Abstract

Keywords

Equal pay; equal terms and conditions of employment; terms and conditions of employment; pay; working conditions; Employment Equity Act; Equal Pay Code; Employment Equity Regulations.

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1 Introduction

Section 6(4) of the Employment Equity Act 1

* Shamier Ebrahim. LLB (NMMU) LLM Labour Law (cum laude) LLD (UNISA). Senior Lecturer, Department of Mercantile Law, University of South Africa. Advocate of the High Court of South Africa. E-mail: ebrahs1@unisa.ac.za. ORCiD: https://orcid.org/0000-0002-2702-9247. This article is based on part of my unpublished thesis A comprehensive analysis of the law regulating equal pay in South Africa (LLD thesis, University of South Africa 2023). I should like to acknowledge the support provided to me by the University of South Africa in the form of the Academic Qualification Improvement Programme Grant which allowed me to complete my doctorate. The opinions and conclusions expressed in this article should not be attributed to the University of South Africa; they are solely mine.

1 Employment Equity Act 55 of 1998 (hereafter the EEA).

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 any one or more of the grounds listed in subsection (1), is unfair discrimination.

It is clear from section 6(4) of the EEA that there are various elements that an equal pay claimant must prove across the three equal pay causes of action. The only element considered in this article is "[a] difference in terms and conditions of employment". No definition is provided in the EEA, the Employment Equity Regulations 2

2 GN R595 in GG 37873 of 1 August 2014 (hereafter the Employment Equity Regulations).

of employment" is an aspect that affects both an employee and employer and is thus worthy of analysis.

Against this background the purpose of this article is to answer the crisp question which is, what falls within the ambit of terms and conditions of employment for the purpose of equal pay claims as contemplated in section 6(4) of the EEA, by having reference to domestic and international labour law.

2 Terms and conditions of employment (South African law)

As already stated, there is no definition in the EEA, the Employment Equity Regulations or the Equal Pay Code relating to what falls within the ambit of terms and conditions of employment for the purpose of equal pay claims as contemplated in section 6(4) of the EEA. The Labour Court (including the then Industrial Court) has heard equal terms and conditions claims only relating to remuneration. 4

4 See SA Chemical Workers Union v Sentrachem 1988 9 ILJ 410 (IC); National Union of Mineworkers v Henry Gould (Pty) Ltd 1988 9 ILJ 1149 (IC); Mthembu v Claude Neon Lights 1992 13 ILJ 422 (IC); TGWU v Bayete Security Holdings 1999 4 BLLR 401 (LC); Louw v Golden Arrows Bus Services (Pty) Ltd 2000 21 ILJ 188 (LC); Heynsen v Armstrong Hydraulics (Pty) Ltd 2000 12 BLLR 1444 (LC); Ntai v SA Breweries Ltd 2001 22 ILJ 214 (LC); Co-operative Worker Association v Petroleum Oil and Gas Co-operative of SA 2007 1 BLLR 55 (LC); Mutale v Lorcom Twenty Two CC 2009 3 BLLR 217 (LC); Mangena v Fila South Africa (Pty) Ltd 2010 31 ILJ 662 (LC); Duma v Minister of Correctional Services 2016 37 ILJ 1135 (LC); Pioneer Foods (Pty) Ltd v Workers Against Regression (WAR) 2016 37 ILJ 2872 (LC); Sethole v Dr Kenneth Kaunda District Municipality 2018 1 BLLR 74 (LC).

