ELRC58-20/21MP
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ELRC58-20/21MP
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Award Date:
08 March 2021
Commissioner: VEESLA SONI
Case No.: ELRC58-20/21MP
Date of Award: 08 March 2021
In the ARBITRATION between:
SADTU OBO MOSWAZI MABASA AND OTHERS APPLICANTS
and
PROVINCIAL DEPARTMENT OF EDUCATION – MPUMALANGA RESPONDENT
Union/Applicant’s representative: Stanley Mphahlele
Email: motseng@mweb.co.za
Telephone: 082 305 2891
Respondent’s representative: Jacques Teron and Advocate Koosen
Email: jacques@adendorffs.com
Telephone: 0760497438
DETAILS OF HEARING AND REPRESENTATION
1. The dispute was referred to the Education Labour Relations Council (hereinafter referred to as the (“ELRC”). The matter was scheduled for arbitration on 29 October 2020, via zoom. The matter was adjourned and finalized on 24 February 2021.
2. The Applicant, Moswazi Mabasa was present online and was represented by an attorney, Mr Stanley Mphahlele, and the Respondent, Provincial Department of Education - Mpumalanga. was represented by Jacques Teron, an attorney who instructed Advocate Koosen.
ISSUE TO BE DECIDED
3. This matter is brought in terms of section 24(2), [24(5)] of the Labour Relations Act 66 of 1995, as amended (LRA) and relates to the interpretation and application of a collective agreement. It is the applicant’s case that the respondent incorrectly interpreted and applied clauses relating to the job description in the Collective Agreement Number 4 of 2017(“the Agreement”).
4. I am tasked to interpret clauses relating to the Applicants job description as set out in the Agreement, and should relief be required, to order the appropriate relief. In effect a decision as to whether the Employees are to be employed in terms of the Employment of Educators Act and not Public Service and to award the necessary relief.
BACKGROUND AND SURVEY OF EVIDENCE
5. The Applicants are either assistant directors or deputy directors and are currently employed in terms of the Public Service Act.
6. The Applicants sought an order on the basis that the Respondent change the job titles from deputy director, assistant director, and labour relations practitioner to CES, DCES and SES and to remunerate accordingly.
7. The Respondent’s case was that there was no infringement of right and that the Applicants case be dismissed.
8. The issue in dispute: The Mpumalanga Department of Education to change the job titles of the Labour Relations Officers to be in line with the Collective Agreement number 4 of 2017 (hereinafter referred to as the “Agreement”) and pay the employees according to their job title as per the agreement.
9. The parties elected to present argument is support of the case as it related to the interpretation of the Agreement and the dispute was capable of being ventilated by way of arguments.
APPLICANT’S CASE
10. Mr Mphahlele stated that the issue was whether the Collective Agreement was applicable to the Applicants. The Respondent contended that the Collective Agreement was not applicable to the employees. All the Applicants were office based employees called “labour relations officers”, employed in terms of the Public Service Act.
11. The Collective Agreement explained the duties of the above employees. For instance, in so far as the labour relations employees were concerned, it indicated what was expected of them in terms of planning and organizing, development of other employees, managing inter personal conflict and managing problems.
12. It was contended that the Collective Agreement was applicable to the employees. The reason for such an argument was based on the fact that the employees were educators. The National Education Policy Act ( NEPA) number 27 of 1996 defines an educator as: “any person who teaches, educates, or trains other persons at an education institution or assists in rendering education services or education auxiliary or support services, provided by or in an education department, but does not include any officer or employee as defined in section 1 of the Public Service Act of 1994.” In the Public Service Act (PSA) an educator is defined as: “educator defined in section 1 of the Employment of Educators Act 76 of 1998 (EEA).”
13. The definition of an educator in the EEA accords with the definition of an educator in the NEPA. The employer in the same act, EEA, is defined as:
“1(a) in relation to any provision to chapter 4, 5 or 7, which applies to or is connected with the employer of an educator in the service of the department of basic education is the director general.
1 (b) An educator in the service of Provincial Education means the head of department.”
14. In terms of section 4 (1) of EEA: salaries and other conditions of educators: “ notwithstanding anything to the contrary in any law, but subject to the provisions of this section, the Labour Relations Act, or any collective agreement concluded by the Education Labour Relations Council, the minister shall determine the salaries and other conditions of service of educators.”
15. In terms of NEPA, section 6, the Minister of Basic education determines and declares policy, subject to consultation with trade unions in the ELRC. In the light of these various statutory provisions and the collective agreement itself, their contention was that the interpretation that sought to define office based educators, outside of the legislation in education, was not only untenable, but also out of kilter with the general reading and purport of the legislation. The following grounds supported their standpoint:
16. Firstly: Only the ELRC was the vehicle through which the minister can consult the employees on matters pertaining to education and policy. If it was argued that the Collective Agreement did not apply to them, then it implied that the employees were only seen but not heard in the workplace.
17. Secondly: Only the Education Labour Relations Council was the recognized by NEPA. A contention that the employees were Public Service Employees, would entail that they lack a forum where they could be consulted by the minister, through their trade unions.
18. Thirdly: It would also mean that the office based educators enjoyed limited collective bargaining rights on transversal issues such as salary negotiations and non-education specific issues, where they had a mutual interest with the employer, such as in the Collective Agreement, which defined their duties and obligations.
19. It was their view that an interpretation that is literal and narrow excluded the employees from the ambit of the collective agreement, and this would be out of kilter with the LRA, which guarantees labour rights to employees. A more literal and restrictive interpretation must be rejected in favour of a more purposive interpretation of the collective agreement, that is in sync with the education labour laws.
20. The interpretation offered by the employer to exclude the applicants was purely economic. If the Agreement is found to be applicable they will have to translate the employees to appropriate positions and salary scales.
21. Prior to June 2007, these employees who were in the department were all employed in terms of the EEA. Employees who came after 2007 were employed in terms of the PSA, in those positions.
22. All the Collective Agreements, including the one that is the subject of the dispute, once concluded, would be consolidated into personal administrative measures, known as PAM. The PAM provides a mechanism for such translation, in the event the Agreement is found to be applicable to the employees, the employer can translate the employees both in terms of rank and salary.
