Recent changes to the Employment Equity act will have an impact on many
employers in some way or other. The main changes seem to indicate that
discrimination against women is the main target particularly when it comes to issues
of equal pay for equal work.
In terms of section 6 (1) of the act employers must eliminate any unfair
discrimination by removing and eliminating any differences in terms and conditions of
employment including the remuneration of employees who perform work of equal
value. So, if a man is doing the same work (but of equal value) as a woman then
both must be paid the same salary. This will also apply in terms of not only gender
but also in terms of race and disability.
So what do we mean by equal work? We can only make a comparison here is the
employees work for the same employer.
The same work as any other employee if the work is identical
Substantially the same as the work of another employee if the similarities are such
that we can say they are performing the same job even if not identical
Is of the same value as the work of another employee assuming the occupations are
accorded the same value.
Now this is all very confusing and to say the least and extremely difficult to
understand and come to terms with. But don?t worry - a code of good practice will
be published eventually. It is up to the employer to show that differences in salaries
or income are fair based on fair criteria such as skills, responsibility and experience.
Where equal pay for equal work is concerned it was stated by the EE Director
Ntsoaki Mamashela at the recent road shows that the principal of equal pay for equal
work or work of equal value applied "irrespective of the status of the employment'.
So employees appointed on a contract basis will have the same rights as employees
on a full time basis and vice versa.
The jurisdiction of the CCMA has been extended to deal with disputes related to
discrimination in terms of the EE Act. This has been changed from conciliation to
conciliating and arbitrating discrimination disputes on condition the claimant earns
below the threshold or R205433.33 annually.
As far as discrimination is concerned the act states that no one may discriminate
against an employee in any employment policy or practice on any 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 any other arbitrary (random)
grounds.
Most of this is quite understandable but the arbitrary grounds are going to lead to
many instances of litigation I fear. One are that might be worthy of consideration is
the appointment of part time or temporary workers to full time positions where the
issue of equal pay for equal work will kick in. This may well become one of the many
arbitrary grounds employers will have to contend with.
Another change is where an employee take action against an employer claiming
unfair discrimination on grounds as listed in section 6 then the onus is on the
employee to prove his or her case based on the balance of probability.
When assessing work of equal value all jobs should be assessed taking into
account
Responsibility demands of the job - people, finances and resources
Skills, qualifications, prior learning and experience required in order to do the
job
Physical, emotional and mental effort required to perform
Conditions under which the work is performed
Other conditions may be taken into consideration in evaluating the value of work
provided the relevance can be verified. In conducting an assessment in terms of the
points above it will be necessary to ensure there is no bias based on discriminatory
factors such as race, gender and disability.
Sectoral determinations previously agreed to by the minister may be used as a
means of justifying the value.
Other areas that may be considered in justifying differences in terms and conditions
include
Length of service and seniority
Qualifications, ability, competence or potential which is above the minimum level
required to perform the job
Performance of employees based on fair performance assessment fairly applied
Demotion following restructuring or other legitimate reasons without a reduction in
pay. The salary may be fixed until such time as other employees doing the same job
reach the same level.
Temporary positions in order to gain experience or training
Where a shortage of skills exists
The changes outlined will need to be considered carefully and will lead to a need
to revise current policies and job profiles. In particular requirements related to job
profiles in terms of competencies will need to be considered carefully to allow for
experience and recognition of prior learning. The RPL implications in terms of equal
pay for equal work will need to be considered very carefully and thoroughly
investigated in terms of long term and short term impact.
The EE Act and the potential changes to the BCEA calls for caution. Everything
taking place is intended to bring about equality in terms of the individuals rights as
set out in the constitution. The amendments have been promulgated to further
prohibit unfair discrimination against employees and to enforce compliance by
employers. Now is the time for affirmative action.
Des Squire (Managing member)
AMSI and Associates cc
[email protected]
