ELRC24-21/22NW
Award  Date:
  24 February 2022
Commissioner: D Smith
Case No.: ELRC24-21/22NW Date of Award: 24 February 2022


In the ARBITRATION between:



SAOU OBO DENISE CARSTENS
(Union / Applicant)


and


DEPARTMENT OF EDUCATION NORTH WEST
(Respondent)


DETAILS OF HEARING AND REPRESENTATION:

1. The dispute was referred to the Education Labour Relations Council (“Council”) in terms of Section 186(1)(a) of the Labour Relations Act, No. 66 of 1995 (“LRA”).

2. The Applicant, Ms. Denise Carstens (Carstens) was represented by Mr. Johan Kruger (Kruger), an official of the trade union SAOU. Carstens had not been given permission to attend. The Respondent, Department of Education: North West was represented Ms. Boity Phuswane (Phuswane), its SES: Disputes.

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

4. Kruger submitted a bundle of documents marked A

5. The parties agreed to submit argument as follows:
20 January 2002 Applicant Received 19 January 2022
27 January 2022 Respondent Received 29 January 2022
3 February 2022 Applicant (if necessary) Received 9 February 2022

ISSUE TO BE DECIDED:

6. Whether Carstens is entitled to be paid at the salary notch 197, in terms of Section 186 of the LRA, and Collective Agreement 5 of 2003 (“Collective Agreement”).

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

BACKGROUND:

8. Carstens had previously been employed at Laerskool Unie in a School Governing Body (SGB) position from 1 January 2000 to September 2009, 8 calendar years. She was then employed at the Klerksdorp Methodist Primary School from 1 October 2009 to 5 May 2018, 8 years. She applied, successfully, for a post with the Department and was appointed on 1 August 2018 on salary notch 164.


REMEDY

9. Carstens sought to be appointed on the correct salary notch, 197, retrospectively to 1 August 2018.

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. Kruger submitted that:

11.1. In terms of PAM clause B 8.4.3.1 actual teaching experience is recognized as follows:

(a) For purposes of determining the starting salary of an educator with experience outside public education additional notches may be granted based on actual teaching and/or appropriate experience.

12. In terms of ELRC Collective Agreement 5 of 2003:

(i) The same recognition for experience gained outside public education must be given to educators appointed for the first time in public education after 1996, as for educators who were in public education at any period before 1 July 1996.Experience gained before 1 July 1996.

13. Carstens was appointed on notch 164 at R280038.00 per annum.

14. She had 16 years’ experience outside public education. She had been employed in a school governing body position from 1 January 2000 to September 2009, 8 calendar years. She was then employed at the Klerksdorp Methodist Primary School from 1 October 2009 to 5 May 2018, 8 years. To argue that she is not honest in her submissions is untrue.

15. The Respondents argument that only certain sections of the collective agreement that were referred to is incorrect. The Respondents argument that costumes is on level 10 of the REQV scale is also incorrect -she holds a Bachelor’s Degree in Education, obtained from UNISA that is the equivalent of the REQV.
.
RESPONDENT’S VERSION

16. Phuswane submitted that:

16.1. Carstens submitted that she was employed in a SGB post at Laerskool Unie from 1 January 2002 to September 2009, a period of 8 years. She was then employed in an SGB post at Klerksdorp Methodist Primary School from 1 October 2009 to 5 May 2018, a period of 8 years.

16.2. It was common cause that Carstens was at REQV 10 throughout the period in dispute. This is because she acquired her professional qualification, a BA(Ed) in 2018.

16.3. It is important when dealing with issues of this nature to firstly test the veracity of the submissions made by the Parties. Carstens submitted in her argument that she worked for Laerskool Unie for a period of 8 years and subsequently for Klerksdorp Methodist Primary School for a further 8 years. In her application for a teaching post which she signed on 8 August 2018 she submitted her experience was from 1 January 2003 to 31 September 2007 at Pied Piper Preschool. From February 2008 to 31 December 2010 at Laerskool Unie. From 1 January 2011 to 30 April at Klerksdorp Methodist Primary School. Carstens was not honest in her submissions of the facts due to the glaring contradictions that appear between what she submitted at the time for applying for the teaching post and what she currently submitted for the purpose of her salary being elevated. This goes to her honesty in her submissions.

