A Critical Analysis of the New Equal Pay Provisions Relating to Atypical Employees in Sections 198A-198D of the LRA: Important Lessons from the United Kingdom

  • Shamier Ebrahim University of South Africa
Keywords: Equal pay; Labour Relations Act; equal pay for atypical employees; atypical employment; sections 198A-198D of the Labour Relations Act; Agency Workers Regulations 2010; Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002; Part-


The Employment Equity Act 55 of 1998 (EEA) is the main piece of legislation which seeks to achieve equity in the workplace by redressing unfair discrimination. Unequal pay for equal work and work of equal value are specific forms of discrimination which are dealt with in the EEA. The EEA provisions dealing with pay discrimination applies to all employees in the workplace which includes atypical employees. An employee experiencing pay discrimination in the workplace would thus use the EEA to institute an equal pay claim. This, however, has changed since the introduction of sections 198A-198D of the Labour Relations Act 66 of 1995 (LRA) which provides equal pay protection for atypical employees earning below the threshold of R205 433.30 and subject to certain other conditions. Sections 198A-198D of the LRA only deals with equal pay for the same or similar work. The sections do not deal with equal pay for work of equal value. This equal pay protection in the LRA is unique as the redress of unfair discrimination is not one of the purposes of the LRA.

The purpose of this article is to analyse the equal pay provisions as set out in sections 198A-198D of the LRA in order to ascertain the ambit of the protection offered by the sections, the limitations thereof and the dispute resolution procedure which should be followed. A brief comparative study with the law regulating equal pay for atypical employees in the United Kingdom will be undertaken in order to learn lessons for the equal pay legal framework in the LRA. International labour law will also be referred to.


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Benjamin Agency Work
Benjamin P Law and Practice of Private Employment Agency Work in South Africa (International Labour Office Geneva 2013)

Blanpain "Comparativism in Labour Law"
Blanpain R "Comparativism in Labour Law and Industrial Relations" in Blanpain R (ed) Comparative Labour Law and Industrial Relations in Industrialized Market Economies (Kluwer Law International Alphen-aan-den-Rijn 2004) 3-24

Duggan Equal Pay
Duggan M Equal Pay: Law and Practice (Jordan Bristol 2009)

Fourie 2008 PELJ
Fourie ES "Non-standard Workers: The South African Context, International Law and Regulation by the European Union" 2008 PELJ 110-184

Grogan Workplace Law
Grogan J Workplace Law 10th ed (Juta Cape Town 2009)

Holland, Burnett and Millington Employment Law
Holland J, Burnett S and Millington P Employment Law (Oxford University Press Oxford 2015)

Smith, Wood and Baker Smith and Wood's Employment Law
Smith IT, Wood JC and Baker A Smith & Wood's Employment Law 11th ed (Oxford University Press Oxford 2013)

Theron 2005 ILJ
Theron J "Intermediary or Employer? Labour Brokers and the Triangular Employment Relationship" 2005 ILJ 618-649

Valticos and Potobsky International Labour Law
Valticos N and Potobsky G International Labour Law 2nd ed (Kluwer Law and Taxation Deventer 1995)

Van Eck 2010 PELJ
Van Eck BPS "Temporary Employment Services (Labour Brokers) in South Africa and Namibia" 2010 PELJ 107-126

Case law

South Africa
Aviation Union of South Africa v South African Airways (Pty) Ltd 2012 1 SA 321 (CC)
NEHAWU v University of Cape Town 2003 24 ILJ 95 (CC)
National Union of Metalworkers of South Africa v Driveline 2000 4 SA 645 (LAC)
Shoprite Checkers (Pty) Ltd v Ramdaw 2001 3 SA 68 (LC)

United Kingdom
Allen v National Group Europe Ltd [2004] IRLR 847
Department of Work and Pensions v Webley [2005] IRLR 288
McMenemy v Capita Business Services Ltd [2007] IRLR 400
Sharma v Manchester City Council [2008] IRLR 336


South Africa
Constitution of the Republic of South Africa, 1996
Employment Equity Act 55 of 1998
Labour Relations Act 66 of 1995

United Kingdom
Agency Workers Regulations Statutory Instrument No 93 of 2010
Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations Statutory Instrument No 2034 of 2002
Part-time Workers (Prevention of Less Favourable Treament) Regulations Statutory Instrument No 1551 of 2000

International and regional instruments
European Council Directive Concerning the Framework Agreement on Part-time Work Council Directive 97/81/EC (1997)
European Council Directive on Temporary Agency Work Directive 2008/104/EC (2008)
European Union Council Directive Concerning the Framework Agreement on Fixed-term Work Council Directive 1999/70/EC (1999)
ILO Part-time Work Convention No 175 (1994)
ILO Part-time Work Recommendation No 182 (1994)

Internet sources
BIS 2011 https://www.gov.uk/government/uploads/system/uploads/attach-ment_data/file/32121/11-949-agency-workers-regulations-guidance.pdf
Department for Business Innovation and Skills 2011 Guidance on the Agency Workers Regulations https://www.gov.uk/government/uploads/
system/uploads/attachment_data/file/32121/11-949-agency-workers-regulations-guidance.pdf accessed 16 February 2017
DoL 2013 http://www.labour.gov.za/DOL/downloads/legislation/bills/pro
Department of Labour 2013 Memorandum of Objects of the Labour Relations Amendment Bill, 2012 http://www.labour.gov.za/
DOL/downloads/legislation/bills/proposed-amendment-bills/lraamendmentbill2013.pdf accessed 15 February 2017
National Archives 2000 http://www.legislation.gov.uk/uksi/2000/1551/
National Archives 2000 Guidance Notes to the Part-time Regulations http://www.legislation.gov.uk/uksi/2000/1551/note/made accessed on 15 February 17
National Archives 2007 http://webarchive.nationalarchives.gov.uk/2007
National Archives 2007 Fixed-Term Work Guidance Note http://webarchive.nationalarchives.gov.uk/20070603164510/http://www.dti.gov.uk/employment/employment-legislation/employment-guidance/page18475.html accessed on 16 February 2017
National Archives 2010 http://webarchive.nationalarchives.gov.uk/+
National Archives 2010 Part-time Workers: The Law and Best Practice – A Detailed Guide for Employers and Part-timers http://web
archive.nationalarchives.gov.uk/+/berr.gov.uk/whatwedo/employment/employment-legislation/employment-guidance/page19479.html accessed 17 February 2017
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