Equal Pay for Work of Equal Value

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Equal Pay for Work of Equal Value

Code of Good Practice: ‘Equal Pay for Work of Equal Value’ – Glossary of Legal Terms, Words & Phrases

By Johann Scheepers

 

Introductory Comments

As readers of this article would in all probability be aware the first of the amendments to South African labour legislation namely, the The Employment Equity Amendment Act, 47 of 2013 [EEA] and the Employment Equity Regulations, 2014 [EER] came into effect on 01 August 2014.

 

Following thereon, the Minister of Labour, in terms of Section 54(1) of the Employment Equity Act, 1998 (Act No 55 of 1998 as amended), and on the advice of the Commission for Employment Equity, published a draft Code of Good Practice on Equal Pay for Work of Equal Value (‘the Code’) for public comment.

 

The dates for submission of comment have come and go and insofar as public comment in the media and other relevant publications on labour issues are concerned, nothing of note was reported as to the contents of the draft Code.

 

Shortly before the festive season dawned upon us the President of the RSA, by means of proclamation declared that the Labour Relations Amendment Act, 2014 (Act No 6 of 2014) (‘the LRAA’) shall come into operation on 01 January 2015.

 

Therefore and as from New Years day, to wit, 01 January 2015 all the legislative amendments would be of full legal force and effect. This will bring into fruition the proposed legislative reforms that formed the subject matter of extensive consultations held over a period of almost four years at NEDLAC whereupon 'consensus' was reached as to most of the amendments to labour laws.

 

One of the more important and regarded by some as controversial is the codification as part of SA Employment Equity Law namely the internationally recognized principle of ‘EQUAL PAY FOR WORK OF EQUAL VALUE’. This was done in compliance with South Africa’s public international law obligations and more specifically the Conventions of The International Labour Organisation (the ILO) – Convention 100 dated 06 June 1951, adopted at its 34th Session as proposals in the form of ‘Articles’ and duly incorporated as part of the ‘Equal Remuneration Convention, 1951 (No. 100).

 

From an interpretive perspective and also included as part of SA Employment Equity Law are those international law obligations as contained in the ILO Convention (111)…’Discrimination in Respect of Employment and Occupation.’  

 

In an attempt at providing clarity and practical guidance the draft Code of Good Practice on Equal Pay for Work of Equal Value (‘the Code’) was published as referred to supra.

 

The objective of the Code is “to provide practical guidance to employers and employees on how to apply the principle of equal remuneration for work of equal value in their workplaces. This Code seeks to promote the implementation of remuneration equity in the workplace by employers, including the State, employees and trade unions through human resources policies, procedures, practices and job evaluation processes.” [See: EMPLOYMENT EQUITY ACT, 1998 (ACT 55 OF 1998 AS AMENDED)

DRAFT CODE OF GOOD PRACTICE ON EQUAL PAY FOR WORK OF EQUAL VALUE, GOVERNMENT GAZETTE, 29 SEPTEMBER 2014, No. 38031 at 4].

 

Pursuant to a posting in LinkedIn by SA Labour Guide (Labour Law) and in particular with reference to  an interesting publication by Griessel Consulting “EQUAL PAY CLAIMS – PRACTICAL GUIDELINES” (2014) This email address is being protected from spambots. You need JavaScript enabled to view it. ; including the Code supra, it was deemed appropriate and in the interests of clarity and legal compliance to conceptualize and draft this ‘article’ or posting. 

 

Purpose of the ‘Article’ Cum ‘Guide’

The purpose hereof is to provide the reader with a ‘Glossary of Legal Terms, Words & Phrases’ in edification of terminology used in the Code and referred to in the publication by Griessel supra. Most if not all of the terms, words and phrases contained herein are interchangeably contained in the Code as well as in Griessel.

 

The readers hereof would find it of considerable benefit to obtain a copy of the publication by Griessel as well as the Code in that it would prove to be of assistance in ensuring compliance with the law as it pertains to the principle of Equal Pay for Work of Equal Value.

 

At the outset it should be recorded that postings on the LinkedIn network should preferably be brief and not created; nor perceived by the reader as if a comprehensive or an authoritative work of reference on the subject matter. The objective is to edify, within the confines of the medium and to generate interest and possible debate on the subject matter.

 

Glossary of Legal Terms, Words & Phrases - ‘Equal Pay For Work Of Equal Value’

 

‘Discrimination’ or ‘to Discriminate’

 

The term ‘discrimination’ or ‘to discriminate’ is widely used, by all and sundry, not only within the sphere of employment law. The use of the term or notion is to be found within almost all areas of human interaction albeit socially, politically or wherever it finds appeal. For the purpose of this article it would be analysed from an employment law perspective.    

 

In Woolworths (Pty) Ltd v Whitehead[2000] 6 BLLR 640 (LAC) at [70] – [71] the SA Labour Appeal Court observed in a matter that pertained to “unfair discriminationon the ground of pregnancy, at [71] that “[Traditionally]…the use of the word “discrimination” in its modern sense was, if not unheard of, considered to be a serious solecism. One has only to compare the current Oxford Dictionary with fairly recent past editions to understand that “discrimination” in the sense of being some kind of concrete act that impacts unjustly, prejudicially and negatively upon another is a modern concept…” [Emphasis added].

