The following research paper aims at elucidating facts as regards equal
remuneration and eradication of discrimination and various steps taken by both
ILO as well as India to fight these problems. It lays down the provisions
mentioned under convention no 100 as well as convention no 111 and the impact or
correlation of these with national laws of India. In conclusion, it states the
correlation between the two.
"If this agenda can become a reality in the next 15 years, we will be
turning the tide back in the direction of social justice and assuring a
sustainable and fairer society for us and our children
", says ILO
Director-General Guy Ryder.
Labour has always been a very integral part of the progress that the world has
seen over the years. From the ancient period to the modern era, several things
have changed but the need for labour has remained intact. An employee hires
labor for getting his work done and in return offers wages to them for their
services. If labour is made to render services and is not given any remuneration
then it would amount to forced Labour which is not only unjust for the labor but
The ILO is an organization that works for the benefit of the
labour and providing them with their respective rights and envisions decent work
as its main agenda. It became the first-ever specialized agency of the United
Nations. The International labor organization for formulated in the year 1919
after the treaty of Versailles. ILO as an agency envisages the development,
promotion, and monitoring of international labour standards.
The organization has over the years made every attempt to reach its main agenda
of decent work. Till today, a total of 183 legally binding have been signed-in
ILO and as far as non-binding recommendations are concerned, the number has
touched 202. As far as membership of ILO is concerned, any member of the United
Nations can become a member of ILO and exit it at its own will by only stating
its intentions of leaving the organization in writing and clearing the financial
After the Second World War, it was evident that certain changes have to be
brought about and specific objectives have to be formulated in the form of a
declaration. Therefore, a total of 4 basic principles were listed in the
declaration which took place on 10th May 1944.
This declaration is famously
known as the declaration of Philadelphia and the principles laid down are as
- Labour is not a commodity:
labour has to render services and in return has to be given remuneration in
the form of minimum wages. They cannot be kept under inhumane conditions or
put into such hazardous work which can put their lives in jeopardy. All in
all, it means that the human rights of the labour like any other human on
the –planet cannot be abridged.
- Freedom of expression and association essential to sustained
It is not necessary that even after the organization or the respective
countries formulate laws for the protection of rights of labour, there will
never be a violation of these rights. A question of ‘what if?’ always persists.
Therefore, the freedom to express their resentment or their wants, the labour
class is given the right to represent themselves and get themselves heard. This
is where various unions come into the picture.
- Poverty anywhere is a threat to prosperity everywhere:
poverty is the
biggest parasite for any country. The higher the number of people living in
poverty, the greater is the chance of a country’s downfall. The reason being
that if people living in poverty are hardly able to win a meal 3 times a day.
Their life works on mere subsistence and therefore they do not get any other
opportunities. They have ample responsibility on their heads to feed their
families. This is the reason that majority of children living in poverty struck
countries do not avail higher levels of education. Lack of education is
equivalent to diminishing chances of better conditions of living for them.
- The war against want requires to be carried out by continuous and
constructive international and national efforts for common welfare:
important aspect of this principle is that it talks about global interdependence
and elaborates the important role that international as well as national
authorities and organizations play in the well being and better operation of
countries of the world.
Solemn Obligations Of ILO
An organization must have a proper functioning scheme, duties, and
responsibilities. These obligations make the organization more efficient and
increase its capacity by helping it grow and evolve as time passes by.
following are the obligations of ILO as the Philadelphia declaration:
- Full Employment and raising standards of living:
Any country would be on
a path of prosperity if people having skills and required potential are not
sitting idle and the country is providing them with jobs and opportunities.
Keeping this in mind ILO makes full employment an integral part of its functions
and the next aspect of this function goes hand in hand with the first. With more
jobs and remunerations for all, it imperative that standards of people’s lives
shall also increase.
- Employment shall depend upon the skill of the worker and make
contributions for collective bargaining:
While generating job opportunities, the
state as well as the employers always make sure that a particular job is
provided to people who actually have the required skills and qualifications.
