PSES 405-18/19 GP
PSES 405-18/19 GP
Award Date:
13 November 2018
Case Number: PSES 405-18/19 GP
Province: Gauteng
Applicant: PSA obo Bomba, A,D & 1 Other
Respondent: SEDIBENG TVET
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Sedibeng TVET College situated at no 37 Voortrekker Road, Vereeniging.
Award Date: 13 November 2018
Arbitrator: THABE PHALANE
Panellist/s: THABE PHALANE
Case No.: PSES 405-18/19 GP
Date of Award: 13 NOVEMBER 2018
In the ARBITRATION between:
PSA obo Bomba, A,D & 1 Other
(Union / Applicant)
and
SEDIBENG TVET
(Respondent)
Union/Applicant’s representative: Mr T Madimabe-Union Official-PSA
Telephone: 011 718 5400/ 078 904 8105/ 074 540 7303
Telefax: 011 718 5419/22
Email: tuni.madimabe@psa.co.za
Respondent’s representative: Mr. J. D Olifant
Telephone: 016 420 2563/ 082 314 9057/ 012 312 5208
Telefax: 016 422 6646
Email: Jacob@sedcol.co.za/ mashinini.s@dhet.gov.za
A. DETAILS OF HEARING AND REPRESENTATION.
1.1 The Arbitration proceedings took place on the 24 October 2018 at Sedibeng TVET College situated at no 37 Voortrekker Road, Vereeniging.
1.2 Both parties attended and the Applicants were represented by Mr T Madimabe, a Union Official, whilst the Respondent was represented by Mr. D Olifant, the Respondent’s representative.
1.3 The proceedings were digitally recorded and no interpretation services were required.
1.4 The parties handed in a common bundle of documents marked Bundle ”A”, with pages 01-24.
1.5 The parties previously entered into a pre arbitration minute on 20 September 2018 which was read into the record.
1.6 The parties also agreed that they will submit written heads of argument on or before the 31 October 2018.
1.7 The Respondent submitted its written argument on 27 October 2018 and the Applicants submitted their written arguments on 30 October 2018.
1.8 The issue in dispute was brought by the Applicants ad they had a duty to begin presenting evidence.
B. ISSUE TO BE DECIDED
I am required to determine whether the Respondent incorrectly applied the ELRC Collective Agreement no 3 of 2013 (Establishing parity between conditions of service of Lectures in Public FET Colleges with those employed in Public Service) correctly when they failed to pay the Applicants the meal and travelling expenditure incurred when they attended a training course provided by the Respondent.
C. PRELIMINARY ISSUES
1.9 There were no preliminary issued which were raised.
D. BACKGROUND TO THE ISSUE
1.10 The 1st Applicant is Mr Ambrose Dekane Bomba and he is employed as a lecture at Sedibeng TVET College since January 2011. He has a National Diploma in Electrical Engineering and a Post Graduate Certificate in Education.
1.11 The 2nd Applicant is Mr Ngubenyati Thamsanqa Nicholas Mhlomi and he is also appointed as a lecture with the Respondent since January 2006.
1.12 They entered into a contract to attended training at Arcellor Mittal for 24 months on 02 October 2015. When they returned from training they were not paid the meal and travelling costs they incurred for attending the training courses.
1.13 They lodged a grievance on 09 February 2018 and after the Respondent failed to resolve their grievance on 13 April 2018, they contacted their Union and referred the dispute to Council
1.14 They submit that the contract they entered into with the Respondent does not bar them from claiming travel, meal allowances and overtime.
1.15 The Respondent on the other hand submitted that the Applicants understood by entering into the contract that they were not going to claim because the Respondent had to appoint temporary lectures because their training was of a long duration.
1.16 They wanted to be paid their costs of training as a remedy.
SURVEY OF EVIDENCE AND ARGUMENT
E. APPLICANT’S EVIDENCE AND ARGUMENTS
1st Applicant, Mr Ambrose Dekane Bomba.
1.17 The Applicant acknowledged that the contract they entered into stated that they are expected to travel at their own cost and to provide their own meals.
1.18 He submitted however that it was the college that bears the costs of training because nowhere in the contract does it specifically state that they cannot claim for meals and travel costs.
