PSES 299-19/20 EC
PSES 299-19/20 EC
Award Date:
11 November 2019
Case Number: PSES 299-19/20 EC
Province: Eastern Cape
Applicant: NAPTOSA obo Mabece N. G
Respondent: 1st Respondent The HOD (SG)- Eastern Cape Department of Education and 2nd Respondent Department of Basic Education –Eastern Cape
Issue: Unfair Labour Practice - Interpretation of collective agreements
Venue: the District Offices of the Department of Education in Port Elizabeth.
Award Date: 11 November 2019
Arbitrator: Hadley Saayman
Case Number: PSES 299-19/20 EC
Commissioner: Hadley Saayman
Date: 11 November 2019
In the ARBITRATION between
(Union/Applicant)
NAPTOSA obo Mabece N. G
And
The HOD (SG)- Eastern Cape Department of Education: 1st Respondent
Department of Basic Education –Eastern Cape : 2nd Respondent
(Respondent)
Applicant’s representative: Mr A Adams
Applicant’s address: 28 6th Avenue
Newton park
Port Elizabeth
6036
Telephone: 041- 364 0399
Telefax:
E-mail: antona@naptosa.org.za
Respondent’s representative: Ms A Slabbert/ Ms M Coetzee
Respondent’s address: Department of Education-EC
Private Bag X0032
Bisho
5606
Telephone: 040 608 4540
Telefax: 040 608 4313
E-mail: Ansie68@mweb.co.za
DETAILS OF HEARING AND REPRESENTATION
1. This matter came before the ELRC in terms Section 24(5) of the Labour Relations Act, 66 of 1995 read with Clause 69 of Part C; Dispute Resolution Procedures of the ELRC Constitution and was set down for Arbitration on 25 October 2019 at the District Offices of the Department of Education in Port Elizabeth.
2. The Applicant was represented by Mr A Adams, an Union Official.
3. The Respondents were represented by Ms A Slabbert, a Labour Relations Officer and Ms Moria
Coetzee a Senior Education Specialist.
ISSUES TO BE DECIDED
4. I must determine whether the applicant was entitled to any amount owing by the Respondents
as a result of the ELRC Collective agreement 1 of 2012, Clause 5.1.10 on Recognition of relevant experience as well as Clause 5.1.12 on Translation measures.
SURVEY OF EVIDENCE
5. This is a summary of evidence considered, as provided for in terms of Section 138(7)(a) of the Act,
relevant to the dispute at hand.
APPLICANT’S EVIDENCE
6. The Applicant started teaching in 1976. In 2002 the Applicant was seconded to the ESSS section as an Education Psychologist. In 2008 the Applicant was rendering service as an education psychologist at Northern Lights Special School. An office-based vacancy was advertised for the position as an Education Psychologist grade II. The Applicant applied for the vacancy and was then duly appointed as an Education Psychologist grade II with effect 1 October 2016.
7. The Applicant requested that her years of experience as an education psychologist be recognised by the Department of Education and that she be remunerated accordingly.
8. The Applicant’s request is informed by the ELRC Collective agreement 1 of 2012 Clause 5.1.10 on
Recognition of relevant experience as well as Clause 5.1.12 on Translation measures.
9. The Applicant further claims that she is entitled to salary progression for the Period 1July 2010 - 30 September 2016 qualifies and that she has complied with the prescribed requirements for such pay progression.
10. The Applicant submitted that despite all her efforts to have the matter be resolved internally, the Respondent failed or refused to comply with the provisions contained in the aforesaid collective agreement.
