Equal pay for equal work

2014-05-19 00:00

‘We saw the TRC and Codesa as end points, rather than the beginning of changes.’

RECENTLY approved amendments to the Employment Equity Act open the way for employees to bring wage challenges against their employers in the CCMA.

The effect of the amendments, which are expected to come into operation within weeks, is that wage differentials between employees doing the same work (or work of equal value) as their colleagues is prohibited if the difference is based on arbitrary or unjustified grounds.

The new law still allows an employer to differentiate on the grounds of qualifications, skill, training and experience.

Previously challenges of this kind could only be brought in the Labour Court and then only if the employee could prove that the different wage was motivated by discrimination on a ground prohibited by law, such as race, gender, age, religion and so on.

Not many of these cases were referred to the Labour Court in the past, mainly due to the difficulty in proving discrimination and also because of the high legal costs in that court.

An unsuccessful litigant in the Labour Court would almost invariably be ordered to pay the legal costs of the successful party.

In the CCMA, however, costs orders are the exception rather than the rule. Ordinarily, an unsuccessful party in the CCMA will not be ordered to pay the costs of the successful party.

A costs order will usually only be made if the commissioner finds that the case was frivolous or the party acted vexatiously in the conduct of the case.

The CCMA is preparing for a substantial increase in the number of disputes referred to it.

Members of the CCMA management have taken into account in the United Kingdom for example, the majority of cases referred to labour tribunals relate to claims of unequal pay for work of equal value.

In South Africa, by contrast, the majority of cases hitherto referred to the CCMA relate to unfair dismissals.

If the same pattern emerges in South Africa as exists in the United Kingdom, the CCMA could be faced with a doubling of its current case load.

Speaking about the coming into operation of the new law, the manager of the Pietermaritzburg office of the CCMA, Bheka Dlamini, said: “The amendments to the Employment Equity Act will have a major impact on the capacity of the CCMA.

“Even though parties can choose between referring a dispute to either the CCMA or the Labour Court, I am inclined to believe that they will choose the CCMA because it is free and speedily resolves disputes.”

• Patrick Stilwell is a Pietermaritzburg resident, an attorney of the high court and a commission of the CCMA. He is a labour-law specialist and professional arbitrator.

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