23. In chapter B of the PAM, page 97, 8.4.4 “transfer of employee from a public service post to an educator post:
8.4.4.1 an employee that occupies a public service post and is appointed to an equivalent educator post without a break in service, will retain his salary. The salary must be translated to the nearest higher notch on the applicable salary ranch.”
24. Another reason advanced by the Respondent was that not all employees had education related qualifications. Of the 22 members of the dispute about 10 did not have appropriate teaching qualifications but were qualified in other areas. It was argued that the Agreement should be applicable to the qualified employees.
25. In summary these employees as demonstrated are educators, and employed by Department of Education, and offered support to the department and were office based, as defined by the Act. They were employed by the head of department by the Department of Education. If the head of department were to consult on conditions of service, save on salary negotiations, the head would enter the labour relations forum and conduct the consultations there. If contended that they are public service employees, it would mean that these employees would have limited labour rights as opposed to other employees. The interpretation contended is restrictive and narrow and if sustained it will divest labour rights from the employees. That is impermissible if the Labour Relations Act is purposively interpreted.
RESPONDENT’S CASE
26. The nub of the Respondents argument was that the Agreement did not apply to the Applicants as they were employed in terms of the PSA and not EEA. The Agreement was only binding on employees in terms of the latter mentioned Act. Advocate Koosen argued that much of the arguments presented by the Applicants fell under a different arena and was outside the Agreement. The purpose of this arbitration was the interpretation and application of the said Agreement.
27. It was submitted that the referred case law in terms of the heads of argument, must provide an interpretation that is fair. The issue of fairness is questionable when some of the employees lacked the qualification as educators. It was argued that 10 of the applicants were not qualified educators, and it was then argued, that they could be excluded until they obtained the necessary qualifications. This request required some form of distinction between the employees, who were employed on the same level. The question that arises is twofold: how fair is this approach and secondly how do you reconcile that position with the actual argument being presented which is to interpret the agreement for the employees to be translated. The argument presents two options: either translate everyone and those that don’t qualify, should not be translated.
28. One cannot contract afresh as there was no provision in the Agreement that those that qualified should be included and translated. I am asked to adopt an interpretation that is different to the terms of the Agreement. Almost 50 percent do not qualify to be educators in terms of the EEA. On that basis alone the application cannot be upheld. There is no evidence that the balance of the applicants indeed have the necessary qualifications. This would amount to hearsay evidence.
29. Advocate Koosen referred to NEPA which defines an educator as: “any person who teaches, educates, or trains other persons at an education institution or assists in rendering education services or education auxiliary or support services, provided by or in an education department, but does not include any officer or employee as defined in section 1 of the Public Service Act of 1994.” In the PSA an educator is defined as: “educator defined in section 1 of the Employment of Educators Act 76 of 1998.”
30. He stated this very same Act excluded an employee employed in terms of section 1 of PSA. When we refer to section 1 of PSA, it defines an employee contemplated in section 8 of that Act. It was agreed by the parties that the Applicants were all employed in terms of section 8 of the PSA, which reinforces the argument that they are and must be excluded from the Agreement.
31. The definition of educators in EEA accords with the definition in NEPA, is non consequential because the applicants did not qualify as educators in terms of NEPA or in terms of EEA.
32. The counter argument was that they were indeed employed in terms of PSA, and to uphold the applicants argument, meant that the arbitrator had to disregard that they were PSA employees, and transform their employment to EEA. They were employed in terms of PSA, as per the agreed pre- arbitration minutes. To determine whether they fell under the scope of the EEA, the intention of the parties must be considered. Such an intention was not present. In terms of the Agreement it stated that it binds the employer and all employees in terms of the EEA and not NEPA or any of its prescripts. By their own admission they conceded they were employed by PSA and not EEA.
33. The Agreement has annexure A attached to it which seemed to have a conflict. Annexure A makes reference to the job description of the applicants and appears to have included them. This was not an argument by the Applicants and they abandoned same as it was premised on ambiguity. A finding for the applicants would entail a total disregard of clause 2 of the said agreement. This cannot be done simply because there appears to be some ambiguity and contradiction in annexure A. Advocate Koosen asked for a business like interpretation, as not everyone had the qualification and it would cause a conflict within that group and an administrative burden on the employer. In a business sense such an interpretation should not be preferred.
34. The Agreement itself does not apply for an actual translation and is silent on that. If it was the intention to translate, then it would have provided for same. It also does not provide a mechanism for such translation. Annexure A was in conflict with the agreement and did not trump clause 2.
35. PAM: 8.4.4 and 8.4.4.1: if you were appointed in terms of PSA and if you were employed in terms of EEA, you would be on the same salary. It did not provide for a translation. It refers to an appointment or transfer not a translation. A transfer was different to a translation; the latter occurs when your position is changed to something else.
36. Much was being made about the LRA and the detriment they would suffer if not translated in terms of labour rights. This merely solicited sympathy for the Applicants. If the award did not favour them, it was not the end of the road. It was submitted that they could not translate, because there was no provision to do so and it made no business sense.
37. It was submitted that the Agreement was clear and unambiguous to the extent that the Agreement specifically bound the employer and only employees that were defined in the EEA. The purpose of the Agreement must also be considered. Reference was made to the letter dated 17 September 2018 From Mrs MOC Mhlabane ( Head of Education to Mr H M Mweli ( Director General, Department of Basic Education – Mpumalanga Province, and the reply on 7 November 2018. The reply provided a sound reason for the purpose of the Agreement and categorically stated that the intention of the Agreement was not to convert the existing PSA posts to educator posts as there was no provision for it in the Agreement.
38. On 4 February 2020 when a special labour relations management meeting was held for the implementation of the Agreement the minutes reflected : “ the translation of the Labour Relations post and ranks is not in line with the Public Service Act and regulations, nor with the Educators Employment Act 1998 as amended” and “ the proposed translation of the Labour Relations posts and officials to office – based educator posts and ranks will place severe implementation and parity challenges considering the following: a number of serving Labour Relations officials are not efficiently qualified educators and are therefore not registered with SACE.”
