By Johann Scheepers
This article constitutes PART TWO of an article entitled, “CODE OF GOOD PRACTICE ‘EQUAL PAY FOR WORK EQUAL VALUE’ – A GLOSSARY“ dated 9 February 2015.
As indicated in the initial article supra the second part specific reference would be made to the terminology and phraseology that may arise from Equal Pay Claims based on the legal principle of Equal Remuneration for Work of Equal Value.
As in the initial article the purpose of this article is an attempt to address some of the legal terminology, phraseology and legal concepts that are more broadly used and referred to in the draft Code Of Good Practice On Equal Pay For Work Of Equal Value (the Code), The Employment Equity Amendment Act, 47 of 2013 [the EEA] and the Employment Equity Regulations, 2014 [the EER] that came into effect on August 01, 2014. Reference would where deemed necessary be made to case law and other legal authorities, some of which were referred to in the article dated 9 February 2015.
In addition to an attempt to define and where appropriate clarify some of the legal terms and phraseology contained in the amended statute, regulations and draft code in the form of glosses, the writer deemed it appropriate to refer to international jurisprudence and authorities in edification of legal concepts that may be classified as ‘foreign’ to the South African reader by virtue of the limited availability of jurisprudence on the subject matter of Equal Pay Claims.
As addressed more fully hereunder, one of the many interesting amendments to SA Employment Equity legislation is to be found in section 10 (6) of the EEA namely that access to the adjudication of unfair discrimination claims has been extended in that prior to the amendments adjudication of unfair discrimination claims was limited to Labour Court adjudication.
CCMA or Labour Court?
In terms of the EEA parties to a dispute are given the option to refer a dispute to arbitration under the auspices of the Commission for Conciliation, Mediation and Arbitration (CCMA) under the following circumstances:
- Applicants may refer disputes to the CCMA for arbitration in terms of section 10(6)(b)(i), if the Applicant’s cause of action arises from an allegation of unfair discrimination on the grounds of sexual harassment;
- Applicant’s who earn less than the earnings threshold as specified by the Minister of Labour in terms of the Basic Conditions of Employment Act No. 75 of 1997, (the BCEA), determine that all employees earning less than R205 433.30 would be entitled to refer any discrimination claim to the CCMA for arbitration in terms of s10(6)(b)(ii); and
- Any party to a dispute may refer the dispute to the CCMA for arbitration in terms of section 10(6)(c), if all the parties to the dispute consent thereto.
In an article published in Juta Legal Brief Today – Workplace (January 21, 2015) reference was made to an interview with CCMA Director Nerine Khan, published in Business Day wherein it was reported, “Kahn said that changes to the Employment Equity Act had seen almost a doubling of complaints about unfair discrimination – to 410 since August – which, however, remained low in the SA context and in terms of the total number of complaints received by the Commission.
The previous system had ‘cost a lot of money and was not very user friendly’, and the CCMA believed there was still widespread misunderstanding of the grounds for employees to lay complaints, she said in the report. The CCMA would seek to improve education about issues of unfair discrimination as it expected to take three or four years to make some changes clear…I think the law will be challenged quite a bit, Ms Kahn said..” [Emphasis added].
In another comment published in the same article referred to above it was reported, “Labour lawyer Andrew Levy said there would be legal challenges. With equal work for equal pay as an example, he said there were few people with a background and experience in this field…I think there will be a great deal of review work.” [In all probability referral was made by the commentator to the judicial review process in terms of section 145 of the SA Labour Relations Act, 66 of 1995 – now the Labour Relations Amendment Act, 2014 (the LREA)].
Against the above background the conceptualisation and drafting of this article took place.
Purpose of the Article
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 EEA as well as in the EER. Most if not all of the terms, words and phrases contained herein are interchangeably contained in the Code as well as in the EEA and the EER.
At the outset it should not be recorded that postings on the LinkedIn network should preferably be brief and not created; nor should it be 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.
Writer would also refer to the same or similar international jurisprudence on the subject matter that may prove of relevance and edification to the reader.
