Case Number: PSES 313-14/15LP
Applicant: MAFOLOGELE & 13 OTHERS
Respondent: Department of Education
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Department of Education-Limpopo, Head Office, 113 Biccard Street, Polokwane.
Award Date: 13 October 2015
Arbitrator: ELIAS KHUTSO MPAI
Panellist/s: ELIAS KHUTSO MPAI
Case No.: PSES 313-14/15LP
Date of Award: 13th October 2015
In the ARBITRATION between:
MAFOLOGELE & 13 OTHERS (Union / Applicant)
DEPARTMENT OF EDUCATION – LIMPOPO (Respondent)
Union/Applicant’s representative: THOMAS & SWANEPOEL ATTORNEYS
Telephone: 015-307 1027/083-310 3884
Telefax: 086-677 0962
Respondent’s representative: T. NETSHITUNGULU
Telefax: 015-297 6920/4320/4494/0507/086-611 8194
DETAILS OF HEARING AND REPRESENTATION
 The Arbitration hearing was held on the 30th September 2015 at 10H00 at the Department of Education-Limpopo, Head Office, 113 Biccard Street, Polokwane.
 The applicants, Mafologele J.P and others appeared in person and were assisted by Mr D.A. Swanepoel an attorney while the respondent was represented by Mrs T. Netshitungulu, the labour relations officer.
 The services of an interpreter were not utilized and the proceedings were digitally recorded.
BACKGROUND TO THE ISSUE.
 The Applicants are employed by the respondent as an educators in terms of theEmployment of Educators’ Act, 1998. They are stationed at Leoma Secondary School.
 On the 18th of January 2008 and acting in terms of Section 4 of the Employment of Professors Act, the Minister of Education promulgated certain conditions of service for educators in the schedule to Government Gazette No 30678. Criteria that academically qualified educators have to meet to qualify for the payment of incentives, were determined in the schedule.
 In terms of the measures, a post or certain posts at a school will be identified to be eligible for incentives in accordance with criteria set out in paragraphs 8.1 and 8.2 of the schedule.
 An educator who meets the criteria in paragraphs 1, 8.1 and 8.2 of the post eligible for incentives, will be required to enter into an “incentive contract” with the employing Department.
 It may happen that an educator, who does not qualify in terms of paragraph 1, occupies a post that is eligible for an incentive. Such an educator will not have the right to receive an incentive because s/he is in that post.
 An educator who receives the incentive must have performed at the level stipulated in the “incentive contract” to receive the incentive and must continue to perform at the level stipulated in the “incentive contract” to retain the incentive. Should such an educator not perform at the required level, the employing department shall give the educator one term’s notice of termination of the incentive.
 There will be two categories of schools where the incentives will be applicable: remote schools and other schools.
 The respondent raised a point in limine that the ELRC lack jurisdiction to arbitrate this dispute as an unfair labour practice dispute while the applicants argued that the ELRC has jurisdiction to do so.
 The parties submitted bundles of documents, with the Applicant submitting Exhibit “A” while the Respondent submitted Exhibit “B1” and “B2”.
ISSUE TO BE DECIDED
 I have to decide whether or not the ELRC has jurisdiction to arbitrate this dispute. Should I find that the ELRC has jurisdiction to arbitrate the dispute, I will then have to decide whether the respondent committed an unfair labour practice by not paying the applicants their rural allowance. If I find that the respondent did commit an unfair labour practice, I will then have to determine the appropriate relief in line with their prayer for the payment of their rural allowances.
SURVEY OF EVIDENCE AND SUBMISSIONS.
The parties’ arguments are briefly as follows:-
Submissions for the Applicant.
 He submitted that Leona Secondary School complies with the criteria as set out in the amendments as it has been ranked by the respondent as a Quintile 2 school and it is a no-fee school while the applicants are in possession of the REQV 13 or higher qualifications.
 Paragraph 3 ofthe schedule to Government Gazette No. 30678 states that “an educator who meets the criteria in paragraphs 1, 8.1 and 8.2 of the post eligible for incentives will be required to enter into an “incentive contract” with the employing Department.
 The respondent is refusing to enter into an “incentive contract” with the applicants despite the applicants making submissions to the circuit manager, Lepelle.
