PSES 83-19/20EC
PSES 83-19/20EC
Award Date:
30 September 2019
Case Number: PSES 83-19/20EC
Province: Eastern Cape
Applicant: SAOU obo Wyngaard – Sofberg & 8 Others
Respondent: Department of Education Eastern Cape
Issue: Unfair Labour Practice - Provision of Benefits
Venue: the District Offices of the Department of Education in Port Elizabeth.
Award Date: 30 September 2019
Arbitrator: Hadley Saayman
Case Number: PSES 83-19/20EC
Commissioner: Hadley Saayman
Date : 30 September 2019
In the ARBITRATION between
(Union/Applicant)
SAOU obo Wyngaard – Sofberg & 8 Others
And
Department of Education –Eastern Cape
(Respondent)
Applicant’s representative: Mr David Bains
Applicant’s address: Cotswold Office Park no.4
21 Barton Road
Port Elizabeth
6045
Telephone: 041-3640500
Telefax: 083 6795692
E-mail:
Respondent’s representative: Mr Lesley Eskok & Ms Moria Coetzee
Respondent’s address: Department of Education-EC
Private Bag X0032
Bisho
5606
Telephone: 040 608 4540
Telefax: 040 608 4313
E-mail: Lesley.eskok@webmail.co.za
DETAILS OF HEARING AND REPRESENTATION
1. This matter came before the ELRC in terms of Section 33A (4) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 69 of the ELRC Constitution : ELRC Dispute Resolution Procedures and was set down for Arbitration on 26 September 2019 at the District Offices of the Department of Education in Port Elizabeth.
2. The Applicants, SAOU obo Wyngaard – Sofberg & 8 Others were represented by Mr David Bains, an Union Official.
3. The Respondent, Department of Education: Eastern Cape was represented by Mr Lesley Eskok, a Labour Relations Officer and Ms Moria Coetzee a Senior Education Specialist.
ISSUES TO BE DECIDED
4. I must determine whether the applicants were entitled to as a result of IQMS to a grade progression or pay progression.
SURVEY AND ANALYSES OF EVIDENCE AND ARGUMENTS
5. ELRC Collective Agreement 1 of 2012 (Paragraph 5.1.10) Occupation Specific Dispensation (OSD) introduced an occupation specific remuneration and career progression dispensation for Education Therapists, Counsellors and Psychologists employed in public education. Paragraph 5.1.10 of ELRC Collective Agreement 1 of 2012 has been incorporated into Chapter B.3.5.5 of Personnel Administrative Measures (PAM) (12 February 2016)
6. The purpose was to provide within the OSD for:
• Career pathing opportunities based on competencies, experience and performance;
• Pay progression within the relevant grades (scales) based on performance;
• Grade progression, where applicable, based on performance;
• Recognition of appropriate experience for the purposes of grade progression;
• Recognition of performance for accelerated progression to higher grades and pay progression within a salary grade.
7. The following information in respect of the applicants were common cause:
7.1 Dorfling, A (Persal number: 51769131)
There is sufficient proof of previous service to be appointed as Education Therapist Grade II with effect 01/06/2014. Non-payment of Pay Progression for 2017, 2018 and 2019 to be addressed with IQMS section (Scores were submitted and loaded on PERSAL). The Applicant is entitled to an amount of R 275 983.00 as calculated by the parties.
7.2 Goliath, TD (Persal number: 51780640)
Without service in private practice sufficient service to be appointed as Education Therapist Gr II , with effect 9/06/2014. In order to expedite proceedings, Applicant has submitted written confirmation to forfeit periods of private practice and would not be prejudiced by same. Non-payment of pay progression for 2017, 2018 and 2019 was addressed with IQMS section and approval for payment was obtained. The Applicant is entitled to an amount of R 275 983.00 as calculated by the parties.
7.3 Le Roux, A (Persal number: 83418423)
The rank at appointment is correct - no provision made for recognition of service for the purpose of earlier grade progression than allowed for by collective agreement namely 10 years after appointment. Qualify for Pay Progression 1/7/2019 - not received. - Non-payment was addressed by IQMS section and approval for payment obtained. The Applicant is entitled to an amount of R 1 089.00 as calculated by the parties.
