Equal Pay and Maternity Benefit

Held. For the employee. Where the work is the same or of a similar nature, the Act requires equal remuneration, and the employer's FINANCIAL CAPACITY is no answer: if it cannot pay equally it must not employ both. A settlement or a historical difference of cadre cannot legalise what the statute forbids, and the comparison is of the work actually done rather than of the names of the posts.

Why it matters. It is the leading Indian authority on equal pay as a statutory right, and the source of the proposition students should quote: inability to pay is not a defence to a discrimination claim.

And its limit. It compares the same or similar work. Where women are concentrated in different and lower-paid work, the comparison is unavailable, which is the segregation problem this chapter closes on.

Maternity benefit: why it is not a favour

The constitutional basis. Article 42 requires the State to make provision for just and humane conditions of work and for MATERNITY RELIEF, and article 39(e) requires that the health and strength of workers, men and women, not be abused.

The idea to state. Maternity provision is not a benefit conferred on a woman because she is a woman. It is the condition on which a workforce that includes women can be continuous. Without it, childbirth means exit from employment, and exit from employment means economic dependence, which is the first link in the chain described in [Gender Injustice and Its Forms].

The statute. The Maternity Benefit Act 1961, applying to factories, mines, plantations and to establishments the appropriate Government notifies, with shops and establishments brought in by State law. It provides paid leave, prohibits dismissal or notice during the period of absence, forbids the employment of a woman during a prescribed period after delivery, and gives nursing breaks.

The amendment of 2017. It extended the period of paid maternity leave for a woman with fewer than two surviving children from twelve weeks to TWENTY-SIX WEEKS; provided twelve weeks for a woman with two or more surviving children, and for a commissioning mother and an adopting mother of a child below three months; introduced work from home where the nature of the work permits and the employer and employee agree; and required an establishment with fifty or more employees to have a CRECHE facility with four visits a day permitted.

And where it stops. At the establishment. A woman in agriculture, in domestic work, in construction or in self-employment is outside it, and that is most working women in India. The maternity benefit programme under the food security legislation is the policy answer, and it is not the same thing as a statutory entitlement against an employer.

MCD Female Workers

Facts. Municipal Corporation of Delhi v. Female Workers (Muster Roll), (2000) 3 SCC 224, decided 8 March 2000 by Saghir Ahmad J with Wadhwa J. Women engaged by the Municipal Corporation on the muster roll, that is as daily-wage casual workers, did the same work as regular employees for years together, but maternity benefit was given only to the regular female staff. The question referred was whether muster-roll female workers should be given maternity benefit.

Held. They should. The Maternity Benefit Act 1961 is social legislation and is to be read purposively; the entitlement does not turn on whether the woman is on the regular establishment, and to deny it to a casual worker doing the same work defeats the object. The Court read article 42 with articles 14, 15 and 39 and referred to India's obligations under the Convention on the Elimination of All Forms of Discrimination against Women.

Why it matters. It converts maternity benefit from a privilege of permanent employment into an incident of the work, and it is the standard example in this module of a Directive Principle deciding the construction of a statute.

And note the date. 8 March 2000, which the judgment itself remarks upon.

The gap that neither case closes

Occupational segregation. Equal pay for equal work compares like with like. Where women hold different jobs, the comparison does not arise, and the aggregate pay gap survives a perfectly enforced statute.

The unpaid care economy. Domestic and care work is not employment, so no wage statute touches it, and it is the largest single block of women's work in the country.

The informal sector. Most of the protective legislation applies to notified establishments above a threshold, and most working women are outside them.

Recruitment and progression. A statute forbidding unequal pay for the same work does not require an employer to hire or promote women into the better-paid work, and no Indian statute does.

And that is the honest close to any answer here. Article 39(d) has been delivered as a rule about pay for the same work; it has not been delivered as equality of earnings, and the reasons are structural rather than legal.

A worked example

A private company employs forty people. Its packers, all women, are paid less than its loaders, all men. It refuses maternity leave to a packer on the ground that she is on a monthly contract renewed each month.

