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Equal Pay for Equal Work

PROJECT SUBMISSION
LABOR AND INDUSTRIAL LAW
TOPIC: “EQUAL PAY FOR EQUAL WORK”
Submitted by
Abhishek Jhingonia
Group -: B
B.B.A. LL.B. -: (2015-2020)
Of
Symbiosis Law School, NOIDA
Symbiosis International (Deemed University)
In
August, 2018
Under the guidance of
Mr. Purvish Malkan
Symbiosis Law School, NOIDA

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Equal Pay for Equal Work

CERTIFICATE

The project entitled “Equal Pay for Equal Work” is submitted to the Symbiosis Law
School, NOIDA for Labor and Industrial Law as part of Internal Assessment is based on my
original work carried out under the guidance of Prof. Purvish Malkan from July, 2019 to
August, 2019. The Research work has not been submitted elsewhere for award of any degree.

The material borrowed from other sources and incorporated in the research paper has been
duly acknowledged.

I understand that I myself would be held responsible and accountable for plagiarism, if any,
detected later on.

Signature of the Candidate: Sd/-

Date: 10.08.2019

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Equal Pay for Equal Work

ACKNOWLEDGEMENT

I wish to express my sincere gratitude to Mr. Purvish Malkhan for providing me an opportunity
to complete my research project. I also sincerely thank the officials and staff members of my
college who rendered their help during the period of my project work, for their kind co-operation
to the completion of my project work.

Last but not least I wish to avail myself of this opportunity, to express a sense of gratitude and
love to my beloved parents and friends for their annual support, strength, and help for
everything.

Abhishek Jhingonia

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Equal Pay for Equal Work

INDEX

S. No. TOPIC P. No.

1. Introduction 4

2. Whether New Horizon Security Services Pvt. Ltd is an 5


Industry?

3. Whether Guards are Workmen? 6

5. Objective 7

6. Relevant Provisions 8-11

7. Analysis 12-13

8. Conclusion 13

9. Bibliography 14

10. Questionnaire ____

11. Summary of Response ____

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Equal Pay for Equal Work

INTRODUCTION:

Wages means the remuneration paid for the service of labour in production. They are payments
made by the employers for the efforts put in by the workers in production. From the point of
view of the laissez faire policy, wages may be defined as the contract incomes, fixed or settled
between the employers and the employees, where the latter sell labour for some money or goods
or both.

In the ancient agrarian society, the laborers were rewarded fair. However, during the middle
ages, due to the emergence of feudal system, the condition of labour deteriorated. Most of the
agricultural land was owned by feudal lords. Landless laborer’s, known as serf, were force to
work for the land-owning nobility in order to gain a livelihood.

But the real problem for laborers started with the Industrial Revolution in Britain. They lost their
freedom to work individually with tools. They were now to work in production facilities with
machines where they were made to work for unduly long hours without any interval for the rest,
for extremely low wages, in unhygienic working conditions.

Further, the laissez-faire doctrine prevailed in the state, in the beginning of modern
industrialization, advocated for the non-interference of the State in the economic affairs of the
State enabled the employers to employ the workers on such terms of employment, which
favoured the employers to the great disadvantage to the industrial worker.

Finally, in 1881 a legislation was made to regulating the conditions of labour in factories, the
Factory Act, 1881. But the act did not protect the children and there was no regulation for
women in the act. Dissatisfaction, this gave rise to an agitation for the amendment of the Act.
After inquiry by the Bombay Factory Commission of 1884 and the Factory Labour Commission
of 1890, an amending Act was passed in 1891.

The act was then amended regularly. Finally, it was adopted by the Constitution Assembly of
India with due amendments. Considering the women’s movement all over the world and in
reference to the other Constitutional values, the provision for ‘equal pay for equal work’ was
incorporated in the Act. The Constitutional values in favour of the doctrine and the doctrine’s
evolution in India is discussed in detail in the project under the head, ‘Legal Background’.

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Equal Pay for Equal Work

Black Dictionary of law, fifth edition defined the word ‘equal’, it means like, uniform on the
same place or level with respect to efficiency, worth, value, amount or rights. ‘Equal pay’ means
principle of non-discrimination in compensation for work. It states that they should be based on
the kind and quality of work done and not according to the worth, value, amount or rights. Equal
pay means principle of non-discrimination in compensation for work. It states that they should
be based on the kind and quality of work done and not according to the non-discrimination in
compensation for work.