 The applicants’ claim arises ex lege (in terms of Government Gazette No. 30678) as well as in terms of policy and practice. The respondent’s failure to enter into incentive contracts with the applicants in order for them to receive the incentive benefit, amounts to unfair labour practice so Mr. Swanepoel submitted.
 The ELRC is not prohibited from interpreting any provision of any Act, Code, Policy, Schedule, Directive and/or practice, if it regulates the relationship between an employer and employee.
 An ELRC arbitrator has the power to interpret the aforesaid Schedule and determine whether or not the applicants have complied with the criteria as set out in the Schedule.
 The ELRC therefore has jurisdiction to make a ruling concerning the relief sought hereunder in a dispute between the employer and employee as contemplated by section 186 of the LRA and that the previous rulings on the jurisdiction of the ELRC must be distinguished.
Submissions for the respondent.
She made no submissions except for raising her jurisdictional challenge and submitting her bundles of documents.
ANALYSIS OF EVIDENCE AND FINDINGS.
 The parties agreed that they will not lead oral evidence and that theywill insteadsubmit written closing argument by no later than the 7 October 2015. The Applicants submitted their written closing arguments while the Respondent did not submit itswritten closing argument. An arrangement was made for the parties’ representatives to exchange their closing argument.
 The burden of proof rests on the applicant to establish that the ELRC has jurisdiction to arbitrate his dispute.
 The respondent submitted that the ELRC lacked jurisdiction to arbitrate the dispute and she made reference to two (2) Rulings by the ELRC arbitrator, Coen Havenga under Case No. PSES 308-13/14LP and PSES 109-13/14LP.
 The applicants submitted that the ELRC had jurisdiction to arbitrate the dispute and made reference to the Labour Appeal Court judgement in Apollo Tyres’ SA (Pty) Ltd v CCMA & Others (2013) 5 BLLR 434 (LAC) .
 The Apollo Tyres’ case referred to cases where the employer fails to comply with the obligations that it has towards an employee or where an employer has provided the employee with an advantage or privilege that has been offered or granted to an employee in terms of a policy or practice subject to the employee’s discretion.
 It appears from the Apollo Tyres judgment that the term “benefit” includes “a right or entitlement to which an employee is entitled as well as an advantage or privilege which has been offered or granted to an employee in terms of a policy or practice subject to the employer’s discretion.”
 The respondent did not have a contractual obligations towards the applicants as at the time of their dispute. The reason being that their entitlement to the “incentive benefit” was subject to them entering into an “incentive contract” with the Respondent after meeting certain requirements.
 As at the time of their dispute, the Applicants have not signed the incentive contract with the Respondent. The respondent refused to enter into incentive contracts with the applicants because it formed a view that the applicants did not qualify for such contracts. I was not furnished with the reasons for the refusal and nothing was submitted to justify that as fair. There was no evidence that was presented by the respondent to gainsay the applicants’ version that they qualified for the incentive contracts.
 From the wording of the Gazette referred to above, there has to be an agreement between the applicants and the respondent and the terms of the incentive contract has to be mapped out in the contract.
 Had the respondent entered into contracts with the applicants, whether they received the incentive would have depended on their performance. It was therefore not fair for the respondent not to enter into incentive contracts the applicants and to monitor their performance.
 It is important to note that the applicants’ disputes relate to the provision of benefits which fall within two categories: where the dispute is not based on an allegation that the grant or removal of a benefit is unfair, with strike action as the remedy. On the other hand, where the dispute concerns the fairness or otherwise of the employer’s conduct, with the remedy being to refer the dispute for arbitration.
 Their dispute does not involve the former scenario which could lead to strike action, instead it relates to the fairness or otherwise of the respondent’s conduct, which is therefore to be arbitrated.
 The Gazette placed a duty on the respondent to enter into incentive contracts with the applicants and for him to monitor their performance, however the respondent shied away from his responsibility thereby frustrating the applicants in their quest to get their incentives. It would therefore not be correct to say that the ELRC lacked jurisdiction to arbitrate this dispute.
 The Court held in the Apollo Tyres Judgementthat the proper approach is to interpret the term “benefit” to include a benefit to which an employee is entitled (ex contractu or ex lege, including rights judiciously created) as well as advantages or privilege which the employee has been offered or granted in terms of a policy or practice subject to the employers’ discretion.
