Research Project On

Women and rising gender pay gap: Tackling issues

(Research Methods and Legal Writing)

Submitted By- Submitted To-

PRAKASH OCHWANI Dr. SHIVAKANT PRAJAPATI
PG/LLM/2022-2023
Roll No – MU22LLM1Y033
LL.M.(One Year) Sem-I Div-1 CORPORATE

SESSION (2022-2023)

MATS UNIVERSITY ,SCHOOL OF LAW,

Aarang-Kharora Highway, Gullu, Aarang, Raipur
,Chhattisgarh, India

DECLARATION

I, the undersigned PRAKASH OCHWANI, Roll Number- MU22LLM1Y033, LL.M. –

Semester -1 of “Mats university school of law, do hereby declare that this project is my original
work and I have not copied this project or any part thereof from any source without due
acknowledgement. I am highly indebted to the authors of the books that I have referred in my
project: “Women and rising gender pay gap: Tackling issues”, as well as all the writers of
the articles and the owners of the information taken from website for it.”The project work is
original, and the conclusions drawn herein are based on the data collected and analyzed by me.
To the best of my knowledge, the matter presented in this project has not been submitted and
awarded for any degree, diploma, or membership either to this or any other Institute or
University.”

PRAKASH OCHWANI
PG/LLM 1YEAR
COURSE/SEM1/DIV1
LLM Semester -1
Roll No - MU22LLM1Y033

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 CERTIFICATE

This is to certify that Mr. PRAKASH OCHWANI pursuing LL.M. 1yr course (1st
Semester), Mats University, School of Law, Raipur, Chhattisgarh has successfully
completed the project work titled “Women and rising gender pay gap: Tackling issues”.
This project work is the record of my authentic work carried out. The matter embodied in
the project has not been submitted elsewhere for the award of any other degree.”

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 ABSTRACT

Since decades we have seen the issue of the gender pay gap, the issue is so complex and wide
that it needs our attention. We can easily find the nature of the prevailing issue if we start
comparing the wages of a female with that of males. Such disparity leads to unrest between the
people, as we are approaching the next generation, we cannot take our step forward with these
prevalent issues.

For solving this critical issue the ‘International Labour Organisation’ came up with various
conventions which gave birth to the principle of “equal pay for the work of equal value”. There
were many other conventions and statues which came up with the same idea so that the
discrimination in the pay gap can be reduced for the benefit of the society.

The author here in this paper seeks to find out the reasons why even after many conventions
and statues the pay gap between men and women is constantly increasing, whether the wings
of these legislations were cut down, or whether the wings were tied by the rope. The author
wants to reach to those legislations and see why the wings (i.e. the legislation) which were
supposed to go high in the sky are stuck down here in the potholes present on the land.

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 TABLE OF CONTENTS
PROPOSED TITLE ................................................................................................................................... 6
INTRODUCTION ...................................................................................................................................... 6
STATEMENT OF THE PROBLEM ............................................................................................................. 7
REVIEW OF THE LITERATURE ............................................................................................................... 9
RESEARCH OBJECTIVE........................................................................................................................ 12
RESEARCH METHODOLOGY ............................................................................................................... 12
SCOPE OF THE STUDY .......................................................................................................................... 13
LIMITATION OF THE STUDY ................................................................................................................ 13
RESEARCH QUESTIONS ....................................................................................................................... 13
CHAPTERISATION ................................................................................................................................ 14
BIBLIOGRAPHY .................................................................................................................................... 14

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PROPOSED TITLE
Women and rising gender pay gap: Tackling issues.

INTRODUCTION
“Worldwide, women only make 77 cents for every dollar earned by men. As a result, there’s a
lifetime of income inequality between men and women and more women are retiring into
poverty. This stubborn inequality in the average wages between men and women persists in all
countries and across all sectors, because women’s work is under-valued and women tend to be
concentrated in different jobs than men. Even though the work itself may require equal or more
effort and skills, it’s valued and remunerated less”

Since decades we have seen the issue of the gender pay gap, the issue is so complex and wide
that it needs our attention. We can easily find the nature of the prevailing issue if we start
comparing the wages of a female with that of males. Such disparity leads to unrest between the
people, as we are approaching the next generation, we cannot take our step forward with these
prevalent issues.

