One of the key amendments to the Employment Equity Act relates to the express inclusion of the prohibition of unfair discrimination related to working conditions and wages.
Section 6 (4) of the Employment Equity Act reads as follows:
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 section 6(1), is unfair discrimination.
The amendment accordingly clarifies that unfair discrimination claims in respect of remuneration and other conditions of the employment can be brought in terms of section 6 of the Employment Equity Act and brings the Employment Equity Act in line with the core international standards binding on South Africa.
A differentiation based on a prescribed ground listed in section 6(1) or on any other arbitrary ground will amount to unfair discrimination unless the employer can demonstrate that the differences in wages or other conditions of the employment are in fact based on a fair criteria such as experience, skill, responsibility, length of service and the like.
Section 6(5) gives the Minister of Labour the power to prescribe the criteria and the methodology for assessing whether work is of equal value, after consulting the Commission.
In the light of the proposed introduction of s198D to the Labour Relations Act, it is likely that differences in remuneration and benefits based on seniority, experience, length of service, merit, quantity or quality of work performed and other criteria of a similar nature will not be regarded as unfair discrimination.
Article by: Alvin Alain Meyer
CEO Dispute Resolution Official – George