Many Employers are of the understanding that pay grade is discretionary irrespective of the job, duties and individuals hired in the positions. This however could expose the Employer to risk. The topic of equal work for equal pay encompasses many legal principles including discrimination, the Employment Equity Act and the Labour Relations Act.
What is equal pay for equal work? Equal pay for equal work is the concept that individuals in the same workplace be given equal pay for work of the same value. An example of discrimination relating to pay is in the context of sexual discrimination, where one often encounters a gender pay gap, with males earning more than females doing the same job or serving in the same position.
Substantial risk exists in terms of differentiation in payments for Employees fulfilling the same job and/or duties. Equal pay for equal work addresses this concern. In accordance with the amended Employment Equity Act, 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 the law (such as gender, race, ethnicity, religion etc.), is unfair discrimination. The Employment Equity Regulations provide for equal wages for work of equal value.
As seen from the above, the equal pay for equal work dispute poses much risk for Employers who cannot substantiate the difference in payment between individuals performing the same work, as a case of discrimination could be brought against the Company.
However, there are various justifiable reasons that an employer may rely upon to justify such differentiations in wages between employees performing the same work, such as:
Level of seniority
Length of service
Performance and quality of work (consistency must apply in performance appraisals)
Where a shortage of the relevant skill exists within the industry
Inherent requirement of the job
Where an individual is employed temporarily in a position for purposes of gaining experience or training and as a result receives different pay /remuneration or enjoys different terms and conditions of employment the existence of a shortage of relevant skill in a particular job classification.
In summary, Employers are to ensure jobs are evaluated properly to ensure payment of equal value is made and should a differentiation occur in terms of payments, Employers are to ensure this is linked to the above justifiable grounds or based on any other relevant factor that is not unfair discrimination in terms of section 6 (1) of the Act.
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