For solving this critical issue 69 years back ‘International Labour Organisation’ (hereinafter
“ILO”) came up with the convention no. 100, also known as “Equal Remuneration Convention,
1951 (No. 100)”, the idea and the objective behind this convention which is present in the
preamble of this convention was to provide the “equal remuneration for men and women
workers for work of equal value”, i.e. in layman words can be said as that there shall be no
discrimination regarding the pay and wages based on sex. “ILO” again came up with another
convention in the year 1958 with convention 111 known as “Discrimination (Employment and
Occupation) Convention, 1958 (No. 111)” the basic idea or objective behind the that there shall
be no discrimination on the grounds of sex, creed & caste.

These conventions gave birth to the principle of “equal pay for the work of equal value”. There
were certain or rather many other conventions which came up with the same idea so that the
discrimination in the pay gap can be reduced for the benefit of the society.

The author here in this paper seeks to find out the reasons why even after approx. 70 years of
these conventions why the pay gap between the men and the women is constantly increasing,
whether the wings of the legislations were cut down, or whether the wings were tied by the
rope. The author here wants to reach to those wings and see why the wings (here the author is

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referring to the legislation) which were supposed to go high in the sky are stuck down here in
the potholes present on the land.

STATEMENT OF THE PROBLEM

“Her wings are cut and then she is blamed for not knowing how to fly.” These lines were written
down by Simone De Beauvoir in her book “The Second Sex” in the year 1949.

There cannot be any better start but to quote Simone De Beauvoir, why? Let us find out. No
doubt the “ILO” convention 100 opened the gates for eliminating all the discrimination
regarding the remuneration between the different men & women. Even after 70 years being
elapsed the author is here to talk about the implementation of the said convention. We need to
know that 178 countries have ratified the C100 of “ILO”. Yet the countries which have ratified
this convention are suffering from huge remuneration gap between men and women, the reason
being that there is huge under-representation of the value of the work associated with the
women and this leads to the big income difference between men and women. We need to
understand the principle of the “equal pay for the work of equal value” is not just for equal pay
but the same is also there for the work of equal value. This points our eyes to the segregation
of jobs in the parts of the world, the problem persists in that the work of women is considered
non-vital and given low preference with that the work of the men. The work of women is
considered relatively feminine. The principle of equal value tells that we need to look at the
broader picture, we shall not just focus on the contents of the work profile but we shall also
look upon the skills involved, proficiency involved, tasks, responsibilities, the environment of
the work, basically taking other factors in consideration as well.

This brings us to the next prevalent issue, i.e., that the law of the principle of equal value has
not been developed properly in the different regions of the globe. Some of them not even
expressly talk about the principle of the equal value. Despite being ratifying the Convention
100 of the “ILO” the countries have failed to implement the principles of the conventions in
their own legislative and legal regime. Similarly, as the legal framework is in construction, the
courts have approached in a very narrower way, even in the jurisdiction which has expressly
mentioned of the principle of equal value, the court has sometimes narrowed it down. The fault
of the legislations is that they opt for the principle of “equal pay for the work of similar nature
or the same work”, this particular principle leads us to the grave problem of the undermining
of the women’s nature of work. These jurisdictions need to focus on the principle of “equal
value” as well.

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Talking about the case of India, The Republic of India ratified the “ILO” Convention 100 on
25th September 1958, but it failed to implement the principle given under this convention. In
India “Equal Remuneration Act” discussed that there shall be no discrimination in regards to
the remuneration between men and women in any establishment. In the year 2019, the “Code
of Wages Act, 2019” has replaced the “Equal Remuneration Act” and now the current Code
says that then there shall be no discrimination for “equal pay in work of similar nature or for
the same work”, (well, we should not forget the Code on wages gave a big right to the
transgender people in regards of equal pay, there are issues in that as well but we are not dealing
with that here), again the principle of “Equal pay for the work of similar nature” will undermine
the work the of the women, here we forget that taking care of the babies needs skills as well
just like a man who is holding the stones. Also, the courts have allied with the restricted
approach framed in the principle of “work of similar nature or same work” and they did not try
to go beyond and adopt the more flexible approach.

So, the problem here is very simple that either different countries have failed to implement the
Convention 100 or they have adopted the principle of “Equal pay for the work of similar
nature”. The next problem persists in the narrow approach of the courts in adopting the
principle of “equal value”.

The author aims to discuss both the principles of “Equal pay for the work of equal value” &
“Equal pay for the work of similar nature or same work”. The author argues that the former
principle shall replace the second principle for the betterment of the women. As gender pay
being the critical issue, the issue shall be taken into consideration at the earliest. The author
shall also plan to discuss the judicial approach of the courts for applying the principles for the
pay equity.

