Case Number: ELRC497-19/20EC
Province: Eastern Cape
Applicant: XAMESI THOKOZANI PHELO
Respondent: 1st Respondent DEPARTMENT OF HIGHER EDUCATION AND TRAININING and 2nd Respondent IKHALA TVET COLLEGE
Issue: Unfair Labour Practice - Interpretation of collective agreements
Award Date: 5 November 2020
Arbitrator: Mbulelo Safa
Case Number: ELRC497-19/20EC
Date of Award 05 November 2020
In the ARBITRATION between: -
XAMESI THOKOZANI PHELO
DEPARTMENT OF HIGHER EDUCATION AND TRAININING
IKHALA TVET COLLEGE
Applicant’s representative: Mr K Xamesi
Applicant’s Address: PO Box 25 Queenstown
E-mail email@example.com , firstname.lastname@example.org
1st Respondent’s Representative : Mr V Gidigidi
1st Respondent’s Address 123 Francis Baard Street, Pretoria
Telephone 012-3125911, 0627583273
2nd Respondent’s Representative: Ms P. Makhokha
2nd Respondent’s Address Zone D, Gwadana Drive, Ezibeleni, Queenstown
DETAILS OF THE HEARING AND REPRESENTATION
1. The Arbitration was held on the 24th August and 5th October 2020 and finally on the papers.
2. The Applicant, was represented by Mr K. Xamesi of Xamesi Attorneys, the First Respondent, was represented by Mr V. Gidigidi and the Second Respondent, represented by Ms Phindi Mkhokha.
ISSUES TO BE DECIDED
3. To interpret paragraph 3 of ELRC Collective Agreement 1 of 2011 and paragraph 4 of the annexure of ELRC Collective Agreement 1 of 2013 and to order the payment of the Applicant for examination duties if the interpretation suggests so.
BACKGROUND TO THE ISSUE
4. The Applicant is employed by the First Respondent and serving the Second Respondent as the Lecturer. In 2019 he was involved in the examination for learners where he was marking examination scripts for learners in Water and Waste Water Treatment and Plant Operation Theory and was not remunerated.
5. Unhappy with the decision of the Respondents not to pay him, the Applicant referred the dispute on the interpretation of paragraph 3 of ELRC Collective Agreement 1 of 2011 and paragraph 4 of the annexure of ELRC Collective Agreement 1 of 2013 read together with Chapter D of Personnel Administrative Measures (PAM).
6. The relief he is seeking is for the interpretation of the above-mentioned Collective Agreements and the ordering of the Respondents to remunerate him for the examination related duties in 2019.
SURVEY OF EVIDENCE AND ARGUMENT
7. After the Applicant has led oral evidence, the parties argued for and it was resolved that they make the case as a stated case. The parties were directed to submit their written arguments on specific dates.
APPLICANT’S EVEDENCE AND ARGUMENT
8. The Applicant submitted that in terms of clause 3 of his employment contract he is expected to lecture the students, set and mark tests, and set and mark examination papers. His contract of employment further states that invigilation was part of the package and compulsory.
9. Throughout his employment, the Applicant has always been issued with an appointment letter to be a marker in terms of Collective Agreement 1 of 2013 and PAM. That the letters referred to Collective Agreement 1 of 2013 and PAM meant that the provisions of the collective agreement and PAM apply. Consequent to those appointment letters the Applicant was remunerated for his public examination duties.
10. Out of nowhere, the Second Respondent issued the appointment letter with a clause that said he was not going to be paid for the examination work in the tri-semester in 2019. He argued that no letter from the Respondents can trump the provisions of ELRC Collective Agreement 1 of 2013 and PAM.
11. When the Second Respondent paid the Applicant for marking examination scripts, it acted within the confines of the law. The Second Respondent diverted from the law in August 2019 when they refused and/or failed to pay the Applicant for marking and moderating the scripts.
12. He regarded the action of the Respondents to stop the payment as a unilateral deviation from Collective Agreement 1 of 2013 and thus the Second Respondent acted ultra vires the provisions of the ELRC Collective Agreement No. 1 of 2013 and of the PAM document, and hence he referred the dispute.