39. It was therefore submitted that the Agreement must be interpreted to apply to EEA and not PSA for all the above reasons.
APPLICANTS REPLY
40. It was argued that if a restrictive approach was applied, the applicants would not have mechanisms for labour disputes. It will render collective bargaining untenable and cumbersome. Collective Bargaining in the public service is streamlined and addressed in a particular forum. The only bargaining forum is the Educations Labour Relations Act. If they have a collective agreement not applicable to them, this would raise the concern or question as to where the issues would be ventilated.
41. If there is a tension between the annexure in the Agreement and the Agreement itself, it must be resolved. The issue of who qualified and who did not, was important. It was not the doing of the employees that the employer employed people in its department who did not have the necessary education qualifications.
42. The business like argument contended by the Respondent would be apposite in making a distinction between those that did not qualify to be educators as opposed to those that did have the qualifications. As such a distinction could be made. This is not a huge number as it involved 22 employees. As such the burden was insignificant. It would not place the system and procedures into disarray.
43. NEPA and the attack on their argument, on the basis that it was redundant, as the Agreement made no reference to it, should be rejected. NEPA enables the Minister of Basic Education to declare policy. The fact that the Agreement did not expressly refer to NEPA, did not mean their argument was redundant. NEPA recognizes the ELRC as the bargaining forum; the employees would not have a forum to ventilate their concerns if a restrictive interpretation is preferred.
ANALYSIS OF EVIDENCE
44. The applicant referred a dispute in terms of section 24 of the LRA. Section 24 of the LRA provides for arbitration of disputes about the “interpretation or application” of collective agreements. The interpretation of this section (section 24) provides for a dispute resolution device ancillary to collective bargaining, not to be used to remedy an unfair labour practice under pretext that a term of a collective agreement has been breached. The phrase “interpretation or application” is not to be read disjunctively, the enforcement of the terms of a collective agreement is a process which follows on a positive finding about application not a facet of application.
45. A commissioner must, as the LRA requires, take all the facts into consideration including the description of the nature of the dispute, the outcome and the evidence. This approach was reaffirmed in the matter of NUMSA (Sinuko) v Powertech Transformers (DPM) and Others (2014) 35 ILJ 954 (LAC) where Coppin JA and had the following to say:
“What is a “dispute” per se, and how one is to recognize it, demands scrutiny. Logically, a dispute requires, at minimum, a difference of opinion about a question. A dispute about the interpretation of a collective agreement requires, at minimum, a difference of opinion about what a provision of the agreement means. A dispute about the application of a collective agreement requires, at minimum, a difference of opinion about whether it can be invoked ….”
46. A dispute over the interpretation of a collective agreement exists when the parties disagree over the meaning of a particular provision as in the matter before me and my role is not to create a new contract for the parties. In NUMSA and Others v Volkswagen SA (Pty) Ltd and Others 2001 (4) SA 1009 (LAC), the arbitrator applied the test of a “reasonable bystander”. This approach has been criticized on the basis that “a collective agreement in terms of the Labour Relations Act is not an ordinary contract, and the context within which a collective agreement operates under the Act is vastly different from that of an ordinary commercial contract.” The Labour Appeal Court stated that the primary objects of the Act, namely, the effective, fair and speedy resolution of labour disputes would be better served by “a practical approach to the interpretation and application of the collective agreement …… rather than by reference to purely contractual principles.” It would thus appear that in considering a collective agreement our courts while taking cognisance of the ordinary principles of interpretation of contract, will also apply a purposive approach in order to ensure that the interpretation is consistent with the primary objects of the Act.
47. In this matter the Applicants were employed by the Respondent in terms of the PSA, in a position referred to as Labour Relations Officers and are governed by section 8 of the PSA. The Respondent claimed that the prescripts of the Agreement were only binding on departmental employees as defined by the EEA. In amplification of their argument it was submitted the wording of the Agreement was clear and unambiguous in that it applied to EEA employees. Clearly it was silent on employees employed in terms of the PSA. It was submitted that it was silent on PSA employees, and more so that it specifically referred to EEA employees, was clearly demonstrating the intention of the said Agreement, that it applied to just EEA employees. In this regard I find it prudent to refer to the EEA.
48. The Employment of Educators Act 76 of 1998 defines an educator as: “ any person who teaches, educates or trains other persons or who provides professional educational services, including professional therapy and education psychological services, at any public school, departmental office or adult basic education center and who is appointed in a post on any educator established under this Act.”
49. It was contended that the Agreement was applicable to the employees as they were educators. NEPA defined an educator as: “any person who teaches, educates, or trains other persons at an education institution or assists in rendering education services or education auxiliary or support services, provided by or in an education department, but does not include any officer or employee as defined in section 1 of the Public Service Act of 1994.” In PSA an educator is defined as: “educator defined in section 1 of the Employment of Educators Act 76 of 1998.” It was argued that as per above, the definition of an educator in the EEA accords with the definition of an educator in the NEPA.
50. In terms of section 4 (1) of EEA: “ notwithstanding anything to the contrary in any law, but subject to the provisions of this section, the Labour Relations Act, or any collective agreement concluded by the Education Labour Relations Council, the minister shall determine the salaries and other conditions of service of educators.” Mr Mphahlele argued further that in terms of NEPA, section 6, the Minister of Basic education determines and declares policy, subject to consultation with trade unions in the ELRC. In terms of these various statutory provisions and the Agreement itself, an interpretation to define office based educators, outside of the legislation in education, was unsustainable, and out of kilter with the general reading of the legislation. Such an interpretation would extinguish any rights of the employees as they would not be able to engage in collective bargaining. They would lack the forum, being the ELRC, which allowed for consultations between the minister and trade unions and would have limited collective bargaining rights on transversal issues such as salary negotiations. As much as I appreciate this argument I am not in a position to formulate a new contract nor can I adopt an interpretation that is most fair for collective bargaining.
