THE CODE ON WAGES- AN EXAMPLE OF GENDERED DEVALUATION OF WORK?
Updated: Aug 28, 2020
By- Shouraseni Chakraborty, 4th Year Student at National University Of Study And Research In Law, Ranchi
The issue of equality of women in the workplace has been in the hot waters ever since the introduction of the feminist movement in the 20th century. The Government plays a huge role in the shaping of the labour market, be it by the enforcement of the labour laws or protecting the workforce in times of retrenchment, disasters, or pandemics. But the policymakers should now consider another pertinent issue that affects the performance of women at the workplace - issuing gender-neutral laws concerning employment factors.
The perception of women in the workplace has seen a sharp change. In the early twentieth century, women were perceived as the weaker sex, fragile both emotionally and socially than the men, which led to the gender-defined roles at the workplace. Even during the two world wars, the men were seen fighting the wars, and the women tended to the wounded as nurses. During the 1950s, with the emphasis of the ILO’s Convention No. 100 and 111, principles of equal pay for equal work and non-discrimination on several grounds including sex, concerning access to vocational training, access to employment, and terms and conditions of employment came into being respectively.
But the devaluation of women’s work is still prevalent in society. The saddest part of this observation is assisted by the evidentiary research that both men and women hold subconscious biases affecting their decisions and value the work by men more than that of women. The difference is much more conversant in the employment sector, be it concerning the salaries, or the quality of work. The Matilda Effect, which spearheaded the conversation involving devaluation of women scientists’ work, as compared to their male counterparts, is very well seen in the workforce as a whole, especially in the Indian legal scenario.
THE (UN)EQUAL PAY FOR WORK OF EQUAL VALUE
India has taken various steps to implement these principles into the legislative framework. Women in India face an age-old socio-economic threat to their dignity and safety by virtue of the patriarchal set-up of the society. Hence, the Government has come up with legislative remedies to enhance and uplift the position of women in the workplace and ensure equal rights to women in employment contracts. One such enactment is the Equal Remuneration Act 1976 (‘ERA’) which concerns itself with the insurance of the equality in payment of men and women at the workplace. Recently, with the overhaul of the labour laws of the country, this legislation was repealed by the Code on Wages 2019 (‘Code’). Although this could have been an opportunity for the fulfillment of gaps concerning the pay gap in India, it indeed fails to do so.
The Code has some positive sides to it. It moves from the binary concept of men and women, enhancing the need for equal pay to all genders, hence, extending the horizon to the benefit of the transgender people, which the Act failed to do. But, it still falls in certain aspects as it does not attempt annihilating the gender gap. For instance, it just reproduces the words of the Act in requiring the employers to pay equal wages for performing ‘the same work or work of similar nature.’
This phrase has had a history of being narrowly interpreted by the courts. The phrases ‘same work’ and ‘work of similar nature’ have been interpreted interchangeably by the courts. But the courts haven’t holistically or radically compared the two types of work which may differ in their essence, but require skills to be performed. For example, a female teacher in a school of specially-abled and a male engineer involved in mining activity is required to have enhanced skills for the performance of their respective jobs. Both these skills deserve decent pay considering the amount of responsibility, skill, and effort required. Yet, the imagination of the courts in terms of comparative paradox has only been limited to the ‘equal pay’ doctrine.
INFERIORITY TO THE EQUAL REMUNERATION ACT
The Code suffers from significant inferiority to the Act. The Supreme Court was at it’s feminist best in Nargesh Meerza when it held inter-alia that the employment factors of air-hostesses (for women) and air flight pursers (for men) differed vastly. It considered that the difference in the recruitment process and conditions of service were evidentiary enough to hold that these were separate classes of employees and could not be compared, even if they performed the same job. By virtue of the amendment, the Act prohibited discrimination between men and women in relation to conditions of service subsequent to employment such as promotions, training, or transfer. It took into consideration factors like recruitment, terms, conditions, and all other subsequent factors to employment. But the Code only centers around equal pay and is devoid of provisions requiring prevention of discrimination in the conditions of service, thus, proving to be a demotion from the position of protecting against discrimination as offered under the Act.
SUGGESTIVE CONCLUSIONS FOR A FEMINIST FUTURE
India has come a long way in recognising the equal rights of women and upholding their dignity in every phase of life. There has been a massive overhaul in the criminal laws, be it by broadening the definition of rape or by the addition of Section 498A against domestic violence. Similar steps have been taken up to ensure safety and security at the workplace by the introduction of measures like the Vishakha Guidelines and the Maternity Benefit Act.
But a lot more needs to be done. To make the workplace more gender-neutral, the language used in the Code should be changed.
For instance, the Equality Act of the UK should be taken into consideration, which uses the language ‘work of equal value’. The inequality in gender pay is directly attributable to the devaluation of the work of women in a patriarchal set-up. Where job valuation is based on segregation, women are always limited to low paying jobs. But, requiring equal pay for a work of equal value will be detrimental in removing the devaluation of work performed by women, especially in a patriarchal society. This will require them to be paid more for enhanced skill, experience, effort, and responsibility in the same amount as showcased by their male counterparts inter-industrially.
An ‘equal valuation’ of work should be framed in such a way so that the position of women in female-dominated occupations can be compared systematically with that of men employed in discrete, male-dominated occupations with respect to the factors of education, training, and expertise.
 Section 4, The Equal Remuneration Act, 1976; Section 3, The Code on Wages, 2019.
(Disclaimer- The views expressed in this article are those of the authors and do not necessarily reflect the views or policies of Child Rights Centre.)