7.4 Van Der Merwe, L (Persal number: 54620082)
Appointed at Health on 01/01/2008. Collective Agreement applied while appointed under Dept Health transferred to Education - Rank incorrect on PERSAL as Occupational Therapist and not Education Therapist - on PERSONAL notch – Scale code, Rank, Notch type etc to be rectified by HR. To submit proof that IQMS scores were submitted to IQMS section - the non-implementation could be the result of the incorrect rank on PERSAL. Matter to be addressed between HR and IQMS. The Applicant is entitled to an amount of R 33 993.30 as calculated by the parties.
7.5 Van Wyngaard-Stofberg, C (Persal number: 56060335)
Without service in private practice enough service to be appointed as Education Therapist Gr II
with effect 1/07/2014. In order to expedite proceedings, Applicant has submitted written confirmation to forfeit periods of Private Practice and would not be prejudiced by same. Non-payment of pay progression for 2017, 2018 and 2019 was addressed with IQMS section and approval granted. The Applicant is entitled to an amount of R 275 983.00 as calculated by the parties.
7.6 Venter, M (Persal number: 55363954)
Rank at appointment correct - no provision made for recognition of service for the purpose of earlier Grade Progression than allowed for by collective agreement namely 10 years after appointment. Qualify for Pay Progression 1/7/2017 - not received. Non-payment was addressed by IQMS section and approval obtained. Transferred to Department of Health, with effect 1/07/2019. Applicant will not receive pay progression for 1/07/2019 from the Respondent. The Applicant is entitled to an amount of R 11 703.00 as calculated by the parties.
7.7 Whitehouse, J.L (Persal number: 51770083)
Appointed at Health on 01/01/2015 as Grade II based on appointment requirements as contained in Applicant to be appointed as Education Therapist Grade III, with effect 1/05/2016. She would then become eligible for Pay Progression 1/7/2019 Non-payment was addressed by IQMS section and approval granted. The Applicant is entitled to an amount of R 212 978.75 as calculated by the parties.
7.8 Coetzee, M (Persal number: 54322901)
Rank at appointment correct - no provision made for recognition of service for the purpose of earlier Grade Progression than allowed for by collective agreement namely 10 years after appointment. Qualify for Pay Progression 1/7/2021 - Score for 2018 assessment year not loaded - to provide proof that it was submitted to IQMS section. The Applicant is not entitled to any amount as agreed by the parties.
7.9 Van Remootere, VK (Persal number: 54324874)
Rank at appointment correct - no provision made for recognition of service for the purpose of earlier Grade Progression than allowed for by collective agreement namely 10 years after appointment. Qualify for Pay Progression 1/7/2021 - Score for 2018 assessment year not loaded - to provide proof that it was submitted to IQMS section. The Applicant is not entitled to any amount as agreed by the parties.
8. Clause 69.1 also provides that the General Secretary may promote, monitor and enforce compliance with any Collective Agreement of the Council, within the scope of the Council and in terms of this section 33 and section 33A of the Act.
9. Clause 69.2 provides that a Collective Agreement of the Council is deemed to include:
9.1 Any basic condition of employment which constitutes a term of a contract of employment of any employee covered by the Collective Agreement in terms of section 49(1) of the BCEA; and
9.2 subject to clause 7.5, any other basic condition in the BCEA applicable to an employee falling within the scope of the Council where such employee's employer is a party to the Council;
10. In terms of the Labour Relations Act, 1995(as amended), a collective agreement is a written agreement concerning the terms and conditions of employment or any other matters of mutual interest that are concluded by one or more registered trade unions on the one hand and one or more employers on the other. Both parties are bound by a collective agreement.
11. In CUSA v Tao Ying Metal Industries and Other [2009] 1 BLLR 1 (CC) at paras [55] and [56].,the Constitutional Court emphasized the importance and the rights that Collective Agreements give effect to as follows:
‘[55] The issues raised in this case are matters of public interest. This case also concerns the enforcement of a bargaining council agreement which sets out minimum wages and other conditions of employment and requires us to apply the provisions of the LRA. The right of every trade union and every employers’ organisation and employer to engage in collective bargaining is entrenched in section 23(5) of the Constitution. The concomitant of the right to engage in collective bargaining is the right to insist on compliance with the provisions of the collective agreement which is the product of the collective bargaining process.