13. He furthered argued that the Second Respondent was liable for all outstanding payments in terms of section 49(2) of the Higher Education and Training Laws Amendment Act 25 of 2010 and that the respondents are jointly and severally liable for the amount claimed by the Applicant in terms of ELRC Collective Agreement 1 of 2011 and ELRC Collective Agreement 1 of 2013.
14. He felt he was entitled to be remunerated for moderating and marking of public examinations in terms Collective Agreement 1 of 2013 read together with Collective Agreement 1 of 2011 and PAM.
15. The refusal of the Respondents to remunerate the Applicant for examination work in terms of the collective agreements amounts to violation of section 23(1)(a) and section 23(3) lf the Labour Relations Act.
16. He further argued that in terms of clause 4.1 of the collective agreement 1 of 2013 “the generic contract of employment for lecturing staff in the public further Education and Training Colleges, together with its annexure shall apply to all lectures. The annexure to the Collective Agreement 1 of 2013 forms part of the collective agreement thus therefore when interpreting and applying collective agreement 1 of 2013 parties must include the relevant annexure.”
17. Applicant further submitted that in terms of clause 3 of annexure A “the lecturer is expected to perform duties in accordance with the PAM document. It will also be expected of the lecture to mark test/exam papers. Invigilation is part of the package and such is mandatory.”
18. In terms of chapter E of the PAM document and in terms of Chapter D of the PAM document “a person who has been appointed to perform duties in respect of public examination shall be remunerated for actual work done in respect of a specific category of examination-related work.”
19. The Applicant was previously remunerated for actual examination work done in marking and moderating examinations.
20. He again submitted that it was a known fact that the Applicant performed duties for a specific category of examination-related work related to level 1 as per clause 1(1.1) (a) of chapter E and clause D.1.1.2 of chapter D of the PAM document respectively.
21. In terms of the aforementioned clause of the PAM document level 1 constitute “examination related work in respect of instructional offerings at a level lower than mentioned in paragraph (b)”. Level 1 constitutes N1 and N2 public examination duties. He denied the assertion that only engineering studies N2-N6 subjects, business studies N4-N6 subjects and NC (V) 14 subjects are categories as externally marked/moderated and put the 1st Respondent to proof thereof.
22. He rejected the avers of the Respondents that internal marking of N1 papers or moderations shall form part of the Applicant duties and responsibilities as a post level 1 lecturers, arguing that nowhere in collective Agreement 1 of 2013, its addendum and PAM is it distinguished between internal and external marking or moderation for remuneration purposes.
23. The Applicant argued that he performed public examination duties when he moderated and marked examination papers in terms of clause 2.2 (b), (d) and (e) of Chapter E of PAM thus must be remunerated as per the aforementioned clause of the PAM document which is part of the collective agreement 1 of 2013/2011 and or used to enforce collective agreement 1 of 2013/2011.
24. He again submitted that Collective Agreement 1 of 2013 is an extension and/or was born out of collective agreement 1 of 2011 which is titled “Improvement on remuneration of markers in National Examination”.
25. Collective Agreement 1 of 2011 acknowledges and recognizes the existence and purpose of Chapter E of the PAM on those who perform duties in respect of Public Examination and Collective Agreement 1 of 2011 confirm the remuneration tariffs for examination related work for various levels including internal moderation.
26. The Applicant submitted that section 23 (1)(a) and (3) of the LRA clearly states that a collective agreement binds the parties to the collective agreement and where applicable, a collective agreement varies any contract of employment between an employee and employer who are both bound by the collective agreement.
27. Chapter A, clause 1.2 of the PAM document clearly articulates that there may be no deviation from the prescribed measures unless negotiated and agreed in terms of the Labour Relations Act, 1995.
28. Applicant further submitted that the Respondents cannot rely on the alleged provision of the letter of appointment which is in direct violation a collective agreement. In addition, it is trite in law that a contract of employment may be varied by a collective agreement however a contract of employment may not detrimentally vary a collective agreement, meaning a contract of employment concluded subsequent to the conclusion of a collective agreement must be not less favourable than that prescribed in the collective agreement.
