25 August 2014 by Cliffe Dekker Hofmeyr Employment Alert

What is sauce for the Goose is sauce for the Gander: Equal pay for work

South Africa is a party to the International Labour Organisation (ILO) Convention concerning Equal Remuneration for Men and Women Workers for Work of Equal Value, or Equal Remuneration Convention. An "equal work equal pay" clause is provided in the Code of Good Practice for the Integration of Employment Equity into Human Resource Policies and Procedures and the Public Service Act Regulations. But does it go far enough?

The legislature has made recent amendments to the EEA and issued new regulations to the Act. Section 6(1) of the EEA now provides that discrimination may not take place on the following grounds: race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth or any other arbitrary ground.

The inclusion of "any other arbitrary ground" now means that the EEA is in line with the Labour Relations Act, No 66 of 1995 – specifically s187(1)(f) which provides that an employer may not dismiss an employee for any reason related directly or indirectly to "any arbitrary ground".

Section 6(4) now provides that a difference in terms and conditions of employment between employees of the same employer, performing the same or substantially the same work or work of equal value (that is directly or indirectly based on any one or more of the grounds listed in subsection (1)) is unfair discrimination.

This new section provides focus to the issue of equal work and equal pay and affords employees the opportunity to link such an unfair practice directly to the Act. An employee must prove that the employer has allowed a situation to occur where employees who do the same work receive different pay or benefits, in a discriminatory manner, without any justifiable ground or reason for such a difference.

In the amended Employment Equity Regulations, the minister now also provides employees and employers with a clear definition of the meaning of equal work for equal pay, a methodology to determine when and how to apply the provisions of s6(4), and finally how to assess whether work is equal by considering various factors such as responsibilities, qualifications needed to perform that function and the conditions under which that work is performed.

Employers should audit their remuneration and rewarded practices carefully in order to identify potential claims. Where terms and conditions of employees differ, even where they do the same or similar work or work of equal value, the employer has to determine whether such differentiation is a listed or arbitrary ground and whether there is an acceptable ground of justification for such differentiation.

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