The Employment Equity Act 55 of 1998 ("EEA") has recently been amended by the Employment Equity Amendment Act 47 of 2013 ("Amendment Act"). In addition, the Employment Equity Regulations, 2014 ("regulations") have also been published (Government Gazette No: 37873 1 August 2014). The Amendment Act and regulations have introduced a number of material changes and amplifications to the EEA. In this case update we focus exclusively on the requirement to avoid discrimination between employees who perform work of equal value.

The Amendment Act has made it clear that discrimination will occur in the instance where 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 of any one of the grounds provided for in the EEA. Section 6(b) of the Amendment Act provides as follows:

‘A difference in terms and conditions of employment between employees of the same employer performing the same work or substantially the same work or work of equal value that is directly or indirectly based on any one of the grounds listed in subsection (1), is unfair discrimination.’

In terms of the regulations work performed by an employee is:

• The same as the work of another employee of the same employer, if their work is identical or interchangeable;
• Substantially the same as the work of another employee employed by that employer, if the work performed by the employees is sufficiently similar that they can reasonably be considered to be performing the same job, even if their work is not identical or interchangeable.
• Of the same value as the work of another employer in a different job, if their respective occupations are accorded the same value in accordance with the regulations.
• The following factors are provided within the regulations as being relevant in determining, objectively, whether work is of equal value:
• The responsibility demanded of the work, including responsibility for people, finances and material;
• The skills, qualifications, including prior learning, and experience required to perform the work, whether formal or informal;
• Physical, mental and emotional effort required to perform the work;
• To the extent that it is relevant, conditions under which the work is performed, including physical environment, psychological conditions, time when and geographic location where the work is performed.
• Any other factor the employer can show is relevant in assessing the value of the work.
• The following factors, or combination thereof, have been recognised within the regulations as providing for a justification for differentiating among employees:
• The individual’s respective seniority or length of service;
• An individual’s respective qualifications, ability, competence or potential above the minimum acceptable levels required for the performance of the job;
• An individual’s respective performance, quantity or quality of work, provided that employees are equally subject to the employer’s performance evaluation system, that the performance evaluation system is consistently applied;
• Where an employee is demoted as a result of organisational restructuring or any other legitimate reason – without a reduction in pay and fixing of the employee’s salary at this level until the remuneration of employees in the same job category reaches this level;
• Where an individual is temporarily employed in a position for purposes of gaining experience or training and as a result receives different remuneration or enjoys different terms and conditions of employment;
• The existence of a shortage of relevant skill, or the market value in a particular job classification;
• Any other relevant factor that is not unfairly discriminatory.

Importantly, and in terms of section 27 of EEA (as amended by the Amendment Act) an employer must prepare an income differential statement on the remuneration and benefits received for each occupation level of that employer’s workforce ("statement"). Where disproportionate income differentials, or unfair discrimination by virtue of a difference in terms and conditions of employment are reflected in such statement, a designated employer must take measures to progressively reduce such differentials and must include same within their statement.

Written by Jacques van Wyk, Director, and Andre Van Heerden, Associate, Werksmans Attorneys