29. The Applicant did not dispute that marking and moderating is part of his duty however his employment contract and PAM document which are part of the collective agreement clearly states that “invigilating is part of his employment package and such is mandatory” in addition clause (h) clearly articulates that “no remuneration will apply to persons conducting invigilation at their own institutions or in situation that are regarded as being part of their official duties.” The above clause is not applicable to moderating and marking of duties hence the Respondents issue a formal letter of appointment for marking and moderating in terms of collective agreement 1 of 2011/13 and the PAM document.
30. The Second Respondent’s argument that it is the Applicant’s duty to mark examinations is only true when it relates to the Applicant marking test. When it comes to marking trimester examinations, the Applicant must be remunerated as per the ELRC Collective Agreement No. 1 of 2013 and of the PAM document. If marking of examinations was not an additional duty or task added on the Applicant’s responsibility which warrants remuneration, the Second nor the First respondent would not send letters of appointment every time an examination was supposed to be marked. Marking of examinations by the Applicant is an additional duty and must be remunerated.
31. He further rejected the arguments of the 2nd Respondent as a misinterpretation of Chapter E (2)(h) of the PAM document. Chapter E(2)(h) talks about invigilation of examinations. The issue the applicant raise here is non-payment for marking examination scripts not invigilation. Chapter E (2)(d) is the correct provision of the PAM document the 2nd Respondent was supposed to address. He rejected the Second Respondent’s argument that paying the Applicant for marking and moderation of examination scripts was unlawful as ELRC Collective Agreement No. 1 of 2011, the ELRC Collective Agreement 1 of 2013 and the PAM document all stipulate that marking and moderation of examination scripts must be remunerated. Any payment done towards examination related work for example marking and moderation of scripts is in terms of the regulating documents (collective Agreements and the PAM document) and therefore falls within the ambit of the law.
32. Applicant conceded that ELRC Collective Agreement 1 of 2011 was not applicable to the dispute but argued that its contents resonated well with Collective Agreement 1 of 2013 which was applicable.
33. In conclusion, the Applicant submitted that the Respondents must correctly interpret and apply Collective Agreement 1 of 2011 & Collective Agreement 1 of 2013 by remunerating him for the actual work done relating to public 7 examinations as articulated herein above and as previously remunerated by the Respondents. The Applicant then submitted that an award must be issued ordering the Respondents to pay the Applicant an amount of R4 312,50 for work done in moderating and marking of public examinations.
RESPONDENT’S EVIDENCE AND ARGUMENT
34. The First Respondent submitted that the contract of employment is an agreement according to which the employee undertakes to render the services to the employer which then empowers the employer to determine the duties of the employee and determine how the employee discharges them. Through the contract the employee agrees to perform the duties.
35. Respondent submitted that the ELRC Collective Agreement No 1 of 2013 (collective Agreement) precisely seeks to provide a generic contract of employment for post level 1 lecturers that are appointed by Further Education and Training colleges, which are currently known as TVET colleges.
36. Clause 4.1 of the ELRC Collective Agreement 1 of 2013 expressly state that “The generic contract of employment for lecturing staff in the public Further Education and Training Colleges, together with its Annexure A shall apply to all lectures. Effectively this collective agreement created a written agreement concerning terms and conditions of employment and thus ELRC Collective Agreement 1 of 2013 incorporates the terms and conditions for all post level 1 lecturers including the Applicant.
37. They argued that it cannot be a correct assertion that the Applicant is entitled to an extra remuneration for marking exam papers which is a duty that has been incorporated in his employment contract as per the ELRC Collective Agreement 1 of 2013.
38. The Applicant’s employment contract and clause 3 of this collective agreement categorically express the duties and responsibilities as aligned in the PAM document and this clause further states that it will also be expected of the Applicant to mark test and mark exam papers.
39. In terms of Annexure A clause 4.1 of the employment contract, the 1st Respondent agreed to remunerate the Applicant annual basic salary, and this term of employment is just one of the essential elements of the location conduction opera rum or contract of employment proper.
40. It was therefore the 1st Respondent’s submission that, the marking of exam papers is an express term in the Applicant’s employment contract, and it was the 1st Respondent’s further submission that the Applicant has a contractual duty and obligation to mark exam papers. And these terms and conditions are incorporated in the ELRC Collective Agreement 1 of 2013.