However, there have been many cases in which the skilled labour needed for a
skilled job does not get paid as per the standards or do not get favorable
humane working conditions, therefore another function of ILO is to make sure
that such contributions are made at their part by which concept of collective
bargaining gains more and more relevance.
- Effective trainings should be given:
the labour needs to have a proper
skill set to do certain types of jobs. Therefore, to bring considerable growth
and adequacy in the skill required, proper training has to be provided for the
most effective outcome.
- At least minimum wages have to be paid:
the labour rendering its
services has to be paid something in return. This can be in the form of special
incentives or wages or occupancies etc. the international organizations and
domestic laws have set up a basic amount of wages which have to be paid to the
labour so that he can sustain and feed himself.
- Collective bargaining convention should be promoted:
labour rights and
collective bargaining have been going hand in hand for ages. This concept has
enriched and enlightened the knowledge of labour class. ILO makes sure that in
situations where the employer or the trade unions have a dispute, they can
express themselves and ask for their respective rights.
- Extension of Social security measures and comprehensive medical care:
usually, the minimum wage is so low that it can only help the labour in
mere subsistence and no other form of security. Therefore, it is one of the
duties of ILO that labour is provided with social security, which means,
important heal care and benefits for children and old age people who are usually
- Child welfare and maternity welfare:
social security means every type of
security that a person living in a society should be provided with. These
benefits include maternity welfare as well as child welfare.
- Adequate nutrition and housing:
There are some employers who give their
employees accommodation to live in and usually, nutrition in the form of meals
is provided to them during lunch hours.
- Equality of educational and vocational opportunities.
India And International Labour Organization
India is one of the founding members of ILO and has ratified a total of 47 ILO
conventions and 1 protocol. Out of the total number, only 39 conventions are in
force at present, 5 conventions have been denounced and 4 have been revoked. It
has been a permanent member of the Governing Body since 1922 and also
established an ILO office in the country in 1928. ILO’s main and most important
agenda is ‘the decent work agenda’. India and all other members as well as
constituents work together with the organization towards this very goal and
inculcating such measures at the domestic level as is necessary to implement the
core objectives of ILO. ILO has a total of 8 fundamental conventions out of
which India has ratified 6. They are as follows:
- Convention no 29- Forced labour convention
- Convention no 105- abolition of forced labour convention
- Convention no 100- Equal remuneration convention
- Convention no 111- discrimination (employment Occupation) convention
- Convention no 138- minimum age convention
- Convention no 182- worst forms of child labour convention
The two conventions namely:
- Freedom of association and right to organize convention, 1948 (no.87)
- Right to organize and collective bargaining convention, 1949 (no 98)
India’s domestic laws are such that they don’t allow the country to ratify 2 of
the above mentioned conventions. India under its statutory law does not allow
the government employees to criticize the government’s policies or go on a
strike. Therefore, if the country ratifies the above-mentioned conventions then
it would not be in accordance with the domestic law of the country.
Current news on India and ILO relationship- after a total of 35 years, India has
finally assumed the chairmanship of the Governing body. Shri, Apurva Chandra has
been elected as the chairman of the Governing body on 29th October 2020 and will
be holding the office till June 2021.
Convention 100- Equal Remuneration Convention
The convention took place in Geneva on 6th June 1951 and met in the 34th session
of ILO. All over the world, unequal wages or remuneration based on gender is a
burning topic. It is seen that women are usually paid less than men despite the
fact the nature of the work done by both of them is the same.
during the Industrial revolution as more and more employment was
generated and wages for labour was becoming formalized, it was always that women
were mostly paid less than men for the same work. The pretext could be different
according to people at that time but the reality was that women were considered
as a weaker gender and were paid less just because they were women and not men
who were considered to be the sole bread earners of the family.
