ELRC326-21/22EC

Panelist: Jonathan Gruss
Case No.: ELRC326-21/22EC
Date of Award: 17 September 2022

In the ARBITRATION between:

SADTU /NAPTOSA obo Bongani Mconyana & 25 Others (Applicants)


and


Department of Education – Eastern Cape & Others
(Respondents)


Applicants’ representative: Mr Gashi – SADTU / Mr Mbinda - NAPTOSA

Respondent’s representative: Mr Pillay

DETAILS OF HEARING AND REPRESENTATION

1. This dispute was scheduled for arbitration in terms of Section 24(5) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 68 of the ELRC Constitution : Dispute Resolution Procedures (Collective Agreement No. 6 of 2016). The hearing was held via Zoom on 31 August 2022 and the proceedings were electronically recorded. The applicants SADTU / NAPTOSA obo Bongani Mcoyana & 25 Others were represented by Mr Gashi and Mr Mbinda from SADTU and NAPTOSA respectively. The respondent, Department of Education: Eastern Cape were represented by Mr Pillay, an Assistant Director: Labour Relation. The Department of Basic Education an interested third party were represented by Ms Munday. The parties agreed to submit written closing arguments by no later than 7 September 2022.
2. The individual applicants are:
1. Nosipho Masimini
2. Bongani Mcoyana
3. Mfuneko Zokwe
4. Nongwalisa Mvenene
5. Zanozuko Kene
6. Siphiwo Makapela
7. Nonceba Magibile-Tindleni
8. Lwandile Nkenke
9. Lindiwe Nguge
10. Buyiselo Zoko
11. Sindisile Zamisa
12. Nomsa Mzizi
13. Buntu Mqanqeni
14. EM Madotyeni
14. Sakhumzi Seyisi
16. Mongezi Mncono
17. Babalwa Kalimashe
18. Vuyiswa Siciko
19. Dr. Bukiwe Kuze
20. Nosiphiwo Dekeda
21. Andries Mentoor
22. Mzingisi Bokolo
23. Mzingisi Mavana
24. Mthetheli Matola
25. Zola Kunene
26. Nomfuneko Dziba


ISSUE TO BE DECIDED
3. A dispute concerns the interpretation and application of ELRC Resolution 1 of 2008 and Paragraph 5.2 and ELRC Resolution 4 of 2017 paragraph 2.

BACKGROUND TO THE ISSUES

4. I previously instructed the parties to submit a statement of case and an answering statement. They are as follows:
Facts relied on by the applicants to establish their claim.
4.1 The applicants claim that they are party to 2 collective agreements, agreement 1 of 2008 and 4 of 2017 concluded in the Education Labour Relation Council. The members of the applicants are appointed as Circuit Managers with effect from 1 April 2021 at level of Deputy Chief Education Specialist (DCES) at salary levels 10; 11; and 12. The applicants perform and execute the prescribed duties and functions of a Circuit Manager.

The respondent’s response is that ELRC Collective Agreement 1 of 2008 essentially dealt with the OSD (occupation specific dispensation). ELRC Collective Agreement 4 of 2017 dated 18 October 2017 deals with a job description for Office Based Educators. The purpose of this resolution is indicated to replace the job description of office based educators as contained in the aforementioned Collective Agreement 1 of 2008 and the Personnel Administrative Measures (PAM) Chapter A.

