Based on fairness and rationality combined with the 7 factors listed in the Codes of Good Practice should be considered justified discrimination with reference to employee remuneration. Recently we discussed employment equity and the prohibition of unfair discrimination. Section 6(2)(b) of the Employment Equity Act, Act No. 55 of 1998, deals with what might be considered as “fair” discrimination.
In order to provide guidance on fair discrimination relating to remuneration, the Minister of Labour issued Codes of Good Practice with regard to equal pay/remuneration for equal work of equal value, the so-called “same work, same pay” principle, on 1 June 2015. The application of the codes is discussed below.
When evaluating an employer’s compliance with the “same work, same pay” principle, the codes refer to three key factors:
To determine the value of a job, an employer will usually look at the following when establishing “fair” grounds for discrimination:
One of the factors listed as unfair discrimination in the Employment Equity Act is gender. Not surprisingly, the Codes of Good Practice also deal with the comparison and evaluation of male vs female dominated jobs. Any difference in pay based on gender will be considered unfair discrimination. To ascertain whether a particular job had been undervalued and to align female dominated jobs with comparable male dominated jobs, employers should be able to clearly establish the value of certain male and female dominated jobs. The mere fact that a certain industry or business does not have any comparable male vs female dominated jobs does not imply that gender-based discrimination is not present. It might simply indicate that the gender issue had not yet been addressed.
Any differentiation based on fairness and rationality combined with the 7 factors listed in the Codes of Good Practice should be considered justified discrimination with reference to employee remuneration. As in the case of law, the merits of each matter should provide guidance on the process, but the 7 factors are commonly considered when determining an employee’s pay. The factors are:
Employers that adhere to the Codes of Good Practice, with clear job descriptions and work policies, should be able to pass the test. Our legal team at SERR Synergy guide and assist businesses in a practical and supportive way with regard to the required processes and procedures to ensure labour legislation compliance and to minimise the risk to which the business is exposed when employing staff.
About our author: Audrey Cloete obtained her LLB degree from the North-West University Potchefstroom in 2003. She completed her articles with the main focus on Criminal Law and is also an admitted Conveyancer. Audrey joined SERR Synergy in 2015 where she currently works as a Legal Compliance Advisor.
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