41. 1st Respondent submitted that it was their contention that in terms of section 23(1)(c)(i) of the labour relations act, of 1994 as amended “the collective agreement binds, the members of a registered trade union and employers who are members of a registered employers ‘organisation that are party to the collective agreement, if the collective agreement regulates terms and conditions.”
42. They further submitted that only engineering studies N2-N6 subjects, Business studies N4-N6 subjects and NC (V) level 4 subjects that the Respondent has categorized as externally marked/moderated and these subjects advertised by the department wherein the prospective candidates shall apply for marking or moderation.
43. They referred to the 1st Respondent bundle with specific reference to page 44 item no 4, the Applicant has in terms of assessment standard has a duty to assess or evaluate learners in terms of achievement. This performance standard entails marking and moderating internal marking/moderation at the college level.
43 He argued that clause D.4 .4 of the PAM clearly stipulates the criteria that shall apply with regard to the selection and appointment of examiners. Clause D 4.5 of the PAM document provides that the selection of markers for a specific examination paper should be carried out by a panel comprising of chief examiner, relevant departmental officials and teacher unions.
44. It is the 1st Respondents ‘submission that in order for a TVET lecture to be appointed as an examiners or moderators they have to undergo process which entails an advertisement wherein lectures are invited to apply to mark. Selection process will take place and successful candidate will be appointed by the Director: Item Development and marking from head office. No other official has been authorized to appoint any lecture to mark exams or moderation except the director mentioned above.
45. He referred to the directive the Director General has issued in the form of an Examination Instruction no 1 of 2018 wherein he instructed that “Only a person who has been appointed by a Provincial education department and the department of higher education and training to perform the examination related duties in respect of a public examination shall be remunerated for actual work done in respect of a specified category of examination related work.”
46. The authority to appoint markers or moderators has been assigned to the department and not at the college level and Mr Bhikisha, who appointed the Applicant as the marker, had no legal authority to appoint officials to perform public examination duties.
47. Furthermore, he referred to page 45-47 of the 1st Respondent bundle where there is the instruction the Acting Director General has issued on the approach to be adopted for marking of N1 and NC (v) level 2 and 3 offering at FET Colleges (TVET).
48. First Respondent conceded that it was a common cause that the Ikhala TVET College (the 2nd Respondent) had previously paid lectures for internal marking and it is common cause that they have since stopped paying the Applicant for internal marking/moderation.
49. He argued that the Second Respondent has informed the Applicant that he will not be paid for trimester 2019 internal marking and he was made aware of this condition and he accepted and understood the obligation of his appointment. This point cannot be of no practical value because it seeks to invoke the DG Instruction no 5 of 2010.
50. It was the First Respondent’s submission that PAM document does not set aside or revoke the 1st Respondent powers and authority to determine and make a directive and adopt its own approach for FET (TVET) College for marking of N1 and NC (V) level 2 and 3.
51. He further submitted that in the Department of Basic Education for example they do mark the exam papers for grade 12 leaners as it was a well-known fact that papers for grade 12 leaners are marked externally. It also well understood that educators under DBE who will be marking external grade 12 papers must firstly apply to be markers, get selected and appointed to be marker or moderate. It is undisputed fact that grades 1 to 11 are all internally marked papers and no extra-remuneration is offered to those educators for marking internally papers.
52. It was the First Respondent submission that the aforesaid approach by DBE is precisely the same approach that the First Respondent seeks to implement for TVET colleges as a result, on the employer bundle page 45-47 with specific reference to clause 2 (a), (b) and (f) of this document which states that “All FET college are required to adopt a uniform approach to the internal marking of scripts through the implementation of the following directive, 2(a) Internal marking will be applied to all N1 and NC (V) level 2 and 3 offerings, 2(b) all internal marking should be campus based to eliminate out of pocket expenses for lectures and 2(f) FET colleges are not to remunerate lectures for the marking or moderation of scripts marked internally.”