Item 2.1.2 of the Equal Pay Code states that it must be read in conjunction with the Code of Good Practice on the Integration of Employment Equity into Human Resources Policies and Practices 5

5 GN 1358 in GG 27866 of 4 August 2005 (hereafter the Integration of Employment Equity Code).

It is submitted that the above terms and conditions of employment mentioned under the Integration of Employment Equity Code fall within the ambit of terms and conditions of employment in section 6(4) of the EEA. This submission is based on the following. Item 2.1.2 of the Equal Pay Code explicitly states that the Equal Pay Code must be read in conjunction with that part of the Integration of Employment Equity Code that deals with terms and conditions of employment (which is the above list of terms and conditions of employment) and this is peremptory and not directory. Furthermore, item 2.6 of the Equal Pay Code states that it provides guidance when interpreting the EEA. This means that the Equal Pay Code read with the part of the Integration of Employment Equity Code dealing with terms and conditions of employment provides guidance to the phrase "terms and conditions of employment" referred to under section 6(4) of the EEA. It is further submitted that the list of terms and conditions of employment contained in the Integration of Employment Equity Code should specifically be mentioned in the Equal Pay Code to promote legal certainty regarding what falls within the ambit of terms and conditions of employment in section 6(4) of the EEA.

Whilst the relationship between section 6(4) of the EEA and the Equal Pay Code might seem axiomatic, it is prudent to briefly explain this. The Equal Pay Code has been issued in terms of section 54(1) of the EEA. In Joy Mining Machinery (A division of Harnischfeger (SA) (Pty) Ltd) v NUMSA 7

7 Joy Mining Machinery (A Division of Harnischfeger (SA) (Pty) Ltd) v NUMSA 2002 4 BLLR 372 (LC).

the code provides guidance when interpreting the EEA. Item 2.2 of the Equal Pay Code buttresses this by stating that the code applies to all employers and employees covered by the Act. Furthermore, it is submitted that the Equal Pay Code forms part of the equal pay legal framework and it would be strange were it simply to be ignored.

Item 2.4 of the Equal Pay Code makes reference to the Schedule on the Calculation of Employee's Remuneration in terms of section 35(5) of the Basic Conditions of Employment Act 75 of 1997 9

9 GN 691 in GG 24889 of 23 May 2003 (hereafter the BCEA Schedule).

(a) Housing or accommodation allowance or subsidy or housing or accommodation received as a benefit in kind;

(b) Car allowance of[or] provision of a car, except to the extent that the car is provided to enable the employee to work;

(c) Any cash payments made to an employee, except those listed as exclusions in terms of this schedule;

(d) Any other payment in kind received by an employee, except those listed as exclusions in terms of this schedule;

(e) Employer's contributions to medical aid, pension, provident fund or similar schemes;

(f) Employer's contributions to funeral or death benefit schemes. 11

11 Item 1(a)-(f) of the BCEA Schedule.

The BCEA Schedule also lists the following payments that do not form part of remuneration for the purposes of the above calculations, which are:

(a) Any cash payment or payment in kind provided to enable the employee to work (for example, an equipment, tool or similar allowance or the provision of transport or the payment of a transport allowance to enable the employee to travel to and from work);

(b) A relocation allowance;

(c) Gratuities (for example, tips received from customers) and gifts from the employer;

(d) Share incentive schemes;

(e) Discretionary payments not related to an employee's hours of work or performance (for example, a discretionary profit-sharing scheme);

(f) An entertainment allowance;

(g) An education or schooling allowance. 12

12 Item 2(a)-(g) of the BCEA Schedule.

It is not clear from the Equal Pay Code as to the intended purpose of the BCEA Schedule in relation to the Equal Pay Code and, in particular, the phrase "terms and conditions of employment". It is not proper to suggest, without more, that the phrase "terms and conditions of employment" under section 6(4) of the EEA should be interpreted in accordance with the BCEA Schedule lists of payments. It is thus prudent to analyse international labour law relating to equal pay in order to ascertain whether or not there is support for all or some of the payments listed in the BCEA Schedule to fall within the phrase "terms and conditions of employment" and any further guidance that can be gleaned therefrom.