51. My role was to ascertain if they fell under the scope of the Agreement. In this instance the intention of the parties must be considered. In terms of the Agreement it stated that it binds the employer and all employees in terms of the EEA. All the arguments pertaining to NEPA, fell outside the Agreement as it did not incorporate NEPA or any of its prescripts. The Agreement categorically bound employees in terms of EEA. By their very own submission they conceded they were employed by PSA and not EEA. As much as I appreciate the reference to the surrounding legislation, I find that it did not imply that the Agreement must be read to include the applicants, being PSA employees.
52. NEPA defines an educator as: “any person who teaches, educates, or trains other persons at an education institution or assists in rendering education services or education auxiliary or support services, provided by or in an education department, but does not include any officer or employee as defined in section 1 of the Public Service Act of 1994.” In the Public Service Act (PSA) an educator is defined as: “educator defined in section 1 of the Employment of Educators Act 76 of 1998.” When we refer to section 1 of PSA, it defines an employee contemplated in section 8 of that very same Act. It was agreed by the parties that the Applicants were all employed in terms of section 8 of the PSA, which reinforces the argument that they are and must be excluded from the Agreement.
53. The definition of educators in EEA accords with the definition in NEPA, but this is non consequential because the applicants did not qualify as educators in terms of NEPA or in terms of EEA. I support and agree with the submissions by Advocate Koosen that it excluded an employee employed in terms of section 1 of PSA. Section 1 of PSA defines an employee contemplated in section 8 and the parties were in agreement that Applicants were all employed in terms of section 8 of the PSA. They are thus excluded. In terms of the Agreement it stated that it binds the employer and all employees in terms of the EEA. The Agreement was specific and selective and purposively did not incorporate NEPA or any of its prescripts. The Agreement unconditionally bound employees in terms of EEA.
54. The Applicants believed that a literal and narrow interpretation would exclude employees from the ambit of the Agreement and such is not in line with the LRA. A more purposive interpretation would ensure harmony with the educational labour laws. I accept that there will be economical consequences if found that the Agreement is applicable as the employer will need to translate the employees to appropriate positions and salary scales. I accept a literal interpretation will limit collective bargaining as the employees only vehicle to canvas mutual interest matters, would be the ELRC. Be that as it may the dispute before me is not a collective bargaining issue or the fairness thereof, but solely on the interpretation of their job description and whether it fell in line with the Agreement. The scope of the ELRC is set out in Par. 2 of the ELRC Constitution, Collective Agreement 6/2016. The applicants were employed by the Provincial Department of Education in terms of the Public Service Act and fall within the scope of the GPSSBC of the GPSSBC Constitution. Accordingly, they have access to collective bargaining in the GPSSBC.
55. My attention was drawn to Annexure A of the Agreement which appeared to have a conflict with clause 2. Annexure A made reference to the job description of the applicants and appeared to have included them. This is in conflict with clause 2 of the same Agreement. I am to consider the Agreement holistically and apply a common sense approach, one that expresses the intention of the parties. It was submitted by Mr Mphahlele that not all employees had the necessary qualification. He asked that those who were suitably qualified be translated and the remainder would remain employees in terms of PSA. I have serious difficulty in adopting such an approach, as it lacked any common sense. It will create a conflict within that group and an administrative burden on the employer.
56. The Agreement makes no provision for an actual translation and if that was the intention, it would have recorded such a clause. It also does not provide a mechanism for translation. Whatever annexure A states, it was in conflict with the agreement, and clause 2 must be upheld, as it was clear and unambiguous.
57. The Applicants then referred to PAM. In this regard it was argued that all collective agreements are consolidated into personal administrative measures, known as PAM. PAM provided a mechanism for translation if the Agreement is found to be applicable to the employees. Chapter B of PAM, page 97, 8.4.4 “transfer of employee from a public service post to an educator post: 8.4.4.1 an employee that occupies a public service post and is appointed to an equivalent educator post without a break in service, will retain his salary. The salary must be translated to the nearest higher notch on the applicable salary ranch.” PAM makes specific reference to appointment and transfer and there was no provision for the translation of employees. The matter before me entailed a translation of their posts and not the transfer. As such I find that PAM has no relevance.
58. A significant portion of the Applicants argument was that an interpretation contrary to their argument would amount to a sterilization of their labour rights, in particular in terms of collective bargaining. As much as I sympathize with the applicants, my role in the matter is limited, and that is to afford an interpretation to the Agreement. I cannot import an interpretation based on subjective feelings, but my finding must be sound, reasoned and one that considers the aim, purpose and all the terms of the agreement. In the absence of ambiguity, the words contained in the agreement must be afforded its plain and literal meaning. A Commissioner must characterize a dispute objectively and failure to do so is an irregularity and reviewable.
59. In BIFAWU obo Members v Commission for Conciliation, Mediation and Arbitration and Others (JR306/13) [2018] ZALCJHB 303 (27 September 2018) the court was required to consider whether a collective agreement was indeed ‘interpreted’ to give effect to the ‘true’ intention of the parties. The Labour 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.
60. I now turn to the purpose of the Agreement and the letter dated 17 September 2018 from the Head of Education to the Director General, requesting a response to the position whether employees under the Public Service Act would be converted. The response stated “ the purpose and intention of the agreement was not to convert existing Public Service Act posts to educator posts as there is no provision in the collective agreement that suggests any translation of posts.” Further support for this supposition was achieved on 4 February 2020 when a special labour relations management meeting was held for the implementation of the Agreement. It was noted that any translation would cause grave difficulties as individuals lacked the necessary qualifications and there would be an unbearable burden on the department.
61. The interpretation must be fair. Mr Mphahele argued some were not qualified as educators which amounted to about 10 of the applicants and he said they could be excluded until they obtained the necessary qualifications. He in essence required some form of distinction to be made between the employees, which I am not empowered to do, nor do I consider same to be fair. They were all employed on the same level. On that basis, the application has serious concerns and is difficult to uphold as a large portion of the educators did not hold the necessary qualifications and cannot be translated. This was a concession by the applicants.
62. In assessing the matter wholly and completely I find that the Agreement applied to educators employed in terms of EEA and not PSA.
AWARD
I make the following award:
63. The Collective Agreement no 4 of 2017 did not apply to the Applicants as they were employed in terms of the Public Service Act, which was excluded from the Agreement, that only applied to employees employed in terms of the Employment of Educators Act.
