(Part 1)
By Johann Scheepers
Introductory Comments
As readers of this article would in all probability be aware the first of the amendments to South African labour legislation namely, the The Employment Equity Amendment Act, 47 of 2013 [EEA] and the Employment Equity Regulations, 2014 [EER] came into effect on 01 August 2014.
Following thereon, the Minister of Labour, in terms of Section 54(1) of the Employment Equity Act, 1998 (Act No 55 of 1998 as amended), and on the advice of the Commission for Employment Equity, published a draft Code of Good Practice on Equal Pay for Work of Equal Value (‘the Code’) for public comment.
The dates for submission of comment have come and go and insofar as public comment in the media and other relevant publications on labour issues are concerned, nothing of note was reported as to the contents of the draft Code.
Shortly before the festive season dawned upon us the President of the RSA, by means of proclamation declared that the Labour Relations Amendment Act, 2014 (Act No 6 of 2014) (‘the LRAA’) shall come into operation on 01 January 2015.
Therefore and as from New Years day, to wit, 01 January 2015 all the legislative amendments would be of full legal force and effect. This will bring into fruition the proposed legislative reforms that formed the subject matter of extensive consultations held over a period of almost four years at NEDLAC whereupon ‘consensus’ was reached as to most of the amendments to labour laws.
One of the more important and regarded by some as controversial is the codification as part of SA Employment Equity Law namely the internationally recognized principle of ‘EQUAL PAY FOR WORK OF EQUAL VALUE’. This was done in compliance with South Africa’s public international law obligations and more specifically the Conventions of The International Labour Organisation (the ILO) – Convention 100 dated 06 June 1951, adopted at its 34th Session as proposals in the form of ‘Articles’ and duly incorporated as part of the ‘Equal Remuneration Convention, 1951 (No. 100).
From an interpretive perspective and also included as part of SA Employment Equity Law are those international law obligations as contained in the ILO Convention (111)…’Discrimination in Respect of Employment and Occupation.’
In an attempt at providing clarity and practical guidance the draft Code of Good Practice on Equal Pay for Work of Equal Value (‘the Code’) was published as referred to supra.
The objective of the Code is “to provide practical guidance to employers and employees on how to apply the principle of equal remuneration for work of equal value in their workplaces. This Code seeks to promote the implementation of remuneration equity in the workplace by employers, including the State, employees and trade unions through human resources policies, procedures, practices and job evaluation processes.” [See: EMPLOYMENT EQUITY ACT, 1998 (ACT 55 OF 1998 AS AMENDED)
DRAFT CODE OF GOOD PRACTICE ON EQUAL PAY FOR WORK OF EQUAL VALUE, GOVERNMENT GAZETTE, 29 SEPTEMBER 2014, No. 38031 at 4].
Pursuant to a posting in LinkedIn by SA Labour Guide (Labour Law) and in particular with reference to an interesting publication by Griessel Consulting “EQUAL PAY CLAIMS – PRACTICAL GUIDELINES” (2014) info@griesselconsulting.co.za; including the Code supra, it was deemed appropriate and in the interests of clarity and legal compliance to conceptualize and draft this ‘article’ or posting.
Purpose of the ‘Article’ Cum ‘Guide’
The purpose hereof is to provide the reader with a ‘Glossary of Legal Terms, Words & Phrases’ in edification of terminology used in the Code and referred to in the publication by Griessel supra. Most if not all of the terms, words and phrases contained herein are interchangeably contained in the Code as well as in Griessel.
The readers hereof would find it of considerable benefit to obtain a copy of the publication by Griessel as well as the Code in that it would prove to be of assistance in ensuring compliance with the law as it pertains to the principle of Equal Pay for Work of Equal Value.
At the outset it should be recorded that postings on the LinkedIn network should preferably be brief and not created; nor perceived by the reader as if a comprehensive or an authoritative work of reference on the subject matter. The objective is to edify, within the confines of the medium and to generate interest and possible debate on the subject matter.
Glossary of Legal Terms, Words & Phrases – ‘Equal Pay For Work Of Equal Value’
‘Discrimination’ or ‘to Discriminate’
The term ‘discrimination’ or ‘to discriminate’ is widely used, by all and sundry, not only within the sphere of employment law. The use of the term or notion is to be found within almost all areas of human interaction albeit socially, politically or wherever it finds appeal. For the purpose of this article it would be analysed from an employment law perspective.
