Analyses: Equal Remuneration for the Same Work or Work of Equal Value

• Jurisdiction: South Africa
• Pages: 488-503
• Author: Marié McGregor
• Date: 25 May 2019
• Published date: 25 May 2019

Equal Remuneration for the Same Work or Work

of Equal Value

MARIÉ MCGREGOR

University of South Africa

1 Introduction

South African equality laws, different to other countries such as the United

States of America and the United Kingdom, do not explicitly regulate equal

remuneration claims.

This note will investigate the notion of equal remuneration for the same

work or work of equal value in South Africa, and, in particular, its application

by and frequency before the courts.

The country’s discriminatory history and the amends made after 1994 to

promote equality are set out brief‌ly as background. International labour

standards ratif‌ied by the country and national equality laws enacted are

considered. Moreover, the latest statistics on remuneration differences

between the genders and races will be looked into.

The focus then moves to a discussion of the recent case of Mangena &

others v Fila South Africa (Pty) Ltd & others [2009] 12 BLLR 1224 (LC)

(hereafter ‘Mangena’) where it has been shown that, even though the

Employment Equity Act 55 of 1998 (hereafter ‘EEA’) does not provide

explicitly for equal remuneration claims, the Act’s unfair discrimination

provisions are wide enough to accommodate such claims.

Nonetheless, Government has been criticised for its ommission in law of an

explicit provision on equal remuneration for the races and genders.

Government’s proposed changes in this regard will be considered and

commented on.

It will be pointed out, in conclusion, that in addition to laws, effective

enforcement and monitoring are also necessary to prevent and eliminate

unfair remuneration differentials. Moreover, ongoing education on remunera-

tion discrimination stays important. The relevance of the Mangena case will

lastly be touched on.

2 Background

2.1 An unequal society

Apartheid and patriarchy led to racist and sexist practices and to laws

resulting in systemic, structural discrimination and inequality in South Africa

(see generally Restructuring the South African Labour Market: Report of the

Presidential Commission to Investigate Labour Market Policy chaired by DH

Lewis and MM Ngoasheng (1996) (hereafter ‘Labour Market Report’); M

488

(2011) 23 SA Merc LJ 488

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Coleman (ed) A Crime against Humanity: Analysing the Repression of the

Apartheid State (1998) and NJ Jacobs Environment, Power, and Injustice: A

South African History (2003)).

In the workplace discrimination was institutionalised by means of laws

such as the Industrial Conciliation Act (28 of 1965) and the Mines and Works

Act (12 of 1911; later, 27 of 1956) which provided for job reservation for

whites. Further, the Wage Act (27 of 1925; later, 44 of 1937; and, still later, 5

of 1957) allowed for differentiations in wage determinations based on race

and sex, the Group Areas Act (41 of 1950; later, 77 of 1957) restricted, in

particular, the mobility of black, women work seekers, and the Unemploy-

ment Insurance Act (53 of 1946; later, 30 of 1966) provided for unequal

benef‌its for men and women. In the public service, discrimination based on

sex was allowed in terms of the Public Service Act (54 of 1957; later, 111 of

1984). Although discrimination on the grounds of sex has not been as visible

as discrimination on the basis of race, it has nevertheless resulted in patterns

of signif‌icant disadvantage (Brink v Kitshoff 1996 (4) SA 197 (CC) para [44]).

Policies of job reservation for whites and the little training (if any) offered

to black and female employees, placed them at a disadvantage where skills

were concerned (Labour Market Report op cit at 139).

2.2 Democracy in the 1990’s

South Africa adopted a democratic constitutional order under which a

commitment was made to achieving equality by embracing same as a value

(Constitution of the Republic of South Africa, 1996, ss 1(a); 7(1)) and a right

(s 9). The Constitution, which forms the basis of the legal system of South

Africa, incorporated a notion of substantive equality. This notion recognises

that opportunities are determined by individuals’ social and historical status,

including race and gender, as part of a group/groups. It acknowledges that

discriminatory acts do not occur in isolation, they are part of patterns of

behaviour towards groups, such as women and blacks, which results in

disadvantage for such groups (Michael Banton Discrimination (1994) at 8). A

systemic approach to prevent further unfair discrimination and redress past

unfair discrimination is therefore required to address the effects of long-term

structured discrimination.

The Constitution, moreover, provides for everyone to have a right to fair

labour practices (s 23).

The country rejoined the International Labour Organization (hereafter

‘ILO’) in 1999 and has ratif‌ied certain key Conventions dealing with equality

namely the Convention concerning Discrimination in Respect of Employment

and Occupation No 111 of 1958 (in 1997) and the Equal Remuneration

Convention No 100 of 1951 (in 2000), the second which is the focus of this

note. Convention 100 requires the country to ‘. . . promote and . . . ensure the

application to all workers of the principle of equal remuneration for men and

women workers for work of equal value’ (article 2(1)) (own emphasis).

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