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Will The New Labour Code On Wages Fix The Gender Pay Gap?

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The World Economic Forum (WEF) said that it would take 100 years for women to be paid as much as men. The WEF Global Gender Gap Report 2020 ranked India 112th out of 153 countries, four spots lower than in 2018 when we were at the 108th position.

The Indian Constitution under Article 14 provides for equality before the law, prevention of discrimination on the grounds of sex under Article 15, and equality of opportunity in public sector employment under Article 16. Further, Article 39, i.e. under the chapter of Directive Principles of State Policy contains principles of policy to be followed by the State where clause (d) provides for equal pay for equal work for both men and women.

Here, it is pertinent to note the meaning of the term “gender pay gap”, which can be described as a measurable indicator of inequality that is the difference in average gross hourly earnings between women and men.

The new Code on Wages, 2019, is one of the four Codes set to reform India’s numerous and complex labour laws. Thus, it is important to understand what the new Code means for India’s pay equity, whether any changes have been made and what pitfalls are likely to arise.

Understanding the new code on wages in the context of pay Equity

Woman working on laptop in her office
The provision under Code on Wages has replaced men and women with gender.

In Randhir Singh v. Union of India 1982 SCR (3) 298, the Supreme Court held that the doctrine of “equal pay for equal work” is not an abstract but a substantive one. Although it is not a fundamental right, it is a constitutional goal.

The Code on Wages, 2019, is an Act that seeks to amend and consolidate the laws relating to wages and bonus, connected and incidental matters to these issues and absorbs four central legislations — the Payment of Wages Act, 1936, the Minimum Wages Act, 1948, the Payment of Bonus Act, 1965, and the Equal Remuneration Act, 1976 (ERA). Section 3 under Chapter I of the Code on Wages, 2019, provides for the prohibition of discrimination on the grounds of gender, which reads as follows:

(1) There shall be no discrimination in an establishment or any unit thereof among employees on the ground of gender in matters relating to wages by the same employer, in respect of the same work or work of a similar nature done by any employee.

(2) No employer shall,

(i) for the purposes of complying with the provisions of sub-section (1), reduce the rate of wages of any employee; and

(ii) make any discrimination on the ground of sex while recruiting any employee for the same work or work of similar nature and in the conditions of employment, except where the employment of women in such work is prohibited or restricted by or under any law for the time being in force.

A welcome change that this section makes, unlike the erstwhile Equal Remuneration Act that specified the binary of men and women, the provision under Code on Wages has replaced “men and women” with “gender”, thus including other genders, i.e. transgender persons within its ambit as well.

Drawbacks of the Code

Unfortunately, the Code does not define the term “discrimination” and doesn’t delve into the meaning of the term. With respect to the law and discrimination, it is relevant to understand the two main types of discrimination, namely direct and indirect discrimination.

  • Direct discrimination occurs when a person is treated unfavourably or unfairly because of an intrinsic personal characteristic protected by law, such as sex or gender.
  • Indirect discrimination occurs when a rule, policy or mandate that is seemingly equal and applies to everyone in the same way, but in reality disadvantages a particular individual/group of individuals because of a personal attribute of such individual/group.

The workplace is a space where discrimination of both types is amply possible. By not delving into the meaning of discrimination and how women can face discrimination at the workplace the Code is decidedly narrow in its approach.

Principle of same work or work of similar Nature

Senior woman washing dishes in the kitchen
Historically, women’s work has been consistently undervalued by institutions like the family, governments, and now, also corporates.

The standard for determining equal pay for equal work in Indian law right from the ERA to the Code on Wages has been “same work or work of similar nature”. Unfortunately, the judiciary has interpreted it in a fairly narrow manner.

As per Section 2(h) of the ERA, same work or work of similar nature is defined as, “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.”

The problem with adopting this standard is that it cannot hope to solve the problem of pay inequity. The first step towards pay equity would be to work against the unequal way for equal work constantly. That said, a lot more work would be required to solve deep-rooted issues like segregation of work based on gender and undervaluing women’s work just because women do them.

If the law does not even attempt to tackle these larger issues, how can we hope to achieve the ultimate goal of pay equity?

Undervaluation of women’s Work

Historically, women’s work has been consistently undervalued by institutions like the family, governments, and now, also corporates. Extensive job segregation has led to the feminisation of certain professions. Undervaluation of women’s work is one of the most prominent contributing factors to the gender pay gap.

