Labour laws seem to have seasons that are characterised by significant events that are centred around specific themes. Each of these events changes the employment relations landscape forever. There is no doubt that equal treatment and equal pay legislated under the Labour Relations Act and the Employment Equity Act respectively probably pose one of the greatest challenges for a number of reasons.

The first reason lies in the fact that very few employers have a sound foundation on which they engage in remuneration practices. This is evidenced in the absence of (or outdated) job profiles, grading systems, evaluation and related frameworks. Furthermore, even where these exist, the likelihood is that they have not been adhered to on a consistent basis resulting in income differentials that may be unjustifiable. There have been a number of matters referred for adjudication by the CCMA and Labour Courts that have either been won or lost as a direct result of the inability to lead evidence in this regard.

The second reason is the nature and extent of potential liability that arises in cases where certain employees (irrespective of being permanent or temporary or via a Temporary Employment Service) have not been afforded access to equitable salaries and benefits. One such judgment was in the order of R34m where around 164 temporary safety officers were not beneficiaries of the employer’s contribution to the provident fund and performance incentives.

Thirdly, employment equity committees are not ensuring that the employment equity plans include disclosure, consultation, analysis and planning around how income differentials will be eradicated over a reasonable period of time. This oversight could not only mean that employment equity plans are non-compliant but also that the employer is open to litigation. Section 27 of the Employment Equity Act specifically provides that where unjustifiable income differentials exist, reasonable steps must be taken to eliminate them. In addition, remuneration and terms of employment are core to the definition of employment practices that need to be fair and equitable and not arbitrary.

Fourthly, it is not just discrimination on a prohibited ground that can result in unfair discrimination but also on arbitrary grounds – in other words, if the employer is unable to lead evidence around consistency, rationality and proportionality in the remuneration system.

In conclusion, employers would be well advised to have a system which is able to import the necessary data, analyse it and then generate deviance reports based on thresholds of differential from the mean and median positions per job, level, grade, race, gender and the like. This must be supported by a clear and meaningful remuneration and benefits policy. We are pleased to advise that we will be launching the Equal Treatment and Pay Manager online application during the first week of April 2019 that will be a tool that you can use in conducting the analysis, generating reports for consultation and engagement as well as determining what income differentials are justifiable.

Please contact Carly on 041 364 0472 or via email for more information.

John Botha