 

Grogan, J “Dismissal” Juta 2014 ed. at 137 observes that “discrimination”, in its neutral sense, arises when an employee is treated differently from his or her colleagues in circumstances, which on the face of it; indicate that the employee should not be treated differently.” [Emphasis added].

 

ILO Convention no 111,”The Convention Concerning Discrimination in respect of Employment and Occupation of 1958 read together with the Recommendation of the same number. Article 1 of the Convention defines the term “discrimination”.

 

It provides:

 

“1.For the purposes of this Convention, ‘discrimination’ includes–

 

(a) any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation;

 

(b) such other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation as may be determined by the Member concerned after consultation with ‘representative employers’ and ‘workers’ organisations, where such exist, and with other appropriate bodies.

 

2. Any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination. [Emphasis added].

 

3. For the purpose of this Convention the terms ‘employment’ and ‘occupation’ include access to vocational training, access to employment and to particular occupations, and terms and conditions of employment.” [Emphasis added].

 

Article 5(2) of the Convention provides that:

 

“Any member may, after consultation with ‘representative employers’ and workers’ organisations, where such exist, determine that other special measures designed to meet the particular requirements of persons who, for reasons such as sex, age disablement, family responsibilities or social or cultural status, are generally recognised to require special protection or assistance, shall not be deemed to be discrimination.”

 

It is generally accepted that ‘discrimination’ should be interpreted as implying a ‘pejorative meaning’ relating to the ‘unequal treatment of people based on attributes or characteristics attaching to them’. [See: Grogan at 137].

 

The requirement that discrimination must involve some detrimental impact is also found in the SA Equality Act, 4 of 2000, in which discrimination is defined as ‘any act or omission which imposes burdens, obligations or disadvantage on . . . or withholds benefits, opportunities or advantages from any person on one or more of the prohibited grounds’.

 

These complexities were largely avoided in the employment context with the enactment of the EEA. The interpretation clause of the EEA expressly states that the Act must be interpreted ‘in compliance with ILO Convention 111 Concerning Discrimination in Respect of Employment and Occupation’ [s 3(d) of Act 55 of 1998] which, in turn, defines ‘discrimination’ as including: [See: ILO Convention 111 (a) – (b) supra. [Emphasis added].

 

It will be noted that, in terms of South African Employment Equity legislation, the notion of ‘discrimination’ is separated as a form of conduct from the grounds which render it‘unfair’, the Convention combines these two aspects into a single concept. There is, however, no difficulty in reconciling the two stages of the South African test to establish discrimination with the equivalent aspects of the ILO definition. [Emphasis added].

 

Measured against this definition, the South African concept of ‘discrimination’ (i.e., the ‘first stage’ of the inquiry) must be understood as meaning ‘any distinction, exclusion or preference. . . which has the effect of nullifying or impairing equality of opportunity in treatment in employment or occupation’. [Emphasis added].

 

This, it will be noted, offers a criterion which, in the employment context, is more precise and, arguably, more encompassing than the Constitutional test [See: Section 9 “Equality”, Constitution of RSA, 1996].

 

Rather than requiring a broad inquiry as to whether the employer’s conduct amounts to unequal treatment of a ‘pejorative’ nature, the question is rather whether it falls within the terms of the definition without necessarily making reference to a comparator or to its impact on the complainant’s dignity. [See: Gorgan at 137; Du Toit, D et al “Labour Relations Law – A Comprehensive Guide”, 2007 at Chapter XI 2.4. - “Discrimination”].   

 

The second stage’of the South African test – that is, the inquiry into ‘unfairness’ (discussed below) – corresponds to ascertaining whether discrimination is on a prohibited ground equivalent to those proscribed by the Convention. [Emphasis added].

 

The importance of Convention 111 as a point of reference in defining the meaning of ‘discrimination’ was accepted even prior to its ratification by South Africa in 1997. With the enactment of the EEA its status as a codified source of law was formally established.

 

‘Direct’ or ‘Indirect Discrimination’

 

Direct discrimination:

 

In the authoritative publication by Pretorius, JL et al, “Employment Equity Law” LexisNexis 2012 (Service 12) [3-3] – [3-4], the learned authors refer toLewis v Media 24 Ltd (2010) 31 ILJ 2416 (LC) at par 38: “[Discrimination] would be ‘direct’ if the employer ‘treats’ the employee differently from others because of the ‘prohibited ground’ – for example sexual harassment or a policy that provided housing subsidies for male teachers but not for female ones.” [The equivalent term in North America is “disparate treatment”]. 

 

Indirect discrimination:

 

In Lewis supra at par 38, the SA Labour Court observed that ‘indirect discrimination’ occurs when an employment policy or practice is based on a ‘non-prohibited ground’ (example, appearance or work experience), but its effect is that a category or group of persons, protected under a ‘prohibited ground’ of discrimination,is adversely effected. [The equivalent term in North America is “disparate impact discrimination” – see: Player “Employment discrimination law. Cases and materials (1988) 244 et seq; Hunter “Indirect discrimination in the workplace (1992) 3 – in re: Title VII of the USA Civil Rights Act 1964; also see: Pretoruis supra at 3-3].

 

For instance, basing an adverse employment decision on a physical requirement such as strength or height, does not fall directly under any of the ‘specified’ or rather ‘listed grounds’ or ‘analogous grounds’, but may in specific circumstances indirectly affect one of the specified grounds (e.g., gender, ethnicity or race), or may well constitute a form of discrimination that ‘indirectly’ impinges on the dignity of the individual. [Emphasis added].

