EQUAL PAY FOR EQUAL WORK
By Robert Niemand
Managing Director: LabourNet Eastern Cape
The demand of "equal pay for equal work" from certain unions has become more prevalent in recent times. Employers often do not know how to respond to such a demand and whether they are falling foul of any anti-discriminatory provisions. The courts have had several opportunities to deal with this type of dispute. What are your responsibilites in respect of equal work for equal pay?
In Louw v Golden Arrows Bus Services (Pty) Ltd (2000) 3 BLLR 311 (LC) the applicant, a coloured male, applied to the Labour Court for a declarator that the employer had committed an unfair labour practice in discriminating against him by paying him less than a white male colleague for work of equal value and seeking compensation in an amount equal to the difference. (Unfair discrimination was at that time still part of the unfair labour practice definition and is now to be found in section 6 of the Employment Equity Act, 1998.) His application was dismissed with costs.
The Court held that fairness requires that persons doing equal work should receive equal pay (see NUM v Henry Gould (1988) 9 ILJ 1149 (IC) and SACWU v Sentrachem Ltd (1988) 9 ILJ 410 (IC)), however, the Court stated that this principle, which asserts equality, has been distorted in the past.
The Court held further that the principle in its true form is really "work of equal value should receive equal pay" It is a principle of justice, equality and logic which may be taken into account in considering whether unfair discrimination has been committed, e.g. the payment of unequal pay for work of equal value. In other words, it is not unfair discrimination to pay different wages for equal work or work of equal value. It is however, unfair direct or indirect discrimination if the reason or motive for doing so is one of the listed grounds, such as race, gender, ethic origin, etc. It therefore follows that, in our law, an employer may discriminate, even unfairly, on any grounds or for any reasons which are not prescribed by Chapter 2 Section 6(1) of the Employment Equity Act, 1998.
However, if an applicant's claim is based on a broad allegation that the employer's conduct infringes upon his right to fair labour practices as contained in the Constitution, then it is arguable that in such a case, it is not necessary to prove prohibited discrimination and that other grounds for unfairness may be relied upon. However, applicants would be better advised to pursue the matter based on unfair discrimination; if such discrimination can be proved. Litigants are however to be cautioned that in Nati & Others v South African Breweries Ltd (2001) 2 BLLR 186 (LC), the Court indicated that "Litigants who bring discrimination cases to the Labour Court and simply allege that there was "discrimination" on some or other "arbitrary" ground, without identifying such ground, would be well advised to take note that the mere "arbitrary" actions of an employer do not, as such, amount to "discrimination" within the accepted legal definition of the concept.
In the South African Breweries case, the employees failed to prove that the payment of a lesser wage was due to discrimination on account of race or that the respondent acted in an arbitrary manner. In Heysen v Armstrong Hydraulics (Pty) Ltd (2000) 12 BLLR 1444 (LC), it was found that a disparity in wages/salaries was not unfair because it was brought about through collective bargaining and because the applicant had opted not to be part of the bargaining unit.
In the Golden Arrows case, it was found that pay differentials are in practice subject to a number of factors; implying that it does not necessarily follow that unequal pay for equal work is unfair. The factors include:
- The performance, experience, skills and potential of the various incumbents
- Market factors such as supply and demand
- The employer's judgment as to the position's relative importance and value to the organization
- The influence of collective bargaining, minimum pay levels and bargaining council and industry agreements
Employers in certain industry have in recent times faced the demand of "equal work for equal pay" and would be advised to extract from the above article in formulating their response. A possible response to such a demand in companies that have the capacity to introduce it, could be that of "Equal pay for equal value", (which is closer to the true form of this principle) i.e. remuneration would be based on a skills matrix which will identify the contributing value of each employee and all employees with like value contributions would be remunerated equally.
If you have a question for the author about this article or require any other information please email the Labournet Helpdesk
Labournet has an experienced group of consultants that can assist you in these types of issues and all other employment related matters that may affect your business.
Disclaimer
The information published in this article or newsletter is of general nature and should not be used without obtaining specific advise as to its application in your business or under your specific circumstances. Labournet will accept no liability if the information is used without first obtaining specific advise from one of our consultants.