16.4. The Labour Court in BIFAWU 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 the ordinary and popular meaning if no ambiguity is present. This is supported by the labour Appeal Court which guides arbitrators on how to interpret collective agreements. It says that when interpreting collective agreements arbitrators should follow the judgments of the labour Appeal Court in North East Cape Forests v SAAPAWU and others (2) 1977 (18) ILJ 971 LAC:

“A collective in terms of the Act is not an ordinary contract and the context within a collective agreement operates under the act is vastly different from a commercial contract Froneman DJP has indicated that the primary objects of the Act were better served by a “practical approach to the interpretation and application of collective agreements rather than by reference to purely contractual principles. This is not to say however that the ordinary principles of interpretation of contract are never appropriate when interpreting applying collective agreements. In Northern Cape Forest the Court merely stressed that the interpreter should ask the further questions whether an interpretation yielded by these principles accords with the collective objectives of the LRA then stop, the fact that the collective agreement is a written memorandum which is meant to reflect the terms and conditions to which the parties have agreed at the time that they concluded the agreement. The Courts and arbitrators must therefore strive to give effect to that intention. Thus, the quotes frequently apply the ‘parole evidence’ rule - that is that evidence outside the written agreement shall itself is not generally permissible win the words of the marine memorandum are clear – when interpreting collective agreements”.

16.5. Paragraph 4.1 of the collective agreement 5 of 2003 provides with effect from 10 April 2003 the same recognition of experience gained outside public education needs to be given to educators appointed by appointed for the first time in public education after 1 July 1996

16.6. Paragraph B .8.4.3.1 of PAM provides that for the purposes of determining the starting salary of an educator with experience outside the public education additional notches may be granted based on the actual teaching and or appropriate experience. In terms of PAM, it is not automatic that all experience acquired outside the public service will enable one to gain notches, but it is possible that some will gain notches, hence the use of the word may.

16.7. In determining the salaries of employees and education, the issue of qualification plays an important role. During the period that Carstens was working in SGB posts she was not qualified as she only had a matric certificate. This placed her on a qualification category which was then called category A2 and currently called REQV 10.

16.8. Paragraph 4. 2 (b) provides for the manner in which the salary notch of an educator appointed after 1 July 1996 must be determined: “The appropriate salary notch that an educator would have been appointed on 30 June 1996 after recognition of experience must be determined”. This means is that if an educator were to be appointed in public education on or after 1 July 1996, in order to determine the starting notch, the employer must look at the salary notch that applied prior to the appointment, i.e., on 30 June 1996 and calculate the experience based on that salary notch. This gives an indication of the salary scales on 30 June 1996. In terms of this table Category A2 is the equivalent to REQV 10 and has a fixed salary scale. This means that if an educator, at the time of recognition, was at salary scale REQV 10, then the notch is fixed, and nothing can be added to that notch. The experience gained by that educator on that level will not change or affect the notch. It will remain at 2018, as it is fixed. It is instances like these where if you wish to recognize experience acquired outside the public education, it is impossible to have additional notches, hence the use of the word may in PAM.

16.9. Carstens was, for the period in dispute, not qualified and was on REQV 10. “The salary position to which this notch translated on 1 July 1996 will be applicable to the educator after which applicable subsequent adjustments must be effected”. Carstens was not entitled to additional notches. After considering the experience acquired after 1996, she was appointed on the starting notch of REQV 14.

16.10. Carstens, contrary to what paragraph 4.2 B of the agreement provides in relation to how to determine the starting notch of an educator whilst taking into consideration the experience outside public education, considered the notch which applied long after she was appointed. It is common cause that the applicant was appointed on 1 August 2018. However, the applicant calculated the experience based on the notch of our REQV 14 which applied on 1 July 2019. The intent of the collective agreement is to appoint an educator and a certain notch having taken into consideration the experience long after Carstens was appointed. Normally an educator will be appointed at the starting notch of a certain salary range considering their REQV level. If after checking their experience it is possible that the educator, at the time of appointment, is not appointed on the starting notch but way above it, having taken into consideration the experience gained outside public education. This is a clear indication that Carstens interpretation of both the provisions of PAM and the collective agreement is incorrect. An educator cannot be appointed first and after a year start calculating their experience with consideration of the experiences aimed at appointing the educator at a certain notch which may be above the starting notch.