The term “equal pay for equal work” has its own historical significance. Historically speaking,
equal pay for work of equal value has been a slogan of women’s movement. Equal pay laws,
therefore, usually deal with sex-based discrimination in the pay scales of men and women doing
the same work or equal work in the same organization.

Also, the ‘Equal Pay for Equal Work’ principle is reflected in various International instruments.
The first International Treaty i.e. the Charter of the United Nations Organization expressed in its
preamble a faith in “the dignity and worth of the human person” as well as “in the equal right of
men and women”. It declared its firm determination to eliminate all forms of discrimination in
order “to promote social progress and better standards of life”. Also, the International
LabourOrganisation recognizes it as one of its objectives. Further, it is also embodied in
International Labour Organisation Equal Remuneration Convention, 1951 (No. 100) which
requires each member to ensure the application of the principle of equal remuneration for men
and women worker for the work of equal value.

The industry chosen in this project for carrying out the empirical research New Horizon Security
Services Pvt. Ltd. This Company is managed by professionals having vast experiences in
multiple segments of service industry, facilities management and the other utility services. The
New Horizon Security Services Pvt. Ltd, is fast growing organization in the field of Integrated
Facilities Management Services, Contractual Manpower, HR outsourcing & Payroll
management, Real Estate consultancy and administration management services.

The authors have targeted ‘security guard service department’ for carrying out the empirical
research. In the project, the authors will initially explain whether New Horizon Security Services
Pvt. Ltd. is an ‘industry’ or not as per Section 2 (j) of the Industrial Disputes Act, 1947 and the
purpose for choosing ‘security guard service’ as targeted department. Then authors will explain

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Equal Pay for Equal Work

whether the security guards come within the ambit of ‘workman’ as per Section 2 (s) of the
Industrial Disputes Act, 1947. Further, the project would be elaborated on Article 14 (Intelligible
Differentia), 39 of the Constitution of India, 1950,Maternity Benefit Act, 1961 and Equal
Remuneration Act, 1976. Relevance and importance of these provisions for the project would be
elaborated. Also, short analysis along with graphical representation of each question would be
highlighted. Towards the end of the project, detailed and separate analysis of all the three authors
along with a combined conclusion would be discussed.

WHETHER NEW HORIZON SECURITY SERVICES PVT. LTD. IS AN


INDUSTRY?

In order to see whether New Horizon Security Services Pvt. Ltd. is an industry or not, the authors
have applied the triple test laid down in the case of Bangalore Water Supply v. Rajappa.1 The 3-
test formula laid down in order to identify ‘whether an institution is an industry or not’ is as
follows:

1. There should be ‘systematic and organized activity’ being carried out in the organization.
2. There should exist ‘cooperation between employer and employee’.
3. The ‘work should be carried out for people at large’and not for a specific class of
persons.

By applying the 3-test formula one by one in order to prove that the organization which authors
have chosen i.e. New Horizon Security Services Pvt. Ltd. is an industry:

1. There should be ‘systematic and organized activity’ being carried out in the organization.

In the organization of New Horizon Security Services Pvt. Ltd., there are several kind of services
provided like- security guards, investigation, housekeeping, horticulture, pest control, facade
cleaning. We have targeted security guard service provided by New Horizon Security Services
Pvt. Ltd. for guarding ‘Habitat Centre’. As per BWS judgment, “Activity which is carried out by
the organization is carried out in the manner in which trade and business is generally organized
or arranged would be called as systematic and organized activity.” In New Horizon Security
Services Pvt. Ltd., the activity of providing varied services is carried out in the manner of trade

1
1978 SCR (3) 207

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Equal Pay for Equal Work

and business. It is a kind of trade and business that the organization is carrying out. So, as per the
pre-requisite of ‘systematic and organized activity’, the trade carried out by New Horizon
Security Services Pvt. Ltd. comes within this ambit.

2. There should exist ‘cooperation between employer and employee’.

As per BWS judgment, cooperation between employer and employee should be such that it is
impossible for the business to be carried out without cooperation amongst the two. Also, the end
product should be regarded as fruit of cooperation between the employer and employee. As per
this requisite, it is impossible for New Horizon Security Services Pvt. Ltd. to function as a
service provider without cooperation between the employer and employee. Also, the fruits of
these services is achieved only after proper coordination between the employers and employees
of New Horizon Security Services Pvt. Ltd. The authors saw coordination between the
supervisors and guards for providing guarding services like everyday briefing of guards by the
supervisors fifteen minutes prior to initiating their duties, proper redressal sessions held be the
supervisor for listening to the guards and their issues, timely payment of wages etc.

