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 subsection (1), is unfair discrimination. (s6(4) of EE Act)
The above provision is subject to consultation under s16 of the EE Act in that the analysis of policies, procedures and practices includes “remuneration” as well as “terms and conditions of employment”. Furthermore, s27 of the EE Act requires that reasonable progress is made to eliminate disproportionate income differentials that are identified. How then can this be done, unless there is reasonable disclosure of remuneration trends based on race, gender and disability in the designated employer’s organisation?
The first hint is in the EE Act that states that the provisions of s16 of the LRA apply in context –
An employer is not required to disclose information—
(a) that is legally privileged;
(b) that the employer cannot disclose without contravening a prohibition imposed on the employer by any law or order of any court;
(c) that is confidential and, if disclosed, may cause substantial harm to an employee or the employer; or
(d) that is private personal information relating to an employee, unless that employee consents to the disclosure of that information.
The question is whether and to what extent remuneration is confidential and if disclosed could cause substantial harm to either party as well as what POPI would have to say about this. From a POPI viewpoint it could be argued that one of the legal principles of processing personal information (limitation) allows for the processing of personal information if it is a requirement to comply with law.
The second legal provision applicable to this topic is that contained in the BCEA in s78 (refer to point (b) in particular) –
Every employee has the right to—
(a) make a complaint to a trade union representative, a trade union official or a labour inspector concerning any alleged failure or refusal by an employer to comply with this Act or the National Minimum Wage Act, 2018;
(b) discuss his or her conditions of employment with his or her fellow employees, his or her employer or any other person;
(c) refuse to comply with an instruction that is contrary to this Act, the National Minimum Wage Act, 2018, or any sectoral determination;
(d) refuse to agree to any term or condition of employment that is contrary to this Act, the National Minimum Wage Act, 2018, or any sectoral determination;
(e) inspect any record kept in terms of this Act or the National Minimum Wage Act, 2018, that relates to the employment of that employee;
(f) participate in proceedings in terms of this Act;
(g) request a trade union representative or a labour inspector to inspect any record kept in terms of this Act and that relates to the employment of that employee.
It could well be argued by parties to the employment relationship that disclosure should be balanced and clear enough to provide details on race, gender and disability trends as well as to the nature and extent of the imbalances so that the committee members can consult on barriers, AA measures and steps to take in making progress in eliminating the unjustifiable differentials in income over a reasonable time period.
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