PSES424-19/20GP
PSES424-19/20GP
Award Date:
7 November 2019
Case Number: PSES424-19/20GP
Province: Gauteng
Applicant: Philemon Nchoe and Itumeleng Medichane
Respondent: Westcol TVET College
Issue: Unfair Labour Practice - Interpretation of collective agreements
Venue: Westcol TVET College of Education Boardroom, 42 Johnstone Street, Randfontein.
Award Date: 7 November 2019
Arbitrator: Paul Phundu
Panellist: Paul Phundu
Case No: PSES424-19/20GP
Date of Award: 7 November 2019
In the matter between:
Philemon Nchoe and Itumeleng Medichane Applicants
And
Westcol TVET College Respondent
Union/Applicant’s representative: Mr S. Mashobane (Nehawu)
Union/Applicants address:
Randfontein Campus
Westcol College, Randfontein
Cell: 082 508 5299
Respondent’s representative: Mr D. Phaka
Respondent’s address:
42 Johnstone Street
Westcol TVET College
Randfontein
Cell:082 511 3177
DETAILS OF HEARING AND REPRESENTATION
[1] This is an arbitration award issued in terms of Section 138 of the Labour Relations Act 66 of 1995 (as amended) and hereinafter referred to as the LRA. The matter was set-down for arbitration in terms of Section 24 (2), 24 (5) of the LRA. That is, interpretation and application of a collective agreement. The collective agreement being Resolution number 3 of 2013. The Resolution is about establishing parity between conditions of service (benefits) of College-appointed Lecturers in Public Further Education Training Colleges with those employed in the Public Service.
[2] The arbitration was conducted on 1 November 2019 at Westcol TVET College of Education Boardroom, 42 Johnstone Street, Randfontein.
[3] The Applicants were present at the arbitration and were represented by, Mr Stanley Mashobane, Union Official on behalf of Nehawu. The Respondent was represented by, Mr Doctor Phaka, Deputy Principal- Corporate Services.
[4] The proceedings were conducted in English and were digitally recorded. I also kept handwritten notes.
[5] Both parties agreed and accepted bundle of documents into evidence, to which neither party recorded any objection.
ISSUE TO BE DECIDED
[6] I am called upon to determine whether or not the Respondent has correctly interpreted and applied Resolution number 3 of 2013. i.e. establishing parity between conditions of service benefits of College Lecturers and those employed in the public service.
BACKGROUND TO THE ISSUE
[7] The Applicants are in the employ of the Westcol TVET College as a Lecturers. Mr Itumeleng Medichane joined the College on a fixed term contract on 27 August 2014 while Mr Philemon Nchoe joined the College on a fixed term contract on 02 February 2015. Both have since been absorbed into permanent positions as Lecturers on 5 December 2016. They alleged that the Respondent had failed to pay the benefits due to them. The benefits in question are Medical Aid and Pension Fund. They both enjoy Housing Allowance as a benefit. They declared a dispute concerning an interpretation and/or application of a collective agreement (Resolution 3/2013).
[8] Conciliation failed and the certificate of non-resolution of the dispute was issued and no pre-arbitration minutes submitted to the Council. The matter proceeded to arbitration. In terms of relief, the Applicants wished to be paid Medical Aid Allowance as well as Pension Fund Allowance.
SURVEY OF EVIDENCE AND ARGUMENT
ARGUMENT FOR THE APPLICANT
[9] The Applicants had one witness in support of their case, their evidence was briefly as follows:
[10] Mr Itumeleng Medichane testified under oath that he is employed by the Respondent as a Lecturer. He stated that the Respondent incorrectly interpreted and applied Resolution 3 of 2013.
[11] Since their permanent appointment, the Respondent has failed to pay all the benefits due to them. In particular, Medical Aid and Pension Fund. By doing so, the Respondent has contravened clause 8.5 of the Resolution. Clause 8.5 stipulates that: “Benefit means access to housing allowance, pension fund, medical aid subsidy and 13th cheque or calculated as a 37% in lieu of benefits”.
[12] He said they presently enjoy housing allowance. However, they are not enjoying medical aid subsidy and pension fund subsidy. They believe pension fund and medical allowance should be enjoyed automatically as long as the employee is employed permanently. He said, they were not informed that they must apply for pension fund and medical aid subsidy.
[13] Under cross-examination the applicant confirmed that they applied for housing allowance and this was granted to them upon application.
ARGUMENT FOR THE RESPONDENT
[14] The Respondent had one witness in support of its case. The evidence was briefly as follows:
[15] Mr Doctor Phaka testified under oath that he is employed by the Respondent as a Deputy Principal-Corporate Services. The rules and regulations stipulate that the acquisition of benefits is on condition that the employee applies for the benefits. In this case the Applicants did not apply for pension fund subsidy and medical aid subsidy. Previously, the Applicants applied for housing allowance subsidy and the benefit was granted to them. So, the Applicants knew and still are aware what to do in order to acquire the benefits. They must apply for benefits.
