ELRC163-21/22EC
Text
Award Date:
11 July 2021
Case No ELRC163-21/22EC
In the matter between
SAOU obo F Gouws Applicant
and
Department of Education: Eastern Cape Respondent
ARBITRATOR: AW Howden
HEARD: 30 June 2021
DATE OF AWARD: 11 July 2021
SUMMARY: Labour Relations Act 66 of 1995 (the LRA) – Section 33A – Enforcement of collective agreements by bargaining councils – ELRC Constitution Clause 69 - Enforcement of collective agreements and of Basic Conditions of Employment Act provisions – whether the Department of Education - Eastern Cape has contravened the provisions of Collective Agreement 8 of 2003 (IQMS), in that the Department of Education has failed to implement the educators pay progression notch for which she qualifies.
ARBITRATION AWARD
DETAILS OF PROCEEDINGS AND REPRESENTATION
1. The dispute was scheduled for arbitration in terms of Section 33A (4) of the Labour Relations Act 66 of 1995 as amended (the LRA) read with Clause 69.5 of the ELRC Constitution: Dispute Resolution Procedures: Annexure C (Collective Agreement No. 6 of 2016). The virtual arbitration was held via Zoom on 30 June 2021.
2. The Applicant, F Gouws – Persal Number 56420439, was present and was represented by Ms S Te Brugge from the Suid Afrikaanse Onderwysers Unie (SAOU).
3. The Respondent, Department of Education - Eastern Cape, was represented by Mr S Xholisile (Labour Relations Department).
ISSUES IN DISPUTE
4. I am required to determine whether the Respondent has contravened the provisions of Collective Agreement 8 of 2003 (IQMS), in that the Respondent has failed to implement the 2019/2020 pay progress notch increase for which the Applicant qualified.
BACKGROUND TO THE DISPUTE
5. The Applicant is employed by the Respondent as a Post Level 1 Educator.
6. The Applicant submitted all the relevant IQMS documentation and qualified for the pay progression notch increase for the 2019/2020 period, however the Respondent has still not implemented the pay progression notch increase even after a formal grievance was lodged.
7. The Applicant requests that the pay progression notch increase be implemented and back dated to 1 July 2020, when it was supposed to be implemented by the Respondent, with the relevant back pay.
SURVEY OF EVIDENCE AND ARGUMENT
8. It is common cause between the parties:
- That the Applicant is employed by the Respondent as a Post Level 1 Educator.
- That the Applicant qualified for the relevant pay progression notch increase for the 2019/2020 period for IQMS.
- That the Applicant had still not received her pay progression notch increase for the 2019/2020 period (1.5% notch increase).
- That the relevant Collective Agreement was 8 of 2003.
- That the Applicant’s annual salary at the time of implementation of the 2019/2020 pay progression was R292 854.00.
- That the implementation date for the pay progression was 1 July 2020.
- That the Applicant complied with all of the requirements relevant to qualify for the pay progression for the 2019/2020 period.
- The Applicant exhausted all internal avenues.
9. The Applicant submitted a bundle of documents. None of the documents were in dispute and it was agreed that the documents’ contents were what it purported to be.
10. At the outset I must point out that this is a brief summary of the evidence which is relevant to the central issues and that I have taken all evidence submitted into account when making my decision.
The Applicant’s Submissions
11. The Applicant’s Representative stated that the Respondent had conceded that the Applicant must receive the pay progression.
12. The Applicant’s Representative further stated that the Applicant’s name had been added to a list by the Respondent for the implementation of the pay progression as it was common cause that the Applicant qualified for the pay progression.
The Respondent’s Submissions
13. The Respondent’s Representative stated that the Respondent would implement the pay progression and was in the process of doing so.
14. The Respondent’s IQMS Co-Coordinator, Ms N Mkencela, confirmed that the documentation had been sent through to Head Office and that they were waiting for the implementation of the pay progression with regards to the Applicant.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
15. Clause 68 of the Council’s Constitution - Dispute Resolution Procedures, provides that a party to a dispute about the interpretation or application, or non-compliance of a collective agreement including the provisions of the BCEA, may refer such dispute to for conciliation and arbitration in terms of these procedures.
16. 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.
17. Clause 69.2 provides that a Collective Agreement of the Council is deemed to include:
69.2.1 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
69.2.2 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;
18. Clause 69.3 provides that where the General Secretary acts in terms of this Clause 69, and the matter also involves the interpretation or application of a collective agreement, this Clause 24 applies to the exclusion of Clause 8.