1.19 The contract instead provided that the College was to bear the cost of training and two attempts to Trade Testing.
Under cross examination
1.20 He submitted that his contract does no say that they cannot claim.
1.21 There is no contradiction when it states that the College was supposed to provide them with a college vehicle, and provide money beforehand, as well as meals if the host did not provide meals.
1.22 The contract does not explicitly bar them from claiming after the training. He understood that they will pay costs and later claim. This would apply for the entire training, until trade test, and not only for time spent with the Training provider.
1.23 The Collective agreement defines benefits I clause 8.5 which does not include meals and travel costs.
1.24 There is however college policies that allow for the claim and even states the amount of meals to be paid, being R 50. When they previously attended training they were also provided with the College vehicle, and the R 50 was payable when the service provider did not pay for meals.
1.25 The contract was thus entered into in good faith and they did not expect the College to deny them benefits that they always enjoyed before.
2nd Applicant, Mr Ngubenyati Thamsanqa Nicholas Mhlomi.
1.26 The Applicant concurred with the 1st Applicant and added that it was the first time that they attended and were not paid their costs for training.
1.27 They understood that they will bear the costs and later claim as they normally did.
1.28 This is the reason they wanted to be paid, because it has happened before, and they attempted to resolve the matter amicably with the College with no success.
Under cross examination
1.29 The Applicant submitted that it was not the first time they attended training.
1.30 The only difference between previous training is the length of time of the training.
1.31 They did not enter into contracts on previous trainings.
1.32 There were no replacement lectures when they attended training on previous occasions.
1.33 There is accordingly no difference because the purpose or benefit is one thing, training.
1.34 He did not sign away his rights by entering into the contract with the College stating they cannot claim these benefits. He signed in good faith because the Managers of the Training Provider were present and they were not given time to read through the contract.
1.35 He submitted that previously no one used their own transport and they were given R 50 meal allowance.
F. RESPONDENT’S EVIDENCE AND ARGUMENTS
Mr. MAMOCHITE GEORGE MOTHAPO
1.36 The witness is the Principal of the College. His duties include providing strategic leadership and day to day Management and administration of the College.
1.37 The Applicants were issued with contracts in order to capacitate them by training at Arcellor Mittal.
1.38 This was a special case because the College was going to appoint substitute Lectures in the place of those who underwent training.
1.39 The Applicants agreed to the terms of the contract. The College was to pay for the costs of training.
1.40 Their contracts stated in clause 3.5 and 3.6 that they were to travel at own cost and provide own meals. It was not necessary to state that they will not claim for these costs.
1.41 He is not the person who presented the contact o the Applicants but it was the Deputy Principal-Academic Affairs, who presented the contract and signed on behalf of the Respondent.
1.42 The Applicants cannot claim benefits in terms of the Collective Agreement 3 of 2013 because the definition of benefits in the Collective Agreement excludes the meal and travel sots the claim.
Under Cross examination
1.43 He submitted that on different types of training the College would provide lunch.
1.44 They would also provide transport or the employees would get themselves to the facility and they provide food at that campus.
1.45 There was no allowance because they provided food. He does deny that the 2nd Applicant was issued with R 50 but does not recall the College issuing the R 50.
1.46 The costs of training are tuition and teaching.
1.47 In previous training no contracts were issued. There was no substitute lectures and this was explained to them by the Deputy Principal at the signing of the contract.
1.48 He was however not present when this was explained to the Applicants and he had no reason to confirm with them.
1.49 He conceded that the reply to the Applicants’ grievance does not reiterate to them that they were not going to claim. It was understood that this was explained to them.
1.50 He understands that there was no haste in signing the contracts.
1.51 The procedure to reimburse the employee is that that permission must be sought and approval granted. Then they must submit a travel claim and supporting documents.
1.52 The fact that the contract does not state that they will not claim imply that they can claim for costs incurred. This was understood by the College and the lectures.
ANALYSIS OF EVIDENCE AND SUBMISSIONS
1.53 The parties presented evidence as well as written submissions which I have also considered when arriving at these findings. I have also referred to relevant case law which is applicable to this matter.
1.54 A dispute about the interpretation refers to the meaning of the provisions of the agreement and the dispute about the application refers to the effect of the implementation or lack therefor of the Collective agreement. This is a dispute about the application of a collective agreement.