In Woolworths (Pty) Ltd v Whitehead [2000] 6 BLLR 640 (LAC) at [70] – [71] the SA Labour Appeal Court observed in a matter that pertained to “unfair discrimination” on the ground of pregnancy, at [71] that “[Traditionally]…the use of the word “discrimination” in its modern sense was, if not unheard of, considered to be a serious solecism. One has only to compare the current Oxford Dictionary with fairly recent past editions to understand that “discrimination” in the sense of being some kind of concrete act that impacts unjustly, prejudicially and negatively upon another is a modern concept…” [Emphasis added].
Grogan, J “Dismissal” Juta 2014 ed. at 137 observes that “discrimination”, in its neutral sense, arises when an employee is treated differently from his or her colleagues in circumstances, which on the face of it; indicate that the employee should not be treated differently.” [Emphasis added].
ILO Convention no 111,”The Convention Concerning Discrimination in respect of Employment and Occupation of 1958 read together with the Recommendation of the same number. Article 1 of the Convention defines the term “discrimination”.
It provides:
“1.For the purposes of this Convention, ‘discrimination’ includes–
(a) any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation;
(b) such other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation as may be determined by the Member concerned after consultation with ‘representative employers’ and ‘workers’ organisations, where such exist, and with other appropriate bodies.
- Any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination. [Emphasis added].
- For the purpose of this Convention the terms ‘employment’ and ‘occupation’ include access to vocational training, access to employment and to particular occupations, and terms and conditions of employment.” [Emphasis added].
Article 5(2) of the Convention provides that:
“Any member may, after consultation with ‘representative employers’ and workers’ organisations, where such exist, determine that other special measures designed to meet the particular requirements of persons who, for reasons such as sex, age disablement, family responsibilities or social or cultural status, are generally recognised to require special protection or assistance, shall not be deemed to be discrimination.”
It is generally accepted that ‘discrimination’ should be interpreted as implying a ‘pejorative meaning’ relating to the ‘unequal treatment of people based on attributes or characteristics attaching to them’. [See: Grogan at 137].
The requirement that discrimination must involve some detrimental impact is also found in the SA Equality Act, 4 of 2000, in which discrimination is defined as ‘any act or omission which imposes burdens, obligations or disadvantage on . . . or withholds benefits, opportunities or advantages from any person on one or more of the prohibited grounds’.
These complexities were largely avoided in the employment context with the enactment of the EEA. The interpretation clause of the EEA expressly states that the Act must be interpreted ‘in compliance with ILO Convention 111 Concerning Discrimination in Respect of Employment and Occupation’ [s 3(d) of Act 55 of 1998] which, in turn, defines ‘discrimination’ as including: [See: ILO Convention 111 (a) – (b) supra. [Emphasis added].
It will be noted that, in terms of South African Employment Equity legislation, the notion of ‘discrimination’ is separated as a form of conduct from the grounds which render it ‘unfair’, the Convention combines these two aspects into a single concept. There is, however, no difficulty in reconciling the two stages of the South African test to establish discrimination with the equivalent aspects of the ILO definition. [Emphasis added].
Measured against this definition, the South African concept of ‘discrimination’ (i.e., the ‘first stage’ of the inquiry) must be understood as meaning ‘any distinction, exclusion or preference. . . which has the effect of nullifying or impairing equality of opportunity in treatment in employment or occupation’. [Emphasis added].
This, it will be noted, offers a criterion which, in the employment context, is more precise and, arguably, more encompassing than the Constitutional test [See: Section 9 “Equality”, Constitution of RSA, 1996].
Rather than requiring a broad inquiry as to whether the employer’s conduct amounts to unequal treatment of a ‘pejorative’ nature, the question is rather whether it falls within the terms of the definition without necessarily making reference to a comparator or to its impact on the complainant’s dignity. [See: Gorgan at 137; Du Toit, D et al “Labour Relations Law – A Comprehensive Guide”, 2007 at Chapter XI 2.4. – “Discrimination”].
The ‘second stage’ of the South African test – that is, the inquiry into ‘unfairness’ (discussed below) – corresponds to ascertaining whether discrimination is on a prohibited ground equivalent to those proscribed by the Convention. [Emphasis added].
The importance of Convention 111 as a point of reference in defining the meaning of ‘discrimination’ was accepted even prior to its ratification by South Africa in 1997. With the enactment of the EEA its status as a codified source of law was formally established.
‘Direct’ or ‘Indirect Discrimination’
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