19. Clause 69.5 further provides that the General Secretary may on his own discretion or on the request of a party refer any unresolved dispute concerning compliance with any provision of a Collective Agreement to arbitration by a panellist appointed by the Council or the CCMA, as the case may be.
20. Clause 69.6 also provides that a panellist, conducting arbitration in terms of this Clause 69 and Section 33 of the Act, has the powers of a Commissioner in terms of section 142 of the Act, read with the changes required by the context.
21. Clause 69.7 provides that Section 138 of the Act, read with the changes required by the context, applies to any arbitration conducted in terms of this section.
22. The dispute before the Council relates to the non-implementation of a pay progression notch increase for the IQMS 2019/2020 period as provided for in Collective Agreement 8 of 2003.
23. The Council issued a Compliance Order in terms of Clause 69 of the Council’s Constitution on 21 May 2021, however to date the Respondent has not complied.
24. It is common cause that the Applicant qualified for the pay progression notch increase for the IQMS period 2019/2020.
25. It is my finding, based on the above and on the balance of probability that the Respondent has contravened the provisions of Collective Agreement 8 of 2003 by failing to implement the pay progression notch increase for the IQMS 2019/2020 period for which the Applicant qualified.
AWARD
26. I find that the Respondent, Department of Education – Eastern Cape, has contravened the provisions of Collective Agreement 8 of 2003 by failing to implement the pay progression notch increase for the 2019/2020 period on 1 July 2020 to the Applicant, F Gouws – Persal Number 56420439, salary.
27. The Respondent, Department of Education - Eastern Cape, is hereby instructed to implement the pay progression notch increase for the 2019/2020 period to the Applicant, F Gouws – Persal Number 56420439, salary, namely a 1.5% notch increase on R292 854.00, with an effective date of 1 July 2020.
28. The implementation of the pay progression notch increase for the 2019/2020 period plus the back pay payment due to the effective date being 1 July 2020, as mentioned in paragraph 27 above, less PAYE, pension deductions, and other Persal related deductions, must be implemented and payment made by the Respondent, the Department of Education - Eastern Cape, to the Applicant, F Gouws – Persal Number 56420439, by no later than 31 July 2021.
Panellist: AW Howden
ELRC
In the matter between
SAOU obo F Gouws Applicant
and
Department of Education: Eastern Cape Respondent
ARBITRATOR: AW Howden
HEARD: 30 June 2021
DATE OF AWARD: 11 July 2021
SUMMARY: Labour Relations Act 66 of 1995 (the LRA) – Section 33A – Enforcement of collective agreements by bargaining councils – ELRC Constitution Clause 69 - Enforcement of collective agreements and of Basic Conditions of Employment Act provisions – whether the Department of Education - Eastern Cape has contravened the provisions of Collective Agreement 8 of 2003 (IQMS), in that the Department of Education has failed to implement the educators pay progression notch for which she qualifies.
ARBITRATION AWARD
DETAILS OF PROCEEDINGS AND REPRESENTATION
1. The dispute was scheduled for arbitration in terms of Section 33A (4) of the Labour Relations Act 66 of 1995 as amended (the LRA) read with Clause 69.5 of the ELRC Constitution: Dispute Resolution Procedures: Annexure C (Collective Agreement No. 6 of 2016). The virtual arbitration was held via Zoom on 30 June 2021.
2. The Applicant, F Gouws – Persal Number 56420439, was present and was represented by Ms S Te Brugge from the Suid Afrikaanse Onderwysers Unie (SAOU).
3. The Respondent, Department of Education - Eastern Cape, was represented by Mr S Xholisile (Labour Relations Department).
ISSUES IN DISPUTE
4. I am required to determine whether the Respondent has contravened the provisions of Collective Agreement 8 of 2003 (IQMS), in that the Respondent has failed to implement the 2019/2020 pay progress notch increase for which the Applicant qualified.
BACKGROUND TO THE DISPUTE
5. The Applicant is employed by the Respondent as a Post Level 1 Educator.
6. The Applicant submitted all the relevant IQMS documentation and qualified for the pay progression notch increase for the 2019/2020 period, however the Respondent has still not implemented the pay progression notch increase even after a formal grievance was lodged.
7. The Applicant requests that the pay progression notch increase be implemented and back dated to 1 July 2020, when it was supposed to be implemented by the Respondent, with the relevant back pay.
