flowchart LR
A["Equal Remuneration <br> Act, 1976"] --> B["Section 4 <br> Equal Remuneration"]
A --> C["Section 5 <br> Recruitment and Conditions"]
A --> D["Section 6 <br> Advisory Committee"]
A --> E["Section 7 <br> Authority"]
A --> F["Section 10 <br> Penalties"]
G["Constitutional Foundation"] --> G1[Article 14 Equality]
G --> G2[Article 15 Non-Discrimination]
G --> G3[Article 16 Public Employment]
G --> G4["Article 39(d) Equal Pay"]
H["International Foundation"] --> H1[ILO Convention 100, 1951]
H --> H2[ILO Convention 111, 1958]
H --> H3[CEDAW, 1979]
%% Style
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class A,B,C,D,E,F,G,G1,G2,G3,G4,H,H1,H2,H3 dark;
29 Equal Remuneration Act
ImportantLearning Objectives
By the end of this chapter, the reader will be able to:
- Explain the conceptual rationale of the Equal Remuneration Act, 1976, including the constitutional foundation in Articles 14, 15, 16, and 39(d) and the international foundation in the ILO Equal Remuneration Convention, 1951.
- Apply the prohibition on discrimination in remuneration under Section 4 of the Act and the prohibition on discrimination in recruitment and conditions of employment under Section 5.
- Identify the meaning of “same work” or “work of similar nature” as elaborated by Indian and international jurisprudence.
- Apply the enforcement framework, including the role of the Authority appointed under Section 7, the inspection mechanisms, and the penalties under Section 10.
- Locate the Equal Remuneration Act, 1976 within the Code on Wages, 2019 and identify the principal continuities and changes, particularly the integration with the Maternity Benefit Act, 1961, the Sexual Harassment of Women at Workplace Act, 2013, and the broader gender equality framework.
29.1 Introduction
This chapter takes up the Equal Remuneration Act, 1976, the fourth and last of the four principal Indian wage statutes. The Act addresses the conceptual problem of wage discrimination on the basis of sex, prohibiting differential remuneration for the same work or work of similar nature and prohibiting discrimination in recruitment and conditions of employment.
29.2 Conceptual Rationale
The conceptual rationale of equal remuneration legislation rests on three propositions.
The first proposition is that wage discrimination on the basis of sex is unjust as a matter of fundamental rights. The principle of equal pay for equal work is a corollary of the constitutional guarantee of equality before the law and the prohibition of discrimination on the basis of sex.
The second proposition is that wage discrimination is economically inefficient. It misallocates labour, depresses the productivity of women workers, and reduces the supply of women to the labour market. Eliminating discrimination expands the effective labour pool and improves overall economic performance.
The third proposition is that markets, left to themselves, do not eliminate wage discrimination. Information asymmetry, power asymmetry, social norms, and historical inertia together sustain discrimination even where individual employers might prefer to pay equally. Legislative intervention is therefore required to set the floor.
29.2.1 The Constitutional Foundation
NoteConstitutional Provisions Bearing on Equal Remuneration
| Article | Substantive Content |
|---|---|
| 14 | The State shall not deny to any person equality before the law or the equal protection of the laws |
| 15 | The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, or any of them |
| 16 | There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State |
| 39(d) | The State shall direct its policy towards securing equal pay for equal work for both men and women |
The 1976 Act gave statutory force to the principle in Article 39(d) and applied it not only to public employment (where Article 16 already operated) but to private employment as well. The Supreme Court in Randhir Singh v. Union of India (1982), examined in Chapter 25, elevated the equal-pay principle from a Directive Principle to an enforceable constitutional right.
29.2.2 The International Foundation
The Indian framework draws on three principal international instruments:
The ILO Equal Remuneration Convention, 1951 (No. 100), ratified by India in 1958, which requires equal remuneration for men and women workers for work of equal value;
The ILO Discrimination (Employment and Occupation) Convention, 1958 (No. 111), which prohibits discrimination on the basis of sex in employment and occupation;
The Convention on the Elimination of All Forms of Discrimination Against Women, 1979 (CEDAW), ratified by India in 1993, which provides a comprehensive framework for the elimination of discrimination against women.