11. The Applicant’s claim is calculated as follows:
PERIOD OLD
NOTCH REVIEWED
NOTCH CALCULATED AMOUNT
1/7/2010 - 30/4/2011 291 822,00 392 079,00 83 547,50
1/5/2011 - 30/6/2011 311 667,00 418 740,00
1/7/2011 - 30/4/2012 311 667,00 418 740,00 107 073,00
1/5/2012 - 30/6/2012 333 483,00 448 053,00
1/7/2012 - 31/3/2013 333 483,00 448 053,00 105 022,50
1/4/2013 - 30/6/2013 355 494,00 477 624,00
1/7/2013 - 31/3/2014 355 494,00 477 624,00 122 130,00
1/4/2014 - 30/6/2014 381 801,00 512 967,00 32 791,50
1/7/2014 - 31/3/2015 385 605,00 520 662,00 101 292,75
1/4/2015 - 30/6/2015 412 596,00 557 109,00 36 128,25
1/7/2015 - 31/3/2016 416 721,00 565 470,00 111 561,75
1/4/2016 - 30/6/2016 448 392,00 608 445,00 40 013,25
1/7/2016 - 30/9/2016 448 392,00 608 445,00 40 013,25
Total 779 573,75
12. The Applicant therefore claims that she is owed by the Respondents an amount of R 779 573.75.
RESPONDENT’S EVIDENCE
13. The Respondent submitted that there are quite a number of these applicants with the same or similar claims. In order to implement properly, the files of applicants had to be verified and audited. Once the files have been audited, approval for any salary adjustments should be obtained. Since the periods claimed is far back, the relevant officials can only implement any salary adjustments, once an exception report is obtained from its head office in Zwelitzia.
14. The Respondent submitted that the Applicant was overpaid for OSD as follows:
15. The Respondent further submitted that the Applicant’s salary was adjusted with effect from 1
October 2019.
ANALYSIS OF EVIDENCE AND ARGUMENT
16. The objectives of ELRC Collective agreement 1 of 2012 are as follows:
2.1 To give effect to par 4 of PSCBC Resolution 1 of 2007.
2.2 To introduce an occupation specific remuneration and career progression dispensation (OSD)
for inter alia, education psychologists.
2.3 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.
2.4 To introduce differentiated salary scales for education for education psychologists based on a
new remuneration structure.
2.5 To provide for translation measures to facilitate the implementation process.
2.6 To introduce a change in the pensionable composition of the total cost to employer packages
applicable to education therapists, psychologists and counsellors covered by this agreement.
17. The ELRC Collective agreement 1 of 2012 made provision for translation from the existing dispensation to appropriate salary grades attached to the OSD based on the principle that no serving education psychologist’s salary position (notch or package) will be less favourable with the implementation of the revised salary and career progression dispensation.
18. In Western Cape Department of Health v Van Wyk and Others, (2014) 35 ILJ 3078 (LAC) at
para 22 , the Labour Appeal Court held:
„In interpreting the collective agreement the arbitrator is required to consider the aim, purpose and all the terms of the collective agreement. Furthermore, the arbitrator is enjoined to bear in mind that a collective agreement is not like an ordinary contract. Since the arbitrator derives all his/her powers from the Act he/she must at all times take into account the primary objects of the Act... “
The LAC went on to hold:
„The primary objects of the Act are better served by an approach which is practical to the interpretation of such agreements, namely to promote the effective, fair and speedy resolution of labour disputes. In addition, it is expected of the arbitrator to adopt an interpretation and application that is fair to the parties.‟
19. 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.’
20. The referral of the dispute in question refers to Enforcement of Collective Agreement 8 of 2003.
Clause 69 of the dispute resolution procedures of the ELRC provides for the enforcement of
collective agreements.
21. The respondent must comply with the terms and conditions of the collective agreement.
22. The Applicant conceded that the Respondent overpaid an amount of R44 282.75 to her in respect
of OSD for the period from 2008 until 2010.
23. Considering all the above, the applicant, N Mabece (persal no.11079843) is entitled to salary
progression for the Period 1July 2010 - 30 September 2016 and is entitled to an amount of
R 735 291,75 (Seven Hundred and Thirty-Five Thousand Two hundred and Ninety-One Rand
and Seventy-Five Cents).
AWARD
24. The Respondent, Department of Education-EC is ordered to pay the applicant, N. Mabece
persal no. 11079843) salary progression in the amount of R 735 291,75 (Seven Hundred and Thirty-Five Thousand Two Hundred and Ninety-One Rand and Seventy-Five Cents).
25. The above-mentioned amount would be subjected to normal statutory deductions.
26. The Head of The Department of Education-EC, (HOD) is ordered to ensure that payment be
effected to the applicant, N. Mabece (persal no. 11079843) by no later than 20 February 2020.