 

For example, in IMATU & another v City of Cape Town[2005] 11 BLLR 1084 (LC) the Labour Court found that an Applicant for the job of a fire fighter who had been refused an appointment to this post because he was an insulin dependent diabetic (Type One diabetes) had been ‘unfairly discriminated’ against on a ground ‘analogous’ to that of the ‘listed grounds’ of disability, HIV Status or perhaps even birth. The test of whether a ground is analogous to the ‘listed grounds’ was whether the alleged discrimination had; ‘… the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner.’

 

Explanatory notes:

 

The use of the legal terms and phrases by reference to the authorities cited supra namely, ‘specified grounds’or rather ‘listed grounds’,‘analogous grounds’,‘prohibited grounds’ and‘non-prohibited grounds’ may be rather confusing to the reader in that they denote to the same or similar sections referred to in the Code, in Griessel, the EEA and EER.

 

It was therefore deemed appropriate and in clarification to quote the ‘new’ or amended section 6(1) of the EEA that deals with the Prohibition of ‘Unfair’ Discrimination: 

 

‘‘(1) No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds [listed grounds], including 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 on any other arbitrary ground.’’; and

 

(2)…;

 

(3)…;

 

‘‘(4) 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.” [Emphasis added].

 

 ‘Unfair Discrimination’

 

According to Pretoruis supra at 2-22, in which the learned authors referred to the judgment by the Constitutional Court in Harksen v Lane NO infra, that even though a differentiation in treatment does not necessarily constitutes a violation of Section 9(1) of the SA Constitution [‘The Equality’ clause], it may amount to ‘unfair discrimination’ for the purposes of Section 9(3) or (4) of the SA Constitution.

 

A distinct and separate two stage analysis is required, namely:

 

  • The question whether differentiation amounts to ‘discrimination’?; and if it does
  • The question whether the differentiation amounts to ‘unfair discrimination’?   

 

 In Harksen v Lane NO & others 1998 (1) SA 300 (CC) when interpreting and applying section 8 of the Interim Constitution, the Equality Clause.

 

The SA Constitutional Court commented as follows – ‘what the specified grounds have in common is that they have been used (or misused) in the past (both in South Africa and elsewhere) to categorise, marginalise and often oppress persons who have had, or who have been associated with, these attributes or characteristics. These grounds have the potential, when manipulated, to demean persons in their inherent humanity and dignity… [See: IMATU v City of Cape Town supra].

 

In New Way Motor & Diesel Engineering (Pty) Ltd v Marsland [2009] 12 BLLR 1181 (LAC) a similar approach was adopted in the interpretation of s 187(1)(f) of the Labour Relations Act, 66 of 1995 which provides that discriminatory dismissals are automatically unfair. Section 6 of the EEA has now been amended to insert the words “and any other arbitrary ground”at the end of the section. The reason given in the explanatory memorandum for the amendment is -

 

‘… that it seeks to clarify that discrimination is not only permitted on a ground listed in that section

 

but also on any other arbitrary ground.[See: Le Roux, PAK “The Employment Equity Act – New amendments set problems and posers” Contemporary Labour Law vol 24 2014, 1-2].

 

Suffice it to record that that the Code and the EER includes factors justifying differentiation in terms and conditions of employment [inclusive of remuneration] with the proviso that the differentiation does not constitute unfair discrimination in that the difference is fair and rational and based on those grounds as set out in regulation 7 of the EER and in item 7 the Code “Factors Justifying Differentiation In Remuneration”.

 

‘Other Arbitrary Grounds’

Regulation 3(1) of the regulations published in terms of Section 55 read with s 6(5) of EEA distinguishes between a listed ground and an arbitrary ground. Regulation 3(1) stipulates:

 

“Eliminating unfair discrimination:

 

(1) An employer must, in order to eliminate unfair discrimination, take steps to eliminate differences in

terms and conditions of employment, including remuneration of employees who perform work of

equal value if those differences are directly or indirectly based on a listed ground or any arbitrary

ground that is prohibited by section 6(1) of the Act.

 

(2) Without limiting sub-regulation (1), an employer must ensure that employees are not paid different

remuneration for work of equal value based on race, gender or disability.”

 

According to Le Roux supra 3, Section 6(4) of the EEA does not state that a difference in terms and conditions of employment in the circumstances envisaged therein constitutes discrimination but rather that it constitutes unfair discrimination. At first sight this therefore means that once a difference as envisaged in Section 6(4) is established this will be regarded as unfair discrimination.

 

But this must be read with s 6(2) which states that it is not unfair discrimination to take affirmative action measures or to distinguish, exclude or prefer on the basis an inherent requirement of the job.

 

According to Grogan supra 158, not every arbitrary dismissal [reference to Section 187(1)(f) of the LRA ‘automatically unfair – arbitrary grounds’] is necessarily discriminatory. ‘Arbitrary’means, in its generally accepted sense, an action that is capricious, or not based on reason.

 

In Woolworths (Pty) Ltd v Whitehead [2000] 6 BLLR 640 (LAC) arbitrary was defined as denoting ‘the absence of a justifiable reason’ [at para 128]; also see:Louw v Golden Arrow Bus Services (Pty) Ltd [2000] 3 BLLR 311 (LC).

