New developments regarding the Fair Pay Bill

The Bill aims to respond to two alleged persistent and harmful recruitment practices:

• the widespread reliance on a job applicant’s past remuneration to determine starting pay, which anchors future earnings to salaries often shaped by discriminatory factors; and
• the lack of pay transparency in recruitment processes, particularly in the private sector, where vague terms such as “market-related” or “competitive” are used instead of clear remuneration figures.

The memorandum to the Bill notes that the absence of salary disclosure in job advertisements, especially in the private sector, gives prospective employers an information advantage that can be used to underpay candidates, particularly those from historically disadvantaged groups. Therefore, mandatory disclosure is intended to create a more competitive and equitable job market by levelling the playing field, reducing information asymmetry and helping to address persistent gender and race-based pay disparities.

The Bill also seeks to amend section 3 of the Employment Equity Act 55 of 1998 (EEA) to provide that it be interpreted in compliance with South Africa’s obligations under the International Labour Organization’s Convention (No. 100) concerning Equal Remuneration.

The Bill introduces three central reforms:

1. Prohibition on salary history: Employers will be prohibited from asking about, or relying on, an applicant’s past or current remuneration in recruitment and hiring decisions.
2. Mandatory pay transparency: Employers must disclose remuneration or remuneration ranges:

• in job advertisements; and
• on request by applicants or employees.

3. Right to discuss pay; Employees will be permitted to share and discuss remuneration information, limiting the enforceability of pay secrecy practices.

Key provisions of the updated Bill

Definitions

The updated Bill introduces important new or amended definitions, including the following:

• “Current remuneration”, which was not defined in the earlier version of the Bill, is now defined as “the remuneration of a person in their current employment”.
• In relation to the “employment policy or practice” definition, the updated version of the Bill adopts a cleaner approach to the amendments proposed in the earlier version. In addition, the updated version of the Bill inserts a new, standalone sub-paragraph (cA) to the definition that expressly covers “salary benchmarking and remuneration ranges for a job or position” as an employment practice or policy.
• “Enquiring”, which was set in the earlier version of the Bill as “enquire”, has been more broadly defined to mean “any attempt to gather information, directly or indirectly, either personally or through an agent”.
• “Past remuneration” is defined more narrowly than in the earlier version of the Bill as “the remuneration of a person in any of their past employment”.
• “Remuneration information” has been defined as “any information or records relating to or showing a person’s remuneration, including salary records and proof of payment”. This is a change from the reference in the earlier version of the Bill to “past remuneration information”.
• “Remuneration range”, which was not defined in the earlier version of the Bill, is now defined as “the range of remuneration that an employer currently pays for a job or position, or intends in good faith to pay upon hire”.

Remuneration transparency: Proposed section 6A to the EEA

Employers will be required, when conducting job classification, grading or evaluation, to determine the remuneration or, where applicable, the remuneration range for each job or position. The framing of this provision is different from the earlier version of the Bill, which was conditional and set the obligation to determine remuneration ranges as being triggered only if an employer conducts job classification and grading. However, the obligation is now framed as being mandatory whenever classification occurs, and expressly subject to section 6(4) of the EEA and any prescribed criteria/methodology prescribed in terms of section 6(5) of the EEA.

A new obligation has also been included for an employer to disclose, on request, the remuneration or remuneration range for a job or position for which a person is currently employed or for which they have applied or wish to apply. This is different to the position in the earlier version of the Bill that only required disclosure before appointing, promoting or transferring an employee into that position, and when advertising or recruiting for that position.

Prohibition on use of past or current remuneration: Proposed section 6B of the EEA

The prohibition under the proposed section 6B was impersonally framed in the earlier version of the Bill. It has now been made clear that it is an employer who is prohibited from, in the process of recruiting, selecting or appointing an applicant for a job or position:

• enquiring into an applicant’s past or current remuneration or requiring their past or current remuneration information; and
• determining the remuneration or terms and conditions of employment for a job or position based on an applicant’s past or current remuneration.

The exception to the above is that where an offer of employment has already been made to a job applicant, the applicant may then make a request, in writing, that their past or current remuneration be considered.

Importantly, a new provision has been added that any past or current remuneration will not justify any income differential or unfair discrimination.

Proposed amendments to section 9 of the EEA

Section 9 of the EEA currently provides that, for the purposes of sections 6, 7 and 8 of the EEA, the word “employee” includes an applicant for employment. In practical terms, this means that those provisions of the EEA that deal with unfair discrimination, medical testing and psychological testing extend their protections not only to people already employed, but also to those applying for jobs.

The Bill proposes to substitute section 9 in its entirety and replace the existing provision with a new section 9 headed “Applicants”, which reads: “For purposes of sections 6, 6A, 7 and 8, ‘employee’ includes an applicant for employment.”

There is also no reference to the proposed section 6B in the substituted section 9. This appears to align with the now personified formulation of the proposed section 6B alluded to above, and the express reference to “applicants” in that proposed section.

Next steps

The Bill is currently open for public comment and interested parties and institutions are invited to submit written representations on the proposed content of the Bill to the Speaker of the National Assembly within 30 days (i.e. by 29 May 2026). Such representations can be:

• delivered to the Speaker, New Assembly Building, Parliament Street, Cape Town;
• mailed to the Speaker at PO Box 15, Cape Town, 8000; or
• e-mailed to speaker@parliament.gov.za and copied to info@fairpaybill.co.za.

An unintended consequence of the Bill may be employers facing an upward wage pressure and reduced flexibility in remuneration negotiations.

We will continue to monitor developments and provide further guidance as the Bill progresses through Parliament.