Equal pay for equal work, or for work of equal value

Disputes regarding equal pay for equal work are becoming more frequent. Although this matter is addressed to a certain extent in the code of Good Practice - for the Integration of Employment Equity into Human Resource Policies and Procedures (available on the Department of Labour website www.labour.gov.za) the matter is not as simple as " we are both doing the same job therefore must get the same pay."

There is a lot more to it than that. Failure to apply the general principle of "equal pay for equal work, or for work of equal value", even though the principle is accepted in our law, failure to apply this principle will only amount to unfair discrimination if the reason for distinguishing between the higher paid and the lower paid employee is shown to be one of the grounds referred to in terms of section 6 of the Employment Equity Act - namely 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.

Even if the discrimination or the difference in salary can be shown to be based on one of the above unfair reasons for discrimination, the first requirement would be to establish whether the difference in pay does amount to discrimination. Differences in salary which are based on the fact that the employees have different levels of responsibility, or expertise, experience, or skills, does not amount to discrimination.

Thus, discrimination based on one of the grounds mentioned in section 6 of the EEA will not necessarily be an arbitrary discrimination of salary - the different levels of responsibility, experts etc, will be taken into account. The applicant therefore must be able to show that the discrimination is not based on different levels of responsibility, expertise, experience, skills and similar reasons, but is based on some or other arbitrary grounds. Put indifferently, if the difference in pay is objectively justifiable, it will more than likely be ruled to be not discriminatory.

In TGWU & Another v Bayete Security Holdings, the applicant showed only that he was a black employee, being paid a salary are far less than another white employee, and both were doing the same job. The applicant did not submit any evidence to show what work the white employee was doing, what his educational qualifications or experience were, for whom the white employee had previously worked, and for how long. The applicant also conceded that the white employee was designated a manager, and the black employee was not. Therefore it was ruled that there was nothing to show that the applicant had been discriminated against in terms of salary.

In Ntai & others v South African Breweries Ltd, a prima facie case of racial discrimination in the form of excessive pay differentials had been shown, but the Court found that the employer had succeeded in proving that the reasons for these differentials were not related to race. On the question of whether the failure by the employer to reduce the differentials amounted to racial discrimination, the Court ruled that there was no basis for the Labour Court to legitimately interfere with the employer's decision not to do this, because the applicant had failed to show that the alleged unwillingness of the employer to close the gap was in any way related to or based on race.

Thus it will be seen that employees who hold that they must get the same pay as another person doing the same job, have many bridges to cross, and must be able to show that the difference in pay is based purely and simply on one of the arbitrary grounds mentioned in the Employment Equity Act before such a dispute will succeed.

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