Worker equality in the spotlight
Modifications to put to bed issues of discrimination
WHILE the principle of equality has been a part of South African legislation since the mid-1990s, the issue has again hit the headlines. From CEO remuneration and racial discrimination to the inequality that faces our society, the gulf between the haves and the have-nots appears to be growing and it is a situation which is now firmly in the spotlight.
The question of equal treatment is not only a South African issue. Worldwide there is research conducted on the large wage gap between CEO salaries and those of general workers. There is no doubt there is often a chasm between the two levels of remuneration, but this is often easy to explain. The anomaly that is more difficult to explain away is that between two employees performing the same function.
The legislature has attempted to tackle this inequality issue through the Labour Relations Act and the Employment Equity Act amendments recently implemented.
Under the Employment Equity Act amendments no person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, [and] birth or on any other arbitrary ground.
Further to the above, 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 the act (which include inter alia race, gender, age, religion etc) is unfair discrimination.
The Labour Relations Act amendment tries to address the issue on another front — tackling the treatment of temporary versus permanent staff, including part-time, where such employees must be treated on the whole not less favourably than an equivalent of a permanent employee (after three months).
It is our opinion there are a number of options for differentiating temporary employment service employees to other permanent employees. In the section below some of those areas are listed and are not limited as long as they are nondiscriminatory in terms of section 6 of the Employment Equity Act.
Specifically with reference to Section 198D (2) of the Labour Relations Act it provides that for the purposes of sections 198A (5), 198B(3) and 198C(3)(a), a justifiable reason includes that the different treatment is a result of the application of a system that takes into account: (a) seniority, experience or length of service; (b) merit; (c) the quality or quantity of work performed; or (d) any other criteria of a similar nature, and such reason is not prohibited by section 6(1) of the Employment Equity Act, 1998 (Act No 55 of 1998).
But how to we begin to measure equal treatment?
In most organisations there will be jobs that appear to be “equal”, but because of your specific operational requirements they are different. The legislature has drafted a code of good practice to assist employers and adjudicators to evaluate equal treatment. The code recognises “differentiation” as a justifiable ground for different treatment, but employers must be able to prove the reason(s).
Jobs do not exist in isolation. All jobs are part of the different “work process structures” created by employees to cover their operational requirements.
According to the Labour Relations Act, operational requirements means “requirements based on the economic, technological, structural or similar needs of an employer”, where “economic” equals financial measurement, “technological” equals knowhow and “structural” equals responsibility/accountability.
It is generally accepted that an employer’s operational requirements can only be determined once the (employer’s) operational circumstances are known. This emphasises the importance of the form EEA9 framework — occupational levels as a useful guideline for employers.
It is our view that as a direct consequence of the above, employers need to be able to develop their own occupational level framework based on their unique business operational requirements. Occupational levels allow for the broad definition of work process structures.
The new EEA9 form attempts to define the “work” required at each occupational level. However, despite having added level G (ie seven pay levels) the EEA9 form only describes six work occupational levels.
Consequently, the new EEA9 is only for employers to design the organisation that best suits their cost and work output requirements. Analysis will prove a seven-level structure is more effective than six levels.
The legislation poses a number of unique challenges, particularly when one has to acknowledge that the differentials that employers are often faced with are historical, dating back years, often decades.
It is important to note that there are businesses that are developing tools to assist you in ensuring an objective measurable based on your operational requirements.
As always, partner with the right people to assist you with this road ahead and ensure that when there are differentials that they are justifiable.
Objective measurement is critical and it is important that business, labour and the inspectorate must find the most objective method of measurement with the least amount of human manipulation.
Employers need to be able to develop their own occupational level framework based on their unique business operational requirements