On 1 August 2014 South Africa’s previous employment equity regulations were repealed and replaced with the new Employment Equity Regulations.
This article highlights the rules that apply to equal pay for equal work, offering employers and employees clarity on the issues surrounding these rules. Ramsay Webber’s Gareth Cremen looks at the new regulations.

With the scrapping of the old regulations and the implementation of new Employment Equity Regulations, provisions have been introduced relating to equal pay for equal work, in addition to those in terms section 6 of the Employment Equity Act (the EEA) that deal with discrimination in the workplace.

The new regulations address instances where employees are treated unequally when it comes to remuneration, or any of their other terms and conditions of employment. Significantly, the new regulations provide that differentiation on “any arbitrary ground” is viewed as “unfair discrimination”, broadening the scope of grounds for differentiation. The grounds in section 6(1) of the EEA still apply.

In order for employers to safeguard against differentiating between employees, they need to test whether the effect of the differentiation leads to discriminating against their employees on any ground that is listed in section 6(1) of the EEA, or any arbitrary ground as per the new regulations.

Employers, therefore, cannot pay their employees different salaries when those employees fulfil the same roles and duties and are carrying out work of equal value. Differences in salaries could amount to unfair discrimination indirectly, should the differences be for reasons in the listed grounds – including race, religion, gender or family responsibility – or should they be based on an arbitrary ground.

In order to ascertain whether there is differentiation between employees performing work of equal value but being paid different salaries, it must first be established whether the work concerned is of equal value in terms of regulation 6; and whether there is a difference in the terms and conditions of employment. Once that has been established it must then be established whether any difference constitutes unfair discrimination.

The following criteria must be assessed in considering whether work is of equal value:
* The responsibility demanded of the work (including responsibility for people, finances and material);
* The skills and qualifications, including prior learning and experience, required to perform the work, whether formal or informal; and
* The physical, mental and emotional effort required to perform the work; and
* The conditions under which the work is performed, including physical environment, psychological conditions, time and geographic location at which the work is performed (to the extent that it is relevant).

Item 7 of the regulations provides for factors justifying differentiation in terms and conditions of employment, and provides that – should any of the following grounds be present when employees perform work that is of equal value – then a difference in their terms and conditions of employment including that of remuneration, would not constitute unfair discrimination if based on:
* Seniority or length of service;
* Qualifications, ability, competence or potential above the minimum levels required for the performance of the job;
* Performance, quantity or quality of work (provided that employees are equally subject to the employer’s performance evaluation system and that it is consistently applied);
* Where an employee is demoted as a result of organisations restructuring or for any other legitimate reason without a reduction in pay and fixing the employee’s salary at this level until the remuneration of employees in the same job category reaches this level;
* Temporary employment of an individual for purposes of gaining experience of training;
* The existence of a shortage of relevant skill or the market value in a particular job classification; and
* Any other relevant factor that is not unfairly discriminatory in terms of Section 6(1) of the EEA.