 It cannot be faltered that the applicants’ claim arose ex lege in terms of the Gazette and it is also based on the respondent’s policies. Now the Respondent is shying away from his responsibility to grant the applicants the “incentives contracts” which he has to monitor.
 By so doing, the respondent is exercising the discretion unfairly, thereby acting arbitrarily, capriciously and/or without a justifiable reason.The respondent’s conduct as such amounts to an unfair labour practice.
 This is so because the applicant made submissions that they met the requirements as set out in the Gazette and furthermore that their school is classified as a Quintile 2 with “a No-Fees school” status and that they are fully qualified with REQV 13 and higher qualifications.
It has also been argued that the applicants approached the respondent on several occasions for the “incentive contracts” but they received no response from him.
 Under similar circumstances, in the Apollo Tyres’ case, it was held that “the employer always shifted the goal posts and had provided no credible reason for not granting the employee an early retirement package. The Court accordingly, held that the employer had perpetuated an unfair labour practice by excluding the employee from the early retirement scheme.”
 The same holds water in the applicants’ case as they have been repeatedly knocking on the respondent’s door to be given their “incentives contracts” without any response from the respondent.
 The purpose of the “incentive contracts” was a measure to attract or motivate educators to apply for positions at specific schools and to compensate these educators for rendering their services at these schools.
 It is therefore incumbent upon the respondent to fulfil his part by entering into the relevant “incentives contracts” and monitor them to determine whether they would perform in terms of their contracts.
 In the end, I find that the respondent committed an unfair labour practice against the applicants by not entering into “incentives contracts” with them and thereby monitor their performance.
The applicants were attempting to enforce their rights to a fair labour practice concerning the provision of benefits.There was nothing that was presented to suggest that the applicants would have failed to meet the requirements of their positions in terms of their “incentive contracts.” In the absence of evidence to the contrary, I accept that the applicants would have fulfilled their obligations.
 The respondent did not provide the applicants with the same benefits that the other employees in a similar position received. It did not afford them an opportunity to qualify for the benefit through performance. Had it afforded them such opportunity, they would in all probabilities have received the rural allowance.
 I also had the opportunity to peruse the Rulings that were referred to by the Respondent. Though they are two (2) Rulings in number, the contents thereof are the same, with the only difference being that they make reference to different Applicants though they relate to the same Respondent. The cited Rulings were made in respect of the same or similar set of facts as the current case.
 The said rulings did not draw a distinction between the scenarios where existing rights or benefits were withdrawn as opposed to the rights that arise ex lege or ex contractu and those arising from policies or practice.
 It would further appear that the arbitrator in charge did not make reference to the Apollo Tyres case in arriving at his decision, thereby not applying the current legal position in arriving at his decision.
 The applicants made application for the payment of their rural allowance and they submitted a list with their detailed particulars which includes their Persal numbers, appointment dates and the number of months which are involved in their claim for their rural allowance.
 In terms of clause 9 to the Gazette, the minimum amount of the incentive will be 10 of the first notch of salary level 7. This would be R212810-40 / 12 = R17734-20 x 10% = R1773-42 per month.
 I find it appropriate that the respondent should provide the applicants with the incentives contracts and monitor their performance in line with the Gazette.
 I find that the ELRC has jurisdiction to arbitrate this dispute.
The applicants met the criteria set in Government Gazette No 30678.
 The respondent committed an unfair labour practice by refusing to enter into “incentive contracts” with the fourteen applicants and monitor their performance.
 The respondent is hereby ordered to pay the fourteen applicants the rural allowance incentives due to them in the amount of R175391194-30 as per annexure “Z” hereto.
 Payment of the above amounts shall be effected on the fourteen applicants by not later than the 30th November 2015 at 09H00.
 The respondent is further ordered to enter into “incentive contracts” with the Applicants by not later than the 30th November 2015 and monitor their performance in terms thereof.
 The respondent must provide the applicants the same benefits as its other employees who receive the rural allowance.
DATED AT MAKHADO ON THIS THE 09TH DAY OF OCTOBER 2015.
KHUTSO MPAI:- COMMISSIONER
NO. SURNAME AND INITIALS PERSAL APPOINTMENT DATE AMOUNT DUE