29/03/2017
Unfair Discrimination WAR against Equal pay for work of Equal value
In terms of section 54 (regs 1-4) Employment Equity Acts , the work performed by an employee (fair discrimination), the same as the work of another employee of the same employer, if their work is identical or interchangeable. How Pioneer Food won an equal pay for work of equal value : In a legal WAR Pioneer Foods (Pty)Ltd V workers against Regression war. Its one of the first Appeal to decided in terms of the newly enacted section 10(8) of the employment equity act. That section was introduced by the employment equity amendment act. And the issue before the court raise the interpretation and interaction between section 6(4) and section 10(8) as it relates to dispute about equal pay for work of equal value, and whether those claims must be founded on a listed or analogous arbitrary ground of discrimination, while the appeal is against an arbitration award in which the third respondent, commissioner of the CCMA, upheld a claim of unfair discrimination brought by workers against regression (WAR) on behalf of seven members although the union did not specifically refer to section 6(4) in its request for arbitration, it described the issues in dispute as follows: Discrimination against drivers who are union members, Equal pay for equal work ( drivers), Van assistant earning more then drivers also the union stated, equal pay for equal work for union's drivers(work of equal value) and agreement with other union to pay our members 20% less discriminatory. And It was common cause that, in accordance with a collective agreement with the Food & Allied Workers Union (“FAWU”), Pioneer (the appellant) pays newly appointed employees for the first two years of their employment at The Statutory Setting : Section 6(1) of the Employment Equity Acts, which a newly enacted section 6(4) now adds the following provision: 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 Reason for the differential rates : The lower rate of remuneration paid to the seven complainants was a consequence of a term in two successive collective agreements between Pioneer and FAWU, concluded on 25 June 2013 and 12 August 2014 respectively. Of importance is the fourth bullet point in clause 2.2 of the first of these agreements , which provides: “New entry minimums for new employees from outside the Company; to be at 80% of the current Grades in each category for two years.” This came about because FAWU persuaded Pioneer that it should reduce the extent to which it was then using the services of various forms of “precarious” employees, including employees supplied by labour brokers. At the same time FAWU proposed the creation of a scale “that showed differentiation between people who started now and people who have been in the company for years”. It proposed this because “there is a lot of unhappiness from the long serving workers, that a person who start today, earn the same as a person who’s been here for donkey year (sic).” The 80% scale was applied to all “new employees from outside the company”; it was not directed only at persons who happened formerly to have been employed by a labour broker. Moreover, the lower scale would only be applicable for the new employees’ first two years. But consider the ILO Convention 111 the criterion used in respect of an impugned ‘distinction, exclusion or preference’ on an unlisted ground is whether that measure ‘has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation. Differentiation in respect of terms and conditions of employment on the basis of length of service with the employer concerned is, on the contrary, a classic example of a ground for differentiation which is rational and legitimate and, indeed, exceedingly common. That the lawgiver shares the view that this is rational and legitimate is apparent inter alia from: Regulation 7(1)(a) of the Employment Equity Regulations 2014 , which includes “length of service” as one of the “factors justifying differentiation in terms and conditions of employment”; Section 198D(2)(a) of the LRA, which includes “length of service” as a “justifiable reason” for differential treatment; Clause 7.3.1 of the Code of Good Practice on Equal Pay / Remuneration for Work of Equal Value. In WAR’s heads of argument to the Commissioner, the crux of the argument advanced was that it is not rational to pay new employees less than those who have been employed longer. But even on this broader interpretation, the differentiation between new entrants and longer serving employees is rational, sanctioned by collective agreement, and envisaged by the Code of Good Practice. However, the court concluded : The differentiation complained of was not irrational; was not based on an arbitrary unlisted ground; and was not unfair; The Commissioner ought therefore to have dismissed the claim; The Commissioner’s award should be reversed and substituted by an order dismissing the claim;The appeal should be upheld. With regard to costs, and take into account that the union had an award in its favour; that an appeal of this nature is a novel issue before this Court pursuant to new amendments to the EEA; that the Union was represented by a trade union official; and that there is an ongoing relationship between the parties. I do not consider a costs order to be appropriate. The appeal was upheld by the court and the award is reversed and substituted with an award that the union’s claim (on behalf of its seven members) is dismissed.