1.55 The purpose of Collective Agreement 3 of 2013 is to establish parity in the conditions of service for lectures employed at Public Further Education and Training Colleges to those in the Public Service.
1.56 Clause 4.4 of the Collective Agreement states that :“No legitimately employed lecturer shall receive benefits that are less favourable than what he/she received on the date of signing this Collective Agreement”.
1.57 The Applicants allege that they were not treated fairly because the Respondent seeks to exclude their benefits or existing conditions of service by both a narrow definition of benefits, as well as the exclusion from liability by means of contractual arrangements.
1.58 The Respondent on the other hand submitted that the term “benefit” is clearly defined in the Collective agreement and it excludes the Applicants claim.
1.59 In addition, the Applicants were very much aware that they would not be able to claim as they agreed in their contracts.
1.60 The Respondents argument is not sustainable because the Court in Apollo Tyres South Africa (Pty) Ltd v CCMA & Others (2013) 34 IL 1120 (LAC), the benefit was not confined to rights arising ex contractu or ex lege, but included rights judicially created as well as advantage or privileges employees have been offered or granted in terms of a policy or practice subject to the employer’s discretion.
1.61 The benefit here is the provision of training. It is not the costs of travel or meals. There is accordingly no difference because the benefit was provided, which is the training, and not how long or how it was agreed to or what logistics are in place.
1.62 The dispute is therefore not one about whether the Applicants were receiving benefits that are less favorable, but that there was unfair labour practice committed by the Respondent in relation to the provision of the benefit.
1.63 It is my finding therefore that the Applicant has failed to show that the Respondent applied the provisions of Collective Agreement 3 of 2013 incorrectly.
1.64 The reason is that they claim unfair conduct in relation to the provision of the benefit, training.
In light of the above I deem the following ruling competent.
G. AWARD.
1.65 The Applicant has failed to show that the Respondent applied the provisions of Collective agreement 3 of 2013 incorrectly.
1.66 The Applicant has referred an incorrect dispute as the dispute is actually about the provision of a benefit.
1.67 The Applicant may refer an unfair labour practice dispute relating to benefits
1.68 The matter is consequently dismissed.
1.69 There is no order as to costs.
(signed) PANELIST
THABE PHALANE
Province: Gauteng
Applicant: PSA obo Bomba, A,D & 1 Other
Respondent: SEDIBENG TVET
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Sedibeng TVET College situated at no 37 Voortrekker Road, Vereeniging.
Award Date: 13 November 2018
Arbitrator: THABE PHALANE
Panellist/s: THABE PHALANE
Case No.: PSES 405-18/19 GP
Date of Award: 13 NOVEMBER 2018
In the ARBITRATION between:
PSA obo Bomba, A,D & 1 Other
(Union / Applicant)
and
SEDIBENG TVET
(Respondent)
Union/Applicant’s representative: Mr T Madimabe-Union Official-PSA
Telephone: 011 718 5400/ 078 904 8105/ 074 540 7303
Telefax: 011 718 5419/22
Email: tuni.madimabe@psa.co.za
Respondent’s representative: Mr. J. D Olifant
Telephone: 016 420 2563/ 082 314 9057/ 012 312 5208
Telefax: 016 422 6646
Email: Jacob@sedcol.co.za/ mashinini.s@dhet.gov.za
A. DETAILS OF HEARING AND REPRESENTATION.
1.1 The Arbitration proceedings took place on the 24 October 2018 at Sedibeng TVET College situated at no 37 Voortrekker Road, Vereeniging.
1.2 Both parties attended and the Applicants were represented by Mr T Madimabe, a Union Official, whilst the Respondent was represented by Mr. D Olifant, the Respondent’s representative.
1.3 The proceedings were digitally recorded and no interpretation services were required.
1.4 The parties handed in a common bundle of documents marked Bundle ”A”, with pages 01-24.
1.5 The parties previously entered into a pre arbitration minute on 20 September 2018 which was read into the record.
1.6 The parties also agreed that they will submit written heads of argument on or before the 31 October 2018.
1.7 The Respondent submitted its written argument on 27 October 2018 and the Applicants submitted their written arguments on 30 October 2018.