For the first
time, during trade union activism, in the 19th century, the world saw the
first-ever large-scale strikes by women workers demanding equal remuneration for
equal work in the United Kingdom in the 1830s. However, it was only after the
Second World War that the industrialized nations began to address the problem of
women being paid less. The UK, the country that saw a widespread protest by
women enacted the equal pay act 1970.
Other branches of international law which cover Equal pay for equal work
- Human rights law:
human rights as the name suggests literally has the
protection of rights of humans as its first and the foremost motive. If women
are paid unequally or less than men for the same type of work then it is
straight away a violation of their basic rights. for the purpose of taking care
of the rights of women, Human rights law also follow convention 100 of the
International labour organization which is ‘Equal remuneration for equal work’
and promoted its application to all the national as well as international
- International covenant on Economic, Social and Cultural Rights:
7(a)(i) states that this covenant works forward to recognize that everyone has
the right to work under favorable and humane conditions especially to ensure
that all the workers are provided with minimum and equal remuneration for the
work that holds equal value.
- European Social Charter:
Article 4 of the European social charter
elucidates the right to fair remuneration. Clause 3 of the article precisely
talks about equal pay for equal work for both men and women.
- African Charter on Human and People’s Rights:
Article 15 of the charter
states that all the workers have the right to work under favorable and equitable
conditions and they should be provided with equal pay for equal work.
There are a total of 14 articles under this convention. The last article states
that the texts of the convention shall hold equal validity in English as well as
the first article of the conventions describes the meaning of
‘Remuneration’ along with the purpose of the whole convention and its objective.
According to this article, remuneration means and includes the minimum wage or
salary along with additional emoluments (directly or indirectly payable) (cash
or kind). This remuneration is paid by the employer to the employee/worker.
Subsequently, this article also states that the expression ‘equal remuneration
for work of equal value’ means paying such fixed rates of remuneration to the
employees/workers without any discrimination based on their gender.
this article works in two ways, it gives some power to the members as
well as prescribes the way by which the sole motive of the convention can be met
at a national level. Under this article, every member shall ensure that the
rates of remuneration determined irrespective of the gender of the worker is
applied in the real scenario as well.
For making the principle applicable to the
whole country and every big or small employer the following steps can be taken:
- New national laws and regulations can be formulated so that providing
equal remunerations for work of equal value is provided to both male and
female workers. If there is already a law or regulation dealing with
remuneration then it can be amended and this principle can be inculcated.
- Another way of making sure that the principle of equal pay for equal
work is applied across the country, a legally authorized machinery can be
set up which can keep a strict eye on the nationwide application of the
principle and also deal with cases where discrimination based on gender
- The most non-chaotic way of applying the principle is by the way of
agreements. The two major parties that are directly involved in the case,
i.e. workers and employers can get into a collective agreement and decide
upon providing equal pay for equal work to all the employers irrespective of
their gender and thereafter, such agreement based on the said principal
shall be without fail applied under every employment.
- The most flexible way of applying the principle is in a mixed way. A
mixed way means that all the above-mentioned ways can be collaborated and
For example, a combination of a and b can be set u whereby the
principle is binding according to law and in addition to that, there is also a
body that will act as a supervisor and so on. In such a way a double-check and
more strengthened system of application can be set up.
Despite the measure taken in the above-mentioned article, it shall
only help in formulating and implementing the principle by various methods.
Article 3 also focuses on the other important aspect which is the objective of
appraisal of the jobs based on work that has to be performed. Of course, the way
by which this can happen cannot be decided at any time and will need authority.
Therefore, to decide these appraisals, the authority responsible for the rates
of remuneration shall give due importance to the method and give its decision.
