Equal Remuneration Act, 1976

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Introduction

The Equal Remuneration Act, 1976 is an important legislation in India that prohibits discrimination in terms of remuneration on the grounds of gender. It means the Act ensures equal pay for men and women for the same or similar work. The Equal Remuneration Act of 1976 was enacted by the Indian Parliament on February 11, 1976, with an aim “to provide for the payment of equal remuneration to men and women workers and for the prevention of discrimination, on the ground of sex, against women in the matter in the matter of employment and for matters connected therewith or incidental thereto.” It extends to the whole of India including all establishments either public or private sectors (employing ten or more persons). By promoting gender equality in remuneration, the act seeks to establish fair and just working conditions for all employees, regardless of their gender. Also, it prohibits discrimination made by employers against women in matters of recruitment, training, promotion, and transfers. In this article, we will delve into the key provisions and significance of the Act.

Key Provisions of the Equal Remuneration Act, 1976

Section 3: Act to have overriding effect

The Equal Remuneration Act, 1976, establishes the supremacy and overriding effect of the provisions of the Act over any other law, agreement, or contract that may be in conflict with its principles. This is defined efficiently in Section 3 of the Act, “The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law or in the terms of any award, agreement or contract of service, whether made before or after the commencement of this Act, or in any instrument having effect under any law for the time being in force.” Through this, it demonstrates that the goal of eliminating gender-based wage discrimination takes precedence over any conflicting provisions in other laws or contractual agreements. By having an overriding effect, Section 3 provides a robust legal mechanism to safeguard the principle of equal remuneration.  

Section 4: Duty of employer to pay equal remuneration to men and women workers for same work or work of a similar nature

The Act mandates that men and women should receive equal remuneration for work that requires similar skill, effort, and responsibility performed under similar working conditions. It ensures that gender-based wage discrimination is eliminated. Section 4 of the Act also ensures that no employer can reduce the rate of remuneration of any worker to comply with the rule to provide equal wages to both men and women for the same or similar work. Moreover, Section 4(3) states that “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 of 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 such commencement, to such men and women workers…” The main reason for the enactment of this Act is the unfair treatment of women in the workplace and the increase in cases where women are paid lower salaries than men.

Section 5: No discrimination to be made while recruiting men and women workers

The Act prohibits employers from discriminating against women in matters of recruitment, employment, and promotion from the date of commencement of the Act. It ensures that women have equal opportunities for growth and advancement in their careers. Along with this, the Act also provides an exception where it prohibits the employment of women workers in hazardous places. Moreover, the provisions of this Act do not affect any priority or reservation for ex-servicemen, Scheduled Castes or Scheduled Tribes, retrenched employees, or any other category of persons for recruiting employees. 

Section 6: Advisory Committee

It pertains to the establishment of an Advisory Committee that plays a significant role in advising the government on matters related to the implementation and enforcement of the Act. The Advisory Committee ensures to provide employment opportunities for women and advises the government regarding “which women may be employed in such establishments or employments as the central government may, by notification, specify in this behalf.” It should not include less than ten persons of which one-half should be women. The persons will be nominated by the appropriate government. The definition of ‘appropriate government’ under the Equal Remuneration Act is defined in Section 2(a). It states that appropriate government means, “(i) in relation to any employment carried on by or under the authority of the Central Government or a railway administration, or in relation to a banking company, a mine, oilfield or major port or any corporation established by or under a Central Act, the Central Government, and (ii) in relation to any other employment, the State Government.” Also, certain factors make a difference in the decision regarding employment opportunities for women and are considered by the Committee to bring the appropriate norm into effect. The factors are listed as follows:

• The number of women employed in the concerned establishment or employment,
• The nature of work,
• Hours of work,
• Suitability of women for employment, and
• The need for providing increasing employment opportunities for women.

Under the provisions of this Act, the Advisory Committee has the power to regulate its own procedure. Furthermore, after considering the advice from the Advisory Committee the appropriate government may issue directions for implementing the same in respect of employment of women workers.

Section 7: Power of appropriate Government to appoint authorities for hearing and deciding claims and complaints

Section 7 empowers employees who believe they have been discriminated against to file complaints with the appropriate government regarding “...claims arising out of non-payment of equal wages at equal rates to men and women workers for the same work or work of a similar nature”. The section outlines the procedure for filing complaints and the powers of the authorities to hear and decide on such complaints. It provides a mechanism for employees to seek redressal in cases of violations of the Act. Section 7(6) of the Act states that any employee aggrieved of any order made by the authority can prefer an appeal to such authority within thirty days from the date of the order. After hearing the appeal, “the authority may confirm, modify or reverse the order appealed against and no further appeal shall lie against the order made by such authority.” 

Section 8: Duty of employers to maintain registers

It imposes a duty on employers to maintain registers containing prescribed information, including the names and addresses of employees, the work performed by them, and the remuneration paid to them. This provision promotes transparency and accountability in remuneration practices, enabling the effective implementation and enforcement of the Act.

Section 9: Inspectors

This Section empowers the government to appoint inspectors who have the authority to enter and inspect establishments covered under the Act. As per Section 9(2), every inspector appointed for the purpose of investigation should be a public servant “within the meaning of Section 21 of the Indian Penal Code,” where public servant is divided into 12 different categories. Some of the powers given to the Inspector include:

• Enter at any reasonable time in any building, factory, premises, or vessel,
• May call for any employer or official to produce any register or other documents,
• May take the evidence of any person on the spot or at any other time.
• Examine the employer or any other person in charge of the establishment under investigation.
• Can make copies of documents maintained on the basis of the establishment under this Act.

