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India And ILO: An Analysis Of Their Ongoing Battle With Eradication Of Discrimination At Work Place And Equal Remuneration (Convention 111 And 100)

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 also illegal.

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 dues.

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 follows:
  1. 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.
  2. Freedom of expression and association essential to sustained progress:
    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.
  3. 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.
  4. The war against want requires to be carried out by continuous and constructive international and national efforts for common welfare:
    the most 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.

The following are the obligations of ILO as the Philadelphia declaration:
  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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 not independent.,
  7. 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.
  8. 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.
  9. 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:
  1. Convention no 29- Forced labour convention
  2. Convention no 105- abolition of forced labour convention
  3. Convention no 100- Equal remuneration convention
  4. Convention no 111- discrimination (employment Occupation) convention
  5. Convention no 138- minimum age convention
  6. Convention no 182- worst forms of child labour convention

The two conventions namely:
  1. Freedom of association and right to organize convention, 1948 (no.87)
  2. 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
  1. 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 forums.
  2. International covenant on Economic, Social and Cultural Rights:
    Article 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.
  3. 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.
  4. 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.

Relevant Articles
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 French languages.

Article 1:
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.

Article 2:
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:
  1. 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.
  2. 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 still prevails.
  3. 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.
  4. 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 applied.
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.

Article 3:
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.

Article 4:
all the members shall cooperate with employees and workers for the purpose of implementation of this convention.

Article 5:
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.

Article 6:
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.

Article 7:
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:
  1. Firstly that in respect to territories to which provisions of the convention shall be applied without any modification.
  2. 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.
  3. 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.
  4. 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 phase.

Article 8:
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 any time.

Article 9:
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.

Article 10:
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.

Article 11:
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.

Article 12:
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.

Article 13:
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.
  1. 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 employment.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. Contract labour (regulation and abolition) act, 1970:
    this legislation consists of separate provision under which certain privileges are provided to women such as fixed working hours.
  7. 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 sex.

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 articles.

Article 1:
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.

Article 3:
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.

Article 4:
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.

Article 5:
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.

Article 6:
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.

Article 7:
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

  1. 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.
  2. 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.
  3. 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.
  4. 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.

Mentor: Ms. Priyanka Ghai

Award Winning Article Is Written By: Ms.Ashna Sharma - BA LLB (H), Semester- 08, Batch- 2017-2022 - Amity Law School, Noida
Awarded certificate of Excellence
Authentication No: MR39357088097-10-0322

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