WHEN THE DIFFERENCE IN PAY CAN BE JUSTIFIED AS DEALT WITH IN NATIONAL EDUCATION HEALTH & ALLIED WORKERS UNION ON BEHALF OF SINXO & OTHERS AND THE AGRICULTURAL RESEARCH COUNCIL

In the matter of National Education Health and Allied Workers Union obo Sinxo and Others versus Agricultural Research Council 2017 CCMA (26 January 2017), the Commission for Conciliation, Mediation and Arbitration (“herein after referred to as the Commission”) had to determine whether farm-supervisors were being unfairly discriminated against in terms of the provisions of the Employment Equity Act 55 of 1998 (“herein after referred to as EEA”) because they were being paid less than the farm-foremen.

It came to light that the farm-supervisors were being paid exceptionally less than the Agricultural Research Council’s farm-foremen resulting in the dispute to arise.

The farm foremen were given a global grade (“hereinafter referred to as GG”) of nine after the farm-supervisors had already been employed for a number of years, which required a tertiary qualification.  The farm supervisors were given a GG of seven, which required a grade twelve qualification.  The Applicants in this matter were kept at a GG of five as they did not have a grade twelve qualification.

The farm-supervisors claimed that they conducted the same work as farm-foremen and therefore had been discriminated against.  The employer argued that the duties and responsibilities of the two positions were different and required different qualifications and therefore the farm supervisors could not have been discriminated against.

The Commission had regard to the provisions of the EEA as well as its regulations to determine whether the farm-supervisors had been discriminated against.

Section 6(4) of the 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 more of the grounds listed in subsection (1), is unfair discrimination.”

Section 6(1) of the EEA provides that:

“No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or on any other arbitrary ground.”

The regulations to the EEA governing equal work for equal pay, discuss the criteria for assessing work of equal value.  A case must be made as to whether there is a difference in terms and conditions of employment, including remuneration, whether the work is of equal value, and if so, whether the difference comes down to unfair discrimination.  The regulations must be read with section 11 of the EEA.

Section 11 of the EEA provides that:

  • “If unfair discrimination is alleged on a ground listed in section 6(1), the employer against whom the allegation is made must prove, on a balance of probabilities, that such discrimination –
  • did not take place as alleged or;
  • is rational and not unfair, or is otherwise justifiable.
  • If unfair discrimination is alleged on an arbitrary ground, the complainant must prove, on a balance of probabilities, that –
  • the conduct complained of is not rational;
  • the conduct complained of amounts to discrimination; and
  • the discrimination is unfair.”

The Commission held that the work performed by the two positions were the same, or significantly the same.  The decision was based on the positions as they were at the time of the hearing.

The question here was whether the difference in remuneration was based on fair and rational criteria.  The Commission found, that although regulation 7 recognizes that qualifications may be a valid basis for differentiation in remuneration it does not automatically make the differentiation rational and fair.  A balanced analysis is required in which no single factor should be given unreasonable weight.

The introduction of the requirement of a qualification may be justified for candidates who are new entrants into employment, but not for the farm-supervisors.  There was no question that by grading the farm supervisors at a lower level merely because of their academic qualifications impeach their dignity.  The Agricultural Research Council was ordered to appoint the five farm-supervisors on the midpoint of GG seven with effect from the date of the award.

The importance of this case is that a business must have a thorough and careful analysis of its payment practices.  They must give valid and rational reasons when employees are being paid different remuneration but perform the same or substantially the same work.