[56] Compliance with a collective bargaining agreement is crucial not only to the right to bargain collectively through the forum constituted by the bargaining council, but it is also crucial to the sanctity of collective bargaining agreements. The right to engage in collective bargaining and to enforce the provisions of a collective agreement is an especially important right for the workers who are generally powerless to bargain individually over wages and conditions of employment. The enforcement of collective agreements is vital to industrial peace and it is indeed crucial to the achievement of fair labour practices which is constitutionally entrenched. The enforcement of these agreements is indeed crucial to a society which, like ours, is founded on the rule of law.’
12. The respondent must comply with the terms and conditions in the collective agreement as well as with PAM that form part of the applicants conditions of service.
AWARD
13. The respondent, Department of Education: Eastern Cape is ordered comply with the terms and conditions of the mentioned collective agreement as well the relevant provisions as contained in PAM .
14. The applicants are entitled to the respective amounts as outlined above.
15. The respondent, the Department of Education, Eastern Cape is ordered to pay the applicants
as follows:
NO. SURNAME AND INITIALS PERSAL NUMBER AMOUNT DUE TO APPLICANT
1 Dorfling, A 51769131 R 275 983.00
2 Goliath, T. D 51780640 R 275 983.00
3 Le Roux, A 83418423 R 1 089.00
4 Van Der Merwe, L 54620082 R 33 993.30
5 Van Wyngaard-Stofberg, C 56060335 R 275 983.00
6 Venter, M 55363954 R 11 703.00
7 Whitehouse, J. L 51770083 R 212 978.75
8 Coetzee, M 54322901 NIL
9 Van Remootere, V. K 54324874 NIL
16. Payments of the above-mentioned amounts should be made on or before 30 November 2019.
Signature:
Commissioner: Hadley Saayman
Sector: Education
Province: Eastern Cape
Applicant: SAOU obo Wyngaard – Sofberg & 8 Others
Respondent: Department of Education Eastern Cape
Issue: Unfair Labour Practice - Provision of Benefits
Venue: the District Offices of the Department of Education in Port Elizabeth.
Award Date: 30 September 2019
Arbitrator: Hadley Saayman
Case Number: PSES 83-19/20EC
Commissioner: Hadley Saayman
Date : 30 September 2019
In the ARBITRATION between
(Union/Applicant)
SAOU obo Wyngaard – Sofberg & 8 Others
And
Department of Education –Eastern Cape
(Respondent)
Applicant’s representative: Mr David Bains
Applicant’s address: Cotswold Office Park no.4
21 Barton Road
Port Elizabeth
6045
Telephone: 041-3640500
Telefax: 083 6795692
E-mail:
Respondent’s representative: Mr Lesley Eskok & Ms Moria Coetzee
Respondent’s address: Department of Education-EC
Private Bag X0032
Bisho
5606
Telephone: 040 608 4540
Telefax: 040 608 4313
E-mail: Lesley.eskok@webmail.co.za
DETAILS OF HEARING AND REPRESENTATION
1. This matter came before the ELRC in terms of Section 33A (4) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 69 of the ELRC Constitution : ELRC Dispute Resolution Procedures and was set down for Arbitration on 26 September 2019 at the District Offices of the Department of Education in Port Elizabeth.
2. The Applicants, SAOU obo Wyngaard – Sofberg & 8 Others were represented by Mr David Bains, an Union Official.
3. The Respondent, Department of Education: Eastern Cape was represented by Mr Lesley Eskok, a Labour Relations Officer and Ms Moria Coetzee a Senior Education Specialist.
ISSUES TO BE DECIDED
4. I must determine whether the applicants were entitled to as a result of IQMS to a grade progression or pay progression.
