ELRC144-21/22EC

Case Number: ELRC144-21/22EC
Commissioner: MBULELO SAFA
Date of Award 07 December 2021

In the ARBITRATION between: -

NAPTOSA obo BARTIS SA
Applicant

And

PROVINCIAL DEPARTMENT OF EDUCATION – EASTERN CAPE
Respondent

DETAILS OF THE HEARING AND REPRESENTATION

1. The matter set down for arbitration on the 25 November 2021 on the virtual platform, Zoom

2. The Applicant was represented by Mr Anton Adams of the union, NAPTOSA and the Respondent was represented by Mr Xhalisile who is from their Labour Relations unit.

3. The proceedings were recorded on Zoom.


ISSUES TO BE DECIDED


4. Whether or not to enforce the Respondent to implement ELRC Collective Agreement 1 of 2012 to the extent that it relates to the salary of the Applicant and make an appropriate award.

BACKGROUND TO THE ISSUE

5. The Applicant was supposed to be translated to the post of Chief Education Therapist as per ELRC Collective Agreement 1 of 2012.

6. In this application she is seeking to enforce the collective agreement in as far as it relates to her translation, salary adjustments, payment of pay progression, grade progression and pro-rata bonus.

7. The Respondent is not opposing the application.

SURVEY OF EVIDENCE AND ARGUMENT

8. After narrowing down the issues it became apparent that there was no dispute of facts with regard to the issues raised herein.
9. It was then directed that the case be a stated case in terms of clause 18 of Part C of the ELRC Constitution. The parties were then directed to submit their statements and supporting documents by the 29 November 2021. Both parties submitted on the set date.

APPLICANT’S SUBMISSION

10. The Applicant submitted that she was employed initially as a Senior Physiotherapist in 1993. Through the promotion requirements of Personnel Administrative Measures(PAM) she was supposed to have been promoted to the post of Chief Physiotherapist.

11. In April 2009 new Occupation Specific Dispensation (OSD) salary scales were introduced for certain Public Service Act employees, of which the Applicant was one. The salary of the Applicant was never adjusted to the appropriate position in line with the OSD.

12. In August 2021 ELRC Collective Agreement 1 of 2012 which provided for the translation of different categories of therapists to Education Therapists Grade 1, 2 or 3 or to Senior Education Therapists or Chief Education Therapists, was signed. The Collective Agreement introduced an occupation specific remuneration and career progression dispensation for education psychologists in public education. In this instance the Applicant was again not translated.

13. Through the failure of the Respondent to rectify the salary of the Applicant she missed out on the subsequent cost-of-living salary adjustments, pay progressions and grade progressions.


14. The Applicant is effectively underpaid since 2010 when the collective agreement came into operation. Subsequently the Applicant is owed pro-rata bonus from 2010 due to the underpayment.

15. The Applicant is still employed in terms of Public Service Act instead of Employment of Educators Act. She then submitted that she be translated to the rank of Chief Education Therapist Grade 1 with retrospect to 1 July 2010 and Chief Education Therapist Grade 2 with effect from 1/1/2012.

16. In this dispute the Applicant is enforcing the Respondent to implement the collective agreement and claiming all the outstanding payments occasioned by the failure of the Respondent to rectify her salary from 2010 in terms of ELRC Collective Agreement 1 of 2012 and by the OSD.

17. The Applicant further submitted that the Respondent must pay the applicant the difference between the remuneration and benefits she would have earned had she been translated to the rank of Chief Education Therapist with effect from 1 July 2010 and Chief Education Therapist Grade 2 School Based to date before 28 February 2022. The amount owing in back pay including pro rata bonus is R2 703 119.75.

18. They submitted that the calculations for the backpay are as follows:
BACKPAY ON BASIC SALARY
FROM TO NEW NOTCH OLD NOTCH DIFFERENCE PER MONTH MONTHS CALCULATED AMOUNT FOR PERIOD
01/07/2010 30/04/2010 256,188 194,256 5,161.00 10 51,610.00
01/05/2011 30/06/2011 273,609 207,465 5,512.00 2 11,024.00
01/07/2011 31/12/2011 277,713 207,465 5,854.00 6 35,124.00
01/01/2012 30/04/2012 312,846 207,465 8,781.75 4 35,127.00
01/05/2012 31/03/2013 334,746 221,988 9,396.50 11 103,361.50
01/04/2013 30/06/2013 356,838 236,640 10,016.50 3 30,049.50
01/07/2013 31/03/2014 362,190 236,640 10,462.50 9 94,162.50
01/04/2014 30/06/2014 388,992 236,640 12,696.00 3 38,088.00
01/07/2014 31/03/2015 394,824 236,640 13,182.00 9 118,638.00
01/04/2015 30/06/2015 422,463 236,640 15,485.25 3 46,455.75
01/07/2015 31/03/2016 428,802 236,640 16,013.50 9 144,121.50
01/04/2016 30/06/2016 461,391 236,640 18,729.25 3 56,187.75
01/07/2016 31/03/2017 468,312 236,640 19,306.00 9 173,754.00
01/04/2017 30/06/2017 502,500 236,640 22,155.00 3 66,465.00
01/07/2017 31/03/2018 510,042 236,640 22,783.50 9 205,051.50
01/04/2018 30/06/2018 543,195 236,640 25,546.25 3 76,638.75
01/07/2018 31/03/2019 551,343 236,640 26,225.25 9 236,027.25
01/04/2019 30/06/2019 582,771 236,640 28,844.25 3 86,532.75
01/07/2019 31/12/2021 591,510 236,640 29,572.50 30 887,175.00
2,495,593.75