3 Terms and conditions of employment (international labour law)

The use of international law in domestic law is dealt with in the Constitution of the Republic of South Africa, 1996 13

13 Constitution of the Republic of South Africa, 1996 (hereafter the Constitution).

In NUMSA v Baderpop (Pty) Ltd 15

15 NUMSA v Baderpop (Pty) Ltd 2003 3 SA 513 (CC).

Union (EU) also constitute a source of international labour law. 17

17 Valticos and Von Potobsky International Labour Law 49, 71-74.

International agreements and customary international law accordingly provide a framework within which Chapter Three can be evaluated and understood, and for that purpose, decisions of tribunals dealing with comparable instruments, such as the United Nations Committee on Human Rights, the Inter-American Commission on Human Rights, the Inter-American Court of Human Rights, the European Commission on Human Rights, and the European Court of Human Rights, and in appropriate cases, reports of specialised agencies such as the International Labour Organisation may provide guidance as to the correct interpretation of particular provisions of Chapter Three. 19

19 S v Makwanyane 1995 3 SA 391 (CC) para 35.

Section 3(d) of the EEA states that the Act must be interpreted in compliance with the international law obligations of the Republic, especially those contained in the ILO Convention No 111 of 1958 concerning Discrimination in Respect of Employment and Occupation. The EEA thus requires its provisions to be interpreted in accordance with international labour law. Reference to international law in the interpretative process is peremptory and should be complied with.

Based on the above, it is submitted that international labour law should thus not be seen as being foreign to our domestic labour law but should rather be embraced as forming part of (having a close connection with) our domestic labour law in the sense that it can assist domestic law where interpretations are needed and/or its experience is needed in order to better understand a specific aspect/s of domestic labour law.

According to the ILO Equal Remuneration Convention 20

20 Equal Remuneration Convention 100 of 1951 (hereafter the Equal Remuneration Convention). South Africa has ratified the Equal Remuneration Convention on 30 March 2000 (ILO 2024 https://normlex.ilo.org/dyn/normlex/en/f?p= NORMLEXPUB:11200:0::NO::P11200_COUNTRY_ID:102888).

Convention 22

22 Discrimination (Employment and Occupation) Convention 111 of 1958 (hereafter the Discrimination Convention).

The EU Recast Directive contains a similar definition in respect of "pay" as follows:

the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his/her employment from his/her employer. 30

30 Article 2(1)(e) of the EU Recast Directive. Landau and Beigbeder From ILO Standards to EU Law state the following at 95: "The wide definition of pay under EU law is inspired by the ILO definition of 'remuneration'".

The Equal Pay Guide states that the definition of "remuneration" in the Equal Remuneration Convention is wide enough to incorporate all elements in addition to the basic wage and these elements should be considered as part of the definition of remuneration for the purposes of the Equal Remuneration Convention if equality is to be attained in the workplace. 31

31 Oelz, Olney and Manuel Equal Pay 24, 34.

(a) basic wage, minimum wage, ordinary wage;

(b) overtime pay;

(c) productivity bonus;

(d) performance payments;

(e) seniority increment;

(f) family, child or dependency allowance;

(g) tips (gratuities);

(h) laundering provided or an allowance;

(i) travel allowance or expenses;

(j) car provided;

(k) accommodation provided or an allowance;

(l) clothing provided or an allowance;

(m) commission;

(n) life insurance;

(o) employer or industry social insurance;

(p) company shares or profits;

(q) food provided or an allowance. 34

34 Oelz, Olney and Manuel Equal Pay 35.

The following list of payments from the BCEA Schedule is listed as falling under the term pay for the purpose of unfair pay discrimination in terms of the above international instruments and materials: (a) a housing or accommodation allowance including housing or accommodation provided as a benefit in kind; 35

35 This allowance (payment) is set out in item 1(a) of the BCEA Schedule and also falls under pay according to the ILO Equal Remuneration General Survey and the Equal Pay Guide as discussed above.

While international labour law gives a broad definition of remuneration it has a useful test to ascertain whether a payment falls within the definition of remuneration, which test is whether the payment arises out of the worker's employment. 42

42 Article 1(a) of the Equal Remuneration Convention; ILO Equal Remuneration General Survey paras 14, 15, 17; Art 2(1)(e) of the EU Recast Directive; Oelz, Olney and Manuel Equal Pay 34-35.

