ELRC335-22/23FS

Commissioner: D Smith
Case No.: ELRC335-22/23FS Date of Award: 20 April 2023

In the ARBITRATION between:

SAOU OBO GREYVENSTEIN, BETSIE
(Union / Applicant)

and

DEPARTMENT OF EDUCATION FREE STATE
(Respondent)

Union/Applicant’s representative: Ms. Hester Human

Tel:
Telefax:
Email:

Respondent’s representative: Mr. Vuyisule George Gubuza

Tel: Telefax:
Email:


DETAILS OF HEARING AND REPRESENTATION:

1. The dispute was referred to the Education Labour Relations Council (Council) in terms of Section 24 of the Labour Relations Act, No. 66 of 1995 (“LRA”). The matter was scheduled for Arbitration on 4 April 2023 via Zoom.

2. The Applicant, Ms. Betsie Greyvenstein (Greyvenstein), was represented by Ms. Hester Human (Human), an official of the trade union SAOU. The Respondent was represented by Mr. Vuyisule George Gubuza (Gubuza)

3. The process was digitally recorded, and I took handwritten notes.

4. The Parties had agreed in the pre-arbitration minute that the matter he dealt with on papers, and it was agreed that these would be submitted on 11 April 2023.

5. The Applicant submitted a bundle of documents marked A.

ISSUE TO BE DECIDED:

6. The interpretation and application, in terms of Section 24 of the LRA, of ELRC Resolution 3 of 2006 (Collective Agreement) as to whether the Riebeek Secondary School (School) should have been upgraded on 1 January 2020, and Greyvenstein’s salary notch adjusted accordingly.

7. If I find in the positive, I must decide upon an appropriate remedy.

BACKGROUND:

8. Greyvenstein is employed as the principal of the School. The School was allocated 26 educator posts for the year 2019 and 27 for 2020.

REMEDY:

9. Greyvenstein sought her post to be re-graded by the Respondent from 1 January 2020 in terms of ELRC Resolution 3 of 2006 and not 01 January 2021, and to be paid the requisite back pay.

SURVEY OF EVIDENCE AND ARGUMENT:

10. For purposes of this award, I do not intend, to record verbatim evidence led, submissions made and or arguments raised on record. Only the prominent points raised by each party in their evidence that have a bearing on the issue in dispute and to be decided are recorded hereunder. I did, however, consider all the evidence that was presented in rendering this award.

APPLICANT’S VERSION:

11. Greyvenstein was appointed by the Free State Department of Education as Principal on 01 Aug 2016, A8, at Riebeeck Secondary School (School).

12. On 13 December 2021 Greyvenstein visited the SAOU Free State offices and only then became aware that her post should have been upgraded on 1 January 2020 in SAOU’s interpretation of the ELRC Resolution 3 of 2006 or as contained in the Personnel Administrative Measures (PAM) as amended on 12 February 2016 Chapter A paragraph A.3.3 and A.3.5. On the same date the SAOU wrote a letter to the Respondent informing them of the error and requesting them to rectify it.

13. The SAOU obo the Applicant referred the matter to the ELRC on 20 April 2022 as an enforcement of a collective agreement. The Commissioner found that the matter was referred incorrectly, and that Greyvenstein should re-refer the matter as interpretation and application of ELRC Collective Agreement No.3 of 2006, which she did.

14. On 1 August 2022, the Council granted condonation application and ordered the matter to be set down for arbitration.

15. ELRC Resolution 3 of 2006 No 4.1(a) and (c), A4 and 5, and the Personnel Administrative Measures (PAM) as amended on 12 February 2016 Chapter A paragraph A.3.3 and A.3.5, A1, states:

“A.3.3 A school is up-graded to a higher grading level if, for two consecutive years, the educator post allocation to the school reaches or exceeds the number of posts required for the up-grading of the school….

A.3.5 Re-grading of schools should be done on an annual basis and should be effective from 1 January, based on the school’s post establishments of the previous year and of the current year. The higher salary notch will apply from date of up-grading of the school. “

16. A collective agreement is a written agreement concerning terms and conditions of employment or any matter of mutual interest concluded between an employer and/or employers’ organization and registered trade unions. The legal effect of a collective agreement is that it will supersede the affected employees’ individual contracts of employment. A Collective Agreement is binding to the parties of the agreement.