ELRC Commissioner : VEESLA SONI
Case No.: ELRC58-20/21MP
Date of Award: 08 March 2021
In the ARBITRATION between:
SADTU OBO MOSWAZI MABASA AND OTHERS APPLICANTS
and
PROVINCIAL DEPARTMENT OF EDUCATION – MPUMALANGA RESPONDENT
Union/Applicant’s representative: Stanley Mphahlele
Email: motseng@mweb.co.za
Telephone: 082 305 2891
Respondent’s representative: Jacques Teron and Advocate Koosen
Email: jacques@adendorffs.com
Telephone: 0760497438
DETAILS OF HEARING AND REPRESENTATION
1. The dispute was referred to the Education Labour Relations Council (hereinafter referred to as the (“ELRC”). The matter was scheduled for arbitration on 29 October 2020, via zoom. The matter was adjourned and finalized on 24 February 2021.
2. The Applicant, Moswazi Mabasa was present online and was represented by an attorney, Mr Stanley Mphahlele, and the Respondent, Provincial Department of Education - Mpumalanga. was represented by Jacques Teron, an attorney who instructed Advocate Koosen.
ISSUE TO BE DECIDED
3. This matter is brought in terms of section 24(2), [24(5)] of the Labour Relations Act 66 of 1995, as amended (LRA) and relates to the interpretation and application of a collective agreement. It is the applicant’s case that the respondent incorrectly interpreted and applied clauses relating to the job description in the Collective Agreement Number 4 of 2017(“the Agreement”).
4. I am tasked to interpret clauses relating to the Applicants job description as set out in the Agreement, and should relief be required, to order the appropriate relief. In effect a decision as to whether the Employees are to be employed in terms of the Employment of Educators Act and not Public Service and to award the necessary relief.
BACKGROUND AND SURVEY OF EVIDENCE
5. The Applicants are either assistant directors or deputy directors and are currently employed in terms of the Public Service Act.
6. The Applicants sought an order on the basis that the Respondent change the job titles from deputy director, assistant director, and labour relations practitioner to CES, DCES and SES and to remunerate accordingly.
7. The Respondent’s case was that there was no infringement of right and that the Applicants case be dismissed.
8. The issue in dispute: The Mpumalanga Department of Education to change the job titles of the Labour Relations Officers to be in line with the Collective Agreement number 4 of 2017 (hereinafter referred to as the “Agreement”) and pay the employees according to their job title as per the agreement.
9. The parties elected to present argument is support of the case as it related to the interpretation of the Agreement and the dispute was capable of being ventilated by way of arguments.
APPLICANT’S CASE
10. Mr Mphahlele stated that the issue was whether the Collective Agreement was applicable to the Applicants. The Respondent contended that the Collective Agreement was not applicable to the employees. All the Applicants were office based employees called “labour relations officers”, employed in terms of the Public Service Act.
11. The Collective Agreement explained the duties of the above employees. For instance, in so far as the labour relations employees were concerned, it indicated what was expected of them in terms of planning and organizing, development of other employees, managing inter personal conflict and managing problems.
12. It was contended that the Collective Agreement was applicable to the employees. The reason for such an argument was based on the fact that the employees were educators. The National Education Policy Act ( NEPA) number 27 of 1996 defines an educator as: “any person who teaches, educates, or trains other persons at an education institution or assists in rendering education services or education auxiliary or support services, provided by or in an education department, but does not include any officer or employee as defined in section 1 of the Public Service Act of 1994.” In the Public Service Act (PSA) an educator is defined as: “educator defined in section 1 of the Employment of Educators Act 76 of 1998 (EEA).”
13. The definition of an educator in the EEA accords with the definition of an educator in the NEPA. The employer in the same act, EEA, is defined as:
“1(a) in relation to any provision to chapter 4, 5 or 7, which applies to or is connected with the employer of an educator in the service of the department of basic education is the director general.
1 (b) An educator in the service of Provincial Education means the head of department.”
14. In terms of section 4 (1) of EEA: salaries and other conditions of educators: “ notwithstanding anything to the contrary in any law, but subject to the provisions of this section, the Labour Relations Act, or any collective agreement concluded by the Education Labour Relations Council, the minister shall determine the salaries and other conditions of service of educators.”
15. In terms of NEPA, section 6, the Minister of Basic education determines and declares policy, subject to consultation with trade unions in the ELRC. In the light of these various statutory provisions and the collective agreement itself, their contention was that the interpretation that sought to define office based educators, outside of the legislation in education, was not only untenable, but also out of kilter with the general reading and purport of the legislation. The following grounds supported their standpoint:
16. Firstly: Only the ELRC was the vehicle through which the minister can consult the employees on matters pertaining to education and policy. If it was argued that the Collective Agreement did not apply to them, then it implied that the employees were only seen but not heard in the workplace.
17. Secondly: Only the Education Labour Relations Council was the recognized by NEPA. A contention that the employees were Public Service Employees, would entail that they lack a forum where they could be consulted by the minister, through their trade unions.
18. Thirdly: It would also mean that the office based educators enjoyed limited collective bargaining rights on transversal issues such as salary negotiations and non-education specific issues, where they had a mutual interest with the employer, such as in the Collective Agreement, which defined their duties and obligations.
19. It was their view that an interpretation that is literal and narrow excluded the employees from the ambit of the collective agreement, and this would be out of kilter with the LRA, which guarantees labour rights to employees. A more literal and restrictive interpretation must be rejected in favour of a more purposive interpretation of the collective agreement, that is in sync with the education labour laws.
20. The interpretation offered by the employer to exclude the applicants was purely economic. If the Agreement is found to be applicable they will have to translate the employees to appropriate positions and salary scales.
21. Prior to June 2007, these employees who were in the department were all employed in terms of the EEA. Employees who came after 2007 were employed in terms of the PSA, in those positions.
22. All the Collective Agreements, including the one that is the subject of the dispute, once concluded, would be consolidated into personal administrative measures, known as PAM. The PAM provides a mechanism for such translation, in the event the Agreement is found to be applicable to the employees, the employer can translate the employees both in terms of rank and salary.