The following elements of what falls within the ambit of pay (working conditions) under international labour law as discussed above are not mentioned in the BCEA Schedule or the Integration of Employment Equity Code: 43

43 Set out in para 2 above.

3.1 European Union case law dealing with what falls within the ambit of pay and working conditions (terms and conditions of employment)

3.1.1 Overtime pay, pay supplements and sick pay

In Elsner-Lakeburg v Land Nordrhein-Westfalen 44

44 Elsner-Lakeburg v Land Nordrhein-Westfalen Case C-285/02, 2005 IRLR 209 (ECJ).

In Brunnhofer v Bank der Osterreichischen Postsparkasse 49

49 Brunnhofer v Bank der Osterreichischen Postsparkasse Case C-381/99, 2001 IRLR 571 (ECJ).

In Jämställdhetsombudsmannen v Örebro Läns Landsting 52

52 Jämställdhetsombudsmannen v Örebro Läns Landsting 2000 IRLR 421 (ECJ).

compared in a pay discrimination claim. The Court had regard to the definition of pay in Article 119 of the EEC Treaty and held that an inconvenient-hours supplement constitutes a form of pay to which a worker is entitled by reason of her employment, and which is paid to her for performing duties at inconvenient hours. 53

53 Jämställdhetsombudsmannen v Örebro Läns Landsting 2000 IRLR 421 (ECJ) paras 26-27, 40, 42.

In Rinner-Kuhn v FWW Spezial-Gebaudereinigung GmbH 54

54 Rinner-Kuhn v FWW Spezial-Gebaudereinigung GmbH Case 171/88, 1989 ECR (ECJ).

3.1.2 Bonus

In Kruger v Kreiskrankenhaus Ebersberg 57

57 Kruger v Kreiskrankenhaus Ebersberg Case C-281/97, 1999 ECR I-5141 (ECJ).

The Court restated that Article 119 of the EEC Treaty prohibits discrimination in collective agreements. The ECJ held that an end of year bonus which is paid under a law or collective agreement falls within the meaning of pay in Article 119 of the EEC Treaty because it is received in relation to the person's employment. It finally held that Article 119 of the EEC Treaty should be interpreted to mean that the following exclusion constitutes indirect discrimination against female employees where the exclusion applies independently of the employee's sex but where it, in effect, affects a larger percentage of females than males. The exclusion by a collective agreement of employees, working less than 15 hours a week and earning pay which exempts them from compulsory social insurance, to a special annual bonus. 58

58 Kruger v Kreiskrankenhaus Ebersberg Case C-281/97, 1999 ECR I-5141 (ECJ) paras 12, 17, 20, 30.

In Lewen v Denda, 59

59 Lewen v Denda Case C-333/97, 1999 ECR I-7266 (ECJ).

An annual bonus (also known as a Christmas bonus) provides an example of what falls within the ambit of the term pay for the purposes of an equal pay claim in international labour law, and to this end, it is submitted that it should be mentioned as such in the Equal Pay Code which can assist with deciding whether such payment can fall within terms and conditions of employment in section 6(4) of the EEA. The Court in both cases applied the test, whether the payment has been granted in connection with the employee's employment, in order to decide whether the payments in question fell within the ambit of pay, and it came to the finding that an annual bonus falls within the ambit of pay as it is paid to the employee by reason of her employment. It is submitted that the use of the test by the court strengthens the submission made above that this test should be used to decide whether terms and conditions fall within the ambit of "terms and conditions of employment" under section 6(4) of the EEA. It is further

submitted that the way in which the court phrased this test should be added to the manner in which the test is phrased under international labour law above and the result of this will be the phrasing of the test as follows: whether the payment arises out of or is connected with the worker’s employment. It is submitted that this version of the test should be stated as the test to be used to determine whether terms and conditions fall within the ambit of "terms and conditions employment" under section 6(4) of the EEA.

