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Employment Equity Act, 1998 (Act No. 55 of 1998)

Code of Good Practice

Equal Pay/Remuneration for Work of Equal Value

3. Legal Framework and Principles

 

3.1 Section 9(3) of the Constitution of the Republic of South Africa states that, "the State may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth".

 

3.2 Furthermore, Section 9(4) of the Constitution states that, "no person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination".

 

3.3 The International Labour Organisation (ILO) Equal Remuneration Convention 1951 (No. 100), which South Africa ratified in 2000, obliges ratifying member States to give effect to the principle of equal pay/remuneration for men and women workers for work of equal value.

 

3.4 The obligation to eliminate unfair discrimination in respect of pay/remuneration arises under Chapter 2 of the Act. Section 5 of the Act requires employers to take positive steps to eliminate unfair discrimination in their workplaces.

 

3.5 Every employer must take steps to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice.

 

3.6 Employers must ensure that pay/remuneration policies and practices are applied consistently without unfair discrimination on the basis of any one or combination of the listed or on any other arbitrary grounds.

 

3.7 Section 6(4) of the Act, which came into effect on 1 August 2014, provides that 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) or on any other arbitrary ground, is unfair discrimination.

 

3.8 Section 27 of the Act requires designated employers to report on the pay/remuneration and benefits received by employees in each occupational level of their workforce, and where there are disproportionate income differentials or unfair discrimination by virtue of a difference in terms and conditions of employment, employers must take steps to progressively reduce these differentials. Guidance in this regard is provided for in the Code of Good Practice on the Integration of Employment Equity into Human Resources Policies, Practices and Procedures (HR Code).

 

3.9 Regulations 2 to 7 of the Employment Equity Regulations, 2014, published on 1 August 2014 cover the definition of work of equal value, criteria and the methodology for assessing work of equal value.