On 1 August 2014, the Employment Equity Amendment Act No 47 of 2013 (“EEAA”) was promulgated into law, supported by a new set of Employment Equity Regulations (Regulations). The EEAA sought to amend the Employment Equity Act No 55 of 1998 (“EEA”) by reinforcing its primary objective of achieving equity in the workplace by focusing on two main objectives. These objectives are (1) the promotion of equal opportunity and fair treatment in the workplace; and (2) implementing affirmative action to redress the disadvantages in employment experienced by designated groups.
These objectives are fulfilled applying the principle of equal pay for equal work. The principle of equal pay for equal work was dealt with by the Labour Court in Louw v Golden Arrow Bus Services (Pty) Ltd (2000) 3 BLLR 311 (LC) (“the Louw case”) where the court held that it is an unfair labour practice to pay different wages for equal work or work of equal value if the reason or cause for doing so, amounts to direct or indirect discrimination on arbitrary grounds or the grounds listed in section 6(1) of the EEA.
Following the amendments in terms of the EEAA, section 6(4) of the EEA now emulates the ruling in the Louw case by prohibiting unfair discrimination between employees of the same employer performing the same, substantially the same work or work of equal value that is based on any one or more of the listed grounds or on any other arbitrary ground. The listed grounds include, but are not limited to, race, gender, sexual orientation, religion, disability and age.
The employer is required to prevent unfair discrimination by eliminating differences in remuneration. Failing which, an employee may challenge the fairness of his or her remuneration if the employee is of the opinion that, in comparison to another employee working for the same employer and who performs the same or substantially the same work or such work that is of equal value, he or she is being unfairly discriminated against.
Defining work of equal value
Regulation 4 of the Regulations to the EEAA describes work of equal value. In terms of Regulation 4, 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; and
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 of the Regulations to the EEAA.
Assessing whether work is of equal value
When considering whether work is in fact of equal value, the following criteria, as set out in Regulation 5 of the Regulations to the EEAA, must be taken into account:
a. responsibility demanded of the work;
b. skills and qualifications required to perform the work, formal or informal;
c. physical, mental and emotional effort required to perform the work; and
d. the conditions under which the work is performed, to the extent that it is relevant.
In addition, any other factor deemed relevant for purposes of assessing the value of the work may be taken into account. This assessment must be done free from any bias on any listed or arbitrary ground. To this end, Regulation 7 of the Regulations to the EEAA provides for justifiable defenses that an employer may have for pay differentials in work of equal value.
Factors Justifying Differentiation in Remuneration
A difference in remuneration of individuals is not unfair discrimination if it is fair and rational and is based on any one or combination of the following grounds including their respective seniority or length of service, their respective qualifications, competence or potential above the minimum requirement, their respective performance or quality of work, demotion due to operational requirements, temporary employment for purposes of gaining experience, shortage of relevant skill in a particular job classification or any other relevant factor not regarded as discriminatory in terms of section 6(1) of the EEA.
In the case of Pioneer Foods (Pty) Ltd v Workers Against Regression and Others (2016) ZALCCT 14 (LC) (the “Pioneer Foods case”) the court dealt with an instance where an employer adopted and applied a rule in terms of which newly appointed employees start at a rate lower than existing long-serving employees. Such differentiation does not constitute unfair discrimination. The court in the Pioneer Foods case held that there is nothing arbitrary or irrational about the uniform application of a rule which sets different pay levels for employees with different lengths of service as employees of the employer concerned. Held further, even if the new employee has the same level of experience or expertise as the long-standing employee, there is no legal obligation on the employer to make an exception in every such instance.
Burden of Proof
The burden of proof in the case of unfair discrimination, as provided for by section 11 of the EEA, was also altered by the amendments. If unfair discrimination is alleged on a listed ground, the employer must prove, on a balance of probabilities, that such discrimination did not take place as alleged or is rational and not unfair, or justifiable. If the allegation is based on an arbitrary ground, the burden of proof shifts and the complainant must prove, on a balance of probabilities, that the conduct complained of is not rational, amounts to discrimination and that it is unfair.
This structural framework reduces the disparity between employees in the workplace, places a greater duty on employers and provides a clear manner in which to assess and determine unfair discrimination.
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