The paper shall further discuss the comparative study of the laws of the different countries
(who are signatory to the “ILO” convention 100), so that author can get the clear image of the
functioning of both the principles in different jurisdictions. The author shall also consider the
development of the principle of “Equal pay for the work of Equal Value”. For getting the more
effective picture the author also seeks to dive in the ocean of various definitions in the
employment laws like Remuneration, Workplace etc. For this, the author plans to take the
judicial approach for finding the usage of the principles in the different jurisdictions.

The author will further discuss the difference between both the principles and how the principle
of “Equal pay for the work of similar nature” is not the need of the hour and how the same

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needs to be replaced by the principle of “equal pay for the work of equal value”. At the end the
author will study the need for the principle of “equal value” and how different jurisdictions
have adopted that as well. The author also seeks to analyse which principle shall work better
in the India. The paper is not limited to the problems stated above, but, the main crux of the
problems shall revolve behind these problems.

REVIEW OF THE LITERATURE

The author has referred to many works of literature while researching for writing the synopsis.
Few of them are discussed here:

1. RISHIKA SEHGAL, EQUAL PAY FOR EQUAL WORK? FLAWS IN THE INDIAN LAW, OXFORD
HUMAN RIGHTS HUB ( 8TH DEC 2019), http://ohrh.law.ox.ac.uk/equal-pay-for-equal-
work-flaws-in-the-indian-law/.
The author in this article has presented both the flaws and the gains of the current legislation
i.e. the “Code on Wages Act, 2019” on the prevalent issue of the Equal pay. The Author
has discussed how the Code of wages have replaced the “Equal Remuneration Act” and
discussed what are the crucial differences between both the legislations. The author has
also criticised the judgement of the “Air India Etc. Etc vs Nergesh Meerza & Ors.” 1982
SCR (1) 438, that failed to recognise the similarity between the recruitment process of the
job of female air hostesses and male air stewards, even though the work which shall be
performed by the two was similar. The Author has also questioned the failure of “Code of
Wages Act, 2019” to not to address the principle of the “Equal pay for the work of equal
value” rather it talked about the “Equal pay for the work or similar nature or same work”

2. SANDRA FREDMAN, THE RIGHT TO EQUAL PAY FOR WORK OF EQUAL VALUE, REPORT
OF THE WORKING GROUP ON THE ISSUE OF DISCRIMINATION AGAINST WOMEN IN LAW

AND IN PRACTICE (2013).

The author in this article presented her opinion that even after the ratification of the “ILO”
convention 100 by the number of countries, the countries have miserably failed to adopt
the principles of the conventions in their legal regime. The author also discussed the
principle of “equal pay for the work of equal value” and said that this principle is not just
for the equal pay but he same is for the making the value of work equally as well, the author
further discussed how the work performed by the women is categorised as feministic and
is not given the same value as of the work performed by the men. The author also raises
the question that the different jurisdiction doesn’t compare the skills which are required in

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the work, even though the skills for the different work might be different but both the work
shall require a proper set of skills, the author further discussed the importance of the
definition of the “remuneration” & “workplace’ and how significant are they when we talk
about the gender pay gap between the men and the women. The author also discussed the
conservative behaviour of the Hon’ble courts of the different jurisdictions who have failed
to recognise the principle of “Equal value” and was not able to look for the broader
perspective. Further, the author contends making the use of UK Equality and Human Rights
Commission (“EHRC”) and said there are legal benefits for adopting the principle of
“equal pay for the work of equal value” and argues that the same shall be beneficial for you
businesses as well, the author contends the same shall send the positive message to the
other employees in the establishment and it shall represent a fair and good management
system present in the establishment. The author further discussed the comparative study of
the different countries who have ratified the “ILO” convention 100, and then the author has
tried to portray the results of different jurisdictions that how different jurisdiction have
developed who have implemented the principle of “equal value”, the author continues with
the critical analysis of the laws of Korea and analyse how beautifully they have identified
the principle of the “equal value”, the author further discussed how the interpretation of
skills have been made by Korea by taking care of the working conditions like exposure to
danger, noise, sounds etc. Also, while discussing Korea that the country od Korea have
interpreted the word “responsibility” and the word “efforts” The author further submits the
facets of different countries including India, Kenya, South Africa, the UK for the
comparative analysis concerning the principle of the “equal value”.

