Author: Ananya Arun is a fourth year student at the National University of Advanced Legal Studies, Kochi.
This article delves into gender-based pay disparities rooted in India’s construction industry. Women in construction earn glaringly 30-40% less than men and often perform unpaid work. The piece examines the inadequacy of Indian legislation in addressing this issue, despite the country’s ratification of international conventions on equal remuneration and non-discrimination.
The article juxtaposes existing labor laws such as the Equal Remuneration Act 1976, the Building and Other Construction Workers Act 1996, and the Unorganised Workers Social Security Act against International Standards, and highlights their ineffective implementation and inadequacies. It proposes solutions including stricter enforcement of existing laws, establishment of Workers’ Facilitation Centres, and shifting the responsibility of worker registration from contractors to the government.
The piece concludes by emphasizing the urgent need to address this human rights issue, given its grave, and worsening situation.
The academic analysis of the income distribution inequality in the formal sector has been the centre of discussion of debates and news hours, piquing the interests of economists and feminists advoctaes. Women in corporate and blue-collar jobs face gender pay disparity but are also conscious of their situation and the remedies available to them. Traditionally, the concept of income disparity has always been associated with the upper working class. However, beyond the cubicles and the well-lit offices, the petrifying effects of gender-based discrimination also haunt the unorganised sector.
With the roots of the concrete jungle touching every part of civilization, giving birth to soaring skyscrapers, and dense city malls, the construction industry is more attractive than ever. At the bottom of this power pyramid, that is the Real Estate Market, sit the construction workers, labourers and our humble maestri’s.
While the menacing working conditions and the plight of the workers employed in construction are often discussed, a lesser-known human rights aspect to this already warped issue is that of gender-based pay-disparity. In the unorganised construction industry, women workers earn less than the men. Women in construction take up both non-technical and mechanical work and even roles rooted in misogyny, such as cooking for all the other workers, for which they are never paid.
To address the challenges faced by our women in construction, it is pertinent to examine why women approach this industry. The percentage of women independently approaching and working in construction sites is relatively low. Most women employed here are the wives of men accepting such jobs. They are not perceived as individual working ‘labourers’, but perhaps mere appendices or additional helping hands for the wage of one. They are unable to break away from this employment and seek alternate livelihoods due to the ‘familial’ nature of their employment.
UN STANDARDS AND INADEQUECY OF INDIAN LEGISLATIONS
The legislations and the policies adopted by the UN, denote the utopian standard. But as Thomas More put it, Utopia is eu-topia, i.e. “good place”, and at the same time, u-topia, i.e. “no-place”. The ambiguity in the word denoted a “good world that might never exist”. One can attribute the aforementioned parallel to the standards set by the UN. While these stndards serve as a bright guiding beacon, they envision goals that seem almost insurmountable.
With a little more than 5 years remain for the deadline set by the Sustainable Development Goal 8.5 to bridge the gender-based wage gap, UN Women has released a chilling report. It suggests that, given the current state of gender pay disparity, and stated that it would take 257 years to close the gender pay gap globally. Such is the yawning gap between reality and our goals.
India ratified the ILO Equal Remuneration Convention in 1958, as well as the ILO Discrimination (Employment and Occupation) Convention in 1960. While it has enacted legislation to further its commitment to these conventions, poor enforceability and slow redressal systems hinder progress. The following legislations enacted in furtherance of India’s commitment to such human rights, fall short in many ways.
The Equal Remuneration Act of 1976, stood as one of the very few labour laws that covered unorganised sectors to an extent. The act mandates equal payment, for “the same work or work of a similar nature”. No legal provision in this act provides insights into the interpretation of the phrase “similar nature”. Employers exploit this loophole to flout provisions by dismissing the women’s work as unskilled, making women in construction one of the biggest victims of casualisation, despite their performing skilled work such as setting tiles, masonry, etc
The Building and Other Construction Workers Act 1996 is another instance. While this Act, surely ensures that the industry is brought under regulation, it largely focuses on the working conditions, and facilities for the workers, rather than wage equalising. The Act aids in documenting and registering construction sites and workers. It strictly stipulates that the employer must register the concerned establishment within 60 days of the commencement of work. The officialising of such unorganised work places could be the first step to regulation, oversight and accountability.