 

Therefore, the defence or as some termed them ‘the escape clauses’ as stipulated in Section 6 (2) of the EEA remain of relevance. Section (6)(2) stipulates:

 

“(2) It is not unfair discrimination to—

 

(a) take affirmative action measures consistent with the purpose of this Act; or

 

(b) distinguish, exclude or prefer any person on the basis of an inherent requirement of a job.”

 

One will have to adopt a ‘wait and see approach’, so to speak as to the interpretation by the Courts as to the interpretation and application of the term ‘an arbitrary ground.’

 

As indicted the purpose of this article is an attempt to address some of the legal terminology, phraseology and legal concepts that are more broadly used and referred to in the draft Code Of Good Practice On Equal Pay For Work Of Equal Value (the Code), The Employment Equity Amendment Act, 47 of 2013 [the EEA] and the Employment Equity Regulations, 2014 [the EER] that came into effect on August 01, 2014. Reference would where deemed necessary be made to case law and other legal authorities, some of which were referred to in the article dated December 30, 2014.

 

In addition to an attempt to define and where appropriate clarify some of the legal terms and phraseology contained in the amended statute, regulations and draft code in the form of glosses, the writer deemed it appropriate to refer to international jurisprudence and authorities in edification of legal concepts that may be classified as ‘foreign’ to the South African reader by virtue of the limited availability of jurisprudence on the subject matter of Equal Pay Claims.

 

As addressed more fully hereunder, one of the many interesting amendments to SA Employment Equity legislation is to be found in section 10 (6) of the EEA namely that access to the adjudication of unfair discrimination claims has been extended in that prior to the amendments adjudication of unfair discrimination claims was limited to Labour Court adjudication.

 

CCMA or Labour Court?

 

In terms of the EEA parties to a dispute are given the option to refer a dispute to arbitration under the auspices of the Commission for Conciliation, Mediation and Arbitration (CCMA) under the following circumstances:

 

·         Applicants may refer disputes to the CCMA for arbitration in terms of section 10(6)(b)(i), if the Applicant’s cause of action arises from an allegation of unfair discrimination on the grounds of sexual harassment;

 

·         Applicant’s who earn less than the earnings threshold as specified by the Minister of Labour in terms of the Basic Conditions of Employment Act No. 75 of 1997, (the BCEA), determine that all employees

 

·         earning less than R205 433.30 would be entitled to refer any discrimination claim to the CCMA for arbitration in terms of s10(6)(b)(ii); and

 

·         Any party to a dispute may refer the dispute to the CCMA for arbitration in terms of section 10(6)(c), if all the parties to the dispute consent thereto.

 

In an article published in Juta Legal Brief Today – Workplace (January 21, 2015) reference was made to an interview with CCMA Director Nerine Khan, published in Business Day wherein it was reported, Kahn said that changes to the Employment Equity Act had seen almost a doubling of complaints about unfair discrimination – to 410 since August – which, however, remained low in the SA context and in terms of the total number of complaints received by the Commission.

 

The previous system had ‘cost a lot of money and was not very user friendly’, and the CCMA believed there was still widespread misunderstanding of the grounds for employees to lay complaints, she said in the report. The CCMA would seek to improve education about issues of unfair discrimination as it expected to take three or four years to make some changes clear…I think the law will be challenged quite a bit, Ms Kahn said..” [Emphasis added].

 

In another comment published in the same article referred to above it was reported, “Labour lawyer Andrew Levy said there would be legal challenges. With equal work for equal pay as an example, he said there were few people with a background and experience in this fieldI think there will be a great deal of review work."[In all probability referral was made by the commentator to the judicial review process in terms of section 145 of the SA Labour Relations Act, 66 of 1995 – now the Labour Relations Amendment Act, 2014 (the LREA)].

 

Against the above background the conceptualisation and drafting of this article took place.

 

Purpose of the ‘Article’

 

The purpose hereof is to provide the reader with a ‘Glossary of Legal Terms, Words & Phrases’ in edification of terminology used in the Code and referred to in the EEA as well as in the EER.Most if not all of the terms, words and phrases contained herein are interchangeably contained in the Code as well as in the EEA and the EER.

 

At the outset it should not be recorded that postings on the LinkedIn network should preferably be brief and not created; nor should it be perceived by the reader as if a comprehensive or an authoritative work of reference on the subject matter. The objective is to edify, within the confines of the medium and to generate interest and possible debate on the subject matter.

 

Writer would also refer to the same or similar international jurisprudence on the subject matter that may prove of relevance and edification to the reader.

 

At this juncture it was deemed apposite to draw the reader’s attention to the wording of item 3.3 of the Code which reads as follows:

 

“3.3. The ILO Equal Remuneration Convention 1951 (No. 100), which South Africa ratified in 1995, obliges ratifying member states to give effect to the principle of equal remuneration for men and women workers for work of equal value. The principle of equal remuneration for work of equal value applies equally to equal value claims based on race, or any other ground listed in section 6(1) or any other arbitrary ground.

 

As the Labour Court has pointed out, this is - "consistent with the substantive conception of equality that the Constitution and the EEA adopt, and in particular, a recognition that since race historically played a role in the value attributed to particular jobs, a systemic approach to the elimination of what might often be structural inequality is necessary.” [See: Mangena & others v Fila South Africa (Pty) Ltd & others [2009] 12 BLLR 1224 (LC) at para 5].

