By Johann Sceepers
This article constitutes PART THREE of an article entitled, “CODE OF GOOD PRACTICE ‘EQUAL PAY FOR WORK EQUAL VALUE’ – A GLOSSARY“ dated 09 February 2015.
Section 6 of the EEA that deals with the prohibition of unfair discrimination stipulates, ‘‘(1) No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice…
‘Any employment policy or practice…’
This term is extensively defined in section 1 of the EEA and includes ‘remuneration, employment benefits and terms and conditions of employment’.
The principle is therefore that an employer will be guilty of unfair discrimination if it pays one employee less than another employee who performs the same job and the reason for this is a ground prohibited by section 6, unless the employer can justify such discrimination. [See: Le Roux, PAK “The Employment Equity Act – New amendments set problems and posers” Contemporary Labour Law vol 24 2014, 3].
Note: Differentiation does not equal Unfair Discrimination:
Not all differences in terms and conditions / remuneration are prohibited or will be unfair. Employers are not required to pay all its employees the same remuneration. Only unfair discrimination is prohibited and there are various justifiable grounds for fair differentiation. [See infra “Grounds for justification”].
Differences in terms and conditions of employment (including remuneration) of employees of the same employer are not unfair discrimination where the complainant and the comparator do not perform the same or similar work or work of equal value.
A difference in remuneration of employees performing work of equal value will also only be unfair discrimination if the differences are directly or indirectly based on race, sex, gender, disability or any other grounds listed in section 6(1) of the EEA, or any arbitrary ground.
Unfair discrimination on this basis therefore exists only where –
(a) work of similar or equal value is performed; and
(b) differences in remuneration are directly or indirectly caused by a discriminatory ground such
as race, gender or disability (or any other ground as listed in section 6 of the EEA). [See: Griessel Consulting “Equal Pay Claims – Practical Guidelines” (2014) info@griesselconsulting.co.za;
According to Le Roux supra 3, the SA Labour Court has been willing, at least in principle, to accept that an employee need not limit his or her comparator to somebody doing the same job or broadly similar job but may also compare himself or herself with another employee whose job has an ‘equal value’, to that of his or her own.[See in this regard Mangena & others v Fila South Africa (Pty) Ltd & others [2009] 12 BLLR 1224 (LC) and Louw v Golden Arrow Bus Services (Pty) Ltd [2000] 3 BLLR 311 (LC)]. [Emphasis added].
In the important Fila judgment by Van Niekerk J, handed down prior to the amendments that came into effect 01 August 2014, the SA Labour Court pronounced on a claim of unfair discrimination on the ground of wage differentials based on prohibited grounds in terms of Section 6 of the ‘old’ EEA, and more specifically whether equal pay claims, and in particular claims for equal pay for work of equal value, are contemplated by the then EEA.
The Court observed that unlike equality legislation in many other jurisdictions, the EEA as it then was did not specifically regulate equal pay claims. Section 6 of the Act prohibits unfair discrimination in any ‘employment policy’ or ‘practice’, on any of the grounds listed in Section 6(1) or on ‘any analogous ground.’
Upon perusal of Fila the following conclusions could be made:
- Differentials in remuneration for work of equal value is not unfair, unless the cause is direct or indirect discrimination on the basis of race or any other prohibited ground:
- Essential element of a claim for equal pay for equal work is that the complainant must establish a factual foundation that the work of the comparator is equal; and
- The Court has no expertise in job grading or allocation of relative value to a particular occupation or functions.
Of importance is that the case law referred to above was handed down prior to the statutory amendments to SA Employment Equity Legislation. As was mentioned in Part One and other articles published by the writer on LinkedIn the International Labour Organisation (the ILO) criticised the provisions of the ‘old’ EEA because it did not make explicit reference to ‘equal pay’ claims.
To meet this criticism section 6(4) has been introduced into the EEA. It provides that –
‘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 one or more of the grounds listed in subsection (1) is unfair discrimination.’
Meaning of ‘Work of equal value’:
The ‘new’ Section 6(4) in the EEA has been introduced to deal explicitly with unfair discrimination by an employer in respect of the terms and conditions of employment of employees doing the same or similar work or work of equal value.
A differentiation based on a proscribed ground listed in Section 6(1) or any other arbitrary ground will amount to unfair discrimination unless the employer can show that differences in wages or other conditions of employment are in fact based on fair criteria such as experience, skill, responsibility and the like.
The EER under “Definitions” defines: “work of equal value” includes works that is the same, substantially the same or of the same value as other work, as contemplated in regulation 4 of these Regulations. [Regulation 4 of EER prescribes – “Meaning of work of equal value”- see regulation 4 infra].
[Regulation 4]: “4. Meaning of work of equal value
For the purpose of these Regulations, the work performed by an employee –
(1) is the same as the work of another employee of the same employer, if their work is identical or
interchangeable;
(2) is substantially the same as the work of another employee employed by that employer, if the work
performed by the employees is sufficiently similar that they can reasonably be considered to be
performing the same job, even if their work is not identical or interchangeable;
(3) is of the same value as the work of another employee of the same employer in a different job, if
their respective occupations are accorded the same value in accordance with regulations 5 to 7.” [Emphasis added].