The Indian Act of 1976 implemented Convention No. 100 in domestic law, with the broader CEDAW framework informing subsequent reforms.
29.3 Substantive Provisions
29.3.1 Definitions
NoteSection 2: Key Definitions
“Remuneration” means the basic wage or salary, and any additional emoluments whatsoever payable, either in cash or in kind, to a person employed in respect of employment or work done in such employment, if the terms of the contract of employment, express or implied, were fulfilled.
“Same work or work of a similar nature” means work in respect of which the skill, effort, and responsibility required are the same, when performed under similar working conditions, by a man or a woman and the differences, if any, between the skill, effort and responsibility required of a man and those required of a woman are not of practical importance in relation to the terms and conditions of employment.
“Worker” means a worker in any establishment or employment in respect of which this Act has come into force.
The definition of “same work or work of a similar nature” is the crucial substantive concept. It captures the proposition that work need not be identical to attract equal pay protection: substantive similarity in skill, effort, and responsibility, performed under similar conditions, is sufficient. Minor differences are disregarded.
29.3.2 Section 4: Equal Remuneration
NoteSection 4: Duty of Employer to Pay Equal Remuneration to Men and Women Workers for Same Work or Work of a Similar Nature
“(1) No employer shall pay to any worker, employed by him in an establishment or employment, remuneration, whether payable in cash or in kind, at rates less favourable than those at which remuneration is paid by him to the workers of the opposite sex in such establishment or employment for performing the same work or work of a similar nature.
No employer shall, for the purpose of complying with the provisions of sub-section (1), reduce the rate of remuneration of any worker.
Where, in an establishment or employment, the rates of remuneration payable before the commencement of this Act for men and women workers for the same work or work of a similar nature are different only on the ground of sex, then the higher (in cases where there are only two rates), or, as the case may be, the highest (in cases where there are more than two rates), of such rates shall be the rate at which remuneration shall be payable, on and from the commencement of this Act, to such men and women workers.”
The Section establishes three substantive rules. First, no worker may be paid less than the worker of the opposite sex for the same or similar work. Second, the employer cannot achieve compliance by reducing the higher remuneration rather than raising the lower. Third, where pre-Act differential rates existed, the higher rate is the floor that applies on the commencement of the Act.
29.3.3 Section 5: Recruitment and Conditions of Service
NoteSection 5: No Discrimination in Recruitment or Conditions of Service
“On and from the commencement of this Act, no employer shall, while making recruitment for the same work or work of a similar nature, or in any condition of service subsequent to recruitment such as promotions, training or transfer, make any discrimination against women except where the employment of women in such work is prohibited or restricted by or under any law for the time being in force.”
The Section extends the equal-treatment principle beyond remuneration to recruitment and conditions of service. The exception for legal prohibitions or restrictions (such as the historical prohibition on women working in mines below ground) is narrow and largely obsolete in contemporary practice.
29.4 Institutional Architecture
29.4.1 Advisory Committee (Section 6)
Section 6 provides for the constitution by the appropriate government of an Advisory Committee to advise on the increasing employment opportunities for women. The Committee comprises five women members and five men members, with representation of trade unions, employers, and persons familiar with employment opportunities for women.
29.4.3 Penalties (Section 10)
NoteSection 10: Penalties
“(1) If after the commencement of this Act, any employer:
makes any recruitment in contravention of the provisions of this Act, or
makes any payment of remuneration at unequal rates to men and women workers, for the same work or work of a similar nature, or
makes any discrimination between men and women workers in contravention of the provisions of this Act, or
omits or fails to carry out any direction made by the appropriate Government,
he shall be punishable with fine which shall not be less than ten thousand rupees but which may extend to twenty thousand rupees or with imprisonment for a term which shall be not less than three months but which may extend to one year or with both for the first offence, and with imprisonment which may extend to two years for the second and subsequent offences.”
The penalty provisions support the substantive prohibitions. The minimum fine and the possibility of imprisonment underscore the seriousness with which the Act treats wage discrimination.