3.1.3 Redundancy payment

In Commission of the European Communities v Kingdom of Belgium 61

61 Commission of the European Communities v Kingdom of Belgium Case C-173/91, 1993 ECR I-693 (ECJ).

In Barber v Guardian Royal Exchange Assurance Group 63

63 Barber v Guardian Royal Exchange Assurance Group Case C-262/88, 1990 ECR I-1944 (ECJ).

A redundancy payment and additional redundancy payment provide examples of what falls under pay for the purposes of an equal pay claim in international labour law. It is submitted that it should be mentioned as such in the Equal Pay Code, which could assist with deciding whether such payments can fall within terms and conditions of employment in section 6(4) of the EEA. The Court has stated that the principle of equal pay must be applied to each of the elements of remuneration and not on the basis of a comprehensive assessment of pay and this has also been stated in Brunnhofer and the EU Memorandum on Equal Pay as referred to above. It is submitted that this should be applied to equal pay claims under section 6(4) of the EEA.

3.1.4 Termination payments

In Gruber v Silhouette International Schmied GmbH & Co KG 66

66 Gruber v Silhouette International Schmied GmbH & Co KG Case C-249/97, 1999 ECR I-5315 (ECJ).

workers who prematurely end their employment relationship to care for their children, because of a lack of child-care facilities to care for them, but does not reduce the termination payment for those workers who give notice of resignation for an important reason. The workers who received the reduced payment were predominantly women. 67

67 Gruber v Silhouette International Schmied GmbH & Co KG Case C-249/97, 1999 ECR I-5315 (ECJ) paras 21-22.

In Hlozek v Roche Austria Gesellschaft mbH 68

68 Hlozek v Roche Austria Gesellschaft mbH Case C-19/02, 2004 ECR I-11523 (ECJ).

In Kowalska v Freie und Hansestadt Hamburg 70

70 Kowalska v Freie und Hansestadt Hamburg Case C-33/89, 1990 ECR I-2607 (ECJ).

termination of his employment falls within the ambit of pay as contained in Article 119 of the EEC Treaty. 71

71 Kowalska v Freie und Hansestadt Hamburg Case C-33/89, 1990 ECR I-2607 (ECJ) paras 8-11.

Termination payments, a bridging allowance and a severance grant paid after the termination of the employment relationship provide examples of what falls within the ambit of pay for the purposes of an equal pay claim in international labour law. It is submitted that they should be mentioned as such in the Equal Pay Code, which could assist with deciding whether such payments can fall within "terms and conditions of employment" in section 6(4) of the EEA.

3.1.5 Loss of earnings due to attending training courses

In Kuratorium für Dialyse und Nierentransplantation e.V. v Lewark 72

72 Kuratorium für Dialyse und Nierentransplantation e.V. v Lewark Case C-457/93, 1996 ECR I-260 (ECJ).

In Arbeiterwohlfahrt der Stadt Berlin e. V. v Bötel 74

74 Arbeiterwohlfahrt der Stadt Berlin e.V. v Bötel Case C-360/90, 1992 ECR I-3589 (ECJ).

Payment for loss of earnings, overtime pay and paid leave all received as a result of an employee’s attending a training course related to her employment provide examples of what falls within the ambit of the term pay for the purposes of an equal pay claim in international labour law, and to this end, it is submitted that they should be mentioned as such in the Equal Pay Code, which could assist with deciding whether such payments can fall within "terms and conditions of employment" in section 6(4) of the EEA.

3.1.6 Maternity leave pay

In Gillespie v Northern Health and Social Services Boards 76

76 Gillespie v Northern Health and Social Services Boards Case C-342/93, 1996 ECR I-492 (ECJ).

In Abdoulaye v Regie Nationale des Usines Renault SA 78

78 Abdoulaye v Regie Nationale des Usines Renault SA Case C-218/98, 1999 ECR I-5742 (ECJ).

The cases strengthen the submission made above that maternity leave, which normally attracts maternity leave pay, as set out in the Integration of Employment Equity Code, falls within "terms and conditions of employment" under section 6(4) of the EEA. 80

80 See para 2 above.

employee who is on maternity leave provides an example of what falls under the term pay for the purposes of an equal pay claim in international labour law, and to this end, it is submitted that it should be mentioned as such in the Equal Pay Code, which could assist with deciding whether such payment can fall within "terms and conditions of employment" in section 6(4) of the EEA.