SURVEY OF EVIDENCE AND ARGUMENT
8. It is common cause between the parties:
- That the Applicant is employed by the Respondent as a Post Level 1 Educator.
- That the Applicant qualified for the relevant pay progression notch increase for the 2019/2020 period for IQMS.
- That the Applicant had still not received her pay progression notch increase for the 2019/2020 period (1.5% notch increase).
- That the relevant Collective Agreement was 8 of 2003.
- That the Applicant’s annual salary at the time of implementation of the 2019/2020 pay progression was R292 854.00.
- That the implementation date for the pay progression was 1 July 2020.
- That the Applicant complied with all of the requirements relevant to qualify for the pay progression for the 2019/2020 period.
- The Applicant exhausted all internal avenues.
9. The Applicant submitted a bundle of documents. None of the documents were in dispute and it was agreed that the documents’ contents were what it purported to be.
10. At the outset I must point out that this is a brief summary of the evidence which is relevant to the central issues and that I have taken all evidence submitted into account when making my decision.
The Applicant’s Submissions
11. The Applicant’s Representative stated that the Respondent had conceded that the Applicant must receive the pay progression.
12. The Applicant’s Representative further stated that the Applicant’s name had been added to a list by the Respondent for the implementation of the pay progression as it was common cause that the Applicant qualified for the pay progression.
The Respondent’s Submissions
13. The Respondent’s Representative stated that the Respondent would implement the pay progression and was in the process of doing so.
14. The Respondent’s IQMS Co-Coordinator, Ms N Mkencela, confirmed that the documentation had been sent through to Head Office and that they were waiting for the implementation of the pay progression with regards to the Applicant.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
15. Clause 68 of the Council’s Constitution - Dispute Resolution Procedures, provides that a party to a dispute about the interpretation or application, or non-compliance of a collective agreement including the provisions of the BCEA, may refer such dispute to for conciliation and arbitration in terms of these procedures.
16. 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.
17. Clause 69.2 provides that a Collective Agreement of the Council is deemed to include:
69.2.1 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
69.2.2 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;
18. Clause 69.3 provides that where the General Secretary acts in terms of this Clause 69, and the matter also involves the interpretation or application of a collective agreement, this Clause 24 applies to the exclusion of Clause 8.
19. Clause 69.5 further provides that the General Secretary may on his own discretion or on the request of a party refer any unresolved dispute concerning compliance with any provision of a Collective Agreement to arbitration by a panellist appointed by the Council or the CCMA, as the case may be.
20. Clause 69.6 also provides that a panellist, conducting arbitration in terms of this Clause 69 and Section 33 of the Act, has the powers of a Commissioner in terms of section 142 of the Act, read with the changes required by the context.
21. Clause 69.7 provides that Section 138 of the Act, read with the changes required by the context, applies to any arbitration conducted in terms of this section.
22. The dispute before the Council relates to the non-implementation of a pay progression notch increase for the IQMS 2019/2020 period as provided for in Collective Agreement 8 of 2003.
23. The Council issued a Compliance Order in terms of Clause 69 of the Council’s Constitution on 21 May 2021, however to date the Respondent has not complied.
24. It is common cause that the Applicant qualified for the pay progression notch increase for the IQMS period 2019/2020.
25. It is my finding, based on the above and on the balance of probability that the Respondent has contravened the provisions of Collective Agreement 8 of 2003 by failing to implement the pay progression notch increase for the IQMS 2019/2020 period for which the Applicant qualified.
AWARD
26. I find that the Respondent, Department of Education – Eastern Cape, has contravened the provisions of Collective Agreement 8 of 2003 by failing to implement the pay progression notch increase for the 2019/2020 period on 1 July 2020 to the Applicant, F Gouws – Persal Number 56420439, salary.
27. The Respondent, Department of Education - Eastern Cape, is hereby instructed to implement the pay progression notch increase for the 2019/2020 period to the Applicant, F Gouws – Persal Number 56420439, salary, namely a 1.5% notch increase on R292 854.00, with an effective date of 1 July 2020.
28. The implementation of the pay progression notch increase for the 2019/2020 period plus the back pay payment due to the effective date being 1 July 2020, as mentioned in paragraph 27 above, less PAYE, pension deductions, and other Persal related deductions, must be implemented and payment made by the Respondent, the Department of Education - Eastern Cape, to the Applicant, F Gouws – Persal Number 56420439, by no later than 31 July 2021.
Panellist: AW Howden
ELRC
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ELRC 302 -20 /21 NW
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