29.5 The Concept of “Same Work or Work of Similar Nature”
The central conceptual issue under the Act is the determination of “same work or work of similar nature” between male and female workers. The definition in Section 2(h) captures the substantive elements: skill, effort, and responsibility, performed under similar conditions.
29.5.1 The Skill Test
The skill test compares the qualifications, training, and experience required for the work performed by men and women workers. Where the skill required is substantially the same, the test is satisfied. Where there is a substantial difference (such as where men perform skilled work and women perform unskilled work), the test is not satisfied.
29.5.2 The Effort Test
The effort test compares the physical and mental exertion required. Where the effort required is substantially the same, the test is satisfied. The Act recognises that the assessment of effort may have been historically biased against women’s work, with traditionally female occupations under-valued in their effort content. The contemporary application of the effort test should resist these biases.
29.5.3 The Responsibility Test
The responsibility test compares the accountability for outcomes, supervision of others, custody of resources, and other responsibility-bearing aspects of the work. Where the responsibility is substantially the same, the test is satisfied.
29.5.4 The Working Conditions Test
The working conditions test compares the environment in which the work is performed: temperature, hazard exposure, hours, location, and similar factors. Where the conditions are substantially the same, the test is satisfied.
TipThe Application of the Same-Work Test Has Evolved
A practitioner observation worth emphasising is that the application of the same-work test has evolved over the four decades since the Act came into force. Early cases focused narrowly on identical work. Contemporary applications have broadened to recognise substantive similarity even where the form of the work differs. The trend reflects the broader gender equality jurisprudence and the international standards (particularly ILO Convention 100’s “work of equal value” formulation, which is broader than “same work”).
29.5.5 Indian Case Law
NoteMackinnon Mackenzie & Co. Ltd. v. Audrey D’Costa (1987)
The Supreme Court of India in Mackinnon Mackenzie & Co. Ltd. v. Audrey D’Costa held that female stenographers were entitled to equal pay with male stenographers, despite differences in the nature of their assigned work. The Court applied the same-work test broadly and held that the differences were not of practical importance in relation to the terms and conditions of employment.
The decision is the leading Indian authority on the application of the same-work test in equal remuneration cases.
NoteAir India v. Nergesh Meerza (1981)
The Supreme Court considered service conditions of Air India’s air hostesses, including provisions for early retirement on marriage and on first pregnancy. The Court struck down some of the provisions as discriminatory under Article 14 and Article 15 of the Constitution, while upholding others on the basis of the distinct nature of the air hostess role.
The decision illustrates the broader equality jurisprudence that informs the application of the Equal Remuneration Act, 1976.
29.6 The Equal Remuneration Act in the Code on Wages, 2019
The Code on Wages, 2019 incorporates the Equal Remuneration Act, 1976 with refinements. The principal continuities and changes include:
The substantive prohibition on discrimination in remuneration is preserved;
The prohibition extends to recruitment and conditions of service, as under the 1976 Act;
The definition of “same work or work of similar nature” is preserved;
The Code applies the prohibition across all establishments without threshold, consistent with the 1976 Act;
The enforcement mechanisms are consolidated with the broader wage enforcement framework under the Code, with integrated inspection and claims procedures;
The penalty levels are substantially increased.
The Code on Wages, 2019 thereby preserves the substantive equal remuneration framework while integrating it with the broader wage code.
29.7 The Broader Gender Equality Framework
The Equal Remuneration Act, 1976 operates within a broader Indian framework on gender equality at the workplace. The principal adjacent components include:
NoteAdjacent Components of the Indian Workplace Gender Equality Framework
| Component | Subject |
|---|---|
| Equal Remuneration Act, 1976 | Equal pay for equal work; non-discrimination in recruitment and conditions |
| Maternity Benefit Act, 1961 (as amended in 2017) | Maternity leave, creche obligations, prohibition of dismissal during maternity |
| Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 | Internal complaints committees, complaints procedure, employer obligations |
| Companies Act, 2013 | Mandatory woman director on boards of certain companies |
| Section 66 Factories Act | Restrictions on employment of women, modified by State notifications |
| BRSR Framework | Disclosure of gender-related metrics by listed companies |
| CEDAW Obligations | International obligations under the Convention on Elimination of Discrimination Against Women |
The cumulative architecture supports gender equality at the workplace through multiple complementary mechanisms. The Equal Remuneration Act, 1976 addresses pay; the Maternity Benefit Act, 1961 addresses parental responsibilities; the Sexual Harassment Act, 2013 addresses harassment; the Companies Act, 2013 and the BRSR framework address corporate governance and disclosure.
