On 12 March the proposals regarding the Employment Equity Amendment Bill were tabled by the Department of Labour before the Parliamentary Portfolio Committee on Labour. Among other changes the amendments propose stricter enforcement of employment equity targets.
“The Amended Act, once implemented, will pertinently classify differentiation in terms and conditions of employment as unfair discrimination, where the differentiation takes places on any listed ground. The current Employment Equity Act (EEA) already caters for claims of unfair discrimination where the employer differentiates on any listed ground, including race, gender, marital status and so forth,” explains Johan Botes, Director in the Employment practice at Cliffe Dekker Hofmeyr.
“The amendment to pertinently classify different terms and conditions of employment on a listed ground as unfair discrimination will probably only focus attention on such a prohibited practice. It is not unfair to differentiate terms and conditions of employment between employees doing substantially the same work, provided that the differentiation is not on a listed or arbitrary ground.
“This section does not mean that you have to pay all your staff on the same level the same salary. It also does not prevent you from differentiating on issues such as leave, bonuses or incentives. However, such differentiation may not take place on a prohibited or arbitrary ground. You may thus pay staff with long service more than those with short service. But if all your long-serving staff are white and the shorter-serving staff are black, then such differentiation would amount to indirect unfair discrimination as the effect of the differentiation would be that you treat staff differently based on a prohibited ground (race), albeit indirectly,” Botes explains.
“The amendment may be superfluous considering that such a practice is not permitted even under the current EEA, but any amendment that will focus attention on the prohibition of unfair discrimination should be welcomed,” Botes says.
“There may still be employers who pay their employees differently depending on their race, gender, sexual orientation or other prohibited grounds. The amended section should serve as a warning to such employers that there is increased focus on such base practices and that it cannot be tolerated in our society,” he notes.
Botes says that stricter enforcement of Employment Equity Plans and adherence should also be welcomed.
“Many businesses invest significant time and resources into ensuring compliance and actions beyond compliance in respect of Employment Equity Plans. Employers who pay scant regard to the EEA in this respect should not enjoy an advantage over those employers who make effort to implement the spirit and letter of the Act,” he adds.