18. On 20 September 2018, the school where Greyvenstein was employed as principal, received the final post or staff establishment for 2019. It was 26 posts, A13. The staff establishment was fixed and final and could not be changed.

19. On 10 September 2019, Riebeeck Secondary School received their final staff establishment for 2020. It was set at 27 posts, A14. This meant that for the period of January to December 2020, the school was awarded a fixed number of educator posts, 27.

20. According to ELRC Resolution 3 of 2006:

“ A school is up-graded to a higher grading level if, for two consecutive years, the educator post allocation to the school reaches or exceeds the number of posts required for the up-grading of the school.

21. A.3.2 of the PAM document states that the grading of a school determines the salary range of the principal as indicated in the second column of the table below.
.

22. For a school to be graded as P4, the school must have been issued with 25 to 45 posts with a minimum of 26 posts required for upgrading. In the case of Riebeeckstad Secondary School, the school had 26 posts in 2019 and 27 posts in 2020. According to the table, the minimum number of posts required for a P3 school to be upgraded to a P4 school, is 26. Riebeeckstad Secondary School met this requirement in 2019.

25. ELRC Resolution 3 of 2006 states further that:

“ Re-grading of schools should be done on an annual basis and should be effective from 1 January, based on the school’s post establishments of the previous year and of the current year. The higher salary notch will apply from date of up-grading of the school.

26. Riebeeckstad Secondary School qualified to be re-graded because the school’s educator post allocation met the minimum requirement of 26 for two consecutive years, namely:

26.1. 20 Sept 2018 = 26 posts for 2019

26.2. 10 Sept 2019 = 27 posts for 2020
27. Therefore, the school qualified to be re graded in January 2020 and not in January 2021 and therefore Greyvenstein qualified for a “higher salary notch from date of up-grading of the school” namely January 2020. The wording of the Agreement as well as the PAM is unambiguous and very clear: If for two consecutive years which means one year followed by another, the educator post allocation to the school reaches or exceeds the number of posts required for the up grading of the school. Re-grading of schools should be done on an annual basis and should be effective from 1 January, based on the school’s post establishments of the previous year and of the current year. The higher salary notch will apply from date of up-grading of the school. “The higher salary notch will apply from date of up-grading of the school.

28. On 15 October 2019, an award was issued in favour of SAOU obo A Taylor. The SAOU referred a failure to interpret and apply ELRC Collective Agreement 3 of 2006 when the Respondent only adjusted the Mr Taylor’s salary notch on 1 Jan 2016 when he qualified for an upward adjustment on 1 Jan 2015 in accordance with the SAOU’s interpretation based on the staff establishment of Mr Taylor’s school. (SAOU obo A Taylor PSES 754-16/17FS).

29. In May 2015 the SAOU referred a dispute to the ELRC for the interpretation and application of the same Resolution based on the same merits. During the Conciliation the Respondent agreed SAOU’s interpretation and the matter was resolved at conciliation (SAOU obo De Waal PSES 27-16/17FS). The Respondent will act inconsistent if they do not implement ELRC Resolution 3 of 2006 in the same manner as the abovementioned case.

RESPONDENT’S VERSION:

30. ELRC Resolution 3 of 2006 should be read in context. The resolution provides for a cool off period of two years to ensure that the growth in in educator post allocation is sustainable. According to the resolution “A school is up-graded to a higher grading level if, for two consecutive years, the educator post allocation to the school reaches or exceeds the number of posts required for the up-grading of the school as indicated in the table” (see (a) in page 2 of CA No 3 of 2006).

31. The resolution calls for the educator post allocation to be done for two consecutive years. The up grading of a post can only happen once the two years of educator post allocation has been completed. Given that the educator post allocation was done in September 2018 for implementation in January 2019, the first year of allocation is 2019 in this case. The second educator post allocation was done in September 2019 for implementation in January 2020. The two years period that is referred to in the resolution is from January 2019 to December 2020, A13 and 14.

