Equal Pay and Maternity Benefit

In one line

Equal pay came from a statute that the courts refused to let an employer plead poverty against; maternity benefit came from a statute that the courts refused to confine to permanent employees.

In the wording a student can write in an exam: article 39(d) directs the State to secure equal pay for equal work for both men and women, and article 42 directs it to make provision for just and humane conditions of work and for maternity relief. Neither is enforceable of itself, because article 37 says so, and both have been given effect by legislation. Equal pay was carried out by the Equal Remuneration Act 1976, whose provisions now sit in the Code on Wages 2019; in Mackinnon Mackenzie and Co. Ltd. v. Audrey D'Costa the Supreme Court held that where the work is the same or of a similar nature the employer must pay equally, and that its financial capacity is no defence. Maternity relief was carried out by the Maternity Benefit Act 1961, substantially amended in 2017; in Municipal Corporation of Delhi v. Female Workers (Muster Roll) the Court held that the benefit is not confined to regular employees and extends to women engaged as daily-wage casual workers.

Equal pay: where the right comes from

Not from article 39(d) directly. Article 37 makes Part IV unenforceable by a court, so a claim cannot be founded on article 39(d) alone.

From article 14 and article 16, in State employment. The courts have treated equal pay for equal work as flowing from articles 14 and 16 where the employer is the State, so a public employee paying unequally for the same work faces an equality challenge and article 39(d) supplies the standard.

From the statute, everywhere it applies. The Equal Remuneration Act 1976 required equal remuneration for the same work or work of a similar nature, forbade discrimination in recruitment and conditions, and gave a complaint machinery. Its provisions are now in the Code on Wages 2019, which prohibits discrimination on the ground of sex in wages and in recruitment for the same work or work of a similar nature.

And the phrase that carries the weight. "The same work or work of a SIMILAR NATURE". The comparison is of the work actually done, not of the label on the post, and that is what makes the right usable.

Mackinnon Mackenzie

Facts. Mackinnon Mackenzie and Co. Ltd. v. Audrey D'Costa, (1987) 2 SCC 469, decided 26 March 1987 by Venkataramiah J with Jagannatha Shetty J. A confidential lady stenographer complained under section 7(1) of the Equal Remuneration Act 1976 that she was paid less than the male stenographers of the company. The employer said the two were historically separate cadres, that the pay had been fixed by settlement, and that it could not afford parity.