23. In chapter B of the PAM, page 97, 8.4.4 “transfer of employee from a public service post to an educator post:
8.4.4.1 an employee that occupies a public service post and is appointed to an equivalent educator post without a break in service, will retain his salary. The salary must be translated to the nearest higher notch on the applicable salary ranch.”
24. Another reason advanced by the Respondent was that not all employees had education related qualifications. Of the 22 members of the dispute about 10 did not have appropriate teaching qualifications but were qualified in other areas. It was argued that the Agreement should be applicable to the qualified employees.
25. In summary these employees as demonstrated are educators, and employed by Department of Education, and offered support to the department and were office based, as defined by the Act. They were employed by the head of department by the Department of Education. If the head of department were to consult on conditions of service, save on salary negotiations, the head would enter the labour relations forum and conduct the consultations there. If contended that they are public service employees, it would mean that these employees would have limited labour rights as opposed to other employees. The interpretation contended is restrictive and narrow and if sustained it will divest labour rights from the employees. That is impermissible if the Labour Relations Act is purposively interpreted.
RESPONDENT’S CASE
26. The nub of the Respondents argument was that the Agreement did not apply to the Applicants as they were employed in terms of the PSA and not EEA. The Agreement was only binding on employees in terms of the latter mentioned Act. Advocate Koosen argued that much of the arguments presented by the Applicants fell under a different arena and was outside the Agreement. The purpose of this arbitration was the interpretation and application of the said Agreement.
27. It was submitted that the referred case law in terms of the heads of argument, must provide an interpretation that is fair. The issue of fairness is questionable when some of the employees lacked the qualification as educators. It was argued that 10 of the applicants were not qualified educators, and it was then argued, that they could be excluded until they obtained the necessary qualifications. This request required some form of distinction between the employees, who were employed on the same level. The question that arises is twofold: how fair is this approach and secondly how do you reconcile that position with the actual argument being presented which is to interpret the agreement for the employees to be translated. The argument presents two options: either translate everyone and those that don’t qualify, should not be translated.
28. One cannot contract afresh as there was no provision in the Agreement that those that qualified should be included and translated. I am asked to adopt an interpretation that is different to the terms of the Agreement. Almost 50 percent do not qualify to be educators in terms of the EEA. On that basis alone the application cannot be upheld. There is no evidence that the balance of the applicants indeed have the necessary qualifications. This would amount to hearsay evidence.
29. Advocate Koosen referred to NEPA which defines an educator as: “any person who teaches, educates, or trains other persons at an education institution or assists in rendering education services or education auxiliary or support services, provided by or in an education department, but does not include any officer or employee as defined in section 1 of the Public Service Act of 1994.” In the PSA an educator is defined as: “educator defined in section 1 of the Employment of Educators Act 76 of 1998.”
30. He stated this very same Act excluded an employee employed in terms of section 1 of PSA. When we refer to section 1 of PSA, it defines an employee contemplated in section 8 of that Act. It was agreed by the parties that the Applicants were all employed in terms of section 8 of the PSA, which reinforces the argument that they are and must be excluded from the Agreement.
31. The definition of educators in EEA accords with the definition in NEPA, is non consequential because the applicants did not qualify as educators in terms of NEPA or in terms of EEA.
32. The counter argument was that they were indeed employed in terms of PSA, and to uphold the applicants argument, meant that the arbitrator had to disregard that they were PSA employees, and transform their employment to EEA. They were employed in terms of PSA, as per the agreed pre- arbitration minutes. To determine whether they fell under the scope of the EEA, the intention of the parties must be considered. Such an intention was not present. In terms of the Agreement it stated that it binds the employer and all employees in terms of the EEA and not NEPA or any of its prescripts. By their own admission they conceded they were employed by PSA and not EEA.
33. The Agreement has annexure A attached to it which seemed to have a conflict. Annexure A makes reference to the job description of the applicants and appears to have included them. This was not an argument by the Applicants and they abandoned same as it was premised on ambiguity. A finding for the applicants would entail a total disregard of clause 2 of the said agreement. This cannot be done simply because there appears to be some ambiguity and contradiction in annexure A. Advocate Koosen asked for a business like interpretation, as not everyone had the qualification and it would cause a conflict within that group and an administrative burden on the employer. In a business sense such an interpretation should not be preferred.
34. The Agreement itself does not apply for an actual translation and is silent on that. If it was the intention to translate, then it would have provided for same. It also does not provide a mechanism for such translation. Annexure A was in conflict with the agreement and did not trump clause 2.
35. PAM: 8.4.4 and 8.4.4.1: if you were appointed in terms of PSA and if you were employed in terms of EEA, you would be on the same salary. It did not provide for a translation. It refers to an appointment or transfer not a translation. A transfer was different to a translation; the latter occurs when your position is changed to something else.
36. Much was being made about the LRA and the detriment they would suffer if not translated in terms of labour rights. This merely solicited sympathy for the Applicants. If the award did not favour them, it was not the end of the road. It was submitted that they could not translate, because there was no provision to do so and it made no business sense.
37. It was submitted that the Agreement was clear and unambiguous to the extent that the Agreement specifically bound the employer and only employees that were defined in the EEA. The purpose of the Agreement must also be considered. Reference was made to the letter dated 17 September 2018 From Mrs MOC Mhlabane ( Head of Education to Mr H M Mweli ( Director General, Department of Basic Education – Mpumalanga Province, and the reply on 7 November 2018. The reply provided a sound reason for the purpose of the Agreement and categorically stated that the intention of the Agreement was not to convert the existing PSA posts to educator posts as there was no provision for it in the Agreement.
38. On 4 February 2020 when a special labour relations management meeting was held for the implementation of the Agreement the minutes reflected : “ the translation of the Labour Relations post and ranks is not in line with the Public Service Act and regulations, nor with the Educators Employment Act 1998 as amended” and “ the proposed translation of the Labour Relations posts and officials to office – based educator posts and ranks will place severe implementation and parity challenges considering the following: a number of serving Labour Relations officials are not efficiently qualified educators and are therefore not registered with SACE.”
39. It was therefore submitted that the Agreement must be interpreted to apply to EEA and not PSA for all the above reasons.
