Section 6 (4) of the Employment Equity Act 55 of 1998 (“EEA”) provides that:
“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 combination of the grounds listed in subsection(1) is unfair discrimination.”
The objective of this provision is to promote the implementation of equity remuneration in the workplace. It is aimed at driving and maximising the principle of equal pay/remuneration for work of equal value that employers’ practices in this respect are fair and free from unfair discrimination.
In practice, it is not unusual for new employees to be paid less than those with longer periods of service, even if they do the same work. The question that arises is whether or not such differentiation in payment is in conflict with the principle of “equal pay for work of equal value” that was introduced by the aforementioned provision of the EEA. This is one of the questions that was considered by the Labour Court (“LC”) in Pioneer Foods (Pty) Ltd v Workers Against Regression (WAR) & others (Case number: C 687/15, 19 April 2016). This case was also the first appeal heard by the LC, in terms of the new section 10(8) of the EEA against an award in an unfair discrimination dispute referred to the Commission for Conciliation, Mediation and Arbitration (“CCMA”) by low-paid employees in terms of section 10(6)(aA).
The issue before the LC raised the interpretation of and interaction between, section 6(4) and 10(8) of the EEA, as it related to disputes about equal pay for equal value, and whether those claims must be founded on a listed or arbitrary ground of unfair discrimination.
The appeal was against an arbitration award in which commissioner Carlton Johnson of the CCMA upheld a claim of unfair discrimination brought by the Workers Against Regression (“WAR”) on behalf of its seven members.
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