Women’s work is often undervalued because of different reasons, mainly because it has traditionally been done in the home and has been unpaid, as women remain primary caregivers and are responsible for the majority of domestic work.

Undervaluing of women’s work is directly related to occupational segregation, women bearing the disproportionate burden of unpaid care work (at home), stereotypes about the work done by women such as the 5 C’s namely cooking/catering, cleaning, clerical work, cashier (receptionist) and childcare. Furthermore, there are gender normative assumptions about work that women are “naturally good at”, examples of which include cooking and cleaning that reinforce sexist stereotypes.

Another major factor contributing to the gender pay gap is outdated assumptions about the value of women’s paid work as only “pin money” rather than money that the family used for sustenance.

Pin money is supplementary to the main source of income (earned by the man) and is essentially not the breadwinner’s income. Thus, the assumption that women’s work is not the primary source of income, but merely supplementary, better payment is not a requirement. Such old and downright discriminatory stereotypes are unfortunately deeply entrenched and contribute to the gender pay gap.

Principle of work of equal Value

A female worker has piled coal on her head while she is
The concept of work of equal value determines that the comparison should not be limited only to the content of the work, but that of other job requirements, such as the level of skill, effort and responsibility, and working conditions are compared as well.

The principle of equal pay for equal work is not the same as equal pay for work of equal value. The principle of equal pay for work of equal value goes beyond the same work or work of similar nature principle. It engages with a particular aspect of workplace discrimination, that is, the undervaluation of work ordinarily done by a disadvantaged group. Due to existing systemic hierarchies, women are relegated to undervalued, low paid, feminised work.

The concept of work of equal value determines that the comparison should not be limited only to the content of the work, but that of other job requirements, such as the level of skill, effort and responsibility, and working conditions are compared as well. Simply put, the equal pay for equal work principle curbs the implementation of the principle to work undertaken by two persons (usually a man and a woman) in the same area of activity and the same workplace.

However, the concept of equal pay for work of equal value is broader and includes instances where men and women do different work. Whether the work is of equal value is determined through a job evaluation scheme. Thus, work of equal value is not same or similar work, it is not work that is treated as equivalent, but it is work that has equal value when factors such as the effort needed, required skills, decision making involved while working are accounted for. By using this principle, two completely different jobs can be taken and analysed using these parameters.

The U.K.s Equality Act, 2010 provides for the principle of work of equal value and under Section 65(1) of the Act distinguishes between like (same) work, work rated as equivalent, and work of equal value. Section 65(6) elaborates on the meaning of work of equal value to be neither like (same) work or equivalent work, but be equal in terms of efforts, skill and decision making.

Examples of professions held to be of equal value by Courts in the U.K. include a clerical assistant equal to a warehouse operative and a school nursery nurse equal to a local government architectural technician.

This principle is important because of factors mentioned previously, such as occupational segregation and feminisation of certain professions and lower minimum wages in occupations where more women are found working.

The International Labour Organization (ILO) adopted the Equal Remuneration Convention (1951) (No.100) that solidified the principle of equal remuneration for men and women. It was ratified by India in 1958. The Equal Remuneration Convention embraces the principle of “work of equal value” as opposed to that of “same work or work of similar nature”.

Disappointingly, although the Convention was ratified by India when the ERA was enacted, the law did not adopt the principle of work of equal value and rather stuck to the principle of work of similar nature. The same approach and the same principle was unfortunately duplicated in the Code on Wages as well.

Conclusion

The gender pay gap is a huge reality that cannot be bridged easily. It is a complex problem that needs urgent attention. The law lacks both nuance and depth, and with India’s current standing on the Gender Gap Report falls short of the goal of helping to bridge the pay gap.

The subsuming of entire legislation into one section of the Code, the lack of a clear definition of “discrimination” are disappointing factors of the Code. It is also regrettable that the Code did not seek to take a more progressive stand on the issue by adopting the principle of work of equal value and fails to address the issue of pay inequity in India comprehensively. To consolidate labour laws, the State should not lose sight of the importance of the legislations being replaced, many of whom have been hard fought for.

By Avanti Deshpande

About the author: Avanti Deshpande is a penultimate year law student at ILS Law College, Pune. Her main interest areas are human rights, gender laws and international law.

The article was originally published, here.

