Abstract
Abstract : Years of discrimination have left its mark on Black South African’s and woman of all races, as prior to 1993 it was permissible to distinguish between employees provided it was based on a valid or work-related ground. The principle that an equal pay claim was competent under a general prohibition of unfair discrimination was recognised by the courts years ago. Although it was possible to bring a discrimination claim in terms of the unfair labour practice definition of the Labour Relations Act 66 of 1995 (LRA), only a few claims were made due to the fact that very little priority was given to discrimination claims. However, with the advent of the new constitutional dispensation in 1993, equality assumed a central position in South African Law. After severe criticism by the International Labour Organisation, for the lack of an express statutory provision dealing with wage discrimination, amendments to the Employment Equity Act 55 of 1998 (EEA) took place in the form of section 6(4) and (5). Before the EEAA, equal pay for equal work was not expressly regulated, however, the courts have dealt with the issue by holding that paying one employee less than another for performing the same or similar work constitutes less favourable treatment. The courts recognised a general prohibition of unfair discrimination and treated equal pay cases as unfair discrimination under section 6 (1). It is argued that the introduction of section 6 (4) and (5) does not substantively change the law in regards to pay discrimination in South Africa as the prohibition of unfair pay discrimination was already recognised and acknowledged in our law even prior to the dawn of democracy in 1994. Despite the fact that labour legislation did not contain any specific prohibition on discrimination, the Industrial Court was empowered by the Constitution to interpret existing legislation in terms of fundamental rights contained in the Constitution. It is therefore submitted that the issue of equal pay for equal work was dealt with by the industrial courts over the years and did not bring about substantial change to the law relating to equal pay claims nor did it add any value in this regard. The amendments to both the LRA and EEA were just a mere codification of the principles articulated in case law as is evident from recent cases.
LL.M. (Commercial Law)