Case Number: PSES 118-10/11 GP
Applicant: SADTU (Gauteng)
Respondent: Department of Education, Gauteng
Issue: Unfair Labour Practice - Provision of Benefits
Award Date: 21 March 2011
Arbitrator: Karel Tip
IN THE EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER: PSES 118-10/11 GP
In the matter between:
DEPARTMENT OF EDUCATION, GAUTENG
1. This dispute relates to the implementation of aspects of the content of a document entitled ‘Proposal to change the structure of the ABET sector in respect of the appointment of CS educators’. This is an internal document produced within the Department of Education in Gauteng pursuant to a workshop and other interaction with the relevant stakeholders. The proposal then took the form of a submission emanating from the Deputy Director: Human Resource Administration on or about 6 March 2008. It was described as ‘urgent’. Its recommendations were endorsed by the next six authority levels including the Head of Department who indicated his agreement on 20 March 2008. The proposal was thereafter approved by the MEC on 2 April 2008. Subsequent to that, some of the recommendations were implemented, but others were not -- hence this dispute.
2. The document itself conveniently sets out the relevant background which is reproduced here verbatim:
"The ABET sector has traditionally been an "after hours" school where the CS Educators are appointed on an hourly rate. There has however been no clear establishment on the number of hours that are available in the sector.
ABET Centres have been growing in size and functionality to the extent where some centres no longer use the buildings of a school in the evenings but have their own premises and are holding classes during the day.
The introduction of the new curriculum has put pressure on ABET centres to have continuity of trained CS Educators.
The fact that appointments are for hourly work and there are no service benefits has meant that although trained educators enter the sector they continually move out to obtain posts that provide them with a secure salary and service benefits.
The introduction of Skills Training will also require a permanent structure to ensure continuity and service delivery in those areas.”
3. The financial implications of the proposals were dealt with in the following terms, which make it clear that their implementation was likely to lead to improved budgetary and financial controls:
“The creation of a fixed establishment for each centre will allow for strict budgetary control in future. It will also allow for better use of funds as the current system could be seen as wasteful not only in terms of finance but also resources."
4. Flowing from these considerations and the consultative process which had been undertaken, the set of recommendations which had been thus approved at every level were as follows:
“It is recommended that the implementation of the following will allow for better management and budgetary control in the ABET sector:
ABET centres be graded to determine the post level of the principal. A grading model to this effect be developed in consultation with the ELRC and CATE (a draft thereof is attached as Annexure A).
The following two options be available for utilisation of educator posts:
i. Option of posts for CS Educators on a 12 month contract basis on the appropriate salary level of 6 or 7 (depending on REQV) with access to service benefits in ABET.
ii. Option of posts for CS Educators are on an hourly basis in ABET.
The Directorate HRO&S to investigate providing coordinating supervisors to manage/coordinate subjects and/or centres.
The Establishment is created to incorporate the above.
IQMS implementation be strengthened."
5. The key component of the dispute lodged by SADTU relates to the fact, which is common cause, that the grading of ABET centres has not taken place. This is coupled to the consequence that the correct determination of the post levels of principals at these centres has not been effected. There are two other outstanding items: the first is that a follow up has still to take place in respect of coordinating supervisors; the second is that the application of IQMS to educators who are not full-time has not been implemented.
6. The dispute has been characterised as an unfair labour practice. On behalf of the GDE, Mr Selowa has raised an in limine point being that this dispute does not satisfy the definition of ‘unfair labour practice’ in section 186(2)(a)of the Labour Relations Act 66 of 1995 (‘the LRA’) which reads:
“Unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving—
(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee; ...”
7. In my judgment, the point is a narrow and technical one and to uphold it would run counter to one of the fundamental purposes of the LRA, as set out in section 1 thereof, which is to promote the effective resolution of labour disputes. Our jurisprudence makes this plain and the attachment of one or other label to a dispute is not dispositive of how the true dispute should properly be determined on the basis of its correct characterisation. See for instance National Commissioner of the SA Police Service v Potterill NO & others (2003) 24 ILJ 1984 (LC) at paras  to ; Ceramic Industries Ltd t/a Betta Sanitaryware & another v NCBAWU & others  6 BLLR 697 (LAC) at 703E-H; Paddock Motors (Pty) Ltd v Igesund 1976 (3) SA 16 at 23C-F.
8. In any event, aspects of the dispute before me directly raise issues concerning the access of a number of ABET educators to benefits and, in respect of others, there are issues concerning the correct scale of the benefits of employment. Be that as it may, the content of this dispute is patently clear – not only to SADTU but also to the GDE. It was clear at the time of the referral; it was clear at the time of the conciliation sessions; it remains equally clear at the stage of the arbitration before me. No good purpose would be served by upholding the point in limine. To the contrary, it would aggravate the dispute in an entirely unwarranted fashion.
