Equal Pay for Work of Equal Value in Terms of the Employment Equity Act 55 of 1998: Lessons from the International Labour Organisation and the United Kingdom

Authors

  • Shamier Ebrahim University of South Africa

DOI:

https://doi.org/10.17159/1727-3781/2016/v19i0a1230

Keywords:

Equal pay, Employment Equity Act, Equality Act, International Labour Organisation, Equal Pay Guide, Equal Remuneration Convention, Equal pay for work of equal value

Abstract

Equal pay is an area of employment law that is complex and not easily understood. This complexity is recognised by the International Labour Organisation (ILO), which notes that equal pay for work of equal value has proved to be difficult to understand, both with regard to what it entails and in its application. Amendments have been made to the Employment Equity Act 55 of 1998 (EEA) to include a specific provision to regulate equal pay claims in the form of section 6(4)-(5) of the EEA. The amendments were made in terms of the Employment Equity Amendment Act 47 of 2013, which came into effect on 1 August 2014 by presidential proclamation. Prior to section 6(4), the EEA did not contain a specific provision regulating equal pay claims. Claims could be brought in terms of section 6(1) of the EEA, which prohibits unfair discrimination on a number of grounds. The recent amendments to the EEA in the form of section 6(4)-(5) (including the Employment Equity Regulations and the Code of Good Practice on Equal Pay for Work of Equal Value) in respect of equal pay claims is a response to the ILO's criticism of South Africa's failure to include specific equal pay provisions in the EEA.

Section 6(4) of the EEA provides for three causes of action in respect of equal pay. They are as follows: (a) equal pay for the same work; (b) equal pay for substantially the same work; and (c) equal pay for work of equal value. The first two causes of action are not difficult to understand as opposed to the third cause of action, which is complex. The ILO has recognised the complexity of the third cause of action, "equal pay for work of equal value". In Mangena v Fila South Africa 2009 12 BLLR 1224 (LC), the Labour Court remarked in the context of an equal pay for work of equal value claim that it does not have expertise in job grading and in the allocation of value to particular occupations. This article will deal with the third cause of action only, "equal pay for work of equal value".

The purpose of this article is to critically analyse the law relating to equal pay for work of equal value in terms of the EEA (including the Employment Equity Regulations) and evaluate it against the equal pay laws of the ILO and the United Kingdom, which deal with equal pay for work of equal value. Lastly, this article seeks to ascertain whether the EEA (including the Employment Equity Regulations) provides an adequate legal framework for determining an equal pay for work of equal value claim.

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Author Biography

Shamier Ebrahim, University of South Africa

Senior Lecturer

Department of Mercantile Law

References

Literature

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Case law

South Africa

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

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

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

Mangena v Fila South Africa (Pty) Ltd 2009 12 BLLR 1224 (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)

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

Sentrachem Ltd v John 1989 10 ILJ 249 (WLD)

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

United Kingdom

Bromley v H & J Quick Ltd 1988 IRLR 249 CA

Dibro Ltd v Hore 1989 IRLR 129 EAT

Hosvell v Ashford & St Peter's Hospital NHS Trust 2009 IRLR 734 CA

Leverton v Clwyd County Council 1989 IRLR 28 HL

Murphy v Bord Telecom Eireann 1988 IRLR 267 ECJ

Potter v North Cumbria Acute Hospitals NHS Trust Potter 2009 IRLR 22 EAT

Redcar & Cleveland Borough Council v Bainbridge (No 2) 2008 IRLR 776 EWCA

Legislation

South Africa

Basic Conditions of Employment Act 75 of 1997

Employment Equity Act 55 of 1998

Employment Equity Amendment Act 47 of 2013

United Kingdom

Equal Pay Act, 1970

Equal Pay Statutory Code of Practice to the Equality Act, 2010

Equality Act, 2010

Government publications

Proc 50 in GG 37871 of 21 July 2014 (Proclamation of the Commencement of the Employment Equity Amendment Act, 2013)

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)

Memorandum on Objects of Employment Equity Amendment Bill 2012 as found in the Employment Equity Amendment Bill [B31B of 2012]

International instruments

Treaty establishing the European Community of 1957

ILO Discrimination (Employment and Occupation) Convention 111 of 1958

ILO Equal Remuneration Convention 100 of 1951

SADC Protocol on Gender and Development (2008)

Additional Files

Published

2017-05-17

How to Cite

Ebrahim, S. (2017). Equal Pay for Work of Equal Value in Terms of the Employment Equity Act 55 of 1998: Lessons from the International Labour Organisation and the United Kingdom. Potchefstroom Electronic Law Journal, 19, 1–28. https://doi.org/10.17159/1727-3781/2016/v19i0a1230

Issue

Section

Articles