1.8 The issue in dispute was brought by the Applicants ad they had a duty to begin presenting evidence.
B. ISSUE TO BE DECIDED
I am required to determine whether the Respondent incorrectly applied the ELRC Collective Agreement no 3 of 2013 (Establishing parity between conditions of service of Lectures in Public FET Colleges with those employed in Public Service) correctly when they failed to pay the Applicants the meal and travelling expenditure incurred when they attended a training course provided by the Respondent.
C. PRELIMINARY ISSUES
1.9 There were no preliminary issued which were raised.
D. BACKGROUND TO THE ISSUE
1.10 The 1st Applicant is Mr Ambrose Dekane Bomba and he is employed as a lecture at Sedibeng TVET College since January 2011. He has a National Diploma in Electrical Engineering and a Post Graduate Certificate in Education.
1.11 The 2nd Applicant is Mr Ngubenyati Thamsanqa Nicholas Mhlomi and he is also appointed as a lecture with the Respondent since January 2006.
1.12 They entered into a contract to attended training at Arcellor Mittal for 24 months on 02 October 2015. When they returned from training they were not paid the meal and travelling costs they incurred for attending the training courses.
1.13 They lodged a grievance on 09 February 2018 and after the Respondent failed to resolve their grievance on 13 April 2018, they contacted their Union and referred the dispute to Council
1.14 They submit that the contract they entered into with the Respondent does not bar them from claiming travel, meal allowances and overtime.
1.15 The Respondent on the other hand submitted that the Applicants understood by entering into the contract that they were not going to claim because the Respondent had to appoint temporary lectures because their training was of a long duration.
1.16 They wanted to be paid their costs of training as a remedy.
SURVEY OF EVIDENCE AND ARGUMENT
E. APPLICANT’S EVIDENCE AND ARGUMENTS
1st Applicant, Mr Ambrose Dekane Bomba.
1.17 The Applicant acknowledged that the contract they entered into stated that they are expected to travel at their own cost and to provide their own meals.
1.18 He submitted however that it was the college that bears the costs of training because nowhere in the contract does it specifically state that they cannot claim for meals and travel costs.
1.19 The contract instead provided that the College was to bear the cost of training and two attempts to Trade Testing.
Under cross examination
1.20 He submitted that his contract does no say that they cannot claim.
1.21 There is no contradiction when it states that the College was supposed to provide them with a college vehicle, and provide money beforehand, as well as meals if the host did not provide meals.
1.22 The contract does not explicitly bar them from claiming after the training. He understood that they will pay costs and later claim. This would apply for the entire training, until trade test, and not only for time spent with the Training provider.
1.23 The Collective agreement defines benefits I clause 8.5 which does not include meals and travel costs.
1.24 There is however college policies that allow for the claim and even states the amount of meals to be paid, being R 50. When they previously attended training they were also provided with the College vehicle, and the R 50 was payable when the service provider did not pay for meals.
1.25 The contract was thus entered into in good faith and they did not expect the College to deny them benefits that they always enjoyed before.
2nd Applicant, Mr Ngubenyati Thamsanqa Nicholas Mhlomi.
1.26 The Applicant concurred with the 1st Applicant and added that it was the first time that they attended and were not paid their costs for training.
1.27 They understood that they will bear the costs and later claim as they normally did.
1.28 This is the reason they wanted to be paid, because it has happened before, and they attempted to resolve the matter amicably with the College with no success.
Under cross examination
1.29 The Applicant submitted that it was not the first time they attended training.
1.30 The only difference between previous training is the length of time of the training.
1.31 They did not enter into contracts on previous trainings.
1.32 There were no replacement lectures when they attended training on previous occasions.
1.33 There is accordingly no difference because the purpose or benefit is one thing, training.
1.34 He did not sign away his rights by entering into the contract with the College stating they cannot claim these benefits. He signed in good faith because the Managers of the Training Provider were present and they were not given time to read through the contract.
1.35 He submitted that previously no one used their own transport and they were given R 50 meal allowance.
F. RESPONDENT’S EVIDENCE AND ARGUMENTS
Mr. MAMOCHITE GEORGE MOTHAPO
1.36 The witness is the Principal of the College. His duties include providing strategic leadership and day to day Management and administration of the College.
1.37 The Applicants were issued with contracts in order to capacitate them by training at Arcellor Mittal.
1.38 This was a special case because the College was going to appoint substitute Lectures in the place of those who underwent training.