Signature:
Commissioner: Hadley Saayman
Sector: Education
Province: Eastern Cape
Applicant: NAPTOSA obo Mabece N. G
Respondent: 1st Respondent The HOD (SG)- Eastern Cape Department of Education and 2nd Respondent Department of Basic Education –Eastern Cape
Issue: Unfair Labour Practice - Interpretation of collective agreements
Venue: the District Offices of the Department of Education in Port Elizabeth.
Award Date: 11 November 2019
Arbitrator: Hadley Saayman
Case Number: PSES 299-19/20 EC
Commissioner: Hadley Saayman
Date: 11 November 2019
In the ARBITRATION between
(Union/Applicant)
NAPTOSA obo Mabece N. G
And
The HOD (SG)- Eastern Cape Department of Education: 1st Respondent
Department of Basic Education –Eastern Cape : 2nd Respondent
(Respondent)
Applicant’s representative: Mr A Adams
Applicant’s address: 28 6th Avenue
Newton park
Port Elizabeth
6036
Telephone: 041- 364 0399
Telefax:
E-mail: antona@naptosa.org.za
Respondent’s representative: Ms A Slabbert/ Ms M Coetzee
Respondent’s address: Department of Education-EC
Private Bag X0032
Bisho
5606
Telephone: 040 608 4540
Telefax: 040 608 4313
E-mail: Ansie68@mweb.co.za
DETAILS OF HEARING AND REPRESENTATION
1. This matter came before the ELRC in terms Section 24(5) of the Labour Relations Act, 66 of 1995 read with Clause 69 of Part C; Dispute Resolution Procedures of the ELRC Constitution and was set down for Arbitration on 25 October 2019 at the District Offices of the Department of Education in Port Elizabeth.
2. The Applicant was represented by Mr A Adams, an Union Official.
3. The Respondents were represented by Ms A Slabbert, a Labour Relations Officer and Ms Moria
Coetzee a Senior Education Specialist.
ISSUES TO BE DECIDED
4. I must determine whether the applicant was entitled to any amount owing by the Respondents
as a result of the ELRC Collective agreement 1 of 2012, Clause 5.1.10 on Recognition of relevant experience as well as Clause 5.1.12 on Translation measures.
SURVEY OF EVIDENCE
5. This is a summary of evidence considered, as provided for in terms of Section 138(7)(a) of the Act,
relevant to the dispute at hand.
APPLICANT’S EVIDENCE
6. The Applicant started teaching in 1976. In 2002 the Applicant was seconded to the ESSS section as an Education Psychologist. In 2008 the Applicant was rendering service as an education psychologist at Northern Lights Special School. An office-based vacancy was advertised for the position as an Education Psychologist grade II. The Applicant applied for the vacancy and was then duly appointed as an Education Psychologist grade II with effect 1 October 2016.
7. The Applicant requested that her years of experience as an education psychologist be recognised by the Department of Education and that she be remunerated accordingly.
8. The Applicant’s request is informed by the ELRC Collective agreement 1 of 2012 Clause 5.1.10 on
Recognition of relevant experience as well as Clause 5.1.12 on Translation measures.
9. The Applicant further claims that she is entitled to salary progression for the Period 1July 2010 - 30 September 2016 qualifies and that she has complied with the prescribed requirements for such pay progression.
10. The Applicant submitted that despite all her efforts to have the matter be resolved internally, the Respondent failed or refused to comply with the provisions contained in the aforesaid collective agreement.