The Unorganised Worker’s Social Security Act, while relevant, does nothing much for our women in construction. The Act lacks provisions imposing criminal liability on employers for unequal remuneration, thus eliminating any scope for accountability. The Act does not even contain any provisions specifically addressing unequal pay.
A major issue is that the work done by women is not recognised as “work” in the first place. For example, if a contractor employs a laborer who brings his family to the site, the wife may assist with construction work, cooking, cleaning, and other menial tasks. However, the wages are handed over to the man. Employers are often hesitant to even enroll women workers in official records or issue them cards and slips, keeping them further in the shadows.
One of the reasons why the labour laws in India, don’t seem to quite scratch the itch they were drafted to remedy, is as follows. The fundamental characteristic of almost all labour laws is that provisions for social security, wage equalising, welfare etc, depend largely on the employer-employee relationship. The statute lays down benefits, that it expects to be carried out by the employers. However, with the construction industry, women are faced with changing employers, and workplaces, making the base of the implementation such legislations weak. Most of the gender-based wage disparity arises from the misogyny, and the discriminative mindset rooted in these employers.
BLUEPRINTS FOR CHANGE – REMEDIES TO BRIDGE THE GAP
Provisions of the current Indian laws, though not directly relating to wage-equalising, may be used as a tool to close the wage gap. For example, Section 9 of the Unorganised Workers’ Social Security Act 2008 provides for the establishment of Workers’ Facilitation Centres which strive to provide information on social security schemes and rights available to the unorganised worker. Further, the Centres also seek to enable the registration of workers by the administration, effectively enrolling them. The enrolment and registration of women construction workers is key to their formal acknowledgement as individual labourer. This paves the way for her detachment from the label of the mere “family” of the labourer, thereby bringing them a step closer to equal pay.
There is no dearth of templates and calls for pay transparency legislation and anti-discrimination laws. The challenge however lies in the efficacious implementation of these statutes, across all employment sectors, both organised and unorganised. The gaping gender pay disparity in the construction industry is rooted in the fact that such industries lie largely outside the radar of the eye of the justice administrative system. With the migrant, and transient nature of the workers in the construction industry, keeping a record of the labourers and their wages becomes all the more challenging.
A high level of responsibility and accountability must be attached to employers and contractors, with criminal penalties being imposed in case of default. Legislative provisions must be made stricter, and routine site checks must be performed by authorities to ensure compliance. Furthermore, steps may be taken to make registration of workers a primary and statutory duty of the government, rather than leaving it to contractors. Most of the non-registration and subsequent non-equal payment can be traced back to traditional-minded contractors. Thus, shifting this responisibilty to the government would ensure progress and efficiency towards closing the gap. This has, in fact, been suggested in the Construction Workers (Regulation of Employment, Security and Welfare ) Scheme, as early as 1986.
Fast forward to November 2023, a Convention was organised, and named the National Convention of Women Construction Workers. This was put together by the Construction Workers Federation of India (CWFI), one of the few of such organisations. The convention raised a charter demanding a shutdown of the gap in wages paid to men and women. Such efforts should be incentivised and amplified. They signify the first of steps in calling out authorities and bringing the muffled issues to the surface. Mainstream human rights have muffled the cries for help from women in the unorganised sector
The issue of underpayment of women in construction is a pervasive problem that transcends borders. This continued and ever-growing ga, deprives women of their basic human rights, chaining them to a perpetuity of poverty and exploitation. Fair compensation is a fundamental right and a pillar of social justice. If it takes 257 years to bridge this gap, let those 257 years commence now.
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