29.8 Case Studies
29.8.1 Case Study 1: A Pay Equity Audit in a Large Service Establishment
A large service sector establishment with 5,000 employees conducts a pay equity audit. The audit examines the wages paid to male and female employees in equivalent role categories, controlling for experience, qualifications, and performance.
The audit identifies several role categories where women’s average wages are 5 to 12 per cent below men’s, after controls. The investigation identifies several causes: (i) lower starting salaries on initial hire; (ii) slower promotion timing; (iii) smaller annual pay raises in negotiated settings; (iv) under-representation of women in higher-paying specialised roles.
The establishment commits to remediation including standardised initial salary bands, calibrated promotion review, training on negotiation, and targeted programmes to expand women’s representation in higher-paying roles. The remediation is monitored through annual pay equity reviews.
Discussion Questions
- To what extent does Section 4 require remediation of the disparities, given that the controlled-for differences may not be “only on the ground of sex”?
- How should the establishment communicate the audit findings and remediation to its workforce?
- What lessons does the case offer for the integration of pay equity into broader diversity and inclusion programmes?
29.8.2 Case Study 2: Recruitment Discrimination in a Manufacturing Setting
A manufacturing firm advertises for production-line workers, with internal guidelines that prefer male candidates due to the physical demands of the work. A women’s group challenges the practice as a violation of Section 5 of the Act.
The firm contends that the work involves significant physical demands and that the preference for male candidates reflects operational reality. The complainant contends that the physical demands have been overstated, that women have demonstrated capacity for the work elsewhere, and that the preference reflects discriminatory stereotyping.
The Authority examines the work, the physical requirements, the experience of women in similar roles in other firms, and the firm’s underlying assumptions. The Authority finds the recruitment preference unjustified and orders the firm to amend its practices, with monitoring of subsequent recruitment patterns.
Discussion Questions
- To what extent should the physical demands of work be a permissible basis for sex-based recruitment preferences, and what evidentiary standard should apply?
- How should the firm restructure its work and processes to make it accessible to women candidates without compromising productivity or safety?
- What lessons does the case offer for the application of Section 5 in industries with historical gender stereotyping?
29.8.3 Case Study 3: Application to Contract Labour
A large enterprise engages contract labour through a contractor for housekeeping and security services. The contractor pays male and female workers different wages for similar work. The enterprise contends that, as the principal employer, it is not directly liable for the contractor’s wage practices.
The Indian framework on principal employer liability is layered. The Contract Labour (Regulation and Abolition) Act, 1970 imposes various obligations on the principal employer, including the obligation to ensure that the contractor pays wages in accordance with applicable law. The Equal Remuneration Act, 1976 applies to the contractor as the immediate employer, but the principal employer cannot be entirely insulated from the obligation to ensure compliance through its contractor.
The Authority examines the contractual arrangements between the enterprise and the contractor, the practical control exercised by the enterprise, and the wage practices observed. The Authority orders the contractor to remediate and the enterprise to enhance its oversight of the contractor’s compliance.
Discussion Questions
- To what extent should the principal employer be directly liable for equal remuneration violations by its contractor, and what features of the relationship would support direct liability?
- How should principal employers structure their contracting practices to ensure compliance by contractors with the Equal Remuneration Act and other labour statutes?
- What lessons does the case offer for the integration of equal remuneration compliance into supply chain and procurement practices?
29.9 Module Conclusion
This chapter concludes Module 3 of the book, which has covered factories and labour welfare legislation in Chapters 20 to 24 and wage legislations in Chapters 25 to 29. The module has examined the principal Indian statutes governing the employer-employee relationship in the organised sector, with the four wage statutes (Payment of Wages Act, 1936, Minimum Wages Act, 1948, Payment of Bonus Act, 1965, and Equal Remuneration Act, 1976) consolidated by the Code on Wages, 2019, and the Factories Act, 1948 to be substantially superseded by the Occupational Safety, Health and Working Conditions Code, 2020.