4.2 The applicants fall within the category of Circuit Managers who despite performing an executing the duties of a Circuit Manager or like other Circuit Managers, which work is of equal value with that of other Circuit Managers are enumerated at a level lower than that of those Circuit Managers and in certain instances principals who are their subordinates.
4.3 The respondent in its capacity as employer in terms of the Public Service Act 103 of 1994 and the Employment of Educators Act 76 of 1998 is bound by the policy on organisation, roles and responsibilities of education districts made by the Minister in terms of the National Education Policy Act 37 of 1996. The Policy provides for the following:
4.3.1 District and Circuit sizes for the various Districts and Circuits within the department.
4.3.2 Though the Member of the Executive Council, demarcates Circuits as a second level administrative subdivision of the Provincial Education Department;
4.3.3 Appointment of Circuit Managers as head of Circuit Offices to execute prescribed functions which have been allocated by the District Director or the Head of the Provincial Education Department;
4.3.4 Establishment of Circuit Offices in accordance with the norms of no less than 15 and no more than 30 schools.
4.3.5 Allocation of the following functions to Circuit Offices and Circuit Managers; provide a channel communication between the district office and educational institutions; provide management support to education institutions; provide administrator service to educational institutions; provide training for principals, SMT’s and SGB’s; monitor the functionality of education institutions; provide curriculum support to grade practitioners and primary grade teachers; facilitate visits of specialist district teams to secondary schools and report to the district office.
4.3.6 In terms of Collective Agreement 1 of 2008 the post of Circuit Manager is a post on its own and distinguishable from that of a Deputy Chief Education Specialist.
4.3.7 All Circuit Managers across the Provincial Education Department perform similar work of equal value. Agreement 4 of 2017 which regulates the job description of Circuit Managers do not differentiation between categories of Circuit Managers, Circuit Managers therefore perform the same duties and their job is exactly the same.
4.3.8 Certain Circuit Managers who are in terms the rank are senior to principals whom they supervisor earn less than such principals. As an example, Circuit Managers in the Western Cape and Limpopo Province appointed in terms of the same policies and laws are pointed at salary level 12 and the higher salary scale as that in the Eastern Cape in respect of the applicant and other Circuit Managers remunerated at the lower level.
4.3.9 The advertisement of the Circuit Managers posts in the Western Cape and Limpopo are in all material respects similar to the advertisements of Circuit Managers posts in the Eastern Cape.
4.3.10 The state is the same employer and all state employees are subject to the same rules and must be treated in the same both within the Provincial Education Department and nationally. Collective agreement 1 of 2008 and 4 2017 apply to all Provincial Education Department and must therefore be applied consistently nationally. .
4.3.11 Collective Agreement 4 of 2017 does not make provision for differentiation between categories of Circuit Managers to authorise any differentiation. The differentiation of Circuit Managers is therefore based on unfair criteria (if such criteria exist) and unfair human resource practice and is not justifiable. 3.3.12 Collective Agreement 1 of 2008 does not preclude a Circuit Manager from being appointed at salary level 12I hence within the Eastern Cape Official Educational Department and in other provincial departments Circuit Managers are remunerated at salary level 12.
The respondent’s response thereto is that the rationale in relying on documentation of the Western Cape and Limpopo Education Department is not understood. In any event, section 3 of the employment of educators act clearly clarifies the role of educators within the education sector. Further averments in respect of differential treatment between categories of Circuit Managers and referring to collective agreement 1 of 2008 as offering “a right of way” to a “salary level 12” which is in any event an issue relating to the remuneration.


Legal issues that arise from the above facts
5. This matter involves appointment of Circuit Managers at different salary levels and what appears to be an attempt by the Provincial Department of Education to interpret the policy on the organisation, roles and responsibility of education districts (the policy), collective agreement 1 of 2008 and 4 of 2017 to equate the position of Circuit Managers to that of Deputy Chief Education Specialist. It is the case of the applicant that the post of Circuit Managers is distinct from that of Deputy Chief Education Specialist and therefore not the same position.

6. It is the applicant case that the respondent was required in law to create the position of Circuit Manager. The respondent failed or neglected to create the post of Circuit Manager and to grade post accordingly. As a result of this failure and or neglect, the respondent created a situation where Circuit Managers are pointed in post not intended for purposes of a Circuit Manager hence the various discrepancies in the application of the policy and the two Collective Agreements.

7. This matter further implicates the interpretation of the policy on the organisation, roles and responsibilities of Education Districts, Collective Agreement 1 of 2008 and 4 of 2017 which are of national general application and must be applied to all provincial education department in a fair and consistent manner.

8. In terms of the policy, Circuit Managers performing the same functions and subject to the same norms and standards. All Circuit Managers are the supervisors of principals of schools and are specified in the Policy is a layer in the management hierarchy in terms of the District model. The key performance areas of Circuit Managers differ material to those of Deputy Chief Education Specialist.

9. The policy does not provide for the establishment of the Circuit Management Centre (CMS) to coordinate and supervise circuits. The true reason why Circuit Managers are appointed as DCES is purely as a result of the respondent non-compliance with the policy by introducing a management level between the District Director and the Circuit Manager, which is not provided for in terms of policy. In terms of the Policy Circuit Managers report directly to District Directors.

10. The approval of the Eastern Cape Department of Education Organigram that gave birth to the Circuit Management Centre (CMC) does not include Circuit Managers as staff reporting to Circuit Management Centre. The CMC is established mainly for the purpose of advisory and the professional support services and cannot be interpreted as a management structure for the supervision of circuit offices. Any such interpretation that the CMC is a management structure for the circuit office cannot be founded in the policy, collective agreement or approved organigram.

11. It is the applicants’ case that Circuit Managers employed by the Provincial Education Department Eastern Cape, are entitled to be appointed and their career incidents dealt with in accordance with the policy and the Collective Agreements. The Provincial Education Department Eastern Cape is obliged in law to treat Circuit Managers in the same as other Circuit Managers are treated within the department to be appointed at the same level and treated the same as other Circuit managers in other provincial education departments.

