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Thought Thursdays
Equal treatment – the new challenge


Equality has been a topic of discussion at a number of forums in South Africa. The topic is wide-ranging and covers comparators as well as the wage gap between general workers and CEOs.  

Inequality is not unique to our country and the focus on achieving equality has gathered momentum worldwide in recent years.

The South African legislature attempted to tackle the inequality issue during the 2014/2015 labour law amendment process through the introduction of the Employment Equity Act and the amended provisions of the Labour Relations Act.

Under the Employment Equity Act:

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 .

Furthermore, 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 tries to address the issue on another front. Tackling the treatment of temporary versus permanent staff, S198 (4F) provides that a temporary employment service employee earning below the earnings threshold must be treated on the whole not less favourably than an equivalent employee of the client (after three months).   

Too often employers randomly agree on figures with employees without an objective method to arrive at the figure. It is, however, 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 Employment Equity Act 9 framework – Occupational levels as a useful guideline for employers (EEA9).

Operational requirements as a ground for differentiation

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 current form EEA9 attempts to define the work required at each occupational level. However, despite having added level G (i.e. seven pay levels) the new form EEA9 only describes six work occupational levels.

Consequently, the new EEA9 serves only for employers to design the organisation that best suits their cost and work output requirements. It is our opinion that analysis will prove that a seven-level structure is more effective than a 6-level one.

The way forward

It is imperative that we find the most objective method of measurement which allows the least amount of human manipulation.

Employers need to partner with experienced providers to ensure that they come up with a solution and measurable which is rational.​

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Jonathan Goldberg is the current COO of the Confederation of Associations of the Private Employment Sector (CAPES).
He and his associate companies have numerous investments in business and he serves on the board (and chairman) of many companies. Jonathan is a leader and developer of the Wits University Enterprise Development Units executive development programme in B-BBEE. Over his career, Jonathan has edited three books, compiled many publications and delivered countless presentations and seminars and advises business and government in a range of different areas.

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Grant Wilkinson is an executive, attorney, and an internationally accredited mediator, facilitator and speaker. He is a member of the virtual faculty of USB Executive Development (USB-ED)​.

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