3.1.7 Expatriation allowance (relocation allowance)

In Sabbatini-Bertoni v European Parliament 81

81 Sabbatini-Bertoni v European Parliament Case 20/71, 1972 ECR 345 (ECJ).

It is submitted that a relocation allowance listed in the BCEA Schedule falls within "terms and conditions of employment" under section 6(4) of the EEA. 83

83 See para 2 above.

3.1.8 Travel concessions

In Grant v South West Trains 84

84 Grant v South West Trains Case C-249/96, 1998 ECR I-636 (ECJ).

A travel concession granted to spouses/partners and a special travel facility granted for spouses and dependent children provide examples of what falls within the ambit of the term pay for the purposes of an equal pay claim in international labour law, and to this end, it is submitted that it should be mentioned as such in the Equal Pay Code, which could assist with deciding whether such payments can fall within "terms and conditions of employment" in section 6(4) of the EEA.

3.1.9 Pension

In Bilka-Kaufhaus GmbH v Weber von Hartz 88

88 Bilka-Kaufhaus GmbH v Weber von Hartz Case 170/84, 1986 ECR 1620 (ECJ).

In Podesta v CRICA 92

92 Podesta v CRICA Case C-50/99, 2000 ECR I-4055 (ECJ).

the employee to a retirement scheme by way of an addition to the gross salary fell within pay in Article 119 of the EEC Treaty. This question arose in circumstances where male employees under the age of 25 years old were required to contribute 5% of their salary to their retirement scheme but women who were under the age of 25 were not required to do so. The plaintiff female employees alleged unequal pay against them because the employer added an additional 5% to the gross salary paid to those male employees who were required to contribute 5% to their retirement schemes. This was not received by the plaintiff female employees. The ECJ held that payments such as the one in question which are included in the employees' gross salary and which determine the calculation of other advantages such as unemployment benefits and redundancy benefits fall within pay in Article 119 of the EEC Treaty even if they are immediately deducted by the employer and paid over to a retirement scheme on behalf of an employee. 95

95 Worringham and Humphreys v Lloyds Bank Limited Case 69/80, 1981 ECR 768 (ECJ) paras 5, 12-13, 15, 25.

In Birds Eye Walls Ltd v Roberts 96

96 Birds Eye Walls Ltd v Roberts Case C-132/92, 1993 ECR I-5599 (ECJ).

These cases strengthen the submission made above that pension (retirement) schemes as set out in the Integration of Employment Equity Code fall within "terms and conditions of employment" under section 6(4) of

the EEA. 100

100 See para 2 above.

3.1.10 Nursery scheme

In Lommers v Minister van Landbouw, Natuurbeheer en Visserij 101

101 Lommers v Minister van Landbouw, Natuurbeheer en Visserij Case C-476/99, 2002 ECR I-2921 (ECJ).

3.1.11 Breastfeeding leave

In Roca Álvarez v Sesa Start España ETT SA 104

104 Roca Álvarez v Sesa Start España ETT SA Case C-104/09, 2010 ECR I-8677 (ECJ).

3.2 Further "terms and conditions of employment" (pay)

The following payments in the BCEA Schedule 106

106 See para 2 above.

it is submitted that these payments are still capable of falling within "terms and conditions of employment" under section 6(4) of the EEA provided that they arise out of or are connected to the employment relationship, because this is the test that is used in international labour law to decide whether or not a payment (working condition) falls within the ambit of pay (or working conditions) for the purpose of equal pay (terms and conditions) and based on the argument that this test should be used under section 6(4) of the EEA. 108

108 See reference to this test under para 3 above.

4 Conclusion

This article has dealt extensively with terms and conditions of employment under equal pay claims as dealt with in domestic and international labour law in order to answer the question posed in this article, which is, what falls within the ambit of terms and conditions of employment for the purpose of equal pay claims as contemplated in section 6(4) of the EEA. This question has been answered in this article in the following manner: (a) submissions have been made as to which terms and conditions/payments fall within the ambit of the phrase terms and conditions of employment in section 6(4) of the EEA; 109

