The South African Employment Equity Amendment Act, Act No 47 of 2013 (the EEAA) came into operation by means of promulgation with effect from 01 August 2014.
The EEAA as well as other amendments to SA Labor Legislation, to wit the Labor Relations Act, 66 of 1995 (the LRA) and the Basic Conditions of Employment Act, 75 of 1997 (the BCEA) formed the subject matter of extensive consultations held over a period of almost four years at NEDLAC whereupon 'consensus' was reached as to most of the amendments required in order to reform SA Labor Legislation.
To date only the EEAA has become law and it is expected that the amended LRA and BCEA would be enacted in the very near future.
This article is intended to be 'PART-ONE' of possible follow-up articles wherein the focus would be on the EEAA, Sections 6(4) & (5) - the amendments to the principal Act, namely the Employment Equity Act, 55 of 1998, and more specifically the Sections in the EEAA that deals with 'Equal Pay for Work of Equal Value'.
At the outset it should be recorded that the subject matter 'Equal Pay for Work of Equal Value' is by its very nature complex in substance, legally technical in nature insofar as it raises all sorts of legal questions, as well as concerns pertaining to issues such as the practical implementation of measures in compliance with the law; and other more controversial issues based on the economic or financial realities of employers that may inhibit legal compliance - to name a few of the many variables.
It was deemed apposite to refer to a panel discussion by Labor Law Experts, P Benjamin, S Gaibie & C Todd, '24th ANNUAL CURRENT LABOUR LAW SEMINAR' LexisNexis (2013) where the observation was made that Sections 6(4) & (5) clarify rather than change SA Equity Laws. The question posed was will the EEAA lead to an increase in litigation?
The World Economic Forum gave SA a score of 0,65 for wage equity, namely that male workers receive 30% more than females doing the same work.
In an authoritative article by J Grogan, 'The New Dispensation, Part 2: The Amendments to the EEA and the BCEA' Employment Law Journal LexisNexis (2014) Vol. 30 Part 3, the learned author observes: 'As is now well known, the EEA attempts to strike the delicate balance enjoined by the Constitution between the individual’s right to equality and the promotion of equality by legislative measures “designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination” (Constitution of the Republic of South Africa, 1996, sections 9(1) and 9(2)). The Employment Equity Act 55 of 1998 is the legislative measure designed to promote equality in the workplace. Employment equity plans adopted in terms of that act are the “measures”.
The overall aim of the amendments to the Employment Equity Act 55 of 1998 is “to further regulate the prohibition of unfair discrimination against employees” and “to provide afresh for the assessment of compliance by designated employers”. As will appear from the review of the amendments set out in this article, the former aim seems to have been made decidedly subservient to the latter.'
Insertion of new sections 6(4) and 6(5) – Work of equal value
The new Section 6(4) 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.In terms of Section 6(5), the Minister of Labor will be empowered to publish a code of good practice dealing with criteria and methodologies for assessing work of equal value.
Suffice it to record that the EEA Regulations, 2014 has been published and the contents thereof as well as other pertinent issues and questions as to the subject matter would be addressed in PART-TWO.