At this juncture it was deemed apposite to draw the reader’s attention to the wording of item 3.3 of the Code which reads as follows:
“3.3. The ILO Equal Remuneration Convention 1951 (No. 100), which South Africa ratified in 1995, obliges ratifying member states to give effect to the principle of equal remuneration for men and women workers for work of equal value. The principle of equal remuneration for work of equal value applies equally to equal value claims based on race, or any other ground listed in section 6(1) or any other arbitrary ground.
As the Labour Court has pointed out, this is – “consistent with the substantive conception of equality that the Constitution and the EEA adopt, and in particular, a recognition that since race historically played a role in the value attributed to particular jobs, a systemic approach to the elimination of what might often be structural inequality is necessary.” [See: Mangena & others v Fila South Africa (Pty) Ltd & others  12 BLLR 1224 (LC) at para 5].
In Fila, which was handed down in terms of the ‘old’ EEA in existence prior to the amendments the Court determined, “To this extent, this court is required to interpret the EEA in compliance with South Africa’s public international law obligations Convention 100 was ratified by the Government of South Africa in 2000; Convention 111 in 1997. S 3(d) of the EEA requires the Act to be interpreted in compliance with South Africa’s international law obligations.”
The SA jurisprudence prior to the amendments is not confined to the Fila judgment.
It was deemed appropriate to briefly refer hereunder to some noteworthy reported judgments by the SA Labour Court.
Louw v Golden Arrow Bus Services (Pty) Ltd  3 BLLR 311 (LC)
In Louw the Court held that fairness requires that people be paid equally for equal work and, analogously, that work of equal value should receive equal pay. Although these principles are not enshrined in the unfair labour practice definition, they are principles of justice, equity and logic which may be taken into account when considering whether an unfair labour practice has been committed.
It is not an unfair labour practice to pay different wages for equal work or for work of equal value. It is, however, an unfair labour practice to pay different wages for equal work or for work of equal value if the reason or motive, being the cause of so doing, is direct or indirect discrimination on arbitrary grounds or on the grounds listed in the definition. An employer may discriminate, even unfairly, on any grounds or for any reason not proscribed by the Act.
An unfair labour practice is committed only if an impermissible ground is the cause of the discrimination. The mere existence of disparate treatment of people of different race, for example, is not discrimination unless the difference in race is the cause of the disparate treatment. The applicant was accordingly obliged to prove that he was paid less than his white colleague because of his race.
As to whether discrimination had to be the sole cause of the contested act or omission, or merely a cause thereof, any remedy had to be proportional to the extent of the discrimination. In unfair labour practice claims, the onus of proving unfair discrimination on a balance of probabilities rests on the applicant, except that the burden of proof shifts to the respondent when it raises a defence that is peculiarly within its knowledge.
Even in such cases, the overall onus remains on the applicant, but less evidence is required to make out a prima facie case. The Court held further that it was not necessary to follow United States jurisprudence when deciding whether the applicant in an unfair discrimination case has discharged the onus. As in other cases, the task of the Court is to select the most probable inference to be drawn from the facts. [See: Editor’s Summary – courtesy LexisNexis BLLR].
Ntai & others v South African Breweries Ltd  2 BLLR 186 (LC)
In Ntai the Court held that the applicants had proved a prima facie case of discrimination that called for an explanation from the respondent, as only the respondent could know the reason for its actions. An application for absolution from the instance at the conclusion of the applicant’s evidence was accordingly refused.
The respondent, though admitting that the differential in pay between the applicants and their colleagues was too wide, based its explanation on a series of performance-related pay increments, and the greater experience and length of service of the higher paid employees.
The applicants had not attacked the remuneration policy of the respondent per se. Furthermore, the gap between the applicants and their colleagues had narrowed in recent years. Even if it could be said that the wage gap was still too high, there was no evidence to warrant the conclusion that it was based on race. The Court noted further that the applicants were being paid in accordance with the market-related remuneration policies of the respondent. The only way to close the gap between them and their colleagues would be to reduce the latter’s’ remuneration. This respondent could not reasonably be expected to do.