11. The Applicant’s claim is calculated as follows:
PERIOD OLD
NOTCH REVIEWED
NOTCH CALCULATED AMOUNT
1/7/2010 - 30/4/2011 291 822,00 392 079,00 83 547,50
1/5/2011 - 30/6/2011 311 667,00 418 740,00
1/7/2011 - 30/4/2012 311 667,00 418 740,00 107 073,00
1/5/2012 - 30/6/2012 333 483,00 448 053,00
1/7/2012 - 31/3/2013 333 483,00 448 053,00 105 022,50
1/4/2013 - 30/6/2013 355 494,00 477 624,00
1/7/2013 - 31/3/2014 355 494,00 477 624,00 122 130,00
1/4/2014 - 30/6/2014 381 801,00 512 967,00 32 791,50
1/7/2014 - 31/3/2015 385 605,00 520 662,00 101 292,75
1/4/2015 - 30/6/2015 412 596,00 557 109,00 36 128,25
1/7/2015 - 31/3/2016 416 721,00 565 470,00 111 561,75
1/4/2016 - 30/6/2016 448 392,00 608 445,00 40 013,25
1/7/2016 - 30/9/2016 448 392,00 608 445,00 40 013,25
Total 779 573,75
12. The Applicant therefore claims that she is owed by the Respondents an amount of R 779 573.75.
RESPONDENT’S EVIDENCE
13. The Respondent submitted that there are quite a number of these applicants with the same or similar claims. In order to implement properly, the files of applicants had to be verified and audited. Once the files have been audited, approval for any salary adjustments should be obtained. Since the periods claimed is far back, the relevant officials can only implement any salary adjustments, once an exception report is obtained from its head office in Zwelitzia.
14. The Respondent submitted that the Applicant was overpaid for OSD as follows:
15. The Respondent further submitted that the Applicant’s salary was adjusted with effect from 1
October 2019.
ANALYSIS OF EVIDENCE AND ARGUMENT
16. The objectives of ELRC Collective agreement 1 of 2012 are as follows:
2.1 To give effect to par 4 of PSCBC Resolution 1 of 2007.
2.2 To introduce an occupation specific remuneration and career progression dispensation (OSD)
for inter alia, education psychologists.
2.3 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.
2.4 To introduce differentiated salary scales for education for education psychologists based on a
new remuneration structure.
2.5 To provide for translation measures to facilitate the implementation process.
2.6 To introduce a change in the pensionable composition of the total cost to employer packages
applicable to education therapists, psychologists and counsellors covered by this agreement.
17. The ELRC Collective agreement 1 of 2012 made provision for translation from the existing dispensation to appropriate salary grades attached to the OSD based on the principle that no serving education psychologist’s salary position (notch or package) will be less favourable with the implementation of the revised salary and career progression dispensation.
18. In Western Cape Department of Health v Van Wyk and Others, (2014) 35 ILJ 3078 (LAC) at
para 22 , the Labour Appeal Court held:
„In interpreting the collective agreement the arbitrator is required to consider the aim, purpose and all the terms of the collective agreement. Furthermore, the arbitrator is enjoined to bear in mind that a collective agreement is not like an ordinary contract. Since the arbitrator derives all his/her powers from the Act he/she must at all times take into account the primary objects of the Act... “
The LAC went on to hold:
„The primary objects of the Act are better served by an approach which is practical to the interpretation of such agreements, namely to promote the effective, fair and speedy resolution of labour disputes. In addition, it is expected of the arbitrator to adopt an interpretation and application that is fair to the parties.‟
19. 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.’
20. The referral of the dispute in question refers to Enforcement of Collective Agreement 8 of 2003.
Clause 69 of the dispute resolution procedures of the ELRC provides for the enforcement of
collective agreements.
21. The respondent must comply with the terms and conditions of the collective agreement.
22. The Applicant conceded that the Respondent overpaid an amount of R44 282.75 to her in respect
of OSD for the period from 2008 until 2010.
23. Considering all the above, the applicant, N Mabece (persal no.11079843) is entitled to salary
progression for the Period 1July 2010 - 30 September 2016 and is entitled to an amount of
R 735 291,75 (Seven Hundred and Thirty-Five Thousand Two hundred and Ninety-One Rand
and Seventy-Five Cents).
AWARD
24. The Respondent, Department of Education-EC is ordered to pay the applicant, N. Mabece
persal no. 11079843) salary progression in the amount of R 735 291,75 (Seven Hundred and Thirty-Five Thousand Two Hundred and Ninety-One Rand and Seventy-Five Cents).
25. The above-mentioned amount would be subjected to normal statutory deductions.
26. The Head of The Department of Education-EC, (HOD) is ordered to ensure that payment be
effected to the applicant, N. Mabece (persal no. 11079843) by no later than 20 February 2020.
Signature:
Commissioner: Hadley Saayman
Sector: Education