
1.
Enter
the premises at reasonable hours.
2.
May
call for any official or official documents for examination.
3.
May
call for evidence at any given point.
4.
Examine
the employer.
5.
Make
copies of required documents.
These powers help the Inspectors to carry out the work
in a fair and just manner.
Penalties
Penalties are charged in case, any employer fails to
comply with the norms provided in the Act. Section 10 of the Act specifies that
if an employer fails to:
1.
Fails
to maintain a register;
2.
Fails
to produce the register when required;
3.
Refuses
or omits to give evidence as per requisitions;
4.
Refuses
to give any information;
5.
Makes
any recruitment in contravention of the provisions of this Act;
6.
Makes
payments at unequal rates;
7.
Makes
any discrimination on the basis of sex;
8.
Fails
to carry out any direction as mentioned in the Act;
shall be punishable with at least a fine of 10,000,
which may extend till 20,000 or imprisonment, not less than 3 months, which may
extend to one year. In case of more than one offence, the punishment will
increase, accordingly.
Offences by companies
Section 11 of the Act specifies that if the offence is
committed by any body corporate and includes a firm or other association of
individuals, shall be deemed to be guilty of the offence. Unless, the person
can prove that such an act was done without his or her knowledge or he is she
exercised all due diligence in order to prevent the act from happening.
Cognizance and trial of
offences
Section 12 of the Act was amended in 1987, with the Equal Remuneration (Amendment) Act, 1987. It suggests that
Metropolitan Magistrate or a Judicial Magistrate of the first class will be the
authority at the lowest position for reviewing such a case under the Act. The
courts are allowed to take cognizance only on its own knowledge or any
complaint made by the appropriate government. An authorised officer can also
complain to such an authority. The aggrieved person is also authorised to take
his or her own complaint to the court. Apart from these, the court shall not
entertain any complaints under the Act.
The courts involved in these matters must take
immediate actions in order to protect the employees from such
discrimination.
Power to make rules
The Central Government has the power to make
regulations in order to protect the interest of the employees. Section 13 of
the act mentions the powers of the government to form policies and regulate
changes in the Act.
The Houses of Parliament can implement changes by
following due procedure. The employers will have to comply with the norms, so
provided.
Power of Central
Government to give directions
Section 14 of the Act states that the Central Government
has the power to direct the state government as to the execution of the Act.
The state government will have to comply with the directions, so provided.
Exclusion of certain
cases
Section 15 of the Act was amended by Equal Remuneration (Amendment) Act, 1987 which states,
“Nothing in this Act shall apply-
(a) to cases affecting the terms and conditions of a
woman’s employment in complying with the requirements of any law giving special
treatment to women, or
(b) to any special treatment accorded to women in
connection with-
(i) the birth or expected birth of a child, or
(ii) the terms and conditions relating to retirement,
marriage or death or to any provision made in connection with the retirement,
marriage or death.”
The Act provided for all possible exclusions, which
helps with the protection of interests of women who require special treatment.
This emanates the idea of equity and the spirit of protection of all kinds of
rights.
Power to make declaration
Section 16 of the Act states exemption from liability
of employer in certain circumstances.
The Act also provides for a situation where the
employer has to discriminate on the basis of any ground, but sex, will be
exempted from any prosecution, if after complete consideration of the case, the
government deems it fit.
Power to remove
difficulties
The Central Government has the power to make any order,
which might be inconsistent with the provisions of the Act, but are necessary
for the circumstances of that case. Such act must be necessary for the removal
of such difficulty. The implementation of the provisions must be carried out
smoothly, without any difficulties.
Repeal and saving
The Equal Remuneration Ordinance, 1975 (12 of 1975),
which was the Act governing, before the implementation of the present Act,
stands repealed by the effect of Section 18 of the current Act. The actions
taken under the ordinance which was repealed, will be deemed to be under the
provisions of the present Act.
Conclusion
The Equal Remuneration Act, 1976, helps in bridging the gap between unequal remuneration faced by the women of our country. By the successful implementation of the Act, India is moving closer to being a country, which treats its men and women equally.