There might be cases in which the rates of remuneration are not decided by the
authority but are decided by collective agreements between the workers and the
employers then in such case, methods followed in the appraisal shall be decided
upon by collective organization/team of workers and employers. it is important
to note that at times such situations might arise in which the rates of
remuneration might differ as per the objective appraisal and this difference
does not amount to the gender of the worker then in such cases it shall not be
considered as the violation of the principle of equal remuneration for equal
work. More or less, this provision works as an exception to the principle.
all the members shall cooperate with employees and workers for the
purpose of implementation of this convention.
as the case is in all the other conventions, in this convention as
well, once a member state decided to ratify the convention after taking into
consideration its national laws, the member state shall communicate the same to
the Director-General of the International labour office for registration.
this article holds the reason for which the director-general has to
be notified about the ratification for the purpose of registration, the reason
is that this particular convention shall be considered as binding on only those
member states which have got it registered. Any convention under ILO comes into
force only after a period of 12 months from the date of ratification has passed.
However, the ratification by 2 member states is necessary for such enforcement.
Every state has its own national laws and it might happen that the
conventions passed by the ILO and the national laws of the member states do not
fall in line and either one of them has to be modified for the purpose of
enforcement. Therefore, under this convention, after the member state makes a
declaration to the director-general according to the measures are taken by it
under article 2 which talks about methods of implementing the principle then the
following should be indicated under such declaration:
- Firstly that in respect to territories to which provisions of the
convention shall be applied without any modification.
- Secondly, it might happen that certain provisions of the convention have
to be modified in respect to the territories to which the provisions shall
apply, then in such case it should be explicitly mentioned and such
modifications shall also be laid down.
- Thirdly, the declaration shall also consist of those territories in
respect to which the provisions of the convention are not applicable and
such declaration shall also include the reason for such inapplicability.
- Fourthly, it might happen that with respect to certain territories to
which the convention has to apply is not decided and still in the pending
under this article the members or international authority shall have
the right to give a declaration to renounce the right to have recourse of any
modification in the previous declaration. Such declaration can be submitted at
if any member state has ratified the convention but subsequently wants
to denounce it then that member or international authority can do that only
after 10 years from the date that such declaration came into force. Even after
denouncing the convention after the stipulated time, the convention shall not
cease to exist for that member for another period of 1 year. This period is not
exclusively for this particular convention but for all the conventions passed by
the ILO. In this duration. The member has to clear the past dues if any.
Moreover, if by chance a member wants to denounce the convention but misses the
10-year deadline even by a year then that particular member has to wait for
another 10 years and it is only after that that the convention can be denounced.
it is the responsibility of the Director-General to communicate with
all the members and notify them, the name of all the members who have got their
ratifications registered or denounced and the date on which the convention will
officially come into force shall also be notified to the members.
the registration has to be done according to the provisions of
article 102 of the UN charter. For this purpose, the Director General of the
International labour office shall give to the Secretary-General of the United
Nations all the important particulars related to all such registrations,
denunciations, or declarations taken by him by the member states.
This article paves a way for flexibility in the whole system of
general conference. Under this article, the Governing body has the power to
present a report stating the working of the convention and if necessary, raising
an agenda in the conference for the same.
this article is in the most obvious sense, an exception to article 9
which gives the right to the member states to cease to be a part of the
convention. The difference is that if the conference decides to frame a new
convention and for that purpose make revisions in this one then despite the
provisions of article 9 the member states which ratify the new convention shall
‘ipso jure’ cease to be the member of this convention. However, this shall
happen only if the new convention does not contain anything otherwise.
Furthermore, those countries or member states which have ratified this
convention and have not ratified the new one then it shall stay in force for
them just like it was before the revision or formation of the new convention.
India’s legislation on equal pay for equal work
Out f the 8 fundamental conventions of ILO, India has ratified 4 and equal
remuneration convention is one of them.