1.39 The Applicants agreed to the terms of the contract. The College was to pay for the costs of training.
1.40 Their contracts stated in clause 3.5 and 3.6 that they were to travel at own cost and provide own meals. It was not necessary to state that they will not claim for these costs.
1.41 He is not the person who presented the contact o the Applicants but it was the Deputy Principal-Academic Affairs, who presented the contract and signed on behalf of the Respondent.
1.42 The Applicants cannot claim benefits in terms of the Collective Agreement 3 of 2013 because the definition of benefits in the Collective Agreement excludes the meal and travel sots the claim.
Under Cross examination
1.43 He submitted that on different types of training the College would provide lunch.
1.44 They would also provide transport or the employees would get themselves to the facility and they provide food at that campus.
1.45 There was no allowance because they provided food. He does deny that the 2nd Applicant was issued with R 50 but does not recall the College issuing the R 50.
1.46 The costs of training are tuition and teaching.
1.47 In previous training no contracts were issued. There was no substitute lectures and this was explained to them by the Deputy Principal at the signing of the contract.
1.48 He was however not present when this was explained to the Applicants and he had no reason to confirm with them.
1.49 He conceded that the reply to the Applicants’ grievance does not reiterate to them that they were not going to claim. It was understood that this was explained to them.
1.50 He understands that there was no haste in signing the contracts.
1.51 The procedure to reimburse the employee is that that permission must be sought and approval granted. Then they must submit a travel claim and supporting documents.
1.52 The fact that the contract does not state that they will not claim imply that they can claim for costs incurred. This was understood by the College and the lectures.
ANALYSIS OF EVIDENCE AND SUBMISSIONS
1.53 The parties presented evidence as well as written submissions which I have also considered when arriving at these findings. I have also referred to relevant case law which is applicable to this matter.
1.54 A dispute about the interpretation refers to the meaning of the provisions of the agreement and the dispute about the application refers to the effect of the implementation or lack therefor of the Collective agreement. This is a dispute about the application of a collective agreement.
1.55 The purpose of Collective Agreement 3 of 2013 is to establish parity in the conditions of service for lectures employed at Public Further Education and Training Colleges to those in the Public Service.
1.56 Clause 4.4 of the Collective Agreement states that :“No legitimately employed lecturer shall receive benefits that are less favourable than what he/she received on the date of signing this Collective Agreement”.
1.57 The Applicants allege that they were not treated fairly because the Respondent seeks to exclude their benefits or existing conditions of service by both a narrow definition of benefits, as well as the exclusion from liability by means of contractual arrangements.
1.58 The Respondent on the other hand submitted that the term “benefit” is clearly defined in the Collective agreement and it excludes the Applicants claim.
1.59 In addition, the Applicants were very much aware that they would not be able to claim as they agreed in their contracts.
1.60 The Respondents argument is not sustainable because the Court in Apollo Tyres South Africa (Pty) Ltd v CCMA & Others (2013) 34 IL 1120 (LAC), the benefit was not confined to rights arising ex contractu or ex lege, but included rights judicially created as well as advantage or privileges employees have been offered or granted in terms of a policy or practice subject to the employer’s discretion.
1.61 The benefit here is the provision of training. It is not the costs of travel or meals. There is accordingly no difference because the benefit was provided, which is the training, and not how long or how it was agreed to or what logistics are in place.
1.62 The dispute is therefore not one about whether the Applicants were receiving benefits that are less favorable, but that there was unfair labour practice committed by the Respondent in relation to the provision of the benefit.
1.63 It is my finding therefore that the Applicant has failed to show that the Respondent applied the provisions of Collective Agreement 3 of 2013 incorrectly.
1.64 The reason is that they claim unfair conduct in relation to the provision of the benefit, training.
In light of the above I deem the following ruling competent.
G. AWARD.
1.65 The Applicant has failed to show that the Respondent applied the provisions of Collective agreement 3 of 2013 incorrectly.
1.66 The Applicant has referred an incorrect dispute as the dispute is actually about the provision of a benefit.
1.67 The Applicant may refer an unfair labour practice dispute relating to benefits
1.68 The matter is consequently dismissed.
1.69 There is no order as to costs.
(signed) PANELIST
THABE PHALANE