The pay claim. The question under the equal remuneration provisions is whether packing and loading are the same work or work of a SIMILAR NATURE, which turns on skill, effort and responsibility and on the conditions under which the work is performed, not on the job titles. If they are, Mackinnon Mackenzie applies and the company's finances are irrelevant. If they are not, the claim fails, and what remains is occupational segregation, for which there is no remedy.

The maternity claim. Whether the establishment is covered by the Maternity Benefit Act, or by the State's shops and establishments legislation applying it, and whether she satisfies the qualifying period of work.

The contract point. MCD Female Workers answers it: the entitlement does not depend on being on the regular establishment, and a monthly renewal used to defeat continuity is exactly the device the case rejected.

The creche point. With forty employees the fifty-employee creche threshold is not crossed, which is worth saying because thresholds are how these statutes actually stop.

And the practical answer. Complain under the wage provisions and under the Maternity Benefit Act to the inspector, and note that the prohibition on dismissal during the period of absence protects her while the complaint is pending.

What this does NOT mean

It does not mean article 39(d) is enforceable. It is not; the enforceable right is statutory, or, against the State, under articles 14 and 16 with article 39(d) as the standard.

It does not mean equal pay closes the gap. Occupational segregation survives it, and no Indian statute requires equality of earnings.

It does not mean maternity benefit is universal. It applies to covered establishments, and most working women are outside them.

And it does not mean the 2017 amendment is costless. The standard criticism is that a twenty-six-week liability on the employer, with no State contribution, gives a small employer a reason not to hire women at all, and an honest answer records the criticism and the absence of evidence either way.

Quick revision

Article 39(d), equal pay for equal work for men and women; article 42, just and humane conditions of work and maternity relief; article 37 makes neither enforceable, so the right is statutory, or under articles 14 and 16 against the State with 39(d) as the standard. Equal Remuneration Act 1976, now in the Code on Wages 2019: equal remuneration for the SAME WORK OR WORK OF A SIMILAR NATURE, no discrimination in recruitment or conditions. Mackinnon Mackenzie 1987: financial capacity is no defence, if it cannot pay equally it must not employ both; a settlement cannot legalise what the Act forbids; compare the work done, not the labels.

Maternity Benefit Act 1961: paid leave, no dismissal or notice during absence, no employment for a prescribed period after delivery, nursing breaks. Amendment 2017: twenty-six weeks for fewer than two surviving children, twelve weeks otherwise and for commissioning and adopting mothers of a child below three months, work from home by agreement, and a CRECHE in establishments with fifty or more employees with four visits a day. MCD Female Workers 2000: benefit extends to muster-roll casual workers; purposive construction; article 42 with articles 14, 15 and 39 and with CEDAW. Gaps: occupational segregation, the unpaid care economy, the informal sector, and recruitment and progression.

Test yourself

1. Where does the enforceable right to equal pay come from? Not from article 39(d), which article 37 makes unenforceable. From the statute, the Equal Remuneration Act 1976 now in the Code on Wages 2019, and, against the State as employer, from articles 14 and 16 with article 39(d) supplying the standard.

2. State the holding in Mackinnon Mackenzie on the employer's finances. That financial capacity is no defence to a claim for equal remuneration: if the employer cannot pay men and women equally for the same or similar work, it must not employ both. Nor can a settlement or a historical cadre difference legalise what the Act forbids.

3. What did the Maternity Benefit (Amendment) Act 2017 change? Paid maternity leave rose from twelve to twenty-six weeks for a woman with fewer than two surviving children, with twelve weeks for a woman with two or more and for commissioning and adopting mothers of a child below three months; work from home was permitted by agreement where the nature of the work allows; and establishments with fifty or more employees must provide a creche with four visits a day.

4. What did MCD Female Workers decide, and on what reasoning? That women engaged on the muster roll as daily-wage casual workers are entitled to maternity benefit. The Act is social legislation to be construed purposively; the entitlement does not depend on being on the regular establishment; and article 42 read with articles 14, 15 and 39, and with India's obligations under CEDAW, requires that construction.

5. Why does the aggregate pay gap survive both statutes? Because of occupational segregation, the unpaid care economy, and the confinement of the statutes to covered establishments. Equal pay compares the same or similar work, and where women hold different and lower-paid work there is nothing to compare; no Indian statute requires an employer to recruit or promote women into the better-paid work.