9. Accordingly, the point in limine is dismissed.
10. At the beginning of the arbitration proceedings, both parties indicated that the matter could proceed on the basis of submissions by the representatives and that there were no factual disputes requiring the tendering of oral evidence. Neither of the parties had any witnesses in attendance. However, in the course of the submissions it became apparent that there was at least one factual difference between them, this being whether or not the model to be used for the grading of ABET centres was sufficiently developed to be implementable. SADTU maintains that this is the case while the GDE contends that the process of consultation was not concluded because finalisation of the grading model would have an impact on the salary levels of certain principals and this, it was argued, was a competency of the national department.
11. In the interests of expediting the resolution of this dispute, I deem it appropriate for me not to defer the matter to another hearing at which oral evidence on the question of the model can be presented. Rather, it seems to me to be preferable that I should examine and decide the legal issue upon which the GDE relies and correspondingly to make an award that will advance the determination of the dispute as a whole.
12. The matter of the upgrading of centre managers (or principals) formed the subject matter of an internal memorandum from the Director: ABET – IDS (who was Mr T Masondo) to the Chief Director (Act): HRMO & S (who was Mr J Coetzee) dated 16 April 2010. This memorandum referred to the approved proposal and included the spreadsheet which was an annexure and which set out a grading model. The request was made that this should be implemented, in terms of the spreadsheet. That spreadsheet is referred to in the memorandum as being effective from 1 July 2009. The memorandum states inter alia: "It is only 4 Centre Managers that will be upgraded to S 11 (P4) and 1 to S 12 (P5). Most of the Centre Managers will remain S 10 (P3) or downgraded to S 9 (P2). "
13. As is apparent from Mr Masondo’s memorandum, he was of the view that the grading model set out in the spreadsheet was capable of being implemented. This is consistent with the case put forward by SADTU in this arbitration. However, Mr Coetzee did not approve the request. Instead, he made the following annotations:"(1) The submission approved the tabling for discussion at the ELRC of the grading model. (2) A National process looking at the conditions of service for the ABET sector has commenced. The outcomes of this process will also deal with the grading of principals."
14. These annotations suggest that Mr Coetzee may have been of the view that the grading model had not been fully discussed at the ELRC. More pertinently, it is clear that the national process to which he had made reference was one that culminated in the subsequent passage into law of the Higher Education and Training Laws Amendment Act, 25 of 2010. It was the effect of this Act upon which Mr Selowa relied for his argument that it was not legally competent for the GDE to implement a grading model and that this could only be done by the National Department.
15. In particular, section 20D of the Adult Basic Education and Training Act 52 of 2000 (as thus amended) formed the basis for this argument. That section reads:
“(1) Notwithstanding anything to the contrary contained in any law but subject to the provisions of this section, the Labour Relations Act or any collective agreement concluded by the Education Labour Relations Council, the Minister shall determine the salaries and other conditions of service of educators.
(2) Different salaries and conditions of service contemplated in subsection (1) may be determined in respect of different ranks and grades of educators.
(3) A determination by the Minister under this section involving expenditure from the National Revenue Fund may only be made with the concurrence of the Minister of Finance.”
16. However, this section deals with no more than the determination of salary levels. It says nothing about the determination of the grading of educators. Due regard must hence also be had to the other directly relevant provisions of the same Chapter of this legislation, the terms of which are in my view crystal clear. I will set them out:
“20B Application of Chapter
This Chapter applies to the employment of educators at public centres in the Republic.
20C Employers of educators and other persons
(1) Save as is otherwise provided in this section, the Head of Department shall be the employer of educators in the service of the provincial education department in posts on the educator establishment of public centres for all purposes of employment.
(2) For the purposes of determining the salaries and other conditions of service of educators, the Minister shall be the employer of all educators contemplated in subsection (1).
(3) For the purposes of creating posts on the educator establishment of public centres in a provincial education department, the Member of the Executive Council shall be the employer of educators in the service of that department.
20E Educator establishment
(1) Notwithstanding anything to the contrary contained in any law but subject to the norms prescribed for the provisioning of posts, the educator establishment of a provincial education department shall consist of the posts created by the Member of the Executive Council.
(2) The educator establishment of any public centre under the control of a provincial education department shall, subject to the norms prescribed for the provisioning of posts, consist of the posts allocated to the said public centre or office by the Head of Department from the educator establishment of that department.
(3) For the purposes of this Chapter-
(a) the power to create a post under this section shall include the power to grade, to regrade, to designate, to re-designate, to convert or to abolish the post; and ... “ (my underlining)
17. What these provisions plainly articulate is that the power to create a provincial establishment, the power to create posts on that establishment and the power to grade such posts, are all powers which the legislature has placed in the hands of the provincial authority. This is in no sense altered by the fact that the Minister determines salaries and other service conditions. It follows that the view recorded in Mr Coetzee’s annotation and the argument advanced by Mr Selowa for the GDE are unsustainable in law. Contrary to those contentions, the grading of posts on a provincial establishment is very much the competency of that province and there is hence no impediment to be found in this legislation preventing the implementation of a properly formulated grading model for ABET centres.