Hence, second pre-requisite for showing cooperation between employer and employee is
satisfied.

3. The ‘work should be carried out for people at large’ and not for a specific class of
persons.

As per BWS judgment work to be carried out for people at large means that the benefit of work
should not be confined to small section of people but to people at large. There are certain
industries which target just a community of people. However, the guarding services provided by
New Horizon Security Services Pvt. Ltd. is for people at large. Every person who needs guarding
service by New Horizon Security Services Pvt. Ltd. notwithstanding any specific community to
which he/ she belongs is provided so- example- for people visiting Habitat Centre, Park View
Hotel, Radisson Hotel, Max Hospital etc.

Hence, third pre-requisite for showing that the organization provides product or service for
people at large is satisfied.

Section 2 (j) of Industrial Disputes Act, 1947 is laid down as,

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Equal Pay for Equal Work

“Industry means any business, trade, undertaking, manufacture or calling of employers and
includes any calling, service, employment, handicraft, or industrial occupation or avocation of
workmen.”2

From the above stated definition in S. 2(j) of the Act and the abovementioned tests, the criteria
for establishing an institution as ‘industry’ is limited to those activities systematically or
habitually undertaken on commercial lines by private entrepreneurs with the cooperation of
employees for the production or distribution of goods or for the rendering of material services to
the community at large or a part of such community. From the above stated definition, it is clear
that New Horizon Security Services Pvt. Ltd. establishes the requisites of being called as
‘industry’.

WHETHER SECURITY GUARDS ARE WORKMEN?


As per Section 2 (s) of Industrial Disputes Act, 1947, workman means,
“any person (including an apprentice) employed in any industry to do any manual, unskilled,
skilled, technical, operational, clerical or supervisory work for hire or reward, whether the
terms of employment be express or implied, and for the purposes of any proceeding under this
Act in relation to an industrial dispute, includes any such person who has been dismissed,
discharged or retrenched in connection with, or as a consequence of, that dispute, or whose
dismissal, discharge or retrenchment has led to that dispute, but does not include any such
person-
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of
1950), or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or as an officer or other employee of a prison, or\
(iii) who is employed mainly in a managerial or administrative capacity, or
(iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand
six hundred rupees per mensem or exercises, either by the nature of the duties attached
to the office or by reason of the powers vested in him, functions mainly of a managerial
nature.”3

2
Bare act industrial disputes 1947
https://mahakamgar.maharashtra.gov.in/images/pdf/industrial-disputes-act-1947.pdf
3
Bare act industrial disputes 1947

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Equal Pay for Equal Work

As per BWS judgment workmen means,


“They contribute labor in return for wages and conditions of service. For them the charitable
employer is exactly like a commercial- minded employer. Both exact hard work, both pay similar
wages, both treat them as human machine cogs and nothing more.”4
So, as per the above definition in statute and BWS case, the security guards of New Horizon
Security Services Pvt. Ltd. come within the ambit of definition of ‘workmen’. They are
employed in industry New Horizon Security Services Pvt. Ltd. to do manual and skilled work of
guarding various people who avail the services of New Horizon Security Services Pvt. Ltd. They
contribute their labor by guarding for 12 hours (male guards) (10 A.M. to 10 P.M.) and 10 hours
(female guards)(10 A.M. to 8 P.M.) in return for wages of Rs. 10, 500/- (Rupees Ten Thousand
Five Hundred Only) and Rs. 350/- (Rupees Three Hundred and Fifty) for working overtime i.e.
doing duty on behalf of the absentee as continuing shift (10 P.M. to 10 A.M.).

OBJECTIVE

The objective of choosing targeted audience as ‘security guards’ in the project is that, the authors
are trying to show intelligible differentia for violation of the principle- ‘Equal Pay for Equal
Work’. This lot of workers are mostly under-privileged and because of lack of education, they
are not able to raise their voices for their rights. By targeting this group, the authors will show
how there is violation of rights and opportunities available to male and female guards and in
what manner they lag behind.