BACKPAY ON BONUS
5/2011 5,512.00
5/2012 9,396.50
5/2013 10,016.50
5/2014 12,696.00
5/2015 15,485.25
5/2016 18,729.25
5/2017 22,155.00
5/2018 25,546.25
5/2019 28,844.25
5/2020 29,572.50
5/2021 29,572.50
207,526.00

TOTAL DUE 2,495,593.75
207,526.00
2,703,119.75

19. The Applicant again submitted that the Respondent be directed to calculate the tax payable applicable to the specific tax year from 2014 and not on the total amount received as back pay.


RESPONDENT SUBMISSION

20. The Second Respondent submitted that they were not opposing the application by the Applicant. They confirmed that indeed the Applicant was owed salary and qualified to be translated into the appropriate salary position.

21. The Respondent further referred to a document compiled by their Human Resource Section wherein they are confirming that the Applicant is entitled to the salary she is claiming.

ANALYSIS OF EVIDENCE AND ARGUMENT


22. This matter was referred as an enforcement of a collective agreement in terms of clause 69 of Part C of the ELRC Constitution read together with section 33A of the Labour Relations Act.

23. Section 33A of the LRA provides that a bargaining council may monitor and enforce compliance with its collective agreements in terms of this section or a collective agreement concluded by the council.

24. Clause 69 of part C of the ELRC Constitution proves that the General Secretary of the council may promote, monitor and enforce compliance with any collective agreements of the council in terms of section 33A of the LRA.

25. In this dispute the Respondent admitted that they did not comply with ELRC Collective Agreement 1 of 2012 with regards to the translation of the post of the Applicant and subsequent salary adjustments. They admitted that the Applicant is underpaid and that prevailed since the collective agreement became effective in 2010.
26. It is therefore my finding that the Respondent failed to comply with Collective Agreement 1 of 2012 with regards to the translation and various payments due to the Applicant.

27. Thus, the Applicant was entitled to be translated to the post of Chief Education Therapist with effect from 2012. She was entitled to be paid the cost-of-living salary adjustments, pay progression, grade progression and bonus, all in line with the adjusted salary.

28. Section 33A (8) of the Labour Relations Act provides that;
An arbitrator conducting an arbitration in terms of this section may make an appropriate award, including -
(a) ordering any person to pay any amount owing in terms of a collective agreement;
(b) imposing a fine for a failure to comply with a collective agreement in accordance with subsection (13);
(c) charging a party an arbitration fee;
(d) ordering a party to pay the costs of the arbitration;
(e) confirming, varying or setting aside a compliance order issued by a designated agent in accordance with subsection (4)
(f) any award contemplated in section 138(9).

29. There was no argument advanced for me to consider make any other order except the one in (a) where the person owing is ordered to pay the amount owing in terms of the collective agreement.

In the circumstances I make the following award;

AWARD


29. The Respondent, the Provincial Department of Education, Eastern Cape, failed to comply with ELRC Collective Agreement 1 of 2012 in as far as it relates to the situation of the Applicant, Ms SA Bartis.

30. The Respondent is hereby ordered to translate the employment of the Applicant and have her employed in terms of Employment of Educators Act and employed as Chief Education Therapist (Grade 2). If the translation results in the change in the salary of the Applicant such a change must be effected on the monthly salary of the Applicant. Such a translation and resultant adjustment (if any) should be done within thirty (30) days from the date of receipt of this award.

31. The Respondent is further ordered to pay the Applicant salary outstanding from 2010 the breakdown of which is contained on paragraph 18 of this award. The total amount to be paid will be R2 703 119,75. This amount must be paid to the Applicant not later than 28 February 2022.

32. The amount above will be subjected to tax. The amount of tax to be deducted must be calculated based on the rates applicable to the specific tax years and the amount due for the particular year, tax laws allowing.

Mbulelo Safa: ELRC Panelist