Bridging the Gender Pay Gap - The Labour Court’s Response

Discussions pertaining to pay or remuneration remains a “taboo” topic in the workplace notwithstanding the provisions of section 78(1)(b) of the Basic Conditions of Employment Act 75 of 1997, as amended (“the BCEA”) which provides every employee with the right to discuss his or her conditions of employment with fellow employees. The law in this area is evolving and it has been argued that a secretive approach on remuneration has contributed to the disparities or gaps that arise on gender pay.

Written By of Cowan-Harper-Madikizela Attorneys

 

South African gender pay gap statistics indicate that South African women earn approximately 34% less than their male counterparts for the same job and that the average gender pay gap in 2015 was between 15% and 17%.

In order to address this issue the Employment Equity Act 55 of 1998, as amended (“the EEA”) was amended during 2014 to include an “equal pay for equal work” provision. In accordance with section 6(4) of the EEA 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 gender constitutes unfair discrimination.

On 2 November 2017, the Mail & Guardian published an article stating that South Africa was ranked 19 in a new global index report on gender inequality released by the World Economic Forum. The report found that although South Africa has made significant progress towards achieving gender equality in line with the fundamental right prohibiting direct or indirect discrimination on the ground of, inter alia, gender as provided for in section 9 of the Constitution of South Africa and section 6(1) of the EEA, the gender pay gap remains significant.

Case Law Developments:

In the recent case of Pioneer Foods (Pty) Ltd v Workers Against Regression & Others (2016) 37 ILJ 1135 (LC) the Labour Court held that in order to establish pay discrimination the complainant must show that the work performed is of an equal value to that of a more highly remunerated comparator and that the difference in pay is based on a prohibited ground of discrimination in terms of section 6(1) of the EEA. If the pay discrimination is based on a prohibited ground the employer bears the onus to prove that the pay differentiation is rational and not unfair or is justifiable. In this instance, the Labour Court found that the “length of service” of an employee was a rational and fair reason for pay differentiation.

In Duma v Minister of Correctional Services and others (2016) 37 ILJ 1135 (LC) the Labour Court, in finding unfair pay discrimination, ordered the employer to compensate the employee for an amount equivalent to the difference between the remuneration the employee received at the time that her claim arose in August 2009 and the amount she would have received had she been remunerated fairly.

Although this decision has subsequently been set aside by the Labour Appeal Court for reasons particular to that case, claims of this nature can be substantial and particularly when a number of employees are involved.

Recommendation:

It is recommended that audits be conducted by employers and that gender pay differentiation be addressed by implementing measures to progressively reduce such differentials. We anticipate that there will be an increase in these type of disputes.

Tanya Mulligan

Tanya Mulligan
Director of Employment

Jessica Fox

Jessica Fox
Partner in Employment

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