Workers employed by the same employer doing the same work, similar work or work of equal value must be paid the same wages-EEA Section 6

LRA Amendments wef 2015 in South Africa

Introduction

Recent amendments to the Employment Equity Act and the Labour Relations Act focus on provisions around unfair discrimination, regulation of non-standard employment and small-scale retrenchments. Key themes running through the amendments are the protection of vulnerable workers and access to the CCMA for arbitration of disputes which previously had to be dealt with by the Labour Court.

Access To CCMA For Arbitration Of Unfair Discrimination Cases (EEA, SECTION 10)

The CCMA is now able to decide workplace discrimination cases and it is no longer necessary to go through expensive and timeconsuming procedures at the Labour Court. On 1 August 2014, the Employment Equity Act came into effect.

It provides that lowerpaid workers (earning under R205 433.30 per year) may refer discrimination cases to be arbitrated and those above this threshold can agree to CCMA arbitration.
Sexual Harassment (EEA, SECTION 10)

All cases of sexual harassment, which is a form of discrimination, can be arbitrated irrespective of the worker’s earnings. It is important for employers to have policies on how to report and deal with sexual harassment in the workplace and the necessary training should be conducted to ensure that every worker is aware of the policy.

Remedies For Unfair Discrimination (EEA SECTION 48 AND 50)

Employers should take care to deal with any reported incident of discrimination by one worker against another, or they may be required to pay compensation and damages to the worker. Compensation is for injured dignity and damages is for actual monetary loss suffered by the worker as a result of the discrimination, such as medical bills. The CCMA may also order the employer to take steps to prevent the same or similar discrimination from occurring in the future.

Equal Pay For Work Of Equal Value (EEA, SECTION 6)

The Act now specifically requires employers to pay workers equally for work of equal value and equal pay disputes can also be arbitrated by the CCMA.

Workers employed by the same employer doing the same work, similar work or work of equal value must be paid the same wages.
Different pay levels may be fair if based on the employee’s responsibility, skill or experience but it is unfair discrimination to pay a worker less because of her race, sex, sexual orientation, belief or culture, or any other prohibited ground for discrimination. Employers should conduct grading and job evaluation exercises to ensure that pay levels are fair and do not unfairly discriminate.

Protection Of Non-Standard Employees (SECTION 198A - D)

The Amendments aim to protect three categories of non-standard employees, namely labour broker employees, fixed term contract employees and parttime employees. The protections apply to workers earning below the BCEA threshold (R205 433.30 currently).

The amendments provide that, after three months of employment, a labour broker employee is deemed to be the employee of the client unless employee is genuinely temporary, for example replacing another employee who will return to work after maternity leave. A worker on a fixed-term contract may be regarded as permanent after three months of employment unless there is a genuine reason for the fixed-term contract.

This applies to employees earning below the BCEA threshold (R205 433.30 currently) and it does not apply to small employers and start-up businesses. Part-time employees are those who work fewer hours than normal full-time employees.

After three months of employment, part-time employees must not be treated less favourably than full-time employees. This means that they will be entitled to similar benefits, in line with the number of hours of work they perform. Employers may justify different treatment on fair criteria such as seniority, experience or length of service. Again, these protections apply only to employees earning below the BCEA threshold (R205 433.30 currently) and does not apply to small employers and start–up businesses.

Organisational Rights (LRA, SECTION 21 AND 22)

Unions may organise non-standard workers at the premises of the employer or the client. The amendments also broaden the discretion of commissioners when deciding cases on organisational rights such as access to the premises and stop-order deductions of membership fees. Commissioners need to take into account the composition of the workplace when deciding whether to grant organisational rights.

Small-Scale Retrenchment (LRA, SECTION 191 (12))

The amendments provide provides for cheaper, quicker and less formal arbitration (rather than Labour Court) of individual and small-scale retrenchments. These disputes may be arbitrated by the CCMA where a single person is retrenched, no matter how many employees were consulted, and where the employer employs fewer than 10 workers.

Conclusion

The CCMA has trained specialist panels of commissioners to deal with all the key amendments. The amendments are likely to achieve significant protection of lower income workers, particularly those in non-standard employment.

Access to the CCMA for arbitration of unfair discrimination cases is likely to result in far more of these cases being challenged.