3. SURESH C. SRIVASTAVA, EQUAL REMUNERATION FOR MEN AND WOMEN, 32 I.L.I, 82-
92 (1990).
The author in the article has briefly discussed how the provision of equal remuneration has
been evolved in India. The author compared the Indian law with that of the international
conventions, he also went forward for taking down the analysis given by the courts in this
subject. The author has critically analysed the working and the implementation of the
sections of the “Equal Remuneration Act”. Like the principle of “equal work for the work
of equal value” is not present in India, the author has critically analysed the scope and
functioning of the principle of “equal pay for similar nature of work”, the author also looked
for the constitution approach while dealing with the equal remuneration between the sexes,
The author then analysed the case of “Randhir Singh v Union of India” 1982 SCR (3) 298

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and presented how this case lead to the development of Equal Remuneration law in India.
The author argues that India needs to formulate proper policies for solving the critical issue
of the gender pay gap and which may also provide the opportunities to the women as well
as at the same time it will sure the equal pay for the women.

4. AYAKA BENIYAMA, THE PRINCIPLE OF EQUAL PAY FOR WORK OF EQUAL VALUE AND
FEMALE PART-TIME WORKERS IN JAPAN (2018) (UNPUBLISHED THESIS, FACULTY OF

LAW, LUND UNIVERSITY).

The author in this article did a detailed study for the gender pay gap between the part-time
female employee with that of a full-time male worker. The author presented even though
Japan has ratified the “ILO” convention no. 100 but have failed to implement the basic
principle of “equal pay for the work of equal value”. The author presented that the
government of Japan have tried to advocate the long-established principle of “equal pay for
equal work”. The author presented the difficulty of establishing such principle of “equal
value” when the government itself believes that such principle is not suitable for the local
people and such principles are not in cognizance with that of domestic laws. The author has
analysed how the principle of equal pay, the principle of non-discrimination & equal
treatment in ILO (convention 175) can help the women who are having low pay. The author
further analyses what is that gap between the Japanese Domestic law with that of
international human rights law. The author at the end argues that the big gender gap
between both the sexes is because the government of Japan have failed to enshrine the
principle of “Value” to solve the issue to current prevailing gender pay gap issue. Till the
end, the author has presented the issue of “value” and regarded it as a significant step in
case the government tries to implement it.

5. MARIE MCGREGOR, EQUAL REMUNERATION FOR THE SAME WORK OR WORK OF EQUAL
VALUE, 23 S. AFR. MERCANTILE L.J. 488 (2011).
The author in this article analyses that even after the ratifying the “ILO” convention no.
100, the government of South Africa was not able to frame proper legislation for the no
discrimination in terms of remuneration instead of the South Africa in its “Employment
Equity Act” discussed that there shall be discrimination on the grounds of sex at workplace.
The author contends without the framing of proper laws it given the grey shade to the
lacunas to grow and evolve. The author further discusses the case of “Mangena & others v
Fila South Africa (Pty) Ltd & others” [2009] 12 BLLR 1224 (LC) where the court raised
the complexities involved in applying the principle of “equal pay for the work of equal

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 value”, the court asked the claimants to show and portray how their work was of equal
value with that of the defendants, the sudden burden of proof was shifted to the petitioners,
as there has been no clear definition how the “equal value of work” shall be defined it lead
the petitioner to miserably fail in making its claim. The author argues that if the law will
not develop with time the women and the other people as well will continuously be
discriminated based on sex, races & colour.

6. JEANNE GREGORY, EQUAL PAY FOR WORK OF EQUAL VALUE: THE STRENGTHS AND

WEAKNESSES OF LEGISLATION, 6 WORK EMPLOYMENT & SOCIETY J. 461-473 (1992).

The author in this article portrays the weakness as well the strengths of the legislation. The
author has presented how the principle of the “equal pay for the work of equal value” gives
the strength to the women, the author argues how the government of the UK has been
hesitant to implement this principle, they passed the principle with very hue and cry. The
author suggested mere passing of the law will not strengthen the rights of the women, until
and unless the govt will not try to implement these laws at the domestic level the laws will
go in vain. For analysing the same the author has gone ahead by discussing the judicial side
approach as well. As the UK is the Common law countries where the presents play the
crucial role, the author has presented and analysed the different case laws which shall help
in determining the usage of the principle of “Equal pay for the work of equal value”.

RESEARCH OBJECTIVE
The objective of this research is to make the readers give the clear understanding of the fact
how the women are being oppressed even though the legislations are already there, it is rather
be regarded that their wings have been cut down. The author challenges that the Principle of
the “equal pay for the work of equal value” can be the solution to overcome the discrimination
and oppression of women with respect to remuneration at the workplace.