109 See paras 2, 3, 3.1.7 above.

Bibliography

Literature

ILO Equal Remuneration: General Survey

International Labour Organisation Equal Remuneration: General Survey by the Committee of Experts on the Application of Conventions and

Recommendations (International Labour Conference, 72nd Session) (International Labour Office Geneva 1986)

Landau and Beigbeder From ILO Standards to EU Law

Landau EC and Beigbeder Y From ILO Standards to EU Law: The Case of Equality between Men and Women at Work (Martinus Nijhoff Leiden 2008)

Oelz, Olney and Manuel Equal Pay

Oelz M, Olney S and Manuel T Equal Pay: An Introductory Guide (International Labour Office Geneva 2013)

Valticos and Von Potobsky International Labour Law

Valticos N and Von Potobsky G International Labour Law 2nd ed (Kluwer Law and Taxation Deventer-Boston 1995)

Case law

Europe

Abdoulaye v Regie Nationale des Usines Renault SA Case C-218/98, 1999 ECR I-5742 (ECJ)

Arbeiterwohlfahrt der Stadt Berlin e.V. v Bötel Case C-360/90, 1992 ECR I-3589 (ECJ)

Barber v Guardian Royal Exchange Assurance Group Case C-262/88, 1990 ECR I-1944 (ECJ)

Bilka-Kaufhaus GmbH v Weber von Hartz Case 170/84, 1986 ECR 1620 (ECJ)

Birds Eye Walls Ltd v Roberts Case C-132/92, 1993 ECR I-5599 (ECJ)

Brunnhofer v Bank der Osterreichischen Postsparkasse Case C-381/99, 2001 IRLR 571 (ECJ)

Commission of the European Communities v Kingdom of Belgium Case C-173/91, 1993 ECR I-693 (ECJ)

Elsner-Lakeburg v Land Nordrhein-Westfalen Case C-285/02, 2005 IRLR 209 (ECJ)

Garland v British Rail Engineering Ltd Case 12/81, 1982 ECR 360 (ECJ)

Gillespie v Northern Health and Social Services Boards Case C-342/93, 1996 ECR I-492 (ECJ)

Grant v South West Trains Case C-249/96, 1998 ECR I-636 (ECJ)

Griesmar v Ministre de L'Economie, des Finances et de L'Industrie Case C-366/99, 2001 ECR I-9413 (ECJ)

Gruber v Silhouette International Schmied GmbH & Co KG Case C-249/97, 1999 ECR I-5315 (ECJ)

Hlozek v Roche Austria Gesellschaft mbH Case C-19/02, 2004 ECR I-11523 (ECJ)

Jämställdhetsombudsmannen v Örebro Läns Landsting 2000 IRLR 421 (ECJ)

Kowalska v Freie und Hansestadt Hamburg Case C-33/89, 1990 ECR I-2607 (ECJ)

Kruger v Kreiskrankenhaus Ebersberg Case C-281/97, 1999 ECR I-5141 (ECJ)

Kuratorium für Dialyse und Nierentransplantation e.V. v Lewark Case C-457/93, 1996 ECR I-260 (ECJ)

Lewen v Denda Case C-333/97, 1999 ECR I-7266 (ECJ)

Lommers v Minister van Landbouw, Natuurbeheer en Visserij Case C-476/99, 2002 ECR I-2921 (ECJ)

Podesta v CRICA Case C-50/99, 2000 ECR I-4055 (ECJ)

Rinner-Kuhn v FWW Spezial-Gebaudereinigung GmbH Case 171/88, 1989 ECR (ECJ)

Roca Álvarez v Sesa Start España ETT SA Case C-104/09, 2010 ECR I-8677 (ECJ)

Sabbatini-Bertoni v European Parliament Case 20/71, 1972 ECR 345 (ECJ)

Ten Oever v Stichting Bedrijfspensioenfonds voor het Glazenwassers-en Schoonmaakbedrijf Case C-109/91, 1993 ECR I-4939 (ECJ)