Furthermore, the applicants had failed to identify the grounds upon which their allegation of “arbitrary discrimination” was based. That the salary gap may have been attributable to the historical aftermath of job reservation had been raised only as a possibility. Indirect discrimination arises in this context only when the issue in dispute is equal pay for equal work, and it is proved that a practice affects black employees disproportionately as a group. Although it may be that levels of seniority at a given time constitute indirect discrimination, the overall onus to prove such a claim still rests on the applicants.
However, he applicants had chosen not to rely on indirect discrimination.
The application was dismissed. [See: Editor’s Summary – courtesy LexisNexis BLLR].
Transport and General Workers Union and another v Bayete Security Holding  JOL 4484 (LC)
In Bayete Security Holding the Court found that the only form of unfair labour practice that can be adjudicated by the Court was unfair discrimination on the grounds specified in item 2(1)(a) of Schedule 7. The applicant/plaintiff was accordingly obliged to demonstrate that his claim falls within the terms of that provision. To do so, he must in the first instance prove that he has been the victim of discrimination: Public Servants Association of SA & others v Minister of Justice & others (1997) 18 ILJ 241 (T).
Only once this is proved, does the onus shift to the respondent to prove the discrimination did not amount to unfair discrimination in the sense contemplated by items 2(2)(b) or (c). A bald averment that there has been discrimination is not sufficient to shift the onus in this sense: see Swanepoel v Western Region District Council & another  9 BLLR 987 (SE).
The applicant did not succeed in surmounting the first hurdle. The only facts from which he expects the Court to infer that he was discriminated against was that he, a black, was earning R1 500 and that Louw, a white, was earning R4 500. The applicant admitted in evidence that he did not know what work Louw performed, what his educational qualifications or experience were, for whom Louw had previously worked and for how long.
The applicant also conceded that Louw was designated a manager, and that he was not. It was correct in law that to pay one employee more than another for doing the same work may have amounted to an unfair labour practice under the 1956 Act (see: SA Chemical Workers Union v Sentachem Ltd (1988) 9 ILJ 410 (IC)), and would also be so under the new Act if it is done for an arbitrary reason.
However, the mere fact that an employer paid one employee more than another did not in itself amount to discrimination: see Du Toit et al The Labour Relations Act of 1995 2ed 436. “Discrimination takes place when two similarly circumstanced individuals are treated differently. Pay differentials are justified by the fact that employees have different levels of responsibility, expertise, experience, skills, and the like.”
The applicant failed to place any facts before the Court that would justify the conclusion that he was paid less than Louw merely because he is black, and Louw white, or that the difference in their incomes was for any other arbitrary reason.
There was accordingly no basis from which to draw the inference that the applicant was discriminated against in the sense contemplated by item 2(1)(a), or at all.
The application was dismissed. [See: Mini Summary – courtesy of LexisNexis JOL].
It is submitted that reference to international jurisprudence, where relevant and appropriate could be regarded as justifiable and authoritative source of law.
Pertinent to Equal Pay Claims is the definition of the ‘new’ or amended section 6(1) of the EEA that deals with the Prohibition of ‘Unfair’ Discrimination:
‘‘(1) No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds [listed 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.’’; and
‘‘(4) 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 subsection (1), is unfair discrimination.” [Emphasis added].
It is recommended that the reader peruse; alternatively obtain a ‘hard copy’ of the initial article, entitled, “CODE OF GOOD PRACTICE ‘EQUAL PAY FOR WORK EQUAL VALUE’ – A GLOSSARY” (Part One] submitted dated 9 February.
Reference would be made interchangeably herein to legal terms, phrases and terminology addressed and defined in Part One. Without access and the ability to cross reference to Part One the reader may find this article of byzantine complexity.
For more information or a consultation, please contact Johann Scheepers at firstname.lastname@example.org