Draft Employment Regulations – Public comments due on 31 March

Lauren Salt, Associate in the Employment Practice at Cliffe Dekker Hofmeyr notes that the Regulations deal with the elimination of unfair discrimination, the duties of a designated employer, enforcement mechanisms and general administrative matters. Notably, the Regulations fill the lacuna which existed in the Act until this point in respect of what constituted work of equal value and the manner in which a comparator is established.

“The Regulations deal with, among other things,  the meaning of work of equal value;  the methodology in applying section 6(4) of the Act; the assessment of whether work is of equal value; and the factors justifying differential terms and conditions of employment,” she says.

Salt explains that the Regulations suggest that work is of equal value if the work performed by an employee is the same as the work of another employee of the same employer, if their work is identical or interchangeable. The work is also of equal value if the work substantially the same as the work of another employee employed by that employer. In addition the work is of the same value,  if the work performed by the employees is sufficiently similar that they can reasonably be considered to be performing the same job, even if their work is not identical or interchangeable. Work is also of the same value as the work of another employee of the same employer in a different job, if their respective occupations are accorded the same value.

She says that, in determining whether work is of equal value, the relevant jobs must be objectively assessed taking into account the following criteria: the responsibility demanded of the work, including responsibility for people, finances and material; the skills, qualifications, including prior learning and experience required to perform the work, whether formal or informal; physical, mental and emotional effort required to perform the work. In addition, to the extent that it is relevant, the conditions under which work is performed, including physical environment, psychological conditions, time when, and geographic location where, the work is performed.

“Any other factor indicating the value of the work may also be taken into account in evaluating work, if the employer shows that the factor is relevant to assessing the value of the work.

“The Regulations also set out certain defences available to employers to justify differential terms and conditions of employment.  A difference in terms and conditions of employment, including remuneration will not amount to unfair discrimination where the difference is fair and rational based on any one or a combination of seniority or length of service, qualifications, competence or performance.

“Should employers wish to comment on the equal pay regulations or any of the other regulations, they are reminded that they have until 31 March 2014 in order to submit their submissions to the Minister,” she adds.