16.11. Carstens, in her interpretation is relying on evidence which is not in the same agreement that she requires the commissioner to interpret. This is contrary to what our courts apply, the parole evidence rule, which says the evidence outside the written agreement is generally not permissible when the words of the memorandum or clear. The words of this agreement are not ambiguous and thus do not require any evidence outside the agreement.

16.12. It is the Respondent's case that Carstens’ interpretation of both the collective agreement and PAM in relation to the issue in dispute is wrong. The Respondent correctly interpreted both the agreement and PAM; hence the applicant was appointed on entry notch REQV 14

ANALYSIS OF EVIDENCE AND ARGUMENT:

17. PAM clause B 8.4.3.1 states actual teaching experience is recognized as follows:

(b) For purposes of determining the starting salary of an educator with experience outside public education additional notches may be granted based on actual teaching and/or appropriate experience (my emphasis).

18. The ELRC Collective Agreement 5 of 2003 states:

(j) The same recognition for experience gained outside public education must be given to educators appointed for the first time in public education after 1996, as for educators who were in public education at any period before 1 July 1996.Experience gained before 1 July 1996 (my emphasis).

19. PAM states:

“RELATIVE EDUCATION QUALIFICATION VALUE (REQV)
1.1. Definition
A relative value is attached to an education qualification in accordance with the measures set out in the document “Evaluation of Qualifications for Employment in Education”. The determination of the REQV is based primarily on the based primarily on the number of recognized prescribed full-time professional or academic years of study at an approved university, Technikon or college of education and taking into account the level of education attained.
Note:
(a) The recognition of diplomas for salary purposes is restricted to not more than two recognised post standard 10 diplomas, to a maximum REQV of 15.
(b) Existing approved measures that deviate from those set out below must only be applied when
absolutely necessary. (The said measures apply until such time as the system of determining REQVs could be developed to accommodate all needs adequately).
1.2. Requirements in respect of REQVs
10 Grade 12 or lower without a teacher’s qualification.
11 Grade 8, 9, 10 or 11 plus a teacher’s qualification of at least two years relevant training.
12 Grade 12 plus one or two year’s relative training.
13 Grade 12 plus three year’s relevant training
14 Grade 12 plus four year’s relevant training.
15 Grade 12 plus five year’s relevant training.
16 Grade 12 plus six year’s relevant training. Only professional qualified educators can be classified under REQV 16, provided such persons are in possession of a recognised completed university degree.
17 Grade 12 plus seven year’s relevant training. To be regarded as having an REQV of 17 a candidate must, in addition to the requirements for classification under REQV 16, also be in possession of at least a recognised master’ s degree.

2.2. Minimum requirements for appointments
(a). Educational qualifications
(i). In order to qualify for appointment as an educator a person must have at least a recognised three year qualification (REQV13) which must include appropriate training as an educator.
…”

20. When Carstens applied for the position she had a Professional Teachers Certificate (NQF5) and stated that she had a Batchelor’s degree (NQ7). Carstens has BA (Ed). Carstens was appointed for the first time in public education, after 1 July 1996, on 1 August 2018. In terms of the collective agreement, the experience gained outside public education must be recognized.

21. Her qualification and training would place her at REQV16.

FINDING

22. Carstens was appointed on the wrong salary scale. She should have been appointed on salary scale 197 and not 164. She is entitled to the relief she seeks. She was appointed on 1 August 2018. This amounts to R136792.20 ((R320271.00 - R 280038.00) x 3.4 years).

AWARD

23. The Respondent is required to place Carstens on the correct salary grade of 197, R 320 271.00 per annum, and pay her the difference between the grades, R136792.20 (one hundred and thirty-six thousand seven hundred and ninety-two Rand and twenty-two cents) by 15 March 2022.

24. Interest will accrue at the prescribed rate should payment not be made.


D H Smith
ELRC PANELIST

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