53. It is the First Respondent’s argument that the Deputy Principal –Academic of the Second Respondent have acted ultra vires when they appointment and remunerated the Applicant for marking N1 papers/moderation and accordingly these college appointments were null and void.
54. He argued that ELRC Collective Agreement 1 of 2011 regulates the annual revised tariffs for marking the externally marked papers for grade 12 for Department of Basic Education and these tariffs does not apply to the 1st Respondent as it only binds DBE as an employer. Therefore, this collective agreement does not apply to the 1st Respondent and its employees as it only applies to Department of Basic Education.
ANALYSIS OF EVIDENCE AND ARGUMENT
55. This dispute was referred as an interpretation dispute in terms of section 24 of the LRA. Section 24(2) of the LRA specifically provides that,
If there is a dispute about the interpretation or application of a collective agreement, any party to the dispute may refer the dispute in writing to the Commission if—
(a)the collective agreement does not provide for a procedure as required by subsection (1);
(b) the procedure provided for in the collective agreement is not operative; or (c)any party to the collective agreement has frustrated the resolution of the dispute in terms of the collective agreement.
56. In this dispute the Collective Agreement sought to be interpreted has a procedure for dealing with its interpretation and application. Clause 7.1 of the Collective Agreement 1 of 2013 provides that any dispute on the interpretation of the collective agreement must be resolved through the dispute resolution mechanism of the council.
57. The Applicant originally sought the interpretation of both ELRC Collective Agreement 1 of 2011 and ELRC Collective Agreement 1 of 2013. However, in the arguments the Applicant conceded that Collective Agreement 1 of 2011 is not applicable as it relates to Department of Basic Education. Indeed, parties who are not parties to the collective agreement cannot refer a dispute about its interpretation. This therefore means this award will focus on the interpretation of ELRC Collective Agreement 1 of 2013.
58. The actual dispute of the Applicant is that Collective Agreement 1 of 2013 must be interpreted to mean that he was supposed to be remunerated for his examination related duties in 2019.
59. I am alive to the various arguments raised by the parties, however I will only focus my analysis on the arguments relevant to the dispute.
60. In their arguments the Applicant extensively and incorrectly referred to Chapter E of PAM. This is incorrect because Chapter E of PAM deals with benefits that are not related to the dispute. Since this dispute relates to examination-related work the relevant chapter in the PAM is Chapter D.
61. It needs to be pointed out that the clause that the Applicant is seeking the interpretation of is in the annexure of the collective agreement. I fully agree with the argument of the Applicant that the annexure is part of the collective agreement and can be the subject of interpretation in the same way as any part of the collective agreement. This is particularly confirmed by clause 4.1 of the Collective Agreement where it is stated that the generic contract of employment together with its annexure applies to all lecturing staff.
62. The Applicant identified the clause he needed to have interpreted and that clause reads thus, “The lecturer is expected to perform duties in accordance with the PAM document. It will also be expected of the lecturer to mark test/exam papers. Invigilation is part of the package and as such is mandatory.”
63. In interpreting this clause regard will be had of an interpretation that will best accord with the purpose and objectives of the collective agreement.
64. In the case of Equity Aviation Services (Pty)Ltd v SATAWU & Others  10 BLLR 933 (LAC) the Labour Appeal Court held that;
“…where adherence to the literal meaning of the statutory provision would not give effect to or promote the purpose or object of the provision and there is another meaning or interpretation than can be given to the provision which would promote, or give effect to the purpose of the statutory provision, effect must be given to the interpretation that gives effect to the purpose of the provision even if this means departing from the ordinary or literal or grammatical meaning of the words or provision.”
65. The literal meaning of the clause is that the lecturer is expected to perform duties in accordance with the PAM document and it is expected of the lecturer to mark test and examination papers. This means the duties of the of the lecturer are aligned to the PAM document. There is nothing that refers to whether there is additional remuneration or not for the examination-related work.
66. The literal meaning of the clause refers to the PAM document. The drafters of the agreement saw it proper to mention the PAM document, the marking of test and examination papers and the invigilation. When it comes to the duties of the lecturer the drafters decided to specifically refer mainly to examination-related duties. Surely they had a purpose for this. Whatever their purpose was but it is clear that when they were writing this clause they were having in mind the PAM document in general and in particular the chapter that deals with examination work. The PAM document thus becomes the external tool that must be used to interpret the collective agreement. I now turn to the PAM document.