- This concept holds such an important position for the attainment of
proper rights but still, the Indian constitution does not provide for equal
pay for equal work under part 3 of the constitution also known as the
fundamental rights. therefore, not making it a guaranteed right for the
citizens but after interpretation, it can be found that articles 14,15, and
16 to some extent do address the issue. These articles elucidate the
eradication of discrimination and equal representation and opportunities for
- Article 39(d) of the constitution on the other hand which is part 4 of
the constitution also known as the directive principles of state policy
explicitly state that it is imperative that equal pay is provided for equal
work for both men and women.
- Equal remuneration act, 1976:
as the name suggests, this act’s sole purpose is to make sure that both men
and women are provided with equal remuneration if they are doing the same
work. moreover, the legislation also addresses certain natural processes
which are only women go through like pregnancy and provides for such
benefits to women as necessary.
- Workers compensation act, 1923:
this legislation is primarily for
providing compensation to the employees who meet with accidents and either lose
their lives or get lifelong impairments. However, this legislation also deals
with certain aspects related to women as in many cases it is seen that women are
often exploited in every sphere. It can be related to sexual harassment at the
workplace or unequal payment.
- Minimum wages act, 1948:
this is the key legislation that plays the most
significant role in the fixation of minimum wages for the workers. It is seen
from the very beginning that workers live in a poor condition in India and are
usually given less bargaining power. Therefore, this act shall help them by way
of fixing such minimum wage which shall be payable to the employees by the
employer mandatorily and failure of which can cause trouble for the employer. In
this way, the rights of women are also protected and they are also provided with
the stipulated amount fixed by law for the same type of work as done by men.
- Contract labour (regulation and abolition) act, 1970:
consists of separate provision under which certain privileges are provided to
women such as fixed working hours.
- As evolution of society is a continuous process and law has to be such
that it does not become obsolete in the future, it is important that from
time to time new laws are formulated which are at par with the prevailing
circumstances. In the early years and the legislations as mentioned above,
only two genders are taken into consideration and upon that laws are drafted
but under ‘the code of wages act, 2019’, genders other than men and women
are also given due importance and rights. this legislation states that every
worker, men, women, or any other gender should be given equal remuneration
for equal work without any sort of discrimination.
Discrimination (Employment And Occupation) Convention, 1958 (Convention No.111)
The conference took place in Geneva on 4th of June 1958 in the 42nd session. The
main agenda of the conference was the adoption of such proposals with regards to
discrimination in occupation. The convention states that according to the
universal declaration of human rights, if there is any discrimination then it
would amount to a violation of the rights given under the universal declaration.
Furthermore, the convention also states that it shall give due consideration to
the provisions of the declaration of Philadelphia which states that every human
being has the right to material well being as well as spiritual development in
conditions of freedom and dignity of economic security and equal opportunity and
these rights shall be provided to them irrespective of their race, creed, or
The convention was adopted on 25th June 1958 by the name of Discrimination
(employment and occupation) convention, 1958 and consists of a total of 14
This article states that any distinction made among people based on
race, religion, color, sex, political opinion, national extractions, or social
opinions, and such distinction impairs the right to equal opportunities in
employment and occupation will be called discrimination. This definition of
discrimination has an open ambit and also applies to other forms of
discrimination not mentioned above. Under this article employment and occupation
also include the right to vocational training and access to employment.
Furthermore, it substantiates that if any distinction is made for a particular
type of job for which people of a particular skill set or knowledge are required
then such distinction would not be considered as discrimination.
All member states are required to make such legislations that are in
cognizance with this convention and proper implementation, as well as observance
of the convention, shall be taken care of. For this purpose, if there is any
such law that is inconsistent with the provisions of this convention then such
provision shall be either repealed or certain necessary modifications shall be
made. The provisions of the convention are also for activities of vocational
training and the authorities shall keep this in due observance of the policy.