SURVEY AND ANALYSES OF EVIDENCE AND ARGUMENTS
5. ELRC Collective Agreement 1 of 2012 (Paragraph 5.1.10) Occupation Specific Dispensation (OSD) introduced an occupation specific remuneration and career progression dispensation for Education Therapists, Counsellors and Psychologists employed in public education. Paragraph 5.1.10 of ELRC Collective Agreement 1 of 2012 has been incorporated into Chapter B.3.5.5 of Personnel Administrative Measures (PAM) (12 February 2016)
6. The purpose was to provide within the OSD for:
• Career pathing opportunities based on competencies, experience and performance;
• Pay progression within the relevant grades (scales) based on performance;
• Grade progression, where applicable, based on performance;
• Recognition of appropriate experience for the purposes of grade progression;
• Recognition of performance for accelerated progression to higher grades and pay progression within a salary grade.
7. The following information in respect of the applicants were common cause:
7.1 Dorfling, A (Persal number: 51769131)
There is sufficient proof of previous service to be appointed as Education Therapist Grade II with effect 01/06/2014. Non-payment of Pay Progression for 2017, 2018 and 2019 to be addressed with IQMS section (Scores were submitted and loaded on PERSAL). The Applicant is entitled to an amount of R 275 983.00 as calculated by the parties.
7.2 Goliath, TD (Persal number: 51780640)
Without service in private practice sufficient service to be appointed as Education Therapist Gr II , with effect 9/06/2014. In order to expedite proceedings, Applicant has submitted written confirmation to forfeit periods of private practice and would not be prejudiced by same. Non-payment of pay progression for 2017, 2018 and 2019 was addressed with IQMS section and approval for payment was obtained. The Applicant is entitled to an amount of R 275 983.00 as calculated by the parties.
7.3 Le Roux, A (Persal number: 83418423)
The rank at appointment is correct - no provision made for recognition of service for the purpose of earlier grade progression than allowed for by collective agreement namely 10 years after appointment. Qualify for Pay Progression 1/7/2019 - not received. - Non-payment was addressed by IQMS section and approval for payment obtained. The Applicant is entitled to an amount of R 1 089.00 as calculated by the parties.
7.4 Van Der Merwe, L (Persal number: 54620082)
Appointed at Health on 01/01/2008. Collective Agreement applied while appointed under Dept Health transferred to Education - Rank incorrect on PERSAL as Occupational Therapist and not Education Therapist - on PERSONAL notch – Scale code, Rank, Notch type etc to be rectified by HR. To submit proof that IQMS scores were submitted to IQMS section - the non-implementation could be the result of the incorrect rank on PERSAL. Matter to be addressed between HR and IQMS. The Applicant is entitled to an amount of R 33 993.30 as calculated by the parties.
7.5 Van Wyngaard-Stofberg, C (Persal number: 56060335)
Without service in private practice enough service to be appointed as Education Therapist Gr II
with effect 1/07/2014. In order to expedite proceedings, Applicant has submitted written confirmation to forfeit periods of Private Practice and would not be prejudiced by same. Non-payment of pay progression for 2017, 2018 and 2019 was addressed with IQMS section and approval granted. The Applicant is entitled to an amount of R 275 983.00 as calculated by the parties.
7.6 Venter, M (Persal number: 55363954)
Rank at appointment correct - no provision made for recognition of service for the purpose of earlier Grade Progression than allowed for by collective agreement namely 10 years after appointment. Qualify for Pay Progression 1/7/2017 - not received. Non-payment was addressed by IQMS section and approval obtained. Transferred to Department of Health, with effect 1/07/2019. Applicant will not receive pay progression for 1/07/2019 from the Respondent. The Applicant is entitled to an amount of R 11 703.00 as calculated by the parties.
7.7 Whitehouse, J.L (Persal number: 51770083)
Appointed at Health on 01/01/2015 as Grade II based on appointment requirements as contained in Applicant to be appointed as Education Therapist Grade III, with effect 1/05/2016. She would then become eligible for Pay Progression 1/7/2019 Non-payment was addressed by IQMS section and approval granted. The Applicant is entitled to an amount of R 212 978.75 as calculated by the parties.