 

In Fila, which was handed down in terms of the ‘old’ EEA in existence prior to the amendments the Court determined, “To this extent, this court is required to interpret the EEA in compliance with South Africa’s public international law obligations Convention 100 was ratified by the Government of South Africa in 2000; Convention 111 in 1997. S 3(d) of the EEA requires the Act to be interpreted in compliance with South Africa’s international law obligations.”

 

The SA jurisprudence prior to the amendments is not confined to the Fila judgment.

 

It was deemed appropriate to briefly refer hereunder to some noteworthy reported judgments by the SA Labour Court.

 

Louw v Golden Arrow Bus Services (Pty) Ltd [2000] 3 BLLR 311 (LC)

 

In Louw the Court held that fairness requires that people be paid equally for equal work and, analogously, that work of equal value should receive equal pay. Although these principles are not enshrined in the unfair labour practice definition, they are principles of justice, equity and logic which may be taken into account when considering whether an unfair labour practice has been committed.

It is not an unfair labour practice to pay different wages for equal work or for work of equal value. It is, however, an unfair labour practice to pay different wages for equal work or for work of equal value if the reason or motive, being the cause of so doing, is direct or indirect discrimination on arbitrary grounds or on the grounds listed in the definition. An employer may discriminate, even unfairly, on any grounds or for any reason not proscribed by the Act.

 

An unfair labour practice is committed only if an impermissible ground is the cause of the discrimination. The mere existence of disparate treatment of people of different race, for example, is not discrimination unless the difference in race is the cause of the disparate treatment. The applicant was accordingly obliged to prove that he was paid less than his white colleague because of his race.

 

As to whether discrimination had to be the sole cause of the contested act or omission, or merely a cause thereof, any remedy had to be proportional to the extent of the discrimination. In unfair labour practice claims, the onus of proving unfair discrimination on a balance of probabilities rests on the applicant, except that the burden of proof shifts to the respondent when it raises a defence that is peculiarly within its knowledge.

 

Even in such cases, the overall onus remains on the applicant, but less evidence is required to make out a prima facie case. The Court held further that it was not necessary to follow United States jurisprudence when deciding whether the applicant in an unfair discrimination case has discharged the onus. As in other cases, the task of the Court is to select the most probable inference to be drawn from the facts. [See: Editor’s Summary – courtesy LexisNexis BLLR].

 

Ntai & others v South African Breweries Ltd [2001] 2 BLLR 186 (LC)

 

In Ntai the Court held that the applicants had proved a prima facie case of discrimination that called for an explanation from the respondent, as only the respondent could know the reason for its actions. An application for absolution from the instance at the conclusion of the applicant’s evidence was accordingly refused.

 

The respondent, though admitting that the differential in pay between the applicants and their colleagues was too wide, based its explanation on a series of performance-related pay increments, and the greater experience and length of service of the higher paid employees.

 

The applicants had not attacked the remuneration policy of the respondent per se. Furthermore, the gap between the applicants and their colleagues had narrowed in recent years. Even if it could be said that the wage gap was still too high, there was no evidence to warrant the conclusion that it was based on race. The Court noted further that the applicants were being paid in accordance with the market-related remuneration policies of the respondent. The only way to close the gap between them and their colleagues would be to reduce the latter’s’ remuneration. This respondent could not reasonably be expected to do.

 

Furthermore, the applicants had failed to identify the grounds upon which their allegation of “arbitrary discrimination” was based. That the salary gap may have been attributable to the historical aftermath of job reservation had been raised only as a possibility. Indirect discrimination arises in this context only when the issue in dispute is equal pay for equal work, and it is proved that a practice affects black employees disproportionately as a group. Although it may be that levels of seniority at a given time constitute indirect discrimination, the overall onus to prove such a claim still rests on the applicants.

 

However, he applicants had chosen not to rely on indirect discrimination.

 

The application was dismissed. [See: Editor’s Summary – courtesy LexisNexis BLLR].

 

Transport and General Workers Union and another v Bayete Security Holding [1999] JOL 4484 (LC)

 

In Bayete Security Holding the Court found that the only form of unfair labour practice that can be adjudicated by the Court was unfair discrimination on the grounds specified in item 2(1)(a) of Schedule 7. The applicant/plaintiff was accordingly obliged to demonstrate that his claim falls within the terms of that provision. To do so, he must in the first instance prove that he has been the victim of discrimination: Public Servants Association of SA & others v Minister of Justice & others(1997) 18 ILJ 241 (T).

 

Only once this is proved, does the onus shift to the respondent to prove the discrimination did not amount to unfair discrimination in the sense contemplated by items 2(2)(b) or (c). A bald averment that there has been discrimination is not sufficient to shift the onus in this sense: see Swanepoel v Western Region District Council & another [1998] 9 BLLR 987 (SE).

 

The applicant did not succeed in surmounting the first hurdle. The only facts from which he expects the Court to infer that he was discriminated against was that he, a black, was earning R1 500 and that Louw, a white, was earning R4 500. The applicant admitted in evidence that he did not know what work Louw performed, what his educational qualifications or experience were, for whom Louw had previously worked and for how long.

 

The applicant also conceded that Louw was designated a manager, and that he was not.It was correct in law that to pay one employee more than another for doing the same work may have amounted to an unfair labour practice under the 1956 Act (see: SA Chemical Workers Union v Sentachem Ltd(1988) 9 ILJ 410 (IC)), and would also be so under the new Act if it is done for an arbitrary reason.