The members after adopting the convention are obliged to present an annual
report in which they shall state the steps taken by the authorities for
implementing the provisions and also the results (positive or negative) derived
by such implementation.
this article also stands as an exception and states that if a person
is suspected of a behavior prejudicial to the security of the country then such
distinction shall not amount to discrimination.
there might as well be other conventions or Recommendations which
provide certain kinds of assistance. Under this article, it is stated that such
assistance shall not amount to discrimination. Furthermore, every country has
different types of people and not all of them need to be alike. Some people
might have some form of disabilities and need assistance. The assistance or
protection provided to such people shall not come under the ambit of
discrimination because without such assistance or protection those people will
not be able to work.
the constitution of International labour organization consists of
special provisions for non-metropolitan territories and this article obliges the
member state ratifying the convention to implement it to the non-metropolitan
area as well.
the ratification has to be formally recognized by the
Director-General of the international labour office.
Article 8, 9,10,11,12, 13, and 14 are the same as mentioned in convention no 100
– Equal remuneration convention.
India And The Battle With Discrimination
India is a country with a huge population with almost half of the population
being illiterate and living in poverty. It is obvious that with such a high
population, the job market in India is not doing very well as the unemployment
rate is at a spike. In addition to this problem, since time immemorial, people
in the country have, at some point in their lives experienced discrimination. If
we go by the survey, then we would find that 48% of Indians have faced
discrimination in employment or at the workplace at some stage of their lives.
When the word discrimination at workplace is talked about in a country like
India, it goes without saying that such distinction is mostly gender, caste, or
age-based. Moreover, there are not many companies in the world that hold a clear
policy against discrimination as a policy. India has, however, on the ground
level has tried to fight this battle against discrimination at workplace with
help of certain legislations.
Statuary Provisions Against Discrimination At Workplace
- Article 14 of the Indian constitution:
this constitution safeguards the rights against discrimination as it keeps
all the people living in the country under the same umbrella irrespective of
their class, caste, designation etc. this article supports and states
equality before law.
- Article 15 of the Indian constitution:
this article prohibits any
discrimination among people based on race, religion, caste, sex, or place of
birth. This article is so wide that every aspect can be covered under it. If we
co-relate it with discrimination at workplace then it is absolutely clear that
such discrimination is illegal as it is legally mentioned under part 3 of the
constitution stating fundamental rights of citizens which cannot be abridged.
- Article 16 of the Indian constitution:
this article stands as an exception to
discrimination as it gives special assistance to underprivileged classes of the
society that are most prone to discrimination.
- Article 39 of the Indian constitution:
obliges the state to make sure that all
the citizens irrespective of their gender are provided with equal rights at all
spheres ranging from livelihood to work.
Discrimination can also be seen based on pregnancy which is a very natural
process of a woman’s body. Therefore, proper legislation under the Maternity
benefit act 1961, women are provided with accurate safeguards which include no
deduction from their salaries or remuneration and no woman can be forced or made
to work at least until 6 weeks from the delivery of her child.
Both the conventions include such topics which many nations especially the
developing ones are facing. India has always been subject to discrimination at
workplace. It is to be noted that both the conventions i.e. convention no 100-
Equal remuneration convention, as well as convention no 111- Discrimination
(employment and occupation) convention, are interrelated as unequal payment at
work on the basis of gender also comes under discrimination at the workplace.
Women have always been subject to discrimination and exploitation to date and
this can be seen in every sphere of occupation.
From clerks to CEOs, women do
face exploitation. The Vishakha guidelines formulated under the Vishakha v.
state of Rajasthan 1997
is a huge benchmark set for women’s help. International
law has helped countries in battling discrimination and has always kept human
rights are the core standard of making conventions or recommendations. The only
mandate being that no matter what the situation is unless it is one of those
mentioned under ‘exceptions’ as mentioned above, no human shall be subject to
any form of discrimination. Undoubtedly, India has evolved over the years and
has given due importance to the eradication of discrimination of all forms but
there is still a long way to go.
Written By: Ashna Sharma,
BA LLB (H),
Batch- 2017-2022 - Amity Law School, Noida
Mentor: Ms. Priyanka Ghai