12. The work Circuit Managers is the same and of equal value. All circuits are demarcated based on the prescribed norms. All Circuit Managers supervise no less than 15 schools and the maximum of 25 schools per the policy. To the extent that all Circuit Manager appointed under the same dispensation, they are entitled to equal treatment.

13. The appointment of Circuit Managers at different levels both within the Eastern Cape and in comparison between the Eastern Cape Provincial Department and other provincial Department is inconsistent with the policy, the collective agreement and the law.
Respondent’s response thereto is that save to say, it is difficult to find a causal link between the interpretation and application of the two collective agreements referred to and concerns of same and equal value work on the issue of salary (elevation to salary 12) the applicant’s keep referring to. Furthermore, reference to the “the approved Eastern Cape Department of education organigram”, can be found in either of these two collective agreements, notwithstanding the referral to the appointment letters of the applicants which can be seen as an phased as placement letters in terms of this process.

14. The applicant seeks the following relief:
14.1 The respondent is obliged to create the post of circuit managers as a stand-alone post as per policy and on the terms set out in the collective agreement on appoint Circuit Managers in the post of circuit managers and not DCES as per policy and collective agreements..
14.2 The respondent is obliged to comply with the policy and the collective agreement by designating the job title of Circuit Manager as Circuit Manager and specifying that Circuit Managers report to District Directors.
14.3 The respondent is obliged to comply with the policy and the Collective Agreements by ensuring that all Circuit Managers are paid the same salary for work of equal value and are appointed at the same level.
14.4 The respondent is obliged to ensure that Circuit Managers who are already appointed are paid at salary level 12 with effect of 1 January 2021.
14.5 The conduct of the respondent in appointing the applicants and other Circuit Managers at different salary level constitutes unfair labour practice in directing the respondent to appoint the applicant and other Circuit Managers at salary level 12.
The respondent response to the relief is not a claim they can be adjudicated under rubicon of that of interpretation and application of a collective agreement, neither under dispute an unfair labour practice. The applicants have not with respect of the cited resolutions indicated which provisions of the mentioned Collective Agreement has the Respondent misinterpreted or not applied. The issue at hand, by virtue of the referral relate to a group of professional education employees who had held the ranks/titles of Deputy Chief Education Specialist (DCES) who had a twofold equivalent salary, either as a professional manager or as a curriculum professional equal in esteem perceive verbally without salary implementation. It appears, as time progressed, the two categories as one began to evolve within different duties but salary of advertised positions remain the same in the rank of DCES. While some provinces as employers under ambits of a national department attempted to differentiate between two cages in the norms and protocols was sought to upgrade pending categorisation. Whilst different provinces embarked upon processes some correctly or others not the applicants in this dispute perceivably in attempt to gain higher salary under ambits of equal work equal pay. This being said, an application which is beneficial, does not (harden into an entitlement) across the spectrum. Whilst the applicants in this matter, has no uncertain terms, wanted are claiming tightened across the spectrum for higher salary.

SURVEY OF EVIDENCE & ARGUMENTS

15. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the LRA relevant to the dispute at hand and does not reflect all the arguments contained and considered in deciding this matter.

APPLICANT’S EVIDENCE & ARGUMENTS

16. The respondent called four witnesses, Mr Mongani Mcoyana; Mr Sindisile Zamisa and Mr Victor Zokwe. Mr Mcoyana testified under oath that he was permanently placed as a Circuit Manager in the Buffalo City area on 29 April 2021. The appointment was part of the migration process wherein horizontal changes were made although salary was not linked to the placement. He had been in the employ of the respondent since 1 April 1995. On 1 October 2015 he was appointed as an Education Development Officer (EDO) / Circuit Manager after the post in question was advertised. Before he was appointed as an EDO he was school principal at St Johns Reed Primary School in East London. He is responsible for 29 schools in the District and is on salary level 11. The post when advertised was salary level 10 post but because of his current salary grade at the time, he was placed at salary level 11. He was given six notches as it was a promotional post. He seeks to be placed at salary level 12 as Circuit Manager and not be referred to as the DCES. The position of DCES is specific to one area.

17. Mr Sindisile Zamisa testified under oath that before he became a Circuit Manager he was already at salary level 12 as a principal. He was a P5 principal that is the highest level of a principal. He supports 26 schools. However his appointment letter refers to him as a DCES/EDO. When he was appointed as EDO he was given salary increase of 6 notches due to his current salary level when promoted.