APPLICANTS REPLY
40. It was argued that if a restrictive approach was applied, the applicants would not have mechanisms for labour disputes. It will render collective bargaining untenable and cumbersome. Collective Bargaining in the public service is streamlined and addressed in a particular forum. The only bargaining forum is the Educations Labour Relations Act. If they have a collective agreement not applicable to them, this would raise the concern or question as to where the issues would be ventilated.
41. If there is a tension between the annexure in the Agreement and the Agreement itself, it must be resolved. The issue of who qualified and who did not, was important. It was not the doing of the employees that the employer employed people in its department who did not have the necessary education qualifications.
42. The business like argument contended by the Respondent would be apposite in making a distinction between those that did not qualify to be educators as opposed to those that did have the qualifications. As such a distinction could be made. This is not a huge number as it involved 22 employees. As such the burden was insignificant. It would not place the system and procedures into disarray.
43. NEPA and the attack on their argument, on the basis that it was redundant, as the Agreement made no reference to it, should be rejected. NEPA enables the Minister of Basic Education to declare policy. The fact that the Agreement did not expressly refer to NEPA, did not mean their argument was redundant. NEPA recognizes the ELRC as the bargaining forum; the employees would not have a forum to ventilate their concerns if a restrictive interpretation is preferred.
ANALYSIS OF EVIDENCE
44. The applicant referred a dispute in terms of section 24 of the LRA. Section 24 of the LRA provides for arbitration of disputes about the “interpretation or application” of collective agreements. The interpretation of this section (section 24) provides for a dispute resolution device ancillary to collective bargaining, not to be used to remedy an unfair labour practice under pretext that a term of a collective agreement has been breached. The phrase “interpretation or application” is not to be read disjunctively, the enforcement of the terms of a collective agreement is a process which follows on a positive finding about application not a facet of application.
45. A commissioner must, as the LRA requires, take all the facts into consideration including the description of the nature of the dispute, the outcome and the evidence. This approach was reaffirmed in the matter of NUMSA (Sinuko) v Powertech Transformers (DPM) and Others (2014) 35 ILJ 954 (LAC) where Coppin JA and had the following to say:
“What is a “dispute” per se, and how one is to recognize it, demands scrutiny. Logically, a dispute requires, at minimum, a difference of opinion about a question. A dispute about the interpretation of a collective agreement requires, at minimum, a difference of opinion about what a provision of the agreement means. A dispute about the application of a collective agreement requires, at minimum, a difference of opinion about whether it can be invoked ….”
46. A dispute over the interpretation of a collective agreement exists when the parties disagree over the meaning of a particular provision as in the matter before me and my role is not to create a new contract for the parties. In NUMSA and Others v Volkswagen SA (Pty) Ltd and Others 2001 (4) SA 1009 (LAC), the arbitrator applied the test of a “reasonable bystander”. This approach has been criticized on the basis that “a collective agreement in terms of the Labour Relations Act is not an ordinary contract, and the context within which a collective agreement operates under the Act is vastly different from that of an ordinary commercial contract.” The Labour Appeal Court stated that the primary objects of the Act, namely, the effective, fair and speedy resolution of labour disputes would be better served by “a practical approach to the interpretation and application of the collective agreement …… rather than by reference to purely contractual principles.” It would thus appear that in considering a collective agreement our courts while taking cognisance of the ordinary principles of interpretation of contract, will also apply a purposive approach in order to ensure that the interpretation is consistent with the primary objects of the Act.
47. In this matter the Applicants were employed by the Respondent in terms of the PSA, in a position referred to as Labour Relations Officers and are governed by section 8 of the PSA. The Respondent claimed that the prescripts of the Agreement were only binding on departmental employees as defined by the EEA. In amplification of their argument it was submitted the wording of the Agreement was clear and unambiguous in that it applied to EEA employees. Clearly it was silent on employees employed in terms of the PSA. It was submitted that it was silent on PSA employees, and more so that it specifically referred to EEA employees, was clearly demonstrating the intention of the said Agreement, that it applied to just EEA employees. In this regard I find it prudent to refer to the EEA.
48. The Employment of Educators Act 76 of 1998 defines an educator as: “ any person who teaches, educates or trains other persons or who provides professional educational services, including professional therapy and education psychological services, at any public school, departmental office or adult basic education center and who is appointed in a post on any educator established under this Act.”
49. It was contended that the Agreement was applicable to the employees as they were educators. NEPA defined an educator as: “any person who teaches, educates, or trains other persons at an education institution or assists in rendering education services or education auxiliary or support services, provided by or in an education department, but does not include any officer or employee as defined in section 1 of the Public Service Act of 1994.” In PSA an educator is defined as: “educator defined in section 1 of the Employment of Educators Act 76 of 1998.” It was argued that as per above, the definition of an educator in the EEA accords with the definition of an educator in the NEPA.
50. In terms of section 4 (1) of EEA: “ notwithstanding anything to the contrary in any law, but subject to the provisions of this section, the Labour Relations Act, or any collective agreement concluded by the Education Labour Relations Council, the minister shall determine the salaries and other conditions of service of educators.” Mr Mphahlele argued further that in terms of NEPA, section 6, the Minister of Basic education determines and declares policy, subject to consultation with trade unions in the ELRC. In terms of these various statutory provisions and the Agreement itself, an interpretation to define office based educators, outside of the legislation in education, was unsustainable, and out of kilter with the general reading of the legislation. Such an interpretation would extinguish any rights of the employees as they would not be able to engage in collective bargaining. They would lack the forum, being the ELRC, which allowed for consultations between the minister and trade unions and would have limited collective bargaining rights on transversal issues such as salary negotiations. As much as I appreciate this argument I am not in a position to formulate a new contract nor can I adopt an interpretation that is most fair for collective bargaining.
51. My role was to ascertain if they fell under the scope of the Agreement. In this instance the intention of the parties must be considered. In terms of the Agreement it stated that it binds the employer and all employees in terms of the EEA. All the arguments pertaining to NEPA, fell outside the Agreement as it did not incorporate NEPA or any of its prescripts. The Agreement categorically bound employees in terms of EEA. By their very own submission they conceded they were employed by PSA and not EEA. As much as I appreciate the reference to the surrounding legislation, I find that it did not imply that the Agreement must be read to include the applicants, being PSA employees.
