Why different rates of pay can be lawful

With the Equal Pay Provision that was introduced in 2014, there have been many cases lodged at the Commission for Conciliation, Mediation and Arbitration alleging unfair discrimination based on the fact that this provision was not adhered to. The case of African Meat Industry & Allied Trade Union/Premier FMCG (Pty) Ltd – (2019) 28 CCMA 6.12.2 shows that differences in pay for the same job do not always violate the Equal Pay Provision. Facts of the case:

● Employees claimed the employer was paying employees on the same grade at unequal hourly rates and that this amounted to unfair discrimination.

● The employer contended that the differences in wage rates were based on different lengths of service and other considerations such as former Temporary Employment Services (TES) employees being employed directly.

● The CCMA Commissioner noted that the employees had claimed discrimination on an arbitrary ground. The onus, accordingly, rested on them to prove that the differences in the hourly rate of pay, which was relied on, was irrational and unfair.

● The arbitrator reasoned that employees must prove that the grounds on which they rely are linked to the prohibited grounds in the sense that the ground have the potential to impair their dignity.

● The wage differentials in each group were based on seniority although other factors including the insourcing of former TES employees. The employees had merely relied on the difference in wage rates without citing the ground on which they relied.

● The employees’ unhappiness with their rates of pay was a matter of mutual interest. The Commissioner found that the difference in wage rates was neither irrational nor unfair. It did not amount to discrimination; and

● The case was dismissed.

● Jonathan Goldberg is CEO of Global Business Solutions.

In this weekly column, labour lawyer Jonathan Goldberg looks at various aspects of labour law. Readers can email questions to news@dispatch.co.za.