Following the amendments to the Employment Equity Act, the CCMA has jurisdiction to arbitrate disputes about wage disparity, but only if employees earn under the threshold as stipulated in the BCEA, or if the employee/s earn above the threshold and parties have consented to the jurisdiction of the CCMA.
It is not an unfair labour practice to pay different wages for equal work or work of equal value. It is however, an unfair labour practice if such a differentiation is direct or indirect discrimination on arbitrary grounds or the listed grounds in the Act, e.g. race or ethnic origin. This view was confirmed by the Labour Court in Louw v Golden Arrow Bus Services (Pty) Ltd 2000J 3 BLLR 311 (LC).
The Court stated that pay differentials are in practice subject to a number of factors; implying that it does not necessarily follow that unequal pay for equal work is unfair. The factors include:
→ performance, experience, skills and potential of the various incumbents;
→ markets factors such as supply and demand;
→ the employer’s judgment as to the position’s relative importance and value to the organisation and;
→ the influence of collective bargaining, minimum pay levels and bargaining council and industry agreements.
In Ntai & others V south African Breweries Ltd (2001) 221LJ 214 (LC) it was held that in determining equal pay , the position of an employee or job category must be compared with that of other employees or job categories. The difference in pay should be justifiable on such grounds as length of service, experience or the level of responsibility.
Similarly, a disparity in wages or salaries is not unfair, if it was brought about through collective bargaining and the affected employee had opted to be part of the bargaining unit according to the Labour Court in Heysen v Armstrong Hydraulics (Pty) Ltd  12 BLLR 1444 (LC).
Clients are advised to refer to the Employment Equity Regulations when dealing with cases of equal pay for work of equal value.
Article by: Donovan Domingo
CEO Dispute Resolution Official – George