67. In clause A.1.1 of the PAM it is stated that the PAM document is applicable to all educators as defined in terms of the Employment of Educators Act, this includes the Applicant.
68. Clause D.1 of the PAM states thus;
“A person who has been appointed to perform duties in respect of a public examination shall be remunerated for actual work done in respect of a specific category of examination-related work. This remuneration, as well as compensation for travel and subsistence expenses, is expressed in terms of a standard tariff which, in certain cases, relates to the level at which the work is done…” (my emphasis)
69. The above extract does not refer to just examinations, but refers to PUBLIC examinations. There is surely a significance in the reference to public examinations as against just examinations.
70. The reading of the rest of Chapter D resonates the conduct of the external matric examinations where the marking is conducted centrally for all the examinations for the whole country or for the particular province. This is unlike the internal examinations where the marking is decentralized to each individual institution.
71. In the conduct of the internal examinations the provisions of Chapter D of PAM do not apply, instead each institution has its own internal arrangements in conducting the examinations (setting, moderation, marking, invigilation and issuing of the results).
72. My view therefore is that clause D.1 of PAM mentions PUBLIC because it refers to the examinations that are public and are publicly conducted as it is the case with matric examinations.
73. In the TVET College sector there are certain subjects and levels where the marking of examinations is conducted centrally and run by the First Respondent. The undisputed argument of the First Respondent was that the markers of these examinations are appointed through the process similar to the one provided for in Chapter D of PAM.
74. The First Respondent submitted that the levels the Applicant was marking (N1) fall outside the levels that are to be marked externally and consequently not supposed to be remunerated for. They related the N1 examinations to the grade 1 to grade 11 examinations in the Basic Education Department which are internally written and where educators are not remunerated for examination work. The Respondent further referred to the advert for markers and they pointed out that N1 is not included, meaning that it was to be internally marked and therefore not remunerated for. The Applicant did not advance any argument to rebut this but just rejected it and put the Respondent to proof. It is not clear what proof the Applicant wanted because the proof was presented by the Respondent.
75. The other argument advanced by the Respondent was that the Applicant was not officially appointed because he was not appointed by the delegated official of the Respondent. The statement of the Respondent was informed by Instruction no 1 of 2018 issued by the First Respondent that only a person appointed by the Provincial Education Department or the Department of Higher Education shall be remunerated for examination-related work. This requirement for the appointment to be made by the Provincial Department or the Department of Higher Education and Training is in line with the earlier argument that the examinations are centrally conducted by the Provincial Department or the National Department. It needs to be stated that the contents of Instruction no 1 of 2018 are within the spirit of PAM.
76. There were two appointment letters for marking issued for the Applicant that were submitted in the Respondent bundle. The letter on page 34 of the bundle is in the letter head of the Department of Higher Education and Training and it can thus be deduced that the appointment letter was issued by the First Respondent in line with the Examination Instruction 1 of 2018. The other two letters on page 32 and 33 are different because they have the letter head of the Second Respondent. This shows that the appointments are done by the Second Respondent. The appointments are not in line with the Examination Instruction 1 of 2018 and therefore the Applicant cannot claim entitlement to payment.
77. The Applicant argued that that PAM does not differentiate between external and internal examinations when it comes to payment. I do not agree. The differentiation may not be explicit but it does not mean it is there. As indicated in paragraph 69 there is a reference to public examinations and PAM is explicit to state that only educators working in public examinations should be remunerated.
78. The Applicant was involved in the internal (within the institution) examinations and marking. As argued earlier in this award the internal examinations that are conducted within the institution cannot be classified as public examinations. Thus, such examinations do not fall under the ambit of the PAM.
In the circumstances I make the following award;
79. In terms of the interpretation of Collective Agreement 1 of 2013 there is no provision for the Applicant to get additional remuneration for examination-related work unless the examinations are public examinations.
80. The Applicant is not entitled to the relief he sought.
Mbulelo Safa: PANELIST