32. The resolution also states clearly that the up-grading should be done in January using the post establishment of the previous year and of the current year, in this case the post establishment of the previous year will refer to that of 2020 while the current year will be 2021 in which in January of the up-grading becomes implementable. In this interpretation the Respondent will have fulfilled the requirements of two years and implementing in January.

33. It is for administrative reasons that schools are given the educator post establishment in September, but the reality is that they can only dispute or affirm them but besides that there is nothing they can do about or with them until January of the next year. As the school post establishment are for January, it can be argued that post allocation is done in January but only given to schools earlier for their convenience and proper planning.

34. In Greyvenstein’s interpretation of the resolution, this will mean that the up grading of the principal’s post of Riebeeckstad Secondary School should have been done taking only the teacher establishment of 2019 as verified without really checking on the sustainability over time of the allocation of 2020.

35. In terms of Greyvenstein’s interpretation of the resolution the upgrading would have been done before the educator establishment of Riebeeckstad Secondary School has completed two consecutive years as required by the resolution.

36. The Free State Department of Education’s interpretation of the resolution is the one used by all nine provincial departments of education in the country and is also supported by the Department of Basic Education (National).

37. Any interpretation of CA No 3 of 2006 that is different to the one adopted by the different departments of education will mean that all upgrading and downgrading of principals’ posts effected from March 2006 after the signing of CA No 3 of 2006 were done wrongly throughout the country in all provincial departments.

38. Greyvenstein’s interpretation also has a danger of opening floodgates with all the thousands of principals whose posts were either upgraded or downgraded declaring disputes about the interpretation of the resolution.

ANALYSIS OF EVIDENCE AND ARGUMENT:

39. In BIFAWU obo Members v Commission for Conciliation, Mediation and Arbitration and Others (JR306/13) [2018] ZALCJHB 303, the Court reaffirmed the principle that, when interpreting collective agreements, arbitrators must strive to give effect to the intention of the agreement and must give the words used by the parties their ordinary and popular meaning if no ambiguity is present.

40. ELRC Resolution 3 of 2006 is clear. It states: “A school is up-graded to a higher grading level if, for two consecutive years, the educator post allocation to the school reaches or exceeds the number of posts required for the up-grading of the school as indicated in the table”. At 4.1(a) and (c), A4 and 5, and the Personnel Administrative Measures (PAM) as amended on 12 February 2016 Chapter A paragraph A.3.3 and A.3.5, A1, states:

“A.3.3 A school is up-graded to a higher grading level if, for two consecutive years, the educator post allocation to the school reaches or exceeds the number of posts required for the up-grading of the school….

A.3.5 Re-grading of schools should be done on an annual basis and should be effective from 1 January, based on the school’s post establishments of the previous year and of the current year. The higher salary notch will apply from date of up-grading of the school. “

41. As of 1 January 2020, the School had 26 posts for 2019 (the previous year) and had been allocated 27 posts for 2020, the current year. As stated above the re-grading of schools should be done on an annual basis effective 1 January.

42. In interpreting a collective agreement, I am required to strive to give effect to the intention of the agreement and must give the words used by the parties their ordinary and popular meaning if no ambiguity is present. In my view there is no ambiguity present. As of January 2020, the ‘previous year’ meant 2019 and the ‘current year’, 2020.

43. In terms of A.3.5 this means that the school should have been upgraded, effective 1 January 2020, and the “higher salary notch will apply from date of up-grading of the school”. The School should then have been upgraded with effect from 2020, and Greyvenstein salary notch adjusted accordingly.

44. Obviously, if the post allocation fell below 26 for 2021 the School should have been regraded accordingly effective 1 January 2021.

FINDING

45. In terms of ELRC Resolution 3 of 2006 and PAM the School should have been upgraded with effect 1 January 2020.

46. Greyvenstein is entitled to the relief she seeks.

AWARD

47. The Respondent is ordered to comply with provisions of the Collective Agreement and PAM and upgrade the School with effect from 1 January 2020, and to adjust the Applicant, Betsie Greyvenstein’s salary notch accordingly, by 31 May 2023.

D H Smith

ELRC PANELIST
20 April 2023