18. Mr Victor Zokwe testified under oath that he became an EDO on 1 January 2013. He is on salary level 10 and supports 23 schools. Before he was appointed as EDO he was a primary school principal, a P2 principal with salary level 9. When he applied for the post the post was salary level 10 in terms of the advertisement. He is unhappy with his remuneration salary level.

19. The applicants argued that at the heart of the matter is a placement and or appointment of Circuit Managers firstly in the posts of Deputy Chief Education Specialist and secondly at different salary levels. The duties and responsibilities of Circuit Managers are prescribed in the work of Circuit Managers is of equal value.

20. A dispute over the interpretation of a collective agreement exists when the parties disagree over the meaning of a particular provision; a dispute over the application of a collective agreement arises when the parties disagree over whether the agreement applies to particular set of facts or circumstances. The Labour Court reaffirmed the principal that, when interpreting collective agreements, arbitrators must strive to give effect to the intention of the agreement and must give the word used by the parties the their ordinary and popular meaning if no ambiguity is present. It is contended that the Collective Agreements on correct interpretation require that post of Circuit Manager be treated as a separate position. The Collective Agreement also envisages that circuit managers be appointed on the same level in respect of work of equal value. The interpreter is enjoyed to adopt a purposive approach. When encountering to possible meaning, the interpreter must choose the one more consonant with objects of the Act. An interpretation which limits rights should be avoided unless the contrary appears expressly or by necessary implication from the word of the Act read in its context the Act envisages that persons who perform work of equal value must be treated the same. The determination of the value is to be done with reference to the policy and the Collective Agreements.

RESPONDENT’S ARGUMENTS

21. The respondent did not call any witnesses. According to the respondent the applicants dispute referred claim that the respondent are not interpreting and applying the ELRC Collective Agreements 1 of 2008 and 4 of 2017 correctly to the fact that they are remunerating Circuit Managers differently (some on salary level 10 and 11 whilst others on salary level 12). This according to the respondent the applicant claim is an issue relating to similar functions or equal work for equal pay.

22. The respondent has referred me to the judgement of Minister of Safety and Security v Bardenhorst and others (2010) 6 BLLR 596(LAC) where the Labour appeal Court held that it is incumbent upon the commission to determine what the real dispute is. I’ve also been referred to by the Constitutional Court case in the matter of Commercial Workers Union of South Africa v Tao Ying Metal Industries & Others (2008) 29 ILJ 2461 (CC) where the court said the following: “What matters most is not the form of a dispute but rather the substance of the dispute. The characterisation of the dispute by the parties are not necessary conclusive as to nature of the dispute. It is necessary for a commissioner to look at the substance of the dispute in order to determine what the real dispute is between the parties.”

23. In conclusion the respondent submits that the real dispute relates to equal pay for work of equal value. This is confirmed by the applicants’ statement of case and the verbal testimony by the applicants during the arbitration. The real dispute is that salary differentiation which in the final analysis respectively cannot be dealt with by the ELRC, save to say, the CCMA for conciliation and the Labour Court for adjudication proceedings. The relief the applicants are claiming is in terms of the Employment Equity Act 55 of 1998 (EEA) as referred to section 6(4) which provides for three cause of action are in respect of equal pay. They are equal pay for the same work; equal pay for substantially the same work and equal pay for work of equal value.


ANALYSIS OF EVIDENCE AND ARGUMENT

23 Clause 68 of the 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 BCEA may refer such dispute to conciliation and arbitration in terms of these procedures.

24 ELRC Collective Agreement 4 of 2017 dated 18 October 2017 deals with a job description for Office Based Educators. The purpose of this resolution is indicated to replace the job description of office based educators as contained in the aforementioned Collective Agreement 1 of 2008 and the Personnel Administrative Measures (PAM) Chapter A.

25 Having regard to the 2008 salary structures of Circuit Managers, the structures make provision for three different levels, C1; C2 and C3. . The salary levels between DCES and CES overlap each other and with that of Circuit Managers. Furthermore, one must not confuse the difference between the post job description such as Circuit Manager and OSD rank structures.

26 What the applicants are seeking to achieve, namely that all Circuit Managers earn the same remuneration. This is not provided for in the Resolutions that the applicants seek to interpret and apply. I agree with the respondent, the real dispute is a claim equal pay for work of equal value.

AWARD

27 The respondent, the Department of Education: Eastern Cape has not interpreted and applied ELRC Resolutions 1 of 2008 and 4 of 2017 incorrectly.

28 Accordingly, the applicants as it relates to the interpretation or application dispute at hand are not entitled to any relief.

Name: Jonathan Gruss
(ELRC) Arbitrator