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What is sauce for the goose is sauce for the gander: equal pay for work

Gavin Stansfield and Kerswyn Bassuday
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Many authors have debated if the general prohibition against unfair discrimination (contained in section 6 of the Employment Equity Act, No 55 of 1998 (EEA)) adequately safeguards equal pay for equal work. South Africa is a party to the International Labour Organisation (ILO) Convention concerning equal remuneration for men and women, workers for work of equal value, or equal remuneration convention. An ‘equal work equal pay’ clause is provided in the Code of Good Practice for the Integration of Employment Equity into Human Resource Policies and Procedures, and the Public Service Act Regulations. But does it go far enough?

Many authors have debated if the general prohibition against unfair discrimination (contained in section 6 of the Employment Equity Act, No 55 of 1998 (EEA)) adequately safeguards equal pay for equal work. South Africa is a party to the International Labour Organisation (ILO) Convention concerning equal remuneration for men and women, workers for work of equal value, or equal remuneration convention. An 'equal work equal pay' clause is provided in the Code of Good Practice for the Integration of Employment Equity into Human Resource Policies and Procedures, and the Public Service Act Regulations. But does it go far enough?

The legislature has made recent amendments to the EEA and issued new regulations to the act:

  • Section 6(1) of the EEA now provides that discrimination may not take place on the following grounds:

- 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, or

- Any other arbitrary ground.

The inclusion of "any other arbitrary ground" now means that the EEA is in line with the Labour Relations Act, No 66 of 1995 (LRA) – specifically s187(1)(f) which provides that an employer may not dismiss an employee for any reason related,

directly or indirectly, to "any arbitrary ground".

According to section 6(4), the following is also termed as unfair discrimination:

  • If there is 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 subsection (1)).

This new section focuses on the issue of equal work and equal pay, and allows employees the opportunity to link such an unfair practice directly to the act. An employee must prove that:

  • The employer has allowed a situation to occur where employees who do the same work receive different pay or benefits, in a discriminatory manner, without any justifiable ground or reason for such a difference.

In the amended Employment Equity Regulations, the minister now also provides employees and employers with a clear definition of the meaning of equal work for equal pay, which is a methodology to determine:

  • When and how to apply the provisions of s6(4), and
  • How to assess whether work is equal by considering various factors such as responsibilities, qualifications needed to perform that function and the conditions under which that work is performed.

You should audit your remuneration and rewarded practices carefully to identify potential claims. Where terms and conditions of employees differ, even where employees do the same or similar work or work of equal value, you have to

determine whether such differentiation is a listed or arbitrary ground and whether there is an acceptable ground of justification for such differentiation.


Gavin Stansfield is a director of employment at Cliffe Dekker Hofmeyr. He has been endorsed for his skills in dispute resolution. Gavin achieved a BA LLB LLM HDip Co.Law from the University of Cape Town.
Kerswyn Bassuday is a candidate attorney in the employment practice at Cliffe Dekker HofmeyrHe completed his LLB degree in 2011 at the University of KwaZulu-Natal. In 2012, Kershwyn completed his LLM (with a specialisation in labour law) at the University of Cape Town. His dissertation is entitled: "When an employment relationship becomes intolerable", and it explores the complexities of the employment relationship.
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