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An ambassador and trained facilitator under Eco Femme (a social enterprise working towards menstrual health in south India), Sanjina is also an active member of the MHM Collective- India and Menstrual Health Alliance- India. She has conducted Menstrual Health sessions in multiple government schools adopted by Rotary District 3240 as part of their WinS project in rural Bengal. She has also delivered training of trainers on SRHR, gender, sexuality and Menstruation for Tomorrow’s Foundation, Vikramshila Education Resource Society, Nirdhan trust and Micro Finance, Tollygunj Women In Need, Paint It Red in Kolkata.

Now as an MH Fellow with YKA, she’s expanding her impressive scope of work further by launching a campaign to facilitate the process of ensuring better menstrual health and SRH services for women residing in correctional homes in West Bengal. The campaign will entail an independent study to take stalk of the present conditions of MHM in correctional homes across the state and use its findings to build public support and political will to take the necessary action.

Saurabh has been associated with YKA as a user and has consistently been writing on the issue MHM and its intersectionality with other issues in the society. Now as an MHM Fellow with YKA, he’s launched the Right to Period campaign, which aims to ensure proper execution of MHM guidelines in Delhi’s schools.

The long-term aim of the campaign is to develop an open culture where menstruation is not treated as a taboo. The campaign also seeks to hold the schools accountable for their responsibilities as an important component in the implementation of MHM policies by making adequate sanitation infrastructure and knowledge of MHM available in school premises.

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Harshita is a psychologist and works to support people with mental health issues, particularly adolescents who are survivors of violence. Associated with the Azadi Foundation in UP, Harshita became an MHM Fellow with YKA, with the aim of promoting better menstrual health.

Her campaign #MeriMarzi aims to promote menstrual health and wellness, hygiene and facilities for female sex workers in UP. She says, “Knowledge about natural body processes is a very basic human right. And for individuals whose occupation is providing sexual services, it becomes even more important.”

Meri Marzi aims to ensure sensitised, non-discriminatory health workers for the needs of female sex workers in the Suraksha Clinics under the UPSACS (Uttar Pradesh State AIDS Control Society) program by creating more dialogues and garnering public support for the cause of sex workers’ menstrual rights. The campaign will also ensure interventions with sex workers to clear misconceptions around overall hygiene management to ensure that results flow both ways.

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MH Fellow Sabna comes with significant experience working with a range of development issues. A co-founder of Project Sakhi Saheli, which aims to combat period poverty and break menstrual taboos, Sabna has, in the past, worked on the issue of menstruation in urban slums of Delhi with women and adolescent girls. She and her team also released MenstraBook, with menstrastories and organised Menstra Tlk in the Delhi School of Social Work to create more conversations on menstruation.

With YKA MHM Fellow Vineet, Sabna launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society. As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

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A student from Delhi School of Social work, Vineet is a part of Project Sakhi Saheli, an initiative by the students of Delhi school of Social Work to create awareness on Menstrual Health and combat Period Poverty. Along with MHM Action Fellow Sabna, Vineet launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society.

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As a Youth Ki Awaaz Menstrual Health Fellow, Nitisha has started Let’s Talk Period, a campaign to mobilise young people to switch to sustainable period products. She says, “80 lakh women in Delhi use non-biodegradable sanitary products, generate 3000 tonnes of menstrual waste, that takes 500-800 years to decompose; which in turn contributes to the health issues of all menstruators, increased burden of waste management on the city and harmful living environment for all citizens.

Let’s Talk Period aims to change this by

Find out more about her campaign here.

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A former Assistant Secretary with the Ministry of Women and Child Development in West Bengal for three months, Lakshmi Bhavya has been championing the cause of menstrual hygiene in her district. By associating herself with the Lalana Campaign, a holistic menstrual hygiene awareness campaign which is conducted by the Anahat NGO, Lakshmi has been slowly breaking taboos when it comes to periods and menstrual hygiene.

A Gender Rights Activist working with the tribal and marginalized communities in india, Srilekha is a PhD scholar working on understanding body and sexuality among tribal girls, to fill the gaps in research around indigenous women and their stories. Srilekha has worked extensively at the grassroots level with community based organisations, through several advocacy initiatives around Gender, Mental Health, Menstrual Hygiene and Sexual and Reproductive Health Rights (SRHR) for the indigenous in Jharkhand, over the last 6 years.

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A Guwahati-based college student pursuing her Masters in Tata Institute of Social Sciences, Bidisha started the #BleedwithDignity campaign on the technology platform Change.org, demanding that the Government of Assam install
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