From the definition of “work of equal value” and the meaning ascribed thereto as set out in regulation 4 of the EER it is apparent that a person claiming (the complainant) that he/ she is entitled to the same terms and conditions of employment as those that another employee (the comparator) enjoys, should show:
- that they are employed by the same employer;
- that she does the same work as the comparator;
- that she does substantially the same work; or
- that she does work of equal value to the comparator as contemplated in the EEA.
It is clear that a complainant need not refer to a comparator who does exactly the same work. The scope of comparison is wider – it can include a comparator doing substantially the same work or work of equal value.
Therefore, it could be deduced that the test would not be whether the same or similar work is performed; rather it should involve an objective analysis or assessment of equal value. The work performed may in nature be entirely different, however intrinsically of equal value.
“Assessing whether work is of equal value” [See: EER 6]
According to Le Roux supra 4, Regulation 6 provides guidance as to how to determine whether two different jobs should be accorded the same value. In terms of this regulation the relevant jobs must be objectively assessed taking into account the following criteria –
- The responsibility demanded of the work including responsibility for people, finances and material.
- The skills, qualifications (including prior learning and experience) required to perform the work, whether formal or informal.
- The physical, mental and emotional effort required to perform the work.
- The conditions under which the work is performed, including the physical environment, psychological conditions and geographic location where the work is performed. This requirement is, however, subject to the proviso that it must only be considered to the extent relevant.
- Any other factor indicating the value of work, provided that the employer shows that the factor is relevant in assessing the value of the work.
Commentary:
In a briefing document issued by The Equality Commission for Northern Ireland, “Equal Pay For Work Of Equal Value” www.equalityni.org. the following advice was recorded, “The key point about equal value is that jobs, which at first sight may be very different, can turn out to be of equal value when analysed in terms of the demands made on the employee. The examples below show the breadth of comparisons that have been made in past cases. The golden rule is not to assume that jobs that are of different types (e.g. manual and administrative) cannot be of equal value.”
Comparing jobs on the basis of equal value means jobs that are entirely different in their nature can be used as the basis for equal pay claims. Job comparisons can be made both within a particular pay/grading structure and between different structures or departments. Equal value is likely to be relevant where men and women are in the same employment but do different types of work.
Some examples
The question of whether two jobs are of equal value involves a weighing and balancing between the features of different jobs. Examples of claims between very different jobs, which have been successful at tribunal or settled in favour of the applicant(s) include:
- Primary school classroom assistant – library service driver messenger.
- School nursery nurse – local government architectural technician.
- Wholesale news distribution clerical assistant – warehouse operative.
- Cook – shipboard painter.
- Head of speech and language therapy service – head of hospital pharmacy service.
- Nursing home sewing room assistant – plumber.
- Motor industry sewing machinist – upholsterer.
- Canteen workers and cleaners – clerical workers.
Having regard from a value perspective to the examples referred to supra and especially the difference in job titles that at first glance seem irreconcilable, based on the perceived ‘semantic importance’ of the competing positions, then it is somewhat startling that upon an objective assessment and analysis of the intrinsic value of the two jobs the tribunal found or settled in favour of the Applicant(s).
The Canadian Ministry of Labour issued a document, which is updated on a regular basis, “Your Guide to the Employment Standards Act, 2000” www.labour.gov.on.ca.
The guide is not a legal document however makes for interesting reading if compared with the same subject matter[s] addressed in the EER and the Code.
Equal Pay for Equal Work
Ontario has legislation called the Pay Equity Act to ensure that women and men receive equal pay for performing jobs that may be very different but are of equal value.
The Employment Standards Act, 2000, (the ESA) on the other hand, has provisions that ensure women and men receive equal pay for performing substantially the same job. That is, they are entitled to receive equal pay for “equal work”, meaning work that is substantially the same, requiring the same skill, effort and responsibility and performed under similar working conditions in the same establishment.
According to the ESA, a woman cannot be paid less than a man if she is doing “equal work.” This also applies in reverse; a man cannot receive less pay than a woman if he is doing “equal work.”
Substantially the Same Work
This means that the work is similar enough that it could reasonably be considered to fall within the same job classification. The jobs do not have to be identical in every respect, nor do they have to be interchangeable.
Substantially the Same Skill, Effort and Responsibility
Skill refers to the degree or amount of knowledge, physical, or motor capability needed by the worker performing the job.
Effort is the physical or mental exertion needed to perform a job.
Responsibility is measured by the number and nature of a worker’s job obligations, the degree of accountability, and the degree of authority exercised by a worker in the performance of the job.
The readers hereof in all probability identified the same or similar legal terminology and explanations or definitions in clarification of legal concepts in the SA statute, code and regulations vis-à-vis the jurisdictions briefly referred to above.
Many employers may feel somewhat overwhelmed by the complexity and more specifically the potential costs involved in litigation pertaining to Equal Pay Claims.
For more information or a consultation, please contact Johann Scheepers at jscheepers777@gmail.com