[16] Under cross-examination the Respondent stated that the Applicants did not apply for pension fund and medical aid benefits. Hence they are not enjoying the benefits. Both Applicants are entitled to enjoy pension fund as well as medical aid subsidy provided they apply for these benefits. The benefits are not automatic. The Respondent did not contravene clause 8.5 of Resolution 3 of 2013.
ANALYSIS OF EVIDENCE AND ARGUMENT
[17] The collective agreement being Resolution number 3 of 2013. The Resolution is about establishing parity between conditions of service (benefits) of College appointed Lecturers in Public Further Education Training Colleges with those employed in the Public Service.
[18] Clause 8.5 of the Resolution stipulates that: “Benefit means access to housing allowance, pension fund, medical aid subsidy and 13th cheque or calculated as a 37% in lieu of benefits”.
[19] It is common cause that the Applicants are employed as Lecturers by the Respondent.
[20] I am not convinced that the Applicants were not aware that they must apply for benefits. The reason I say so is because they conceded that they had applied for housing allowance and the benefit was granted to them. Therefore, I am persuaded by the Respondent’s argument that any benefit, for it to be approved, there must be an application for that benefit from the Applicant. It is my finding that the Applicants did not apply for pension fund and medical aid subsidy hence they are not enjoying the benefits. I believe that the onus is on the Applicants to express an interest in enjoying the benefits. I believe there is a reason and a purpose for the application .It gives a choice to those employees who do not want to be part of a benefit or subsidy.
[21] The Applicants contradicted themselves, if they applied for housing allowance as a benefit, common sense dictates that they must also apply for pension fund and medical aid subsidy as a benefit if they are interested. I reject the Applicant’s argument that these benefits should be automatic.
[22] I am convinced by the Respondent’s argument that in order to enjoy the benefits, there must be an application expressing an interest in enjoying the benefits. I am convinced by the Respondent’s argument that they did not contravene clause 8.5 of Resolution 3 of 2013. It is my view that if the Applicants managed to apply for housing allowance benefit by applying, then, they must again follow the same process or procedure to acquire pension and medical aid benefits.
[23] It is my finding that the Respondent had correctly interpreted and applied ELRC Resolution 3 of 2013.
AWARD
[24] The Applicants have failed to discharge the onus that the Respondent had incorrectly interpreted and applied ELRC Resolution 3 of 2013.
[25] The application is dismissed and the Applicants are not entitled to any relief.
ELRC PART-TIME PANELLIST: PAUL PHUNDU
Province: Gauteng
Applicant: Philemon Nchoe and Itumeleng Medichane
Respondent: Westcol TVET College
Issue: Unfair Labour Practice - Interpretation of collective agreements
Venue: Westcol TVET College of Education Boardroom, 42 Johnstone Street, Randfontein.
Award Date: 7 November 2019
Arbitrator: Paul Phundu
Panellist: Paul Phundu
Case No: PSES424-19/20GP
Date of Award: 7 November 2019
In the matter between:
Philemon Nchoe and Itumeleng Medichane Applicants
And
Westcol TVET College Respondent
Union/Applicant’s representative: Mr S. Mashobane (Nehawu)
Union/Applicants address:
Randfontein Campus
Westcol College, Randfontein
Cell: 082 508 5299
Respondent’s representative: Mr D. Phaka
Respondent’s address:
42 Johnstone Street
Westcol TVET College
Randfontein
Cell:082 511 3177
DETAILS OF HEARING AND REPRESENTATION
[1] This is an arbitration award issued in terms of Section 138 of the Labour Relations Act 66 of 1995 (as amended) and hereinafter referred to as the LRA. The matter was set-down for arbitration in terms of Section 24 (2), 24 (5) of the LRA. That is, interpretation and application of a collective agreement. The collective agreement being Resolution number 3 of 2013. The Resolution is about establishing parity between conditions of service (benefits) of College-appointed Lecturers in Public Further Education Training Colleges with those employed in the Public Service.
[2] The arbitration was conducted on 1 November 2019 at Westcol TVET College of Education Boardroom, 42 Johnstone Street, Randfontein.
[3] The Applicants were present at the arbitration and were represented by, Mr Stanley Mashobane, Union Official on behalf of Nehawu. The Respondent was represented by, Mr Doctor Phaka, Deputy Principal- Corporate Services.
[4] The proceedings were conducted in English and were digitally recorded. I also kept handwritten notes.
[5] Both parties agreed and accepted bundle of documents into evidence, to which neither party recorded any objection.
ISSUE TO BE DECIDED
[6] I am called upon to determine whether or not the Respondent has correctly interpreted and applied Resolution number 3 of 2013. i.e. establishing parity between conditions of service benefits of College Lecturers and those employed in the public service.
