Equal work for equal pay first came into the labour area in 2013 with the amendments to the Employment Equity Act (hereafter “EEA”).
Section 6(1) of the EEA states that:
“No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practise, on one or more 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.”
The EEA goes further to stress that a difference in terms and conditions of employment between employees of the same employer performing the same or similar work or work of equal value that is directly or indirectly based on any one or more of the listed grounds or any other arbitrary ground, amounts to unfair discrimination. Important to note, however, is that the law of general application always has exceptions. In this case, an employer may, in terms of section 6(2)(a) of the EEA, fairly discriminate in paying employees differently based on either inherent requirement of the job or affirmative action.
Section 11 of the EEA highlights that the burden of proof in alleged unfair discrimination matters based on one or more of the listed grounds found under section 6(1) falls on the employer. Should it be found that the discrimination did take place, the employer will need to prove that the differentiation between the two employees was rational and not unfair or otherwise unjustifiable.
In the event that an employee alleges unfair discrimination on an “arbitrary ground”, the burden of proving the claim would fall on the employee. What is fundamental to note is that an employee will need to prove that the alleged ‘discrimination’ had the potential to impair his/her human dignity to be successful.
In Shongwe v Mbombela Local Municipality (2021) 30 CCMA – an employee was employed as a clerical assistant. There was a merger of two organisations whereafter, the applicant claimed to be unfairly discriminated against based on earnings. Her allegations were based on the fact that other clerical assistants who formed part of the merger, were being paid at a higher rate than she was.
The municipality had further confirmed that the applicant was transferred horizontally within the newly merged organisation. At the CCMA, it was acknowledged that employees in the same role were compensated differently whilst performing similar work, which could be considered discrimination. In this case, however, the applicant failed to link one or more of the listed grounds stipulated in section 6(1) of the EEA to her equal work for equal value claim. Considering the above, the Commissioner found that the applicant’s evidence did not suggest that the pay difference was linked to one or more listed grounds and, as a result, found that a mere pay difference did not amount to discrimination in terms of the EEA.
The Labour Court has held that a rational justification for equal work for equal value, dispute includes the following:
- The seniority and length of service of the applicant.
- The qualifications, competence or potential.
- The overall performance, quality of work, performance appraisals.
- Demotions or promotions of positions, based on the company’s operational requirements.
- Temporary employment positions.
- Specialised skills or the market value levels in a particular job classification.
- Any other factor that may justify a differentiation in terms and conditions of employment.
In Louw v Golden Arrow Bus Services (Pty) Ltd 2000 21 ILJ 188 (LC), the applicant, who was a black male, was employed as a buyer at the company. He alleged that the company committed direct unfair discrimination on the ground of race in that the company paid his comparator, who was a white male employed as a warehouse supervisor, a higher salary for work of equal value. An evaluation of the merits of this case was established. The Labour Court held that mere differential treatment of persons from different races was not per se discriminatory on the ground of race unless the difference in race was the reason for the different treatment. The company applied a point grading peromnes system, which was used to determine the rate of remuneration of employees. In this case, there was at least one grade difference between the applicant’s work as a buyer in the company and that of the comparator, the warehouse supervisor.
The Labour Court found that the applicant had failed to prove that the two jobs were of equal value. The Labour Court remarked that this does not mean that the reason for the difference in salary was not due to racial discrimination, but it meant that racial discrimination had not been proved.
Employers are encouraged to frequently evaluate earnings between employees, particularly those performing the same or similar functions. Should there be a significant difference, adaptations need to be implemented, for example, a freeze on salary increases or increasing others on a higher scale to bring employees on a similar salary level. Failure to do so may give rise to significant CCMA referrals relating to equal work for equal value disputes.
In May 2021, President Cyril Ramaphosa was quoted saying: “We still find in our country those who pay men more than women for doing exactly the same type of job. We want discrimination of salaries to come to an end so that where men and women are doing the same job, they must be paid equally. On 4 October 2021, an open letter from the Presidency re-iterated those same sentiments again, whereby the President was quoted saying: “If we are to achieve meaningful equality between men and women, which is one of the principal aims of our Constitution, we need to ensure the full and equal participation of women in the economy. Even though we have solid policies that outlaw gender discrimination in the workplace, wage differences between men and women persist. According to a report by the National Business Institute, women earn R72 for every R100 earned by a man.”
Article by: Tammy Barnard
Senior Dispute Resolution Official – Pretoria