Employers will need all the professional help they can get to comply (and avoid being fined) when required to prove fairness if and when the proposed amendments to the Employment Equity Act (EEA) are implemented.   One is reminded of the saying ‘if you cannot measure it you cannot manage it”.

To assist users the relevant provisions of the EEA are shown below with the proposed changes underlined.   It will also be seen that a refusal or failure to comply with section 27 of the EEA will now be regarded as a crime with fines ranging from 2 – 10% of “turnover” (defined as “the total annual turnover of an employer for the preceding year calculated in accordance with the provisions of the Competition Act, 1998”).

It will also be very interesting to see how the proposed Code of Good Practice sets out the “criteria and the methodology for assessing work of equal value”.

The following words and phrases will have to be considered in detail:

  • “difference in terms and conditions of employment”;
  • “employees of the same employer”;
  • “performing the same or substantially the same work”;
  • “work”;
  • “equal value”;
  • “form of unfair discrimination”;
  • “prima facie case of unfair discrimination”;
  • “causes or perpetuates systematic disadvantage in the workplace”;
  • “undermines human dignity”;
  • “adversely affects the equal enjoyment of a person’s right and freedom in a manner that is comparable to discrimination on a ground listed in section 6(1)”.

Before repeating the EEA sections here are a few extracts from a book written in 1981 by Prof TT Paterson “Pay: For Making Decisions”.

Value of work

“One would have thought that job evaluation, which ends in assignment of pays, would have required a definition of the ‘value of work.’

But this has not been done.   In textbooks on job evaluation, the grading or ranking of jobs is based ostensibly on differences of

    • difficulty,
    • importance or
    • value of the job.

“The value of a job to the employer in the private sector is determined by

    • how much the job contributes to the success of the enterprise;
    • how it affects production and costs in a competitive market and
    • how important it is to survival of the enterprise.

The value to the employee is determined not just by the reward for his work, but by

    • the status of his job,
    • its place in the system, and
    • his status and standard of living in the wider society.

To him pay is ‘fair’ not only if it relates equitably to others in the firm, but also if it maintains a particular standard of living (nowadays an increase of standard).

If his pay does not reflect his concept of value, he and his colleagues will object and strike”.

Feel fair factor and relative worth

“Pay, as the employee sees it, is “fair enough” if it provides him and his family with an acceptable standard of living.

But, at the same time he compares his pay with those of his colleagues, the differential being “fair” or “unfair.”

Like the authors of textbooks on job evaluation, he explains this in terms of

    • relative worth,
    • difficulty or importance,

without defining these terms.

This near synonymity of value with difficulty and/or importance behoves us to examine what is meant by these terms and how they are related to each other as they appear to be in the minds of employers and employees and of legislators.

When they enact that the value of work shall be determined by job evaluation and specify the factors –

    • conditions,
    • responsibility,
    • skill and
    • effort –

they believe that equal and unequal value can be determined by a “composite” of these four factors, which presupposes the existence of criteria for measuring relative difficulty or importance”.

Equal pay for equal work

“For

    • “equal pay for equal work” and its extensions,
    • equal pay for the same or similar work” and
    • “equal pay for work of equal value”

one must know what work is.

The corollary, “unequal pay for unequal work,” stimulates the question “how unequal?”

That question is answered, in part, by the grading of jobs, the differences in grades being indicative of difference of work, even though the subject of the work is the same.

For example, in accounting, the senior clerk’s job in costing is of a higher grade than that of the cost clerk.  So, differences in work are not defined by the subject of the work but by some other criterion”.

Selected EEA sections with proposed changes underlined

6.   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, 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 and birth.

(2)  It is not unfair discrimination to—

(a)       take affirmative action measures consistent with the purpose of this Act; or

(b)       distinguish, exclude or prefer any person on the basis of an inherent requirement of a job.

(3)  Harassment of an employee is a form of unfair discrimination and is prohibited on any one, or a combination of grounds of unfair discrimination listed in subsection (1).

“(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 is a form of unfair discrimination and is prohibited on any one, or more grounds of unfair discrimination listed in subsection (1).

(5)       The Minister may, after consultation with the Commission, issue a code of good practice setting out the criteria and the methodology for assessing work of equal value in terms of subsection (4).“.

11. Burden of proof

(1)       If the employee makes out a prima facie case of unfair discrimination, the respondent must prove that—

(a) the discrimination did not take place as alleged; or

(b) the conduct is not based on one or more of the prohibited grounds listed in section 6(1).

(2)       Discrimination is unfair, unless the respondent proves that the discrimination is fair, if the discrimination did take place—

(a) on a prohibited ground listed in section 6(1);

(b) on a ground not listed in section 6(1), and the discrimination—

(i)         causes or perpetuates systematic disadvantage in the workplace;

(ii)        undermines human dignity; or

(iii)       adversely affects the equal enjoyment of a person’s right and freedom in a manner that is comparable to discrimination on a ground listed in section 6(1).

(3) For the purposes of this section, a respondent includes an employer of the employee or any other person contemplated in section 6(1).“.

27.   Income differentials and discrimination.

(1)       Every designated employer, when reporting in terms of section 21(1) and (2), must submit a statement, as prescribed, to the Employment Conditions Commission established by section 59 of the Basic Conditions of Employment Act, on the remuneration and benefits received in each occupational [category and] level of that employer‘s workforce.

(2)       Where disproportionate income differentials or unfair discrimination in terms and conditions of employment as contemplated by section 6(4) are reflected in the statement contemplated in subsection (1), a designated employer must take measures to progressively reduce such differentials subject to guidance as may be given by the Minister as contemplated in subsection (4).”.

(3)      The measures referred to in subsection (2) may include—

(a)       collective bargaining;

(b)       compliance with sectoral determinations made by the Minister in terms of section 51 of the Basic Conditions of Employment Act;

(c)        applying the norms and benchmarks set by the Employment Conditions Commission;

(d)       relevant measures contained in skills development legislation;

(4)       The Employment Conditions Commission must research and investigate norms and benchmarks for proportionate income differentials and advise the Minister on appropriate measures for reducing disproportional differentials.

(5)       The Employment Conditions Commission may not disclose any information pertaining to individual employees or employers.

(6)       Parties to a collective bargaining process may request the information contained in the statement contemplated in subsection (1) for the collective bargaining purposes subject to section 16(4) and (5) of the Labour Relations Act.

18. The following Schedule is hereby substituted for Schedule 1 of the Principal Act:

Previous Contravention Contravention of any Provision of Sections 16, 19, 20, 21, 22, 23 and 27
No previous contravention 2% of turnover
A previous contravention in respect of the same provision 4% of turnover
A previous contravention within the previous 12 months or two previous contraventions in respect of the sane provision within three years 6% of turnover
Three previous contraventions in respect of the same provision within three years 8% of turnover
Four previous contraventions in respect of the same provisions within three years 10% of turnover