Module 4, comprising Chapters 30 to 37, takes up social security and industrial relations. The transition from labour welfare and wages to social security is the transition from the protections during employment to the protections beyond employment (retirement, sickness, accident), and from individual employment relationships to the collective relationship between employers and workers organised through trade unions and the industrial dispute resolution machinery.
Summary
| Concept | Description |
|---|---|
| Conceptual and Constitutional Foundation | |
| Conceptual Rationale | Wage discrimination on the basis of sex is unjust as a matter of fundamental rights, economically inefficient, and not eliminated by markets alone |
| Article 14 Equality Before Law | The State shall not deny to any person equality before the law or the equal protection of the laws |
| Article 15 Non-Discrimination | The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, or any of them |
| Article 16 Equality in Employment | There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State |
| Article 39(d) Equal Pay | The State shall direct its policy towards securing equal pay for equal work for both men and women |
| International Foundation | |
| ILO Convention 100, 1951 | International obligation under the ILO Equal Remuneration Convention, ratified by India in 1958, requiring equal remuneration for work of equal value |
| ILO Convention 111, 1958 | International obligation under the ILO Discrimination (Employment and Occupation) Convention, prohibiting discrimination on basis of sex in employment |
| CEDAW, 1979 | International obligation under the Convention on the Elimination of All Forms of Discrimination Against Women, ratified by India in 1993 |
| Substantive Provisions | |
| Section 2 Remuneration | Basic wage or salary plus any additional emoluments payable in cash or in kind in respect of employment or work done in employment |
| Same Work or Work of Similar Nature | Work in respect of which the skill, effort, and responsibility required are the same, when performed under similar working conditions |
| Section 4 Equal Remuneration | No employer may pay any worker remuneration at rates less favourable than those paid to workers of the opposite sex for same or similar work |
| Reduction Prohibited | Employer cannot achieve compliance by reducing the rate of remuneration of any worker; must instead raise the lower rate |
| Pre-Act Differential Rates | Where pre-Act differential rates existed only on the ground of sex, the higher (or highest) rate is the floor on commencement of the Act |
| Section 5 Recruitment Discrimination | No employer shall, in recruitment for the same work or in conditions of service such as promotions, training, or transfer, discriminate against women |
| Institutional Architecture | |
| Section 6 Advisory Committee | Constituted by appropriate government to advise on increasing employment opportunities for women, with five women and five men members |
| Section 7 Authority | Authority appointed for hearing and deciding complaints of contravention and claims for non-payment of equal remuneration, with civil court powers |
| Section 10 Penalties | Penalties of ₹10,000 to ₹20,000 fine and 3 months to 1 year imprisonment for first offence; up to 2 years imprisonment for subsequent offences |
| Same Work Test and Case Law | |
| Skill Test | Comparison of qualifications, training, and experience required for the work performed by men and women workers |
| Effort Test | Comparison of physical and mental exertion required, with contemporary application resisting historical biases against women's work |
| Responsibility Test | Comparison of accountability for outcomes, supervision of others, custody of resources, and other responsibility-bearing aspects |
| Working Conditions Test | Comparison of environment in which work is performed including temperature, hazard exposure, hours, location, and similar factors |
| Mackinnon Mackenzie v. D'Costa (1987) | Leading Indian authority applying the same-work test broadly, holding female stenographers entitled to equal pay despite differences in assigned work |
| Air India v. Nergesh Meerza (1981) | Supreme Court considering service conditions of air hostesses, illustrating broader equality jurisprudence informing the Equal Remuneration Act |
| Code Reform and Wider Framework | |
| Code on Wages, 2019 Integration | Code on Wages, 2019 preserves substantive equal remuneration framework with integration into broader wage code and enhanced penalties |
| Broader Gender Equality Framework | Includes Maternity Benefit Act, 1961, Sexual Harassment Act, 2013, Companies Act, 2013 woman director provisions, BRSR framework, and CEDAW obligations |