BACKGROUND TO THE ISSUE
[7] The Applicants are in the employ of the Westcol TVET College as a Lecturers. Mr Itumeleng Medichane joined the College on a fixed term contract on 27 August 2014 while Mr Philemon Nchoe joined the College on a fixed term contract on 02 February 2015. Both have since been absorbed into permanent positions as Lecturers on 5 December 2016. They alleged that the Respondent had failed to pay the benefits due to them. The benefits in question are Medical Aid and Pension Fund. They both enjoy Housing Allowance as a benefit. They declared a dispute concerning an interpretation and/or application of a collective agreement (Resolution 3/2013).
[8] Conciliation failed and the certificate of non-resolution of the dispute was issued and no pre-arbitration minutes submitted to the Council. The matter proceeded to arbitration. In terms of relief, the Applicants wished to be paid Medical Aid Allowance as well as Pension Fund Allowance.
SURVEY OF EVIDENCE AND ARGUMENT
ARGUMENT FOR THE APPLICANT
[9] The Applicants had one witness in support of their case, their evidence was briefly as follows:
[10] Mr Itumeleng Medichane testified under oath that he is employed by the Respondent as a Lecturer. He stated that the Respondent incorrectly interpreted and applied Resolution 3 of 2013.
[11] Since their permanent appointment, the Respondent has failed to pay all the benefits due to them. In particular, Medical Aid and Pension Fund. By doing so, the Respondent has contravened clause 8.5 of the Resolution. Clause 8.5 stipulates that: “Benefit means access to housing allowance, pension fund, medical aid subsidy and 13th cheque or calculated as a 37% in lieu of benefits”.
[12] He said they presently enjoy housing allowance. However, they are not enjoying medical aid subsidy and pension fund subsidy. They believe pension fund and medical allowance should be enjoyed automatically as long as the employee is employed permanently. He said, they were not informed that they must apply for pension fund and medical aid subsidy.
[13] Under cross-examination the applicant confirmed that they applied for housing allowance and this was granted to them upon application.
ARGUMENT FOR THE RESPONDENT
[14] The Respondent had one witness in support of its case. The evidence was briefly as follows:
[15] Mr Doctor Phaka testified under oath that he is employed by the Respondent as a Deputy Principal-Corporate Services. The rules and regulations stipulate that the acquisition of benefits is on condition that the employee applies for the benefits. In this case the Applicants did not apply for pension fund subsidy and medical aid subsidy. Previously, the Applicants applied for housing allowance subsidy and the benefit was granted to them. So, the Applicants knew and still are aware what to do in order to acquire the benefits. They must apply for benefits.
[16] Under cross-examination the Respondent stated that the Applicants did not apply for pension fund and medical aid benefits. Hence they are not enjoying the benefits. Both Applicants are entitled to enjoy pension fund as well as medical aid subsidy provided they apply for these benefits. The benefits are not automatic. The Respondent did not contravene clause 8.5 of Resolution 3 of 2013.
ANALYSIS OF EVIDENCE AND ARGUMENT
[17] The collective agreement being Resolution number 3 of 2013. The Resolution is about establishing parity between conditions of service (benefits) of College appointed Lecturers in Public Further Education Training Colleges with those employed in the Public Service.
[18] Clause 8.5 of the Resolution stipulates that: “Benefit means access to housing allowance, pension fund, medical aid subsidy and 13th cheque or calculated as a 37% in lieu of benefits”.
[19] It is common cause that the Applicants are employed as Lecturers by the Respondent.
[20] I am not convinced that the Applicants were not aware that they must apply for benefits. The reason I say so is because they conceded that they had applied for housing allowance and the benefit was granted to them. Therefore, I am persuaded by the Respondent’s argument that any benefit, for it to be approved, there must be an application for that benefit from the Applicant. It is my finding that the Applicants did not apply for pension fund and medical aid subsidy hence they are not enjoying the benefits. I believe that the onus is on the Applicants to express an interest in enjoying the benefits. I believe there is a reason and a purpose for the application .It gives a choice to those employees who do not want to be part of a benefit or subsidy.
[21] The Applicants contradicted themselves, if they applied for housing allowance as a benefit, common sense dictates that they must also apply for pension fund and medical aid subsidy as a benefit if they are interested. I reject the Applicant’s argument that these benefits should be automatic.
[22] I am convinced by the Respondent’s argument that in order to enjoy the benefits, there must be an application expressing an interest in enjoying the benefits. I am convinced by the Respondent’s argument that they did not contravene clause 8.5 of Resolution 3 of 2013. It is my view that if the Applicants managed to apply for housing allowance benefit by applying, then, they must again follow the same process or procedure to acquire pension and medical aid benefits.
[23] It is my finding that the Respondent had correctly interpreted and applied ELRC Resolution 3 of 2013.
AWARD
[24] The Applicants have failed to discharge the onus that the Respondent had incorrectly interpreted and applied ELRC Resolution 3 of 2013.
[25] The application is dismissed and the Applicants are not entitled to any relief.
ELRC PART-TIME PANELLIST: PAUL PHUNDU