18. If there is such a model, it must be implemented without delay. If that model still requires development within the provincial chamber of the ELRC – as a matter ofbona fide necessity – then that too must be done without delay, following which it must be promptly implemented.
19. In this context, it is appropriate to refer again to the prima facie indication that Mr Masondo had, apparently on the basis of the spreadsheet, been able to perform a grading exercise and to reach a conclusion as to the number of principals whose posts required adjustment. I have quoted the relevant portion of his memorandum above. If it is indeed the position of the GDE that it is not able to implement this part of the duly approved proposals, then it must furnish clear grounds for that position in any proceedings within the ELRC relating to it, in order that there can be swift and purposeful engagement there between the parties.
20. It is apposite for me at this stage to revert briefly to the conduct of this arbitration. It was held on 1 March 2011. I have already observed that the parties were at the outset ad idem that there were no factual issues but that this was no longer clear at the end of the initial hearing. It was then agreed that the GDE would file written submissions by 7 March and SADTU by 14 March 2011. I invited the parties to include with those submissions documentation concerning the grading model and minutes of any pertinent proceedings at the ELRC. Notwithstanding that, neither party put up any documentation when they duly filed their submissions. As a result, I have not even had sight of the spreadsheet to which reference has been made, let alone any documented indications of what has or has not taken place by way of interaction between the parties. I am accordingly in no position to assess whether Mr Masondo approached his grading exercise in a sound manner. Likewise, I am unable to form a reliable view as to the nature of the interaction that has taken place between the parties under the auspices of the ELRC and CATE or, moreover, the extent to which further interaction is objectively required. In these circumstances, it is not competent for me to make a final determination concerning the grading exercise. It is also not competent for me to determine a date for its retrospective operation, as sought by SADTU. I turn now to the remaining two elements of the dispute.
21. The first is that the Directorate HRMO&S was to investigate the provision of coordinating supervisors. In his written submissions Mr Selowa confirms that no investigation has been carried out subsequent to the adoption of the recommendations. He adds that principals are permanently appointed and that they must perform all the necessary coordination. I interpret that to be a reflection of the status quo. In any event, the fact is that an approved step, being to carry out an investigation, has not been implemented. Although the document in question is not in the form of a collective agreement, it was the product of collective interaction. In my view, it is unacceptable that the GDE should simply have ignored a measure which had received approval all the way to the level of the MEC, without any competent act of rescission or other qualification. SADTU is entitled to hold a reasonable expectation that it would have been implemented and I have heard nothing to persuade me that it should not be.
22. The second remaining element is that ‘IQMS implementation be strengthened’. On the strength of that, SADTU argues that IQMS (and its implications for inter alia pay progression) must be applied to all ABET educators including those employed on temporary contracts. The GDE counters that with the contention that the position obtaining in ABET is no different from that in public schools in general. Whatever the precise factual position may be, I consider that the recommendation that IQMS implementation ‘be strengthened’ is too vague for me to extract a specific intention regarding temporary educators, whether one way or the other. This is not an aspect about which it would be competent for me to interpret and to impose a binding understanding. Rather, it is a matter for the parties to clarify through appropriate interaction. Accordingly, this part of SADTU’s current referral must fail, not because I determine the meaning of the recommendation against it but because I am unable to determine it at all.
23. In conclusion, my award is as follows:
23.1. It is determined that the terms of section 20D of the Adult Basic Education and Training Act 52 of 2000 (as amended) do not empower the Minister to grade posts at any public centre.
23.2. It is further determined that such power is vested in the Member of the Executive Council for Education by section 20E of the Act.
23.3. Subject to paragraph 23.3 hereof, the Gauteng Department of Education is directed forthwith to take all steps necessary to implement the recommendation in the Proposal to Change the Structure of the ABET Sector in respect of the Appointment of CS Educators, as approved, in relation to the grading of ABET Centres in order to determine the post level of the principal at each such Centre.
23.4. In the event that there is a preliminary bona fide and material need to develop the grading model to be applied, then the Gauteng Department of Education is directed without delay to identify and specify the terms of such need, to communicate that to all relevant entities, and to ensure that it is without delay tabled within the Gauteng Chamber of the ELRC for consultation and finalisation.
23.5. The Gauteng Department of Education is directed forthwith to take all steps necessary to implement the recommendation in the Proposal to Change the Structure of the ABET Sector in respect of the Appointment of CS Educators, as approved, in relation to the investigation of the provision of coordinating supervisors to manage and/or coordinate subjects and/or public centres.
23.6. SADTU’s claim concerning the recommendation in the Proposal to Change the Structure of the ABET Sector in respect of the Appointment of CS Educators, as approved, that IQMS implementation be strengthened through its application to all temporary ABET educators is not upheld.
KAREL TIP SC
21 March 2011