Worringham and Humphreys v Lloyds Bank Limited Case 69/80, 1981 ECR 768 (ECJ)

South Africa

Co-operative Worker Association v Petroleum Oil and Gas Co-operative of SA 2007 1 BLLR 55 (LC)

Duma v Minister of Correctional Services 2016 37 ILJ 1135 (LC)

Heynsen v Armstrong Hydraulics (Pty) Ltd 2000 12 BLLR 1444 (LC)

Joy Mining Machinery (A Division of Harnischfeger (SA) (Pty) Ltd) v NUMSA 2002 4 BLLR 372 (LC)

Louw v Golden Arrows Bus Services (Pty) Ltd 2000 21 ILJ 188 (LC)

Mangena v Fila South Africa (Pty) Ltd 2010 31 ILJ 662 (LC)

Mthembu v Claude Neon Lights 1992 13 ILJ 422 (IC)

Mutale v Lorcom Twenty Two CC 2009 3 BLLR 217 (LC)

National Union of Mineworkers v Henry Gould (Pty) Ltd 1988 9 ILJ 1149 (IC)

Ntai v SA Breweries Ltd 2001 22 ILJ 214 (LC)

NUMSA v Baderpop (Pty) Ltd 2003 3 SA 513 (CC)

Pioneer Foods (Pty) Ltd v Workers Against Regression (WAR) 2016 37 ILJ 2872 (LC)

S v Makwanyane 1995 3 SA 391 (CC)

SA Chemical Workers Union v Sentrachem 1988 9 ILJ 410 (IC)

SANDU v Minister of Defence 1999 6 BLLR 615 (CC)

Sethole v Dr Kenneth Kaunda District Municipality 2018 1 BLLR 74 (LC)

TGWU v Bayete Security Holdings 1999 4 BLLR 401 (LC)

Legislation

Basic Conditions of Employment Act 75 of 1997

Constitution of the Republic of South Africa, 1996

Employment Equity Act 55 of 1998

Government publications

GN 691 in GG 24889 of 23 May 2003 (Schedule on the Calculation of Employee's Remuneration in terms of section 35(5) of the Basic Conditions of Employment Act 75 of 1997)

GN 1358 in GG 27866 of 4 August 2005 (Code of Good Practice on the Integration of Employment Equity into Human Resources Policies and Practices)

GN R595 in GG 37873 of 1 August 2014 (Employment Equity Regulations)

GN 448 in GG 38837 of 1 June 2015 (Code of Good Practice on Equal Pay/Remuneration for Work of Equal Value)

International and regional instruments

Consolidated Versions of the Treaty on European Union and the Treaty Establishing the European Community (2002)

Directive 2006/54/EC on the Implementation of the Principle of Equal Opportunities and Equal Treatment of Men and Women in Matters of Employment and Occupation (Recast) (2006)

Directive 75/117/EEC Relating to the Application of the Principle of Equal Pay for Men and Women (1975)

Directive 76/207/EEC on the Implementation of the Principle of Equal Treatment for Men and Women as Regards Access to Employment, Vocational Training and Promotion, and Working Conditions (1976)

Discrimination (Employment and Occupation) Convention 111 of 1958

Equal Remuneration Convention 100 of 1951

EU Memorandum on Equal Pay for Work of Equal Value (1994)

Treaty Establishing the European Economic Community (1957)

Internet sources

Biagi 1997 https://training.itcilo.org/actrav_cdrom1/english/global/law/ lablaw.htm

Biagi M 1997 Freedom of Association: Six Case Studies https://training.itcilo.org/actrav_cdrom1/english/global/law/lablaw.htm accessed 15 September 2024

ILO 2024 https://normlex.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB: 11200:0::NO::P11200_COUNTRY_ID:102888

International Labour Organisation 2024 Ratifications for South Africa https://normlex.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:11200:0::NO::P11200_COUNTRY_ID:102888 accessed 6 October 2024

List of Abbreviations