Section 10: Penalties

Section 10 stipulates penalties for non-compliance with the provisions of the Act. This section serves as a deterrent against discriminatory practices and reinforces the importance of adhering to equal remuneration principles. As per Section 10(1) of the Act, after the commencement of this Act, if an employer; fails to maintain any register, fails to produce any register or other document, refuses to give any evidence or prevents any other person from doing so, or refuses to give any information is punishable with an imprisonment extending to one month or with a fine extending to 10,000 rupees or with both. According to Section 10(2), after the commencement of this Act, if an employer; recruits anyone in contravention of the provisions of the Act, makes payment at unequal rates for the same work to men and women workers, makes any gender-based discrimination, or fails to follow any direction made by the appropriate government is punishable with imprisonment for a term not less than 3 months but which may extend to one year or with fine not less than 10,000 rupees but which may extend to 20,000 rupees or with both. In case, the offence is performed more than once then the imprisonment term will accordingly increase.

Section 11: Offences by companies

This Section addresses the offences committed by companies under the Act. It states that if a company is found guilty of any offense under the Equal Remuneration Act, 1976, it will be held liable and may be prosecuted accordingly. This provision emphasizes that not only individuals but also the companies themselves can be held accountable for violations of the Act. Moreover, Section 11 illustrates that holds directors, managers, secretaries, or other officers of the company responsible for offenses committed by the company. This means that individuals who hold positions of authority and decision-making within the company can be held personally liable for the company's contravention of the Act. If a company is found guilty, it may be subject to penalties, which can include fines. The specific penalties will be determined by the court based on the nature and severity of the offense. Despite this, a due diligence defence is provided for directors, managers, secretaries, or other officers of the company. It demonstrates that if they can prove that the offense was committed without their knowledge, consent, or connivance and that they had exercised due diligence to prevent the contravention, they may be exempted from liability.  

Section 12: Cognizance and trial of offences

This Section of the Act was amended with the Equal Remuneration (Amendment) Act, 1987. Section 12(1) states that “No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act.” It means a Metropolitan Magistrate or a Judicial Magistrate of the first class will be in the lowest position of authority for viewing the case. Further, Section 12(2) illustrates that “No court shall take cognizance of an offence punishable under this Act except upon (a) its own knowledge or upon a complaint made by the appropriate Government or an officer authorized by it in this behalf, or (b) a complaint made by the person aggrieved by the offence or by any recognized welfare institution or organization.” It means that the Court can take cognizance of an offence only on its own knowledge, a complaint made by an appropriate government, authorized officer, aggrieved person, or by any recognized welfare institution. No other complaints are entertained by the Court as per the provision of this Act.

Section 13: Power to make rules

It gives power to the Central Government to make rules for carrying out the provisions of the Equal Remuneration Act, 1976. These rules can be regarding the documents or registers to be maintained, how complaints shall be made, or any other matter. Further, the changes, when accepted by each House of Parliament, are implemented.  

Section 14: Power of Central Government to give directions

Section 14 empowers the Central Government to give directions to a State Government regarding the execution of the Act and the same has to be followed by the State Government appropriately.  

Section 15: Act not to apply in certain special cases

This Section outlines specific circumstances in which the provisions of the Act may not be applicable. The Section reads as follows:

“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.”

Section 16: Power to make declaration

It states that “Where the appropriate Government is, on a consideration of all the circumstances of the case, satisfied that the differences in regard to the remuneration, or a particular species of remuneration, of men and women workers in any establishment or employment is based on a factor other than sex, it may, by notification, make a declaration to that effect, and any act of the employer attributable to such a difference shall not be deemed to be a contravention of any provision of this Act.” It means that there is an exemption that allows employers to discriminate on any grounds other than sex. However, the employer will only be exempt from prosecution if the government thoroughly examines the case and deems it appropriate to grant such an exemption. 

Section 17: Power to Remove Difficulties

It empowers the Central Government to make any order, consistent with the provisions of this Act, which are necessary for removing the difficulty. 

Section 18: Repeal and Saving

Section 18 states that the act, The Equal Remuneration Ordinance, 1975, governing before the implementation of the present Act, The Equal Remuneration Act, 1976, stands repealed. Any action taken under the repealed Ordinance (The Equal Remuneration Ordinance, 1975) will be deemed to have been taken under the corresponding provisions of the Equal Remuneration Act, 1976.

Conclusion

The Equal Remuneration Act of 1976 has been a significant milestone in the journey towards gender equality in the workplace. By addressing gender-based wage discrimination, the Act has paved the way for a more inclusive and equitable working environment. Through its provisions and sections, it prohibits discrimination in remuneration based on gender and promotes the principle of equal pay for equal work. However, challenges such as the persistence of societal biases and the need for better enforcement mechanisms remain. It is crucial for organizations, policymakers, and society at large to continue their efforts to eliminate gender-based wage disparities and promote equal opportunities for all employees, irrespective of their gender. By upholding the principles of the Act and fostering a culture of fairness, organizations, and society can create a more equitable future for all employees.