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

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.

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