 

However, the mere fact that an employer paid one employee more than another did not in itself amount to discrimination: see Du Toit et al The Labour Relations Act of 1995 2ed 436. “Discrimination takes place when two similarly circumstanced individuals are treated differently. Pay differentials are justified by the fact that employees have different levels of responsibility, expertise, experience, skills, and the like.”

 

The applicant failed to place any facts before the Court that would justify the conclusion that he was paid less than Louw merely because he is black, and Louw white, or that the difference in their incomes was for any other arbitrary reason.

 

There was accordingly no basis from which to draw the inference that the applicant was discriminated against in the sense contemplated by item 2(1)(a), or at all.

 

The application was dismissed. [See: Mini Summary – courtesy of LexisNexis JOL].

 

It is submitted that reference to international jurisprudence, where relevant and appropriate could be regarded as justifiable and authoritative source of law. 

Pertinent to Equal Pay Claims is the definition of the ‘new’ or amended section 6(1) of the EEA that deals with the Prohibition of ‘Unfair’ Discrimination: 

 

‘‘(1) No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds [listed grounds], including 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 on any other arbitrary ground.’’; and

 

(2)…;

 

(3)…;

 

‘‘(4) 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.” [Emphasis added].

 

It is recommended that the reader peruse; alternatively obtain a ‘hard copy’ of the initial article, entitled, “CODE OF GOOD PRACTICE ‘EQUAL PAY FOR WORK EQUAL VALUE’ - A GLOSSARY” (Part One] submitted on December 30, 2014.

 

Reference would be made interchangeably herein to legal terms, phrases and terminology addressed and defined in Part One. Without access and the ability to cross reference to Part One the reader may find this article of byzantine complexity. 

 

Section 6 of the EEA that deals with the prohibition of unfair discrimination stipulates, ‘‘(1) No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice…

 

‘Any employment policy or practice…’

 

This term is extensively defined in section 1 of the EEA and includes remuneration, employment benefits and terms and conditions of employment’.

 

The principle is therefore that an employer will be guilty of unfair discrimination if it pays one employee less than another employee who performs the same job and the reason for this is a ground prohibited by section 6, unless the employer can justify such discrimination. [See: Le Roux, PAK “The Employment Equity Act – New amendments set problems and posers” Contemporary Labour Lawvol 24 2014, 3].

 

Note: Differentiation does not equal Unfair Discrimination:

 

Not all differences in terms and conditions / remuneration are prohibited or will be unfair. Employers are not required to pay all its employees the same remuneration. Only unfair discrimination is prohibited and there are various justifiable grounds for fair differentiation. [See infra “Grounds for justification”].

 

Differences in terms and conditions of employment (including remuneration) of employees of the same employer are not unfair discrimination where the complainant and the comparator do not perform the same or similar work or work of equal value.

A difference in remuneration of employees performing work of equal value will also only be unfair discrimination if the differences are directly or indirectly based on race, sex, gender, disability or any other grounds listed in section 6(1) of the EEA, or any arbitrary ground.

 

Unfair discrimination on this basis therefore exists only where -

 

(a) work of similar or equal value is performed; and

 

(b) differences in remuneration are directly or indirectly caused by a discriminatory ground such

as race, gender or disability (or any other ground as listed in section 6 of the EEA). [See: Griessel Consulting “Equal Pay Claims – Practical Guidelines” (2014) This email address is being protected from spambots. You need JavaScript enabled to view it. ;

 

According to Le Roux supra 3, the SA Labour Court has been willing, at least in principle, to accept that an employee need not limit his or her comparator to somebody doing the same job or broadly similar job but may also compare himself or herself with another employee whose job has an ‘equal value’, to that of his or her own.[See in this regard Mangena & others v Fila South Africa (Pty) Ltd & others [2009] 12 BLLR 1224 (LC) and Louw v Golden Arrow Bus Services (Pty) Ltd [2000] 3 BLLR 311 (LC)]. [Emphasis added].

 

In the important Fila judgment by Van Niekerk J, handed down prior to the amendments that came into effect 01 August 2014, the SA Labour Court pronounced on a claim of unfair discrimination on the ground of wage differentials based on prohibited grounds in terms of Section 6 of the ‘old’ EEA, and more specifically whether equal pay claims, and in particular claims for equal pay for work of equal value, are contemplated by the then EEA.

 

The Court observed that unlike equality legislation in many other jurisdictions, the EEA as it then was did not specifically regulate equal pay claims. Section 6 of the Act prohibits unfair discrimination in any ‘employment policy’ or ‘practice’, on any of the grounds listed in Section 6(1) or on ‘any analogous ground.’

 

Upon perusal of Fila the following conclusions could be made:

 

  1. Differentials in remuneration for work of equal value is not unfair, unless the cause is direct or indirect discrimination on the basis of race or any other prohibited ground:

 

  1. Essential element of a claim for equal pay for equal work is that the complainant mustestablish a factual foundation that the work of the comparator is equal; and

 

  1. The Court has no expertise in job grading or allocation of relative valueto a particular occupation or functions.

 

Of importance is that the case law referred to above was handed down prior to the statutory amendments to SA Employment Equity Legislation. As was mentioned in Part One and other articles published by the writer on LinkedIn the International Labour Organisation (the ILO) criticised the provisions of the ‘old’ EEA because it did not make explicit reference to ‘equal pay’ claims.

