´Unless otherwise indicated, copyright in this material vests in the Commission for Conciliation, Mediation and Arbitration. No part of this material may be reproduced, modified or adapted in any form or by any means without the written permission of the Commission for Conciliation, Mediation and Arbitration.
Purpose of the Presentation
´The presentation serves to enhance the knowledge and understanding of participants regarding the following –
- Grounds for a claim of equal pay for work of equal value;
- Application of the test for unfair discrimination in a claim of equal pay for work of equal value;
- The jurisdiction of the CCMA in determining such disputes;
- Assessing if work is same, similar or of equal value; and
- What remedies may be awarded for such disputes.
Section 6 (1) & (4) of the EEA – Unfair Discrimination related to Work of Equal Value
´Section 6(1) of the EEA is amended to add to the listed grounds that unfair discrimination is also prohibited “on any arbitrary ground”.
´Section 6(4) of the EEA is added: “ 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”.
´ILO Convention 111: “Any distinction, exclusion or preference on various grounds” which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation”.
´ILO Convention 100 – Equal Pay – specifically deals with the principle of equal remuneration for men and women.
´The EEA is now aligned with this Convention and specifically provides that unfair discrimination in respect of remuneration and other conditions of employment can be brought in terms of section 6 of the EEA.
´Listed 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 or birth.
´Unlisted or Analogues Grounds = Arbitrary Grounds –
- Based on attributes and characteristics which have the potential to impair the fundamental human dignity or persons as human beings or to affect them adversely in a comparably serious manner, the focus being on the impact on the complainant and others in his/her situation.
´Meaning of “Arbitrary Grounds –
- As held in Pioneer Foods (Pty) Ltd v Workers Against Regression (WAR) & Others (2016) ZALCCT 14.
- Thus, differentiation based on any ground will amount to unfair discrimination unless the employer can show differentiation is based on fair criteria such as experience, skill, responsibility, etc.
- Section 6(5) of the EEA informs that the Minister, after consultation with the Commission for Employment Equity, may prescribe criteria and methodology for assessing work of equal value.
´Even prior to the amendments under section 6(1) and 6(4) of the EEA, the Courts have recognised “listed” “prohibited” “unlisted” “arbitrary” grounds; and recognised that pay or remuneration is and employment policy or practice and that it was possible to make a case of unfair discrimination where pay differentials were based on a prohibited ground.
´Therefore, the amendments rather clarified than make our present law.
What needs to be established?
The worker needs to show –
- That there is a differentiation in remuneration between worker A and worker B for same or similar work done.
- That both workers are working for the same employer.
- That there is sufficient proof to suggest that the difference in pay links to a ground for discrimination (whether listed or arbitrary).
The employer, against whom the claim is made, must prove –
- There was no discrimination, or
- The discrimination is rational and not unfair, or otherwise justifiable.
** The employer therefore retains the right to reward employees unequally but the differentiation must be rational and objective.
Remuneration & Benefits
´Section 21(1) of the EEA –
- A designated employer is required to submit a report concerning its Employment Equity Plan to the Director General on an annual basis.
- The report must be accompanied by a statement on the remuneration and benefits received in each occupational level of that employer’s workforce (section 27).
´Section 27(2) of the EEA –
- Requires a designated employer to take measures to progressively reduce differences in terms and conditions of employment as contemplated in section 6(4) of the EEA.
Meaning of Work of Equal Value
´For the purposes of the Regulations, the work performed by the employee –
- Is the same as the work of another employee of the same employer if their work is identical or interchangeable.
- Is substantially the same as the work of another employee employed by the employer, if the work is sufficiently similar to the extent to which they can reasonably be considered to be performing the same job-even of the work is not identical or interchangeable.
- Is of the same value as the work of another employee of some employer in a different job, if their respective work is given the same value after proper assessment.
Assessing Work of Equal Value
Regulation 4 –
- In considering whether work is of equal value, relevant jobs must be objectively assessed taking into account the following criteria:
- Responsibility, including prior learning and experience required to perform the work
- Effort, physical, mental and emotional
- Working conditions, including physical environment, psychological conditions, time when and geographical location where the work is performed.
In addition –
- Any relevant factor indicating the value of work may be considered.
- The assessment must be conducted in a manner free from bias, on grounds of race, gender or disability or any other listed or arbitrary ground (section 6(1)).
- An employer must justify the value assigned to an employee’s work by referring to the classification of a relevant job in terms of a sectoral determination.
Some Causes of Wage Gaps
´Individual characteristics –
- Lack of education.
- Lack of work experience.
´Residual characteristics –
- Stereotypes and prejudice (bias).
- Traditional methods of job evaluation.
- Weaker bargaining power.
´ILO Approach –
- Improvement in human resources practices.
- Highlighting the undervalued skills of female workers.
- Better perception of workplace equity and improved relations.
- Impacts on the organisation’s reputation and attractiveness.