Case Number: PSES 420-14/15
Province: Free State
Applicant: SAOU obo Van Der Merwe & 7 Others
Respondent: Department of Education, Free State
Issue: Unfair Labour Practice - Provision of Benefits
Award Date: 1 February 2015
Arbitrator: Jerome Mthembu
IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD AT BLOEMFONTEIN
Commissioner: Jerome Mthembu
Case no: PSES 420-14/15
Date: 1 February 2015
In the matter between:
SAOU obo VAN DER MERWE & 7 OTHERS
DEPARTMENT OF EDUCATOIN
DETAILS OF HEARING AND REPRESENTATION:
1. The hearing was held on 26 November 2014. Ms Strydom an official of the SAOU represented the Applicants and Mr Maloka the Respondent.
2. The parties dispensed with oral evidence and agreed to file Heads of Argument as follows:
2.1 The Applicants on 21 January 2015;
2.2 The Respondent on 27 January 2015;
2.3 Applicants to reply on 30 January 2015.
THE ISSUE TO BE DECIDED:
3. An alleged failure by the Respondent to pay the Applicants a remoteness incentive as agreed in the FS-ELRC.
SURVEY OF THE ARGUMENTS:
4. On 7 August 2014 a request was sent per letter to the SG reporting the fact that the employees at Nelsdrif Farm School (the Applicants) are not receiving the Remoteness Allowance which in terms of a decision in the FS-ELRC should be paid to all Farm School Educators.
5. In the response from the employer received on 11 August 2014 the reason given for not paying the allowance to the Applicants was as follows:
“Please remember that only schools registered as Public Schools on Private Property qualified for this incentive.”
6. In response to this, the employer was requested to provide the Union with documentary proof in terms of which the interpretation is applied. An official letter from the office of the SG dated 4 September 2014, stated as follows:
“Kindly take note and be informed that the Department’s policy (as agreed in the FS-ELRC) stipulates one of the following criteria as the basis for eligibility for the payment of Remoteness Incentive:
· Public School on Private Property (PSPP)”
7. It is the case of the Applicants that:
7.1 such a criteria did not form part of the ELRC discussions and/or decision taken for the payment of the Remoteness Incentive;
7.2 the decision taken in the FS-ELRC was that all Farm School educators would qualify, provided that they are professionally qualified (REQV 13) and appointed in a permanent capacity;
7.3 the fact that Nelsdrif is a registered Public Farm School on “Government land” and not on “Private Property” makes their situation as employees not different to the situation of other Farm School educators; and that
7.4 They are eligible, based on their qualifications and appointment status, for the allowance which currently amounts to R1 657.40 per month.
8. Applicants’ plead for the following order:
8.1 That the educators at Nelsdrif Farm School qualify for the Remoteness Incentive in the same manner as all other Farm School educators in the province as per the decision taken in the FS-ELRC on 19 November 2010.
8.2 That the allowance be implemented retrospective from the date of the letter sent to the employer requesting that the allowance be paid to them, namely August 2014.
8.3 The incentive must be implemented within one (1) month from the date of the award.
9. Government Gazette number 30678 determines measures relevant to payment of Incentive of Educators.
10. Section 2 says that an educator should meet the criteria of paragraph 8.1 and 8.2.
11. Paragraph 8.1 says the selection of schools where all the posts would be eligible for incentives would be determined in the following order:
11.1 remoteness of the school: farm schools;
11.2 poverty: All schools are ranked in terms of poverty criteria and divided in quintiles, quintile 1 being the poorest and quintile 2 next to the poorest;
11.3 No fee schools.
12. The second criteria is determined by paragraph 8.2.
12.1 schools stipulated in hard to teach zones;
12.2 school experiencing a chronic of shortage of educators in certain subjects.
13. The school is a farm school that is on quintile 5 that is affluent in terms of ranking.
14. It is a fee school and there is no evidence that it even qualifies in terms of the criterion 8.2.
15. It is quite obvious then that the school does not qualify in either paragraph 8.1 or 8.2 of the Gazette.
16. The decision 5 of the Free State chamber confirms the same criterion and does not add any variable to the ones in the Gazette.
17. The Applicants have therefore failed to prove their claim. The Applicants’ representative knows this policy positions and continued somehow to bring the vexatious claim against the department.
ANALYSIS OF THE ARGUMENT:
18. Decision 5 of the FS-ELRC chamber states inter alia that:
“Payment of incentives will be implemented for Farm School educators and names of educators who qualify are to be made available to labour.”
19. The phase “who qualify” is not quantified in decision 5 above.
20. In order to rectify the “grey area” in decision 5 resort was made to Government Gazette no. 30678 wherein the “grey area” was amplified.
21. The Respondent has in paragraphs (11) and (12) of its Heads of Arguments stated the criteria as to “who qualify” and will I not herein repeat it.
22. However, it is clear that the Applicants do not meet any of the two criteria stated in Government Gazette no 30678 above.
23. The letter of the superintendent general that the Applicant sought to rely upon states that:
“… the Department’s policy (as agreed in the FS-ELRC) stipulates one of the following criteria as the basis for eligibility for the payment of remoteness incentive:
· Public School on private property.”
24. The reason stated by the superintendent general that the school is not on private property but on Government land is but one of the criteria that the Applicants did not meet.
25. I am therefore not persuaded by the Applicants’ submission that they qualify for the remoteness incentive.
26. The Applicants have failed to prove that the Respondent failed to comply with decision 5 of the FS-ELRC chamber by not paying them a remoteness incentive.
27. The Applicants’ claim is dismissed without an order for costs.