The authors have framed objective and subjective type of questions not only in order to get
affirmative and negative answers at a go, but also realize their grievances by hearing their
complaints for subjective answers. The authors have framed questions in English language, two
authors were engaged in translating the same in Hindi and asking the same to guards. The third
author was engaged in translating the replies in English and accordingly filling the questionnaire.
The authors have also managed to click photographs of four male guards and three female
guards. Since, the fourth female guard was a Muslim lady, she was hesitant in getting clicked
and so, the authors could not force her to be clicked.

https://mahakamgar.maharashtra.gov.in/images/pdf/industrial-disputes-act-1947.pdf
4
Supra Note 1.

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Equal Pay for Equal Work

RELEVANT PROVISIONS:
Article 14 Men & women to have equal rights &
opportunities in the political, economic & social
spheres.

Article 15(1) Prohibits discrimination again st any citizen on the


grounds of religion, race, caste, sex etc.

Article 15(3) Special provision enabling the State to make


affirmative discriminations in favour of women.

Article 16 Equality of opportunities in matter of public


appointments for all citizens.

Article 39(a) The State shall direct its policy towards securing
all citizens men and women, equally, the right to
means of livelihood.

Article 39(d) Equal pay for equal work for both men and
women

Article 42 The State to make provision for ensuring just and


humane conditions of work and maternity relief.

Article 51 (A) (e) To renounce the practices derogatory to the


dignity of women.

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Equal Pay for Equal Work

EQUAL REMUNERATION ACT, 1976

Section 2 (h) of the act states as follows:

“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.”

The aforementioned section describes in detail the meaning of ‘same or similar work’. The
authors in the analysis will try to show the difference in the work which from the very first
instance seems to be similar, but, after applying the essentials as per the section seems different.

Section 4 of the act states as follows:

“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 favorable 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 only 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:

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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.”

The above stated section says that if there are similar working conditions for male and female
workers, they should be paid equally. In the analysis of the project, authors will try to show
whether there is similar working condition or not and further, whether they are paid accordingly
for it or not.

AUTHOR’S ANALYSIS (ABHISHEK JHINGONIA-15010224061)

As per the survey conducted it’s’ shown that “Equal Pay for Equal Work” is not followed in
the Organization. discrimination has been shown towards males when compared to females.
Different facilities are provided to females in compare to males like- Less Working Hours,
Crutch Facility, Higher salary and Proper rest room and sanitation facilities. They are being
offered the work which needs less amount of Energy and time as we know females are weaker
than males in different aspects. In health because they always suffer from Deficiency of
Vitamins in them as they need to Handle both Family as well as job. it’s create problem in their
performances but after performing less than Males they are getting more Privileged. So, Males
should also be given equal rights like Females. This should be based on the kind and quality of
work done and not according to the non-discrimination in compensation for work.

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Equal Pay for Equal Work

Bibliography
1. Agarwala, R.N. 2013. Informal labour, formal politics, and dignified discontent in India
(New York, Cambridge University Press).

2. Badigannavar, V.; Kelly, J. 2012. “Do labour laws protect labour in India? Union
experiences of workplace employment regulations in Maharashtra, India”, in Industrial
Law Journal, Vol. 41, No. 4, pp. 439–470.

3. Bhattacherjee, D. 2001. ‘The evolution of Indian industrial relations: A comparative


perspective’, in Industrial Relations Journal, Vol. 32, No. 3, pp. 244–263.

4. Blau, F.D.; Kahn, L.M. 2003. “Understanding differences in the gender pay gap”, in
Journal of Labor Economics, Vol. 21, No. 1, pp. 106–144.

5. Chandrasekhar, C.P.; Ghosh, J. 2002. The market that failed: A decade of liberal
economic reforms in India (New Delhi, Left Word Books).

6. Das, M.B.; Dutta, P. 2007. Does caste matter for wages in the Indian labour market?
Working Paper (Washington, DC, Social and Human Development Unit, World Bank).

7. Fiszbein, A. 1992. Do workers in the informal sector benefit from cuts in the minimum
wage?(Washington, DC, World Bank).

8. Ghosh, B. 2008. “Economic reforms and trade unionism in India: A macro view”, in
Indian Journal of Industrial Relations, Vol. 43, No. 3, pp. 355–384.

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9. Heinze, A.; Wolf, E. 2010. “The intra-firm gender wage gap: A new view on wage
differentials based on linked employer-employee data”, in Journal of Population
Economics, Vol. 23, No. 3, pp. 851–879.

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