Worker equal­ity in the spot­light

Mod­i­fi­ca­tions to put to bed is­sues of dis­crim­i­na­tion

Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW - JONATHAN GOLDBERG & GRANT WILKIN­SON

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

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