RESEARCH METHODOLOGY
The research methodology adopted by the author shall be doctrinal. Applicability of legal
norms can best be understood in the context of its underlying jurisprudence and its
manifestation in the judicial decisions. Moreover, views of highly qualified publicist become
crucial to accommodate the temporal aspects of the issue. The paper seeks to do the
comparative study for the principle of equal value and continuous harassment of women
concerning the gender gap. Therefore, this paper will be based on the proper legal analysis

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where different methods shall be used mainly ‘legal domestic method’ & ‘Legal comparative
method’ with special focus on India.

For this paper, the author shall take the reference from the primary sources which shall
comprise of statutes of different countries, reports of the international organisations etc. To
further analyse the issue, the laws of the different jurisdictions shall also take in consideration.
To further substantiate the hypothesis, the author for the purpose of this paper shall also rely
on secondary resources which consist of scholarly articles, journals, law reviews and judgments
related to the gender gap and the principle of the equal pay for the work of equal value.

SCOPE OF THE STUDY

The foremost objective behind this paper to understand the scheme of discrimination faced by
the women in terms of pay equity. Further, the author intends to look at the principle of “equal
pay for the work of equal value”. The author will also look at the situation about the discussed
issue in India and other jurisdictions as well. The author will take the major reference from the
paper written by Sandra Fredman on this prevailing issue. Moreover, the author will examine
the discussion made by different authors in other countries as well to understand the complexity
of the issue.

LIMITATION OF THE STUDY

The study will have a limitation because the principle of “equal pay for the work of equal
value” has not been developed in many jurisdictions. Hence, the lack of data can be an obstacle
is likely to limit the scope of the study. The other limitation that has been already faced by the
author is that there has been not been much literature available on the topic concerning the
discrimination faced by the women in terms of gender pay equity due to noncompliance of
“ILO” Convention 100.

RESEARCH QUESTIONS
1. Whether the current discrimination faced by the women in terms of pay equity is
because of the non-compliance of the principle of “Equal pay for the work of Equal
value” enshrined in “ILO” convention 100?
2. How the principle of “Equal pay for the work of equal value” works better than the
principle of “Equal pay for the work of similar nature or same work”.
3. Whether India needs to change its principles to better the better strength in terms of pay
equity between different genders?

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CHAPTERISATION
1. Introduction.
2. The pay gap between Men and Women.
3. The equal Pay principle in International law.
4. Principle of work of Equal Value.
5. Indian Law and the equal pay principle.
6. Equal pay principles in different jurisdictions.
7. Judicial approach to the equal pay principle in India and other Jurisdictions.
8. A comparative analysis between the laws of India and other jurisdictions.
9. Recommendations and conclusion.
10. Bibliography

BIBLIOGRAPHY
 Rishika Sehgal, Equal Pay for Equal Work? Flaws in the Indian Law, Oxford Human
Rights Hub ( 8th Dec 2019), http://ohrh.law.ox.ac.uk/equal-pay-for-equal-work-flaws-
in-the-indian-law/.
 Marie McGregor, Equal Remuneration for the Same Work or Work of Equal Value,
23 S. AFR. MERCANTILE L.J. 488 (2011).

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 Jeanne Gregory, Equal Pay for Work of Equal Value: The Strengths and Weaknesses
of Legislation, 6 Work Employment & society J. 461-473 (1992).
 Ayaka Beniyama, The Principle of Equal Pay for Work of Equal Value and Female
Part-Time Workers in Japan (2018) (Unpublished Thesis, Faculty of Law, Lund
University).
 Suresh C. Srivastava, Equal Remuneration For Men And Women, 32 I.L.I, 82-92
(1990).
 Sandra Fredman, The Right to Equal Pay for work of Equal Value, Report of the
Working Group on the issue of discrimination against women in law and in practice
(2013).
 UN Women “Equal pay for work of equal value”
<http://www.unwomen.org/en/news/in-focus/csw61/equal-pay> accessed 19 Nov
2020 Data is from ILO, Women at Work: Trends 2016(Geneva 2016).
 Fredman S, Discrimination Law (2nd edn. OUP 2011).
 Convention on Elimination of Discrimination Against Women (adopted 18 December
1979, entered into force 3 September 1981) 1249 UNTS 13.
 ILO Convention C100: Equal Remuneration Convention (34th Conference Session
Geneva 29 June 1951).
 ILO Convention C111: Discrimination (Employment and Occupation) Convention
(42nd Conference Session Geneva 25 June 1958).

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