Equal Remuneration Act, 1976

Equal Remuneration Act, 1976

DEFINITIONS. –

In this Act, unless the context otherwise requires, – (a) “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;

(b) “commencement of this Act” means, in relation to an establishment or employment, the date on which this Act comes into force in respect of that establishment or employment;

(c) “employer” has the meaning assigned to it in clause (f) of section 2 of the Payment of Gratuity Act, 1972 (39 of 1972);

(d) “man” and “woman” mean male and female human beings, respectively, of any age;

 (e) “notification” means a notification published in the Official Gazette;

 (f) “prescribed” means prescribed by rules made under this Act;

(g) “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;

 (h) “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 woman are not of practical importance in relation to the terms and conditions of employment :

 (i) “worker” means a worker in any establishment or employment in respect of which this Act has come into force;

 (j) words and expressions used in this Act and not defined but defined in the Industrial Disputes Act, 1947 (14 of 1947), shall have the meanings respectively assigned to them in that Act.

Comments

(i) The words “under the authority of” in the definition of “appropriate Government” in section 2(a) means pursuant to the authority. If the firm and its partners were independent contractors, their employment cannot be said to be carried on by or under the authority of Central Government and sanction of Central Government would be invalid and incompetent; K.E. Koshy v. The State, (1987) 71 FJR 548 (Kant).

 (ii) In section 2(h) the expression “same work or work of similar nature” lays stress upon the similarity of skill, effort and responsibility when performed under similar working conditions. The equality of work may vary from institution to institution. It is a matter of proof and not of assumption; State of Madhya Pradesh v. Pramod Bhartiya, 1992 (65) FLR 1991 (SC).

(iii) The question of equal work depends on various factors like responsibility, skill, effort and condition of work; Ashok Kumar Garg v. State of Rajasthan, (1994) 3 SCC 357:1994 SC (L & S) 768: (1994) 27 ATC 200.

(iv) A broad approach should be taken in deciding whether the work is the same or of a similar nature. In doing so the duties actually and generally performed by men and women and not those theoretically possible, should be looked at; Mackinnon Mackenzie and Co. v. Audrey D’ Costa, (1987) 2 SCC 469.

3. ACT TO HAVE OVERRIDING EFFECT. –

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.

Comments

 A settlement arrived at between the management and the employees cannot be a valid ground for effecting discrimination in payment of remuneration between male and female employees performing the same work or work of a similar nature; Mackinnon Mackenzie and Co. v. Audrey D’ Costa, (1987) 2 SCC 469.

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.

(2) No employer shall, for the purpose of complying with the provisions of sub-section (1), reduce the rate of remuneration of any worker.

(3) 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 such commencement, to such men and women workers :

 Provided that nothing in this sub-section shall be deemed to entitle a worker to the revision of the rate of remuneration payable to him or her with reference to the service rendered by him or her before the commencement of this Act.

Comments

(i) The principle of equal pay for equal work is not applicable in professional services; C. Girijambal v. Government of Andhra Pradesh, (1981) 2 SCC 155.

 (ii) An employer cannot claim exemption on the ground of financial incapability from the Equal Remuneration Act, 1976; Mackinnon Mackenzie and Co. v. Audrey D’ Costa, (1987) 2 SCC 469.

 (iii) The proviso to sub-section (3) of section 4 operates only where sub-section (3) is applicable and not elsewhere; Mackinnon Mackenzie and Co. v. Audrey D’ Costa, (1987) 2 SCC 469.

 (iv) The benefit conferred on females under the Act is not absolute and unconditional. Section 16 clearly authorises restrictions regarding remuneration to be paid by the employer if a declaration under it is made by the appropriate Government; Air India v. Nergesh Meerza, (1981) 4 SCC 335.