South Africa

Same job, different pay – government clears up why it’s okay

The Department of Employment and Labour says that it does not amount to unfair discrimination between employees if there is a difference in remuneration or other conditions of employment – as long as the circumstances are fair and rational.

A recent session held by the department tackled the topic of fair pay differentiation in the workplace, noting that many employees do not understand the topic, and that there is a base lack of education around it, leaving things open to speculation and suspicion.

This can lead to claims being made or cases being lodged where employees, who are doing the same job as their colleagues but are earning less, take the fight to their bosses, claiming unfair discrimination.

The employment equity director for the department, Ntsoaki Mamashela, said that there are factors in South African law that justify a differentiation in the terms and conditions of employment – including pay.

“If employees perform work that is of equal value, a difference in terms and conditions of employment, including remuneration, is not unfair discrimination if the difference is fair and rational,” said Mamashela.

She listed the following grounds as some that may justify a differentiation in terms and conditions of employment, such as the individuals:

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  • Respective seniority
  • Length of service
  • Qualifications
  • Ability
  • Competence
  • Performance
  • Quantity of work
  • Quality of work

These factors can all affect terms and conditions if the performance evaluation system of the employer is consistently applied. She added that the case of demotion due to organisation restructuring or any other legitimate reason without a reduction in pay and the existence of a shortage of relevant skilled staff could affect terms and conditions of employment.

Mamashela said that under the 2015 Code of Good Practice, employers are guided by the ‘Equal Pay/Remuneration for Work of Equal Value’ principle and promote the pay equity principle in the workplace.

She said that amendments need to be made to the Employment Equity regulations and Code of Practice on the grading of salaries to clear this up.

If there is a discrepancy in pay or another type of difference that is unfair, the Commission for Conciliation, Mediation and Arbitration (CCMA) may be approached.

The senior commissioner of the CCMA, Laurie Warwick, said that in terms of the Employment Equity Act, the CCMA has jurisdiction to conciliate disputes for employees who do not earn over the threshold of R224,080. If the employee earns above the threshold, all the parties to the dispute must consent to the arbitration, said Warwick.

Mamashela also noted that there is a greater need for increased enforcement and training for labour inspectors as well as stakeholders.

Emerging trend

The Department of Employment and Labour stakeholder session comes as utterances of a change in remuneration standards and benefits packages rise.

Financial services firm PwC said that businesses are reconsidering how they treat their employees to best retain talent. This could lead to changes between employees’ working arrangements and salary.

According to the group’s latest Executive Directors Report for 2022, in the wake of the pandemic, employees are feeling more empowered by their circumstances and are willing to ‘test’ the market.

Workers of today desire higher levels of work-life integration, and this is a process of negotiation, said PwC. Employers no longer have the upper hand, relying solely on increases in guaranteed salary as their retention strategy.

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Artmotion S.Africa

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