 

To meet this criticism section 6(4) has been introduced into the EEA. It 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 one or more of the grounds listed in subsection (1) is unfair discrimination.’ 

 

Meaning of ‘Work of equal value’:

 

The ‘new’ Section 6(4) in the EEA has been introduced to deal explicitly with unfair discrimination by an employer in respect of the terms and conditions of employment of employees doing the same or similar work or work of equal value.

 

A differentiation based on a proscribed ground listed in Section 6(1) or any other arbitrary ground will amount to unfair discrimination unless the employer can show that differences in wages or other conditions of employment are in fact based on fair criteria such as experience, skill, responsibility and the like.

 

The EER under “Definitions” defines: "work of equal value" includes works that is the same, substantially the same or of the same value as other work, as contemplated in regulation 4 of these Regulations. [Regulation 4 of EER prescribes – “Meaning of work of equal value”- see regulation 4 infra].

 

[Regulation 4]: “4. Meaning of work of equal value

 

For the purpose of these Regulations, the work performed by an employee -

 

(1) is the same as the work of another employee of the same employer, if their work is identical or

interchangeable;

 

(2) is substantially the same as the work of another employee employed by that employer, if the work

performed by the employees is sufficiently similar that they can reasonably be considered to be

performing the same job, even if their work is not identical or interchangeable;

 

(3) is of the same value as the work of another employee of the same employer in a different job, if

their respective occupations are accorded the same value in accordance with regulations 5 to 7.” [Emphasis added].

 

From the definition of “work of equal value” and the meaning ascribed thereto as set out in regulation 4 of the EER it is apparent that a person claiming (the complainant) that he/ she is entitled to the same terms and conditions of employment as those that another employee (the comparator) enjoys, should show:


  • that they are employed by the same employer;

  • that she does the same work as the comparator;

  • that she does substantially the same work; or

  • that she does work of equal value to the comparator as contemplated in the EEA.

 

It is clear that a complainant need not refer to a comparator who does exactly the same work. The scope of comparison is wider – it can include a comparator doing substantially the same work or work of equal value.

 

Therefore, it could be deduced that the test would not be whether the same or similar work is performed; rather it should involve an objective analysis or assessment of equal value. The work performed may in nature be entirely different, however intrinsically of equal value.

 

“Assessing whether work is of equal value”[See: EER 6]

 

According to Le Roux supra 4, Regulation 6 provides guidance as to how to determine whether two different jobs should be accorded the same value. In terms of this regulation the relevant jobs must be objectively assessed taking into account the following criteria –

 

  • The responsibility demanded of the work including responsibility for people, finances and material.

  • The skills, qualifications (including prior learning and experience) required to perform the work, whether formal or informal.

  • The physical, mental and emotional effort required to perform the work.

  • The conditions under which the work is performed, including the physical environment, psychological conditions and geographic location where the work is performed. This requirement is, however, subject to the proviso that it must only be considered to the extent relevant.

  • Any other factor indicating the value of work, provided that the employer shows that the factor is relevant in assessing the value of the work.

 

Commentary:

 

In a briefing document issued by The Equality Commission for Northern Ireland,Equal Pay For Work Of Equal Value” www.equalityni.org.the following advice was recorded, “The key point about equal value is that jobs, which at first sight may be very different, can turn out to be of equal value when analysed in terms of the demands made on the employee. The examples below show the breadth of comparisons that have been made in past cases. The golden rule is not to assume that jobs that are of different types (e.g. manual and administrative) cannot be of equal value.”

 

Comparing jobs on the basis of equal value means jobs that are entirely different in their nature can be used as the basis for equal pay claims. Job comparisons can be made both within a particular pay/grading structure and between different structures or departments. Equal value is likely to be relevant where men and women are in the same employment but do different types of work.

 

Some examples

 

The question of whether two jobs are of equal value involves a weighing and balancing between the features of different jobs. Examples of claims between very different jobs, which have been successful at tribunal or settled in favour of the applicant(s) include:

 

  • Primary school classroom assistant - library service driver messenger.

  • School nursery nurse - local government architectural technician.

  • Wholesale news distribution clerical assistant – warehouse operative.

  • Cook – shipboard painter.

  • Head of speech and language therapy service – head of hospital pharmacy service.

  • Nursing home sewing room assistant – plumber.

  • Motor industry sewing machinist – upholsterer.

  • Canteen workers and cleaners – clerical workers.

 

 Having regard from a value perspective to the examples referred to supra and especially the difference in job titles that at first glance seem irreconcilable, based on the perceived ‘semantic importance’ of the competing positions,then it is somewhat startling that upon an objective assessment and analysis of the intrinsic value of the two jobs the tribunal found or settled in favour of the Applicant(s).

 

The Canadian Ministry of Labour issued a document, which is updated on a regular basis, Your Guide to the Employment Standards Act, 2000” www.labour.gov.on.ca.

 

The guide is not a legal document however makes for interesting reading if compared with the same subject matter[s] addressed in the EER and the Code.

 

Equal Pay for Equal Work

 

Ontario has legislation called the Pay Equity Act to ensure that women and men receive equal pay for performing jobs that may be very different but are of equal value.

 

The Employment Standards Act, 2000, (the ESA) on the other hand, has provisions that ensure women and men receive equal pay for performing substantially the same job. That is, they are entitled to receive equal pay for “equal work”, meaning work that is substantially the same, requiring the same skill, effort and responsibility and performed under similar working conditions in the same establishment.