7.8 Coetzee, M (Persal number: 54322901)
Rank at appointment correct - no provision made for recognition of service for the purpose of earlier Grade Progression than allowed for by collective agreement namely 10 years after appointment. Qualify for Pay Progression 1/7/2021 - Score for 2018 assessment year not loaded - to provide proof that it was submitted to IQMS section. The Applicant is not entitled to any amount as agreed by the parties.
7.9 Van Remootere, VK (Persal number: 54324874)
Rank at appointment correct - no provision made for recognition of service for the purpose of earlier Grade Progression than allowed for by collective agreement namely 10 years after appointment. Qualify for Pay Progression 1/7/2021 - Score for 2018 assessment year not loaded - to provide proof that it was submitted to IQMS section. The Applicant is not entitled to any amount as agreed by the parties.
8. Clause 69.1 also provides that the General Secretary may promote, monitor and enforce compliance with any Collective Agreement of the Council, within the scope of the Council and in terms of this section 33 and section 33A of the Act.
9. Clause 69.2 provides that a Collective Agreement of the Council is deemed to include:
9.1 Any basic condition of employment which constitutes a term of a contract of employment of any employee covered by the Collective Agreement in terms of section 49(1) of the BCEA; and
9.2 subject to clause 7.5, any other basic condition in the BCEA applicable to an employee falling within the scope of the Council where such employee's employer is a party to the Council;
10. In terms of the Labour Relations Act, 1995(as amended), a collective agreement is a written agreement concerning the terms and conditions of employment or any other matters of mutual interest that are concluded by one or more registered trade unions on the one hand and one or more employers on the other. Both parties are bound by a collective agreement.
11. In CUSA v Tao Ying Metal Industries and Other [2009] 1 BLLR 1 (CC) at paras [55] and [56].,the Constitutional Court emphasized the importance and the rights that Collective Agreements give effect to as follows:
‘[55] The issues raised in this case are matters of public interest. This case also concerns the enforcement of a bargaining council agreement which sets out minimum wages and other conditions of employment and requires us to apply the provisions of the LRA. The right of every trade union and every employers’ organisation and employer to engage in collective bargaining is entrenched in section 23(5) of the Constitution. The concomitant of the right to engage in collective bargaining is the right to insist on compliance with the provisions of the collective agreement which is the product of the collective bargaining process.
[56] Compliance with a collective bargaining agreement is crucial not only to the right to bargain collectively through the forum constituted by the bargaining council, but it is also crucial to the sanctity of collective bargaining agreements. The right to engage in collective bargaining and to enforce the provisions of a collective agreement is an especially important right for the workers who are generally powerless to bargain individually over wages and conditions of employment. The enforcement of collective agreements is vital to industrial peace and it is indeed crucial to the achievement of fair labour practices which is constitutionally entrenched. The enforcement of these agreements is indeed crucial to a society which, like ours, is founded on the rule of law.’
12. The respondent must comply with the terms and conditions in the collective agreement as well as with PAM that form part of the applicants conditions of service.
AWARD
13. The respondent, Department of Education: Eastern Cape is ordered comply with the terms and conditions of the mentioned collective agreement as well the relevant provisions as contained in PAM .
14. The applicants are entitled to the respective amounts as outlined above.
15. The respondent, the Department of Education, Eastern Cape is ordered to pay the applicants
as follows:
NO. SURNAME AND INITIALS PERSAL NUMBER AMOUNT DUE TO APPLICANT
1 Dorfling, A 51769131 R 275 983.00
2 Goliath, T. D 51780640 R 275 983.00
3 Le Roux, A 83418423 R 1 089.00
4 Van Der Merwe, L 54620082 R 33 993.30
5 Van Wyngaard-Stofberg, C 56060335 R 275 983.00
6 Venter, M 55363954 R 11 703.00
7 Whitehouse, J. L 51770083 R 212 978.75
8 Coetzee, M 54322901 NIL
9 Van Remootere, V. K 54324874 NIL
16. Payments of the above-mentioned amounts should be made on or before 30 November 2019.
Signature:
Commissioner: Hadley Saayman
Sector: Education