Review of Laws and Legislative Measures Affecting Women
by National Commission for Women (NCW)

No. 23. The Equal Remuneration Act, 1976


Existing Provisions

Section 5 : No discrimination to be mad while recruiting men and women workers - On and from the commencement of this Act, no employer hall while making recruitment for the same work or work of a similar nature, (or in any condition of service subsequent to recruitment such as promotions, training or transfer), make any discrimination against women except where the employment of women in such work is prohibited or restricted by or under any law for the time being in force - Provided that the provisions of this section shall not affect any priority or reservation for Scheduled caste or Scheduled Tribes, ex-servicemen, retrenched employees or any other class or category of persons in the matter of recruitment to the posts in an establishment of employment.

Section 7 : Power of appropriate Government to appoint authorities for hearing and deciding claims and complaints - i) the appropriate Government may, by notification, appoint such officers, not below the rank of a Labour Officer, as it thinks fit to be the authorities for the purpose of hearing and deciding. a) Complaints with regard to the contravention of any provision of this Act. b) Claims arising out of non-payment of wages at equal rates to men and women or work of a similar nature; and may , by the same or subsequent notification, define the local limits within which each such authority shall exercise its jurisdiction. ii) Every complain or claim ref erred to in sub-section (1) shall be made in such manner as may be prescribed. iii) If any question arises as to whether two or more works are of the same nature or of a similar nature, it shall be decided by the authority appointed under sub-section (1). iv) Where a complain... v) Every authority appointed under sub-section (1) shall have all the powers of a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), for the purpose of taking evidence and of enforcing the attendance of witnesses and compelling the production of documents, and every such authority shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).

Section 10 : Penalties (1) - If after the commencement of this Act, any employer, being required by or under the Act so to do -a)...., b)...., c....., d)..he shall be punishable (with simple imprisonment for a term which may extend to one month or with fine which may extend to ten thousand rupees or with both). ii) ...., iii)....

Section 15 : Act not to apply to certain special cases - Nothing in this Act shall apply - a) to cases affecting the terms and conditions of a women's employment in complying with the requirements of any law giving special treatment to women, or b) to nay 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.

Suggested Amendments by NCW Section 5: For the words, 'except where the employment of women in such work is prohibited or restricted by or under any law for the time being in force' following words will be substituted - 'except where the employment of women in such work is likely to physically or psychologically affect her'.

This section will read as - 'On and from the commencement of this Act, no employer shall while making recruitment for the same work or work of a similar nature, (or in any condition of service subsequent to recruitment such as promotions, training or transfer), take any discrimination against women 'except where the employment of women in such work is likely to physically or psychologically affect her'.

Section 7 Sub - section (1): For the words - 'the appropriate Government may by notification, such officers, not below the rank of a Labour Officer' - the following words shall be substituted 'The appropriate Government may, by notification, appoint women officers having experience of not less than 5 years in Labour Practice.'

This section will read as - (1) 'The appropriate Government may, by notification, appoint women officers having experience of not less than 5 years in Labour Practice' as it thinks fit to be the authorities for the purpose of having and deciding -..., ..... For sub-section (2) following will be substituted - 'The complain or claim referred to in sub-section (1) can be taken cognizance either suo -moto by the officers appointed under Section 7(1) or at the instance of voluntary agencies or person aggrieved in such manner as may be prescribed'. Note: Though, the adjudicatory authority has been provided power under Section 7(5) of the Civil Court for the purpose of taking evidence and enforcing attendance of witness and compelling the production of documents. But he adjudicatory authority has not been provided any power to enforce its order under the Act. For any adjudicatory authority to b effective, it has to be provided sufficient teeth. It is necessary for proper and effective functioning of the adjudicatory authority that it is provided power of enforcement of its order and in case of failure by the employer, then it should have power to impose penalty.

Section 10 : After sub-section (3) a mew sib-section (4) shall be added - 'where an employer or a person against whom a complaint is made falls or omits to comply with any order made by the office under Section 7(1), such employer or person shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to one year, or with fine which shall not be less than Rs.10,000/- but which may extend to Rs.20,000/- or with both. Provided that the officer it satisfied that the circumstances of any case so require, impose a sentence of imprisonment or fine, or both, for a term lesser then the minimum term and the amount lesser then the minimum amount, specified in this sub-section' for reason to be record in writing.

Section 15 : After Section 15, the following explanation will be added - 'Explanation' the special treatment given either under this Act, or any other Act for the time being in force will not be detrimental to the interest of the woman. Special treatment clause should ensure that any act or omission of this Act shall not be detrimental to the interest of the woman.

Justification

Section 5 : Under Section 5 women are prohibited or restricted by law to take up certain employment or to take up the employment during particular hours of the day. It is high time that the list of the category of the work, wherein women are prohibited or restricted by law from taking the work is pruned down, unless the same is hazardous and threatens the life and limp of the women. Today, the women are giving effective competition to men in different sphere of activity and has proven themselves. It the restrictions are not removed or significantly curtailed, then they are likely to be challenged on the ground of discrimination and violation of Article 14 of the Constitution.

Section 7 : Section 7 relates to the officer manning the adjudicatory body. It is the first pint of contact for the aggrieved party. The Act provides for a Labour Officer to hear the complaint relating to contravention of any provisions of the Act of non-payment of equal wages. Since the complaints primarily emanates from Women section of the employees it is of utmost important that the adjudicatory authority should provide assurance and should inspire confidence of aggrieved party. For this reason, the Labour Officer who has been empowered under this Section should be a women with background of Labour practices.

The power of filing complaint should not be confined only to the aggrieved party. It has to be broad based on any information relating to contravention of the Act must be entertained. For this reason, two changes are necessary under Section 7. Firstly, if any person including voluntary organisation reports of any contravention of provisions of the Act, the same should be treated as a complain and the adjudicatory authority should dispose of the same as per law. Secondly, if the Labour Officer or whosoever, is the adjudicatory authority get some information or knowledge about any practice by the employer which is in contravention of the Act, then it should have power of registration of complaint upon its own knowledge and information. These amendments are also necessary as the employees are likely to be reluctant to lodge any complain against their present employer, least they face the wrath of employer.

Section 10 : Providing a penal clause against the person who does not comply with the order made by the officer under Section 7 (1).

Section 15 : Section 15 deals with special benefits given to the women. It is necessary that the explanation be incorporated in the Section, wherein it should be provided that the special treatment should never be detrimental to the interest of the women.

 

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