Case Number: PSES 754-16/17 FS
Province: Free State
Applicant: SAOU obo A.Taylor
Respondent: Department of Education Free State
Issue: Unfair Labour Practice - Interpretation of collective agreements
Venue: Free State Department of Education offices in Bloemfontein.
Award Date: 12 October 2019
Arbitrator: M.A. HAWYES
Case Number: PSES 754-16/17 FS
Commissioner: M.A. HAWYES
Date of Award: 12TH October 2019
In the ARBITRATION between
SAOU obo A.Taylor
Free State Department of Education (First Respondent)
Union/Applicant’s representative: H. Human
Telephone: 076 013 8150
Telefax: 051- 430 1564
Respondent’s representative: V. Gubuza
Telephone: 051- 404 4155
DETAILS OF HEARING AND REPRESENTATION
1. The case was scheduled for arbitration on the 30th September 2019 at the Free State Department of Education offices in Bloemfontein.
2. Ms. H. Human from the trade union SAOU represented the Applicant.
3. Mr. V. Gubuza, a labour relations official, represented the Respondent.
4. After hearing oral submissions from the parties I agreed that the issue was uniquely defined and could be dealt with without the need for hearing oral evidence. The parties agreed to exchange written closing to each other and to me by the 10th October 2019.My award now follows within the prescribed time limits.
5. I should mention that the matter came before after having been arbitrated before another Commissioner whose decision was taken on review by the Respondent. The Labour Court directed that the matter be referred back to the ELRC to be heard before another Panelist.
ISSUE IN DISPUTE
6. The correct interpretation to be given to Clauses (a) and (c) under the heading “Re-grading of schools” as contained in Collective Agreement no 3 of 2006 which was signed into effect on the 16th March 2006.
BACKGROUND TO THE ISSUE IN DISPUTE
7. The Applicant is a principal at the Brebner Secondary School and has been since before the 1st August 1994.
8. It is common cause that Brebner Secondary School received their Final Staff Establishment for Educators 2014 on the 10th September 2013 which was 50 posts.
9. It is also common cause that on the 19th September 2014 Brebner Secondary School received their Final Staff Establishment for Educators 2015 which was 52 posts.
10. According to ELRC Collective Agreement 3 of 2006 (para (a)) a school is upgraded to a higher grading level if ,for two consecutive years, the educator post allocation to the school reaches or exceeds the number of posts required for upgrading the school. It is common cause according to the cited resolution that a P4 school (which Brebner Secondary is) has an allocated quota of 47 posts.
11. ELRC Resolution 3 of 2006 (para (c)) stipulates that regarding of schools should be done on an annual basis and should be effective from the 1st January , based on the schools post establishments of the previous year and of the current year.
SURVEY OF APPLICANT’S EVIDENCE AND ARGUMENT
12. The union submitted that Brebner School qualified to be upgraded in January 2015 and not January 2016 and therefore that the Applicant qualified for a higher salary notch from the date of the upgrading of the school namely January 2015. The salary notch increase amount from the 1st January 2015 to the 1st January 2016 (when the Applicant’s notch was effectively increased) totals R85 113-00.
13. The union argued further that the Collective Agreement states clearly that the post establishment should be held for “for two consecutive years” and not after two consecutive years.
14. Once the post establishment list is supplied to the school the number of posts cannot change during that year in other words the number of posts cannot be reduced for that specific year.
SURVEY OF RESPONDENT’S EVIDENCE AND ARGUMENT
15. The Respondent disagreed with the submissions of the trade union and argued that clause (a) of Collective Agreement 3 of 2006 should effectively be read to mean after two consecutive years.
ANALYSIS OF EVIDENCE AND ARGUMENT
16. In determining the correct interpretation to be given to legislation it is often necessary to examine surrounding clauses which may provide clues on the thinking of the drafters of the legislation on specific aspects.
17. As it turns out clauses (d) and (€) under the heading “Re-grading of schools” provide valuable insights in this regard.
18. Clause (d) reads as follows: “ Where the enrolment of a school increases or decreases substantially, affecting the post allocation to the school substantially, and sufficient evidence exists that the new enrolment and accompanying post allocation will be maintained for a reasonable period, the head of the department may immediately re-grade the school in accordance with the relevant post allocation.”
19. Clause (€) contains a similar clause and reads “the head of the department may grade a new school in accordance with the enrolment and accompanying post allocation that the school is expected to maintain for a reasonable period.
20. It is clear from clauses (d) and (€) that based on reasonable evidence at a certain point in time that enrolment may be re-graded immediately by the head of the department (no waiting period).
21. From the common cause facts (reasonable evidence) Brebner Secondary School qualified to be upgraded with two established years of exceeding the allocated post quota of 47.
22. Based upon these facts the head of department could immediately re-grade the school. Immediately in this context means the 1st January of the next year which in this case would be the 1st January 2015.
23. I find that a re-grading after two consecutive years interpretation is not consistent with the wording of all the relevant provisions of Collective Agreement 3 of 2006 dealing with re-grading.
24. The Respondent is ordered to immediately re-grade Brebner Secondary School retrospectively from the 1st January 2015.
25. The Applicant likewise qualified to be up-graded in his principal’s post from the 1st January 2015.
26. The Respondent is ordered is ordered to pay the Applicant the difference in his notch for the period from the 1st January 2015 to the 31st December 2015 which amounts to R85 113-00.
27. The amount of R85 113-00 (less statutory deductions) must be paid to the Applicant upon or before the 30th November 2019.