Equal Pay in Terms of the Employment Equity Act: The Role of Seniority, Collective Agreements and Good Industrial Relations: Pioneer Foods (Pty) Ltd v Workers against Regression 2016 ZALCCT 14


  • Shamier Ebrahim University of South Africa




Equal pay for equal work, Equal pay for work of equal value, Employment Equity Act, Employment Equity Regulations


Equal pay for equal work and work of equal value is recognised as a human right in international law. South Africa has introduced a specific provision in the EEA in the form of section 6(4) which sets out the causes of action in respect of equal pay claims. The causes of action are: (a) equal pay for the same work; (b) equal pay for substantially the same work; and (c) equal pay for work of equal value. In addition to the introduction of section 6(4) to the EEA, the Minister of Labour has published the Employment Equity Regulations of 2014 and a Code of Good Practice on Equal Pay for work of Equal Value. This constitutes the equal pay legal framework in terms of the EEA.

The Regulations sets out the factors which should be used to evaluate whether two different jobs are of equal value. It further provides for the methodology which must be used to determine an equal pay dispute and it sets out factors which would justify a differentiation in pay. The Code provides practical guidance to both employers and employees regarding the application of the principle of equal pay for work of equal value in the workplace, inter alia.

Regulation 7 sets out factors which would justify pay differentiation. These factors are: (a) seniority (length of service); (b) qualifications, ability and competence; (c) performance (quality of work); (d) where an employee is demoted as a result of organisational restructuring (or any other legitimate reason) without a reduction in pay and his salary remains the same until the remuneration of his co-employees in the same job category reaches his level (red-circling); (e) where a person is employed temporarily for the purpose of gaining experience (training) and as a result thereof receives different remuneration; (f) skills scarcity; and (g) any other relevant factor. If a difference in pay is based on any one or more of the above factors then it is not unfair discrimination if it is fair and rational. This is spelt out in regulation 7(1).

In Pioneer Foods (Pty) Ltd v Workers Against Regression 2016 ZALCCT 14 the seniority (length of service) factor was at the fore in the Labour Court. The Labour Court, on appeal, reversed an arbitration award in which the Commissioner found that paying newly appointed drivers at an 80% rate for the first two years of employment as opposed to the 100% rate paid to drivers working longer than two years in terms of a collective agreement amounted to unfair discrimination in pay. The CCMA, in essence, regarded the factor of seniority as a ground of discrimination as opposed to a ground justifying pay differentiation.

Pioneer Foods is noteworthy as it is one of the first reported cases from the Labour Court dealing with the relatively new equal pay legal framework. It raises the following important equal pay issues: (a) is seniority a ground of discrimination or a ground justifying pay differentiation? And (b) what is the role of a collective agreement and good industrial relations when determining an equal pay claim? The purpose of this note is to critically analyse these issues and guidance will be sought from South African Law, Foreign law and relevant ILO materials in this regard.


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Author Biography

Shamier Ebrahim, University of South Africa

Senior Lecturer, Department of Mercantile Law




Grogan Employment Rights

Grogan J Employment Rights (Juta Claremont 2010)

Landman 2002 SA Merc LJ

Landman A "The Anatomy of Disputes about Equal Pay for Equal Work"

SA Merc LJ 341-356

Meintjes-Van der Walt 1998 ILJ

Meintjes-Van der Walt L "Levelling the 'Paying Fields'"1998 (19) ILJ 22-33

Hepple Equality

Hepple B Equality: The Legal Framework 2nd ed (Oxford Hart 2014)

Oelz, Olney and Manuel Equal Pay

Oelz M, Olney S and Manuel T Equal Pay: An Introductory Guide

(International Labour Office Geneva 2013)

Case law

British Road Services Ltd v Loughran 1997 IRLR 92 NICA

Cadman v Health and Safety Executive 2006 IRLR 969 CJEC

Enderby v Frenchay Health Authority Case C-127/92 1993 IRLR 439

Heynsen v Armstrong Hydraulics (Pty) Ltd 2000 12 BLLR 1444 (LC)

Jansen van Vuuren v South African Airways (Pty) Ltd 2013 10 BLLR 1004


Kenny v Minister for Justice, Equality and Law Reform 2013 IRLR 463 CJEU

Larbi Ordam v Member of the Executive Council for Education (North-West

Province) 1998 1 SA 745 (CC)

National Union of Mineworkers v Henry Gould (Pty) Ltd 1988 9 ILJ 1149 (IC)

Ntai v SA Breweries Ltd 2001 22 ILJ 214 (LC)

Pioneer Foods (Pty) Ltd v Workers Against Regression 2016 ZALCCT 14

Redcar and Cleveland Borough Council v Bainbridge (No 2)2008 IRLR 776


SA Chemical Workers Union v Sentrachem Ltd 1988 9 ILJ 410 (IC)

Secretary of State for Justice v Bowling 2012 IRLR 382 EAT

Specialarbejderforbyndeti Danmark v Dansk Industri, acting for Royal

Copenhagen 1995 IRLR 648 ECJ

Wilson v Health and Safety Executive 2010 IRLR 59 EWCA


Constitution of the Republic of South Africa, 1996

Employment Equity Act 55 of 1998

Equality Act of 2010 (United Kingdom)

Labour Relations Act 28 of 1956

Labour Relations Act 66 of 1995

Government publications

GN 448 in GG 38837 of 1 June 2015 (Code of Good Practice on Equal

Pay/Remuneration for Work of Equal Value)

GN 595 in GG 37873 of 1 August 2014 (Employment Equity Regulations)

Equal Pay Statutory Code of Practice to the Equality Act of 2010

International instruments

Convention on the Elimination of All Forms of Discrimination against


Discrimination (Employment and Occupation) Recommendation No 111


Equal Remuneration Convention No 100 (1951)

International Covenant on Economic, Social and Cultural Rights (1966)

International Convention on the Elimination of All Forms of Racial

Discrimination (1969)

Treaty Establishing the European Community (1997)

Treaty of Rome (1957)

United Nations Universal Declaration of Human Rights (1948)



How to Cite

Ebrahim, S. (2017). Equal Pay in Terms of the Employment Equity Act: The Role of Seniority, Collective Agreements and Good Industrial Relations: Pioneer Foods (Pty) Ltd v Workers against Regression 2016 ZALCCT 14. Potchefstroom Electronic Law Journal, 20, 1–19. https://doi.org/10.17159/1727-3781/2017/v20i0a1524



Case Notes

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