WHAT THE LAW SAYS: Employees are entitled to equal pay for work of equal value
According to the Commission for Conciliation, Mediation and Arbitration (CCMA”) South Africa has a legacy of discrimination in relation to remuneration and benefits that are paid to Employees based on race, gender and other discriminatory grounds.
The Employment Equity Act 55 of 1998 (hereinafter referred to as “the EEA”) and its Regulations provide protection to all Employees in 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 section 6(1) of the EEA is considered to be an act of unfair discrimination.
The listed grounds are 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, birth or any other arbitrary ground. An arbitrary ground is one not listed above, however, the Courts have described an arbitrary ground as one that is based on features and characteristics that cannot be changed or altered and which have the potential to harm the dignity of an Employee or to affect the Employee negatively when compared to other Employees. An example of an unlisted arbitrary ground would be discriminating against an Employee who has a certain chronic illness or on the grounds of citizenship.
What is considered as work of Equal Value?
Work of equal value may include, but is not limited to; the job being the same or identical as that of the job that it is being compared with; the job is largely the same and it is possible for the Employee to swap jobs with the Employee earning more for the same job; the outputs of the job are of equal value to the Employer and the skills, qualifications and experience required to perform the job efficiently are similar to that held by the Employee being paid more.
What can an Employee do to resolve an Equal Pay for Equal Work Value dispute?
Any Employee who believes that he or she is being discriminated against in respect of the EEA provisions as it relates to equal pay for equal work value needs to ascertain first and foremost that the job which the Employee is comparing his or her own with is being performed by a fellow Employee of the same Employer. Once this is confirmed, the Employee needs to ascertain that the ground on which discrimination is claimed is clearly identified.
For example, the Employee must be able to confidently illustrate that he or she performs the same work as the Employee earning more for the same job and that the latter Employee earns more because, for example, he is a male and the Employee that believes there is an unfair discrimination act is a female, accordingly resulting in discrimination on the basis of sex, which is a listed ground in terms of the EEA.
After the basis of the discrimination is clearly identified, the EEA requires that the Employee must first lodge a formal complaint internally with his or her Employer in order to show that a reasonable attempt has been made to resolve the dispute internally before referring it to the CCMA. If the complaint is not resolved internally, a dispute may be referred to the CCMA for conciliation within 6 (six) months from the date of the discriminatory act. If the dispute is not resolved at conciliation stage at the CCMA an Employee has the right to, within 90 (ninety) days of date the dispute was declared unresolved at conciliation stage refer the matter as follows:
The Employee may refer the matter to the CCMA if the Employee earns less than the threshold as per the Basic Conditions of Employment Act 75 of 1997 (currently R205 433.30 per annum), or;
The Employee may refer the matter to the Labour Court for adjudication if the Employee earns more than the aforementioned threshold; or
If there is a written agreement of consent between the Employer and the Employee, irrespective of the level of earnings of an Employee, the Employee may refer the dispute to the CCMA for arbitration. Commissioners arbitrating such disputes have the power to make any appropriate arbitration award that gives effect to the EEA, including an award ordering payment of compensation, payment of damages or an order directing that the Employer take steps to prevent the same unfair discrimination or a similar practice occurring in the future in respect of other Employees.
What can Employers do to ensure they are complying with the EEA?
Employers should conduct grading and job evaluation exercises regularly to ensure that pay levels are fair and do not discriminate on any of the listed grounds or on an arbitrary ground in terms of the EEA. However, there may be instances where the Employer is justified in paying an Employee less. The EEA regulations provides that if an Employee performs work that is of equal value, a difference in terms and conditions of employment, including remuneration, is not unfair discrimination if the difference is fair and rational and is based on any one or a combination of the following grounds, inclusive but not limited to; the Employee’s own seniority or length of service; the Employee’s own qualifications, ability, competence or potential above the minimum acceptable levels required for the performance of the job; the existence of a shortage of a relevant skill, or the market value in a particular job classification or any other relevant factor that is not unfairly discriminatory in terms of section 6(1) of the EEA.
Before resorting to litigation Employees should seek professional legal advice in respect of ascertaining whether they are in fact being discriminated against and further whether that discrimination is not classified or justified as fair and rational in terms of the EEA. That said, Employers should ensure they are complying with the EEA and seek regular professional legal advice or auditing of their policies in terms of grading and job evaluation exercises and compliance measures.
Fadia Arnold is a Senior Associate at Schoemanlaw