52. NEPA defines an educator as: “any person who teaches, educates, or trains other persons at an education institution or assists in rendering education services or education auxiliary or support services, provided by or in an education department, but does not include any officer or employee as defined in section 1 of the Public Service Act of 1994.” In the Public Service Act (PSA) an educator is defined as: “educator defined in section 1 of the Employment of Educators Act 76 of 1998.” When we refer to section 1 of PSA, it defines an employee contemplated in section 8 of that very same Act. It was agreed by the parties that the Applicants were all employed in terms of section 8 of the PSA, which reinforces the argument that they are and must be excluded from the Agreement.
53. The definition of educators in EEA accords with the definition in NEPA, but this is non consequential because the applicants did not qualify as educators in terms of NEPA or in terms of EEA. I support and agree with the submissions by Advocate Koosen that it excluded an employee employed in terms of section 1 of PSA. Section 1 of PSA defines an employee contemplated in section 8 and the parties were in agreement that Applicants were all employed in terms of section 8 of the PSA. They are thus excluded. In terms of the Agreement it stated that it binds the employer and all employees in terms of the EEA. The Agreement was specific and selective and purposively did not incorporate NEPA or any of its prescripts. The Agreement unconditionally bound employees in terms of EEA.
54. The Applicants believed that a literal and narrow interpretation would exclude employees from the ambit of the Agreement and such is not in line with the LRA. A more purposive interpretation would ensure harmony with the educational labour laws. I accept that there will be economical consequences if found that the Agreement is applicable as the employer will need to translate the employees to appropriate positions and salary scales. I accept a literal interpretation will limit collective bargaining as the employees only vehicle to canvas mutual interest matters, would be the ELRC. Be that as it may the dispute before me is not a collective bargaining issue or the fairness thereof, but solely on the interpretation of their job description and whether it fell in line with the Agreement. The scope of the ELRC is set out in Par. 2 of the ELRC Constitution, Collective Agreement 6/2016. The applicants were employed by the Provincial Department of Education in terms of the Public Service Act and fall within the scope of the GPSSBC of the GPSSBC Constitution. Accordingly, they have access to collective bargaining in the GPSSBC.
55. My attention was drawn to Annexure A of the Agreement which appeared to have a conflict with clause 2. Annexure A made reference to the job description of the applicants and appeared to have included them. This is in conflict with clause 2 of the same Agreement. I am to consider the Agreement holistically and apply a common sense approach, one that expresses the intention of the parties. It was submitted by Mr Mphahlele that not all employees had the necessary qualification. He asked that those who were suitably qualified be translated and the remainder would remain employees in terms of PSA. I have serious difficulty in adopting such an approach, as it lacked any common sense. It will create a conflict within that group and an administrative burden on the employer.
56. The Agreement makes no provision for an actual translation and if that was the intention, it would have recorded such a clause. It also does not provide a mechanism for translation. Whatever annexure A states, it was in conflict with the agreement, and clause 2 must be upheld, as it was clear and unambiguous.
57. The Applicants then referred to PAM. In this regard it was argued that all collective agreements are consolidated into personal administrative measures, known as PAM. PAM provided a mechanism for translation if the Agreement is found to be applicable to the employees. Chapter B of PAM, page 97, 8.4.4 “transfer of employee from a public service post to an educator post: 8.4.4.1 an employee that occupies a public service post and is appointed to an equivalent educator post without a break in service, will retain his salary. The salary must be translated to the nearest higher notch on the applicable salary ranch.” PAM makes specific reference to appointment and transfer and there was no provision for the translation of employees. The matter before me entailed a translation of their posts and not the transfer. As such I find that PAM has no relevance.
58. A significant portion of the Applicants argument was that an interpretation contrary to their argument would amount to a sterilization of their labour rights, in particular in terms of collective bargaining. As much as I sympathize with the applicants, my role in the matter is limited, and that is to afford an interpretation to the Agreement. I cannot import an interpretation based on subjective feelings, but my finding must be sound, reasoned and one that considers the aim, purpose and all the terms of the agreement. In the absence of ambiguity, the words contained in the agreement must be afforded its plain and literal meaning. A Commissioner must characterize a dispute objectively and failure to do so is an irregularity and reviewable.
59. In BIFAWU obo Members v Commission for Conciliation, Mediation and Arbitration and Others (JR306/13) [2018] ZALCJHB 303 (27 September 2018) the court was required to consider whether a collective agreement was indeed ‘interpreted’ to give effect to the ‘true’ intention of the parties. The Labour 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.
60. I now turn to the purpose of the Agreement and the letter dated 17 September 2018 from the Head of Education to the Director General, requesting a response to the position whether employees under the Public Service Act would be converted. The response stated “ the purpose and intention of the agreement was not to convert existing Public Service Act posts to educator posts as there is no provision in the collective agreement that suggests any translation of posts.” Further support for this supposition was achieved on 4 February 2020 when a special labour relations management meeting was held for the implementation of the Agreement. It was noted that any translation would cause grave difficulties as individuals lacked the necessary qualifications and there would be an unbearable burden on the department.
61. The interpretation must be fair. Mr Mphahele argued some were not qualified as educators which amounted to about 10 of the applicants and he said they could be excluded until they obtained the necessary qualifications. He in essence required some form of distinction to be made between the employees, which I am not empowered to do, nor do I consider same to be fair. They were all employed on the same level. On that basis, the application has serious concerns and is difficult to uphold as a large portion of the educators did not hold the necessary qualifications and cannot be translated. This was a concession by the applicants.
62. In assessing the matter wholly and completely I find that the Agreement applied to educators employed in terms of EEA and not PSA.
AWARD
I make the following award:
63. The Collective Agreement no 4 of 2017 did not apply to the Applicants as they were employed in terms of the Public Service Act, which was excluded from the Agreement, that only applied to employees employed in terms of the Employment of Educators Act.
ELRC Commissioner : VEESLA SONI
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