 

According to the ESA, a woman cannot be paid less than a man if she is doing “equal work.” This also applies in reverse; a man cannot receive less pay than a woman if he is doing “equal work.”

 

Substantially the Same Work

 

This means that the work is similar enough that it could reasonably be considered to fall within the same job classification. The jobs do not have to be identical in every respect, nor do they have to be interchangeable.

 

Substantially the Same Skill, Effort and Responsibility

 

Skill refers to the degree or amount of knowledge, physical, or motor capability needed by the worker performing the job.

 

Effort is the physical or mental exertion needed to perform a job.

 

Responsibility is measured by the number and nature of a worker’s job obligations, the degree of accountability, and the degree of authority exercised by a worker in the performance of the job.  

 

The readers hereof in all probability identified the same or similar legal terminology and explanations or definitions in clarification of legal concepts in the SA statute, code and regulations vis-à-vis the jurisdictions briefly referred to above.  

 

Many employers may feel somewhat overwhelmed by the complexity and more specifically the potential costs involved in litigation pertaining to Equal Pay Claims.

 

“Factors justifying differentiation in terms and conditions of employment” [See: EER 7]

 

Regulation 7 of the EER provides that, if employees perform work that is of equal value, a difference in terms and conditions of employment, including remuneration, will not constitute unfair discrimination if the difference is fair and rational and is based on any one or more or a combination of the following grounds –

 

  • Seniority or length of service.

  • Qualifications, ability, competence or potential above the minimum acceptable level required for the performance of the job.

  • Performance, the quality or quantity of work done, provided that employees are equally subject to the employer’s performance system and that this is consistently applied.

  •  The demotion of an employee as a result of organisational restructuring or for any other legitimate reason without a reduction in pay until the remuneration of other employees in the same job category (i.e. after demotion) reaches this level.

  • If an employee is temporarily employed in a position for the purposes of gaining experience or training and as a result receives different remuneration or enjoys different terms and conditions of employment.

  • The existence of a shortage of a relevant skill or the market value in a particular job classification.

  • Any other relevant factor that is not unfairly discriminatory.

 

Commentary:

 

Regulation 7(1) contains a list of factors that justify differentiation in terms and conditions of employment, including remuneration notwithstanding that the work performed is of equal value, with the proviso that the differentiation does not constitute unfair discrimination and that the difference is rational and based on any of the grounds such as seniority, length of service, qualifications and performance.

 

In the first instance the above factors may give rise to an inconsistency or objectivity challenge.

 

In the second instance some of the factors prima facie justify discrimination, however upon closer scrutiny may constitute indirect discrimination, for example seniority and length of service.

 

The employee may contend that seniority as a factor in justification of discrimination is inherently unfair in that the employee, due to an earlier discriminatory practice, has been excluded from certain positions and therefore not had the same opportunity to accrue seniority or experience.

 

The observation by Le Roux supra is apposite in that preparation for any litigation, including CCMA arbitration would have to be thorough and detailed.

 

It is envisaged that the testimony of expert witnesses may on occasion be necessary in order to be successful in litigation.

 

Concluding Comments

 

In addition to discrimination on an arbitrary ground and harassment, already provided for (see section 6(3)), the EEA now includes as a form of unfair discrimination “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” which is directly or indirectly based on one or other of the impermissible grounds (including, now, any other arbitrary ground) (section 6(4)).

 

In an authoritative article by J Grogan, 'The New Dispensation, Part 2: The Amendments to the EEA and the BCEA' Employment Law Journal LexisNexis (2014) Vol. 30 Part 3, the learned author observes: 'The open ended notion of “arbitrary grounds” undoubtedly opens the way for judicial innovation. It may be, for example, that temporary employment service employees who are treated less favorably after being deemed to have become employees of their clients, or former fixed term contract employees who have become permanent.

 

[See: LRA Amendment Act, Act No 6 of 2014, section 198B may be found to be victims of discrimination on an arbitrary ground – which essentially means ‘illegitimate or indefensible – ground'. [Emphasis added].

 

A further question that comes to mind according to Grogan supra is whether the open ended "arbitrary grounds" should be limited eiusdem generis [of the same kind] to the grounds expressly excluded - that is based on criteria similar to those in the listed grounds [section 6(1) of the EEA, race, sex, gender etcetera].

 

If the interpretive answer to the above question is in the affirmative - then why the legislative necessity to include, “or on any other arbitrary ground"?

 

As to the burden of proof another interesting distinction is to be found in the Act in that if unfair discrimination is alleged on a ground listed in section 6(1) supra the employer against whom a claim is brought must prove, on a balance of probabilities, that:

 

(i) discrimination did not take place; or

 

(ii) discrimination is rational, not unfair or is justifiable.

 

If discrimination is alleged on an arbitrary ground the claimant [employee(s)] must proof, on a balance of probabilities, that:

 

(i) conduct complained of is not rational;

 

(ii) conduct amounts to discrimination; and

 

(iii) discrimination is unfair.

 

South African Courts have to date not adjudicated many disputes based on the notion of equal pay for work of equal value. It is however envisaged that an increase in litigation, albeit in the Courts or the CCMA could be expected.

 

For more information or a consultation, please contact Johann Scheepers at This email address is being protected from spambots. You need JavaScript enabled to view it.

 

 

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